THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1419 of 2011 Date:22.01.2014 Between:
Rusthum Alishem 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.1419 of 2011 JUDGMENET:
This revision is preferred against Judgement dated 13-04-2011 in Criminal Appeal No.02 of 2010 on the file of Special Judge for Trial of Cases under S.Cs & S.Ts (POA) Act- cum-Additional District & Sessions Judge, Vizainagaram, whereunder judgment dated 15-12-2009 in Sessions Case No.10 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 Bhogapuram fled charge sheet against the revision petitioners and three others with the allegations that on 23/24.5.2006, all the accused along with their other confederates, who are seven in numbers, trespassed into the coconut garden of P.Ws.3 and 4 in order to commit decoity, at about mid night, they surrounded Appanna and Koyya Srinivasa Reddy (L.W.7 & L.W.10), while they were sleeping on a cot in front of their thatched house, beat them with hands, showed them knives and threatened to kill them, if they dare to raise cries and tied their hands and legs, thereafter, they went to the terraced building of P.Ws.3 and 4, on noticing them, P.W.1-Kusuma switched of the Motor in the coconut garden and questioned the accused standing by the side of the house, for which two of the accused came and beat her with hands and placed a knife on her neck in a menacing manner and took away one gold chain and ear ornaments from her person. The accused along with their confederates forcibly took P.W.1-Kusuma into her house and behaved in a violent manner, showing knives, hurling threats and took away one gold ring, one gold chain from P.W.2.
The accused also placed knives on the neck of P.Ws.3 & 4 and threatened to kill them and they took away 7 gold bangles, gold mangala sutrams with gold chain from P.W.4 and also took away two cell phones lying in their house. In the similar manner, the accused also took away two gold bangles and ear ornaments and gold ornaments from the hands of P.W.6-Matta Sindhu and one pair of gold ear rings from P.W.5 and on hearing the barks, Matta Ramudamma woke up and while proceeding towards the house of P.Ws.3 and 4 along with Sarswathi (L.W.8), the accused pelted stones on them and all the accused threatened to kill them, while leaving from that place with booty. On the statement given by P.W.1-Kusuma, a case in Crime No.43 of 2006 of Bhogapuram Police Station was registered by the Sub-Inspector of Police and the Inspector of Police, Bhogapuram took up investigation and they sent the injured to the District Hospital, Vizianagaram for treatment. The Sub-Inspector of Police and the Inspector of Police, Vizainagaram Rural Police Station arrested A1- Rustum Ali Sheik on 12.08.2007 at 5.00 P.M at his house in Raghunadhpur in West Bengal and seized one gold chain belonging to P.W.2 from him and produced him under P.T.Warrant before the learned Additional Judicial Magistrate of First Class, Vizianagaram on 23.08.2007 and the Inspector of Police obtained custody of A1 and interrogated him who disclosed the complicity of other confederates, basing on which, on 02.08.2007, A2-Jinnath Ali Gayn was arrested at Raghunadhpur, Bankura District by the Inspector of Police, Vizianagaram Rural Police Station in Crime No.60/2007, which was registered under Section 397 I.P.C and under Section 3(1) of Arms Act and in Crime No.61/2007, which was also registered under Section 397 IPC and Section 3(1) of Arms Act of Gurla Police Station and later produced him before the learned Additional Judicial Magistrate of First Class, Vizianagaram and obtained police custody on 25.09.2007 and interrogated him in the presence of mediators and when he lead them to the person by name Allaboyina Ramu (L.W.16) with whom he pledged one gold chain, the same was seized by the police under cover of mediators report. Thereafter, A3 was arrested in Crime No.62/2007 under Sections 457 & 394 IPC of Cheepurapalli Police Station and obtained police custody of A3 and he was interrogated by the police. A4 was also arrested in Crime No.72/2007 under Section 395 IPC and under Sections 25 & 27 of Arms Act of Garbheta Police Station in West Bengal and he was brought to Bhogapuram Police Station on 27.10.2007 for police custody and was interrogated. On 28.10.2007, at about 9.00 A.M., A4 led them to the house of G.Narayanamurthy of Raghunanda Village to whom he pledged one pair ear ornaments for Rs.2,000/- and seized the same from him and also led them to Uppada Duvvanna to whom he pledged gold bangle concerned in Crime No.71/2005 of Cheepurapalli Police Station and they seized the same in the presence of mediators and A4 also lead them to the house of Marayya (L.W.19) to whom he pledged ear ornaments for Rs.2,000/- and they seized the same under cover of mediators report. After recovery of property, A1 to A4 were produced before the Court and when A5 was arrested, he was taken into police custody, after obtaining permission from the Court on 24.11.2007 and he was interrogated by the Inspector of Police, Bhogapuram and basing on his confessional statement, the Circle Inspector has seized in the presence of mediators one gold ring belonging to P.W.1 being produced by Mudasala Marayya with whom A5 pledged the same. A6 was taken into police custody by the Inspector of Police, Cheepurapalli and interrogated him and basing on his confessional statement, he seized two gold Pusthelu from Kuppili Trinadha Rao with whom he pledged the same and during the course of test identification parade conducted by the Judicial Magistrate of First Class, Cheepurapalli. A5 & A6 were identified by P.Ws.1 to 3, thus the accused are liable for punishment for the offences under Sections 449, 395, 326 & 324 read with Section 34 IPC. On these allegations, trial Court took cognizance and framed charges for the offences referred above against the revision petitioners and thereafter, proceeded with trial. During trial, 20 witnesses are examined and 22 documents are marked besides 11 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 459, 397, 323 & 326 IPC and sentenced them to suffer seven years imprisonment for the offence under Section 397 IPC one year imprisonment with a fine of Rs.100/- for the offence under Section 459 IPC, fine of Rs.500/- for the offence under Section 323 IPC and one year imprisonment with a fine of Rs.100/- for the offence under Section 326 IPC. Aggrieved by the same, the revision petitioners preferred Criminal Appeal No.2 of 2010 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.10 of 2008 and Sessions Case No.188 of 2008 arising out of Crime No.43 of 2006. Aggrieved by which, the present revision is preferred. The revision petitioners herein are A1, A2, A4 & A6 in Crime No.43 of 2006.
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.14 in respect of other accused he was not subjected for Test Identification Parade. He further contended that there are no factual particulars for identifying A6 in the test identification parade being held by P.W.14 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 petitioner is that there is no compliance of Rule 34 of the Criminal Rules of Practice, therefore, the test identification parade conduced by P.W.14 cannot be accepted. The next contention of the Advocate for revision petitioner 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 23/24.05.2006, the revision petitioners herein along with 3 others trespassing to the coconut garden of P.Ws.3 & 4 and committed robbery. From the evidence on record, it is clear from the culprits 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.14 conducted test identification parade and he was cross-examined on behalf of the revision petitioners. The alleged incident was in the month of May, 2006 and revision petitioners are arrested in the year 2007 immediately the test identification parade was conducted. In the cross-examination, P.W.14 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. He further stated in the cross-examination, in Exs.P11 & 12 proceedings, the name of the witnesses who identified by the suspect is mentioned as M.V. Ramana Murthy instead of M.V. Ramana Reddy and it is a clerical mistake. P.W.14 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 procedure under Section 34 of Criminal Rules of Practice cannot be accepted for the reason that the evidence of P.W.14 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 the stolen property was not recovered from them. When the evidence on record disclosed 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
[1]
Ravichandran v. State represented by Inspector of Police & Bommidi Mallikharjuna @ Malka and others v. State of
[2]
A.P and 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 and the non-suspects selected for test identification parade and considering those aspects, the Supreme Court held that it is 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)