THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1420 of 2011 Date:22.01.2014 Between:
Jinnath Ali Gayn and others.
. Petitioners.
AND The State of Andhra Pradesh, rep by its Public Prosecutor, High Court of A.P., Hyderabad.
. Respondents.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1420 of 2011 JUDGMNET:
This revision is preferred against Judgement dated 13-04-2011 in Criminal Appeal No.70 of 2009 on the file of Special Judge for Trial of Cases under S.Cs & S.Ts (POA) Act- cum-Additional District & Sessions Judge, Vizainagarm, whereunder judgment dated 19-10-2009 in Sessions Case No.29 of 2008 on the file of Assistant Sessions Judge, Vizianagaram was confirmed.
2. The brief facts leading to filing of this revision are as follows:-
Inspector of Police Cheepurupalli fled charge sheet against the revision petitioners with the allegations that on intervening night of 16/17-09-2005 all the accused and their confederates came to the house of P.W.1, armed with deadly weapons and broke open the iron hook and steel pad lock of the iron grill at the entrance varndah of the house and gained entrance into the central room, where L.W.9-Savitridevi was sleeping and they having inflicted injuries on Savitridevi have threatened to kill and snatched two gold bangles from her arms. They also demanded her to show other places where the gold and cash was kept. They tied her hands with a towel and took her into the room of Appalanarsimha Varma and they have tied the hands of Applanarasimha Varma with another towel and checked the almyrah and suit case and took away cash of Rs.14,000/- kept in a trunk box. The accused bolted the doors from out side confining the inmates and went to the house of P.Ws.1 & 2 and after breaking open the wooden doors with big stone, they entered into their house and threatened them to kill if they raise cries and when P.W.1 raised cries, two of the accused beat them with iron rods on his head and two of the accused tied his hands with bed sheet and demanded him to give the keys and took them and on being shown by P.w.1, they opened the steel almyrah and removed cash of Rs.2,50,000/- and various kinds of gold ornaments and they also forcibly took away gold pusteluthadu and pair of ear studs from the person of P.W.2. Balakrishna Varma (L.W.8) having heard the cries of P.W.1 came to the house later and witnessed the offence. Sanyasi, China Appayya, Venkayya, Laxmu and Samalappadu who were the farm servants of P.W.1 were sleeping in the cattle shed in front of the house of P.W.1 and the accused before entering into the house of P.W.1, came and threatened the above said persons with dire consequences and they confined them in a room. One of the confederates was continuously pumping the water by using the bore handle in order to drown the commotion to prevent others from hearing the same. Some time later, the villagers having heard the commotion came and rescued the victims. The accused and their confederates escaped from the place of offence with booty. On the report given by P.W.1 to the S.H.O of Cheepuraupalli, a case is in Crime No.71 of 2005 was registered and during the course of investigation, P.W.1-Bala Venkatapathivarma and Appalanarasimhavarma (L.W.10) were sent to the Hospital for examination. On 12.08.2007, A2 was arrested at Raghunandhpur in West Bengal by the Sub- Inspector of Police, Vizianagaram Rural Police Station and during the course of interrogation, A2 disclosed his complicity in commission of offence along with others in this crime and other crime in Vizianagarm District and he produced gold chain which relates to Crime No.43/2006 of Bhogapuram Police Station. The Sub-Inspector of Police obtained transit warrant from the Court of Additional Chief Judicial Magistrate, Vistnupur and brought A2 to Vizinagram and produced him before the learned Additional Judicial Magistrate of First Class, Vizainagarm. A1 was arrested by the C.I of Police on 12.08.2007 at Raghunandpur, West Bengal and interrogated him and brought him to Vizainagaram. A1 disclosed about his complicity in commission of offence in Crime Nos.71/2005 & 72/2005 of Cheepurapalli Police Station. The Inspector of Police, after obtaining police custody, interrogated A1 on 02.09.2007 and in pursuance of disclosure statement given by him, they all went to the house of P.Ganganna situated in Bangarammapeta Village, from whom two gold rings were seized under cover of mediators report. On 18.09.2007, A2 was interrogated by the C.I of Police and A4 was brought from Kolkata on P.T. Warrant by Bhogapuram Police in Crime No.43/2006 under Sections 395 & 397 IPC and lodged him in Central Prison, Visakhapatnam and after obtaining permission from the Court, he was taken to police custody and was interrogated and in pursuance of disclosure statement given by him, gold bangles relating to this crime were seized from Duvvanna. A3 was arrested and was taken into police custody on 22.11.2007 in this crime by the C.I of police and was interrogated and in pursuance of his confessional statement, three sets of gold rings were seized from Gowatham Ray of Jayarampati village in West Bangal. A4 was also taken to police custody by the C.I of Police on 24.11.2007 and in pursuance of confessional statement given by him, the C.I of Police seized black beeds gold chain relating to Cr.No.72/2005. The police got conducted property identification parade on 02.12.2007 in which the defacto complainant identified gold ornaments belonging to them.
The learned Additional Judicial Magistrate of First Class, Vizainagaram conducted identification parade of accused and P.Ws.1, 2, 5, 6 & L.W.8 and 10 viz., Bala Venkatapahti Varma, Arunkumar, Sagiraju Balakrishna Varma, Appalanarasimhavarma have identified the accused, thus the accused are liable for punishment for the offences under Sections 458, 342, 506 (2), 324, 395 read with Section 34 IPC. On these allegations, trial Court took cognisance and framed charges for the offences referred above against the revision petitioners and thereafter, proceeded with trial. During trial, 28 witnesses are examined and 22 documents are marked besides 15 material objects on behalf of prosecution.
On defence side, no witnesses are examined and no documents are marked. On a over all consideration of oral and documentary evidence, trial Court found the revision petitioners guilty for the offences under Sections 458, 397, 342, 506 (2) & 324 IPC and sentenced them to suffer two years imprisonment with fine of Rs.100/- for the offence under Section 458 IPC, seven years imprisonment for the offence under Section 397 IPC, one month imprisonment for the offence under Section 342 IPC, six months imprisonment for the offence under Section 506 (2) IPC and three months imprisonment for the offence under Section 324 IPC. Aggrieved by the same, the revision petitioners preferred Criminal Appeal No.70 of 2009 to the Court of Sessions, Vizainagaram and the learned Special Judge for Trial of Cases S.Cs and S.Ts Act-cum-Additional Sessions Judge, Vizianagaram confirmed the conviction and sentence imposed against the revision petitioners by common judgment in Sessions Case No.29 of 2008 and Sessions Case No.141 of 2008 arising out of Crime No.71 of 2008. Aggrieved by which, the present revision is preferred. The revision petitioners herein are A1, A2, A3 & A6 in Crime No.71 of 2005.
3. Heard both sides.
4. The main contention of the Advocate for revision petitioner is though A2 was very much present in the jail at the time of conducting test identification parade by P.W.11 in respect of other accused he was not put for Test Identification Parade for reasons best known to prosecution. He further contended that there are no factual particulars for identifying A6 in the test identification parade being held by P.W.11 as none of the witnesses P.Ws.1 to 3 spoke about A6 and the trial Court and the Appellate Court have omitted to consider this vital point. The other contention of the Advocate for revision petitioners is that there is no compliance of Rule 34 of the Criminal Rules of Practice, therefore, the test identification parade conduced by P.W.11 cannot be accepted. The next contention of the Advocate for revision petitioners is that when there is a long gap in between the commission of offence and test identification parade, no reliance can be placed on test identification parade proceedings and both the Courts have not considered these aspects and that the benefit of doubt has to be extended to the accused.
5. On the other hand, learned Public Prosecutor contended that the victims have clearly identified the accused that have participated in the test identification parade and identified the remaining during trial and all the accused are strangers and witnesses have no enmity or motive to speak falsehood against them and both the Courts considering these aspects found the revision petitioners guilty and that there are no grounds to interfere with the concurrent findings of the Courts below.
6. Now the point for determination is whether the Judgments of the Courts below are legal, proper and correct?
7. Point:- According to prosecution, on the intervening night of 16/17-09-2005, the revision petitioners herein along with 3 others came to the house of P.W.1 and committed robbery. From the evidence on record, it is clear that there was altercation between the culprits and victims and the culprits were at the scene for about nearly 30 minutes. It is also clear from the evidence while committing robbery, the culprits caused injuries to some of the inmates of the house. Now here at revisional stage, this Court cannot reappraise the evidence unless it is brought to the notice of the revisional Court that the Courts below acted perversely while appreciating the evidence on record. It is not the case of the revision petitioners that the trial Court and appellate Court acted perversely. The only ground urged on behalf of revision petitioners is with regard to test identification parade. Admittedly, P.W.11 conducted test identification parade and he was cross-examined on behalf of the revision petitioners. The alleged incident was in the month of September, 2005 and revision petitioners are arrested in the year 2007 from August month onwards and the test identification parade was conducted in the month of November, 2007 which is within two to three months from the date of arrest. In the cross-examination, P.W.11 deposed that the witnesses, who appeared before him to identify the suspects, did not inform him the colour, height and the physical features of the suspect accused but they can identify the suspects if shown to them. P.W.11 deposed in detail the manner in which he conducted test identification parade and in the cross- examination, except putting suggestions, nothing was elicited to show that he has deviated from the procedure under Rule 34 of the Criminal Rules of Practice. So the objection of the revision petitioners that the Magistrate who conducted test identification parade has not followed the procedure under Section 34 of Criminal Rules of Practice cannot be accepted for the reason that the evidence of P.W.11 would disclose that he has scrupulously followed the procedure under Rule 34 of Criminal Rules of Practice.
8. The other objection of the revision petitioners is that A2 though available in the jail at the time of test identification parade was not subjected for identification and his identification during trial cannot be accepted. Admittedly, all the revision petitioners were identified in the Court during trial. In the cross- examination, except putting suggestions nothing was elicited from the witnesses in respect of identity of the culprits. It is not the case of the revision petitioners that stolen property was not recovered from them. When the evidence on record disclose that property belonging to victims was recovered from the possession of the revision petitioners on their confession after arrest, objection of the revision petitioners with regard to identity cannot be sustained. Further, as rightly pointed out by learned Public Prosecutor there was struggle between victims and the culprits and that the culprits stayed at the scene for nearly 30 minutes and there is every possibility for the witnesses to observe closely features of the culprits which helped them in identifying the culprits either in the test identification parade or during trial. So the objection of the Advocate for revision petitioners with regard to identity cannot be sustained. Learned Advocate for revision petitioners referred to on the following two decisions reported in Ravi Alias Ravichandran v. State
[1]
represented by Inspector of Police & Bommidi
[2]
Mallikharjuna @ Malka and others v. State of A.P in support of his argument with regard to evidentiary value of test identification parade.
The principle laid down in these two decisions is not disputed. In the Supreme Court decision, it is held that substantive evidence of identification of an accused is one made in the Court and conviction can be arrived at even if no test identification parade has been conducted. It is in the evidence that photograph of the culprits were published in the local daily with the caption that they were accused in the case concerned and the Magistrate who conducted test identification parade has not noted ages of the non-suspects selected for test identification parade and considering those aspects, the Supreme Court held that test identification parade in that case lost significance. In the second decision, which is of this Court, the Magistrate who conducted test identification parade has not followed the procedure under Rule 34 of Criminal Rules of Practice. But here in our case, the facts are different and the Magistrate has duly followed procedure under Rule 34 of Criminal Rules of Practice and there is no evidence to show that photographs of the culprits were published in newspapers. So these two decisions would no way help the revision petitioners.
9. On a scrutiny of the material on record, I am of the considered view that both the Courts have not committed any error in appreciating the evidence and convicting the revision petitioners for the charges levelled against them and that there are no grounds to interfere with the concurrent findings of the trial Court and appellate Court.
10. For these reasons, the Criminal Revision Case is liable to be dismissed as devoid of merits.
11. Accordingly, the Criminal Revision Case is dismissed.
12. As a sequel, miscellaneous petitions if any pending in this Criminal Revision Case shall stand dismissed.
JUSTICE S. RAVI KUMAR
Date:22.01.2014 mrb [1] (2007) 15 Supreme Court Cases 372 [2] 2004 (1) ALD (Crl.) 391 (AP)