HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.1579 OF 2006 Dated 20-01-2014 Between:
Pala @ Mekala Ramanjaneyulu @ Ramaji and another.
And:
..Petitioners.
The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad.
…Respondent.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.1579 OF 2006 ORDER:
This revision is preferred against judgment dated 14-9-2006 in Crl.A.No.232 of 2005 on the file of V Additional Sessions Judge, West Godavari, Eluru, wherein judgment dated 21-12-2005 in S.C.No.307 of 2004 on the file of Principal Assistant Sessions Judge, Eluru, is confirmed.
2. The brief facts leading to this appeal are as follows:
On intervening night of 4/5-4-2002 at about 11.40 P.M., eight unknown offenders gained entry into the house of P.W.1 which is located in his field at Alliveedu village by breaking the doors with boulders and robbed articles and cash worth of Rs.19,200/- from the inmates and inflicted bleedings injuries to P.Ws.1 and 2 with sticks. On receipt of information, Sub-Inspector of Police, registered a case and during the course of investigation, examined witnesses, visited the scene of offence and seized blood stained shirt. P.W.13 arrested A.4 and A.5, on 9-6-2002, at 11-00 A.M., near Railway Station Kolakaluru village in connection of a crime relating to Tenali Rural Police Station and interrogated them in the presence of mediators, who confessed about the offences committed in this case along with A.1 to A.3, on 12-6- 2002, the Investigating Officer arrested A.1 to A.3 near old bus stand, Eluru in connection of crime No.30 of 2002 of Denduluru Police Station and during confession, they informed P.W.15 about this offence and on that after obtaining PT warrant, Test Identification parade in respect of A.1 to A.3 was conducted on 21-6-2002 and in respect of A.4 and A.5 was conducted on 29-6-2002 at Sub-Jail, Eluru. On these allegations, trial court examined fifteen witnesses and marked nineteen documents besides seven Material Objects and on an over all consideration of oral and documentary evidence, trial court found the accused guilty for the offence under Section 397 I.P.C. and sentenced A.1 to A.3 and A.5 to suffer seven years imprisonment and also directed to pay fine of Rs.500/- each. During trial, A.4 died and the case against him is recorded as abated. A.1 and A.3 preferred Criminal Appeal No.232 of 2005. A.2 preferred Criminal Appeal No.8 of 2006 and A.5 preferred Criminal Appeal No.58 of 2006 and through a common judgment dated 14- 9-2006, the appellate court confirmed conviction and sentence imposed against the respective accused as against which, A.1 and A.3 i.e., appellants in Criminal Appeal No.232 of 2005 have preferred the present revision.
3. Heard both sides.
4. Advocate for revision petitioners submitted that out of fifteen witnesses examined, P.Ws.1 and 3 are wife and husband, P.W.2 is a relative who was in the house of P.Ws.1 and 3 on the date of incident and P.W.12 is the Magistrate who conducted Test Identification parade and they are the main material witnesses. He further submitted that according to F.I.R. and also evidence of P.Ws.1 and 3, eight persons have participated in the commission of offence but the Investigation is silent about the remaining three persons. He further submitted that there is no connecting material except the Test Identification parade proceedings to identify the culprits since in the F.I.R. and in 161 Cr.P.C. statements, the witnesses have stated as unknown offenders. He submitted that Test Identification parade is not a substantive piece of evidence and it is only a corroborative piece of evidence, in the absence of substantive piece of evidence, the same has no evidentiary value. He further submitted that out of the three witnesses, only P.Ws.1 and 3 identified accused in the Test Identification parade and P.W.2 has not identified and all these aspects would throw any amount of doubt to the correctness of the prosecution case and that the benefit of it shall be extended to accused.
5. Learned Public Prosecutor submitted that from the evidence, both P.Ws.1 and 2 received bleeding injuries in the hands of culprits and there is every possibility for them to observe the culprits closely and accordingly, they have identified them both in the Test Identification parade and also in the court during trial and therefore, the objection of the defence counsel cannot be sustained.
6. He further submitted that P.W.1 before participating in the Test Identification parade gave descriptive particulars of the culprits to the Magistrate who conducted Test Identification parade and there are no contradictions or omissions in the evidence of important material witnesses and both the courts rightly convicted the revision petitioners and that there are no grounds to interfere with the concurrent findings of the courts below.
7. Now the point that would arise for my consideration in this revision is whether the judgments of the courts below are legal, correct and proper?
8. POINT:
It is the case of prosecution that on intervening night o f 4/5-4-2002 at about 11.40 P.M., eight culprits gained entry into the house of P.W.1 by break opening the door with boulders and decamped with booty worth Rs.19,200/- out of which Rs.5,700/- is cash and the remaining is value of gold articles. The revision petitioners are charged with offence under Section 397 I.P.C. and to prove the same, prosecution must establish that there was a theft committed by using deadly weapons and also causing grievous hurt in the course of offence to attract the ingredients of offence of robbery. In other words, aggravated form of theft is robbery. P.Ws.1 and 3 are husband and wife and they both deposed in one voice as to the manner in which they were attacked and robbed. P.W.2 is a person who stated that he slept in the house of P.W.1 on the fateful day he supported and corroborated the evidence of P.Ws.1 and 3 on all material aspects and also spoken about the injuries sustained by him in the hands of culprits. Police received information about the commission of offence through P.Ws.4 and 6 over phone and set the criminal law into motion. Though P.Ws.1 to 3 were cross-examined on behalf of culprits, their evidence remained unshaken and no useful information could be elicited to doubt their testimony.
P.W.12 the Judicial First Class Magistrate conducted Test Identification parade in which P.Ws.1 and 3 identified the revision petitioners herein and the remaining culprits. P.Ws.1 and 3 also identified the culprits during trial in the court. P.W.2 has identified the revision petitioners and other accused in the court during trial. It was suggested to P.Ws.1 to 3 that the police have shown the photographs of the accused to P.Ws.1 and 3 before they participated in Test Identification parade but they have denied the suggestion. As rightly pointed out by learned Public Prosecutor, from the evidence, it is clear that there was a scuffle between P.Ws.1 and 2 on one side and culprits on the other side before committing the offence of robbery. So, there is every possibility for P.Ws.1 and 2 to closely observe the culprits. From the evidence, it is also clear that the Test Identification parade was conducted within less than three moths. So, the witnesses P.Ws.1 to 3 can recollect their memory because the incident happened is a serious and grave one. Further, it is also clear from the evidence that the culprits were at the scene for about thirty minutes, which definitely is a sufficient time to observe culprits and to imprint their images. So, for these reasons, the objection of the advocate for revision petitioners with regard to identity of the revision petitioners cannot be sustained.
9. Learned advocate for revision petitioners cited three rulings on the part of credibility of the evidence relating to identification of culprits.
10. I n BOLLAVARAM PEDDA NARSI REDDY
[1]
AND OTHERS Vs. STATE OF A.P, ( ), it was held:
“The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression. When the crime was committed during the hours of darkness and the assailants were utter strangers to the witnesses, the identification of the accused persons assumes great importance. The prevailing light is a matter of crucial significance. The necessity to have the suspects identified by the witnesses soon after their arrest also arises.”
[2]
11. In STATE OF M.P. VS. GHUDAN ( ), it was held:
“PW 26 states that he noticed a person of medium height with curly hair having somewhat darkish complexion coming out of the house of the MLA, who after threatening him shot the deceased three times. But, from his evidence given in the court in regard to the test identification parade, it is clear that he was neither able to see the stature of the accused-respondent, nor the hair, nor the mole on his nose, nor his complexion or his height. Therefore, the identification of the respondent by PW 26 is not reliable especially in the background of the fact that a similarly situated witness like PW 11 had failed to identify this respondent.”
12. In the first case, there was no opportunity to the witnesses therein to observe the assailants but here, in our case, there was every possibility to the injured witnesses to closely observe the assailants and therefore, they could identify the culprits.
13. In the second decision, one witness identified and another witness not identified, in those circumstances. it was held that identifying by witness No.26 therein is not reliable. But, here in this case, P.Ws.1 to 3 have identified the culprits.
14. I n MANZOOR Vs. STATE OF UTTER PRADESH AND SULEMAN VS. STATE OF UTTAR
[3]
PRADESH ( ), it was held that when at the earliest
opportunity the eye witnesses failed to mention any identifying features of the accused persons when they were examined by Investigating Officer, identification of the accused by one of the witnesses after two months in T.I. parade is treated as suspicious.
15. In that case, two home guards are eye witnesses in a murder case. One of them identified the culprit in Identification Parade. Honourable Supreme Court found fault in not disclosing the identification marks to Investigating Officer during 161 Cr.P.C. statement being home guards. But here, this is a case of robbery and the victims are not well versed within the procedures. Therefore, their testimony in identifying the culprits can not be suspected.
16. From the evidence of P.Ws.1 to 3 coupled with the evidence of P.Ws.10 and 12, documents Exs.P.1, P.11, P.12 and P.15, it is clear that both the revision petitioners are among the culprits who committed robbery in the house of P.W.1 on the intervening night of 4/5-4- 2002. Both trial court and appellate court have elaborately discussed both oral and documentary evidence in detail and there is no wrong appreciation of evidence on any of the material aspects. Further, findings of trial court and appellate court are based on sound reasoning and there is no perversity in any of the findings.
17. So, for these reasons, I am of the view that there are no grounds to interfere with the concurrent findings of courts below.
18. On a scrutiny of evidence on record, I am of the view that both the courts rightly convicted the revision petitioners and that there are no grounds to interfere with the conviction and sentence and as such, the revision is liable to be dismissed.
19. Accordingly, this revision is dismissed. The trial court shall take steps to apprehend the accused to undergo the unexpired portion of the sentence.
20. As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 20-01-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CRIMINAL REVISION CASE No.1579 OF 2006 Dated 20-01-2014
[1] (1991) 3 SCC 434
[2] (2003) 12 SCC 485
[3] (1982) 2 SCC 72