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2023 DIGILAW 932 (AP)

GUMMA RAJU v. STATE OF A. P. , REP BY PP.

2023-06-26

VENKATA JYOTHIRMAI PRATAPA

body2023
ORDER : This Criminal Revision Case is preferred against the concurrent judgments of conviction and sentence passed against the petitioners/A.1 and A.3 for the offences punishable under Section 395 of the Indian Penal Code in S.C.No.255 of 2007 on the file of the learned Principal Assistant Sessions Judge, Narasaraopeta, dated 31.05.2008, which was confirmed in Criminal Appeal No.184 of 2008 on the file of the learned X Additional District & Sessions Judge, (F.T.C) Guntur at Narasaraopet dated 18.12.2008. The revision petitioners herein are A1 and A3. The respondent herein is the State represented by Public Prosecutor. 2. The case of the prosecution in brief is that: a. On the intervening night of 27/28-09-2005 at about 24:00 hours mid night, A1 to A5 armed with plastic guns appearing as real weapons, claiming themselves as Naxals, gained entry into the house of de facto-Complainant viz., Aravapalli Kondala Rao (P.W.1) and put him in fear by pointing the weapon and made dacoity of cash of Rs.5,000/- and 12 items of gold ornaments weighing 13 in sovereigns, apart from Rs.1,000/- cash and with the assistance of P.W.1 and his son P.W.4 secured the presence of P.W.2, who is brother of P.W.1 at his rice mill and committed dacoity of cash of Rs.1,70,000/- which was kept in a zip bag and threatened them over a phone not to disclose the incident to anybody. b. Out of the fear, they kept quiet till 03.10.2005. On that day, on the complaint made by P.W.1 vide Ex.P1, a case has been registered in Ipur Police Station. While so, on 18.03.2006 during the investigation of a case in another crime by Gurajala Police, they caught hold the accused and during confession, the accused revealed the commission of offence in this Crime. Then the police recovered the stolen ornaments and stolen cash of Rs.2,000/- pertaining to this Crime. During the police custody, in the presence of mediators, zip bag was recovered which contains cash of Rs.2,000/-. c. Test identification parade was conducted by the Judicial Magistrate of Narasaraopet and witnesses identified the accused. Wife of de facto-complainant viz., Padmavathi identified the gold ornaments. On completion of investigation, the police laid charge sheet against the accused and also deposited the property before the trial Court. 3. During the course of trial, to substantiate the case of the prosecution, P.Ws. 1 to 8 witnesses were examined and Exs. Wife of de facto-complainant viz., Padmavathi identified the gold ornaments. On completion of investigation, the police laid charge sheet against the accused and also deposited the property before the trial Court. 3. During the course of trial, to substantiate the case of the prosecution, P.Ws. 1 to 8 witnesses were examined and Exs. P1 to P32 documents were marked and Material Object Nos. 1 to 13 were placed before the Court. Ex.D1 is the contradiction marked in the evidence of P.W.3 on behalf of the defence. The defence is of total denial. 4. On appreciation of the evidence on record and after completion of both counsel, the learned trial Judge found the accused guilty for the offence punishable under Section 395 of the I.P.C., and sentenced him to undergo rigorous imprisonment for a period of 05 years and also to pay fine of Rs.1,000/- in default, simple imprisonment for 60 days each. The case against A2, A4 and A5 ended in acquittal. 5. Having been aggrieved by the impugned judgment of conviction and sentence passed against A1 and A3 carried the matter in Appeal before the learned X Additional District & Sessions Judge, (F.T.C) Guntur at Narasaraopet i.e., 1st Appellate Court confirmed the conviction for the offence punishable under Section 395 of the I.P.C. However, the sentence of imprisonment is reduced to 3 years. 6. Feeling aggrieved and dissatisfied with the impugned judgment confirming the conviction, A1 and A3 preferred the present revision on the grounds that, the learned trial Judge and the 1st appellate Judge did not appreciate the evidence in right perspective and convicted the petitioners without any valid and cogent reasons, that there was abnormal delay in lodging the information to the police and the involvement of the revision petitioner is highly doubtful, and that the petitioners were not identified by the de facto-complainant and his family members in the Test Identification parade. Accordingly, prays to allow the revision by setting aside the impugned judgment. 7. Heard Sri Md. Saleem, learned counsel for the revision petitioner and learned Public Prosecutor appearing for the State. Points for Determination 8. Now the points that would emerge for determination in this Revision are: i) Whether the prosecution has proved that it is a case of robbery committed by five or more persons, if so, A1 and A3 are involved in commission of the offence of dacoity? Points for Determination 8. Now the points that would emerge for determination in this Revision are: i) Whether the prosecution has proved that it is a case of robbery committed by five or more persons, if so, A1 and A3 are involved in commission of the offence of dacoity? ii) Whether the impugned judgment and conviction and sentence is on correct lines or there is any irregularity in exercising the jurisdiction or failure to exercise the jurisdiction which lead to miscarriage of justice to warrant interference in this revision? Determination by the Court 9. Dacoity, defined in Section 391 of IPC, is the offence punishable under Section 395 of IPC. Broadly speaking, dacoity is commission of robbery in association by five or more persons. The burden is on the prosecution to prove that it is a case of robbery and is either committed or, attempted to be committed by five or more persons. In such a situation, all such persons, who are present or who have aided for the commission or in attempt to commit such an offence, are said to commit dacoity. 10. At first, the prosecution must establish the presence of the informant and the other witnesses, who witnessed the incident at the scene of offence during the relevant point of time, then the identification of the accused by the victim and other witnesses must be proved. Further, identification of property by the victim also plays a vital role. When there is no previous enmity between the complainant and the accused and the property is also recovered from the accused, it is a strong foundation to believe the version of the prosecution and the Court can safely rule out the possibility of a false case against the accused. 11. The Hon’ble Apex Court has time and again cautioned about the limits in the exercise of revisional jurisdiction and as to how sparingly it must be used. An appellate court’s jurisdiction is co-extensive with that of the original court in so far as the appreciation and reappreciation of the evidence is considered. While sitting in revision, the Court is primarily concerned with the legality and propriety of the findings and on the exercise of jurisdiction. However, revisional court can interfere with the findings of fact of the lower court when the same are perverse and not merely when another view is also possible. While sitting in revision, the Court is primarily concerned with the legality and propriety of the findings and on the exercise of jurisdiction. However, revisional court can interfere with the findings of fact of the lower court when the same are perverse and not merely when another view is also possible. Such an extension to the scope of revision is with the objective of advancing the cause of justice. 12. In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 the Hon’ble Supreme Court while identifying contours of revisional jurisdiction held thus; “12……The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie.” 13. This Court having noted the limits of revisional jurisdiction perused the material placed on record. Coming to the facts of the present case, it is alleged that the accused committed an offence of dacoity. The case has been alleged against five persons. The trial Court found A1 and A3 guilty and acquitted the remaining accused i.e., A2, A4 and A5, by giving benefit of doubt as the victim and witnesses failed to identify A2, A4 and A5 in identification parade as well as they could not mention the facial and physical features of these persons in the report which was presented to the police. As such, the learned Magistrate rightly acquitted them, for the charge under Section 395 of IPC, which was rightly confirmed by the appellate Court. 14. There is no force in the contention of the defence that because two persons were found guilty, they cannot be convicted for the offence punishable under section 395 of the Indian Penal Code which requires five or more persons. A similar instance arose before a three-Judge Bench of the Hon’ble Apex Court in Saktu and Another v. State of U.P., (1973) 1 SCC 202 , wherein it was held that when once participation of more than five is not in dispute, conviction of three persons could be upheld under Section 395, even when some could not be convicted due to lack of identification. 15. As seen from the record, the incident took place in the midnight on 27.09.2005. The information given to the police on 03.10.2005. As rightly argued by the learned Public Prosecutor, the delay in each and every case is not fatal to the prosecution’s case, if the said delay is properly explained with valid reasons. The prosecution projected its’ case giving plausible explanation for the delay stating that the manner in which, the incident occurred itself speaks volumes of reasons for the delay. P.W.1 testified that the accused threatened them to open the door from their window by showing a gun, which appears to be real one, claiming themselves as Naxalites. They have threatened them that if they failed to follow their instructions, they would blast the house. The accused are successful even to take the assistance of P.W.1, P.W.4 to reach P.W.2 and robbed Rs.1,70,000/- from P.W.2. Such being the case, P.W.1, P.W.2 and their family members might be in utter shock. 16. It is also the evidence of P.W.1 that after the incident, the accused called them over phone and threatened not to disclose the incident to anyone. It is the case of the robbery of nearly 39 sovereigns of gold apart from huge cash. No one desires to keep quiet without reporting to the police. It appears that after coming out from the trauma, which was created by the accused by pointing gun, they have given information to the police. P.Ws. 1 to 6 are the victims and their family members. No one desires to keep quiet without reporting to the police. It appears that after coming out from the trauma, which was created by the accused by pointing gun, they have given information to the police. P.Ws. 1 to 6 are the victims and their family members. P.W.7 was introduced as a circumstantial witness, to speak to the fact that, he has seen the accused during that night and accused enquired about the address of the house of P.W.1. But P.W.7 failed to identify the accused. The evidence of P.W.7 is of no avail. The accused went to the house of P.W.1, then to the rice mill of P.W.1, later to the house of P.W.2 with the help of P.W.4, who is the son of P.W.1. 17. P.W.8, who is the mediator for the scene of offence, stated about the observation of the police in the scene of offence, vide proceedings Ex.P3. P.W.9 and P.W.14, who are mediators for the arrest and recovery of M.Os. 1 to 12 by P.W.16 turned unfriendly to the prosecution. However, P.W.9 identified his signatures on panchanamas. In the present case, M.Os.1 to 12, which are the gold ornaments, are recovered. Though the mediators turned unfriendly to the prosecution, the identification of the property by the victims is a helping link in establishing the case of the prosecution. There is no hard and fast rule that the evidence of the police officials cannot be believed. But when the mediators turned hostile to the prosecution case, the Court has to scrutinize the evidence of police officials with great care and caution. In the present case, the evidence of P.W.16 is corroborated by the evidence of P.W.1 and 2, since they have identified their gold articles, which were seized from the possession of the accused. In the said instances, recovery of such property cannot be disbelieved and P.W.17 categorically deposed about the Test Identification parade conducted, wherein the accused were identified. 18. In view of the above discussion and circumstances, this Court is of the view that no interference is warranted in the trial Court judgment, as the learned trial Judge answered each and every point raised by the defence and the lower Appellate Court confirmed the conviction by reducing the sentence to three years. 19. 18. In view of the above discussion and circumstances, this Court is of the view that no interference is warranted in the trial Court judgment, as the learned trial Judge answered each and every point raised by the defence and the lower Appellate Court confirmed the conviction by reducing the sentence to three years. 19. Accordingly, this Criminal Revision Case is dismissed by confirming the judgments passed in S.C.No. 255 of 2007 by the Principal Assistant Sessions Judge, Narasaraopet on 31.05.2008, which was partly allowed by the X Additional District and Sessions Judge (F.T.C) Guntur at Narasaraopeta in Criminal Appeal No.184 of 2008, dated 18.12.2008, against the Petitioners/Accused Nos. 1 and 3 by scaling down the sentence of imprisonment from 5 years to 3 years. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.