Telangana High Court
Kummarikuntla Shankar, Khammam And 3 ... vs State Of Telangana, Rep Pp., on 11 February, 2025
1
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE J. ANIL KUMAR
CRIMINAL APPEAL No.254 OF 2017
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. The Appeal is filed by the appellants aggrieved by the
judgment dated 20.02.2017 in S.C.No.20 of 2010, on the file of
IV Additional Metropolitan Sessions Judge at Hyderabad. The
appellants were convicted for the offence under Section 394 of
IPC and sentenced to life imprisonment.
2. Heard learned counsel for the appellants and Sri Arun
Kumar Dodla, learned Additional Public Prosecutor for
respondent-State.
3. The case against the appellants is that on 23.10.2007,
around 2 p.m., P.Ws.1 to 3 were in the house. P.W.1 was on
the first floor. When he heard shouts from the ground floor,
P.W.1 came down and saw P.W.2 was tied with a rope and her
mouth was closed. There were four persons who threatened
P.W.1 by showing guns to come down. After P.W.1 came down,
P.W.3, sister of P.W.2 came out from bed room. The accused
made P.Ws.1 to 3 sit on the floor and threatened them to part
with the money that was available in the house. P.W.3 brought
her savings of Rs.4,000/- from the bed room and gave it to
them. The persons also threatened P.Ws.1 to 3 to open the
locker. When they were trying to open the locker, meanwhile
P.W.3 escaped from the clutches of accused and went into the
bed room and locked herself. The accused asked P.W.1 to open
the main door and thereafter, they fled. When P.W.1 tried to
catch hold of the accused, A-4 inflicted a knife injury on P.W.1's
right elbow and on the nose. One of the passers by namely
Dr.Shiva Reddy helped in catching hold of A-4. P.W.1 went to
the Police Station and lodged the complaint/Ex.P.1. In the said
complaint, he narrated that some persons entered into their
house and tied P.W.2 and also threatened P.W.1 and P.W.3.
The said persons forcibly made them sit on the floor and their
savings of Rs.4,000/- was taken and also gold jewelry of 100
gms chain and 40 gms of hand ornament. The complaint was
lodged at 3:30 p.m. on 23.10.2007. On the very same day,
another complaint/Ex.P.2 was filed by P.W.1. In the said
complaint, he stated that, though he mentioned in the earlier
complaint that 100 gms of chain and 40 gms of hand ornament
were missing, however, they were found in the locker.
4. The accused/A-1, A-4 and A-5 were arrested on the very
same day by P.W.10/Inspector of Police and at the instance of
A-1, A-4 and A-5, one gas lighter pistol and one classic cell
phone were seized. Thereafter, Police effected seizure of M.Os.5
to 10, which are two small knives, two pairs of clothes, two
syringes, one plastic rope, two vials of injection fluid and
indicom cell phone. The accused were sent to jail after being
produced before the Magistrate. P.W.8, who is the Magistrate
conducted Test Identification proceedings on 07.11.2007. In
the said Test Identification proceedings, all the accused were
identified.
5. The learned Sessions Judge found favour with the version
of the prosecution that A-1 to A-4 committed robbery and
injured P.Ws.1 and 2. However, acquitted A-5.
6. Learned counsel appearing for the appellants would
submit that two complaints were filed. Initially in Ex.P.1, it was
stated that gold ornaments were lost, however, in Ex.P.2, it was
stated that only Rs.4,000/- cash was missing. P.W.1 states
that A-4 was caught at the scene. But according to the Police
Officer/P.W.10, A-4 was caught along with A-1 and A-5 by the
Police team. These discrepancies would go to the root of the
case. The manner in which the incident was narrated and the
manner in which the accused were arrested, create any amount
of doubt.
7. On the other hand, learned Public Prosecutor would
submit that A-2 was involved in another case for the offence of
cheating punishable under Section 420 of IPC. However, he
was acquitted in the said case.
8. Having gone through the record, P.Ws.1 and 3 stated that
A-4 was apprehended at the scene and handed over to the
Police. However, the Police Officer/P.W.10 contradicts the
version of P.W.1 and states that A-4 was arrested by Police
team. Another aspect which has to be considered is that
initially P.W.1 filed a complaint stating that 14 gms of gold
ornaments were missing. However, on the same day, he lodged
a second complaint stating that gold ornaments were found in
the house.
9. The prosecution examined P.W.9, Doctor from Osmania
General Hospital. The Doctor who treated P.Ws.1 and 2 is one
Dr.Krishna Kishore. Since Dr.Krishna Kishore attendance
could not be secured in the Court, the prosecution examined
P.W.9 in the place of Dr.Krishna Kishore. P.W.9 identified the
signature on the injury certificate of P.Ws.1 and 2. According
to P.W.9, there was swelling and tenderness over the upper lip,
and tenderness over the left shoulder of P.W.2. Ex.P23 is
wound certificate issued by Dr.Krishna Kishore in respect of
P.W.2. Further, he found 5 x1 abrasion over right arm and 2 x
1 abrasion on left side of nose of P.W.1. Ex.P24 is the wound
certificate of P.W.1. During the course of cross examination, it
was elicited that P.W.9 has not filed any authorization in
writing, issued by Superintendent of OGH to depose in the
Court. He categorically admitted that injuries received by
P.W.1 and P.W.2 may result due to fall on the rough surface.
10. The alleged injuries were caused by A-4 even according to
the witnesses. However, though it is stated by P.Ws.1 and 2
that A-4 was caught at the scene and handed over to the Police,
the same was denied by the Police. The Doctor who treated
P.Ws.1 and 2 was not examined. According to Ex.P23 and
Ex.P24, wound certificates, it is not mentioned whether the
injuries are simple or grievous in nature.
11. Insofar as A-4 is concerned, the evidence of the
prosecution is doubtful. As already discussed, though it is
stated by witnesses that A-4 was caught at the scene, the same
was contradicted by Investigating Officer. For the said reason,
the conviction of A-4 under Section 394 of IPC is hereby set
aside. Insofar as A-1 to A-3 are concerned, P.Ws.1 and 3 have
identified them in the Test Identification Parade. Even
according to the case of P.W.1, A-1 to A-3, did not cause any
injury either to P.W.1 or P.W.2. Since injuries were not caused
by A-1 to A-3 they are not convicted with the aid of Section 34
of IPC. In the said circumstances, individual overt acts have to
be considered. A-1 to A-3 cannot be convicted under Section
394 of IPC. However, they are convicted for the offence under
Section 392 of IPC. Though jewelry was available in the house,
an amount of Rs.4,000/- was taken from P.W.3 on the said day.
As already discussed, A-1 to A-3 did not cause injuries in the
said incident. When questioned, learned Public Prosecutor
stated that there are no cases against A-1 and A-3. Insofar A-2
is concerned, there was one case of cheating and the same
ended in acquittal.
12. As seen from the record, A-1 to A-3 were in jail from
20.02.2017 to 24.09.2018 i.e., for a period of one year and
seven months. Considering that there are no criminal
antecedents, the appellants are sentenced to the period already
undergone by them for the offence under Section 392 of IPC.
13. Accordingly, the Criminal Appeal is partly allowed.
_________________
K.SURENDER, J
___________________
J. ANIL KUMAR, J
Date: 11.02.2025
dv
