Syed Anwar , Annu v. The State Of A.P.

!

I I Note: The Appellant i Accused No. 'l released on bail by the order of the High Court dated 03-07 -2012 in Crl.A.M.P. No. 1250 of 2012 in Crl.A.No. 5gg ot 2012 . I i tI l I

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD FRIDAY ,THE THTRTIETH DAY OF DECETVBER TWO THOUSAND AND TWENTY TWO ,"

iI PRESENT II ii I THE HON,BLE DT. JUSTICE SHAMEEM AKTHER AND THE HON'BLE SRI JUSTICE E.V. VENUGOPAL l a CRIMINAL APPEAL Nos : 599 638 657 685 694 & 73s OF 2012 I I Crl.A.No. 599 of 2O12:

I Crl.Appeal Under Section 374 (2) of code of Criminal Procedure against the Judgment dated 28lOOl2O12 in S.C. No. 477 of 2010 on the file of the Court of the Special Judge for Economic Offences - cum- Vlll Additional Metropolitan Sessions Judge at Hyderabad.

'

Between:

l/ustafa Omer Misri @ Khalid Misri (A1 ), S/o. Omer Misri, Occ: Student, R/o. 19-443Bl N20 I 1, B.N.K.Colony, Near Eidgah, Hyderabad. ...APPELLANT / Accused No.1 AND State of A.P., , Rep., by its Public Prosecutor, High Court, Hyderabad. ...RESPONDENT/ Complainant Counsel for the Appellant:SRl. G. SHARAN REDDY Counsel for the Respondent: THE PUBLIC PROSECUTOR Note: The Appellant / Accused No. 5 released on bail by the order of the High Court dated 10-07-2012 in Crl.A.M.P. No. 1351 OF 20'12 in Crl.A.No. 638 of 2012.

CRL.A. NO: 638 OF 2012 Crl.Appeal Under Section 374 (2) of Cr.P.C. against the Judgment dated 2810612012 in S.C. No. 477 of 2010 on the file of the Court of the Special Judge for Economic Offences - cum- VIII Additional Metropolitan Sessions Judge at Hyderabad.

- Between:

Abdul Samad, S/o Abdul Qayyum, Occ. Lorry Transport, Rl/o H.No.'19-4-28018115154, Madina Colony, Tadbun, Hyderabad.

...APPELLANT/ Accused No. 5 AND The State of A.P. Rep. By its Public Prosecutor, High Court Building, at Hyderabad. ...RESPONDENT/ Complainant Counsel for the Appellant: SRl. MOHD ASHRAF ALI Counsel for the Respondent: THE PUBLIC PROSECUTOR Note: The Appellant / Accused No. 6 released on bail by the order of the High Court dated 13-07-2012 in Crl.A.M.P. No. 1419 OF 2012 in Crl.A.No. 657 of 2012.

CRL.A. NO: 657 OF 2012 Crl.Appeal Under Section 374 (2) o'f Cr.P.C. aggrieved by the Judgment daled 281061201 2 in S.C. No. 477 of 2010 on the file of the Court of the Special Judge for Economic Offences - cum- Vlll Additional Metropolitan Sessions Judge at Hyderabad.

Between:

Syed Hussain, S/o Syed Qasim occ. Lorry Driver Rl/o Plot No.1 86, H.No.1 9-32941637 llDMl 1, Vattepally, Hyderabad ...APPELLANT/ Accused No. 6 AND The State of A.P. Through Public Prosecutor, A.P. High Court Building Hyderabad ' ...RESPoNDENT/ Complainant Counsel for the Appellant: SRl. MOHD ASHRAF ALI Counsel for the Respondent: THE PUBLIC PROSECUTOR Note: The Appellant / accused No.2 was directed to be released on bail by the order of the High Court dated 23-07-2012 in Crl.A.M.P.No. 1475 ot 2012 CRL.A. NO: 685 OF 2012

Crl.Appeal Under Section 374 (2) of Cr.P.C. aggrieved by the Judgment dated 2810612012 in S.C. No. 477 of 2010 on the file of the Court of the Special Judge for Economic Offences - cum- Vlll Additional l\/etropolitan Sessions Judge at Hyderabad.

Between:

- SYED ANWAR @ ANNU, S/o Syed Moinuddin, Occ: Lorry Driver, R/o H.No.19-3-294/'171lA, Near Guntal Nagar, Valtepally ..APPELLANT/ A2 AND The State of Andhra Pradesh ., Represented by its Public Prosecutor, High Court Buildings, Hyderabad.

...RESPONDENT Counsel forthe Appellant: SRI K. SRINIVAS REDDY Counsel for the Respondent: THE PUBLIC PROSECUTOR CRL.A. NO: 694 OF 2012 Crl.Appeal Under Section 372 of Cr.P.C. aggrieved by the Judgment dated 28106120'12 in S.C. No. 477 of 2010 on the file of the Court of the Special Judge for Economic Offences - cum- Vlll Additional Metropolitan Sessions Judge at Hyderabad.

Between:

S.[\,4.HYDER ALI MIRZA, S/o. Late S.l\rl.Yousha Ali Miza, R/o.H.No. 19-4-4381N2O11. B.N.K.Colony, Bahadurpura, Hyderabad.

I ..APPELLANT/ Complai nant /P.W.1 AND

1. Syed lmtiaz (A.4), S/o. Syed Maqbool, Occ: Key maker, Rl/o. '179, Habeeb 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.

3. The State of A.P., Rept. by the Public Prosecutor, High Court of 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 of CRL.A. NO: 735 OF 2012 Crl.Appeal Under Section 37a (2) of Cr.P.C. aggrieved by the Judgment dated 2810612012 in S C No. 477 of 2010 on the file of the Court of the Special Judge for Economic Offences - cum- Vlll Additional lt/etropolitan Sessions Judge at Hyderabad.

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., Hyderabad ,..APPELLANT/ Accused No. 3 AND The State Of AP., through Public Prosecutor High court at Hyderabad ..RESPONDENT/ Complainant Counsel for the Appellant: SRl. MOHD ASHRAF ALI Counsel.forthe Respondent: THE PUBLIC PROSECUTOR THE COURT DELIVERED THE FOLLOWING COMMON JUDGMENT :

q l THE HON.BLE DT. JUSTICE SHAMEEM AKTHER AND THE HON'BLE SRI JUSTICE E.V,VENUGOPAL RI PEAL N s.5 9 694 &735 of 2 COMMON JUDGMENT:

(Per Hon'ble Dr. Justice Shameem Akther) Since the facts of the case and issue involved in all these appeals are identical and since all these appeals arise out of the same judgment, all these appeals are taken up together and are being disposed of by this common judgment.

2, For convenience oF discussion, the parties are hereanafter referred ton as arrayed before the trial Court. 3.

Criminal Appeal Nos.599, 638,657,685 and 735 of 2072 are filed by A1, 45, A6, A2 and A3 respectively and Criminal Appeal No.694 of 2072 is filed by the complainant, challenging the judgment, dated 28.06.2012, passed in S.C.No.477 of 2010 by the learned 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 to A7 of the oFfence under Section 1208 of IPC and Al, A4 and A7 of the offence under Section 396 of IPC, convicted A2, A3, A5, 46 of the 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 I 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 three months.

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, Sri H.Prahalad Reddy, learned c{;unsel, representing Mr. Mohd. Ashraf Ali, learned counsel for appellants/A5, A6 and 43 in Crl.A.Nos.63B, 657 and 735 oi 2012, Sri .r.Pradyumna Kurnar Reddy, learned seni0r counsel, appearing for the appellant in Crl.A.No.694 of 2012i complainant, Mr. Mohd. Muzaffer Ullah Khan, learned counsel for the appellani/A7 in Crl.A,lJo.694 of 2072, Sri C.Pratap Reddy, learned Pubrlic Prosecutor appearing for the respondent/State in all these appeals, and perused the record.

5.

The facts of the case, in brief, are that PW.1-S.M.Hyder Ali lodged a complaint on 31,Ci.2007 at 05.30 AM with PW.17K.Chakrapani, Inspector of Police, Bahadurpura Police Station, who was camping at scene of offence, that on 31.t2.2007, at about 04.05 AM, his daughters Sanobar (PW.2) and Sabreen (1W.4) were sleeping 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 first floor. They informed PW.1 that a five-member gang of dacoits killed the deceased and looted the cash from almirah. Immediately, PW.1 rushed to the bed room of the deceased and found 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 with SIM No.9848055001 were missing. His daughters told that five members were involved in the oFfence and out of them, one was wearing red T shirt and four others were wearing monkey caps. 6.

On receipt of complaint, PW.17 forwarded the same to SHO Bahadurpura, with an endorsement For registration of crime and accordingly, PW.15-A.Sudarshan, Sub-Inspector oF Police, Bahadurpura Police Station, registered a case in Crime No.302 of 2007 for the offence under Section 396 of IPC and issued Ex.P36FIR and handed over the C.D. file to PW. 17, who was camping at the sce ne oF offence.

7, Having taken over the investigation, PW.17 conducted the scene 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

l .l DI,.SA. ,, & E\ \', J ( rl..\.\or.59t)/2(ll2 end bxt.h the dead body of the deceas-.d, prepared seizure report under Ex.P3 under which, M.Os.15-one brown colour muffler, MO.16-two pieces of lemon colour dupaila oral parda, N4O.17-one lungi brow;r black and while colour with kr"rrta, MO.1B-one mehorane brown and white colour, lt4O.19-one creant colour track pant and MO.20-one cream colour traak pant. were seized. Later, the dead body was sent for Post lvlortem Examination and PW.5-Dr.Abhjit Subedar conducted Post lvlortem Exanrination and issued Ex.P7-PME Report. Later, PW.17 issued a requisitlon through DCP South Zone tcr all cell networks to track the ce phone of the deceased with ilYE 352?-730L207 3125 and to fur nish call details. On 25.01.2008, the case 'was transferred to CCS for further investigation, where, LW,36-Veerappa, Inspector of Police, issued a fresh FIR in FIR No.18 of 2008 f'or the offences under Section 396 of IPC and handed over the nvestigatior, to PW.1B-I.T.V.S.Suryanarayana, 8.

PW.1B secured the call details of the cell phone of the deceased from the Nodal Officer of Idea Cellular and found that A2 was using cell phone of the deceased with SIM 9912852184. On enquiry, it came to light that the said SIM was standing in the name of Pw.g-tvlohd. Moosa, who, on enquiry, informed that he sold the cell phone with IME No.89910704200000148074 with SIM to 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 said accused and recorded their confessions in the presence of PW.BAhmed Nizamuddin and lw.21-Ahmed Mohinuddin. Upon the information furnished by 46, the police apprehended 41, A3, A5 and A7 at Macca hotel, Tadban, and they were also produced before PW.1B and their confession was also recorded in the presence of PW.7-Mohd. Ali Khan and LW.21-Sri Ahmed Mohinuddin.

9, The following properties were recovered from A1 to A7, pursuant to their confession recorded under Exs.P10 to P16. A1 Rs.1,00,000/-(two bu nd les of Rs.500denomination) Ex.P.13 is ad missible confession (!4,o 1) qrrd !.qp!o!e LM o.2s) A2 i) cash of Rs.50,000/- (Rs,100) M.O.2 i!).!!M card (!!.P.1!) i) Rs.17,s00/- (s00) (M.O.3) ii) tG cell phone M.O.26 Ex. P.14 is admissible confession iii) Rs.1,00,000/- (two bundles of Rs.500 denomination) from his house u nder iv) Gloves (14O-32) I A3 ( N4. o.4) Monke Ca S N10- 3 3 u nder Ex.P-19 seizure re ort A4 i) Rs.20,000/- (Rs.20l-) M.O.7 1,000/- Priya Scooter (M,O.22) Ex.P.11 is ad m issible confession Ba ort a Scoote r t40-31 u nder Ex.P-18 seizuie re i) Rs.s0,000/- (s00) (lY.o.6 ) Reliance LG phone (M.O.27) monkey cap (M.o,28). Ex.P.15 as admissible confession A5 A6 i) Bajaj Pulsar two wheeler (M.O.23) Monkey cap ( Nl. O.24 ) Rs.20,000/- (MO-5) Ex.P-12 is admissible ortion of confession A7 i) Rs.44,000/- ( Rs.1000/-denomination ) (MO-8) Nokia Cell tv]0 - 29 I

I)r.s \. .l d( [-\ \ . I ( . \.\ *.5')r) l(lll xnd h,rtch Bajal Pulsur ( MO-30) !-x.? 1(, il!!s qdqrssLql" portion 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 Chetak Scooter was recovered under Ex.P1B-seizure report. 43 also lead the police to his house at Ka apathar and at his instanace, the police recovered MO.4-one lakh rupees of 500 denomination, MO.32-hand gloves and MO.33-[4onke], Cap under Ex.P.19-seizure report. Ex.P.14 is the relevant portion marked in the confession of 43. A1 to A7 r,vere arrested and they were remanded to judicial custody.

11. The police obtaineci oolice custody of A1 to A7 from 18.02.2008 to 24.02.2008. 42 to A4 and 46 made confessions in the presence of PW.B and 1.W.24-Syed Ismail. On the basis of confession made by A2 and A4, a Nokia cell phone with IMA No,352273107720737275 of the deceased was seized from the possession of P.W.11-Syed Asad Khan to whom 42 and A4 sold the cell phone, under seizure panchanama prepared in the presence of PW.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.

Dr.S,\.., & L\ \.., (lrl-A.Nos.59r/201 2 and brrch , Azam/brother of A.3, in the presence of PW.B and 1W.24. On the basis of confession made by 42, a sum of Rs.22,000/- was recovered from his father (1,W.27-Syed Moinuddin) in the presence of PW.B and LW.24. On the basis of confession made by 46, a Nokia cell model 7610, which was purchased with ill-gotten amount, was seized in the presence of PW,B and LW.24. The specimen signatures of 42 and 44 and thumb impression of 44, which were obtained with the permission of the Court, were sent to Forensic Science Laboratory to compare the same with the signatures and thumb impression found on Ex.P24-Purchase Register maintained by PW.11-Syed Asad Khan, the owner of cell shop. .

L2. The final result of the investigation disclosed that A1 is the grandson of deceased, who was living with the deceased. He was addicted to luxury life by hiring the cars and roaming with girls. A1 and 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 the deceased. A1, A3, A5 and A7, having conspired together, made a reccy at the house of deceased in order to gain access to the room

l)r.\.\. .l .t h\ \ ..I ( rl. \.\,,r.S(,i) :()l: !nd hal(h s \ 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 to Bahadurpura and met A1, 43, A5 and 47 and went to the house of the deceased to conduct final reccyto execute the offence. At this reccy, PW.3-Nadira Ameena Kauser Sultana/sister of PW.1 had seen all the accused. On 30.12.2007, except A1, all other accused gathered at Guntala Baba Dargha in furtherance of their conspiracy with A1 and planned the offence. With such plan, they went to the house of the deceased and met A1, who, as planned, unbolted sliding aluminium door of balcony and kitchen window, to facilitate the accused to gain access. Then, A1 and A7 waited outside, i.e., backside of the house and the other accused climbed in to the house. Thereafter, they gained entrance into the bed room of the deceased. Before that, some of the accused have bolted the other rooms from outside and then, after entering into

- I)I.SA..l .t l.\ \ . .l ( d.,\.\0s.599/2012 and balch the bed room oF the deceased, A2 to 46 looted amount of Rs.6,00,000/- from the almirah of the deceased. When PW,2 and other minor woke up, they were threatened by the accused and as such, they (PW.2 and other minor) were secretly watching with the little opened eyes. When the deceased tried to wake up, A2 went to him and applied liquid whitener eraser and made the deceased to become unconscious. The deceased died due to smothering done with muffler to neck. Thereafter, the accused removed their caps and fled away.

L4, On 29.03.2008, Test Identification Parade was conducted by a learned Magistrate, wherein, PW.2 identified A2, 43, A5 and A6 (did'not identify 44) and PW.3 identified A2, A3 and 47 (did not identify A4, A5 and 46). After examination of the relevant witnesses by collecting various documents and expert opinions, charge sheet was laid before the learned XII Additional Chief Metropolitan Magistrate, Hyderabad. The Magistrate has taken cognizance of the case in P.R.C.No.4 of 2008 and committed the case to the Metropolitan Sessions Judge,,Hyderabad, under Section 209 Cr.P.C., since the case is exclusively triable by the Court of Session. On committal, the Metropolltan Sessions Judge, Hyderabad, registered the case as S.C.No.477 of 2070 and made over to the Court below for disposal, in accordance with law. On

I l0 l)r.S \-,1 rt ll\ \ . ., ( rl..\-\,)!.i99/lt)l: rod brt(h \ 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 examined PWs.1 to 18 and got nlarked Exs.Pl to P41 atrd MOs.l to 34. On behalf of the accused, no oral evidence has been adduced and Exs.D1 to D3 r,vere marked. When A1 to A7 were cortfronted with the incriminating material appearing against them and were examined under Section 313 Cr.P.C, they denied the same.

16. The trial Court, having considered the submissions made and the evidence available on record, vlde impugned judgment, datecj 28.12.2012, passed in S.C.No.477 of 2010, while acquitting A1 to 47 of the offence under Section 1208 of IPC and A1, A4 and A7 of the offence under Section 396 of IPC, convicted A2, A3, A5, A6 of the oFfence under Section 396 of IPC and convicted A1 of the offence under Section 412 of IPC and sentenced them as stated supra. Aggrieved by the same, A1, A2, A3, A5 and A6 filed Cr|.A.Nos.599,685,735,638 and 657 of 2012 respectively challenging the conviction and sentence recorded against them; and the complainant filed Crl.A.No.694 of 2012 challenging the acquittal recorded in favour of A4 and A7.

/

ll t)r.S.\.., & U\'\..l ( rl. \.\os.599/2012 alld hnt(h 17, Learned counsel for the appellant in Crl.A.No.599 of 2O72/AL would contend that the conviction and sentence recorded against 41 is contrary to law, weight of evidence and probabilities of the case. A1 was convicted and sentenced for the offence under Section 412 of IPC, without there being any substantial evidence on record. The Court below ought not have convicted A1 of the offence under Section 472 of IPC without there being any cogent and convincing evidence on record. PW.7 and PW.18 are highly interested 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 alleged coniession of A1 as mentioned in Ex.P13 is planted for the purpose of this case.

Even there is no identification oF the property, which is allegedly robbed. Furthermore, there is no evidence to show that the deceased or PW.1 had withdrawn any amount from Standard Chartered Bank and kept the same in the almirah in the room where the deceased slept. A1 is the grandson of the decea.sed. He has immense love and affection towards the deceased. He has no role whatsoever in the commission of dacoity coupled with murder and ultimately prayed to set aside the conviction and sentence recorded against A1 for the offence under Section 4t2 of lPC.

\

l l)r.s\..l d U\\. I ( rl. \.\o\-591)/:01: nr(l bntch '!

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 highly interested witnesses and it is not safe to act upon their testimony. PW.3 was suffering from poor eyesight. Hence she identifying 42 is 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 uporl her testimony in convictinq the 42 and the other accused. Further, as per FIR, the offenders were wearing monkey caps. There is no mention anywhere in the FIR that their faces were visible. Moreover, there is no eviderrce of presence of light in the house at the scene of offence, i.e,, the room where the alleged dacoity coupied with murder was committed. Further, LW.

4-Nadira Saba Noor Sultana, another sister of PW.1, who was allegedly sleeplng in the room, where the deceased was sleeping, was not examined for the best reasons known to the prosecution. Further, there is no evidence to show that five persons have indulged in commission of the alleged offence. The essential ingredients of offence under Section 396 of IPC have not been proved against the appellant/A2.

-- I tl l)r.s{.J&L\\.J (lrl.{.\0s.59r.)/2tll : and bal(h the almirah etc. No credibility can be attached to the identification I 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 the appellant/A2 is planted for the purpose of investigation of the case. There is no cogent and convincing evidence on record which establish that the appellant/A2 is guilty of the offence under Section 396 of IPC and ultimately prayed to set aside the conviction and sentence recorded against the appellant/A2 of the offence under Section 396 of IPC.

19. Learned counsel for the appellants in Crl.A.Nos.735, 638 and 657 of 2072/A3, 45 and A6 respectively, have also raised similar contentions which were raised by the learned counsel for A2. It was also vehemently contended that PW.2 and LW.4 were not sleeping in the room where the deceased was sleeping inasmuch as there is no mention of presence of any bed or bed sheets to demonstrate that PW.2 and LW.4 were sleeping in the room where the deceased was sleeping. There is also no mention of presence of light.in the room at: the time of commission of offence. In support of his contentions, appellants in Crl.A.Nos.735, 638 and 657 ot 2012/A3, A5 and 46 respectively had relied on the following deiiSions.

tl l)r-\\.J&1.\\.J ( rl. \.\o\.sr){)i l0l: n d bntch

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 appellant in Crl.A.No.694 of 2OI2/complainant would contend that the Court below committed grave erroi- in recording acquitral in favour of A4 and 47 in this r:ase. There is clear evidence of PW.7 to show that an amount of Rs.44,000/- was recovered at the instance of A7. Further, 44 was identified by PW.2 in the Court. The Court below erred in holding that except recovery of amount, there is no incriminating evidence against 44 which connects him with the subject death. Further, pursuant to the confession made by A4 and A7, MO.11-cell phone of the deceased was recovered. Further, as per Section 396 of IPC, if .any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, each one of those persons shall be punished. The circumstances of the, gase; amply prove the participation of 44 and 47 in the subject offence and hence, the '(20t9) r s(( 7or ! (200.]) r? sc( {8s ' 2ooo crt.L.J.69.] '(20r6),r scc rjs I 20t8 (r ) Ar,r (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

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

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

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

l() t)r.S,\.., & l:\ \.J ( rl. \.\os.599/201I {rd b:rt(h that out oF five persons, four persons were wearing monkey caps and 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 is sustainable in the eye cf lavv, since she has given descriptive particulars of the persons rvho committed the subject offence and also identified iour culprits. Further, no suggestion was put to PW.2 by the defence counsel rarith regard to the presence of light in the room where the subject offence was comrnitted. There are no laches on the part oF the lnvestigating officer in conducting investigation in this case. The confession made by the accused leading to recovery of moneT robbed by them and other material objects clearly establish the commission of the subject offence by accused and ultimately prayed to confirm the impugned judgment, dated 28.06.2012, passed by tfre trial Court. In support of his contentions, learned Public Prosecutor had placed reliance on the following 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

- I)r.Sr.J,!t\\'.., Crl. \.\0s.599/21)l I aod t atch

7. Whether there is substantial unimpeachable evidence on record to convict Al of the offence under Section 412 of IPC?

2. Whether there is substantial unimpeachable evidence on record to convict 42, A3, AS and AG of the offence under Section 396 of IPC?

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

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

5. To what result?

POINTS:- 24, The Court below placed reliance heavily on the testimony oF PW.7 which reveals that pursuant to the confession of 41, the police recovered MO.1-Rs.1 lakh (in two bundles of Rs.500/- denomination each) and MO.25-cell phone, However, PW.1Binvstigating oFFicer conceded that immediately on search, nothing was recovered. Firstly, there is no identification of currency notes alleged to have been recovered pursuant to the confession made by A1. The Court below, having dealt with the offence of conspiracy under Section 1208 of IPC, was pleased to acquit all the accused of the said :offence: The, Court below did not place reliance over the evidence of PW.3 on the ground that she was having poor eyesight. Furthermore, the evidence of PW.3 is not cogent and convincing to demonstrate that she saw all the accused five days prior to the subject death of the deceased. She could not \

\rIlll l)r.s \. J .t U\'\'. J (.r1.{.\or.Sr)()/2(ll I nd hat(lr .,1 identify all the accused at the time of conduct of Test Identification Parade by the Magistrate, so also in her evidence before the Court. Furtherrnore, when she was called upon to identify certain accused in the Court, she admitted that she was having eye sight defect. The Court below, assigning reasons, did not place reliance on the testimony of PW.3. Here, it is appropriate to refer to the decision of the Hon'ble Bombay lligh Court in Bala Pandurang Kesarkar and another Vs. State of Maharashtrais, wherein, in paragraph No.

12 of the said judgment, it was held as follows: "It is true that in cases where the recovery has been immediately effected, tilis court can dra',n/n an inference under Section 114(a) of the Indian Evidence AcL and convict the accused for the substantive offence of theft or robbery or dacoity or dacoity with murder etc., as the case may be. But in the instant case, the recovery is not immediate. It was effected on 04.10.1991, i.e., six days after the incident. In view of this belated recovery, the offence of robbery would not be established against this appellant and only one under Section 411 of IPC would be made out against him.

25. In the instant case, there is no cogent and convincing evidence to connect A1 with Lhe alleged offence. Furthermore, it cannot be said that the amount said to have been recovered pursuant to the confession made 41 is the part of the amount derived by way of committing dacoity coupled with murder. There is a long gap in between the commission of the alleged dacoity and recovery of amount pursuant to the alleged confession made by A1. Further, the amount recovered pursuant to the alleged '' 2ooo cri.L.J.69J

- l9 t)r.SA.J&E\\.,i ( rl..\.\os.51.)t)/l0l: and barch confession made by A1 is only Rs.1lakh, which is a small amount. I The circumstances projected by the prosecution against A1, at the most, leads to a suspicion with regard to the involvement of 41 in the subject offence. It is settled law that suspicion, however strong it may be, cannot take place of legal proof. In the absence oF cogent, convincing and unimpeachable evidence to demonstrate that A1 had participated in the commission of subject offence, it is not safe to convict him even for the offence under Section 4t2 of IPC. The prosecution failed to prove the guilt of A1 of the offence under Section 472 of IPC and the Court below is not justified in convicting him of the said offence. In our considered opinion, A1 is entitled For acquittal for the ofFence under Section 4t2 of IPC.

26. The Court below, while placing reliance over the oral testimony of PW.2 and her identification of accused in the course of trial of the case and also placing reliance over the Test identification Parade conducted by the Judicial Magistrate of First Class and confessions leading to recovery of amounts and other incriminating material recovered [n the presence of PWs.7 and B, was pleased to convict A2, A3, A5 and 46 of the oFfence under Section 396 of IPC. For the applicability of Section 396 of IPC, the prosecution should prove that five or more persons, who are conjointly committing dacoity, commits murder in so committing

l(l l)r.S,\. J & li\\'.,, ( rl. \.\o\-599/:(ll2 x d batch !

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 of PW.3 is not at all helpful to the prosecution and the complainant to establish the commission of the subject offence. There remains the evidence of PW.2, who is said to be an eye witnesses to the subject incident. There is one more sister (LW.4) who is said to be sleeping in the room at the time of comnrission of alleged offence. She was not examined by the prosecution for the reasons best known to them. Ex.P2 is the scene of offence panchanama. It is nowhere mentioned in Ex.

P2 that there was a burning lamp at the scene of offence at the time of commission of the subject offence. In Ex.Pl-complaint also, there is no mention of burning lamp or availability 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 five persons indulged in commission of dacoity coupled with murder and one of them was fat and wearing red T shirt and other four persons are having monkey caps.

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

27. Further, PW.2 is a child wltness who was aged 7 years as on the date of the alleged offence. Law is well settled that the evidence of chid witness must be evaluated carefully, as a child can be swayed away by what others tell him/her and as he/she is an easy prey to tutoring. Wisdom requires that evidence of a child witness must find adequate corroboration before it is relied upon. True it is, there is no law that the evidence of a child witness cannot be acted, but however, greater circumspection is required for evaluating the evidence of a child witness, because a child is susceptible of being tutored. However, the law that the evidence of a child witness requires adequate corroboration before it can be acted upon is more a matter of practical wisdom than of law. In the instant case, PW.

2, who was a child witness aged about 7 years as on the date of commission of the subject offence, identified A2, A3, A5 and A6 in the identification parade as culprits who participated in the offence but could not identify A4 and A7, whereas, in the Court, she identified A2 to A6. Even in the evidence 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.

I),.\ \..1 d ll\ \..1 ( rl. \.\0\.i,),r/l{)l I iId brt(lr \ 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.P1complairrt, there is no nrention that the assailants removed monl<ey caps and left the scene of offence. It has come up for the first time in the evidence 01'PV/.2 in the Court. Though P\ /.2 had stated in her evidence that out of the five persons, four were wearing monkey caps and their faces were visible whereas the fifty man was fat and wearing red T Shirt, ho,arever, in her crossexamination, she stated that all the culprits, at the time of incident, were wearing similar nronkey cap9. PW.

2, in her crossexanrination, stated as follows "It is true that after the ciate of incident and the arrest of the culprits, the culprits and other events showed the Electronic Media and published in the print media. It is incorrect to say that prior to the identification parade, I was taken to CCS, Hyderabad, and where the police showed me the ctrlprits and also informed me abcut their physicai features and also the pclice furnished me the photographs of culprits. PW.3 also came to the Central Prison, Chanchalguda, Hyderabad, on the day I visited the prison." PW.

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

-.i}, - ;

Dr.S.\..1 & [\'l', J ( r1..l.\os.599/2012 ard balch did not state before me that one among the five persons was pressing the Nose and Mouth of the deceased with hands. P.W.2 did not state before me that the carry bag was in the block colour and same was available in the Almirah. P.W,2 did nto state before me that she and another noticed the bed room of closed by bolting outside and the same was opened by them. P.W.2 did nto state before me that the deceased was sleeping on the cot. P.W.2 did not state before me that she and another woke up on hearing the sound of Almirah."

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

28. In view of these circumstances, the presence of burning lamp in the room where the subject offence was committed and the assailants removing the monkey caps and Ieaving the scene of offence, is doubtful. Further, PWs.1 and 3 have admitted in their evidence about publication of the arrest of the accused and their photographs in print and electronic media. Such publication was much before conducting identification parade. Therefore, there was ample opportunity to the identifying witness to note down the physical features of suspects on account of publication of their arrest and the photographs in print and electronic media. Further, since there was inordinate time gap between the commission of the offence and the recovery of allegedly stolen amount from the accused, it is difficult to sustain that the recovered currency notes

l1 l)r.s \..l * h\ \ ..l (lrl. \.\,rr.59t)rl0l2 trd barch ( are part oF currency notes that were kept in the aimirah in the room of the deceased. Furthermore, the police recovered cash oF Rs.22,000/- from the father of A2 (L.W.27) in the presence of P.W.8 and 1.W.24, on 19.02.2008. The subject incident occurred on 37.12.2007. Thus, there is a long time gap between the commission of offence and the alleged recovery/ which makes the participation of A2 in the sLrbjecl offence doubtful. In view of the imprcvements made by PW.2 and as there was possibility of her seeing the photographs of the accused in print and electronic rnedia and there is possibiliiy oF she being tutored in view of her tender age and also incapable of understanding the consequences of her deposition before the Court as she is susceptible of being tutored, it is unsafe to place reliance over her testimony.

29. While committing dacoity, one of the accused, i.e., A2 said to have taken away the cell phone belonging to the deceased. Cell phone was not recovered from 42. There is no record to show that the cell phone in question belongs to the deceased. There is lot of time gap in between the confession made by A2 and recovery of cell phone belonging to the deceased. Therefore, recovery of cell phone cannot be tagged to 42. The evidence placed on record, at the most, leads to suspicion against A2, A3, A5 and 46 that they, while conjointly committing dacoity, committed murder of the

Dr,SA.J&E\'\'.J ( r1. \.\os.5t)9/1012 afld bflctr deceased In so committing dacoity. It is settled law that suspicion, however strong it may be, cannot take place of legal proof. In the absence of any substantial evidence against A2, A3, A5 and A6, the Court below committed error in convicting and sentencing them of the offence under Section 396 of IPC. In view of the evidence placed on record, we are of the considered opinion that it is a fit case to acquit A2, 43, A5 and 46 of the offence under Section 396 of IPC by extending benefit of doubt.

30. Further, A4 and A7 were acquitted by the Court below for the offences charged against them and challenging the same, the complainant filed Crl.A.No.694 of 201,2. As indicated above, no appeal was preferred by the State challenging the acquittal of A4 and A7. The Court below held that though PW.7 supported recovery of Rs.44,000/- from A7, he was not identified by PW.2 and that though PW.7 supported recovery of money from 44 and though he was identified by PW.2 in the Court hali, he was not identified by PW.2 in the Identification Parade and that except recovery of amount, no otller incriminating evidence was found against A4 and A7 and in view of other reasons assigned by the Court below as there was no cogent and convincing evidence against A4 and A7 to prove that they have participated in the commission of offence and the money recovered is part of criminal

l6 l)r.\ \..1 & l':\ \ ..1 ( rl. \.\o\.ar)t)1:llll .rflrt hnl(lr 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.694 of 2072/complainant and the learned Public Prosecutor appearing for the respondent/State. In Mishrilal's case ( 11 supra) relied by the learned Public Prosecutor, it was contended that the witnesses therein could not have identified the assailants due to paucity of light. The Apex Court held that the incident had taken place in the evening and the deceased and the witnesses were grazing cattle and there would not have been much darkness. But in the instant case the incident took place in the early morning at about 04:05 AM and hence, it is natural that there would be no light. Moreover, there is no evidence on record that there was burning lamp in the room where the deceased was sleeping. Hence, the cited decision is not helpful to the prosecution. In P.Ramesh's case (12 supra) relied by the learned Public Prosecutor, the Hon'ble Apex Court, while discussing the law relating to child witness, held that the iudge is at liberty to test the capacity of the

- ).7 Dr.S,\,J&f\\.,1 ('r1..\.\os.599,,101 2 rod barch child witness and no precise rule can be laid down regarding the degree and intelligence and knowledge which wili render the child a competent witness. There cannot be any dispute with regard to the preposition of law laid down in the aforementioned decision. But in the instant case, even if PW.2, who is a child aged about 7 years as on the date of the commission of offence, is considered as a competent witness, it is not safe to act upon her testimony as there are several omissions and improvements in her evidence, more particularly in the absence of any other attending circumstances supporting her evidence. Hence, the said decision is not helpful to the prosecution.

In Raja's case (13 supra) relied by the learned Public Prosecutor, the Hon'ble Apex Court held that the injured witnesses therein had adequate and proper opportunity to observe the features of each oF the accused and that what is t important is the identiFication in Court and if such identification is I otherwise found by the Court to be truthful and reliable, such substantive evidence can be relied upon by the Court. We respectfully agree with the preposition of law laid down by the I I !

Hon'ble Apex Court. But in the instant case/ in the IdentiFication Parade conducted by the Magistrate, PW.2 did not identify A4 and PW.3 did not identiFy A4, A5 and 46. Further, it is borne by record that before identification of the accused in the Court, PW.2 and

t8 l)r'.'i\..1 & ti\ \. J ( rl. \.\o\.a99/201I and bfltch 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 accused by 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 in Crl.A.No.

69412072/ complainant, the Hon'ble Apex Court held that the victlm's right of appeal is restricted to three eventualities, nanrely, acquittal of ihe accused, conviction of the accused for lesser offence, or for imposing inadequate compensation and tlrat while the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time, there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377 Cr.P.C. gives the power to the State Government to prefei'appeal for enhancement of sentence. There cannot be any dispute with regard to the said preposition of law.

32. In the result, Criminal Appeal No.599 of 2OL2 filed by A1 and Criminal Appeal Nos.63B, 657, 685 and 735 of 2012 filed by A5, 46, A2 and 43 respectively, are allowed by setting aside the

- l)r.S.\.,,di_\\.., ( rl. \.\os.S99,:(,t: and harch impugned judgment, dated 28.06.2012, passed in S.C.No.477 of 2070 by the rearned speciar Judge for Economic offences_cum_viII Additional Metropolitan Sessions Judge at Hyderabad.

I I Consequently, 41 is acquitted of the offence under Section 472 of IPC and A2, A3, 45 and 46 are acquitted of the offence under Section 396 of IpC. Criminal Appeal No.694 of 20t2 filed by the complainant is dismissed, confirming the impugned judgment, dated 28.06.2012, insofar as 44 and A7 are concerned. Fine amount, if any, paid by Ar, A2, 43, A5 and 46 shail be refunded to them and their bail bonds shall stand cancelled. Miscellaneous petitions, if any, pending in all these appeals. shall. stand closed.

Sd/.B.S.CHIRANJEEVI JOINT REGIST AR //TRUE COPY// SECTION FICER To 'l . The Special Judge for Economic Offences - cum- VIll Additional A/etropolitan Sessions Judge at Hyderabad. (with records)

2. The XllAdditional Chief Metropolitan Magistrate , Hyderabad.

3. The Station House Officer, South Zone Team Police Station, CCS, DD, Hyderabad.

4. The Superintendent, Central Prison, Cherlapally, Ranga Reddy District.

5. The Superintendent, Central Prison, Chenchalguda, Hyderabad.

6. Two CCs to Public Prosecutor, High Court for the State of Telangana (OUT)

7. One CC to Sri C. Sharan Reddy, Advocate (OPUC)

8. One CC to Sri MOHD ASHRAF ALl, Advocate (OPUC)

9. One CC to SRI K. SRINIVAS REDDY , Advocate (OPUC)

10. One CC to Sri T. PRADYUMNA KUMAR REDDY, Advocate (OPUC)

11. One CC SRI MOHD MUZ.AFFER ULLAH KHAN, Advocate (OPUC)

12. Two C.D.Copies "{

HIGH COURT DATED:3011212022 , sTAr€ r 1 lnt ?SB 'r'

+ ]I ,/ o .* * a:,'z'

i;;

CON{MON JTJDG\,IEN] cRIMINAL APPEAL Nos : 599, 638 , 657, 685, 694 & 735 oF 2012 ALLOWING THE, CRL.APPEAL NOS 599 ,638, 657, 685, AND 735 0F 2012 tt AND DISMTSSING THE CRL.APPEAL NO. 694 OF 20t2 O