Telangana High Court
The State Of Andhra Pradesh, vs Ganesh Bapurao Pawar Dale Jaipal, A1 on 4 January, 2022
Author: Chillakur Sumalatha
Bench: Chillakur Sumalatha
THE HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA
CRIMINAL APPEAL No.1867 of 2009
JUDGMENT :
Challenging the validity and the legality of the judgment rendered by the Assistant Sessions Judge, Bhongir, in S.C.No.231 of 2007, dated 15.07.2008, the appellant - State is before this Court by way of the present appeal.
2. Respondent Nos.1 to 5, who were arrayed as Accused Nos.1, 2, 4, 7 and 8 in the said Sessions Case and charged for the offence punishable under Section 395 of IPC were acquitted by the trial Court vide judgment dated 15.07.2008 and aggrieved by the said judgment of acquittal, the State has preferred the present appeal.
3. Heard the submission of the learned Assistant Public Prosecutor. None appears for the respondents - Accused.
4. While submitting her contentions, the learned Assistant Public Prosecutor has contended that the trial Court ought to have observed that the ingredients to constitute the offence punishable under Section 395 of IPC were made out by the Prosecution. She further contends that the learned Judge erred in disbelieving the evidence of the Prosecution witnesses and the material that is available on record and though the evidence produced is cogent and reliable, as it was not 2 perceived in its proper perspective, the trial Court came to a wrong conclusion and thereby acquitted the respondents - Accused and, therefore, the judgment rendered by the trial Court has to be set aside.
5. Thus, in the light of the above submission, the point that arises for consideration is:
Whether the appellant established beyond all reasonable doubt before the trial Court that the respondents - Accused have committed offence punishable under Section 395 of IPC.
6. The case of the prosecution, as could be culled out from the charge sheet, is that on 21.06.2004 at about 3-00 a.m., the defacto-complainant i.e. PW.1 went to urinals and after attending the calls of nature, while she was returning back to her house, two unknown offenders were found in front of her house main gate and among them, one person came near to her and snatched the pusthela thadu from her neck by throwing the mangala suthrams upon her and while fleeing away, they also thrown away one knife in front of her house and that they were in the age group of 25 to 30 years and she suspects them as one Mr. Kiran and Mr. Sridhar. With the above averments, she gave a complaint to the police, basing on which a case in Crime No.74/2005 of Alair Police Station, was registered. Subsequently, as the culprits could not be traced out, the case was referred to as "Undetectable". 3
7. On 19.07.2005 PW.7 received information from LW.11 - Sri T. Srinivas Reddy that the stolen property pertaining to this case was recovered from the accused and on that the case was re-opened and further investigation was taken up. On securing the presence of the accused, Test Identification Parade was got conducted, in which PW.1 identified Accused Nos.2 and 4 i.e. respondent Nos.2 and 3 herein.
8. Basing on the above set of facts, while submitting her contentions, the learned Assistant Public Prosecutor stated that though PW.1, who is the defacto-complainant, has clearly identified respondent Nos.2 and 3 before the Magistrate concerned, who conducted the Test Identification proceedings, and further though the recovery of the stolen property was also proved by the prosecution before the trial Court, without giving any weightage to the evidence produced before it, the trial Court has acquitted the respondents - Accused and, therefore, the said judgment rendered by the trial Court has to be set aside.
9. When the evidence that is produced by the appellant before the trial Court is gone through, this Court finds that the said evidence is insufficient and, therefore, the same cannot form basis for convicting the respondents - Accused. The judgment of the trial Court has to be confirmed by disallowing the appeal for more than one reason, which are as under :
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1. PW.1 did not narrate in Ex.P1 - complaint and also did not state anything about the physical features of the person, who approached her, and the person who was present near the gate of her house.
2. Admittedly, though the incident alleged to have occurred at about 3-00 a.m. on 21.06.2004, neither the evidence of PW.3 nor the contents of Ex.P1 - complaint goes to show that there was lighting at the place of incident through which PW.1 had an opportunity to notice the physical features of those culprits.
3. If, as projected by the prosecution, PW.1 has noticed respondent Nos.2 and 3 i.e. Accused Nos.2 and 4, there is no reason for her to mention that she suspects one Mr. Kiran and Mr. Sridhar.
4. When PW.1 noticing the physical features of the culprits itself becomes doubtful, no weight can be attached to her statement that she identified those culprits in the Test Identification Parade conducted.
5. The prosecution did not put-forth any cogent and convincing material to establish how PW.1 had identified respondent Nos.2 and 3 i.e. Accused Nos.2 and 4, that too after lapse of more than 1 ½ years from the date of the alleged incident.
10. As per the version of the prosecution, the confessional statement that led to the recovery of the stolen property is 5 admissible in evidence. Though the prosecution has produced the evidence of PW.5 to establish this fact, PW.5 in simple terms stated as follows :
"On 04.07.2005 at about 1-00 p.m., L.B. Nagar P.S. called me to Mallepally area nearby Govt. School. The first accused and others were in the custody of police at that time. Police requested me and other panch to act as panchas. The Police interrogated A-1 in our presence and the A-1 confessed the commission of offence in this case and other cases. Ex.P4 is the confessional-cum- seizure panchanama of A-1. Ex.P4 is the xerox copy of the panchanama. PW.1 seized a pusthela thadu, black beeds chain and ear studs pertaining to Cr.No.72/2005 of Chityal P.S., the police also seized another pusthela thadu pertaining to S.C.No.74 of 2004 of Alair P.S. The police also seized another pusthela thadu pertaining to Cr.No.23/2005 of P.S. Thukarampally. They also seized other properties pertaining to other police stations. A common panchanama was prepared in our presence. Ex.P4 contain my signature as panch witness."
11. Thus, it is not the evidence of PW.5 that through the confessional statement, Accused No.1 had informed about the stolen property and basing on his statement, the stolen property was recovered. Further-more, it is not the evidence of PW.5 that basing on the confessional statement of Accused No.1, other persons were apprehended and produced. His clear statement is that Accused No.1 and others were in the 6 custody of the police and the police interrogated Accused No.1 in their presence. But, since how long they were in the custody of the police is not known. In order to clarify these aspects, the prosecution ought to have examined the Police Officer under whose supervision the Accused were arrested and the stolen property was recovered. But, that crucial witness was not examined.
12. Considering the above points, the trial Court, by its wisdom, has passed the judgment of acquittal of the Accused. Even before this Court, the learned Assistant Public Prosecutor failed to clarify the above aspects and state as to how the judgment of the trial Court is unsustainable. Therefore, this Court holds that there are no grounds whatsoever to interfere with the findings given by the trial Court acquitting the Accused.
13. In the result, this Criminal Appeal is dismissed confirming the judgment rendered by the Assistant Sessions Judge, Bhongir, in S.C.No.231 of 2007, dated 15.07.2008.
14. Miscellaneous applications pending, if any, shall stand closed.
_________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA 04.01.2022.
Msr 7 THE HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA CRIMINAL APPEAL No.1867 of 2009 04.01.2022 (Msr)