JUDGMENT
P.S. Narayana, J.
1. Heard Sri Madhusudhana Rao, Counsel representing Sri V.Sree Ranga Rao, Counsel for appellant-A3 and Sri Mohd. Usman Saheed, Additional Public Prosecutor.
2. The appellant-A3 preferred the present criminal appeal against the conviction and sentence dated 17.07.1998, made in C.C.No.1 of 1996 on the file of the II Additional sessions Judge, Warangal.
3. A1 to A3 in Crime No.8 of 1996 of Ghanpur (W) Police Station were charged with an offence under Section 392 IPC and at the stage of trial A2 died, and hence, the case against A2 was abated. A1 and A3 were tried and on the strength of the evidence of P.Ws 1 to 5, Exs.P1 to P7 and the material objects, the learned Judge found A1 and A3 guilty of an offence under Section 412 IPC and sentenced them to undergo Rigorous Imprisonment for a period of two years each, and to pay a fine of Rs.1,000/- each, in default, to undergo Simple Imprisonment for a period of three months each. Aggrieved by the same, the present appeal had been preferred.
4. Sri Madhusudhana Rao, the learned Counsel would contend that absolutely there is no identification of the accused and the recovery is said to have been made after about one month, M.O.1 is the gold ring and M.O.2 is Titan Wrist Watch and these are available in the open market, and the evidence of P.W.4 in relation to the recovery of M.Os 1 to 8 from the possession of A1 to A3, definitely cannot be believed, after sufficient lapse of time, and hence, A3 is entitled for an acquittal.
5. Per contra, the learned Additional Public Prosecutor would submit that in a case of this nature, where three unknown culprits covering their faces with mufflers, stopped P.W.1 and robbed the net cash, titan wrist watch and gold ring etc., the question of identification would not be possible, but however, the properties were identified, and especially, M.O2-Titan wrist watch had been specifically identified and the same was not denied even in the cross-examination, and hence, the same should be taken as it had not been disputed by the accused. The learned Additional Public Prosecutor also had drawn the attention of this Court to the evidence of P.W.4-Village Administrative Officer and this evidence relating to recovery is clear and convincing, and hence, the conviction recorded and the sentence imposed, both are well justified in the facts and circumstances of the case.
6. As already referred to supra, A2 died during the trial and consequently, case against A2 stood abated. Originally, the charge sheet was under Section 392 IPC. But however, the conviction was recorded and the sentence had been imposed under Section 412 IPC.
7.The case of the prosecution is that on 25.01.1996 Vadiyala Somaiah-P.W.1 went to Hanamakonda on his personal work on his scooter bearing No.AP 36-C 4040. After completing the work, when he was returning to his house on scooter, at about 8.00 p.m. he reached between Viswanadhagudem and Ippagudem road situate at the outskirts of Viswanadhagudem, three unknown culprits covered their faces with mufflers, stopped him, beat him with hands and robbed net cash of Rs. 800/-, titan wrist watch and one gold ring containing Venkateswara Bomma and scooter all worth Rs.22,800/-, and while leaving the scene of offence, the culprits tied the hands of Somaiah with his banian and threatened him not to report the same to any one and he was thrown by the side of the culprits, and the culprits have taken away the scooter and Somaiah stayed at the scene for the entire night until the hands were made free by Vadiyala Saraswathi, and on the next day he lodged complaint. On receipt of the above complaint, the Sub-Inspector of Police, Ghanpur (W), registered the same as a case in Crime No. 8 of 1996 under Section 392 IPC and took up investigation. During the course of investigation he examined and recorded the statements of Somaiah and Saraswathi, and thereafter the Circle Inspector of Police verified the investigation done by Sub-Inspector of Police and on information he traced out the abandoned scooter by the side of Srinath Function Hall, Balasamudram Hanamkonda, and recovered the same under a cover of panchanama in the presence of panchas. On 29.02.1996 at 10.00 P.M. he arrested A1 to A3 near petrol pump Ghanpur (W) and interrogated them. On interrogation A1 to A3 voluntarily confessed their participation in the commission of offence. He recorded the confession of A1 to A3 and Rs.600/- was seized from the prosecution of A1, titan wrist watch and gold ring from the possession of A3, and that A2 confessed that the stolen property i.e., scooter was abondoned near Sreenath Function Hall, Balasamudram, Hanamakonda and the same were
seized under separate panchanamas in the presence of panchas. Thereafter he remanded A1 to A3 for judicial custody.
8. The learned I Additional Munsif Magistrate, Warangal had transmitted the entire record to the learned II Additional Sessions Judge, Warangal, in view of the re-designation of this Court as Special Court for Dacoity Cases, vide G.O.Rt.No. 479, dated 09.08.1996 of Department of Law.
9. P.W.1-defacto-complainant deposed that on 25.01.1996, he came to Hanamkonda on his scooter and in return journey at about 8.00 p.m., when he reached near Vishwanadhagudem and crossed the said village, three unknown persons having masks across their faces way-laid him and robbed Rs.800/- in cash, one titan wrist watch and a gold ring with Venkateshwaraswamy mark and thereafter, the culprits seized his scooter and escaped from that place on his scooter. He deposed that on 26.01.1996 at 5.00 p.m., he gave Ex-P1 report to the police. He deposed that he can identify the property belonging to him, if shown to him, and P.W.1 identified M.O1-gold ring and M.O2-titan wrist watch belonging to him, which were forcibly taken away by the culprits on the night of 25.01.1996. He further deposed that the scooter also was recovered by the police and the same was given interim custody to him after obtaining bond from him. This evidence of P.W.1 relating to the identification of the material objects had not been seriously challenged by way of cross-examination by the accused.
10.P.W.2 is the witness for seizure of scooter bearing No.AP36-C-4040. He deposed that he knows P.W1 and that on 25.01.1996, some unknown culprits way-laid P.W.1 and had taken some valuables and also scooter, and subsequently, the scooter of P.W.1 was found near Srenatha Function palace at Balasamudram and it was detected by the police and the same was taken by the police under the cover of Ex.P2-panchanama in his presence and one Yadagiri. This evidence also was not seriously challenged by the accused.
11. P.W.3-the then Sub-Inspector of Police, Ghanpur (W) Police Station. He deposed that on 26.01.1996 at about 5.00 p.m., he received the written report-Ex.P1 from P.W.1, and registered the same as a case in Crime No.8 of 1996 under Section 392 IPC and issued First Information Report to all the concerned Officers and he had taken up the investigation, visited the scene of offence and examined P.W.1 and his wife, and recorded their statements and prepared panchanama of the scene of offence in the presence of P.W.2 and another. Ex.P.4 is the rough sketch of the scene of offence. This witness also was not seriously cross-examined by the accused.
12. P.W.4 is a crucial witness, and he is the Village Administrative Officer of Ghanpur. He deposed that on 29.02.1996 at about 10.00 p.m. police called him and another panch Satyanarayana, while they were standing at Ghanpur Bus stand, and at that time, four persons were in the custody of police, including A1 to A3 in the case, and as required by the police, this witness and another panch witness questioned A1, and A1 confessed that he along with A2 and A3 committed robbery at Vishwanadhagudem and Ippagudem road and they robbed one gold ring and one watch and also cash of Rs.800/- and A1 further confessed that they have left the scooter near Hanamkonda Balasamudram and A1 took an amount of Rs.800/- towards his share, and he has spent Rs.200/- and he has shown the remaining balance of Rs.600/-. The police recovered Rs. 600/-(M.Os 3 to 8) from the possession of A1 under the cover of confessional and recovery panchanama-Ex.P5. This witness also deposed that similarly, P.W.4 and another panch witness questioned A2, and A2 confessed that A2 along with A1 and A3 committed several robberies including this robbery and the police recorded the said statement. Similarly, they questioned A3, and A3 confessed that he along with A1 and A2 had committed this offence and had shown one gold ring and titan wrist watch. He deposed that the police recorded the confession of A3 and recovered the gold ring and titan wrist watch under the cover of confessional and recovery panchanama-Ex.P7. M.O1-gold ring and M.O2-Titan wrist watch. P.W.4 deposed that himself and yet another panch witness had signed Ex.P.7. No doubt, this witness was cross-examined at length. But however, relating to the identity of the property and the material objects belonging to P.W.1, nothing serious had been elicited in the cross-examination of P.W.4. It is pertinent to note that P.W.1 also was not cross-examined on this aspect.
13. P.W.5-Sub-Inspector of Police deposed about his taking up investigation in the above crime and verification of the investigation and tracing the stolen scooter, and apprehending A1 to A3 near Petrol bunk, and securing the presence of P.W.4 and another panch witness and the confession made by the accused and the recovery of material objects and also recovery of the scooter.
14. On the strength of the evidence of P.W.4, and also the recovery of material objects, the learned Judge believed the version of the prosecution, and had convicted A1 and A3 under Section 412 IPC. As far as the confessional statements alleged to have been made in the immediate presence of police are concerned, such confessions are not admissible. Most probably, the learned Judge with a view that these confessions led to the discovery, probably, came to the conclusion that on the strength of these confessions, conviction can be sustained. No doubt, apart from these confessional statements alleged to have been made, though the same cannot be relied upon by the prosecution, the recovery of gold ring and the wristwatch in the presence of P.W.4 from the possession of A3 had not been seriously controverted even by way of cross-examination. No doubt, strong reliance was placed on Man Singh v. State of Madhya Pradesh,1993 Crl.L.J. 3669(SC), wherein the Apex Court held that
“In the case of dacoity and presumption that accused are dacoits can be invoked only when possession of stolen articles is recent and accused arrested after lapse of 3 or 4 months cannot be held to be dacoits merely because certain stolen articles were recovered from them and no doubt in such a case liable to be convicted under Section 412 IPC for receiving stolen property.”
The recovery of scooter in the presence of P.W.4 and the another panch witness had been established by the prosecution. There cannot be any doubt or controversy relating to the inadmissibility of the alleged confessional statements made in the immediate presence of the police. Apart from those statements, the evidence of P.W.4 is available on record. Submissions at length were made by the learned Counsel representing the appellant-A3 that in view of the lapse of about one month, and also in view of the nature of articles, which had been recovered, inasmuch as all these articles also are available in open market, the prosecution version is highly doubtful, and the evidence of P.W.4 also cannot be relied upon in this regard. In view of the nature of the evidence of P.W.4 that the police asked him and another panch witness to question these accused and in the immediate presence of the police, the alleged confessional statements had been made, that portion of evidence cannot be relied upon, in the light of the doubt cast in the version of the prosecution relating to the alleged recovery, taking into consideration the lapse of time in between the alleged recovery and also the date of the incident and in the absence of any other acceptable evidence relating to identification in this regard. On the strength of such evidence, having charged the accused under Section 392 IPC, holding A3 guilty of an offence under Section 412 IPC, definitely, cannot be sustained, especially in the light of the ingredients to be satisfied under Section 412 IPC. For want of legally acceptable evidence, the appellant-A3 definitely is entitled to the benefit of doubt, and accordingly, acquittal is hereby recorded and the criminal appeal is allowed.
It is represented that the fine amount already had been paid. It is needless to say that the accused is also entitled to refund of fine amount, if any paid by him.