CRLA/685/2012 of SYED ANWAR , ANNU Vs THE STATE OF A.P. on 30 December 2022

1. Syed lmtiaz (A.4), S/o. Syed Maqbool, Occ: Key maker, Rl/o. ['179, ]HabeebColony, Guntalababa Dargah, Vettepally, Hyderabad.Colony, Guntalababa Dargah, Vettepally, Hyderabad.

2. l\,4ustafa Ahmed (A.7), S/o. Ansar Ahmed, Occ: Student, No. 19-4-294162,B.N.K.Colony, Miralam Tank, Hyderabad.B.N.K.Colony, Miralam Tank, Hyderabad.

3. The State of A.P., Rept. by the Public Prosecutor, High Court ofA.P.,Hyderabad.A.P.,Hyderabad.

...RESPONDENTS/ Accused

Counsel for the Appellant: SRl. T. PRADYUMNA KUMAR REDDY

Counsel for Respondent Nos. 1 & 2 : SRI MOHD MUZAFFER ULLAH KHAN

Counsel for Respondent No. 3 : THE PUBLIC PROSECUTOR

Note: The Appellant i Accused No.3 was directed to be released on bail by the [order]of the High Court dated 31-07 [-2012 ]in Crl.A.M.P.No. 1609 of 2012 in Crl.A.No. 735 of2012

Crl.Appeal Under Section 37a (2) of Cr.P.C. aggrieved by the Judgmentdated 2810612012 in S C No. 477 of 2010 on the file of the Court of the SpecialJudge for Economic Offences - cum- Vlll Additional lt/etropolitan Sessions Judge atHyderabad.

Between:

I\,{OHD.AN/lR, S/o l,4ohd.lbrahim Occ: Embroidery work Rl/o H.No.19-2-12713lB/3/A, Tadbun,Near Kalapather P.S., HyderabadNear Kalapather P.S., Hyderabad ,..APPELLANT/ Accused No. 3

AND

The State Of AP., through Public Prosecutor High court at Hyderabad

..RESPONDENT/ Complainant

Counsel.forthe Respondent: THE PUBLIC PROSECUTOR

THE COURT DELIVERED THE FOLLOWING COMMON JUDGMENT :

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THE HON.BLE DT. JUSTICE SHAMEEM AKTHERANDTHE HON'BLE SRI JUSTICE E.V,VENUGOPALRIPEAL Ns.5 985694 &735 of 2COMMON JUDGMENT:(Per Hon'ble Dr. Justice Shameem Akther)

Since the facts of the case and issue involved in all theseappeals are identical and since all these appeals arise out of thesame [judgment, ]all these appeals are taken up together and arebeing disposed of by this common [judgment.]

2, For convenience oF discussion, the parties are hereanafterreferred ton as arrayed before the trial Court.

3. Criminal Appeal Nos.599, 638,657,685 and 735 of 2072 arefiled by A1, 45, A6, A2 and A3 respectively and Criminal AppealNo.694 of 2072 is filed by the complainant, challenging thejudgment, dated 28.06.2012, passed in S.C.No.477 of 2010 by thelearned VIII Additional Metropolitan Sessions Judge at Hyderabad.Altogether, there are seven accused in this case. The Court below,vide impugned [judgment, ]dated 28.06.2012, while acquitting 41 toA7 of the oFfence under Section 1208 of IPC and Al, A4 and A7 ofthe offence under Section 396 of IPC, convicted A2, A3, A5, [46 ]ofthe offence under Section 396 of IPC and sentenced them [to]undergo rigorous imprisonment for a [period ]of [ten ][(10) ][years ][and]

l),.5r..l .\ li\'\.,l( .1. \.\,^.599'10l: and h{l.h to pay fine of Rs.1,000/- each, in cjefault, to [undergo ][simpie]imprisonn)ent for three months each; and convicted A1 of [the]oFfence under Section 412 of IPC and sentenced him to [undergo]rigorous imprisonment for a oeriod of five [(5) ][years ]and to [pay fine]of Rs.1,000/-, in default, to undergo simple imprisonment for threemonths.

4, We have heard the submissions of Sri C.Sharan Reddy,learned counsel for the appe lant/A1 in Crl.A.l\o.599 of 2102, SriH.Prahalad Reddy, learned c{;unsel, representing Mr. Mohd. AshrafAli, learned counsel for appellants/A5, A6 and 43 in Crl.A.Nos.63B,657 and 735 oi 2012, Sri [.r.Pradyumna ]Kurnar Reddy, learnedseni0r counsel, appearing for the appellant in Crl.A.No.694 of2012i complainant, Mr. Mohd. Muzaffer Ullah Khan, learned counselfor the appellani/A7 in Crl.A,lJo.694 of 2072, Sri C.Pratap Reddy,learned Pubrlic Prosecutor appearing for the respondent/State in allthese appeals, and perused the record.

5. The facts of the case, in brief, are that PW.1-S.M.Hyder Alilodged a complaint on 31,Ci.2007 at 05.30 AM with PW.17-K.Chakrapani, Inspector of Police, Bahadurpura Police Station, whowas camping at scene of offence, that on 31.t2.2007, at about04.05 AM, his daughters Sanobar (PW.2) and Sabreen (1W.4) weresleeping with their grandfather S.M.Yousuf Ali @ Nawab Sab Dr.s.\.., I li\ \..i( rl..\.\(,s.59t)/:01I rnd b:rcl, (hereinafter [called ][as ]["the ][deceased") ]in his bed room on the firstfloor. They [informed ][PW.1 ]that a five-member [gang ]of dacoitskilled the deceased and looted the cash from almirah.Immediately, PW.1 rushed to the bed room of the deceased andfound his father died and his hands and legs were tied to cot.Cash of Rs.6 lakhs from almirah and a cell phone of deceased withSIM No.[REDACTED] were missing. His daughters told that fivemembers were involved in the oFfence and out of them, one waswearing red T shirt and four others were wearing monkey caps.

6. On receipt of complaint, PW.17 forwarded the same to SHOBahadurpura, with an endorsement For registration of crime andaccordingly, PW.15-A.Sudarshan, Sub-Inspector oF Police,Bahadurpura Police Station, registered a case in Crime No.302 of2007 for the offence under Section 396 of IPC and issued Ex.P36-FIR and handed over the C.D. file to PW. 17, who was camping atthe sce ne oF offence.

7, Having taken over the investigation, PW.17 conducted thescene of offence [panchanama ]under Ex.P2, drawn rough [sketches]under Exs.P5 and P6 in the [presence ]of PW.4-S.M.Yazdani [Ali]Mistry and LW.14-Mohd. Ahmed. In the [presence ]of same [panch]witnesses, PW.17 also conducted Ex.P4-inquest [panchanama ]over .lDI,.SA. ,, & E\ \', J( rl..\.\or.59t)/2(ll2 end bxt.h the dead body of the deceas-.d, [prepared ]seizure report underEx.P3 under which, M.Os.15-one brown colour muffler, MO.16-twopieces of lemon colour dupaila oral parda, N4O.17-one lungi brow;rblack and while colour with kr"rrta, MO.1B-one mehorane brown andwhite colour, lt4O.19-one creant colour track pant and MO.20-onecream colour traak pant. were seized. Later, the dead body wassent for Post lvlortem Examination and PW.5-Dr.Abhjit Subedarconducted Post lvlortem Exanrination and issued Ex.P7-PME Report.Later, PW.17 issued a requisitlon through DCP South Zone tcr allcell networks to track the ce phone of the deceased with ilYE352?-730L207 3125 and to fur nish call details. On 25.01.2008, thecase 'was transferred to CCS for further investigation, where,LW,36-Veerappa, Inspector of Police, issued a fresh FIR in FIRNo.18 of 2008 f'or the offences under Section 396 of IPC andhanded over the nvestigatior, to PW.1B-I.T.V.S.Suryanarayana,

8. PW.1B secured the call details of the cell phone of thedeceased from the Nodal Officer of Idea Cellular and found that A2was using cell phone of the deceased with SIM [REDACTED]. Onenquiry, it came to light that the said SIM was standing in thename of Pw.g-tvlohd. Moosa, who, on enquiry, informed that hesold the cell phone with IME No.89910704200000148074 with SIMto 42. On 08.02.2008, the sleuths of police personnel deputed,

I)r.Sr.J&E\-\.J('rl. \.\os.599/l(ll2 aod brtch went to Savera [Hotel, Vattepally and ][apprehended ][A2, ][A3 ][and ][A6]and [produced ][them ]before [PW.1B, ]who interrogated the saidaccused and recorded their confessions in the [presence ]of PW.B-Ahmed Nizamuddin and lw.21-Ahmed Mohinuddin. Upon theinformation furnished by 46, the police apprehended 41, A3, A5and A7 at Macca hotel, Tadban, and they were also producedbefore PW.1B and their confession was also recorded in thepresence of PW.7-Mohd. Ali Khan and LW.21-Sri AhmedMohinuddin.

9, The following properties were recovered from A1 to A7,pursuant to their confession recorded under Exs.P10 to P16.

I)r.s \. .l d( [-\ \ . I( . \.\ *.5')r) l(lll xnd h,rtch Bajal Pulsur ( MO-30)!-x.? [1(, ]il!!s [qdqrssLql" ][p][ortion ][oF ][confessio ][n]l

10. Subsequently, 42 led the [police ]and [panch witnesses ]tc [his]house l'rom vvhere N1O,12-ReC i-o cur T shirt with [half ][sleeves ][was]recovered under Ex.P17-seizure report. A4 led the [police ][and]panch witnesses to his house from where MO.31-Bajaj ChetakScooter was recovered under Ex.P1B-seizure report. 43 [also ][lead]the police to his house at Ka apathar and at his instanace, thepolice recovered MO.4-one lakh rupees of 500 denomination,MO.32-hand gloves and MO.33-[4onke], Cap under Ex.P.19-seizurereport. Ex.P.14 is the relevant portion marked in the confessionof 43. A1 to A7 r,vere arrested and they were remanded to [judicial]custody.

11. The police obtaineci oolice custody of A1 to A7 from18.02.2008 to 24.02.2008. 42 to A4 and 46 made confessions inthe presence of PW.B and 1.W.24-Syed Ismail. On the basis ofconfession made by A2 and A4, a Nokia cell phone with IMANo,352273107720737275 of the deceased was seized from thepossession of P.W.11-Syed Asad Khan to whom 42 and A4 sold thecell phone, under seizure panchanama prepared in the presence ofPW.7 and LW.24. Further, on the basis of confession made by A3,Rs.18,000/- was recovered from the possession of LW.26-Mohd.

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Dr.S,\.., & L\ \..,(lrl-A.Nos.59r/201 2 and brrch(lrl-A.Nos.59r/201 2 and brrch Azam/brother [of ][A.3, ][in ][the ][presence ]of PW.B and 1W.24. On thebasis of [confession ]made by 42, a sum of Rs.22,000/- wasrecovered from his father (1,W.27-Syed Moinuddin) in thepresence of PW.B and LW.24. On the basis of confession made by46, a Nokia cell model 7610, which was purchased with ill-gottenamount, was seized in the presence of PW,B and LW.24. Thespecimen signatures of 42 and 44 and thumb impression of 44,which were obtained with the permission of the Court, were sent toForensic Science Laboratory to compare the same with thesignatures and thumb impression found on Ex.P24-PurchaseRegister maintained by PW.11-Syed Asad Khan, the owner of cellshop. .

L2. The final result of the investigation disclosed that A1 is thegrandson of deceased, who was living with the deceased. He wasaddicted to luxury life by hiring the cars and roaming with girls. A1and Al are Friends and studied in the same school at Lakidikapool.45 is the common friend of A1 and A7. A3 is the friend of A5. A2,44 and 46 are friends and A6 is a lorry driver working under A5.In the first week oF December, 2007, A5, at request of 41 and 47,introduced A3 to commit theft of amount From the almirah oF thedeceased. A1, A3, A5 and A7, having conspired together, made areccy at the house of deceased in order to [gain ]access to the room

of deceased to steal the amount [from ][the ][bed ][room ][of ][the]deceased. A5 and A3 again made second [reccy ]to [plan ][the]commission of offence by climbing on to the balcony over [the]compound wall from the back side of the house. Nevertheless, [A5]and A3 expressed their unrarillingness to burgle the [house ]of [the]deceased, instead they wanted to engage regular thieves [to]execute plan. To that end, they met 46, who, [in ]turn, [introduced]42 and 44, who were regular [property ]offenders.

13. Five days prior to the incident, A2, A4 and 46 went toBahadurpura and met A1, 43, A5 and 47 and went to the house ofthe deceased to conduct final reccyto execute the offence. At thisreccy, PW.3-Nadira Ameena Kauser Sultana/sister of PW.1 hadseen all the accused. On 30.12.2007, except A1, all other accusedgathered at Guntala Baba Dargha in furtherance of theirconspiracy with A1 and planned the offence. With such [plan, ]theywent to the house of the deceased and met A1, who, as [planned,]unbolted sliding aluminium door of balcony and kitchen window, tofacilitate the accused to gain access. Then, A1 and A7 waitedoutside, i.e., backside of the house and the other accused climbedin to the house. Thereafter, they gained entrance into the bedroom of the deceased. Before that, some of the accused havebolted the other rooms from outside and then, after entering into -

9I)I.SA..l .t l.\ \ . .l( d.,\.\0s.599/2012 and balch the bed room oF the deceased, A2 to 46 looted amount ofRs.6,00,000/- from the almirah of the deceased. When PW,2 andother minor woke up, they were threatened by the accused and assuch, they (PW.2 and other minor) were secretly watching with thelittle opened eyes. When the deceased tried to wake up, A2 wentto him and applied liquid whitener eraser and made the deceasedto become unconscious. The deceased died due to smotheringdone with muffler to neck. Thereafter, the accused removed theircaps and fled away.

L4, On 29.03.2008, Test Identification Parade was conducted bya learned Magistrate, wherein, PW.2 identified A2, 43, A5 and A6(did'not identify 44) and PW.3 identified A2, A3 and 47 (did notidentify A4, A5 and 46). After examination of the relevantwitnesses by collecting various documents and expert opinions,charge sheet was laid before the learned XII Additional ChiefMetropolitan Magistrate, Hyderabad. The Magistrate has takencognizance of the case in P.R.C.No.4 of 2008 and committed thecase to the Metropolitan [Sessions ]Judge,,Hyderabad, under Section209 Cr.P.C., since the case is exclusively triable by the Court ofSession. On committal, the Metropolltan Sessions Judge,Hyderabad, registered the case as S.C.No.477 of 2070 and madeover to the Court below for disposal, in accordance with law. On appearance oF A1 to 47, the Court below [framed ][charqes against]them for the oifences [punishable ]under Sections 396 [& ][120B of]IPC, read over the same to them, for which, they [pleaded ][nct]gualty and claimed to be tried

15. To prove the guilt of A1 to 47, the [prosecution ]has examinedPWs.1 to 18 and got nlarked Exs.Pl to P41 atrd MOs.l to 34. Onbehalf of the accused, no oral evidence has been adduced andExs.D1 to D3 r,vere marked. When A1 to A7 were cortfronted withthe incriminating material appearing against them and wereexamined under Section 313 Cr.P.C, they denied the same.

16. The trial Court, having considered the submissions made andthe evidence available on record, vlde impugned [judgment, ]datecj28.12.2012, passed in S.C.No.477 of 2010, while acquitting A1 to47 of the offence under Section 1208 of IPC and A1, A4 and A7 ofthe offence under Section 396 of IPC, convicted A2, A3, A5, A6 ofthe oFfence under Section 396 of IPC and convicted A1 of theoffence under Section 412 of IPC and sentenced them as statedsupra. Aggrieved by the same, A1, A2, A3, A5 and A6 filedCr|.A.Nos.599,685,735,638 and 657 of 2012 respectivelychallenging the conviction and sentence recorded against them;and the complainant filed Crl.A.No.694 of 2012 challenging theacquittal recorded in favour of A4 and A7.

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17, Learned counsel for the appellant in Crl.A.No.599 of 2O72/ALwould contend that the conviction and sentence recorded against41 is contrary to law, weight of evidence and probabilities of thecase. A1 was convicted and sentenced for the offence underSection 412 of IPC, without there being any substantial evidenceon record. The Court below ought not have convicted A1 of theoffence under Section 472 of IPC without there being any cogentand convincing evidence on record. PW.7 and PW.18 are highlyinterested witnesses and it is not safe to act upon their testimony.In fact, no currency notes were seized from the possession of A1.The recovery of cash of Rs.1 lakh pursuant to the allegedconiession of A1 as mentioned in Ex.P13 is planted for the purposeof this case. Even there is no identification oF the [property, ]whichis allegedly robbed. Furthermore, there is no evidence to showthat the deceased or PW.1 had withdrawn any amount fromStandard Chartered Bank and kept the same in the almirah in theroom where the deceased slept. A1 is the grandson of thedecea.sed. .He has immense love and affection towards thedeceased. He has no role whatsoever in the commission of dacoitycoupled with murder and ultimately [prayed ]to set aside theconviction and sentence [recorded against ][A1 ][for ][the ][offence under]Section 4t2 of lPC.

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18. Learned counsel for the appellant in Crl.A.Nos.685 [of]2012/A2 would contend that the Court below ought not [have]placed reliance over the testimony of PWs.2 and 3, who are highlyinterested witnesses and it is not safe to act upon their testimony.PW.3 was suffering from poor eyesight. Hence she identifying 42is doubtful. Further, PW.2 is a child witness who was aged 7 [years]as on the date of the alleged offence and it is not safe to rely uporlher testimony in convictinq the 42 and the other accused. Further,as per FIR, the offenders were wearing monkey caps. There is nomention anywhere in the FIR that their faces were visible.Moreover, there is no eviderrce of presence of light in the house atthe scene of offence, i.e,, the room where the alleged dacoitycoupied with murder was committed. Further, LW.4-Nadira SabaNoor Sultana, another sister of PW.1, who was allegedly sleeplngin the room, where the deceased was sleeping, was not examinedfor the best reasons known to the prosecution. Further, there isno evidence to show that five persons have indulged incommission of the alleged offence. The essential ingredients ofoffence under Section 396 of IPC have not been proved against theappellant/A2. Few other contentions which were raised on behalfof A1 were also raised by the learned counsel for the appellant/A2with regard to withdrawal of money from the bank and keeping in

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tll)r.s{.J&L\\.J(lrl.{.\0s.59r.)/2tll : and bal(h the almirah etc. [No ][credibility ][can ]be attached [to ][the ][identification]of the accused by PWs.2 and 3. Further, recovery of Rs.50,000/-(MO.3) and the SIM Card (MO.26) at the instance of theappellant/A2 is planted for the purpose of investigation of thecase. There is no cogent and convincing evidence on record whichestablish that the appellant/A2 is guilty of the offence underSection 396 of IPC and ultimately prayed to set aside theconviction and sentence recorded against the appellant/A2 of theoffence under Section 396 of IPC.

19. Learned counsel for the appellants in Crl.A.Nos.735, 638 and657 of 2072/A3, 45 and A6 respectively, have also raised similarcontentions which were raised by the learned counsel for A2. Itwas also vehemently contended that PW.2 and LW.4 were notsleeping in the room where the deceased was sleeping inasmuchas there is no mention of [presence ]of any bed or bed sheets todemonstrate that PW.2 and LW.4 were sleeping in the room wherethe deceased was sleeping. There is also no mention of [presence]of light.in the room at: the time of commission of offence. Insupport of his contentions, appellants in Crl.A.Nos.735, 638 and657 ot 2012/A3, A5 and 46 respectively had relied on the followingdeiiSions.

1. state of Uttar Pradesh Vs. wasif Haider and othersl

2. State of M.P. Vs. Ghudan2

3. Bala Pandurang Vs. State of Maharashtra3

4. State of Maharashtra Vs. Syed Umar Sayed Abbasa

5. Bashamoni Saidulu Vs. State of A.P,5

6. Siddanki Ram Reddy Vs. State ofAndhra Pradesh6

7. vadivelu Thevar Vs. State of MadrasT

8, Arbind Singh Vs. State of Bihars

9. State of Ralasthan Vs. Talevar and anothere

20. Learned senior counsel apS.iearing on behalf of the appellantin Crl.A.No.694 of 2OI2/complainant would contend that the Courtbelow committed [grave ]erroi- in recording acquitral in favour of A4and 47 in this r:ase. There is clear evidence of PW.7 to show thatan amount of Rs.44,000/- was recovered at the instance of A7.Further, 44 was identified by PW.2 in the Court. The Court belowerred in holding that except recovery of amount, there is noincriminating evidence against 44 which connects him with thesubject death. Further, pursuant to the confession made by A4and A7, MO.11-cell phone of the deceased was recovered.Further, as per Section 396 of IPC, if .any one of five or morepersons, who are conjointly committing dacoity, commits murderin so committing dacoity, each one of those persons shall bepunished. The circumstances of the, gase; amply prove theparticipation of 44 and 47 in the subject offence and hence, the

! '(20t9) (200.]) r? [r ][s(( ]sc( [7or]{8s' [2ooo ][crt.L.J.69.]]'(20r6),r I 20t8 (r ) Ar,r [scc ][rjs](cRl.) tlr (t)u)'(2olo) [7 ][scc ][6e?]' [1957 ][cRr.r,.J. ][tooo]3 t994 cRr.r-.J. r22?'(2or [r) ][r ][r ][scc ][666]

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l)r.SA.J&la\\..1Crl. \.\r,s.599/:{ll2 a d batrh Court below [is ][not ][justified ]in recording acquittal in favour of A4and A7. A4 and 47 are also liable for punishment for the oFfenceunder Section 396 of IPC and ultimately prayed to set aside theacquittal recorded in favour of 44 and A7 and convict and sentencethem for the offence under Section 396 of IPC. In support of hiscontentions, learned senior counsel had placed reliance on thedecision oF the Hon'ble Apex Court in Parvinder Kansa! Vs. Stateof NCT of Delhi and anotherro.

21, Here, it is apt to state that the State had not preferred anyappeal challenging the acquittal recorded in favour of A4 and A7 bythe Cou rt below.

22. Learned Public Prosecutor appearing for therespondent/State in all these appeals would contend that thefindings recorded by the Court below are based on evidence andsound reasoning. PW.2 was sleeping in the room where thedeceased was sleeping at the time oF commission of allegedwith murder. The sketch dacoity coupled map [clearly]demonstrates the same. PW.2 is a direct witneis to the allegedincident. She clearly deposed in her evidence that she saw thewhole incident with half-opened eyes in view of the threat given toher'byone oF the culprits. PW.2 clearly deposed [in her ]evidence"'2020 [s( ][( ][onrin. ][s(:6E5]

l()( rl. \.\os.599/201I t)r.S,\.., & l:\ {rd \.Jb:rt(h that out oF five [persons, ]four [persons ]were wearing monkey capsand the other 1'at man was wearing red T shirt and was [pressing]the mouth and nose of the deceased. The evidence of PW.2 issustainable in the eye cf lavv, since she has given descriptiveparticulars of the persons rvho committed the subject offence andalso identified iour culprits. Further, no suggestion was put toPW.2 by the defence counsel rarith regard to the presence of light inthe room where the subject offence was comrnitted. There are nolaches on the part oF the lnvestigating officer in conductinginvestigation in this case. The confession made by the accusedleading to recovery of moneT robbed by them and other materialobjects clearly establish the commission of the subject offence byaccused and ultimately prayed to confirm the impugned judgment,dated 28.06.2012, [passed ]by tfre trial Court. In support of hiscontentions, learned Public Prosecutor had placed reliance on thefollowing decisio ns.

1. Mishrilal and others Vs. State of M,P.11

2. P.Ramesh Vs. State rep. by Inspector of Policel2

3. Raja Vs. State by Inspector of Policel3

4. Alavala Nagi Reddy Vs. State of A.P.!a

23. In view oF the above submissions of the learned counsel, the points that arise for determination ln these appeals are as follows:

" [2oo5 ][AIR ][scw ][2770]'t [120 ][t9; ][20 ][scc ][503]'t [Atn ][2o2o ][sc z:q]'o [MANUlt..tYlo ][t4z:o ][t8]

7. Whether there is substantial unimpeachable evidence onrecord to convict Al of the offence under Section 412 ofIPC?record to convict Al of the offence under Section 412 ofIPC?2. Whether there is substantial unimpeachable evidence onrecord to convict 42, A3, AS and AG of the offence underSection 396 of IPC?record to convict 42, A3, AS and AG of the offence underSection 396 of IPC?

3. Whether the conviction and sentence recorded against 42,43, AS and 46 by the Court below of the offence underSection 396 of IPC liable to be set aside?43, AS and 46 by the Court below of the offence underSection 396 of IPC liable to be set aside?

4. Whether the Court below is justified in recording acquittalin favour of 44 and A7?in favour of 44 and A7?

5. To what result?

POINTS:-

24, The Court below placed reliance heavily on the testimony oFPW.7 which reveals that pursuant to the confession of 41, thepolice recovered MO.1-Rs.1 lakh (in two bundles of Rs.500/-denomination each) and MO.25-cell phone, However, PW.1B-invstigating oFFicer conceded that immediately on search, nothingwas recovered. Firstly, there is no identification of currency notesalleged to have been recovered [pursuant ]to the confession madeby A1. The Court below, having dealt with the offence ofconspiracy under Section 1208 of IPC, was pleased to acquit allthe accused of the said The, Court below did not place:offence: reliance over the evidence of PW.3 on the ground that she washaving poor eyesight. Furthermore, the evidence of PW.3 is notcogent and convincing to demonstrate that she saw all the accusedfive days prior to the subject death of the deceased. She could not

l)r.s \. J .t U\'\'. J(.r1.{.\or.Sr)()/2(ll I nd hat(lr lll identify all the accused at the time of conduct of Test IdentificationParade by the Magistrate, so also in her evidence before [the ]Court.Furtherrnore, when she was called upon to identify certain accusedin the Court, she admitted that she was having eye sight defect.The Court below, assigning reasons, did not [place ]reliance on thetestimony of PW.3. Here, it is appropriate to refer to the decisionof the Hon'ble Bombay lligh Court in Bala Pandurang Kesarkarand another Vs. State of Maharashtrais, wherein, in No.12 of the said [judgment, ]it was held as follows:

"It is true that in cases where the recovery has been immediatelyeffected, tilis court can dra',n/n an inference under Section 114(a)of the Indian Evidence AcL and convict the accused for thesubstantive offence of theft or robbery or dacoity or dacoity withmurder etc., as the case may be. But in the instant case, therecovery is not immediate. It was effected on 04.10.1991, i.e.,six days after the incident. In view of this belated recovery, theoffence of robbery would not be established against this appellantand only one under Section 411 of IPC would be made out againsthim.effected, tilis court can dra',n/n an inference under Section 114(a)of the Indian Evidence AcL and convict the accused for thesubstantive offence of theft or robbery or dacoity or dacoity withmurder etc., as the case may be. But in the instant case, therecovery is not immediate. It was effected on 04.10.1991, i.e.,six days after the incident. In view of this belated recovery, theoffence of robbery would not be established against this appellantand only one under Section 411 of IPC would be made out againsthim.

25. In the instant case, there is no cogent and convincingevidence to connect A1 with Lhe alleged offence. Furthermore, itcannot be said that the amount said to have been recoveredpursuant to the confession made 41 is the part of the amountderived by way of committing dacoity coupled with murder. Thereis a long gap in between the commission of the alleged dacoity andrecovery of amount pursuant to the alleged confession made byA1. Further, the amount recovered pursuant to the alleged'' [2ooo ][cri.L.J.69J]

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confession made by A1 is only Rs.1lakh, which is a small amount.The circumstances projected by the prosecution against A1, at themost, leads to a suspicion with regard to the involvement of 41 inthe subject offence. It is settled law that suspicion, howeverstrong it may be, cannot take place of legal proof. In the absenceoF cogent, convincing and unimpeachable evidence to demonstratethat A1 had participated in the commission of subject offence, it isnot safe to convict him even for the offence under Section 4t2 ofIPC. The prosecution failed to prove the guilt of A1 of the offenceunder Section 472 of IPC and the Court below is not justified inconvicting him of the said offence. In our considered opinion, A1is entitled For acquittal for the ofFence under Section 4t2 of IPC.

26. The Court below, while placing reliance over the oraltestimony of PW.2 and her identification of accused in the courseof trial of the case and also [placing ]reliance over the Testidentification Parade conducted by the Judicial Magistrate of FirstClass and confessions [leading ]to [recovery ]of amounts and otherincriminating material [recovered ][n the [presence ]of PWs.7 and B,was [pleased ]to convict A2, A3, A5 and 46 of the oFfence underSection 396 of IPC. For the applicability of Section 396 of IPC, theprosecution should prove that five or more persons, who areconjointly committing dacoity, commits murder in so [committing]

dacoity. This Court was [pleased ]to record acquittal [in ][farrour ][of ][A1]for the offence under Section 412 of IPC. The Court below, [holding]that PW.3 had sight defect and as such, she identifying [tlre]accused in the house alonq with A.1, doubted the [same,]completely discarded the evldence of PW.3. So, the evidence ofPW.3 is not at all helpful to the prosecution and the complainant toestablish the commission of the subject offence. There remainsthe evidence of PW.2, who is said to be an eye witnesses to thesubject incident. There is one more sister (LW.4) who is said to besleeping in the room at the time of comnrission of alleged offence.She was not examined by the [prosecution ]for the reasons bestknown to them. Ex.P2 is the scene of offence panchanama. It isnowhere mentioned in Ex. P2 that there was a burning lamp at thescene of offence at the time of commission of the subject offence.In Ex.Pl-complaint also, there is no mention of burning lamp oravailability of light with which PW.2 and her sister (LW.4)witnessed the commission of dacoity coupled with murder.Further, in Ex.P1-complaint, there is specific mention that fivepersons indulged in commission of dacoity coupled with murderand one of them was fat and wearing red T shirt and other fourpersons are having monkey caps. There is no specific mention -/

lrDr.S,\..1 &f\\.J(lrl..\.\os.S99/1012 and balrh therein that the faces of the assailants were visible and identifiableby PW.2 and her sister (1W.4).

27. Further, PW.2 is a child wltness who was aged 7 years as onthe date of the alleged offence. Law is well settled that theevidence of chid witness must be evaluated carefully, as a childcan be swayed away by what others tell him/her and as he/she isan easy prey to tutoring. Wisdom requires that evidence of a childwitness must find adequate corroboration before it is relied upon.True it is, there is no law that the evidence of a child witnesscannot be acted, but however, greater circumspection is requiredfor evaluating the evidence of a child witness, because a child issusceptible of being tutored. However, the law that the evidenceof a child witness requires adequate corroboration before it can beacted upon is more a matter of [practical ]wisdom than of law. Inthe instant case, PW.2, who was a child witness aged about 7years as on the date of commission of the subject offence,identified A2, A3, A5 and A6 in the identification [parade ]as culpritswho participated in the offence but could not identify A4 and A7,whereas, in the Court, she identified A2 to A6. [Even ]in theevidence oF PW.2, she did not mention the [presence ]of [light ][in ][the]room and witnessing the assailants with the [help ]of any [burning]lamp. As per Ex.P1-complaint, the [subject dacoity coupled ][with]

rnLrrder vvas committed at 04:05 Alvl on 31.12.2007. At that time,there is no possibility of swatching on the lights. F,lrther, irr Ex.P1-complairrt, there is no nrention that the assailants removedmonl<ey caps and left the scene of offence. It has come up for thefirst time in the evidence 01'PV/.2 in the Court. Though P\ /.2 hadstated in her evidence that out of the five [persons, ]four werewearing monkey caps and their faces were visible whereas the fiftyman was fat and wearing red T Shirt, ho,arever, in her cross-examination, she stated that all the culprits, at the time ofincident, were wearing similar nronkey cap9. PW.2, in her cross-exanrination, stated as follows "It is true that after the ciate of incident and the arrest ofthe culprits, the culprits and other events showed theElectronic Media and published in the print media. It isincorrect to say that prior to the identification parade, I wastaken to CCS, Hyderabad, and where the police showed methe ctrlprits and also informed me abcut their physicaifeatures and also the pclice furnished me the photographsof culprits. PW.3 also came to the Central Prison,Chanchalguda, Hyderabad, on the day I visited the prison."the culprits, the culprits and other events showed theElectronic Media and published in the print media. It isincorrect to say that prior to the identification parade, I wastaken to CCS, Hyderabad, and where the police showed methe ctrlprits and also informed me abcut their physicaifeatures and also the pclice furnished me the photographsof culprits. PW.3 also came to the Central Prison,Chanchalguda, Hyderabad, on the day I visited the prison."

PW. 17-Investigating Officer, in his cross-examination, stated as follows:

"It is true that P.W.1 specifically did not state beforeme that his daughter P.W.2 told him that among thefive persons one person with the help of mufflerpressing on the face of the deceased, two persons tiedthe hands and the legs of deceased and other twopersons opened all the Almirahs. P.W.2 did not statebefore me that she can identify M.O.12 to M.O.14.P.W.2 did not state before me that one among the fivewearing T-shirt threatened her and her sister. P.W.2

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Dr.S.\..1 & [\'l', J( r1..l.\os.599/2012 ard balch

did not state before me that one among the fivepersons was pressing the Nose and Mouth of thedeceased with hands. P.W.2 did not state before methat the carry bag was in the block colour and samewas available in the Almirah. P.W,2 did nto statebefore me that she and another noticed the bed roomof closed by bolting outside and the same was openedby them. P.W.2 did nto state before me that thedeceased was sleeping on the cot. P.W.2 did not statebefore me that she and another woke up on hearingthe sound of Almirah."

The evidence of PW.2 reveals that there are iot oF improvementsSo rnuch of improved version has come up in her examinationbefore the Court.So rnuch of improved version has come up in her examinationbefore the Court.

28. In view of these circumstances, the presence of burninglamp in the room where the subject offence was committed andthe assailants removing the monkey caps and Ieaving the scene ofoffence, is doubtful. Further, PWs.1 and 3 have admitted in theirevidence about publication of the arrest of the accused and theirphotographs in print and electronic media. Such publication wasmuch before conducting identification parade. Therefore, therewas ample opportunity to the identifying witness to note down thephysical features of suspects on account of publication of theirarrest and the [photographs ]in [print ]and electronic media. Further,since there was inordinate time [gap ]between the commission ofthe offence and the recovery of [allegedly ]stolen amount from theaccused, it is difficult to sustain that the recovered currency notes are part oF currency notes that were kept in the aimirah in theroom of the deceased. Furthermore, the police recovered cash oFRs.22,000/- from the father of A2 (L.W.27) in the [presence ]ofP.W.8 and 1.W.24, on 19.02.2008. The subject incident occurredon 37.12.2007. Thus, there is a long time gap between thecommission of offence and the alleged recovery/ which makes theparticipation of A2 in the sLrbjecl offence doubtful. In view of theimprcvements made by PW.2 and as there was [possibility ]of herseeing the photographs of the accused in print and electronicrnedia and there is possibiliiy oF she being tutored in view of hertender age and also incapable of understanding the consequencesof her deposition before the Court as she is susceptible of beingtutored, it is unsafe to place reliance over her testimony.

29. While committing dacoity, one of the accused, i.e., A2 said tohave taken away the cell phone belonging to the deceased. Cellphone was not recovered from 42. There is no record to show thatthe cell phone in question belongs to the deceased. There is lot oftime gap in between the confession made by A2 and recovery ofcell phone belonging to the deceased. Therefore, recovery of cellphone cannot be tagged to 42. The evidence placed on record, atthe most, leads to suspicion against A2, A3, A5 and 46 that they,while conjointly committing dacoity, committed murder of the deceased In so committing dacoity. It is settled law that suspicion,however strong it may be, cannot take place of legal proof. In theabsence of any substantial evidence against A2, A3, A5 and A6,the Court below committed error in convicting and sentencingthem of the offence under Section 396 of IPC. In view of theevidence placed on record, we are of the considered opinion that itis a fit case to acquit A2, 43, A5 and 46 of the offence underSection 396 of IPC by extending benefit of doubt.

30. Further, A4 and A7 were acquitted by the Court below forthe offences charged against them and challenging the same, thecomplainant filed Crl.A.No.694 of 201,2. As indicated above, noappeal was preferred by the State challenging the acquittal of A4and A7. The Court below held that though PW.7 supportedrecovery of Rs.44,000/- from A7, he was not identified by PW.2and that though PW.7 supported recovery of money from 44 andthough he was identified by PW.2 in the Court hali, he was notidentified by PW.2 in the Identification Parade and that exceptrecovery of amount, no otller incriminating evidence was foundagainst A4 and A7 and in view of other reasons assigned by theCourt below as there was no cogent and convincing evidenceagainst A4 and A7 to [prove ]that they have participated in thecommission of offence and the money recovered is [part ]of criminal case property, this Court is in agreement with the [findings]recorded by the Court below in acquitting A4 and 47, [which ][are]based on sound reasoning. There are no circumstances [to]interfere with the same. Accordingly, Crl.A.No.694 of 2012 [is]devoid of merit and is liable to be dismissed.

31. We have gone through the decisions relied by the [learned]senior counsel appearing on behalf of the appellant in Crl.A.No.694of 2072/complainant and the learned Public Prosecutor appearingfor the respondent/State. In Mishrilal's case ( 11 supra) relied bythe learned Public Prosecutor, it was contended that the witnessestherein could not have identified the assailants due to [paucity ]oflight. The Apex Court held that the incident had taken [place ]in theevening and the deceased and the witnesses were grazing cattleand there would not have been much darkness. But in the instantcase the incident took place in the early morning at about 04:05AM and hence, it is natural that there would be no light.Moreover, there is no evidence on record that there was burninglamp in the room where the deceased was sleeping. Hence, thecited decision is not helpful to the prosecution. In P.Ramesh'scase (12 supra) relied by the learned Public Prosecutor, theHon'ble Apex Court, while discussing the law relating to childwitness, held that the iudge is at liberty to test the capacity of the

child witness and no [precise ]rule can be laid down regarding thedegree and intelligence and knowledge which wili render the childa competent witness. There cannot be any dispute with regard tothe preposition of law laid down in the aforementioned decision.But in the instant case, even if PW.2, who is a child aged about 7years as on the date of the commission of offence, is considered asa competent witness, it is not safe to act upon her testimony asthere are several omissions and improvements in her evidence,more particularly in the absence of any other attendingcircumstances supporting her evidence. Hence, the said decisionis not helpful to the prosecution. In Raja's case (13 supra) reliedby the learned Public Prosecutor, the Hon'ble Apex Court held thatthe injured witnesses therein had adequate and [proper ]opportunityto observe the features of each oF the accused and that what isimportant is the identiFication in Court and if such identification isotherwise found by the Court to be truthful and reliable, suchsubstantive evidence can be relied upon by the Court. Werespectfully agree with the [preposition ]of law laid down by theHon'ble Apex Court. But in the instant case/ in the IdentiFicationParade conducted by the Magistrate, PW.2 did not identify A4 andPW.3 did not identiFy A4, A5 and 46. Further, it is borne by recordthat before identification of the [accused ]in the Court, [PW.2 ][and]

PW.3 had the opportunity to note down their [physical ]features, [as]they were shown in [print ]and electronic media. Further, [PW.3 was]suffering from poor eyesight. Under these circumstances, [no]much credibility can be given to the identification of the accusedby PWs.2 and 3 in the Court. Hence, the cited decision is [not]helpful to the prosecution. In Parvinder Kansal's case [(10 ]supra)relied by the learned counsel for the appellant inCrl.A.No.69412072/ complainant, the Hon'ble Apex Court held thatthe victlm's right of appeal is restricted to three eventualities,nanrely, acquittal of ihe accused, conviction of the accused forlesser offence, or for imposing inadequate compensation and tlratwhile the victim is given opportunity to prefer appeal in the eventof imposing inadequate compensation, but at the same time, thereis no provision for appeal by the victim for questioning the order ofsentence as inadequate, whereas Section 377 Cr.P.C. gives thepower to the State Government to prefei'appeal for enhancementof sentence. There cannot be any dispute with regard to the saidpreposition of law. However, it is settled law that each case has tobe decided on its own merits

32. In the result, Criminal Appeal No.599 of 2OL2 filed by A1 andCriminal Appeal Nos.63B, 657, 685 and 735 of 2012 filed by A5,46, A2 and 43 respectively, are allowed by setting aside the impugned [judgment, ]dated 28.06.2012, passed in S.C.No.477 of2070 by the rearned speciar Judge for Economic offences_cum_viIIAdditional Metropolitan Sessions Judge at Hyderabad.Consequently, 41 is acquitted of the offence under Section 472 ofIPC and A2, A3, 45 and 46 are acquitted of the offence underSection 396 of IpC. Criminal Appeal No.694 of 20t2 filed by thecomplainant is dismissed, confirming the impugned judgment,dated 28.06.2012, insofar as 44 and A7 are concerned. Fineamount, if any, paid by Ar, A2, 43, A5 and 46 shail be refunded tothem and their bail bonds shall stand cancelled.

Miscellaneous petitions, if any, pending in all these appeals.shall. stand closed.Sd/.B.S.CHIRANJEEVIJOINT REGISTAR//TRUE COPY//SECTIONFICERSd/.B.S.CHIRANJEEVIJOINT REGISTAR//TRUE COPY//SECTIONFICER

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HIGH COURT

DATED:3011212022

, [sTAr€]+'r'r [1 ]lnt [?SB]o.*,/]I*a:,'[z']i;; CON{MON JTJDG\,IEN]

cRIMINAL APPEAL Nos : 599, 638 , 657, 685, 694 & 735oF 2012

ALLOWING THE, CRL.APPEAL NOS 599 ,638, 657,685, AND 735 0F 2012AND DISMTSSING THE CRL.APPEAL NO. 694 OF20t2

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