ORDER
P. Lakshmana Reddy, J.
1. This revision is filed against the conviction and sentence recorded against the revision petitioners 1 to 6 in S.C. No. 128 of 1996, dated 31-12-1998 on the file of the Additional Assistant Sessions Judge, Eluru which was confirmed in Crl. A. No. 10 of 1999, dated 3-4-2003 on the file of the Sessions Judge, Eluru.
2. The relevant facts in brief are as follows :
The revision petitioners herein will hereinafter be referred as A-1 to A-6 in this revision. The Inspector of Police, Bhemadole Circle, Bheemadole filed this case before the II Additional Judicial Magistrate of First Class, Eluru alleging that on 6-9-1995 at about 9.00 p.m. PWs. 1 to 5 and another boarded the lorry bearing No. ABK-599 for which PW-6 is the driver and by the time the lorry reached near Dorasanipadu village at about 10.30 p.m. A-1 to A-6 clad in knickers and towels rounded to their waists armed with sticks came across the road, put stones across the road and stopped the lorry by pelting stones A-1 entered into the cabin while A-2 to A-6 stood across the lorry and A-1 robbed one pair of golden ear-studs with white stones weighing about 2.8 grams from PW-1, four bangles weighing about 4 sovereigns and one gold chain weighing about 3 sovereigns from PW-2, one pair of golden plain ear studs weighing about 2.1 grams from PW-3 and one pair of golden ear studs with white stones and red stone in the middle weighing about 2.4 grams from PW-4. Further A-1 also robbed cash of Rs. 2,000/- from PW-1 and Rs. 1,000/- from PW-12 by beating them with sticks and caused injuries to them. Thereafter, all the accused took P.Ws. 1 to 6 and two others to a samadhi nearby the fields and made them to sit there by tying them with their sarees and clothes and A-3 watched them by putting them in fear. In the meanwhile, another lorry bearing No. ABK-7945 came from Chintalapudi to go to Devarapalli and that A-1, A-2, A-4 to A-6 stopped the said lorry by pelting stones on the lorry and by showing sticks and broke the front wind glasses and robbed cash of Rs. 500/- from PW-7 and Rs. 100/- from PW-13 the cleaner of the lorry by putting them in fear of death. Later another lorry bearing No. AEK-3177 came from Chanubanda near Vissannapet to go to Bhimavaram, then A-1, A-2, A-4 to A-6 also stopped the said lorry in the same manner and robbed cash of Rs. 1,000/- from PW-9 the driver of the said lorry and Rs. 36/- from PW-16 the cleaner of that lorry by putting them in fear of death. Thereafter, another lorry bearing No. AP-5-T-2192 came from Bhadrachalam and that lorry was also stopped in the same manner and the accused robbed cash of Rs. 400/- from PW-19 the driver of that lorry. In the meantime, the tractor bearing No. AP-37-T-2433 came from D. Thirumala side, when the driver stopped his tractor and the accused threatened him. All the accused robbed away gold ornaments from P.Ws. 1 to 4 and cash of Rs. 5,036/- from P.Ws. 6, 7, 9, 13, 16 and 19. It is further alleged that PW-1 went to the police station and gave statement to the police and the same was registered under Section 395 IPC and during the course of investigation PW-20 the Inspector of Police arrested all the accused on 15-11-1995 at about 7.00 p.m. at the coffee hotel of PW-14 in Dubacherla junction in the presence of PW-15 and PW-11 and basing on the confession of A-1, they seized one gold chain and cash of Rs. 2,016/- from A-1, two gold bangles from A-2, one pair of gold ear-studs having red stone in the center and white stones around from A-3, two gold bangles from A-4, one pair of plain gold ear studs from A-5, and one pair of gold ear-studs having white stones from A-6 under a cover of panchanama. On 16-11-1995 PWs. 1 to 4 identified the respective properties in the test identification parade conducted in the presence of PW-15 and another. Thus, all the accused are liable for punishment under Section 395, IPC.
3. On the said allegations, the learned Magistrate took the case on file and after observing all formalities, duly committed the case to the Court of Sessions Judge, West Godavari at Eluru. The learned Sessions Judge, took the case on file as sessions case and made over the same for trial to the Additional Sessions Judge, Eluru. The learned Assistant Sessions Judge framed charges under Section 395/397, I.P.C. alternatively under Section 412, I.P.C., read over and explained to them for which all of them pleaded not guilty and claimed to be tried.
4. During the trial, the prosecution examined P.Ws. 1 to 20 and marked Exs. P-1 to P-11 and also M.Os. 1 to 10. Exs. D-1 to D-5 were marked on behalf of the accused at contradictions in the statements made by the witnesses under Section 161, Cr. P.C. After the prosecution evidence was closed, the incriminating evidence found against the accused was put to them and the accused described the evidence found against them as false. They further stated that they along with three others had been to Nagulapalli for coolie work of cutting paddy and while they were returning in the evening at about 5.00 p.m. at Pangidigudem center, the Police Constable of Dwaraka Tirumala Police Station took them to the Bheemadolu Police Station saying that Bheemadolu Circle Inspector of Police wanted them and from Bheemadolu Police Station they were taken to Nallacherla Police Station and detained there for the night and throughout the night they were beaten and on the early hours of next day, they were taken to Rajahmundry Traffic Police Station and detained there for 2 days and there also they were beaten and from there they were taken to Denduluru Police Station and there also they were beaten for 3 days and from there they were again taken to Bheemadolu Police Station and this false case is foisted against them. They were threatened not to disclose the same to the Magistrate and they further stated that out of nine persons the police let off three persons by taking Rs. 5,000/-from them. The accused did not examine any witness on their behalf. Considering the evidence adduced on behalf of the prosecution and the denial of the accused, the learned Sessions Judge found A-1 to A-6 guilty of the offence punishable under Section 395/397, I.P.C. and convicted them and sentenced them to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 500/- each, in default to suffer simple imprisonment for five months each.
5. Aggrieved by the same, the accused preferred an appeal in Crl. A. No. 10 of 1999 and the learned Sessions Judge after due hearing confirmed the finding of the trial Judge but modified the conviction from one under Section 397, I.P.C. to Section 395, I.P.C. However, the sentence, imposed by the trial Court was confirmed and dismissed the appeal.
6. Aggrieved by the same, the present revision is filed contending that the judgments of the Courts below are illegal, improper and incorrect and the learned Judge erred in convicting the revision petitioners. The learned Judge failed to see that the ingredients of the offence are not made out by the prosecution and the learned Judge erred in placing the reliance on the highly interested and discrepant testimony of P.Ws. 1 to 7. The learned Judge should have seen that the incident took place at 10.30 p.m. on a highway and it is difficult for the witnesses to identify the accused. The learned Judge failed to see that no test identification parade was conducted and identification for the first time in the Court is of no value. The learned Judge ought to have seen that the recovery of stolen property from the accused is doubtful as PWs. 11 and 14 the mediators did not support the case of the prosecution. Further, the learned Judge should have seen that P.Ws. 9, 12, 13, 16 and 19 the main witnesses who were taken to the distance and were tied and had an opportunity of seeing the accused closely did not identify the accused. The learned Judge should have seen that P.Ws. 1 to 7 who claimed to have identified the accused in the Court never had an opportunity of seeing all the accused as actually only two accused boarded the lorry.
7. During the course of hearing of the revision, the learned Counsel for the revision-petitioner reiterated the contentions raised in the grounds of revision. He vehemently contended that the Courts below erred in placing reliance on the identification of the accused in the Court for the first time after a period of more than 2 1/2 years by P.Ws. 1 to 7 and that when admittedly the accused are utter strangers to P.Ws. 1 to 7 and when they have not seen the culprits subsequent to the date of incident till the date of trial, it is impossible for them to identify the real culprits. He further submitted that none of the witnesses had given the descriptive particulars of any of the accused and that though specific overt acts have been attributed to the culprits none of the witnesses have identified the particular accused to whom specific overt acts have been attributed and that P.Ws. 9, 12, 13, 16 and 19 who are also the victims could not identify the accused in the Court. It is not known as to how P.Ws. 1 to 7 could identify the accused in the Court after a period of 2 1/2 years. He further submitted that as P.Ws. 1 to 7 are victims who lost the property and whose properties said to have been recovered have played to the tunes of the prosecution in order to get back the property. Therefore, the Courts below ought not to have given importance to their identification in the Court, He further submitted that the Investigating Officers failed to properly investigate the case and that out of suspicion they took several people into custody and they did not even verify the antecedents of the accused and that no test identification parade in respect of the accused was conducted and that even in the Court also the identification by P.Ws. 1 to 7 is omnibus identification. He further submitted that even the test identification of the properties was also not conducted in accordance with Section 35 of Criminal Rules of Practice and in fact M.Os. 1 to 4 were planted and they are brand new and that the evidence of P.Ws. 1 and 2 goes to show that the properties shown to them were not their properties lost in the dacoity. He further submitted that there are number of omissions and contradictions in the evidence of prosecution witnesses and that; the Courts below simply brushed aside the omissions and contradictions saying that the witnesses are rustic witnesses. The learned Counsel placed reliance on the following decisions :
2. Mohanlal Gangaram Gehani v. State of Maharashtra
3. State of Maharashtra v. Sukhdeo Singh
4. Dana Yadav alias Dahu v. State of Bihar
5. Lakhvinder Singh v. State of Punjab The learned Counsel contended that the Courts below grossly erred in placing reliance on the omnibus identification in the Court after a period of 2 1/2 years and that the appreciation of evidence by the Courts below is perverse and it resulted in miscarriage of justice and, therefore, there is a need for interference by this Court to save the innocent labourers and who never had any criminal background.
8. On the other hand, the learned public prosecutor supported the conviction and sentence recorded by the Courts below. He submitted that there is no hard and fast rule in each and every case that test identification is to be conducted and that even in the absence of test identification conviction can be based on the identification of the accused in the Court and that the Courts below have believed the identification of the accused in the Court placing reliance on the decisions of the Apex Court and that the Courts below elaborately discussed about the necessity of test identification parade and believed the evidence of prosecution witnesses and that at any rate the appreciation of evidence by the Courts below cannot be said to be perverse and, therefore, this Court cannot interfere with the concurrent findings of the Courts below. He further submitted that the Courts below rightly held that the omissions and contradictions are only minor in nature and those contradictions and omissions do not in any way affect the evidence of the prosecution witnesses. He further submitted that the facts of this case do not warrant interference by this Court and that the revision is liable to be dismissed.
9. The points that arise for determination in this revision are :
1. Whether the Courts below erred in placing reliance on the identification of the accused by P.Ws. 1 to 7 in the Court for the first time after the incident to hold that that A-1 to A-6 are the persons who committed dacoity on the night of 6-11-1995?
2. Whether the prosecution succeeded to prove that M.Os. 1 to 10 are the properties robbed at the time of the incident?
3. Whether the prosecution succeeded to prove beyond reasonable doubt that those properties were recovered from the possession of the accused to connect the accused with the crime?
4. Whether the conviction and sentence passed against A-1 to A-6 for the offence punishable under Section 395, I.P.C. is sustainable in law?
5. To what result?
POINT NO. 1. :
10. In view of the abundant evidence of P.Ws. 1 to 7, 9, 12, 13, 16 and 19 it cannot be disputed that an offence of dacoity took place on the night of 6-11-1995 at about 10.30 p.m. and that four vehicles bearing Nos. ABK-599, ABK-7945, AEK-3177 and AP-5-T-2192 were stopped forcibly and occupants of those vehicles were robbed of their belongings including jewellery and cash. It is in the evidence of P.Ws. 1 to 5 that they were sitting in the cabin of the lorry bearing No. ABK-599 driven by the driver PW-6 Shaik Meera Saheb and P.W-12 also boarded the same lorry but sitting in the body of the lorry. PW-6 the driver of the lorry and also PW-12 corroborated the evidence of P.Ws. 1 to 5 in this regard. Nothing was elicited in the cross-examination to discredit their testimony in this regard. Therefore, it can be safely concluded that PWs. 1 to 5, one Jaganmohini-LW-6 and PW-12 who is working as conductor in A.P.S.R.T.C. were travelling in the lorry bearing No. ABK-599 driven by PW-6-Shaik Meera Saheb and while they were so travelling, their lorry was stopped near Dorasanipadu village by placing boulders across the road and also by pelting stones against the lorry and thereafter all those persons were robbed of their belongings including cash and their jewels. According to PW-1 after the lorry was stopped the front glass of the lorry was broken and her grand-daughter Jaganmohini-LW-6 and Simhadri Raghupathamma-PW-2 sustained stone injuries and on seeing the same the driver of the lorry got frightened and stopped the lorry and then two of the six accused present in the Court boarded the lorry and took the lorry driver PW-6 and the lorry cleaner LW-8 and PW-12 to a distance and tied them with the towels of the accused and when they were weeping the accused told them that they should not weep and that they will not do any harm to them and then the accused searched their person with a view to take money from them and thereby all the accused asked them to alight (sic) the lorry and accordingly they got down the lorry and then the accused searched their persons to know whether they hide the money in their waist and that the accused took one hundred rupee currency note and a pair of gold ear-studs studded with white stones from her. She further stated that the same accused looted four more lorries.
11. PW-2-Raghupathamma stated that one of the accused got into the cabin of the lorry and beat the driver of the lorry and the remaining five accused were in front of the lorry and that the accused demanded to give valuables available with them and due to fear she gave four gold bangles M.O.2 and M.O.3 and also one gold chain M.O. 4. The accused also took gold and cash from P.Ws. 1, 3, 4 and 5. She further stated that after the accused robbed their belongings took her and P.Ws. 1, 3, 4 and 5, Jagan Mohini, the driver of the lorry PW-6, its cleaner LW-8 and another male person (PW-12) to a distance of about five to six yards to the road side from the lorry and asked them to sit there and the accused tied the hands of the lorry driver, cleaner and the male person to their back and that all the accused were armed with sticks and they kept one of the accused to keep watch over them by yielding a stick and when they were weeping the said person threatened to beat them and that the accused wore knickers and banians at the time of committing the offence. She further stated that apart from their lorry, the accused robbed three more lorries and that the accused took Rs. 100/-from her.
12. PW-3-V. Satyavathi also stated that the accused pelted stories against the lorry and out of A-1 to A-6 one person got into the cabin of the lorry by yielding a stick and threatened to kill them and asked them to give their valuables available with them and the said accused kept his towel as a lap and asked them to part with their valuables and she gave her gold ear-studs M.O. 5 and that the accused also took the gold and cash from the other occupants. She further stated that the accused forcibly got them down from the cabin and asked them to walk to a distance from the road and they asked them to sit without weeping and near the tomb and that the accused tied the hands of the driver of lorry, its cleaner and a male person who boarded the lorry with towels to their back and they also tied their hands to their back, with their respective sarees and asked them to sit there and kept one person to watch over them by yielding a stick in his hand and the said person stated to them that he is having a knife in his bag and he will stab them if they raise cries and that thereafter the remaining accused robbed three more lorries which were coming from Jangareddyguem side and that on account of the light of the full moon and also the headlights of the lorry they could able to identify the accused.
13. PW-4-D. Laxmikanthamma also stated that one among A-1 to A-6 got into the lorry with stick and beat the lorry driver and threatened the other occupants to part with their valuables and all of them removed their ear-studs and gave them to the accused who got into the lorry cabin and that the said accused kept his towel as a lap and collected all their ornaments and cash and that she gave her gold ear-studs M.O.6. She further stated that after robbing them the accused forcibly took them to a distance into the field by the side of the road and asked them to sit there and that there was a tomb at that place and the accused tied the hands of the lorry driver, its cleaner and Satyanarayana to their back with their hands and that the accused tied their hands also to their back with their respective sarees and asked them to sit there without raising any cries and they had kept one accused, armed with a stick near them to keep watch over them and that she identified the accused with the aid of full moon light and with the headlights of the lorry.
14. PW-5-P. Pushpalatha also stated that the lorry was stopped forcibly by hurling stones and by keeping boulders on the road and after the lorry was stopped they beat the lorry driver, and that one of the accused got into the lorry armed with a stout stick and threatened to kill them and asked them to part with their belongings and due to fear they gave their valuables to the accused and that she gave her ear-studs and while removing the ear-studs, one of the ear-stud had fallen down and it could not be traced and the other ear-stud was given to the accused and after taking the valuables the accused took all of them for a distance of 10 yards into the field and asked them to sit near a tomb and thereafter the accused tied their hands to their back with the aid of their respective sarees and also tied the hands of the driver, cleaner and Satyanarayana PW-12 to their back with towels and kept one of the accused to watch over them and that thereafter the remaining accused robbed three more lorries. She further stated that there was a bright full moon light on that night and with the aid of that full moon light and the headlights of the lorry, they could identify the accused.
15. PW-6 Shaik Meera Saheb the driver of the lorry corroborated the evidence of P.Ws. 1 to 5 in all respects. He too stated that he can identify the culprits who committed the offence and that A-1 to A-6 present in the Court are the persons who committed the offence on that night. He too stated that in the lights of the lorry and also on account of the full moon light he identified the accused. He stated that one of the accused beat him with a stick on his right side buttocks near the waist and forcibly robbed Rs. 2,000/- from him and that the headlights were burning for a period of two minutes and after he was pulled down from the lorry to the ground the accused asked him to put off the headlights and switch on the lights in the cabin. He further stated that the accused tied his hands to his back with his towel in the lorry itself and they took him to a tomb by the side of the road and the accused beat the lorry cleaner and also another male person who was sitting in the body of the lorry. He further stated that the accused first took him and the cleaner by tying their hands to their back and subsequently they brought six ladles and tied their hands to their back with their own sarees and the hands of the cleaner were also tied to his back by removing his shirt and they kept one person to watch over them who was armed with a stick and the said man threatened to kill them if they raise cries and due to fear they did not raise cries and that subsequently the accused robbed three more lorries. He stated that the accused robbed twenty pieces of Rs. 100/- currency notes, which is marked as M.O.7 belonging to him.
16. PW-12 the conductor of the R.T.C. the other occupant of the lorry ABK-599 stated that he boarded the lorry at Pangidigudem village in order to go to Maddi Anjaneyaswamy temple near Jangareddguem to attend his duty and that in between Dwarakatirumala and Tadicherla they noticed big boulders placed across the road and on seeing them the driver of the lorry slowed down the vehicle and stopped and then the offenders broke the glasses of the lorry and beat the occupants of the lorry including him and that they got removed their shirts and tied their hands to their back with their shirts and that the offenders robbed Rs. 2,000/- from him and that after robbing the offenders took them to some distance by the side of the road and asked them to sit there and all their hands were tied to their back with their respective clothes and they kept one offender as watch over them and the remaining offenders robbed some more vehicles. This witness did not state that A-1 to A-6 were among the persons who robbed them. He stated that he cannot identify whether the accused present in the Court have participated in the crime.
17. Thus, out of seven occupants of the lorry bearing No. ABK-599 one male person PW-12 stated that he cannot say whether any of the accused facing trial participated in the crime on that night. But, the women occupants P.Ws. 1 to 5 and the driver PW-6 stated that they could identify A-1 to A-6 as the persons who robbed them. However, though they attributed specific overt acts to some of the culprits by saying that one of the accused entered into the cabin and robbed them and one of them kept watch over them, after they were tied, they could not identify as to who among A-1 to A-6 got into the lorry and robbed them and who among the accused was kept as watch over them at the tomb though they had more time to observe the physical features of the person who boarded into the cabin of the lorry and robbed them by threatening and who was kept in watch over them and threatened them to kill if they raise cries.
18. As seen from the evidence of P.Ws. 1 to 6, all of them stated in parrot like manner that A-1 to A-6 were the culprits who robbed them that night and that they could identify the accused in the Court as they observed the culprits on the night of incident with the aid of full moon light and also with the headlights of the lorry.
19. Coming to the next lorry bearing No. ABK-7945 PW-7 the driver of the said lorry stated that on 6-11-1995 at about 9.00 p.m. he along with his cleaner PW-13 started at chintalpudi laden with mango timber and proceeded towards Devaarapalli and when they reached Dorasanipadu village noticed boulders across the road and the lorry bearing No. ABK-599 with broken glasses and on seeing the stones and the lorry opposite to him he slowed down the vehicle, then the culprits pelted the stones against his lorry and his lorry glasses were broken and the headlights of the lorry were burning and he noticed five persons in the headlights of the lorry and that six persons present in the Court were among those five persons who approached him and out of them he clearly identified A-6. He further stated that five muta coolies were present in the cabin of his lorry and he was taking them in his lorry for unloading the timber at Devarapalli and that the culprits robbed Rs. 500/- kept in the papers on the top in the cabin and also took Rs. 15/- from him and further the accused robbed about Rs. 100/- from the cleaner and another Rs. 300/- from the coolies. He further stated that A-6 took him to the nearby coconut garden and there the victims of the lorry bearing No. ABK-599 were sitting and then A-6 tied his hands to his back with his towel to a coconut tree and then the accused took the muta coolies and the cleaner of the lorry and asked them to sit in the body of the lorry and 15 minutes thereafter another lorry came and the accused robbed that lorry and further after another 10 minutes another lorry came and the accused robbed the occupants of that lorry also. He stated that his lorry was robbed at 10.30 p.m.
20. The cleaner of that lorry PW-13 stated that after the lorry was stopped, the offenders broke the lorry glasses and beat the driver PW-7 and threatened them by showing a knife and robbed them and that the offenders robbed Rs. 100/- from him and Rs. 400/- from PW-7 and that the offenders robbed muta coolies also and that thereafter the offenders took him, PW-7 and muta coolies to another lorry which was also stationed there and asked them to stay in the body of the lorry and kept one person to watch over them and thereafter the culprits robbed two more lorries and one tractor and also one R. T. C. Bus. But, this witness stated that he cannot identify the accused present in the Court on account of darkness and he cannot say whether the accused persons present in the Court were the persons who participated in the crime on that night. This witness was not even treated hostile by the prosecution. The evidence of this witness belies the evidence of PW-7 regarding identification. None of the muta coolies were examined.
21. Coming to the next lorry bearing No. AEK.3177, PW-16 the cleaner of the lorry stated that himself and P. Venkata Reddy driver of the lorry were proceeding in the lorry bearing No. AEK. 317 laden with mangoes from Vissannapeta to Bheemavaram and they noticed some lorries stationed on the road and some boulders were placed across the road and about 7 or 8 persons have participated in the dacoity and out of them two persons actually came to the lorry and broke the glasses of the lorry and robbed Rs. 36/- from him and he does not remember whether any amount was robbed from his driver and that after robbing, the offenders asked them to get on the body of the lorry and subsequently they robbed some more vehicles. He stated that as the incident occurred during night, he cannot identify the accused present in the Court and he cannot say whether the accused present in the Court have participated in the crime. This witness was also not treated hostile by the prosecution. The driver of the said lorry bearing No. AEK-317 was examined as PW-9 and he stated that while himself and Rajkumar Reddy cleaner (PW-16) were proceeding in the said lorry at about 10.00 p.m. he noticed three lorries, one car and a tractor on the road and when he blew horn somebody pelted stones against his vehicle and the side glasses of his lorry were broken and he sustained stone hit injury to his right ear and that himself and cleaner were in the cabin and three persons armed with sticks came to his lorry and they threatened him and his cleaner to get into the body of the lorry or else they will kill them and due to fear they got into the body of the lorry and then those persons searched his person and robbed a sum of Rs. 3,500/- from him and also took Rs. 200/- or Rs. 300/-from the cleaner and subsequently the culprits ran away from the scene. This witness also stated that he cannot Identify the persons who robbed him. Of course, this witness was treated hostile by the prosecution and it was suggested to him that he identified the culprits and he stated so before the police as in Ex. P-3 and he gave false evidence in Court as he was gained over by the accused. The said suggestion was denied.
22. Coming to another lorry bearing No. AP-5-T-2192, its driver P. Venkat Reddy is examined as PW-19. He stated that about four years back he was going towards Dwarakatirumala and when he was proceeding at a distance of about 1 km. from Dorasanapadu his lorry was stopped and about 8 persons committed dacoity and took away Rs. 400/- from him and that prior to his lorry going there, already four lorries were stopped. He further stated that on account of lapse of time he cannot identify the offenders and he cannot say whether the persons present in the Court have participated in that crime. This witness was also not treated hostile by the prosecution. According to him, the owner of the lorry by name Radhakrishna was also present in the cabin of the lorry at the time of the incident. The said Radhakrishna is not examined.
23. As seen from the abovesaid evidence, some of the witnesses who were male and young persons and who were also robbed on the same night by the same gang stated that as the occurrence took place during the night and on account of lapse of long time, they are unable to identify any of the culprits and they cannot say whether any of the accused now facing trial were there among the culprits who committed dacoity that night. Their evidence contradicts the evidence of P.Ws. 1 to 7 who stated that there was full moon light on that day and on account of that full moon light they could identify the culprits. Further, as seen from the evidence of investigating officer PW-20 none of them have stated in their 161, Cr. P. C. statements that there was full moon light on that night and they could identify the culprits on account of that light. Further, as seen from Ex. P-1 given at the earliest opportunity PW-1 did not state in her report given to the police that there was full moon light on that night and with the aid of that light or with the aid of the headlights of the lorry they could identify the culprits. So the evidence of P.Ws. 1 to 7 that there was sufficient light to identify the culprits at the time of the incident is a clear development during the course of the evidence and further their evidence is belied by the evidence of similarly placed victims of dacoity viz. PWs-9, 12, 13, 16 and 19. The evidence of PW-12 who is aged 36 years is very much relevant. He is not an illiterate and he is working as conductor in A. P. S. R. T. C. He was also robbed in the same incident in which P.Ws. 1 to 6 were robbed. He was also tied along with P.Ws. 1 to 6 at the same place. But, yet, this witness PW-12 categorically stated that he cannot identify the accused and whether the persons present in the Court have participated in the crime. When this witness PW-12 could not say whether the accused now present in the Court were among the culprits who committed dacoity, it is not known as to how P.Ws. 1 to 5 who are women and P.Ws. 6 and 7 who are drivers who were beaten could identify the accused present in the Court as the culprits who participated in the dacoity. Further, P.Ws. 1 to 6 though attributed specific overt acts to some of the culprits they could not pinpoint as to which accused entered into the cabin and robbed the jewels and cash from them and as to which accused tied them and which of the accused among the six was kept in watch over them at the tomb after tying their hands at the tomb. Of course, PW-7 stated that A-6 is the person who took him to the place where P.Ws. 1 to 6 were tried and tied his hands also. But his evidence is contradicted by the evidence of the cleaner PW-13 of the same lorry who stated that himself, PW-7 and muta coolies were asked to get into the body of the lorry. He did not state that PW-7 was taken to the place where P.Ws. 1 to 6 were tied. Further, the descriptive particulars of any of the culprits were not given either in the report or in their 161, Cr. P. C. statements. In the report Ex. P-1 PW-1 simply stated that the thieves were of lean in physic and light black in colour and all of them had nickers and tied their towels to their waists and only one person wore banian and knicker. The age of those persons was given in the report as 25 to 30 years. But, in the evidence it is not elicited that the descriptive particulars given in the report tallies with any of the accused who faced the trial. Further, according to the prosecution none of these witnesses had seen the culprits who participated in the dacoity subsequent to the date of incident till they gave evidence in the Court. The offence took place on 6-11-1995. P.Ws. 1 to 6 were examined in the Court on 8-6-1998. So, P.Ws. 1 to 7 wanted the Courts to believe that they could identify the culprits after a period of more then 2 1/2 years though the culprits were only wearing knickers at the time of incident and the occurrence took place during night. In fact one of the witnesses stated in the cross-examination that the entire incident was over within 15 minutes, So within such a short time and in tense moment, it is improbable to believe that they could observe the physical features of the culprits and keep the same observation in their minds and after a period of 2 1/2 years they could re-collect the faces they observed about 2 1/2 years prior to their giving evidence and they could exactly identify the culprits in the Court, Moreover, no test identification parade conducted to test their memory in the Court at the time of giving evidence. While A-1 to A-6 alone were standing in the accused dock, the witnesses P.Ws. 1 to 6 simply stated that all the accused were the culprits who robbed them. Their identification is only an omnibus identification. As already observed supra, though specific overt acts are attributed to some of the culprits, they could not pick up the accused as to who did a particular act on the night of the incident. P.Ws. 1 to 7 simply stated in a parrot like manner that A-1 to A-6 were the culprits and they could identify them as there was full moon light and also there were headlights of the lorry. In fact, according to PW-6 he was directed to switch off the headlights of the lorry. Therefore, it creates any amount of doubt whether the witnesses P.Ws. 1 to 7 could really identify the accused as the culprits after a period of 2 1/2 years. Both the Courts believed their identification only on the sole ground that they have no enmity against the accused and that there is no reason for the witnesses to Identify them in the Court. The said observations of the Courts below are not at all tenable. There may be several reasons for the witnesses to identify the accused standing in the box as culprits. It might be that they were informed by police that their properties were recovered from A-1 to A-6 and made them believe that A-1 to A-6 are the culprits or it might be that the police informed them that unless they identify the accused, they would not get back their properties. Thus, there may be several reasons for P.Ws. 1 to 7 to identify the accused in the Court. The Courts are expected to scrutinize the possibility or otherwise of the witnesses to identify the accused correctly, especially when some of the similarly placed victims stated that they cannot identify whether A-1 to A-6 were present among the culprits. The Courts below ought to have applied their mind as to how P.Ws. 1 to 7 alone could identify the accused as the culprits when others could not. Above all, admittedly, no test identification parade was conducted though the accused were said to have been arrested within 10 days after the incident of dacoity. Had there been test identification and the witnesses had identified the accused in the test identification parade, their evidence in the Court can safely be believed taking their test identification as corroboration to the evidence given in the Court. There is no such corroboration here. The Courts below simply believed the identification of the accused in the Court after a period of more than 2 1/2 years.
24. The Courts below cited some decisions in their judgments in support of their finding that merely because test identification parade is not conducted, the evidence of the witnesses cannot be disbelieved on that ground. I have gone through the facts of those cases cited by the Courts below. In none of those cases, the accused were strangers and further there was no such time lag between the date of offence and the date of examination of the witnesses in Court. In none of those cases similarly situated persons failed to identify the culprits. The facts of those cited cases relied on by both the trial Court and the appellate Court are not at all similar to the facts of this case. The learned trial Judge relied on a decision in S. T. Shinde v. State of Maharashtra wherein the Apex Court held ‘that the evidence of test identification is admissible under Section 9 of the Evidence Act and it can be used only to corroborate the substantive evidence given by the witnesses in Court regarding identification of the accused in Court and that the earliest identification made by the witnesses at the test identification parade, by itself has no independent value’.
25. This observation of the Apex Court was relied upon by the trial Court, in support of his observation that simply because the prosecution failed to conduct a test identification parade the evidence of P.Ws. 1 to 7 with regard to the identification of the accused in the Court does not render unreliable. I am unable to understand as to how the cited observation of the Apex Court is applicable to the facts of the instant case, as admittedly in the instant case, no test identification parade was conducted. The other decision relied on by the trial Court is in Delhi Administration v. Balakrishnan . In the said decision the Apex Court held that it cannot be laid down as a proposition of law that after the lapse of a long period, witnesses would, in no case, be able to identify the dacoits they had seen in the course of a dacoity committed during the night and that, however, the Court will have to be extremely cautious when such evidence is before them. There cannot be any dispute about the said proposition of law. As per the said decision the Courts must be cautious when such evidence is before them. So the circumstances like the time-gap and the other evidence have to be taken into consideration. In the instant case, more than 2 1/2 years have elapsed which was not the same in the cited case. Further, in the instant case, similarly situated persons stated that on account of darkness they could not identify the culprits and thus their evidence belies the evidence of P.Ws. 1 to 7. Therefore, that decision does not come to the aid of the prosecution in the instant case. The other decision relied on by the trial Court is in Kantha PD v. Delhi Administration wherein the Apex Court held that failure to hold an identification parade does not make inadmissible the evidence of identification in the Court. There cannot be any dispute about the proposition of law. Here it is not the contention of the defence counsel that the evidence of identification in Court is inadmissible. Here in the instant case we are concerned about the reliability or otherwise of the evidence of P.Ws. 1 to 7 who for the first time identified the accused as culprits participated in the dacoity. Thus, the facts of the said case are also not similar and the said decision is also not relevant for the purpose of this case.
26. Coming to the Appellate Court judgment, the learned appellate Judge extracted the paragraph 16 from the decision of the Apex Court in Sarwan Singh v. State of Punjab wherein the Apex Court held that ordinarily identification of an accused for the first time in Court by a witness should not be relied upon for the purpose of passing the order of conviction without a definite corroboration since identification for the first time in Court cannot possibly be termed to be non-admissible, but it is a matter of prudence and jurisprudential requirement that the same should be upon proper corroboration, otherwise the justice delivery system may stand affected. In the same paragraph Their Lordships observed that the designated Court has in fact recorded a positive finding that the witnesses knew the accused even before the incident and they were acquainted with each other and on account of that reason the names could be mentioned in the F. I. R. itself and in view of such a state of affairs question of decrying the evidence of all the so-called interested witnesses on a first identification in Court would not arise. So it is clear that in the cited case the names of the culprits were the known persons and in the F. I. R. also their names were mentioned and on such facts it was held that the identification in Court is sufficient. But, in the instant case, it is the admitted case of the prosecution that A-1 to A-7 are utter strangers to P.Ws. 1 to 7 and their names were not given and even the physical features were also not given in detail either in the report or in the 161 Cr. P. C. statements. The learned appellate Judge grossly erred in applying the decision rendered in the cited case to the facts of the instant case. As per proposition of law laid down in the cited case, identification of the accused for the first time in the Court by a witness should not be relied upon for the purpose of passing the order of conviction without a definite corroboration. In the instant case, the evidence of similarly situated victims clearly belies the evidence of P.Ws. 1 to 7 who identified the accused for the first time in the Court.
27. There are several decisions of the Apex Court to the effect that it is not at all safe to base a conviction on the first time identification of the accused in the Court. In Kanan v. State of Kerala : 1979 Cri LJ 919 (supra) the Apex Court held that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observations and that the idea of holding test identification parade under Section 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once and that if no test identification parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. In another decision in Mohanlal Gangaram Gehani’s case (1982 Cri LJ 630 (3)) (supra) the Apex Court held that when the witness did not know the accused before the occurrence and no test identification was held to test his power of identification, his evidence becomes valueless and could not be relied upon and on that ground alone the accused is entitled to be acquitted.
28. In another decision in State of Maharashtra v. Sukhdeo Singh 1992 Cri LJ 3458 (supra) the Apex Court observed that the direct evidence regarding the identity of the culprits comprises of (i) identification for the first time after a lapse of considerable time in Court, or (ii) identification at a test identification parade and that in the case of total strangers it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court an that the test identification parade, if held promptly and after taking the necessary precautions to ensure its credibility, would lend the required assurance which the Court ordinarily seeks to act on it and that in the absence of such test identification parade it would be extremely risky to place implicit reliance on identification made for the first time in Court after a long lapse of time and that too of persons who had changed their appearance. Here in the instant case also no test identification parade was conducted and the identification of the accused in Court is after a lapse of more than 2 1/2 years and further the culprits at the time of incident had only knickers, whereas in the Court the accused were wearing clothes. Hence, the said observation of the Apex Court that in the absence of test identification parade it would be extremely risky to place implicit reliance on identification made for first time in Court after a long lapse of time is very much applicable to the facts of the instant case.
29. In a recent decision in Dana Yadav @ Dahu’s case (supra) the Apex Court held categorically that when the accused are strangers to the witnesses and the names of the accused are not mentioned in the F. I. R. or in the statement under Section 161, Cr. P. C. and if no test identification parade was conducted, conviction cannot be based on the identification of the accused in Court after two years. In the cited case, the occurrence took place on 25-4-1983 and out of the witnesses who identified the accused in Court one witness was examined after 2 years in the year 1985 and another witness was examined after more than 2 1/2 years after the occurrence i.e. in June, 1986 and on those facts the Apex Court held that it would not be safe to place reliance on the identification of the accused by these two witnesses for the first time in Court after an inordinate delay of more than two years from the date of incident especially when the identification in Court is not corroborated either by the previous identification in the test identification or any other evidence. In the instant case also, the identification of the accused by P.Ws. 1 to 7 in the Court is not corroborated by the previous identification in the test identification parade. Therefore, the said decision of the Apex Court is very much relevant to arrive at a decision in the instant, case. In another decision in Lakhvinder Singh v. State of Punjab 2003 Cri LJ 3058 (supra) the Apex Court held that non-holding of test identification parade to identify the assailants is a serious lapse and such failure on the part of the prosecution is fatal to the prosecution case. In the instant case, the prosecution failed to conduct test identification parade without valid reason. It is not as if that the investigating officer is not aware of the importance of holding test identification parade in this case. The Investigating Officer PW-20 in his evidence admitted in the cross-examination that he obtained permission from the Sessions Court for holding test identification parade through the Magistrate. He stated that two times summons were issued to the witnesses for the purpose of test identification parade for identifying the accused by the witnesses. According to him the test identification parade was adjourned twice for some or other reason and on the third occasion when the summons were issued to the witnesses for identification of the accused, the accused had come out on bail and so the test identification parade in this case could not be conducted. But, he could not say on which date he gave requisition and on which date summ were issued to the witnesses. He could not elaborate the reasons for adjournment of test identification parade on two occasions. The reason given by him for not conducting the test Identification parade on third occasion is that the accused had come out on bail. This is not a sufficient reason for failure to get the test identification parade conducted. There is no hard and fast rule that the accused must necessarily be in jail for the purpose of test identification parade. There is no bar for conducting test identification parade in respect of the accused who are on bail. Nothing prevented the prosecution to get summons issued by the Magistrate to the accused to appear on a particular date at a particular place for the purpose of test identification parade. In fact, the interests of the accused will be safe in cases where the accused were on bail when compared to the detention in jail by the date of test identification parade. Because the usual complaint of the accused will be that they were shown to the witnesses while they were in custody. Such defence cannot be taken if the accused are on bail as they can safeguard themselves from being shown to the witnesses. Therefore, the explanation of the Investigating Officer that test Identification parade could not be conducted as the accused were released on bail is not tenable and it is only an excuse for his failure to conduct test identification parade. As the accused are well within the jurisdiction of the Court and amenable to service of summons, the prosecution cannot plead that the test identification parade could not be conducted on account of the accused being on bail and not in the custody. The police and some Magistrates appears to be under erroneous impression that once the accused are released on bail, no purpose Will be served by conducting test identification parade. Such impression if any should be erased from the minds of the police and also the Magistrates. If the accused are on bail, the prosecution can request the jurisdictional Magistrate to issue summons to the accused to appear on such and such place and before such and such Judicial Officer duly intimating them that they are summoned for the purpose of test identification so that they can take necessary precautions. Therefore, the explanation of the Investigating Officer for his failure to conduct test identification parade is not satisfactory.
30. Be that as it may, the fact remains that no test identification parade was conducted in order to corroborate the oral testimony of the witnesses given in Court after a long lapse of time. As there is a long gap between the date of offence and date of examination of the witnesses in this case, failure to hold test identification parade is fatal to the case of prosecution. Therefore, in my considered view that the Courts below erred in placing reliance on the identification of the accused by P.Ws. 1 to 7 in the Court for the first time after a period of more than 2 1/2 years. Thus, this point is found in favour of the revision petitioners and against the prosecution.
POINTS 2 AND 3 :
31. It is the case of the prosecution that M. O. 1 pair of gold ear-studs belonged to PW-1, M. Os. 2 and 3 two pairs of gold bangles and M. O. 4 gold chain belonged to PW-2, M. O. 5 a pair of gold ear-studs belonged to PW-4, M. O. 7 cash of Rs. 2,000/-belonged to PW-6, M. O. 8 ten rupee note, M. O. 9 five rupee note and M. O. 10 one rupee note also belonged to some of the victims and that those properties were robbed by A-1 to A-6 on the night of 6-11-1995 and that out of those properties M. O. 4 gold chain and cash of Rs. 2,016/- (M. Os. 7 to 10) were recovered from A-1, M. O. 2 was recovered from A-2, M. O. 3 was recovered from A-3, M. O. 6 was recovered from A-4, M. O. 5 from A-5 and M. O. 1 from A-6 on 15-11-1995 at about 7.00 p.m. at the hotel of PW-14 at Dubacherla junction in the presence of P.Ws. 11, 14 and 15 by the Inspector of Police PW-20.
32. Further, according to the prosecution the prosecution witnesses P.Ws. 1 to 4 identified M. Os. 1 to 6 as their properties which were robbed on the night of 6-11-1995 in the presence of PW-15 and one Muppirisetti Subbaiah and Ex. P-7 is the test identification proceedings in respect of the property prepared at the time of the test identification.
33. Firstly it has to be seen whether the properties M. Os. 1 to 6 belonged to P.Ws. 1 to 4. As seen from Rule 35 of the Criminal Rules of Practice the identification of properties shall be held in the Court of Magistrate where the properties are lodged and each item of property shall be put up separately for the parade and it shall be mixed up with four or five similar objects and before calling upon the witnesses to identify the property, he shall be asked to state the identification marks of his property and the witnesses shall be called in one after the other and on leaving shall not be allowed to communicate with the witnesses not yet called in. The said procedure of conducting identification parade in respect of the property has not been followed in this case, as admittedly the identification parade was not conducted in the Court of the Magistrate. As seen from Ex. P-7 the alleged test identification proceedings dated 16-11-1995, the test identification was conducted in Dubacherla Grampanchayat office and each item of property was not put up separately in the parade after mixing with 4 or 5 similar objects as required under Rule 35 (2) of the Criminal Rules of Practice. As per the proceedings, the police secured only two more similar articles and each variety of item handed over to the mediators and the mediators clubbed all of them and asked the witnesses one by one to come and identify their properties. Further, as seen from the proceedings, the witnesses were not asked to state the identification marks of their respective properties before showing the properties put up for test identification as required under Sub-rule (3) of Rule 35 of the Criminal Rules of Practice. Thus, it is clear that the test identification in respect of the properties are riot conducted in accordance with the procedure prescribed in Criminal Rules of Practice. Therefore, much credence cannot be given to the alleged test identification of M. Os. 1 to 6 by the witnesses P.Ws. 1 to 4.
34. Coming to the evidence, PW,-1 admitted in her cross-examination that her gold ear-studs, which were robbed have been purchased about 10 years prior to the date of incident and she used those ear-studs for a period of ten years continuously and that each ear-stud is having seven white stories. She further stated that if the said ear-stud is having more than seven white stones, it will not be her ear-studs. When the ear-stud M. O. 1 was shown to her, she admitted that M. O. 1 ear-stud contain 12 white stones and not seven and, therefore, M. O. 1 is not her property. Therefore, it cannot be said that M. O. 1 is the property, which was fobbed on the night of the incident. It is not known to whom the said ear-studs belonged.
35. Similarly, PW-2 stated in the cross-examination that she has been using her two pairs of gold bangles and gold chain which were robbed from her since 12 years prior to the date of incident continuously. When two pairs of bangles M. Os. 2 and 3 were shown to her and asked her whether those pairs are having wear and tear (“ARUGUDALA”) the witness in the first instance stated that there is no “ARUGUDALA”. Of course, she realised and stated that she cannot say about it. At any rate, she could not assert that those bangles M. Os. 2 and 3 indicate the long use. It was suggested to her that M. Os. 2 and 3 are new bangles. Of course, she denied the said suggestion. So it creates any amount of doubt whether M. Os. 2 and 3 pairs of bangles were the bangles of PW-2, which were robbed on the night of incident. In respect of her gold chain M. O. 4, PW-2 stated that her chain is having a hook and when M. O. 4 chain was shown to her, she admitted that M. O. 4 does not contain any hook, therefore, it is also doubtful whether M. O. 4 belonged to PW-2 and it was the chain robbed on the date of incident. PW-3 stated that she identified her gold ear-studs M. O. 5 in Bheemadole Grampanchayat in the test identification parade. She stated that she had purchased those ear-studs about one year prior to the incident and she got them prepared by Eluru Subrahmanyam, a goldsmith of Eluru. No documentary evidence has been produced to show that the said gold ear-rings were got prepared about one year back by PW-3. The said goldsmith is not examined. It was suggested to her that both the ear-studs are not similar and they are different. She denied the said suggestion. Further in her 161 Cr. P. C. examination she stated that the weight of her gold ear-stud was 1/4 sovereign. But, in the evidence she stated that M. O. 5 ear-stud is not less than half sovereign. She further admitted that in the test identification several more pairs of ear-studs were clubbed with M. O. 5, but those ear-studs were slightly different from her ear-studs and, therefore, she identified M. O. 5 as her ear-studs. Thus, it creates a doubt whether the M. O. 5 ear-stud belonged to PW-3. PW-4 stated that she identified M. O. 6 as her ear-studs in the test identification parade conducted in Dubacherla Grampanchayat office. But, she could not give the location of the Grampanchayat in Bheemadole. She categorically admitted in her cross-examination that the other pairs of gold ear-studs mixed with M. O. 6 ear-studs were not similar to that of M. O. 6 ear-studs. She further admitted that before the police she stated that her gold ear-studs, which were robbed were studded with white stones with one red stone in the middle. She further admitted that M. O. 6 gold ear-studs are studded with white stones and three red stones in the middle. She could not say the; number of white stories studded in each of her ear-studs. Therefore, it creates any amount of doubt whether M. O, 6 ear-studs belonged to PW-4, which were robbed on the night of incident, M. Os. 7 to 10 are the cash and nobody can identify the currency notes as that of his/her notes, without noting down the numbers of that note. In the instant case, none of the witnesses gave numbers of the notes before the police. Therefore, the alleged identification of M. Os. 7 to 10 if any cannot at all be believed. As seen from test identification proceedings Ex. P-7, no test identification parade was conducted in respect of M. Os. 7 to 10. Therefore, it cannot be said that the prosecution succeeded to prove beyond reasonable doubt that M. Os. 7 to 10 cash was robbed from P.Ws. 6, 7, and others on the night of incident.
36. If it is assumed that M. Os. 1 to 10 are the properties involved in the dacoity committed on the night of 6-11-1995 it has to be seen whether the prosecution succeeded to prove that the said properties were recovered from the accused. According to the prosecution, the said properties were recovered from A-1 to A-6 on 15-11-1995 at about 7.00 p.m. at the hotel of PW-14 in the presence of P.Ws. 11, 14, and 15 under a cover of panchanama Ex. P-6 by the Circle Inspector of Police PW-20. PW-14 the owner of the coffee hotel at Dubacherla junction where the police said to have arrested A-1 to A-6 and recovered M. Os. 1 to 10, stated that he is running a coffee hotel at Dubacherla junction and the police never caught hold of any of six persons at his hotel and no mediators’ report was drafted in his hotel for any seizure of gold or cash from any of the persons. This witness was treated hostile by the prosecution. It was suggested to him that on 15-11-1995 police arrested six persons and recovered gold ornaments and cash from them under a cover of mediators’ report in his hotel and that he is giving false evidence in the Court as he was gained over by the accused. The said suggestion was denied. Therefore, the evidence of PW-14 does not help the case of the prosecution to prove that M. Os. 1 to 10 were recovered at the instance of the accused A-1 to A-6. PW-11 one of the two mediators stated that he is resident of Bheemadole and that he is running a photo studio at Bheemadole and about 2 1/2 years back the Sub-Inspector of Police, Bheemadole called him to the Police Station and took his signature on the mediators’ report dated 15-11-1995 and he does not know its contents and he does not know anything about this case. This witness was treated hostile and it was suggested to him that on 15-11-1995 at about 7.00 p.m. the Inspector of Police, Bheemadole Circle arrested A-1 to A-6 at Dubacherla junction near the coffee hotel of PW-14 and on interrogation the accused confessed the offence leading to discovery of M. Os. 1 to 7 and in that context he attested Ex. P-6 and that he gave false evidence in the Court having been gained over by the accused. The said suggestions were denied. Therefore, the evidence of this witness also is of no assistance to the case of prosecution. The only evidence that remains for the prosecution is the evidence of PW-15 the other mediator. He supported the contents of panchanama Ex. P-6. In fact, he is the scribe of both the panchanamas Exs. P-6 and P-7. It is noted in the deposition that he gave evidence on seeing Exs. P-6 and P-7. His evidence is in accordance with the contents found in Ex. P-6. Ex. P-6 panchanama runs into six pages which was written by PW-15. Admittedly, this witness is not a resident of Dubacherla junction where the accused were said to have been arrested and the properties seized. On the other hand, PW-15 is resident of Kurellagudem village and he is working as Village Administrative Officer of Amberpeta of Bhimadole Mandal. He admitted in his cross-examination that Bheemadole is at a distance of about 5 kms. from his village Kurellagudem and Doobacherla junction is at a distance of about 16 Kms. from Bhimadole. Of course, he stated that he had taken a room at Bheemadole for revenue collection and he was also working as in-charge Village Administrative Officer of Bheemadole on the date of Ex. P-6. He further admitted that Dubacherla junction is located within the limits of Nallajerla village and there are Village Administrative Officers and Sarpanches in Dubacherla village and Nallagerla village. He further stated that Dubacherla junction is on N. H. 5 road and it is a busy locality and there are hotels on either side of the road and there are residential houses as well as shops on either side of the junction and Dubacherla junction extends to a distance of two furlongs to the residential houses, shops and hotels and that the traffic will may be heavy round the clock and the hotels will be kept opened round the clock on account of heavy vehicular traffic on N. H. 5. But, curiously enough PW-20 the Investigating Officer stated that he could not secure any mediators of the locality to act as mediators. He wanted the Court to believe that he had taken PW-15 from Bheemadole all the way to Dubacherla junction to act as mediator. As per Section 100, Code of Criminal Procedure, whenever a search Is made, the persons of the locality has to be taken as mediators. It is not as if in the instant case the arrest and seizure took place outside of any residential locality. On the other hand, the accused were said to have been arrested at a coffee hotel in a busy place like Dubacherla junction where there are number of shops and also residential houses. There is no material to show that PW-20 served any summons on any of the witnesses of the locality to act as mediators and those persons refused to act as mediators. In the absence of such evidence the explanation of PW-20 for non-compliance of Section 100 of Code of Criminal Procedure cannot be given credence. Obviously, PW-15 appears to be a stock witness for the police and, therefore, the police got the panchanama scribed by such a witness and also wanted him to act as mediator. According to the other mediator PW-11 his signature was taken in Dubacherla Police Station. Therefore, the evidence of PW-15 and PW-20 that Ex. P-6 was prepared at Bheemadole junction near the coffee hotel of PW- 15 in connection with the arrest of the accused and the seizure of properties M. Os, 1 to 10 cannot be believed. As already observed supra, PW-14 the coffee hotel owner denied the arrest of any of the accused at his hotel. It is the case of the accused that they were taken into custody on 7-11-1995 itself and they were taken to several police stations and they were beaten black and blue. In view of the evidence of P.Ws. 11 and 14, the statements of the accused made during 313 Cr. P. C. examination cannot be brushed aside. The Investigating Officer stated that, he suspected A-1 to A-6 as he came to know that since evening of 6-11-1995 the accused were not found in the village but none of the witnesses of the village of the accused were examined to speak about the said fact. Even PW-20 did not enquire any elders of the village or the Village Administrative Officer of the village regarding the antecedents of A-1 to A-6. The learned Counsel for the accused contended that none of the accused had any criminal record and that they were labourers and when they were returning from coolie work, they were arrested suspecting them as culprits. In view of these circumstances, I am unable to believe the testimony of PW-15 and PW-20 in respect of the alleged recovery of M. Os. 1 to 10 from A-1 to A-6. In my considered view, the prosecution failed to prove beyond reasonable doubt that M. Os. 1 to 10 were recovered from the possession of any of the accused. Thus, both these points are found in favour of the revision petitioners and against the prosecution.
POINT 4:
37. The Courts below without scrutinizing the evidence simply believed the prosecution version forgetting the fact that it is not safe to place reliance on the identification of the accused in the Court for the first time after a lapse of 2 1/2 years. The Courts below appear to have carried away by the nature of the offence committed in the instant case. It is true that that the highway dacoity during the night is a very serious offence. Merely because such a serious offence was committed, it cannot be said that the Courts can be carried away by the nature and manner of the occurrence. The Courts have to see whether the accused facing trial are the culprits and whether there is a foolproof evidence to connect the accused facing trial with such ghastly offence. In the instant case, the Courts below failed to appreciate the evidence properly with reference to the circumstances available to test the veracity of the identification of the accused by the witnesses in the Court for the first time. In other words, the appreciation of evidence by the Courts below is not in accordance with the law and such appreciation resulted in miscarriage of justice. Hence, I am of the considered view that this is a fit case warranting interference by this Court with the conviction and sentence recorded by the Courts below against the revision petitioners. Therefore, the conviction and sentence recorded by the Courts below against the revision petitioners are liable to be set aside. Thus, this point is found in favour of the revision petitioners. POINT No. 5:
38. IN THE RESULT, the Criminal Revision Case is allowed. The conviction and sentence recorded against the revision petitioners 1 to 6 in S. C. No. 128 of 1996, dated 31-12-1998 on the file of the Additional Assistant Sessions Judge, Eluru which was confirmed in Crl. A. No. 10 of 1999, dated 3-4-2003 on the file of the Sessions Judge, Eluru are hereby set aside. The revision petitioners shall be set at liberty forthwith if they are not required in any other case and their bail bonds shall stand cancelled. The fine amount, if any, already paid by the revision petitioners shall be refunded to them.
