In a criminal revision, the High Court acquitted the petitioner and co-accused of robbery, holding that the identification evidence was not convincing and recovery of stolen articles was not proven despite appellate court findings.
Petitioner and co-accused acquitted; conviction and sentences set aside; fines to be refunded if paid.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE N.RAVI SHANKAR
CRIMINAL REVISION CASE NO.1665 OF 2004
Date: 13.03.2012
Between: Mandala Balraj …..Petitioner And The State of A.P., through Station House Officer, Siddipet Rural Police Station, Medak District and another
…..Respondents
THE COURT MADE THE FOLLOWING:
THE HON’BLE SRI JUSTICE N.RAVI SHANKAR
CRIMINAL REVISION CASE NO.1665 OF 2004
ORDER:
The revision petitioner M.Balraj is the second accused in Sessions Case No.383 of 2001 on the file of the Court of Assistant Sessions Judge, Siddipet (trial court). He along with the A-3 and A-4 in the case were tried on charges punishable under Sections 394 and 412 IPC. The trial court by its judgment dated 28.03.2002 convicted the petitioner and also the other two accused of the charge under Section 394 IPC (causing hurt in committing robbery) and sentenced each of them to undergo four years rigorous imprisonment and also a fine of Rs.200/- with a default clause prison sentence of one month for nonpayment of fine. They were acquitted of the other charge. The case against A-1 was separated but its result is not reported.
2. Questioning his conviction and sentences, the petitioner filed Crl.A.No.168 of 2002, but that was dismissed by the appellate court i.e. the Court of IV Additional District & Sessions Judge (Fast Track Court), Medak at Siddipet by its judgment dated 27.01.2004 confirming the conviction and sentences. Aggrieved by the same, the petitioner has come up with this revision. It is reported that the petitioner did not get bail during the pendency of this revision.
3. Heard Sri K.Govind, the learned counsel for the petitioner and Sri Venkateswar Rao, the learned counsel appearing for the Additional Public Prosecutor.
4. The case of the prosecution is that on the night intervening 19th and 20th days of May 1997, the petitioner (A-2) along with A-1, A-3 and A-4 in the case committed robbery on the inmates of a poultry farm known as Ragi Chandraiah Poultry Farm situated in the outskirts of Mittapalli Village and robbed M.Os.1 to 25 gold and silver ornaments/articles from P.Ws.1 to 13 and P.W.16 who are said to be residing in the said poultry farm. The other details are not necessary, but it is enough to note that subsequently on the report of P.W.1 Ch.Madhusudhan Reddy, a case was registered in II Town Police Station, Siddipet and investigation was taken up by the concerned investigating officers. It would be sufficient to note that according to the prosecution, in the course of investigation M.Os.1 to 25 properties are said to have been recovered either from the possession of the petitioner and the other two accused who were put on trial or at their instance from some others by the concerned police officers. It is basing on the above prosecution case, A-1 t o A-4 were charge-sheeted for offences punishable under Sections 394 and 412 IPC. It is also stated that A-1 in the above transaction, committed rape on one lady and he was chargesheeted for the said offence also, but in the present case, I am concerned only with the petitioner who is A-2.
5. The trial court relying upon the prosecution evidence consisting of oral evidence of P.Ws.1 to 18 and the documentary evidence consisting of Exs.P.1 to P.9 and also the material objects i.e. M.Os.1 to 25, convicted the petitioner and A-3 and A-4 of the charge under Section 394 IPC and sentenced them and they were confirmed by the appellate court as aforesaid.
6. Sri Govind, the learned counsel for the petitioner invited my attention to the findings of the appellate court regarding recovery of
stolen articles and the identification of the petitioner and the other accused and pointed out that though the said findings are in favour of the petitioner and A-3 and A-4, still the appellate court proceeded to record conviction holding that the identification of the said accused by the witnesses in the court was convincing and this is totally erroneous. I find sufficient force in the contention of Sri Govind though the learned Additional Public Prosecutor opposed the same.
7. It may be noted that in paras 38, 39 and 40 of the appellate court’s judgment, the appellate court has concluded that even though the prosecution has marked M.Os.1 to 25 gold and silver ornaments/articles through P.Ws.1 to 13 and 16 who are material witnesses, there is no evidence to hold that these articles were recovered from the possession of the petitioner or the other accused who were put on trial, but prosecution did not file any revision questioning this finding of the appellate court and Sri Venkateswar Rao who is appearing for the Additional Public Prosecutor has not been able to bring to my notice any circumstance in the evidence which is enough to hold that the above finding of the appellate court is not correct. A perusal of the evidence would also reveal that the prosecution has not examined the panch witnesses who were cited to speak about the alleged recovery of the above articles from the petitioner and the other two accused who were put on trial. Thus the above finding of the appellate court cannot be said to be incorrect and it weighs in favour of the petitioner.
8. Then in para 51 of its judgment, the appellate court held that the learned Magistrate who was cited by the prosecution to speak about the test identification parade held by him with regard to the petitioner and the other accused has not been examined and the proceedings prepared by him were also not marked in the trial court. The appellate court thus concluded that the prosecution did not bring on record the identification
proceedings prepared by the learned Magistrate to show that the victims concerned have identified the petitioner and the other accused in the relevant identification proceedings during the course of investigation. Sri Venkateswar Rao has not been able to show as to how this finding is incorrect and hence that finding is also allowed to stand. Basing on the above findings, the appellate court concluded that the prosecution failed to establish recovery of stolen properties from the petitioner and A-3 and A-4 and it also failed to prove that the witnesses/victims identified them earlier in the test identification parade.
9. The appellate court however proceeded to hold that a previous test identification parade is not a must and that even if the evidence of witnesses about identification of accused in the court is convincing enough then conviction can be sustained. There is no dispute about this legal position. Having held so, it proceeded to discuss the evidence of P.Ws.1 to 13 and 16 regarding identification of accused in the court and concluded that it is convincing and on that premise it held in favour of the prosecution. It based its conclusion on the reason that according to the evidence of the above witnesses the incident had lasted for more than one hour and because of that the witnesses can be said to have seen the accused for a considerable time and remember them by their features. It is true that if a person happens to see a stranger and have a struggle with him for about one hour, it may be easy for him to remember that person/assailant. It should however be seen to what extent the above reasoning of the appellate court can be accepted having regard to the answers given by some of the witnesses in their cross-examination as to how they could identify accused as culprits.
10. Sri Govind says that many of the witnesses have stated that police have shown them the petitioner and the other accused in the case in police station after the incident and they also stated that they have
identified the petitioner and A-3 and A-4 as culprits as police told them in case they wanted to claim their property back, they should identify the accused in the court as culprits. He also pointed out that the incident occurred in the mid-night and according to the some of the witnesses the accused also covered themselves with bed sheets and having regard to the above aspect, it cannot be said that the identification of the petitioner and A-3 and A-4 in the court by the witnesses can be said to be convincing. A perusal of the evidence of the witnesses would show that the above contention of Sri Govind cannot be dismissed.
11. It may be noted that P.W.5 Vijayalaxmi, P.W.9 S.Manamma and P.W.13 Rajavva in their cross-examination stated that they saw the accused in the police station before identifying them in the Court. P.W.10 Laxmi and P.W.11 Radha in their cross-examination stated that the offenders were brought to poultry farm (scene of offence) ten days after the incident for identification. Then P.W.6 Padma and P.W.11 Radha also stated that they identified the accused in the Court as the police told them to identify the petitioner and A-3 and A-4 as culprits to claim their property back. P.W.3 Srinivas Reddy and P.W.4 Manda Srinivas Reddy stated that the accused covered themselves with bed sheets, but they left their faces alone uncovered.
12. Thus the answers of the above witnesses in the cross-examination would show that they have given different versions in the evidence as to how they could remember and identify the petitioner and A-3 and A-4. In fact, P.W.2 Tummala Mallaiah says that he cannot identify any of the accused and P.W.7 Lalitha stated that she does not know who are the offenders. Thus having regard to the answers of the above witnesses it is clear that they must have identified petitioner and A-3 and A-4 in the court as culprits either to claim their property back as advised by the police, or they must have identified them (accused) either because they
were shown in the police station or they were taken to the place of incident some time after it occurred. In such a situation, the identification of accused in the court cannot be treated as convincing.
13. The appellate court relied upon a decision of this court relating to offences punishable under Sections 332 and 333 IPC which pertain to causing hurt or grievous hurt to public servants to prevent them from discharging their duties. This Court held that in such cases the mere fact that the accused are strangers to the victim pubic servants cannot be a ground by itself to throw out the prosecution case on the plea that a test identification parade was necessary. That cannot be a comparable one to this case having regard to the above answers of some of the witnesses which create a dent in the prosecution case regarding identification. It appears that the above circumstance was not taken to the notice of the appellate court.
14. Accordingly, for the aforesaid reasons, it follows that the conclusions of the appellate court regarding identification can be said to be against evidence. In view of this the petitioner has to succeed in this revision.
15. It is brought to my notice that the case against A-3 and A-4 who have also been convicted and sentenced to various terms of imprisonment is also based on the same evidence on the basis of which the petitioner was convicted. As the evidence regarding identification of the petitioner/A-2 is held to be not convincing, it follows that A-3 and A-4 must also be given the benefit of the said conclusion. Thus A-3 and A-4 have also to be acquitted.
16. For the aforesaid reasons, this revision is allowed and while acquitting petitioner/A-2 of the charge, A-3 and A-4 are also acquitted of
the same and their convictions and sentences are set aside. This revision is of 2004. The trial court judgment is dated 28.03.2002 and the judgment of the appellate court dated 27.01.2004. This revision is disposed of today i.e. 13.03.2012. Having regard to the lapse of time by now, the petitioner and A-3 and A-4 must have served out the substantive sentences of imprisonment and Sri Govind was not in a position to dispute this aspect. Hence no orders for release are necessary. The fine amounts paid by the above three accused, if any, shall be refunded to them by the trial court after the expiry of time for prosecution to pursue its remedies against this judgment.
___________________________ JUSTICE N.RAVI SHANKAR
13th March, 2012 Tjmr
THE HON’BLE SRI JUSTICE N.RAVI SHANKAR
CRIMINAL REVISION CASE NO.1665 OF 2004
DATE: 13.03.2012
2 issues framed by the court
Whether the identification of the accused by witnesses in court was convincing given inconsistent cross-examination and lack of T.I.P. evidence.
Whether the appellate court's finding on recovery of stolen articles was correct in absence of panch witnesses.
Colour shows how this judgement treated each authority
decision of this court relating to offences punishable under Sections 332 and 333 IPCDistinguished¶13
2 provisions across 1 enactments
Mandala Balraj
State of A.P.
N. Ravi Shankar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
