Dismissed

The State of Telangana Rep by Pp., v. Mohammed Imran, Hyd and 5 Otrs.

Telangana HC5 Aug 2021CRLA/861/2017

Case brief

AI extract

What is this about?

In this criminal appeal under Section 378 Cr.P.C., the State challenged the acquittal of six accused persons for robbery under Section 395 IPC. The High Court found flaws in the investigation, including procedural lapses in the Test Identification Parade and inconsistencies in evidence regarding recovery and amounts. The Court held the acquittal was not perverse.

What did the court decide?

Criminal Appeal dismissed confirming the judgment dated 08.02.2017; miscellaneous petitions stood dismissed.

The State of Telangana Rep by Pp., Vs Mohammed… — Criminal Trial and Appeal | Telangana HC (2021)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYOERABAD

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THURSDAY, THE FIFTH DAY OF AUGUST TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE JUSTICE G. SRI DEVI

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CRIMINAL APPEAL NO: 861 OF 2017

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Criminal Appeal Under Section 378 (3) &⁽¹⁾ of Cr.P.C^{against the Judgment} dated 08.02.2017 in S.C.No.44 ol 2016 on the file of^{the Court of the SpecialJudge} for Economic Offences -cum- Vlll Additional^{MetropolitanSessionsJudge,} Hyderabad.

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Between:

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The State of Telangana, rep. by The^{Public Prosecutor,HighCourt at Hyderabad'}

APELLANT/COMPLAINANT

AND

Mohammed lmran, S/o.^{tvlohd.Saleem, aged about 21 years, Occ: FruitVendor,} Rl/o. H. No. 1 B-2-8BB/1 0/4,^{Limra Colony, G M.Chowni, Chatrinaka, Hyderabad'}

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2 Mohd. Zeeshan Ali, S/o.^{Mohd. Shoukath Ali' aged aboul22years,.Occ: Student'} PJo.H.No.1B-2-888i10/ll,G.tvl.Chowni,LimraColony,Chatrinaka,Hyderabad'

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3 Mohd. Abdul Khader Ansari @^{Parvez, S/o. tvlohammedAbdul Gaffar Ansari,} iq;JrooJi2+^years, Occ:^{Pfr.Employee, Fi'/oH No.20-6-32811IA'Rooplal} Bazar. Shah Ali Banda,^HYderabad.

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4 Mohd. Salman Khan, S/o.^{Mohd.AbdullahKhan,aged about 20 years,.Occ:} Iiuo"nt, nl/o. H.No.2b-6-280/A,^{Near MCHground, Rooplal Bazar, Shah All} Banda, Hyderabad.

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5 Shaik lmran, S/o. Shaik^{Badruddin, aged about 21.years, Occ: Footwear-} Uu"n".t, nyo. H.ruo.tS-tZSl+,^{Beside-Habeeb Saheb Dargah, Jal Pally, Pahadi} Shareef, Hyderabad.

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Shahbaz Khan, S/o. Sultan^{Khan, aged about 20 years, Occ: Student,} nyo. fr.r.lo.2Z-e)-SAllO,^{NearOrient Optical Shop, Lakkadkote,Mirchowk,} Hyderabad.

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...RESPODENTS/ACCUSEO

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Counsel for the Appellant:^{THE PUBLIC PROSECUTOR(TG)}

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Counsel for the Respondent^{No.1: SRI SYED AHMED ALI}

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Counsel for the Respondent^{Nos.2 & 3: SRI K. SURESH REDDY}

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Counsel for the Respondent^{No'4: SRI C. VIJAYA SHEKAR REDDY}

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Counsel for the Respondent^{Nos.5 & 6: SRI MOHD.MUZAFERULLAH KHAN}

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The Court delivered the^{following:JUDGMENT}

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HONOURAB LE JUSTICE^{G.SRI DEVI}

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CRIMINAL APPEAL^{No.85L of2OL7}

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JUDGMENT:

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This Criminal Appeal is filed under Section 378^{(3) and (1) of} the Code of Criminal Procedure^(for short, 'Cr.P.C.')^{Lry the State,} challenging the^judgment dated O8.O2.2017^passed in S.C.No.44 of 2016, on the file of the Special Judge for Economic OJTences-cumVIII Additional Metropolitan Sessions Judge, Hyderabad, wherein the accused/A- I to A-6 were acquitted under Secti,rn 235( 1) of Cr.P.C. for the offence punishable under Section 395 of IPC.

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For the sake of convenience, the parties will hereinafter be referred to as arrayed in S.C.No.44 of 2016.

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The case of prosecution in brief is that, PWs 1 and 2 are the Bill Collectors and collection agents for M/s.Taruni Dairy, who used to collect money from their customers to whom their company supplies milk and milk products and on noticing that they are coming with cash to deposit with the said ,:ompany, the accused/A-1 to ,{-6 conspired together to rob the said cash from them. On 23.08.2014, when PWs 'L and 2 are returning with the money collected from various customers on their motor cycle, the accused/A-1 to A-4 came on two motor cycles and stopped PWs 1 and 2, sprinkled chilli powder into their eyes and go1 hit pW2 with a small hand knife on his head whereby, PW2 fell down. Then, accused/A-l snatched away one bag containing cash from PW2. The accused/A-3 snatched away another bag from I)W1 and went speed on their vehicles towards bank street. Thereafter, pWl came

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to the police station and presente d a complaint informing the alJeged incident. During the course of rnspection, the police inspected the scene of offence in the presence of pW5 and pW26, who are street vendors, examined them and recorded their statements and apprehended accused/ A_1 to A_4 in a house near Durdana Hoter, GM chowni, chatrinaka and seized Rs 8,70,000/- from accused/A-1, Rs.6,oo,ooo/- from accused/A_2 & A-3 and Rs.6,20,000/_ from accused/A-4, apart from cell phones and motor bikes and further, as directed bv the accused/A-1 to A',4, the porice came to M/s.Grand Footwear shop at Chatta Bazar which belongs to accused /A-5 and apprehended accused /A-5 and A-6 in the presence of panch witnesses_pW2O and Sri Praveen, recorded their statements confessing the offences and filed charge sheet to that effect and produced the accused/A-1 to 4,-6 before the II Additional Chief Metropolitan Magistrate at Nampally, Hyderabad, who numbered the case as pRC.No.O7 of 2015 and committed to the Court of Metropolitan Sessions Judge vide order dated 07.01.2016, and the learned Sessions Judge on receipt of the same, numbered the case as S.C.No.44 of 2016.

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On appearance of the accused/A-l to A-6 and on being satisfied with the material placed on record, the learned Sessions Judge framed charge under Section 395 of IPC, read over and explained to the accused/A-1 to A-6, to which they pleaded not guilty and claimed to be tried.

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In support of its case, the prosecution has examined PWs 1 to 26 and got marked trxs.Pl to P27 and MOs 1 to 8. After closure of the prosecution evidence, the accused/A- i to A-6 were examined U/s.313 Cr.P.C. explaining the incriminating material available in

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the evidence^{of prosecution witnesses' but the samew€-sdenied by} them and^{stated that there is no defenceevidence on -heir behalf'} After analyzing^{the evidenceavaiiableon record and also written} arguments^{filed along with necessary citations by both the parties'} the trial^{Court has acquittedthe accused/A-1 to 4-6Cha11enging} the same,^{the present appeal is filedby the State'}

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Heard learned^{Assistant Public Prosecutor for tire appellant-} State, learned^{counsel for the respondents/A-1 to A-6 and perused} the record.

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Learned Assistant Public^{Prosecutorappeal ing for the} appellant-State contended that^{the judgment of the .-rial Court is} contrary to 1aw, weight of evidence and^{was pasl;ed on mere} probabilities of the case and contended that the trial Court^failed to appreciate the evidence in proper^perspective and the reasons assigned in acquitting the accused/A- 1 to A-6 are unsustainable.

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Learned Counsel appearing for the respondr:nts/ accused A- i to A,-6 would submit that there is lot of inconsir;tency in the evidence of PWs I and 2; that their evidence is not ir-r accordance with the complaint given by PWl to the Police vide E>..P1; that the alleged recovery of money and knife is not at all proved; that the Investigation Officer did not follow the procedure fo: the alleged search; that the Test Identification Parade for the acr:used/A-1 to A-6 was not conducted in accordance with Rules anri also stated that the prosecution has failed to examine one Rajesh Gandhi, who is said to be the employee of PWs 1 and 2 and therefore, the accused/A- 1 to A-6 were rightly acquitted by the trial Oourt.

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g. The point that arlses for considerdtion^lnthis appeal ts uhether the Judgment^ofacqulttal recorded bg the trial Court is^{susto'lnable in law?}

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PWsl & 2 are the Bill^{Collectorsfor collection of sale} proceeds on behalf of M/s.Taruni^{Dairy' PW2 is the brother-in-law} of PWl. PW3 is the^{eyewitnessof the said incident'PW4 is the} Managing Director of^{M/s.Taruni Dairy.PWs5 & 26 are the street} vendors. PWs 6 to^{11 are the customers doing footwear business} and milk business.^{PWsl2 to 18 turned hostile to the case of} prosecution. PW2O is^{the panch witness'PWs 21 & 25 are the} Police Officers.^{PW23 is the Investigating Officer'PW24is the} Magistrate. PWs^{21 and 25 are the police officers' PW23 is the} Investigating Officer.

¶45

PW1,^{who is a collection agent for M/s Taruni Dairy' which} is situated at^{Secunderabad, stated in his evidence that on} 23.oa.2)14 at about^{11.oO a.m., he along with his brother-in-law} (PW2) started to Gujarati^{galli from his houseand while passing} Rang Mahal Road at^{Bus stop No'94whichis nearer to dust bin'} four persons came^{on two motor bikes and stopped them by} placing their vehicles^{acrosshis vehicleand abusedhim staying} that he does not^{knewdrivingand then sprinkledchilli powder into} his eyes and also^{in the eyes of PW2, who is a pillionrider'} whereby both have^{fallen down. When those persons were nearing} PWl, he tried to^{escape by running,but they chased him on bikes} and snatched the^{cash bag from him' He also stated that he has} collected Rs.9,40,000/-^{atChatta BazarRs'2'35'0O0/-'} Rs.2,00,000/- and^{Rs'1,00,000/- from PWs6 to 9 on that day' i e'}

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on 23.O8.2Oi4, in betr,r,een 12.OOnoon and 1.3O p.m.,.Lnd that the total amount received by PWl comes to Rs.5,35,000/-

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PW2, who is brother- in- law of PWl, is also a collection agent for M/s.Taruni Dairy and stated in his evidenc,: that when they were going to Koti and reached bus-stop no.!){ which is nearer to dust bin, four persons came on two motor cycles and stopped them and abused them stating that they do nr>t know how to drive and had fallen down and were sprinkled with r:hil1i powder into their eyes by the said accused/A-l to A-4 and v'hen he was trying to escape by running, he again fell down and then he was hit on his head with knives whereby, he lost consciousness. pW2 further deposed that he has collected cash of Rs.2O,60,OOO/- on 23.04.2014 from the customers of Gupta Enterprises Ability Foot Wear, Mukesh Leather Shop and Hyderabad Foot Wear, apart from Rs.2,00,000, which he has collected at Gujarati galli and the same was admitted by PWs 9 to 11.

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The contents of Ex.P1 complaint are that, pW1 was accompanied by his brother- in- law (PW2) and t:rat the bag containing Rs.40,00,000/ - was snatched away front them after they were attacked.

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Thus, from the evidence of PWsl and 2, it is clear that they did not go to their office directly from their house and the evidence of PW1 and PW2 do not corroborate with each other. There is no document or authorization in writing received fronr M / s.Taruni Dairy to show that what is the amount due from eirch customer and what is the amount paid by each customer an,j there is no mention about PWi carrying cash bag and missing the same as

<br>

deposed by him in his evidence . Even if the amount said to be collected by PW 1 and PW2 are added together, it comes to Rs.30,OO,OOO/-, but not Rs.4O,OO,O00/- as stated in Ex.Pl report. Thus the prosecution have not proved that PWs I and 2 were carrying Rs.40,00,000/- at the time of the alleged incident as stated in Ex. P 1 report, but they were carrying with them some cash and it may be Rs.30,00,000i - or Rs.20,60,000/-.

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Though The accused/A5 and A6 were not in the scene^of offence, but they have participated in the offence by assisting^{A1 to} ,{4 and it is by informing the movements of PWs I^{and 2 by using} their cell phone but the Investigating^{Officer could not prove that} on the date of offence, any call^{was madeto A1 to A4 by A5 and} A6.

¶56

Learned counsel^{for the respondents/ A-1 to A-6 contended} that the learned Magistrate^{(PW24l conducted singleTest} Identification Proceedings for all^{the four accused which is not} permissible and before sending^{the accused for judicialcustody,} they were detained in the^{police station for more than five days and} that while they were being^{producedin the Court for remand, their} faces were not covered and^{in view of the visit of PWs 1 and 2 to} the police station, there is^{every chancefor them to see the} accused. In this case the accused^{werearrested on 15.10.2014,} Test Identification Proceedings^{were conductedon 01'11'2OL4'} Thus, there is a^gap of^{15 days in conducting Test Identification} Proceedings whlch cannot^{be ruled out and PW1 could be abie to} see the accused/A- 1 to^{A-6 either in the Police Station or when} they were brought to the^{Court for remandto judicial custody'}

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In this case, neither in Ex.P1 report nor in the st{rtements of witnesses recorded by the police, the descriptive particulars of the accused were given. PW3 who is stated to be the eye witness, identified accused / A-2 to A-5 in the Court instead c,f A 1 to A4. PW20, who is stated to be panch witness, identified A-._ to A_3 and A-5, but not A-4.

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Learned counsel for the respondents/A-l to A-(r contended that as per Rule 34 of Criminal Rules of practice a separate test identification parade is to be conducted by the Magistrate for each of the accused and has also relied upon a decision reported in Vlkuntam Chandrappa Vs. State of A.p. (AIR 1960 SC 1g4O) wherein, it was held that 'the second circumstance ir connection with the identification is that in a parade consisting or'46 persons in all in which there were seven suspects and in which nine persons were picked out, the probability is that even if a person who had not seen the murder were to pick out suspec-s, he would by mere chance be able to place his finger on one o: two of the suspects'and hence held that separate identification parade has to be conducted for each suspect.

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In the instant case, the learned Magistrate has not followed the procedure prescribed under Rule 34 of Criminal rules of Practice and the decision reported in Vikuntam Charrdrappa Vs. State of A.P. So, in the absence of giving descriptive physical features of accused/A- 1 to A-4 in Ex.pl report and for the delay in conducting Test Identification proceedings; and that the police did not take care while producing the accused/A_ 1 to 4-6 in the Court without covering their faces and it is for pWs 1an<l 2 who got

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--r/"'-1"-

sufficient time to get print of the faces of the culprits who attacked them, where only few seconds time wili be left to look at the culprits when attacked and that four persons came on two bikes, two among them were pillion riders whose faces may not be^visible clearly, it is impossible to explain the similarities^{and appearance} of the accused /A-1 to A-6 which could not^{prove the case against} the accused/A-1 to A-6.

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PW21, who is working as^{Inspector of Police, Task Force,} Hyderabad, deposed that on^{15'10.2014,when he was on} patrolling duty at East Zone limits of^{Afzalgunj,he was askedto} assist in a robbery^case by^{Sultan BazarPoliceStation'So, he} along with his staff^{went to Sultan Bazar policestationand met} the Additional Inspector of^{Police and appraisedhim aboutthe} information he had and after^{the search proceedingswere} completed, they all left^{to GM Chowni,Chatrinaka and conducted} raid on the house of the accused.^{They found A-1 to A-4 and} seized cash, cell^{phones, two motor cyclesfrom the accused/A-1to} A-4, who in turn showed^{the presenceof other two accusedin a} Grand Footwear shop at^{Chatta Bazar and found the said} accused/ A-5 & A-6^{there and seizedcash, cell phones and two} motor cycles from them.^{Both PW21and PW25are not examined} and their statements^{are not recordedby the InvestigatingOfficer,} especially on the^{search proceedingsand panchanama under} which cash, cell phones and^{motorcyclesare seized on the date of} alleged search and arrest^{of the accused.}

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PW20 who^{is an independent witness,deposedthat he used} to run a Photostat^{machine at Koti and that on 15'10'2014'he was}

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II'

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called by a Constable to the Police Station, Sultan Bazar and there, the Inspector of Police asked him to act as panct. witness and search proceedings are prepared and he had signed therein. The police have taken him to a house near Lal Dantraza and that they entered a house and found four persons sitting in tne house with cash. He identilied them in the court as Al to 43 and A5. After seizure ofcash of Rs.8,70,0O0/- from A-1, apart frorr. knife and cell phone, Rs.6,00,0O0 from each of A-2 to A-4 and also one cell phone from each of them was seized and thereafter, all the four accused have taken them to shoe mart shop where A5 ancl A6 were found and then returned to the police station with all the accused. He admitted that two motor cycles were seized by the police from A5 and A6 at Chatta Bazar. PWs 20 & 23 deposed that there was none else except A- I to A-4 in the said house at that time.

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PW23, the Investigating Officer stated that on search, he found cash with the accused and only after completion of panchanama proceedings, he seized the said cash. He stated that he issued arrest cards but he did not make a mention about the seizure of cell phones, motor cycies and knife.

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PW25, who is Sub-lnspector of police durir.g the relevant time, did not depose about the drafting of confession-cum-seizure panchanama and was not examined and his stat(:ment \Mas not recorded by the Investigating Officer especially when their signatures are not obtained on the search proceedings and panchanama under which cell phone and motor c5.cles are seized on the date of alleged search and arrest of the accused.

i )

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; _-

As seen from the evidence of pWs 20, 23 and 25, there is a variation about the seizure of the cell phones from each accused. Further, it is very strange that the accused/A-1 to A_4 who committed robbery on 23.08.2014, have kept with rhem the knife used in the commission of offence and cash till they were arrested on 15.10.2014. Further, there is no proof that the house where A-1 to A-4 were said to be found, belongs to Al and that Granrl foot wear belongs to A5.

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In view of the foregoing discussion and on appreciation of evidence available on record, I find that the learned trial Court has rightly recorded the acquittal of the accused/A_ I to 4_6, which cannot be stated that the same is perverse and is contrary to law. The appeal is devoid of merits and is liable to be dismissed.

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Accordingly, the Criminal Appeal is dismissed confirming the judgment dated O8.02.2017, passed in S.C.No.44 of 2O16, on the file of the Special Judge for Economic Offences_cum_Vlll Additionai Metropolitan Sessions Judge, Hyderabad.

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As a sequel, Miscellaneous petitions, if any, pending shall

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stand dismissed.

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SD/-CH.VEN KATESWARU LU DEPTUY REGISTRAR

//TRUE COPY//

To,

SECTION OFFICER

1 The Special Judge for Economic Offences -cum- Vlll Additional lVletropolitan Sessions Judge at Hyderabad. (with records)

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2 Two CCs to the Public Prosecutor, High Cou.rt for the State of Telangana at Hyderabad. [OUT]

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Qne QC^{to Sri Syed Ahmed AliTAdvocate} [OPUC]

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4 One CC to Sri K. Suresh Reddy, Advocate IOPUCI 5 9ne 99^{to Sri C. Vijaya Shekar Reddy,Advocate} [OpUC] 6 One CC to Sri Mohd. Muzaferullah Khan, Advocate tOpUCl

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7 Two CD Copies

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B One Spare Copy s br

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HIGH^COURT

DATED:^0510812021

JUDGMENT

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¶98

GRLA.No.861^{ot 2017}

¶99

DISMISSING^{THE CRIMINAL APPEAL"}

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The State of Telangana Rep by Pp., v. Mohammed Imran, Hyd and 5 Otrs.

Case brief

What is this about?

What did the court decide?

The State of Telangana Rep by Pp., v. Mohammed Imran, Hyd and 5 Otrs.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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