Charan Srinivasa Rao vs The State Of A.P.
2022 Latest Caselaw 648 Tel

              HONOURABLE JUSTICE G.SRI DEVI

                    CRL.R.C.No.809 of 2007

JUDGMENT:

This Criminal Revision Case is directed against the

judgment of the learned Principal Sessions Judge, Nalgonda, in

Crl.A.No.61 of 2005, dated 21.06.2007, confirming the

conviction and sentence of rigorous imprisonment for a period

of three years and fine of Rs.5,000/-, in default, simple

imprisonment for five months, for the offence under Section

392 of I.P.C. imposed against the revision petitioner/accused

by the learned Judicial Magistrate of First Class, Nakrekal, in

C.C.No.216 of 2001 dated 29.03.2005.

It is the case of the prosecution that, on 15.09.2001 at

19.15 hours, when the APSRTC Bus bearing No.A.P.10-Z-8095

left Picket Depot for Polavaram via IBS, the revision

petitioner/accused boarded the said Bus as a bonafide

passenger and on the same night at about 23.00 hours, when

the said Bus reached near Kattangur village, the accused

threatened the driver of the Bus and the passengers on the

point of Toy Pistol and directed the driver of the Bus (P.W.1) to

divert the Bus towards Nalgonda and accordingly the driver

took the Bus towards Nalgonda side due to fear and that the

accused robbed gold ornaments weighing about 13.1 tolas from

the passengers (P.Ws.4, 5, 6, 7 and others) and net cash of

Rs.7,575/- from P.Ws.1, 2, 8 and others. It is further stated that

when the Bus reached Panagal, the accused again directed

P.W.1 to take back the Bus to Kattangur village and that the

drivers and passengers of the Bus caught hold the accused and

produced him along with the property before the police on

16.09.2001 at 01.00 hours. The accused was tried for the offence

punishable under Section 392 of I.P.C.

The prosecution has examined P.Ws.1 to 15 and got

marked Exs.P1 to P13 and M.Os.1 to 10 to prove the guilt of the

accused. On a perusal of the entire evidence, both oral and

documentary, the trial Court, found the revision

petitioner/accused guilty of the offence under Section 392 of

I.P.C. and accordingly convicted and sentenced him as stated

supra. Questioning the said conviction and sentence, the

revision petitioner/accused preferred Crl.A.No.61 of 2005 and

the learned Principal Sessions Judge, Nalgonda, by judgment

dated 21.06.2007, dismissed the appeal confirming the

conviction and sentence recorded by the trial Court. Aggrieved

by the same, the revision petitioner/accused preferred this

criminal revision.

Learned Counsel for the revision petitioner/accused

submits that the Courts below have not appreciated the

evidence on record in proper perspective and have erroneously

found the revision petitioner/accused guilty of the offence

under Section 392 of I.P.C. He further submits that the

prosecution witnesses could not have identified the accused as

he was wearing a Mask at the time of incident and that there

was no Test Identification Parade of the property alleged to

have been seized from the accused. He further submits that the

evidence of P.Ws.1 to 9 is highly interested and discrepant in

material particulars and that the panchas examined for arrest

and recovery of the property did not support the case of the

prosecution and, therefore, the conviction and sentence

imposed against the revision petitioner/accused are liable to be

set aside.

Stoutly refuting the aforesaid submissions, the learned

Assistant Public Prosecutor representing the State contended

that there is sufficient material to show that the revision

petitioner/accused was responsible for the commission of

offence and, therefore, the Courts below have rightly convicted

and sentenced the revision petitioner/accused for the offence

under Section 392 of I.P.C. and the said findings recorded by

both the Courts below do not warrant any interference by this

Court.

I have perused the impugned judgments of the Courts

below and also the evidence on record. In this case, P.W.1, who

lodged the complaint, is the driver of the Bus in which the

offence took place and P.W.2 is the spare driver of the Bus.

P.Ws.1 and 2 deposed that they were on duty in the Bus on the

date of incident and at about 12.00 Midnight when the Bus

reached Kattangur area, one offender covering his face with

half mask came and directed P.W.1, at the point of a pistol, to

divert the Bus towards Nalgonda side and when the Bus

proceeded to a village in the outskirts of Nalgonda, the

offender again directed him to return the Bus to opposite

direction and in the meanwhile the offender robbed gold

ornaments and cash from the passengers and that the offender

was caught by the passengers and handed over him along with

property to the police. However, these two witnesses did not

identify the accused as the offender. That apart, the

passengers/victims were examined as P.Ws.3 to 9, 13 to 15.

However, P.Ws.1, 2, 4 to 8, and 13 to 15 were turned partly

hostile in identifying the accused. Further, the panch witness

(P.W.10) for seizure of property from the accused did not

support the case of the prosecution. The prosecution has failed

to examine the other recovery panch witness (L.W.21) for the

reasons best known to them. Therefore, the recovery of the

property from the accused is not proved. There is absolutely no

evidence to establish the fact that the revision

petitioner/accused was the offender who robbed the property

from the passengers of the Bus. It is not as though the

descriptive particulars of the revision petitioner/accused were

given by the so-called eyewitness and on the strength of the

said descriptive particulars the said witnesses have identified

the revision petitioner/accused. Similarly, it is not the case of

the prosecution that immediately after the arrest of the revision

petitioner/accused there was a Test Identification Parade,

during the course of which the alleged eyewitnesses have

identified the revision petitioner/accused. In the absence of

mentioning of the descriptive particulars of the revision

petitioner/accused and also the Test Identification Parade, it is

not at all possible for any individual to remember the face of

the revision petitioner/accused when he is totally a stranger.

In fact, time and again the Courts have held that in the absence

of any positive proof, it is not safe to convict the accused on the

strength of the evidence of the witnesses spoken to for the first

time in the Court hall during the course of their evidence.

For the aforementioned reasons, this Court is of the

view that the Courts below erred in convicting the revision

petitioner/accused for the offence under Section 392 of I.P.C.

The Criminal Revision Case is accordingly allowed.

The conviction and sentence imposed by the trial Court as

affirmed by the appellate Court for the offence under Section

392 of I.P.C. are hereby set aside and the revision

petitioner/accused is acquitted of the said charge. Fine

amount, if any, paid by the revision petitioner/accused shall be

refunded to him.

______________________ JUSTICE G.SRI DEVI

15-02-2022 Gsn