Telangana High Court
Syed Anwar vs State Of Telangana, on 7 June, 2024
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
CRIMINAL APPEAL Nos.525, 543, 568, 585, 617 & 766 OF 2016
AND 150 OF 2017
COMMON JUDGMENT:(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. P. Prabhakar Reddy, learned counsel for the appellant - accused Nos.1, 4, 5, 6 and 7 in Crl.A. Nos.585, 525, 617, 766 and 543 of 2016 respectively, Smt. G. Jaya Reddy, learned counsel for the appellant - accused No.2 in Crl.A. No.568 of 2016 and Smt. B. Vaijayanthi, learned counsel for the appellant - accused No.3 in Crl.A. No.150 of 2017 and also Smt. B. Shalini Saxena, learned Assistant Public Prosecutor appearing on behalf of the respondent - State.
2. The appellants before this Court are accused Nos.1 to 7 in S.C. No.583 of 2015. Accused Nos.1, 4, 5, 6 and 7 have filed Criminal Appeal Nos.585, 525, 617, 766 and 543 of 2016, while accused No.2 filed Criminal Appeal No.568 of 2016 and accused No.3 filed Criminal Appeal No.150 of 2017 challenging their conviction and sentences of imprisonment imposed on them vide judgment dated 2 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch 10th and 11th May, 2016 passed by learned II Special Sessions Judge Court for trial of Cases relating to Atrocities against Women, Cyberabad, Ranga Reddy District at L.B. Nagar in S.C. No.583 of 2015, whereby and where-under they were convicted for the offences under Sections - 354B, 452, 323, 506 and 395 of IPC and sentenced them to undergo life imprisonment for the offence under Section - 395 of IPC and to pay a fine of Rs.5,000/- each, and further sentenced to undergo simple imprisonment for one (01) month each. The trial Court also imposed sentence of imprisonment on them for a period of seven (07) years and to pay a fine of Rs.5,000/- (Rupees Five Thousand Only) each and in default to undergo simple imprisonment for one (01) month each for the offence under Section 506 (Part-ii) of IPC, and so also for the offences under Sections - 354B and 452 of IPC. However, the trial Court imposed simple imprisonment for a period of one (01) year against the aforesaid accused for the offence under Section - 323 of IPC.
3. Since all the appellants challenged the impugned judgment, for the sake of convenience, the parties are hereinafter referred to according to their ranks in S.C. No.583 of 2015.
4. The case of the prosecution is as under:
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KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch
i) On 31.07.2014, PWs.1, 2, 4, 6 and 7 went to their Farm House situated at Shaheen Nagar, Hyderabad, in two cars and after some time, PWs.4, 6 and 7 went to their home by leaving PWs.1 and
2. At about 1330 hours, accused Nos.1 to 7 by knowing the presence of PWs.1 and 2 alone, criminally trespassed into the said farm house by jumping compound wall, started beating them and dragged into a room and ripped their clothes. They had taken photos and videos in their mobile phones and threatened them that they would upload the photos in Face Book. The accused made PW.1 sit on his knee and accused Nos.1 to 4 sexually assaulted PW.2 one after another by putting her in the fear with a snake and thereafter they robbed gold chain, gold ring and two of goggles and net cash of Rs.6,000/- from them and left the scene of crime.
ii) Then, PW.1 gave complaint (Ex.P1) on the same day at 20:00 hours to PW.19 - Inspector of Police, Pahadi Shareef Police Station, who in turn, registered a case in Crime No.315 of 2014 for the offences under Sections - 448, 354, 323, 382, 509 and 509 read with 34 of IPC and took up investigation.
iii) During the course of investigation, PW.18 - Sub-Inspector of Police examined and recorded the statements of PWs.1, 2 and 3 and 4 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch visited the scene of offence. Thereafter, PW.19 took up investigation from PW.18 and conducted further investigation.
iv) After completion of investigation, the police filed the charge sheet against the accused for the offences punishable under Sections - 452, 376D IPC (Criminal Law Amendment Act, 2013), 323, 395 and 506 (ii) read with 34 IPC against accused Nos.1 to 7. Since accused Nos.8 and 9 who harbored accused Nos.1 to 7 with an intention to evade from the clutches of law, they are also liable for punishment for the offences under Sections - 212 and 411 of IPC.
v) After committal, the same was numbered as S.C. No.583 of 2015. The trial Court framed the charges under Sections - 376D, 452, 323, 395 and 506 of IPC against accused Nos.1 to 4, while charges under Sections - 376 read with 34 of IPC, 452, 323, 395 and 506 of IPC against accused Nos.5 to 7 and proceeded with trial.
vi) During trial, PWs.1 to 21 were examined and Exs.P1 to P38 were marked and MOs.1 to 14 were exhibited on behalf of the prosecution, whereas, neither oral nor documentary evidence was let in on behalf of the accused.
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KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch
vii) After completion of trial and hearing both sides, the trial Court considering the evidence, both oral and documentary, found the accused guilty of the aforesaid charges framed against them and accordingly convicted and imposed life imprisonment in the manner stated above.
viii) With regard to accused Nos.8 and 9, accused No.8 was found guilty for the offence under Section - 411 of IPC, however, acquitted for the offence under Section - 212 of IPC, whereas accused No.9 was acquitted for both the offences under Sections - 411 and 212 of IPC.
ix) Challenging the conviction and sentence of imprisonment, accused Nos.1 to 7 filed the present appeals.
5. Learned counsel appearing on behalf of respective appellants contended as follows:
i) The evidence of PWs.1 to 3 is contradictory to each other;
ii) PWs.1 to 5 are interested witnesses and, therefore, their evidence cannot be considered;6
KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch
iii) Recovery of MOs.3 and 4 are doubtful in view of contradictory evidence of PWs.1 and 2;
iv) There is delay in lodging Ex.P1 as the alleged incident occurred on 31.07.2014 at 1.30 P.M., whereas the report was given by PW.1 on the same day at about 8.00 P.M.;
v) There was no mention of description particulars of any of the accused in Ex.P1 - complaint;
vi) In Ex.P1 - complaint, it is mentioned that the accused have committed theft of Rs.6,000/- and goggles, whereas in the evidence, it is deposed that MOs.3 and 4 - gold chain and ring were also snatched by the accused;
vii) There is also no mention with regard to receipt of injuries by PWs.1 and 2; and also the accused possessing rods, knives and deadly weapons;
viii) PW.2 has not identified accused Nos.2 to 7 and only identified accused No.1 by name in the Court;
ix) The Investigating Officer did not conduct test identification parade and, therefore, no value is attached to the evidence of PWs.1 and 3;
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KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch
x) As far as accused No.7 is concerned, it is contended that all the allegations are against accused No.1 only and there are no allegations against accused No.7. Even the allegation of rape and robbery are not against him;
xi) There is no iota of evidence to convict for the offence under Section - 354B of IPC;
xii) The trial Court convicted the appellants for the offence under Section - 395 of IPC merely on the ground of recovery of Rs.500/- cash from the possession of accused No.3 and other material objects, like sun glasses from accused No.5, but the same were not produced before the trial Court as well as recovery of MO.1 - another set of goggles from the possession of accused No.6;
xiii) The trial Court did not consider the contradictions and omissions in the evidence of prosecution witnesses;
xiv) The trial Court without considering all the aforesaid aspects, recorded conviction against the appellants erroneously; and
xv) With the aforesaid contentions, they sought to allow the appeals by setting aside the impugned judgment. 8
KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch
6. On the other hand, learned Assistant Public Prosecutor made the following submissions:
i) The evidence of PW.1 to 3 is clear to come to a conclusion that the appellants have committed the aforesaid offences;
ii) There is no much delay in lodging FIR as on the same day PW.1 gave Ex.P1 - report;
iii) The contradictions and omissions appearing in the evidence of prosecution witnesses, more particularly PWs.1 to 3 are minor in nature and the same cannot tilt the prosecution case;
iv) The offences committed by the appellants are heinous and, therefore, they cannot be allowed to go scot free;
v) FIR is not an encyclopedia, which is expected to contain all the details of the prosecution case;
vi) Omission to give the names of the accused in the FIR is not fatal to the prosecution case;
vii) Even non-conducting of test identification parade will not be fatal to the case of prosecution as PW.1 has identified the accused in the Court during the trial; 9
KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch
viii) Recovery of MOs.3 and 4 is enough to connect the accused for the aforesaid offences;
ix) The evidence and the circumstances complete the chain of circumstances pointing to the guilt of the accused;
x) The trial Court having considered the entire evidence, both oral and documentary, recorded conviction and imposed sentence of imprisonment in the manner stated in the impugned judgment. There is no error in it warranting interference by this Court; and
xi) With the aforesaid submissions, she sought to dismiss all the appeals.
7. In view above, the point that falls for consideration by this Court is:
Whether the conviction and sentence of imprisonment recorded by the trial Court for the offences under Sections - 354B, 452, 323, 506 and 395 of IPC against the appellants herein - accused Nos.1 to 7 are sustainable, both on facts and in law?
8. As discussed above, vide impugned judgment, 10th and 11th May, 2016, the trial Court convicted the appellants - accused Nos.1 to 7 for the offences under Sections - 354B, 506 (part-II) and 452 of IPC 10 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch and sentenced them to undergo rigorous imprisonment for seven (07) years for each offence and simple imprisonment for one (01) year for the offence under Section 323 of IPC, whereas life imprisonment for the offence under Section - 395 of IPC. All the said sentences shall run concurrently.
9. It is relevant to note that accused No.1 was arrested on 21.08.2014 and since then he is in jail, while accused Nos.2, 5 and 6 were surrendered on 11.08.2014 and they are in jail from the said date, accused Nos.3, 4 and 7 were arrested on 07.08.2014 and since then they are in jail. In view of the same, the appellants herein have already incarcerated for more than nine (09) years period, and thereby they have served out the sentence of imprisonment imposed against them for the offences under Sections - 354B, 506 (part-II), 452 and 323 of IPC. Still, they are languishing in jail on account of imposition of life imprisonment for the offence under Section - 395 of IPC.
10. In the light of the aforesaid fact-situation, there is no need to discuss with regard to other offences i.e., Sections - 354B, 506 (part-II), 452 and 323 of IPC. This Court will deal with the conviction recorded by the trial Court for the offence under Section - 395 of IPC 11 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch and the sentence of life imprisonment imposed on the appellants herein apart from fine of Rs.5,000/- each.
11. In the light of the aforesaid discussion, it is relevant to note that Section - 391 of IPC deals with dacoity and it says that when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
i) Section - 390 of IPC deals with 'robbery'. It says that in all robbery there is either theft or extortion.
a) When theft is robbery. Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
b) When extortion is robbery. Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of 12 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
c) The explanation thereto says that the offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
ii) Section - 395 of IPC deals with punishment for dacoity, and it says that whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
iii) Thus, to attract the offence under Section - 391 of IPC, the following ingredients are essential:
(a) There should be five (05) persons or more;
(b) Commit or attempt to commit the robbery; and
(c) All such persons should act conjointly;
iv) To prove the said offence, the prosecution has examined PW.1, the complainant; PW.2, the victim and girl friend of PW.1; 13
KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch PW.3, the watchman of farmhouse; PWs.6 and 7, the parents of PW.1 and PW.7 is the owner of the said farmhouse; PW.4, the cousin of PW.1; PW.8 and 11, the panchas for scene of offence - cum - confession of accused Nos.3, 4 and 7 and recovery thereof; PWs.9 and 10, the panchas for confession of accused Nos.2, 5, 6 and 8 and recovery; PW.13, the Magistrate, who recorded the statement of PWs.1 and 2 under Section - 164 of Cr.P.C. vide Exs.P22 and 23; PW.14 the Inspector of Police, who recorded additional statement of PW.2; PWs.18 to 20, the first, second and third Investigating Officers and PW.21, the Inspector of Police, who laid the charge sheet, and marked Exs.P1 to 17, 22 to 28, 31 to 38 and MOs.1 to 14 were exhibited.
12. PW.1, the complainant deposed that on 31.07.2014 after 12.00 noon, he, PW2 and his family members went to the farmhouse belongs to his father (PW.7), situated at Shaheen Nagar, Hyderabad, to celebrate post Eid Ceremony. After sometime, his family members left the place. Later, he and PW.2 stayed back in the farmhouse only. Both of them were sitting in the Garden of the farmhouse. In the meanwhile, seven (07) members jumped from the compound wall of the farmhouse. They were in possession of rods, knives and a Snake 14 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch also. All of them started beating him and PW2 in the garden itself with rods. They were scaring them with knife.
i) He further deposed that Accused Nos.1 to 7 took them into the hall of farmhouse, and again they started beating them. They ripped his clothes and the clothes of PW.2. Accused No.3 brought a snake inside the hall and scaring them. Due to fear, they were moving here and there in the hall, but he thrown the snake onto their bodies. Accused Nos.1, 2 and 4 to A6 have videographed the said scene in their mobiles. At that time, he and PW2 were only with inner clothes. The appellants herein have also tried to remove the upper cloth of PW2. They asked him to give his Car keys and he gave it. Three of them i.e., Accused Nos.5, 6 and 7 went into the Car, took out his Gold Ring, Gold Chain and goggles from the car. They have also taken out cash of Rs.7,000/- from his Jeans Trousers. The accused have also taken out Bank Card of PW2 from her hand bag.
ii) PW.1 further deposed that then accused Nos.1 to 7 tried to touch the body of PW2, but she refused and pushed them. They sat around him and PW.2. They threatened them that if they disclose the incident to anybody, they would display the videos in face book and 15 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch social media. After that, they have tied PW.3, watchman of the farmhouse, thrown him somewhere in the farmhouse and left him there. After that, Accused Nos.1 to 7 again came to them i.e., he and PW.2 inside the hall of the farmhouse. Among Accused Nos.1 to 7, accused No.1 asked him as to who he was and he further stated that if accused No.1 discloses his name, PW.1 would identify him. Then, accused No.1 told his name as 'Faisal Dayyani'. Again, Accused No.l beat him and thereafter accused Nos.1 to 7 left the farmhouse. He has lodged Ex.P1 - compliant with police, Pahadi Shareef, who recorded the statement of PW.1.
iii) However, during cross-examination, PW.1 admitted that there is one more farm house by the side of their farmhouse. He gave complaint to the police between 7.00 and 9.00 P.M. on the date of incident. He and his uncle (PW.5) together went to the police station to give complaint. PW.2 also accompanied him to the police station. The police have not recorded her statement at that time. The police did not ask them to go for medical examination. He did not identify accused Nos.1 to 7 immediately when they came to the farmhouse. Except the same, nothing incriminating was culled from PW.1. Thus, 16 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch PW.1 identified accused Nos.1 to 7. He has also revealed the name of accused No.1 as 'Faisal Dayyani'.
iv) Thus, PW.1 identified accused Nos.1 to 7. He has also revealed the name of accused No.1 as 'Faisal Dayyani'.
13. PW.2 is the victim girl. She deposed that PW.1 is her friend. On 31.07.2014, she along with PW.1 and his family members went to the farmhouse of PW.7, father of PW.1. PWs.1 and 2 took photographs of each other on cell phones in the said farmhouse. At that time, about six to seven persons jumped over the wall of the farmhouse and came towards them. When PW.1 questioned them as to who they are, all of them started beating PW.1 and her with hands. They have dragged them inside the room of the farm house. They got removed her cloths and the clothes of PW.1. The said persons beat them and they were made to sit in a corner. They have taken videographs of her and PW.1 in their cell phones while they have no clothes on their bodies.
i) She further deposed that the said persons asked her to tell that she goes to pubs and they asked PW.1 to say that he would bring girls to farmhouse and they further stated that if they tell like that the 17 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch said persons leave them. Then, she asked PW.1 to accept their demand so that they would leave them. Then, they stopped taking videographs.
ii) Accused No.1 pulled her tuft saying that she was cursing them. Then, the said persons made them to sit and they sat around them. One of them brought a snake and left near to them. Accused No.1 further told PW.1 that he knows the family of PW.1. Then, all of them told PWs.1 and 2 that they committed mistake by coming over the farmhouse and that they told them not to disclose the said incident to anybody and if do so, the said persons would place the incident in social media. While leaving the place, the said persons shook hands with PW.1 and left the place. When, she checked her handbag, she found missing of her gold chain (MO.3), gold ring (MO.4) and makeup kit. Ex.P2 is the photograph containing seven sheets with compact disk. She did not inform the said incident to her parents. On the same day in the late night at about 8.00 P.M., PW.1 had telephonic conversation with her and he asked her to report the matter to police. Then, she went to uncle of PW.1 after two days of the said incident. PW.5 asked her to inform the police that the said seven people raped her, so that it will be good for her and PW.1 and 18 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch both of them get married. Initially, she refused to do so as it was not true. But, later father of PW.1 i.e., PW.7 also came into picture and he also asked her to accept for medical examination. He met her in Four Season Restaurant. Then, she kept away saying that she does not agree for it. She gave statement before the Magistrate, but the statement given before the Magistrate is incorrect.
iii) She further deposed that during the said two years she was tortured by the family of PW.1 through social media, but PW.1 was always cordial with her. Her mother also rounded around PW.1 and requested him not to expose PW.2. The police did not record her statement at any time. Father of PW.1 forced her to give statement that she was raped by the said people and if she does not agree for that he would not allow PW.1 to marry her. Firstly, she was tortured by accused No.1 and others and later she was tortured by father and uncle of PW.1.
iv) During cross-examination, PW.2 admitted that all the said persons were aged between 20 to 25 years. Out of them, three persons, who surrounded her fiancé (PW.1) were bashing him up and supporting the other four persons to commit rape on her. Accused 19 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch No.1 and others have not committed any rape on her. She came to know the name of accused No.1 as he himself told to them. At the time of incident, her father was in Saudi Arabia.
14. PW.3 is the watchman of the farmhouse belongs to PW.7. He deposed that on 31.07.2014 after 10.00 A.M., the owner of the farmhouse along with his family members came to the said farmhouse. After some time, they left and PWs.1 and 2 remained in the farmhouse. They were taking photographs in the farmhouse. Meanwhile, eight persons jumped over the compound wall of the farmhouse and entered into the farmhouse. Out of them, two persons came to him and beat him. He identified the persons who beat him. The other six persons went to PWs.1 and 2 and took them inside the hall while beating them. The said persons were in possession of snake.
i) He further deposed that at about 2.30 P.M., all the eight persons went out from the farm house. After sometime, PWs.1 and 2 came out with bleeding injuries and their clothes were torn. He asked them as to what had happened on which they said that the said people beat them and took away the gold chain, cash of Rs.6,000/-, Goggles 20 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch and cell phone. On the same day at about 10.00 P.M., the police recorded his statement. He identified accused Nos.1 to 7 and that accused No.4 was in possession of snake, the names of accused Nos.1 and 2 as Faisal Dayyani and as Khader respectively and accused Nos.5 and 7 were the persons who beat him in the farmhouse.
ii) During cross-examination, he stated that the height of the compound wall of the farmhouse is about 12 to 13 feet and it is strong. There are three gates to the compound wall of the farmhouse. On 31.07.2014, after PWs.1 and 2 left the farmhouse, he telephoned to his owner (PW.7) and informed the incident. Accused No.1 resides in a street between Barkas and Shaheen Nagar. PW.5 took him to hospital at Barkas on the same day at 4.00 P.M. and he came back to farmhouse at 5.00 P.M. He has shown his medical prescription to the police.
15. PWs.4 and 5 are the relatives of PWs.1 and 7 and they are running cloth shops. They deposed about going to the farmhouse along with PWs.1, 2, 6 and 7 and leaving the farmhouse after some time and that PWs.1 and 2 remained there. PW.4 received phone call from PW.1 while PW.5 from PW.7 stating that 6 to 8 people entered 21 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch into the farmhouse, beat PW.1, threatened with snake and removed the clothes of PW.2, took away mobile phone, gold chain, gold ring, cash of Rs.6,000/- belonging to PW.2. They also beat PW.2. The police recorded their statements.
i) During cross-examination, PW.4 stated that his uncle dropped him at his house. He received phone call from PW.5 at about 3.00 or 4.00 P.M. The police recorded his statement in Telugu.
ii) During cross-examination, PW.5 stated that he knows that PW.2 was the friend of PW.1 as she used to come to his house with her parents and also sometimes with her friends. He left the farmhouse on his motorcycle. He knows father of accused No.1. The police also recorded his statement in the police station.
16. PWs.6 and 7 are the parents of PW.1. They also deposed on the same lines as deposed by PWs.4 and 5. However, during cross- examination, PW.6 admitted that PWs.1 and 2 are friends. PW.1 and 5 went to the police station, whereas PW.7 admitted that he had prior acquaintance with PW.2.
17. By examining the aforesaid persons, more particularly, PWs.1 to 3, the prosecution proved that more than five (05) persons 22 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch entered into the farmhouse by jumping from the compound wall. During cross-examination, nothing was elicited from PWs.1 to 3. Therefore, their evidence to the said extent of more than five (05) persons illegally entered into the farmhouse by jumping from the compound wall can be believed.
18. With regard to committing the robbery by the appellants - accused Nos.1 to 7 conjointly, PW.1 categorically stated about lodging Ex.P1 - complaint; that the said persons beat both PW.1 and
2. They have taken cash of Rs.7,000/- from his jean trouser. They have also taken gold ring, gold chain and bank card of PW.2 from her hand bag. PW.2 also categorically deposed that after the accused persons left the farmhouse, she checked her bag and found missing of gold chain, gold ring and make-up kit. She has identified MO.3 - gold chain, MO.4 - gold ring and Ex.P2 - bunch of photographs with compact disk. PW.14 - Circle Inspector of police recorded the additional statement of PW.2. The police recovered MO.1 - one pair of brand Goggle, MO.2 - Ray Ban glass, MO.3 - gold chain and MO.4
- gold ring and MO.14 cash of Rs.500/- etc. 23 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch
19. As discussed above, PW.1 deposed that accused requested him to give his car keys and out of fear, he gave the same and Nos.5, 6 and 7 went to the Car, took out his gold ring, gold chain and Goggles from the car. He identified the same. He also deposed that gold chain and ring shown to him appear like as his chain, but again he denied. However, he has identified two pairs of goggles as belonging to him. The said goggles are marked as MOs.1 and 2. In Ex.P1 - complaint, PW.1 specifically stated that the accused robbed Rs.6,000/- cash, MO.1, MO.2 and some more cash from the car of PW.1. Thus, to prove that the appellants herein have committed the robbery, the prosecution has examined PWs.1, 2 and also Ex.P7 - scene of panchanama and Ex.P9 - confession-cum-recovery panchanama of accused Nos.3, 4 and 7.
20. Perusal of Ex.P9 would reveal that accused Nos.3, 4 and 7 confessed about the present offences and further specifically confessed about robbery of Rs.6,000/- from PW.1. Out of the said amount, accused No.4 has taken Rs.1,000/-, accused No.7 has taken Rs.1,000/- and accused No.3 has taken Rs.500/-, but the police have produced only Rs.500/- (MO.14). PW.15, panch for recovery of the 24 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch same supported the prosecution case including seizure of MO.14 cash from the possession of accused No.3.
21. Perusal of Ex.P10 - confession panchanama of accused No.5 would reveal that accused No.5 has produced Ray-ban glasses from his possession. PWs.9 and 10 are panch witnesses for Ex.P10. But, the prosecution failed to produce the same before the Court. Both PWs.9 and 10 deposed that accused No.5 confessed before them about the commission of offence and further stated that he is in possession of Ray Ban glasses, but the said glasses have not produced before the trial Court and the same were not exhibited.
22. It is also relevant to note that according to the prosecution, accused No.5 has committed theft of police brand goggles belonging to PW.1 from the farmhouse of PW.1 on 31.07.2014. There is specific mention about the same in Ex.P1 - complaint lodged by PW.1. MO.1 - police brand goggles were recovered from the possession of accused No.6 at his instance from his house. PWs.9 and 10 are panch witnesses for the same. PW.9 specifically deposed about the said aspects, more particularly, seizure of goggles from the possession of accused No.6. PW.9 further deposed that accused No.5 25 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch has produced the said glasses before him. According to PW.10, another panch witness, accused No.6 took them to his house and produced another pair of goggles. Thus, both PWs.9 and 10, panch witnesses, have not spoken about the brand name of goggles seized from the possession of accused No.6. On consideration of the said evidence, the trial Court held that the prosecution failed to prove seizure of MO.1 from the possession of accused No.6.
23. With regard to MO.3 - gold chain and MO.4 - gold ring, there is no mention about the same in Ex.P1 - complaint. However, in Ex.P2 - statement, Pw.2 stated that the accused have snatched her gold chain, ring also. PW.1 also deposed that the accused have taken away his gold ring, gold chain. PW.2 in her chief-examination deposed that the accused after leaving the farmhouse when she checked up her hand bag, she found missing of gold chain and gold ring. She has identified the said gold chain and ring shown to her when she was examined in Court as MOs.3 and 4, which were recovered from the possession of accused No.8.
24. It is also relevant to note that PWs.9 and 10 specifically deposed that accused No.2 confessed about the commission of robbery 26 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch of MO.3 - gold chain and recovery of the same from the possession of accused No.8 vide Ex.P11 - confession panchanama. Perusal of said confessional panchanama of accused No.2 and deposition of PW.10 would reveal that accused No.8 led PW.9 and PW.10 to his house and produced MO.3 - gold chain from his house. Accused No.8 stated to PWs.9 and 10 that his son, accused No.2 gave MO.3 gold chain to him. It is also relevant to note that accused No.8 is the father of accused No.2. MO.3 - gold chain was recovered from accused No.8. During cross-examination, nothing was elicited from PWs.1, 2, 9 and 10 to disbelieve their version of not committing theft of MO.3 - gold chain.
25. PW.16 is the panch witness for seizure of MO.4 - gold ring and recovery from the possession of accused No.1. Accused No.1 also confessed about committing of theft of said MO.4 - gold ring. Thus, the aforesaid evidence, both oral and documentary would reveal that accused Nos.1 to 7 have committed theft of MO.4 - gold ring from PW.2 at the farmhouse and PW.2 has identified the same.
26. Thus, there are two eye-witnesses to the said incident i.e., PWs.1 and 2. Their evidence is supported by PWs.3 to 7 and PWs.8 to 11 - panch witnesses. PW.13, the Magistrate, recorded the 27 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch statements of PWs.1 and 2 under Section - 164 of Cr.P.C. vide Exs.P22 and P23.
27. The aforesaid evidence would reveal that all the accused have committed the offence of robbery conjointly. On consideration of the entire evidence, the trial Court gave a specific finding that the appellants - accused Nos.1 to 7 caused hurt to PWs.1 and 2, took away valuable movables from them and outraged the modesty of PW.2. They are seven (07) in number. They have caused hurt to PWs.1 to 3, outraged the modesty of PW.2, took away the gold ornaments of PW.2, goggles and cash of Rs.6,000/- of PW.1 putting them under threat.
28. Perusal of evidence of PWs.1 and 2 would reveal that all the accused behaved with PWs.1 and 2 inhumanly. They have touched the body of PW.2. They have also removed clothes of PWs.1 and 2 taking advantage of their loneliness. They have also tortured PWs.1 and 2 by leaving a snake on them. Even they have taken photographs and videographs of PWs.1 and 2. The appellants have threatened them not to reveal the incident to anybody, failing which they will upload their photographs and videographs in social network. Thus, the offence committed by the appellants is heinous one. 28
KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch Therefore, they deserve punishment of life imprisonment. On consideration of the said aspects, the trial Court convicted the appellants for the offence under Section - 395 of IPC and sentenced them to undergo life imprisonment.
29. During the course of hearing, learned Assistant Public Prosecutor has produced list of the cases registered against the appellants - accused at the relevant period and would contend that the appellants herein had criminal history and, therefore, they are not entitled for acquittal. The details of the said criminal cases are as under:
Sl.No. Crime No. Offences Against whom Status
01. 349/2014 Sec.9 r/w 2, sub.sec.16, 39, A1 to A3 Transferred to 50 of Wild Life (Protection Forest Dept. Act,1972
02. 343/2014 Sec.448 & 307 r/w 34 IPC A1 to A3 Acquitted
03. 351/2014 Sec.448 & 506 r/w 34 IPC A1 to A9 Acquitted and Sec.3 & 4 of A.P. Land Grabbing Act
04. 348/2014 Sec.295A, 506 & 509 r/w 34 A1 to A4 Acquitted IPC
05. 315/2014 Sec.452, 376D, 323, 395 & A1 to A9 Convicted 506 (ii) r/w 34 IPC & (during remand, Sec.212, 411 of Crl. Law PD Act has Amend. Act been initiated)
06. 175/2014 Secs.457 & 380 IPC A1 & A2 Acquitted
07. 166/2014 SEcs.363, 324 & 504 IPC A1 to A3 Acquitted
08. 168/2014 Secs.457 & 380 IPC A1 & A2 Acquitted
09. 141/2006 Secs.302, 201 & 109 IPC & A1 to A4 Acquitted Sec.27 of Arms Act.
30. Contending that the prosecution failed to conduct test identification parade and that PWs.1 to 3 failed to identify the 29 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch appellants and also the property, learned counsel for the appellants placed reliance on the following decisions:
i) Musheer Khan @ Badshah Khan v. State of M.P. 1, to the effect that identification of accused was first time is inherently weak in character. The main object was holding test identification parade during investigation is to check the memory of the witnesses based on first impression and to enable the eye-witnesses to identify the culprits.
ii) Dana Yadav @ Dahu v. State of Bihar2, wherein it was held that ordinarily, identification of accused for the first time in the Court by witness should not be relied upon, same being from its very nature inherently weak character unless it is corroborated by previous identification in the test identification parade or any other evidence.
iii) M. Paul v. State rep.by Inspector of Police 3, wherein it was held that identification of property was neither held in the Court nor in the presence of Magistrate and the same is conducted in the presence of PW.9, who is the agriculturist and such identification 1 . (2010) 2 SCC 748 2 . (2002) 7 SCC 295 3 . 2022 (1) ALT (Crl) 201 (DB) (AP) 30 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch proceedings are contrary to Rule - 35 of the Criminal Rules of Practice.
iv) Ashish Jain v. Makrand Singh4, wherein it was held that identification of articles was conducted without mixing with similar or identical ornaments and such identification is against the procedure laid down under the Criminal Rules of Practice.
v) In view of the aforesaid discussion, in the present case, PW.1 identified all the appellants and he has revealed the name of accused No.1 as 'Faisal Dayyani'. PW.2 also identified accused No.1 and his name. Pw.3 also identified accused Nos.1, 4, 2, 5 and 7.
PW.2 also identified MOs.3 and 4 when they were shown to them in Court. Therefore, the facts in the aforesaid decisions are different to the facts of the present case.
31. Buender alias Mandar v. State of Haryana 5 wherein it was held that in order to sustain the guilt of the accused, recovery should be unimpeachable and not the shrouded with element of doubt. In the present case, there is no doubt with regard to identification of MOs.3 and 4. PW.2 specifically identified the same. Therefore, the said decision is not helpful to the case of the appellants herein. 4 . (2019) 3 SCC 770 5 . (2022) 1 SCC 92 31 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch
32. Pareshbhai Annabhai Sonvane v. State of Gujarat 6, wherein it was held that on remand of the case therein and also considering the age of the accused and recovery of Rs.16,550/- and mobile, the Apex Court reduced sentence. But, in the present case, as discussed above, all the accused have behaved with PWs.1 and 2 inhumanely. Taking advantage of their loneliness, they have removed their clothes and touched the body of PW.2. In fact, according to Ex.P1 - complaint, Ex.P3 - relevant portion of additional statement of PW.2 and Ex.P23 - statement of PW.2 recorded under Section - 164 of Cr.P.C., they have committed rape on PW.2. She was young unmarried girl. PW.1 was her fiancé. Keeping her future, she did not support the prosecution. However, on consideration of the entire evidence, the trial Court acquitted the appellants for the offences under Sections - 376D and 376D read with 34 IPC. No appeal was preferred. The said judgment insofar as acquitting the appellants for the said offences attained finality. Therefore, the facts of the case in the aforesaid decision are different to the facts of the present case.
33. As discussed above, the offence committed by the accused is heinous. They have criminal history in the manner stated above. 6 . (2016) 7 SCC 684 32 KL,J & PSS,J Crl.A. Nos.543 of 2016 & batch P.D. Act has been initiated against accused No.1. However, they were acquitted in most of the cases as shown in the above table. In the light of the above discussion, this Court is not inclined to reduce the sentence by taking lenient view.
34. As discussed above, the impugned judgment is based on sound reasoning and it is well founded. The appellants failed to make out any case to interfere with the said judgment. Thus, the appeals fail and the same are liable to be dismissed.
35. All these appeals are accordingly dismissed confirming the conviction and sentences of imprisonment imposed on the appellants - accused Nos.1 to 7 vide judgment dated 10th and 11th May, 2016 passed by learned II Special Sessions Judge Court for trial of Cases relating to Atrocities against Women, Cyberabad, Ranga Reddy District at L.B. Nagar in S.C. No.583 of 2015.
As a sequel thereto, miscellaneous applications, if any, pending in all these appeals shall stand closed.
__________________ K. LAKSHMAN, J __________________ P. SREE SUDHA, J 7th June, 2024 Mgr