JUDGMENT
P.S. Narayana, J.
1. A3 and A4 in Sessions Case No.1 of 1996, on the file of the II Additional Sessions Judge at Warangal, had preferred the present Criminal Appeal.
2. Sri P. Raghava Reddy, learned counsel for the appellants would submit that the ingredients of Section 395 IPC are not at all satisfied and it is doubtful how many persons are said to have participated in the commission of the crime on the fateful day and hence, the conviction recorded under Section 395 IPC may have to be set aside. The learned counsel also would further contend that P.Ws 1, 2 and 4 had participated in the test identification parade and P.W.1 identified A1 only, P.Ws 2 and 4 were unable to identify any one of the accused and in the light of the same, even if the witnesses deposed that they were able to identify the accused before the Court, it would be of no consequence. The learned counsel had taken this Court through the findings recorded by the learned Judge and would comment that the findings recorded by the learned Judge are definitely contrary to the evidence available on record. The learned counsel ultimately would submit that, at any rate, this is not a case falling under Section 395 IPC and in the facts and circumstances, in view of the fact that the appellants had suffered imprisonment for a period of about one and half years, they may be let off.
3. Per contra, Sri Mohd. Osman Saheed, learned Additional Public Prosecutor would contend that though it is not a case falling under Section 395 IPC the accused can be convicted for the offence of ‘robbery’. The learned Additional Public Prosecutor also had taken this Court through the evidence available on record and ultimately would justify the findings in the facts and circumstances of the case.
4. The case of the prosecution is that the accused 1 to 4 along with two others committed dacoity in the house of Gopu Lurthi Reddy at Ramachandrapuram on the intervening night of 12/13-2-1994 and decamped with cash and valuables. On a complaint lodged by said Gopu Lurthi Reddy, the police, Geesgonda Police Station, registered a case in Crime No.9 of 1994 under Section 395 IPC and investigated into the same. During the course of investigation, scene of offence was visited and a panchanama was drafted in the presence of panchas, witnesses were examined and the scene of offence sketch was drafted. The accused were arrested on 7-9-1995 and in the presence of panchas, accused were interrogated and from their possession, the valuables involved in this offence and other jewellery were seized. The accused were subjected to test identification parade on 7-10-1995 at Central Prison, Warangal and the test identification of property was also held, wherein the witnesses identified their property.
5. The prosecution examined P.Ws 1 to 12 and Exs.P1 to P8 were marked and M.O.1 was also marked. On behalf of the accused, Ex.D1 was only marked.
6. Ex.P7 is the test identification parade proceedings. P.W.10, the learned Magistrate, who conducted the test identification parade, deposed that P.W.1 alone identified A1, P.Ws 2 and 4, who also participated in the test identification parade, were unable to identify the culprits. P.W.3 did not participate in the test identification parade. P.W.4 no doubt deposed that she could identify the culprits, who were armed with knives at the time of offence and committed dacoity in their house, but failed to identify any one of the accused when she went to the Central Prison to identify the suspects. P.W.5 simply deposed that all of them went in search of culprits, which had been unsuccessful. P.W.6 deposed about Ex.P2-the scene of offence panchanama. P.W.7 also deposed about Ex.P.3-the property identification panchanama. P.W.8 was examined in relation to Ex.P4-confessional and recovery panchanama and was declared hostile.
7. P.W.9 is the Circle Inspector of Police, who deposed about the details of investigation. P.W.10, the learned Magistrate, who conducted the test identification parade, deposed that P.W.1 identified A1 only and P.Ws 2 and 4 were unable to identify any one. P.W.11 is the Inspector of Police, who deposed about filing of the charge sheet. P.W.12 is the Circle Inspector of Police also deposed about certain aspects in relation to the investigation.
8. In the light of the version of the prosecution, it is doubtful whether the ingredients of Section 395 IPC are attracted. In ATAR SINGH V. STATE OF U.P.1 at paras 9 and 10 it was held as follows;
“It is amazing to note that the informant recited in his report Ext.Ka2 that some 3-4 miscreants forcibly entered his house through the door, which was open and started looting the valuables from the female folk of the house, yet the two appellants were tried and convicted for dacoity. Even if the miscreants were armed with deadly weapons while committing the offence of looting, they cannot be said to have committed dacoity, as for an offence of dacoity, minimum number of the miscreants required is 5. The term ‘dacoity’ is defined in Section 391 of the IPC, which clearly postulates that when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”. The offence of ‘robbery’ is defined in Section 390 IPC and as is clear from a perusal of the said section, even a theft is ‘robbery’ if during its commission the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Whereas ‘robbery’ is punishable under Section 392 IPC, dacoity is punishable under Section 395 IPC. Now the question arises as to whether it was a dacoity or robbery which could be said to have been committed in the house of the informant.
It has been submitted on behalf of the State that the informant conveyed to the Station Officer P.S.Akbarpur that a dacoity was committed in his house, but this fact seemed to have been deliberately screened by the police so as to avert record of a serious offence like dacoity against the accused. In this context, a reference to the testimony of the informant would be of a greater significance. P.W.1 Ram Prasad asserted in his examination-in-chief that about 4-5 miscreants raided his house and no sooner than they entered the house, they started firing shots from their fire-arms. He added further that he submitted his written report to this effect, but it was torn into pieces by the Head Constable on duty with the observation that it was not properly drafted. It was thereafter that the report Ext. Ka 1 was drawn. During cross-examination, he deviated from the above averment of the report being torn out and stated that his written report was burnt by the police. He, however, failed to disclose the name of the police official, who had put his report on blaze. He then stated that some police person had written both the reports, but this is not in consonance with the testimony of P.W.2 Pattoo, who is more else than Ram Prasad’s own uncle. On the night of occurrence, Pattoo was sleeping at the main gate of the house and a lantern was lighting at the gate itself. According to him, the miscreants, who were 10-11 in number, came at about mid night and committed dacoity. He testified that the first report was got written in the village and the same was submitted to the police. This contradicts Ram Prasad’s version that the first and the second reports-both were written by the same police official. Not only this, but Pattoo clearly rejected Ram Prasad’s theory of the first report being torn into pieces by any police official. He stated in unambiguous terms that the report he got prepared in the village was submitted to the police and the same was acted upon. In this way, the prosecution version that inspite of the fact that a dacoity by 10-12 miscreants was committed. The police purposely recited the number of the miscreants, the total of which did not bring the offence within the premises of the term ‘dacoity’ and thereby reduced the gravity of the offence, does not seem to be worthy of credit. A question arises that if the police did not commit any mischief either by tearing off the written report of the informant which he brought well-drafted from his own village, as confirmed by Pattoo P.W.2, why Ram Prasad as P.W.1 had given out the number of miscreants to be as 3-4? In the absence of any plausible explanation coupled with the unbelievable pretext of the report being torn, it appears to be sustainable, as argued on behalf of the accused, that the informant and subsequently the prosecution made an endeavour on the basis of an after-thought idea to develop the prosecution story of dacoity. Therefore, it is not established beyond doubt that the miscreants were more than five in number. In other words, what is recited in the F.I.R. seems to be correct and truthful version. In the consequence, it may be observed that it was not a case of dacoity but of robbery”.
9. Ex.P7 is the test identification proceedings. P.Ws1, 2 and 4 had participated in the test identification parade, but none of them had identified the appellants, except P.W.1, who identified A1 only, even according to P.W.10. There is absolutely no other evidence so as to connect the appellants with the commission of the offence on the fateful day. Certain findings recorded by the learned Judge were pointed out by the learned counsel for the appellants and submissions at length were made. These findings are based on no evidence or the findings are contrary to the evidence available on record. In the light of the fact that none of the witnesses identified the appellants in the test identification parade, the mere fact that P.W.4 deposed that she could identify them in Court for the first time may not improve the version of the prosecution.
10. Viewed from any angle, the prosecution miserably failed to establish the guilt of the appellants-accused 3 and 4 beyond all reasonable doubt. It is made clear that the appellants are not claiming the property. But, however, there is no legally acceptable evidence to connect the appellants with the commission of the offence. Hence, the appellants are entitled to the benefit of doubt and they are acquitted.
11. Accordingly, the Criminal Appeal is allowed and the bail bonds shall stand cancelled.