Allowed

Kumari Sadanandam v. the State of A.P.

Andhra Pradesh HC29 Dec 2024CRLRC/435/2010

Case brief

AI extract

What is this about?

The High Court allowed the criminal revision, quashing the conviction and sentence for theft under Section 397 IPC. It found that procedural lapses in the Test Identification Parade, including delay and non-compliance with rules, as well as failure to follow Section 100(4) Cr.P.C. during property recovery, created reasonable doubt and rendered the conviction unsustainable.

What did the court decide?

Conviction and sentence set aside; petitioner acquitted of offences under Section 397 IPC; fine refunded.

Kumari Sadanandam Vs the State of A.P. — Cheating and Forgery | Andhra Pradesh HC (2024)

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APHC010473242010

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

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[3367]

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MONDAY ,THE THIRTIETH DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE V SRINIVAS

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CRIMINAL REVISION CASE NO: 435/2010

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Between: Kumari Sadanandam

...PETITIONER

AND

The State Of A P

...RESPONDENT

Counsel for the Petitioner: RAMAKRISHNA AKURATHI

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Counsel for the Respondent: PUBLIC PROSECUTOR

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The Court made the following:

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JUDGMENT:

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Assailing the judgment dated 22.02.2009 in Crl.A.No.127 of 2007 on the file of the Court of learned I Additional Sessions Judge, West Godavari at Eluru, confirming the conviction and sentence passed against the petitioner/accused No.5 by the judgment dated 12.06.2007 in S.C.No.174 of 2007 on the file of the Court of learned Principal Assistant Sessions Judge at Eluru, for the offences under section 397 of Indian Penal Code

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(hereinafter referred to as “IPC”), the petitioners/accused No.5 filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973.

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The revision case was admitted on 04.03.2010 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.633 of 2010.

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The shorn of prosecution case is that:

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i). Accused No.1 was dealing with the Film Distributor Business, he purchased ‘Muddayi’ Telugu film in Madras in the year 1987, sustained loss on the film and he sold it to P.W.1. During October 1987, Accused No.1 learnt that P.W.1 was having huge amount of black money in his house. Then he planned to blunder the house of PW.1, sought help of accused Nos.2 to 6.

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ii). On 25.06.1989 about 8.30 p.m., in the absence of P.W.1, accused Nos.2 to 6 led by accused No.1 entered into the house of P.W.1 by using criminal force. They forcibly confined PW4, PW5 and two other inmates in a room under the custody of accused No.5 at the point of knife. Accused Nos.1 to 4 got searched the Almirahs and demanded PWs.2 and 3 to produce cash of Rs.40,00,000/- hidden in their house. When they

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refused, accused No.2 slapped P.W.2 and snatched her gold black beads chain and six pairs of gold bangles. Accused No.4 slapped P.W.3 and snatched her gold bangles, gold Nantadu and wristwatch. Accused picked up cash Rs.15,800/- from the dressing table. They forcibly opened almirah in the bedroom and blundered the gold jewelry, silver articles etc. Later accused No.4 snatched the gold Venkateswara Swamy chain from PW4 and gold Buttala Golusu from LW.4 V.Uma Kumari. Finally, the accused tied the hands and legs of PWs.2 to 5 and other inmates with cloth pieces and affixed adhesive plaster to their mouths put them in rooms and left the scene by 10.30 p.m., by threatening the neighbors that they set bombs at the main entry of the house. All the accused fled away in a car APW 9603. Five minutes later, PWs.2 to 5 and other inmates managed to free them and raised huge and cry. iii). On being informed by P.W.8, PW1 rushed to the house and verified the properties lost and lodged a complaint which was registered by A.S.I of Police, Eluru II Town C.C.S. Police Station in Cr.No.234x137 of 1989 and then P.W.14 Inspector of Police took up

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investigation. During the course of investigation, P.W.14 arrested the accused on 22.07.1989.

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After completion of investigation, P.W.14 laid charge sheet and the same was taken cognizance vide P.R.C.No.30 of 1990, which was split up from original P.R.C.No.23 of 1989, on the file of Court of the learned II Additional Judicial Magistrate of First Class at Eluru and committed to the Court of Sessions and numbered as S.C.No.174 of 2007 on the file of the Court of learned Principal Assistant Sessions Judge at Eluru, after fullfledged trial, vide judgment dated 12.06.2007, found the accused No.5 guilty of the offence under Section 397 of IPC, sentenced him to undergo rigorous imprisonment of seven (7) years and to pay fine of Rs.1,000/-, in-default to suffer simple imprisonment of three (3) months.

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Aggrieved by the same, the petitioner/accused No.5 preferred an appeal, vide Crl.A.No.127 of 2007, before the Court of learned I Additional Sessions Judge, West Godavari at Eluru and the same was dismissed, vide judgment dated 22.02.2010, by confirming the conviction and sentence passed by the trial Court against the accused No.5.

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Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused No.5.

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Heard Sri Akurathi Rama Krishna, learned counsel for the petitioner/accused No.5 and Miss P.Akhila Naidu, learned counsel appearing for the respondent-State.

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Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?”

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Sri Akurathi Rama Krishna, learned counsel for the petitioner/accused No.5 submits that when the offence said to have been taken place at Eluru jurisdiction on 25.06.1989, accused No.5 was said to be arrested at Rajahmundry on 22.07.1989; that there is an inordinate delay in conducting the Test Identification Parade of the petitioner; that after arrest of the petitioner, his photographs were taken and published in daily newspaper and also shown to the prosecution witnesses to facilitate them for identification of the petitioner in TIP, as such the conviction cannot be sustained on identification of the accused in TIP; that the prosecution witnesses did not give the identification particulars of the accused, who committed the

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offence either in F.I.R. or in 161 Cr.P.C. statements; that the identification of the property is not made before the Magistrate concerned, thereby, there is violation of Rule 35 of the Criminal Rules of Practice and Circular Orders, 1990; that P.W.11, who said to be mediator for recovery of the stolen property is from Eluru, when the recovery was made at Rajahmundry, thereby, the prosecution did not follow the Section 100(4) of Cr.P.C.; that the recovery of the stolen property was said to be made from the possession of the petitioner long after the commission of the offence, which is not reliable; that the Trial Court as well first Appellate Court failed to appreciate the material on record in proper perspective, thereby, prosecution failed to establish the offence alleged against the petitioner beyond all doubt. In support of the above contentions, he relied upon the pronouncement of Hon’ble Supreme Court in Gireesan Nair v.

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State of Kerala¹ .

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As against the same, Miss P.Akhila Naidu, learned counsel appearing for the respondent-State submits that the oral and documentary evidence produced by the prosecution proved the offence against the petitioner; that testimony of P.Ws.2 to 4 eye witnesses to the incident categorically shows

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1 (2023) 1 SCC 180

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that they were identified the petitioner/accused No.5 in the TIP conducted by the prosecution; that the TIP is conducted before P.W.12-Magistrate, which fortified the prosecution version regarding identification of the petitioner by them; that P.W.11, who acted as mediator categorically testified about the arrest of the petitioner and recovery of stolen property from his possession, thereby, the prosecution categorically established the guilt of the petitioner beyond all doubt; that the Courts below rightly appreciated the material on record, convicted the petitioner for the said offence and that there is no material on record to discard the findings recorded by both the Courts below. In support of the said contentions, she relied upon

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Ronny @ Ronald James Alwaris v. State of Maharashtra² . 11. In view of the above rival contentions, this Court perused the entire material available on record. As per the prosecution version, the offence said to be taken place at Eluru on 25.06.1989 at about 08.30 p.m. Accused Nos.2 to A.6 led by accused No.1 entered into the house of P.W.1 by using criminal force knowing that P.W.1 was absent in the house.

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The specific allegation made against the petitioner/accused No.5 is that they forcibly confined P.Ws.4, 5

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2 (1998) 3 SCC 625

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and two other inmates in a room under the custody of accused No.5 at the point of knife. Then they committed the theft of property.

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Even as per the prosecution version, P.W.1 is not the witness to the incident and he came to know about the offence. The only testimonies available to the prosecution to identify the petitioner are P.Ws.2 to 4. They categorically testified that there are six culprits entered into the house on 25.06.1989 at about 08.30 p.m., they threatened them with knives and detained them in a room and committed the theft. They identified the accused No.5 as one of the culprits in the incident that occurred.

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The foremost contention of the learned counsel for the petitioner is that there is inordinate delay in conducting the Test Identification Parade of the accused, which is fatal to the prosecution case. To fortify the same, he relied upon a pronouncement of Hon’ble Supreme Court in Gireesan Nair Case ( referred to supra ), wherein it was categorically observed at Paragraph Nos.28, 33, 34 and 53 that:

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“28.…….The object of conducting a TIP is threefold. First , to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the

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crime. Second, to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. Third, to test the witnesses’ memory based on first impression and enable the prosecution to decide whether all or not of them could be cited as eyewitnesses to the crime ( Mulla v. State of U.P. ).

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It is significant to maintain a healthy ratio between suspects and non-suspects during a TIP. If rules to that effect are provided in Prison Manuals or if an appropriate authority has issued guidelines regarding the ratio to be maintained, then such rules/guidelines shall be followed. The officer conducting the TIP is under a compelling obligation to mandatorily maintain the prescribed ratio. While conducting a TIP, it is a sine qua non that the non-suspects should be of the same age-group and should also have similar physical features (size, weight, color, beard, scars, marks, bodily injuries etc.) to that of the suspects. The concerned officer overseeing the TIP should also record such physical features before commencing the TIP proceeding. This gives credibility to the TIP and ensures that the TIP is not just an empty formality ( Rajesh Govind Jagesha v. State of Maharashtra and Ravi v. State ).

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It is for the prosecution to prove that a TIP was conducted in a fair manner and that all necessary measures and precautions were taken before

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conducting the TIP. Thus, the burden is not on the defence. Instead, it is on the prosecution ( Rajesh Govind Jagesha v. State of Maharashtra ).

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In State of A.P. v. Dr M.V. Ramana Reddy , this Court acquitted Respondent 2 and 3 therein on the ground that there was a delay of 10 days in conducting the TIP, and in those 10 days, there was a high likelihood of their photographs being shown to the witnesses. In Rajesh Govind Jagesha v. State of Maharashtra , a delay of about one month was viewed seriously by this Court since there was a possibility of the accused being shown to the witnesses.”

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In the present case on hand, as per the testimony of P.W.12 learned Magistrate concerned in whose presence the TIP was conducted, the TIP was conducted on 06.09.1989, when the accused No.5 said to be arrested on 22.07.1989, as such there is 43 days delay in conducting the TIP. Whereas, as per the testimony of P.Ws.2 and 3, it is categorical that they identified the accused No.5 in the test identification parade after two (2) or three (3) years of the incident. Thereby, there is material contradiction between the testimony of eyewitnesses and P.W.12 about the date of conducting the TIP. For the sake of arguments, if the testimony of P.W.12 is taken into consideration, even there is delay of 43 days in conducting the

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TIP, which is fatal to the prosecution version since there is every likelihood of their photographs being shown to the witnesses as observed by the Apex Court in plethora of its earlier pronouncements referred to supra.

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It is also testimony of P.W.12 during cross examination that he does not remember whether the police brought the witnesses or jailor brought them to the Sub-Jail on the date of TIP. He did not verify the statements of the witnesses before conducting TIP. He did not ask the witnesses whether the suspects are having any special features to identify them. He did not note the ages of the suspects.

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Furthermore, as per Rule 34(i)(a) of Criminal Rules of Practice, the Police should send a requisition for holding identification parade by the Magistrate as nominated by Sessions Judge, on such requisition the Magistrate shall conduct the identification parade as expeditiously as possible”. But, the same is absent in the present case, thereby, which violates the prosecution case.

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Mors so, P.Ws.2 to 4, who said to be eyewitnesses to the incident, have identified the petitioner No.5 in the Court while giving evidence on 07.05.2007, which is after more than seventeen (17) years of the incident. Thereby, the contradiction

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between the testimony of P.W.12, P.Ws.2 and 3 regarding the actual date of TIP and non-compliance of Rule 34(i)(a) of Criminal Rules of Practice by the investigating agency creates any amount of doubt regarding the genuinety of the alleged TIP conducted by them. It is settled law that the TIP should be conducted in a fair manner and that all necessary measures and precautions were taken before conducting the TIP and thus, the burden is only on the prosecution to prove the same, which is failed by the prosecution in the present case on hand as discussed supra.

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Moreover, to connect the petitioner/accused No.5 to the offence or to connect the remaining accused to the petitioner, the only testimony available with the prosecution is P.W.7Constable. He testified that on 25.06.1989 at about 07.00 p.m., seven persons came to restaurant. Out of the seven persons one person stood at the car. The remaining six persons entered into the Bar and they came back outside the Bar at 08.30 p.m. Then hurriedly went into the Bendapuri Vari Street. He can identify all the above seven persons. The accused No.5 who stood before the Court today is one of the person among the six persons. However, during cross examination, he categorically admitted that so many persons used to come to Bar and Restaurant in

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groups by cars or some other vehicles and he cannot say the names of other descriptive particulars who visited the Bar. Thereby, the testimony of P.W.7 is of no use to the prosecution version to connect the petitioner to the present offence.

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It is also contention of the learned counsel for the petitioner that prosecution did not follow the Section 100(4) Cr.P.C. and no independent responsible inhabitant in locality was secured by the investigating agency, where the accused was said to be arrested and made recovery of the property.

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As discussed supra, even as per the prosecution version, when the offence is said to be taken place at Eluru, the accused were arrested at Rajahmundry and during the course of arrest and recovery of stolen property from their possession, P.W.11 was acted as mediator. Admittedly, P.W.11 is resident of Eluru, was secured by C.I. of Police on 22.07.1989 and took him to Rajahmundry and in the presence of P.W.11 they arrested the accused and recovered the stolen property. It is not the case of the prosecution that no mediator was available at Rajahmundry, where the alleged arrest and recovery was made by the police. Furthermore, admittedly, the accused Nos.1 and 5 were arrested in a busy locality of Rajahmundry. Thereby, this Court has no hesitation to come to a conclusion that Section

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100(4) Cr.P.C. is not followed by the investigating agency while recovering the property.

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Furthermore, the identification parade of the properties shall be made by the Magistrate alone, as per Rule 35 of the Criminal Rules of Practice, where the properties are lodged and procedure is contemplated under the said Rule that before calling upon the witness to identify the property, he shall be asked to state the identification marks of his/her property. Witness shall be called in one after the other and on leaving shall not be allowed to communicate with the witness not yet called, as observed by the Division Bench of this Court in Shai

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Pashmiya v. The State of Andhra Pradesh³ .

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In view of the above settled principal, in the present case on hand, the identification of the property was not done before the Magistrate concerned, thereby, it violates the Rule 35 of the Criminal Rules of Practice.

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Viewing from any angle, the Trial Court as well as the first Appellate Court failed to appreciate the above said aspects, which cuts the root of the case, mechanically proceed with the prosecution version and erroneously made the findings against the petitioner/accused No.5, which is not tenable under law.

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3 2018 SCC Online Hyd 409

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Having regard to the above discussion, this Court is of the considered opinion that there is manifest error of law and flagrant miscarriage of justice in the findings recorded by the trial Court as well first Appellate Court, thereby, the present criminal revision has merits and liable to be considered.

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In the result, the Criminal Revision Case is allowed. The conviction and sentence passed against the petitioner/accused No.5, vide judgment dated 12.06.2007 in S.C.No.174 of 2007 on the file of the Court of learned Principal Assistant Sessions Judge at Eluru, which was affirmed by the judgment dated 22.02.2009 in Crl.A.No.127 of 2009 on the file of the Court of learned I Additional Sessions Judge, West Godavari at Eluru, are hereby set aside. The revision petitioner/accused No.5 is acquitted of the offences under Section 397 of IPC. The fine amount paid by the petitioner/accused No.5, if any, shall be refunded to him.

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Interim orders granted earlier if any, stand vacated.

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As a sequel, miscellaneous applications pending, if any, shall stand closed.

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______________________ JUSTICE V.SRINIVAS

Date: 30.12.2024 Krs

THE HON'BLE SRI JUSTICE V.SRINIVAS