Telangana High Court
Vasantha Saliyana, Karnataka State., vs State Of Telangana, Rep.By Pp., on 3 May, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
CRIMINAL APPEAL Nos.343 AND 344 OF 2015
COMMON JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman)
Heard Mr. Garlapati Jithendar Reddy, learned counsel for the
appellants - accused Nos.1 and 2 and Mr. T.V. Ramana Rao, learned
Additional Public Prosecutor appearing on behalf of the respondent.
2. Both the appeals are filed by accused Nos.1 and 2 separately
challenging the judgment dated 09.03.2015 in S.C. No.533 of 2010
passed by learned Special Judge for Economic Offences - cum - VIII
Additional Metropolitan Sessions Judge at Hyderabad.
3. The appellants herein are arraigned as accused Nos.1 and 2
in the aforesaid S.C. No.533 of 2010. For the sake of convenience,
the parties will be hereinafter referred to as they were arrayed in S.C.
No.533 of 2010.
4. Vide the aforesaid judgment, the trial Court convicted the
appellants - accused Nos.1 and 2 for the offence under Section - 395
of IPC and accordingly imposed life imprisonment.
5. The case of the prosecution is as follows:
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
i) Accused No.1 planned the dacoity and formed a gang with
active association of accused Nos.2 to 9 and another person. As per
their plan, they all came to Hyderabad on 26.12.2003.
ii) On the same day in the night around 9.10 P.M., they went to
M/s. Rajlakshmi Jewellers, Abids, Hyderabad in a Qualis Car, which
was stolen and entered into the jewellery shop armed with dagger and
revolvers.
iii) They have threatened PW.1 and his staff with dire
consequences and one among them beat PW.1 with dagger and took
away his cell phone as well as customer (PW.4). PW.1 and his staff
including the customer were confined in a room situated on the top
(inside corner) of the showroom and bolted from outside.
iv) Within fifteen (15) minutes, they have collected gold and
diamond ornaments worth about Rs.1.5 Crores and fled away in the
same Qualis Car. Later, all the accused went to Mumbai and shared
the booty at Mumbai. Thus, accused Nos.1 and 2 herein and other
accused committed the aforesaid offence by threatening PW.1 -
jewellery shop-keeper and his staff with dagger and revolvers.
v) On receipt of Ex.P1 - complaint from PW.1, the Police of
Abids, Hyderabad, registered a case in Crime No.577 of 2003 under
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
Section - 395 of IPC and Section - 25 (1A) of the Arms Act, 1959 (for
short 'Act, 1959') and took up investigation.
vi) During investigation, the Investigating Officer recorded the
statements of witnesses. On completion of investigation, the
Investigating Officer had laid charge sheet and the same was
committed to the Sessions Judge which was numbered as Sessions
Case No.533 of 2010.
6. The trial Court, after framing the charge for the offences
under Section - 395 of IPC and Section - 25 (1A) of the Act, 1959
proceeded with trial. During trial, PWs.1 to 28 were examined,
Exs.P1 to P26 were marked and MOs.1 to 64 were exhibited. On
behalf of the accused, Exs.D1 to D6, relevant portions of the
statements recorded under Section1 - 161 and 164 of the Cr.P.C. and
final report were marked.
7. After hearing both sides and perusing the entire evidence,
both oral and documentary, the trial Court recorded conviction against
the appellants herein for the offence under Section - 395 of IPC and
accordingly imposed life imprisonment on them, however, acquitted
them for the offence under Section - 25 (1A) of the Act, 1959.
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
8. Challenging the said conviction and sentence of life
imprisonment, accused Nos.1 and 2 preferred the present appeals.
9. Learned counsel for the appellants - accused Nos.1 and 2
would submit as under:
i) Though the subject crime was closed on 18.11.2004 as
undetected, it was reopened on 02.02.2005 basing on the information
received from Mumbai Crime Branch stating that they have arrested
accused No.2 in Crime No.136 of 2004 for the offences under Section
- 392, 394, 397 read with 34 of IPC.
ii) Accused No.2 confessed to have committed offence in Crime
No.642 of 2003 of ADR, CCS, Hyderabad, on 26.12.2003 along with
his associates.
iii) Though the incident was occurred on 26.12.2003, there was
delay in registering the first subject Crime (Ex.P18). There is also
delay in recording the statements of material witnesses i.e., PWs.1 to
12. Their statements were recorded only on 30.12.2023.
iv) According to the prosecution, part of the stolen property
was seized from LW.38 on 18.10.2007 though the incident was
occurred on 26.12.2003, LW.38 was not examined.
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
v) Though finger prints were collected, the same were not
tallied with the accused. Other witnesses are planted witnesses.
vi) There are contradictions in the depositions of panch
witnesses including PW.23 with regard to seizure of MOs.1 to 30.
There are major contradictions in the depositions of material
witnesses.
vii) Prosecution utterly failed to prove the identity of both the
appellants and also the property recovered. There is violation of
procedure laid down under Rules - 34 and 35 of Criminal Rules of
Practice. Thus, the prosecution failed to prove even the seizure.
viii) Perusal of Ex.D6 would reveal that the partners of the
subject jewellery shop have claimed insurance.
ix) The contents of the depositions of prosecution witnesses
lack ingredients of Section - 395 of IPC. The trial Court having
acquitted the appellants for the offence under Section - 25 (1A) of the
Act, 1959, convicted them for the offence under Section - 395 of IPC.
There should be acceptable legal evidence to record conviction against
the accused. In the present case, the same is lacking. It is a moral
conviction. The prosecution has to prove the guilt of the accused
beyond reasonable doubt. In support of the same, he has relied upon
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
the decisions in Sarwan Singh Rattan Singh v. State of Punjab 1 V.
Suresh v. State 2 and Mousam Singha Roy v. State Bank of West
Bengal 3. In the present case, the prosecution failed to prove the same.
When two views are possible, the view which is beneficial to the
accused shall be given. The accused are always entitled for benefit of
doubt.
x) Without considering the said aspects, the trial Court
convicted the appellants herein. They were in Jail for one and half
year before commencement of trial and presently they are in jail from
09.03.2015.
With the said submissions, learned counsel for the appellants sought
to set aside the impugned judgment and acquit the accused of the
aforesaid offence.
10. On the other hand, learned Additional Public Prosecutor
would contend as follows:
i) As per Ex.P1 - complaint, accused are unknown.
. AIR 1957 SC 637
. 2011 (1) ALD (Crl) 11 (AP)
. (2003) CCR 250 (SC)
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
ii) The police including the Investigating Officer tried their
level best to apprehend the accused in the present case, but they could
not. Therefore, the subject crime was closed as undetected.
Thereafter, on receipt of information from the Mumbai Police, they
have reopened it as per the procedure laid down under law.
iii) The Investigating Officer has recorded statements of the
witnesses, recovered the material and thereafter on completion of
investigation laid charge sheet.
iv) The prosecution proved the guilt of the accused beyond
reasonable doubt.
v) All the material witnesses including PWs.1 to 12 and PW.22
categorically deposed about the role played by the appellants herein.
vi) The prosecution proved both identity of the appellants and
property.
vii) There are no contradictions, much less major contradictions
in the depositions of prosecution witnesses as alleged by the
appellants.
viii) Delay in recording statements of witnesses is not fatal to
the case of the prosecution. It was a sensational case at that particular
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
point of time and the appellants along with other accused committed
the offence in the heart of the City by entering into the subject
jewellery shop, threatening the witnesses.
ix) Non-examination of LW.38 is not fatal to the present case.
x) On consideration of entire evidence only and gravity of the
offence, the trial Court recorded conviction against the appellants
herein. There is no error in it. It is based on acceptable legal evidence,
but not moral conviction.
With the said submissions, he sought to dismiss the present appeals.
11. As discussed above, to prove guilt of the accused,
prosecution has examined PWs.1 to 28, Exs.P1 to P26 were marked
and MOs.1 to 64 were exhibited.
12. It is contended by learned counsel for the appellants that
there was delay in lodging Ex.P1 - complaint. In support of the same,
he has relied upon the decisions in Thanedar Singh v. State of M.P. 4
and Thulla Kali v. The State of Tamil Nadu 5.
. 2002 SCC (Crl.) 153
. 1972 Crl.L.J. (SC) 1296
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
i) It is relevant to note that as per Ex.P1 - report, the incident
took place on 26.12.2003 at 9.10 P.M. PW.1 lodged Ex.P1 - report
with the Police, Abids Police Station, Hyderabad on the same day at
21.45 hours. On receipt of the said complaint, the police, Abids, have
registered a case in Crime No.577 of 2003 against unknown persons
for the offences punishable under Section - 395 of IPC and Section -
25 (1A) of the Act, 1959, and thereafter investigation was transferred
to ADR Team, CCS, DD, Hyderabad.
ii) PW.1 deposed that he is the son of Ramesh Chand, who is
partner in Rajyalakshmi Jewelers, Abids, Hyderabad. The incident
took place at 9.30 P.M. on 26.12.2003. After the culprits left the shop
and observing that he and others did not hear any movements or
sound, they tried to pen the door by pulling resulting the door got
opened and they all came out. They found none was present. Then,
he has seen Mr. Shiva Kumar and Mr. R. Ashok Kumar to go to police
station for giving information. The police arrived at the shop and
thoroughly examined. Then, he lodged Ex.P1 - report. The whole
transaction of the incident took within fifteen (15) minutes.
iii) PW.22 - Inspector of Police, Abids, Hyderabad, also
deposed that on 26.12.2003 at about 9.45 P.M. he received complaint
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
(Ex.P1) from PW.1 and he registered a case in Crime No.577 of 2003
for the offences punishable under Section - 395 of IPC and Section -
25 (1A) of the Act, 1959 against unknown offenders. The said FIR
was dispatched to all the concerned. Thereafter, he proceeded to the
scene of offence. Considering the graveness of the offence, the file
was transferred to CCS, Hyderabad on 29.12.2003.
iv) Considering the said aspects, the trial Court gave a specific
finding with regard to the contentions of the appellants that there is
delay in lodging the complaint. In fact, there is no delay in lodging
the complaint.
v) Perusal Ex.P18 - first FIR No.577 of 2003 would reveal that
the same was received by learned Magistrate on 27.12.2003 at 3.15
A.M. On the top of Ex.P18, it is mentioned as 'express'. The incident
occurred around 9.30 P.M. on 26.12.2003, report was given by PW.1
with the Police, Abids, Hyderabad on the same day at 21.45 hours
(9.45 P.M.), whereas the police after registration of the crime, sent the
FIR to the concerned Magistrate, who received it in the wee hours on
27.12.2003 i.e., at 3.15 A.M. Thus, there is no delay at all either in
lodging the complaint, registration of the same and sending the FIR to
the concerned Magistrate. Therefore, there is no error in the finding
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
recorded by the trial Court on the said aspect. Thus, the contention of
learned counsel for the appellants that there is delay in lodging Ex.P4
- report, registration of crime and sending FIR to the concerned
Magistrate, is untenable. The decisions relied upon by his are not
helpful to him.
13. With regard to the contention of learned counsel for the
appellants that there is delay in recording the statements of PWs.1 to
12, according to him, though the incident occurred on 26.12.2003, the
Investigating Officer recorded the statements of PWs.1 to 12 on
30.12.2003. In support of the same, he has relied upon the decisions
in State of U.P. v. Bhagwan 6, Ramthu Thomas @ Ankaiah v. State
of A.P. 7 and Ali Mohan v. State of West Bengal 8.
i) In this regard, the deposition of Investigating Officer in
Crime No.577 of 2003 (PW.22) is relevant. According to him,
considering the gravity of the offence, the file was transferred to CCS
on 29.12.2003. He has handed over the file to CCS, Hyderabad. He
has deposed that on registration of crime and dispatching the FIR, he
has proceeded to the scene of offence, secured panchas, conducted
. 1997 (2) ALD (Crl) 415 (SC)
. 2007 (1) ALD (Crl) 422 (AP)
. AIR 1996 SC 3471
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
scene of observation panchanama (Ex.P2) and also drawn rough
sketch of scene (Ex.P3).
ii) However, during cross-examination, he admitted that he
secured the panchas from the scene of offence. He has reached the
scene of offence by 10.00 P.M. and he was there at the scene till 3.00
A.M. He has not recorded the statements of any witness when he
visited the subject shop. None of the persons approached him during
the period 27.12.2003 from 3.00 A.M. to 8.00 P.M. on
29.12.2003informing that they know anything about the case. On
27.12.2003, he again visited the shop. During his second visit, PWs.1
to 4 and other witnesses have not made any statement. When he
insisted for the statement of PW.1, who in turn, informed that he
would make statement after verifying the stock. On subsequent dates
i.e., 28th and 29th December, 2003, none of the witnesses made any
statement before him. During four days, PW.1 did not produce any
stock register to show the availability of the stock on 26.12.2003.
iii) As discussed above, the scene of offence is heart of the
City. It was a sensational case at that particular point of time. As
deposed by PW.1, after closing the shop, they were checking the stock
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
and organizing the same. Perusal of the record would reveal that
considering the gravity of the offence, so many Higher Officials
including the Commissioner of Police, Director General of Police and
Chief Minister visited the scene of offence. The explanation offered
by PW.1 is that he would give statement only after verifying the stock.
iv) According to PW.22, considering gravity of the case, the
file was transferred to CCS, Hyderabad. In the light of the same, in a
matter like this, the said delay in recording the statements of witnesses
is not fatal to the case of prosecution. On consideration of the same,
the trial Court gave a specific finding that the delay in recording the
statements of PWs.1 to 12 is not fatal to the case of prosecution.
Thus, the said contention of learned counsel for the appellants is
unsustainable.
14. It is also not in dispute that the subject crime was closed on
18.11.2004 as undetected. On 02.02.2005, the case was reopened
basing on the information received from the Mumbai Crime Branch
stating that they have arrested accused No.2 in Crime No.136 of 2004
and he was remanded to judicial custody. He confessed to have
committed the offence in Crime No.642 of 2003 on 26.12.2003 along
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
with his associates. A Special Escort Team of ADR Team, CCC,
Hyderabad, went to Mumbai to bring accused No.2 on production of
warrant.
i) As discussed above, as per the depositions of PW1 and
PW.22, accused were unknown. It is a dacoity case. According to the
Investigating Officers, despite making all possible efforts, they could
not trace out the accused and, therefore, they have closed the said FIR
as undetected. Thereafter, on receipt of information, more particularly
confession of accused No.2, the said case was reopened. There is no
procedure irregularity in re-opening the case.
ii) On consideration of the contents of Exs.P17 and 18 and
depositions of PW.1 and PW.22, in paragraph Nos.31 to 36 of the
impugned judgment, the trial Court gave specific finding. In
paragraph No.37 of the impugned judgment, there is specific finding
with regard to the delay of three (03) days in recording the statements
of eye witnesses.
iii) It is relevant to note that on the analysis of the entire
evidence in paragraph No.37, the trial Court gave a finding that at the
most, only improvement was relating to the quantity of lost ornaments
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
and their details. The statement of PW.1 alone reflects such a variation
and other witnesses account is inconsistent with the earlier complaint
under Ex.P1. Therefore, the contention of learned counsel for the
appellant that there are major discrepancies in the depositions of
prosecution witnesses is untenable. The said variation was result of
thorough examination of lost articles.
15. Learned counsel for the appellants vehemently contended
that the subject crime was registered to claim insurance. Referring to
Ex.D6 - final report, learned counsel would contend that on the
request made by the partner of the subject jewellery shop, Ex.D6 -
final report was filed. They have made request only to claim
insurance. As rightly held by the trial Court there is consistency in the
statement of eye-witnesses other than owner of the jewellery shop to
support the said incident. The deposition of PW.4, an independent
witness and customer supports the occurrence of incident, which is
consistent with the deposition of eye-witnesses including partner and
sales persons. There are confession statements of some of the
accused. Therefore, the contention of learned counsel for the
appellants that the appellants - accused Nos.1 and 2 were implicated in
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
the present case by the partners of the subject jewellery shop only to
claim insurance is untenable.
i) According to learned counsel for the appellants, there were
major discrepancies in the evidence of material witnesses. Except
with regard to quantity and particulars of material lost, there are no
material discrepancies. On consideration of the entire evidence, the
trial Court gave a specific finding with regard to the said contention of
the appellants. There are only minor contradictions and there are no
major contradictions in the depositions of prosecution witnesses.
16. The contention of learned counsel for the appellants that
though finger prints were collected, the same were not tallied with the
finger prints of the appellants is untenable. There is no supporting
legal evidence to substantiate the said contention of learned counsel
for the appellants. The trial Court considered the said aspect and gave
a specific finding on the said aspect. Thus, there is no error in the said
finding.
17. Learned counsel for the appellants strenuously contended
that according to the prosecution, though there was recovery of stolen
property from LW.38 on 18.10.2007, it failed to examine LW.38 and,
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
therefore, the same is fatal to the case of prosecution. The said
contention of learned counsel for the appellants is untenable.
i) LW.38 was not keeping well and, therefore, he was not in a
position to give evidence in the said case. The same was considered
by the trial Court in paragraph No.52 of the impugned judgment.
Thus, non-examination of LW.38 is not fatal to the case of
prosecution.
ii) The contentions of learned counsel for the appellants that
there is no consistency in the deposition of panch witness for recovery
of MOs.1 to 30 cannot be accepted. Perusal of the deposition of
panch witness including PW.23 would reveal the said fact.
18. Learned counsel for the appellants also vehemently argued
that prosecution failed to prove the offence committed by the
appellants - accused Nos.1 and 2 beyond reasonable doubt by
producing cogent and relevant evidence.
i) As discussed above, prosecution has examined PWs.1 to 3 -
eye witnesses, PWs.21 to 23 - Investigating Officers and panch
witnesses including MOs.1 to 30, recovery and seizure panchanama
(Ex.P20), Ex.P21 confession leading to recovery of more than one
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
(01) kg., gold from the house of LW.38. After confession of accused
No.1, MOs.63 and 65 were recovered in the presence of PWs.24 and
25. The said depositions were supported by the claim of PW.26
regarding recovery of MO.63 - pistol and MO.64 - cartridges on the
basis of Ex.P21.
ii) Learned counsel for the appellants also raised an objection
for marking of Ex.P21 stating that such confession contains the
signatures of accused No.1 and there is no reflection of names and
signatures of panch witnesses. Considering the said objection and
relying on the principle laid down by the Apex Court in State of
Rajasthan v. Tejya Ram 9 and Govt. of NCT Delhi v. Sunil 10, the
trial Court in paragraph Nos.44 and 45 of the impugned judgment
gave a specific finding overruling the said objection raised by the
appellants. The trial Court placed reliance on the depositions of
PWs.24 and 25 panch witnesses to the said confession and also for
recovery of MOs.63 and 64 under Ex.P20 - panchanama. There is no
error in it.
. AIR 1999 SC 1776
. (2001) 1 SCC 652
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
iii) During cross-examination, the appellants failed to elicit
anything from the prosecution witnesses to contend that the
confession of accused No.1 in Ex.P21 was obtained under force. On
consideration of the said evidence, in paragraph No.50 of the
impugned judgment, the trial Court held that the prosecution proved
that there was voluntary and free confession of accused No.1 under
Ex.P21.
19. Learned counsel for the appellants contended that there are
inconsistencies with regard to position of bag in the police station and
also with regard to seizure of MOs.63 and 64. According to him, the
witnesses had admitted that the bag, from which MOs. were seized
was already kept on the table by the time the witnesses reached. In
the chief-examination, both the witnesses (PWs.24 and 25) deposed
that the bag was with accused No.1. The said inconsistency is only a
minor and it may be due to long lapse of time between the date of
seizure and date of their evidence. Therefore, it is not a major
discrepancy and it is not fatal to the case of prosecution in view of the
graveness and seriousness of the offence. On consideration of the said
aspects, the trial Court gave a specific finding on the same in
paragraph No.51 of the impugned judgment and there is no error in it.
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
20. Relying on the depositions of PW.23 and PW.26 -
Investigating Officer and Ex.P23 - seizure panchanama, the trial
Court gave a specific finding in paragraph No.52 of the impugned
judgment with regard to recovery of MOs.1 to 30 based on confession
of accused No.1. There is no error in it.
21. Learned counsel for the appellants also contended that the
prosecution failed to prove identity of ornaments. In support of the
same, he has relied upon the decisions in Public Prosecutor, High
Court of A.P. v. Paluri Suryanarayana @ Suribabu 11,
Bommimalli Kharjuna alias Malka v.State of A.P. 12 and Turaka
Veerabhadra Rao @ Veerabhadram v. State of A.P. 13. With
regard to the same, depositions of PW.1 and PW.26 are relevant.
i) PW.1 deposed that all the jewellery available in the shop was
taken away by the culprits and they are bangles, long harams,
necklaces, hangings, tops, black-beads, rings, baby bangles, pendants,
patties, diamond rings and some other items of jewellery. Out of
them, the items of jewellery consist of gold and stones are different
colours, besides taken away about ½ kg. solid gold and cash of
. 2004 (1) ALD (Crl) 538 (AP)
. 2004 Crl.L.J. 2162 (AP)
. 2008 (1) ALD (Crl.) 381 (AP)
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
Rs.1,20,000/-. Since he identified the stolen ornaments, the same
were marked through him as MOs.1 to 62. During cross-examination,
he has admitted that they are maintaining the Registers showing the
purchase of jewellery, sale of the same and also the stock register. He
admitted that he has not given the particulars of property lost,
however, he stated that subsequently the list of items of property
furnished to the CCS police either on 29th or 30th December, 2003.
MOs.1 to 62 are available for purchase in the open market. MOs.31 to
47 are of different carets from 18 to 22 cts. He admitted that he
described loss of gold chains marked under MOs.32 to 34, but number
of rows of each item lost stated before the Investigating Officer.
ii) PW.26 - Investigating Officer in Crime No.347 of 2007 of
Banaswadi, deposed that on 15.10.2007 he arrested accused No.1 at
Viveka Nagar, Bangaluru City. He interrogated him. Accused No.1
confessed to have committed the subject crime in the presence of
panch witnesses (PWs.24 and 25) and he seized MOs.63 and 64 in the
presence of panch witnesses. During police custody, accused No.1
confessed to have sold MOs.1 to 30 to LW.38 for Rs.2.00 lakhs.
Pursuant to the said confession, he seized MOs.1 to 30 under Ex.P23 -
panchanama in the presence of PW.23 and LW.37.
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
iii) PW.1 is the son of Mr. Ramesh Chand, who is partner of
M/s. Rajyalakshmi Jewelers, Abids, Hyderabad. PW.26 is the
Investigating Officer in Crime No.347 of 2007 of Banaswadi Police
Station registered for the offences under Section - 395 of IPC and
Sections 3, 25 and 27 of the Act, 1959. During the course of
investigation, he arrested accused No.1 herein on 29.09.207 and
seized the aforesaid MOs. and later intimated the same to the CCS
Police, Hyderabad.
iv) In this regard, it is opt to refer to Rule - 35 of the Criminal
Rules of Practice and Circular Orders, 1990 and the same is extracted
hereunder:
"35. Identification of property:- (1) Identification
parades of properties shall be held in the Court the
Magistrate where the properties are lodges;
(2) Each item of property shall be put up
separately for the parade. It shall be mixed up with
four or similar objects.
(3) Before calling upon the witnesses to identify
the property, he shall be asked to state the
identification marks of his property. Witnesses
shall be called in one after the other and on leving
shall not allowed to communicate with the witness
not yet called."
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
v) In view of the above evidence and discussion, the appellants
herein failed to disprove their evidence during trial. Nothing contra
was elicited from them during cross-examination. Therefore, the said
contention of learned counsel for the appellants is unsustainable.
There is a specific finding with regard to the said aspects in paragraph
Nos.53 to 55 of the impugned judgment. Thus, there is no error in it.
22. Learned counsel for the appellants also strenuously
contended that the prosecution failed to prove the identity of the
appellants - accused Nos.1 and 2. In support of the same, he relied on
the decisions in Ganesh v. State of Maharashtra 14, Gireesan Nair v.
State of Kerala 15, Shaikh Umar Ahmed Shaikh v. State of
Maharashtra 16, Shivarathir @ Gundlakomuraiah v. State of
Andhra Pradesh 17 and Wakil Singh v. State of Bihar 18. Therefore,
in this regard, depositions of PWs.1 to 4, 16 and 20 to 21 and 23 are
relevant.
i) PW.1 in his evidence deposed that he can identify three
culprits and accordingly he identified accused Nos.1 to 3 when they
. 1985 Crl.L.J. 191 (Bom.)
. Crl.Appeal Nos.1864-1865 of 2010, decided on 11.11.2022
. (1998) 5 SCC 103
. 2000 (2) ALD (Crl.) 748 (AP)
. AIR 1981 SC 1392
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
were present in the Court. Even during test identification parade, he
identified accused Nos.1 and 2.
ii) PW.2 deposed that the culprits might be in the age group of
25 - 30 years. He can identify them. He identified them when he
gave evidence in the Court as accused Nos.1 to 3 and 8 to 13. He
visited the Central Prison, Chanchalguda, Hyderabad, to identify the
culprits. In the I.T. Parades, he identified two culprits, who were
present in the Court as accused Nos.2 and 3.
iii) PW.3 deposed that he can also identify the culprits. He
identified accused No.1 as one of the culprits.
iv) PW.4 deposed that the culprits were in the age group of 30
years. They were talking in Hindi language.
v) PW.16, the then Magistrate, Hyderabad, deposed that
pursuant to the request made by the Inspector of Police, he took steps
for conducting Test Identification Parade. He further deposed that the
Jail Authorities produced 15 non-suspects along with 3 suspects i.e., at
the rate of 1:5 having similar age and personalities. The suspects did
not complain any objection regarding non-suspects. One of the
suspect by name Gopal Ramana Shetty @ Mini Gopal @ Rakesh
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
stated that he was shown to witnesses Naveen Kumar, Shiva Kumar
and Jagan Mohan Reddy about 135 days back at CCS office by police
and rest of the suspected were also shown to witnesses about 48 days
back by the police at CCS office, Hyderabad and police took their
photographs by gun pointed video camera. During test identification
parade, Shiva Kumar went and identified all the three suspects
correctly.
vi) PW.20, during cross-examination admitted that PW.2 and 3
did not give any identifying descriptive particulars of the culprits
except age group.
vii) PW.21 deposed that he obtained production warrant of
accused No.2 from the Court and deputed Mr. Anjaiah, the then SI
and team to produce accused No.2 from Mumbai and accordingly they
produced accused No.2 before him. He further deposed that in the last
week of April, 2005, he received information from Mumbai police
informing arrest of 2 more accused, namely accused Nos.3 and 4.
Then, he deputed the aforesaid team who accordingly produced
accused Nos.3 and 4 before him on 06.05.2005. He further deposed
that he got information from Mumbra, Thane District regarding arrest
of accused No.11 in connection with offence committed under Section
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
- 124 of the Bombay Police Act. When they were taking efforts to get
PT warrants, accused No.11 was released on bail. His efforts to
apprehend accused No.11 were in vain.
viii) PW.23 during cross-examination admitted that the
Additional Public Prosecutor was present with the police when they
came to him along with Nagesh Shetty. He also admitted that the
ornaments were recovered from Nagesh Shetty on being showed by
accused No.1.
ix) Nothing contra was elicited from the aforesaid witnesses
during their cross-examinations. On consideration of the entire
evidence and the judgment of the Apex Court and presumption under
Section - 114 (a) of the Indian Evidence Act, 1872, the trial Court
gave a specific finding in paragraph No.56 of the impugned judgment.
As rightly held by the trial Court, the normal rule is when conviction
is sought to be placed on the testimony of the witnesses of
identification, the Court must insist for prior test identification parade
to get assurance. There are exceptions to the same. On consideration
of the same, the trial Court gave a specific finding. The trial Court
also explained with regard to delay in conducting test identification
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
parade. PW.16 and PW.20 are the relevant witnesses to speak about
the same and their evidence is already discussed above. Thus, the
relevant witnesses identified the accused in the manner stated above
and therefore, there is no error in the finding given by the trial Court
on the said aspect.
23. It is also contended by learned counsel for the appellants
that the prosecution failed to prove identity of gold ornaments and that
there are discrepancies with regard to the quantity and particulars of
ornaments.
i) As discussed above, PW.1 and PW.6 specifically deposed
about the said aspects. It is a jewellery shop. The alleged incident
was occurred at about 9.00 P.M. when the shop was closed and when
they are conducting verification of stock. Therefore, the appellants
cannot take advantage of the same and contend that they have not
committed any offence. The said aspects were considered by the trial
Court in the impugned judgment.
24. Learned counsel for the appellants also contended that the
Investigating Officer did not conduct any investigation and did not
seize stock register. M/s. Rajlakshmi Jewellers implicated the
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
appellants in the present case only to claim insurance. As discussed
above, PW.4, an independent witness and customer deposed
specifically about the incident. Moreover, in Ex.P1, PW.1 specifically
stated that some unknown culprits committed dacoity. As discussed
above, the subject crime was closed on 18.11.2004 and, thereafter, it
was reopened on 02.02.2005. Thus, the appellants cannot contend that
they were implicated in the present case only to claim insurance.
25. It is relevant to note that on consideration of the entire
evidence, the trial Court gave specific finding that accused No.1
committed the offence under Section - 395 of IPC.
26. With regard to the role played by accused No.2, there is
specific evidence of PWs.1 to 3. Prior to test identification parade in
which accused Nos.2 and 3 were identified as participants in the
commission of offence. The test identification parade was held in the
presence of PW.16 - Magistrate. Ex.P14 is the TIP consolidated
report/proceedings including sketch of arrangement of rows with
suspects and non-suspects.
i) Ex.P4 is the admissible portion of confession of accused
No.2 in the confession statement which led to recovery of MOs.31 to
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
47. To prove the same, prosecution has also examined PW.6 and
PW.21 - Investigating Officer.
ii) Perusal of Ex.P4 - confessional-cum-seizure panchanama of
accused No.2 made in the presence of panch witnesses i.e., PW.6 and
LW.16 would reveal about his apprehension by the Mumbai Police
and his confession to have committed the present crime. In the said
confession, he also confessed to have robbed jewellery worth 13 kgs.,
and net cash of Rs.1,70,000/- from the strong room. Accused No.1
handed over one plastic bag containing two different pockets
containing 1½ kg. gold ornaments as share to him and to Mr. Pursha
and also gave Rs.12,000/- as cash. Thereafter, he sold certain gold
ornaments in the shop and spent the amounts for his wishes.
iii) PW.6, one of the panch witness to the said confessional
statement of accused No.2 deposed during enquiry by PW.21, accused
No.2 confessed to have committed dacoity in the subject jewellery
shop. He further deposed that accused No.2 also confessed that his
share of ornaments was handed over to his friend who sold them and
said that if the police accompany him, he would show where they
were sold. Ex.P4 is the confession of accused No.2 leading to
discovery of ornaments. He further deposed that two days after
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
confession of accused No.2, he led the police, Naven and himself to
Mumbai to the places where the jewellery was sold. First, they went
to Thane where accused No.2 shown various shops where sold the
ornaments and thereafter to Zaveri Bazar.
iv) PW.21 - 3rd Investigating Officer deposed that accused No.2
confessed as in Ex.P4 and led them to Mumbai to show the places of
disposal and to identify PW.8 and 14 who helped him in disposing the
stolen property. On 16.02.2005 in the morning hours, accused No.2
led them to the house of PW.14, who was in the house and on
identifying him by accused No.2, he examined and recorded his
statement. From there, accused No.2 led them to the shop of PW.8,
who was examined and recorded his statement. On 17.02.2005 at the
instance of accused No.2 and PW.14, they went to the shop of PW.13.
At the instance of accused No.2 and PW.14, he recovered gold
ornaments vide MOs.31 to 34 weighing 794 gms., under cover of
seizure panchanama Ex.P5).
v) To prove the role played by accused No.2 in the commission
of offence, the prosecution has also relied on the recoveries made
pursuant to confession under Ex.P5 to P10 - seizure panchanamas. To
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
prove that accused No.2 was in possession of ornaments prior to the
sale to the purchasers and subsequent to the recovery, the prosecution
relied upon deposition of PW.6, PWs.8 and 14. They have also
examined PWs.7, 9, 10, 11, 12 and 13 to prove that the ornaments
recovered under Exs.P5 to P10 - panchanamas from them.
27. It is relevant to note that PW.6 is close relative of PWs.1
and 5. In fact, PW.1 is the son of PW.5, partner of M/s. Rajlakshmi
Jewellers, Abids, Hyderabad. Just because they are relatives, it cannot
be said that Ex.P4 - confession of accused No.2 is not reliable. The
evidence of PW.6 is corroborative with the evidence of PW.21 - 3rd
Investigating Officer. During trial, the accused failed to elicit contra
from them to demolish Ex.P4 - confession. PW.6 is also panch for the
seizure under Exs.P5 to P10 for recovery of MOs.31 to 47 ornaments.
There is specific deposition of PW.14, who deposed that on
29.12.2003, while he was travelling in the train, accused No.2 met him
and represented that his sister was coming from Dubai with some
ornaments and requested him to sell the said ornaments. On
01.01.2004, accused No.2 met him Dombvali with ornaments.
Thereafter, on the same day, accused No.2 and he went to Zaveri
Bazar, Mahajan Galli, Mumbai. They met one Jank Bai who was
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
running jewelry shop and they have showed the ornaments weighing
about 1100 gms., to him. That shop owner purchased ornaments and
gave Rs.7.00 lakhs. He handed over the said amount to accused
No.2, who in turn gave an amount of Rs.50,000/- as commission.
Thus, he specifically deposed that accused No.2 sold the ornaments
with the help of PW.8 at various gold shops. PW.7 is one of the
purchasers and his evidence would show that he purchased MO.36
and the same was sold by PW.14 and his friend. However, he has not
identified accused No.2 as one of the friends.
28. The deposition of PW.14 would reveal that when MO.36
was sold, accused No.2 was present and recovered the same under
Ex.P7, the same is supported by the deposition of PW.7. His evidence
is further supported by the evidence of PW.6, who is panch witness to
Ex.P7 - seizure panchanama.
29. The depositions of PWs.8, 9, 10, 11 and 13 are also
relevant with regard to the role played by accused No.2 in commission
of offence. According to PW.8, Pw.14 and accused No.2 approached
him for sale of MOs.41 to 47 i.e., one gold chain 0009 gms., two gold
necklace with white stones 0033 gms., two gold pendants with pearls
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
and ruby stones 0060 gms., one pair of gold ear hangings with pearls
and rubies 0020 gms., 11 pairs of gold ear rings of different designs
0045 gms., 2 pairs of gold ear tops with black beads pearls and rubies
0014 gms., and 6 pieces of gold pendants with pearls, rubies, emerald
0019 gms. He sold the said ornaments to PW.12, owner of Nutan
Jewelleries. The deposition of PW.8 is consistent and supported by
the deposition of PW.12 - purchaser. PW.12 categorically admitted
that he has purchased MOs.41 to 47 from PW.8.
30. Perusal of depositions of PWs.8 and 14 would reveal that
accused No.2 and PW.14 together approached for sale of MOs.41 to
47. Recoveries vide Ex.P9 - panchanama supports the same.
31. PW.9 also supported recovery of MO.35 under Ex.P6 -
panchanama. Nothing contra was elicited from him to disbelieve the
version of PW.9.
32. PW.10, owner of gold shop at Zaveri Bazar, deposed that in
the year 2004, he purchased 7 or 8 items of gold ornaments from
PW.14 which were owned by his friend. Subsequently, the police
informed him that the purchased gold ornaments are theft properties.
The police recovered the said gold ornaments from him under Ex.P8 -
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
panchanama. The total weight of all the ornaments was about 170
gms. Thus, his evidence is supported by Ex.P8 - panchanama. His
evidence also would show that PW.14 shown the ornaments with
accused No.2 and he identified accused No.2 as well as ornaments.
33. PW.11 is the purchaser of MO.40 bangles. MO.40 was
sold by PW.14 and accused No.2. PW.11 also identified accused No.2
as one of the persons found along with PW.14 when he purchased
MO.40 bangles. He also identified MO.40 bangles.
34. PW.13 is another owner of jewellery shop in Zaveri Bazar,
Mumbai. Earlier, he worked in Rajvanth Jewellery, Talabvpali, thane,
West Mumbai from 2003 to 2007. According to him, in January,
2004, PW.14 along with another person approached him for sale of
gold ornaments. He purchased the gold ornaments brought by them
which were approximately weighing about 790 gms. In the month of
February, 2005, the police, Mumbai and Andhra came to his shop
along with PW.14 and other person, who was with him at the time of
sale. The police informed that the gold ornaments purchased by him
were theft articles. He handed over all the ornaments which he
purchased from PW.14 and other person. The police seized the same
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
under Ex.P5 - panchanama, which contains his signature. He has
identified MO.31 to 34 - ornaments which were seized from his
possession. He has identified accused No.2 is the person who came to
his shop along with PW.14. However, nothing contra was elicited
from him during cross-examination.
35. Perusal of the aforesaid depositions and panchanamas and
material objects exhibited would reveal the role played by accused
No.2 in the commission of offence. On consideration of the same, the
trial Court gave a specific finding that accused No.2 is guilty of the
offence under Section - 395 of IPC.
i) Referring to the decision in State of Rajasthan v. Teja
Ram 19, learned Additional Public Prosecutor would submit that there
is nothing wrong or illegal on the part of Investigating Officer in
obtaining the signature of the accused on the seizure memo. In view
of the above discussion, the said contention of learned Additional
Public Prosecutor is sustainable.
36. It is apt to note that in paragraph Nos.75 to 78, the trial
Court gave a specific finding with regard to the contention of learned
. 1999 LawSuit (SC) 333
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
counsel for the appellants that the prosecution failed to prove
identification of the ornaments. The trial Court observed object of
missing of suspects and non-suspects. The trial Court also considered
Ex.P14. It is a reasoned order. There is no error in it. In the light of
the same, the contention of learned counsel for the appellants that the
prosecution failed to prove the identification of ornaments is
unsustainable.
37. As discussed above, learned counsel for the appellants
vehemently argued that there is delay in conducting test identification
parade. He has also placed reliance on the decisions in Manzoor v.
State of U.P. 20 and Sirama Venkatarao @ Bayya @ Bakkodu v.
Stateof A.P. 21.
i) On the other hand, learned Additional Public Prosecutor
would contend that such delay is not fatal to the case of prosecution.
In support of the same, he has relied upon the decision in Pramod
Mandal v. State of Bihar 22.
. 1982 SCC (Cri) 356
. 2007 (1) ALD (Crl.) 472 (AP)
. 2004 LawSuit (SC) 1061
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
ii) As rightly held by the trial Court, accused No.2 was
produced before the primary Court on execution of P.T. warrants on
09.02.2005. Police custody was granted from 12.02.2005 to
23.02.2005. On completion of police custody, accused No.2 was
remanded to judicial custody. Requisition (Ex.P11) was made on
09.06.2005 and test identification parade was conducted on
25.06.2005 as deposed by PW.16. Thus, the delay caused between the
requisition and conducting of test identification parade cannot be
attributed to the prosecution. However, PW.21 - 3rd Investigating
Officer explained the delay. According to him, the delay was on
account of arrest of other accused. The said delay is not fatal to the
case of prosecution. The said aspects were considered by the trial
Court. In paragraph No.84 of the impugned judgment, the trial Court
also gave specific finding that there is consistency in the depositions
of PWs.1 and 2 with regard to identification of accused No.2. PW.11
is also identified accused No.2.
38. Thus, as discussed above, the trial Court recorded
conviction against both the appellants - accused Nos.1 and 2 on
consideration of entire evidence, both oral and documentary. In view
of graveness of offence, minor discrepancies in the depositions of
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
prosecution witnesses are not fatal to the case of prosecution.
Therefore, the prosecution proved the guilt of both the accused i.e.,
accused Nos.1and 2 beyond reasonable doubt. They have also
produced legal and acceptable evidence. On consideration of the
same, the trial Court convicted both the appellants.
39. As discussed above, the offence alleged against the
appellants - accused Nos.1 and 2 are under Section - 395 of IPC and
Section - 25 (1A) of the Act, 1959. On consideration of the evidence,
the trial Court acquitted them for the offence under Section - 25 (1A)
of the Act, 1959. No appeal was preferred against the said judgment
acquitting the accused for the offence under Section - 25 (1A) of the
Act, 1959. However, the trial Court convicted the appellants -
accused Nos.1 and 2 for the offence under Section - 395 of IPC.
40. As discussed above, Section - 391 of IPC deals with
dacoity and it says that when five or more persons conjointly commit
or attempt to commit a robbery, or where the whole number of
persons conjointly committing or attempting to commit a robbery, and
persons present and aiding such commission or attempt, amount to
five or more, every person so committing, attempting or aiding, is said
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
to commit "dacoity". Thus, the following are the three (03)
ingredients of dacoity.
i) There should be five (05) persons or more;
ii) Commit or attempt to commit the robbery; and
iii) All such persons should act conjointly;
41. As discussed above, in the present case, there are more than
five (05) people. Many of them are absconding. However, the trial
Court having acquitted accused Nos.8 and 13 convicted accused Nos.1
and 2 vide impugned judgment.
42. As discussed above, there is no loss of life. The stolen
property was recovered. At the cost of repetition, as discussed above,
the trial Court acquitted accused Nos.1 and 2 for the offence
punishable under Section - 25 (1A) of the Act, 1959. No appeal was
preferred.
43. Punishment prescribed for dacoity under Section - 395 of
IPC is imprisonment for life, or with rigorous imprisonment for a term
which may extend to ten years, and shall also be liable to fine. Even
then, the trial Court imposed sentence of imprisonment for life
holding that the appellants herein along with other accused committed
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
the offence in the prime commercial locality of Hyderabad City, and
that too, at the edge of closing time of the shop. The entire gold
ornaments were looted from the shop and the accused were part of the
members who were armed with daggers and revolvers. The offence
had great impact on the mind set of business community and public in
general and it challenges the very capabilities of the State to offer
security to the public. Taking lenient view in a case this kind will
give a wrong signal to the public and it would not have any impact on
the potential future offender. The punishment must not only serve the
reformation but also have a deterrent effect on the potential future
offender. Otherwise, societal interest would be at stake. The trial
Court also considered that 25 to 30 kgs., of ornaments were looted
from the shop which is centre of commercial city centre and that too
in the busy public movement time.
i) The trial Court also relied upon the principle laid down by
the Apex Court in State of Karnataka v. Putta Raja 23. But, in the
said judgment, the offences alleged against the accused therein are
under Sections - 376 and 376A IPC. The said offences are heinous
offences against the society and women, whereas, in the present case,
. (2004) 1 SCC 475
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
the trial Court has acquitted the accused for the offence under Section
- 25 (1A) of the Act, 1959. The trial Court also failed to consider the
Sentencing Policy while imposing life imprisonment on the
appellants.
44. The maximum punishment of life imprisonment can be
imposed under certain circumstances as held by the Apex Court. In
State of Uttar Pradesh v. Sanjay Kumar 24, the Apex Court held that
Courts for the purpose of deciding just and appropriate sentence, have
to delicately balance the aggravating and mitigating factors and
circumstances in which a crime has been committed. To balance the
two, is the primary duty of Courts.
i) In Santa Singh v. State of Punjab 25, the Apex Court
observed as follows:
"3. ... a proper sentence is the amalgam of
many factors such as the nature of the offence, the
circumstances--extenuating or aggravating--of
the offence, the prior criminal record, if any, of the
offender, the age of the offender, the record of the
offender as to employment, the background of the
offender with reference to education, home life,
. (2012) 8 SCC 537
. (1976) 4 SCC 190
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
society and social adjustment, the emotional and
mental condition of the offender, the prospects for
the rehabilitation of the offender, the possibility of
return of the offender to a normal life in the
community, the possibility of treatment or training
of the offender, the possibility that the sentence
may serve as a deterrent to crime by the offender
or by others and the current community need, if
any, for such a deterrent in respect to the particular
type of offence."
ii) In Soman v. State of Kerala 26, the Apex Court referred
number of principles that it took into account "while exercising
discretion in sentencing", such as proportionality, deterrence and
rehabilitation. It was specifically noted that as part of the
proportionality analysis, mitigating and aggravating factors should
also be considered.
iii) Expounding upon the rationale of proportionate sentencing,
in Alister Anthony Pareira v. State of Maharashtra, 27 the Apex
Court held that:
"84. Sentencing is an important task in the
matters of crime. One of the prime objectives of
. (2013) 11 SCC 382
. (2012) 2 SCC 648
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
the criminal law is imposition of an appropriate,
adequate, just and proportionate sentence
commensurate with the nature and gravity of [the]
crime and the manner in which the crime is done.
There is no straitjacket formula for sentencing an
accused on proof of crime. The courts have
evolved certain principles: the twin objective of
the sentencing policy is deterrence and correction.
What sentence would meet the ends of justice
depends on the facts and circumstances of each
case and the court must keep in mind the gravity of
the crime, motive for the crime, nature of the
offence and all other attendant circumstances."
iv) In Hazara Singh v. Raj Kumar, 28 the Apex Court
highlighted the importance of proportionate sentencing in the
following words:
"10. ... The punishment awarded should be
directly proportionate to the nature and the
magnitude of the offence. The benchmark of
proportionate sentencing can assist the Judges in
arriving at a fair and impartial verdict.
11. The cardinal principle of sentencing policy
is that the sentence imposed on an offender should
reflect the crime he has committed and it should be
proportionate to the gravity of the offence."
. (2013) 9 SCC 516
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
v) The factors weighing with the Court in determining the
sentence has been best explained by the Apex Court
in RamashrayaChakravarti v. State of Madhya Pradesh, 29 in the
following words:
"1. To adjust the duration of imprisonment to the
gravity of a particular offence is not always an
easy task. Sentencing involves an element of
guessing but often settles down to practice
obtaining in a particular court with inevitable
differences arising in the context of the times and
events in the light of social imperatives. It is
always a matter of judicial discretion subject to
any mandatory minimum prescribed by law.
2. Hegel in his 'Philosophy of Right' pithily put the
difficulty as follows:--
"Reason cannot determine, nor can the concept
provide any principle whose application could
decide whether justice requires for an offence (i) a
corporal punishment of forty lashes or thirty-nine,
or (ii) a fine of five dollars or four dollars ninety-
three, four, etc., cents, or (iii) imprisonment of a
year or three hundred and sixty-four, three, etc.,
days, or a year and one, two, or three days. And
. (1976) 1 SCC 281
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
yet injustice is done at once if there is one lash too
many, or one dollar or one cent, one week in
prison or one day, too many or too few".
.......................
6. In judging the adequacy of a sentence the
nature of the offence, the circumstances of its
commission, the age and character of the offender,
injury to individuals or to society, effect of the
punishment on the offender, eye to correction and
reformation of the offender, are some amongst
many other factors which would be ordinarily
taken into consideration by courts. Trial courts in
this country already over-burdened with work have
hardly any time to set apart for sentencing
reflection. This aspect is missed or deliberately
ignored by accused lest a possible plea for
reduction of sentence may be considered as
weakening his defence. In a good system of
administration of criminal justice pre-sentence
investigation may be of great sociological value.
Throughout the world humanitarianism is
permeating into penology and the courts are
expected to discharge their appropriate roles."
In the present case, the trial Court failed to consider the said aspects
while imposing sentence of imprisonment for life on accused Nos.1
and 2.
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
45. In the light of the aforesaid discussion, the conviction
recorded on the appellants - accused Nos.1 and 2 for the offence under
Section - 395 of IPC by the Special Judge for Economic Offences -
cum - VIII Additional Metropolitan Sessions Judge at Hyderabad,
vide impugned judgment dated 09.03.2015 in S.C. No.533 of 2010, is
hereby confirmed. During incarceration, there are no remarks or
allegation against the conduct of accused Nos.1 and 2. Therefore,
keeping in view that reformation is one of the objects of sentencing
policy and also the conduct of accused Nos.1 and 2 during their
incarceration period and gravity of the offence, the sentence of
imprisonment for life imposed on accused Nos.1 and 2 is modified to
that of ten (10) years.
46. As discussed above, as per nominal rolls dated 29.04.2024,
the appellant - accused No.1 is in jail from 09.03.2015. He was also
in judicial remand for about one (01) year seven (07) months and three
(03) days and served the actual sentence of imprisonment of eight (08)
years nine (09) months and ten (10) days. Thus, as on 29.04.2024, he
has served out the total sentence of imprisonment of ten (10) years
four (04) months and thirteen (13) days which excludes remission
period in Central Prison, Cherlapally, Medchal - Malkajgiri District.
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
As far as the appellant - accused No.2 is concerned, he has served out
the actual sentence of imprisonment of nine (09) years one (01) month
and twenty (20) days as on 29.04.2024 and he was in judicial remand
for a period of two (02) years four (04) months and twenty six (26)
days, which excludes remission period. Thus, the appellant - accused
No.2 has served out the total sentence of imprisonment of eleven (11)
years six (06) months sixteen (16) days. In view of the same, both the
accused have completed the sentence of imprisonment of ten (10)
years period which is imposed by this Court modified from life
imprisonment.
47. Accordingly, the Superintendent, Central Prison,
Cherlapalli, Medchal - Malkajgiri District, is directed to release
accused No.1 - Vasantha Saliyana @ Vasanth Pujari @ Yada
Vasantha @ Vijay @ Vijay Saliyana S/o Kakkar Pujari, forthwith, if
his presence is not required in any other cases. Similarly, the
Superintendent, Central Prison, Chanchalguda, Hyderabad, is directed
to release accused No.2 - Gopal Ramana Shetty @ Mini Gopal @
Rakesh S/o Ramana Shetty, forthwith, if his presence is not required
in any other cases.
KL,J & SKS,J
Crl.A. Nos.343 & 344 of 2015
48. Both these appeals are accordingly allowed in part to the
extent indicated above.
As a sequel thereto, miscellaneous applications, if any, pending
in these appeals shall stand closed.
__________________
K. LAKSHMAN, J
__________________
K. SUJANA, J
3rd May, 2024
Mgr
