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IN THE COURT OF THE IV ADDL. DISTRICT & SESSIONS JUDGE: NELLORE

(COURT OF SESSION: NELLORE DIVISION: NELLORE)

Thursday, this the 4th day of December 2014

Present: Ch.Ramachandra Murthy , B.Com., M.L.,
IV Additional District & Sessions Judge,
Nellore

CRIMINAL APPEAL No.28/2014

1. Criminal Appeal No. : Criminal Appeal No.28/2014

2. From which Court the: Additional Judicial Magistrate of First

appeal preferred Class, Kovur

3. No. of the Case in that: C.C.No.104/2010

Court
4. No. of the Appeal : C.A.No.28/2014

5. Name and Description of: A-1/Kovuru Seshaiah,

the Appellant/Accused Son of Narasaiah, 43 years, SC-Mala
Madaraju Gudur, Nellore Mandal.

A-4/Gunji Padma,
Wife of Kovur Seshaiah, 32 years,
Vaddera by caste,
Netha Nagar, Jakir Hussain Nagar,
Nellore.
6. Name and Description of: State Represented by Inspector of Police,
the Buchireddypalem
Respondent/Complainant
7. The sentence and law: In the result, A-1 is sentenced to undergo
under which it was Rigorous imprisonment for a period of
imposed in Lower Court three years for the offence punishable
under Section 394 IPC and A-2 to A-4 are
sentenced to undergo Rigorous
imprisonment for a period of three years
each for the offence under Section 394
read with 34 IPC. Further A-1 to A-4 are
sentenced to pay fine of Rs.2,000/- each
for the above said offence i.e., in total
Rs.8,000/-. IN default simple
imprisonment for a period of three
months each for the above said offences.
The said fine amount of Rs.8,000/- shall
be payable to PW-1/Golanki Chinnamma
after expiry of appeal time as
compensation under Section 357 of
Cr.P.C., towards her expenses for the
injuries sustained by her out of this
offence.

8. Whether confirmed /: In the result, the criminal preferred by

modified / reverted and, if
modified, the modification
Appellants/Kovuru Seshaiah, son of
Narasaiah, Gunji Padma, wife of Kovur
Seshaiah (A-1 and A-4) against the
judgment in C.C.No.104/2010 dated 14-2-
2014 on the file of Additional Judicial
Magistrate of First Class, Kovur is hereby
allowed and consequently the conviction
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and sentence recorded is hereby set-

aside. Accused No.1 is found not guilty for
the offence under Section 394 of Indian
Penal Code and Accused No.4 is found not
guilty for the offence under Section 394
read with 34 of Indian Penal Code. They
are acquitted of the same. Fine
amount, if any paid by A-1 and A-4,
shall be refunded to them after
appeal time is over.

9. Date of Presentation : 26-2-2014

10. Date of Filing : 26-2-2014

11. Date of Notices issued by: 28-2-2014

the Court to appear
12. Date of bail-bond, if the: 28-2-2014
Appellant has been let out
on bail
13. Date of respondent: 12.03.2014
ordered to appear
14. Date of Hearing : 24-11-2014

15. Date of Order : 4-12-2014

16 Name of the Appellant : Sri. G.Rajagopal Reddy
. counsel Advocate for appellant

17 Name of the : Additional Public Prosecutor

. Respondent Counsel Nellore.

This appeal coming on 24.11.2014 for final hearing before me in the

presence of Sri. G.Raja Gopal Reddy – advocate for the appellant, and of

Additional Public Prosecutor advocate for 2nd respondent, and the matter

having stood over for consideration to this day, this Court delivered the

following:

JUDGMENT

1. This criminal appeal filed by the appellants Kovuru Seshaiah, son

of Narasaiah( A-1) and Gunji Padma wife of Kovur Seshaiah/A-4 under Section

374 (3) (a) of Criminal Procedure Code is directed against the conviction and

sentence of the accused recorded by the Additional Judicial Magistrate of First

Class, Kovur for the offence punishable under Section 394 of Indian Penal Code

vide judgment dated 14-2-2014 in C.C.No.104/2010, where under and whereby

the accused was convicted under Section 394 I.P.C. and sentenced him to

undergo three years rigorous imprisonment and further sentenced to pay a

fine of Rs.2,000/-, in default shall undergo simple imprisonment for three

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months and the period in detention during the trial shall be set off under

Section 428 Cr.P.C.

2. The parties are referred to as accused and prosecution as referred

before the trial court.

3. The brief facts that are necessary for disposal of the present appeal may

be stated as follows:-

(i) On 5-11-2009 at 9-00 P.M., while PW-1/G.Chinnamma and PW-

2/Meramma boarde the Auto to go to Damaramadugu and that the driver of

the Auto stopped the Auto on Kagulapadu-Penuballi road and three persons

who were inmates of the Auto asked the defacto complainant to get down from

the Auto. The driver of the Auto threatened her at point of knife and robbed her

gold ornaments. The driver of the Auto hacked her with a knife and caused

bleeding injury on her right hand thumb. They also robbed plastic basket

containing two sarees, blouses and lower petty coat and fled away. On that

Chinnamma/PW-1 gave report to the police and a case was registered in crime

No. 139/2009 of Buchireddypalem Police Station. During the course of

investigation, PW-6/ the then Sub Inspector of Police visited scene of offence,

observed scene of offence, recorded the statement of witnesses. On 29-11-

2009 the accused was arrested. On requisition the then learned Additional

Judicial Magistrate of First Class, Kavali/LW-12 conducted test identification

parade of accused in Central Prison, Nellore, where eyewitnesses participated

in the parade and identified the accused. From the facts collected during the

course of investigation it was established that the accused are liable for

punishment under Section 394 IPC. Hence, the charge.

4. On appearance of the A-1 to A-4, the learned Additional Judicial

Magistrate of First Class, Kovur examined the accused under Section 239

Cr.P.C., and charges were framed, read over and explained to the accused in

Telugu for the offences punishable under Sections 394 I.P.C. They pleaded not

guilty and claimed to be tried.

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5. On behalf of prosecution, PWs-1 to 8 were examined and got marked

Exs.P-1 to Ex.P-10 documents and MOs-1 to 4 were marked. .

6 After closing the prosecution evidence, the learned Magistrate examined

A-1 to A-4 under Section 313 Cr.P.C., for the purpose of explaining the

incriminating circumstances in the evidence adduced by the prosecution. They

denied the circumstances. They did not choose to adduce any evidence.

7. After hearing both sides, the trial court after considering the evidence on

record, came to the conclusion that the accused robbed PW-1 and committed

theft of her gold ornaments, though she failed to identify the accused during

the course of her evidence by taking into consideration of test identification

parade and found the accused guilty for the offence under Section 394 IPC and

sentenced them to undergo three years rigorous imprisonment each and

further sentenced to pay a fine of Rs.2,000/- each, in default shall undergo

simple imprisonment for three months each and the period in detention during

the trial shall be set off under Section 428 Cr.P.C.

8. Aggrieved by the said conviction and sentence, A-2 preferred the

present appeal.

(i) In the grounds of appeal it is contended that the trial court erred in

convicting the accused by simply relying on test identification proceeding,

without examining the learned Magistrate who conducted test identification

parade and failed to observe that PW-1 did not identify the accused during the

course of her evidence and failed to observe that the independent mediators

who were present at the time of arrest of accused turned hostile . Therefore,

appellant requests to allow the appeal and set-aside the conviction and

sentence imposed by the Court below.

9. Heard both sides and perused relevant records.

1. NOW THE POINT FOR

DETERMINSATION IS WHETHER
THE CONVICTION AND SENTENCE
DATED 14-2-2014 RECORDED BY
THE LEARNED ADDITIONAL
JUDICIAL MAGISTRATE OF FIRST
CLASS, KOVUR IN C.C.No.104/2010
IS LIABLE TO BE SET-ASIDE?
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POINT -

10. As per prosecution, PW-1/Chinamma and LW-2/Golanki Meeramma

boarded one Auto on 5-11-2009 at 9-00 P.M., to go to Damaramadugu. On the

way, the inmates of the Auto and driver of the Auto stopped the Auto at

secluded place and robbed the gold ornaments of PW-1 and that PW-

8/Investigation officer arrested A-1 to A-4 and recorded their statements in the

presence of PW-3/Sesha Reddy and PW-4/Dadi Nagaraju and recovered MO-s 1

to 4 at the instance of accused under Ex.P-4 and that PW-1 participated in the

parade conducted by the then learned Magistrate Kavali/LW-12 and identified

the accused. Therefore, the accused are liable for punishment under Section

394 IPC.

11. Learned Assistant Public Prosecutor argued that the Court below rightly

come to the conclusion and convicted and sentenced the accused and that

there is no need to interfere with the finding recorded by the trial court.

12. On the other hand, learned advocate for accused No.2 contended that

PW-1, who is victim failed to identify the accused before the Court and that the

test identification proceedings were marked without examining the learned

Magistrate and that one of the mediators turned hostile and second mediator

failed to give particulars of property seized from the accused. Therefore the

trial court without considering those aspects, wrongly come to the conclusion

and found the accused guilty.

13. PW-1 is defacto complainant and victim. She deposed that she boarded

one Auto along with her sister Meeramma/LW-2 and on the way the Auto driver

and inmates of the Auto threatened her at point of knife and robbed her gold

ornaments. She identified her property and marked as MOs-1 to 4. She is in

interim custody of MOs-1 to 4. She further deposed that she cannot identify the

persons who attacked her due to lapse of time. But she deposed that she

identified the suspects during test identification parade. Therefore, the only

eyewitness failed to identify any of the witness before the Court.

14. PW-2 is mediator present for observing the scene of offence. He deposed

that the police simply obtained his signature on observation report. He

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identified his signature and marked as Ex.P-2. He does not know the contents

of Ex.P-7. He did not support the case of prosecution with regard to observing

the scene of offence by PW-8.

15. PW-5 is medical officer, who examined PW-1 and found incised wounds

over right middle finer and right index finger. He also observed an incised

wound on right index finger of PW-1. He issued Ex.P-5 wound certificate. He

opined that all the injuries are simple in nature. PW-1 stated before him that

one Auto driver caused injuries to her. His evidence is relevant to prove that

PW-1 received injuries on the date of incident.

16. PW-7 is the then Sub Inspector of Police, who received report from PW-1

in Ex.P-1 and registered a case. He issued First information report in Ex.P-6. He

did not investigate the case further. PW-8 is Inspector of Police, who deposed

that he visited the scene of offence, observed the scene of offence, recorded

the statements of PW-2 and LW-2/Meeramma and prepared rough sketch of

scene of offence in Ex.P-8. Finally he filed charge sheet. He denied a

suggestion that the case is foisted against accused.

17. PW-6 is Inspector of Police, who arrested the accused and recovered the

case properties and other properties in the presence of PW-3 and PW-4 under

Ex.P-4. He deposed that on 29-11-2009 he arrested A-1 to A-4 and

recorded their statements and recovered MOs-1 to 4 in the presence of PWs-3

and PW-4. He denied a suggestion that nothing has been recovered from the

possession of accused and the case is foisted against him. He deposed that he

recovered gold ornaments form the possession of A-1. He did not depose the

recovery of gold ornaments from the possession of A-2 to A-4.

18. PWs-3 and PW-4 are independent mediators to prove the recovery of

properties from the possession of accused under Ex.P-4. PW-3 deposed that

police simply obtained his signature on a blank paper. He identified his

signature and marked as Ex.P-3. Learned Assistant Public Prosecutor declared

him as hostile and cross-=examined him. But nothing has been elicited form

his cross-examination.
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19. PW-4 is working as village Revenue Officer, Peddacherukuru. He simply

deposed that on 29-11-2009 he and PW-3 followed the police to Gudapallipadu

centre where they found A-1 to A-4 and that accused gave statement and

produced gold ornaments and Inspector of Police recovered the same under

Ex.P-4. On perusal of his evidence he nowhere stated the particulars of gold

ornaments recorded from the possession of each accused. A bald statement

was made that gold ornaments were recovered from the possession of A-1 to A-

4. He deposed that he does not remember the particulars of gold ornaments

recovered in his presence.

20. Learned advocate for the accused questioned the finding recorded by

the Court below regarding conviction believing the test identification

proceedings in Ex.P-9 and Ex.P-10. Admittedly, PW-1 failed to identify any of

the accused before the court, though she identified A-1 to A-4 during test

identification parade of the accused. Prosecution failed to examine the second

eyewitness/LW-2/Meeramma, who also participated in the parade and identified

A-1 to A-4. No explanation was offered for non-examination of learned

Magistrate who conducted test identification parade of accused. The test

identification proceedings were marked in Ex.P-9 and Ex.P-10 through the

evidence of PW-8/Investigation Officer.

21. Learned advocate for the accused argued that in view of the evidence of

PW-1, who failed to identify the accused before the Court, the test identification

proceedings in Exs.P-9 and Ex.P-10 cannot be taken into consideration to

convict the accused for the offence punishable under Section 394 I.P.C.

22. In Heera and another Vs. State of Rajasthan 2008 (1) ALT (Criminal)

1992 (SC), while dealing with the provisions of Section 9 of Indian Evidence Act

and evidencary value of test identification parade, it was observed that

Identification tests do not constitute substantive evidence. They are primarily

meant for the purpose of helping the investigation agency with an assurance
that their progress with the investigation into the offence is proceeding on the
right lines. The identification can only be used as corroborative of the
statement in Court (see) Santokh Singh Vs. Izhar Hussain (1973) (2) SCC 406).
The necessity of holding an identification parade can arise when accused are
not previously known to the witnesses. The whole idea of a test identification
parade is that witnesses who claimed to have seen the culprits at the time of
occurrence are to identify them from the midst of other persons without any
aid or any other source. The test is done to check up their veracity. In other
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words, the main object of holding an identification parade during the

investigation stage, is to test the memory of witnesses based upon first
impression and also to enable the prosecution to decide whether all or any of
them could be cited as witnesses of the crime.

The evidence of mere identification of the accused persons at the trial

for the first time is from its very inherently of weak character. They do not
constitute substantive evidence and this parades are essentially governed
Section 162 of the code.
23. In Vijay alias Chinni Vs. State of Madya Pradesh ( 2010 (3) ALT

(CRIMINAL) 291 (SC), It was observed that

Holding of the test identification parade is not substantive evidence, yet it

may be used for the purpose of corroboration; for believing that a person

brought before the Court is the real person involved in the commission of the

crime. However, the test identification parade even if held cannot be

considered in all the cases as trust worthy evidence on which the conviction of

the accused can be sustained. It is a rule of prudence which is required to be

followed in cases where the accused is not known to the witness or the

complainant.

Thus, it is evident from the above, that the test identification is part of the

investigation and is very useful in a case where the accused are not known

before hand to the witnesses. It is used only to corroborate the evidence

recorded in the court. Therefore, it is not substantive evidence. The actual

evidence is what is given by the witnesses in the Court.

In the present case as per the evidence of PW-1 coupled with the contents of

Ex.P-1 report. The accused are not known to her. The learned Magistrate of

Kavali conducted test identification parade of accused, where PW-1 and LW-

2/Meeramma participated and identified A-1 to A-4. It is evident from Ex.P-9

and Ex.P-10. But as stated above PW-1 alone examined by the prosecution,

who failed to identify the accused before the Court. Admittedly, the learned

Magistrate who conducted the parade was not examined by the prosecution. In

view of the principles laid-down in the decisions referred to above, the test

identification parade proceedings are nothing but corroborative piece of

evidence and it can be used to corroborate the evidence of PW-1 vicitm. In

view of failure of PW-1 to identify the accused before the Court, the test
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identification proceedings in Ex.P-9 and Ex.P-10 are of no use. Those

proceedings alone cannot be taken into consideration to come to the

conclusion that the accused alone robbed PW-1 and LW-2/Meeramma.

Therefore, the finding recorded by the Court below believing the test

identification proceedings and convicting the accused for the offence

punishable under Section 394 I.P.C. is not valid and justified. It is not in

accordance with principles of Law.

24. As stated above, PW-3, who is independent mediator did not supported

the case of prosecution regarding the properties from the possession of

accused. PW-4 simply deposed that gold ornaments were recovered from the

possession of accused. He nowhere stated the particulars of gold ornaments

that recovered from each of accused. PW-6 who arrested the accused deposed

that gold ornaments recovered from the possession of A-1. His evidence is

silent regarding the recovery of property from the possession of A-2 to A-4. As

per mediators report in Ex.P-4 two pairs of ear kammulu was recovered from

the possession of A-3. PW-6 also recovered nose sticks from the possession of

A-4. But those facts are not spoken to either by PW-4 or by PW-6. In view of

discrepancy regarding the recovery of properties , it is not safe to rely on their

evidence to prove the recovery of properties. Therefore, a benefit of doubt

goes to the accused in respect of recovery of properties.

23. In the result, the criminal preferred by Appellants/Kovuru Seshaiah, son

of Narasaiah, Gunji Padma, wife of Kovur Seshaiah (A-1 and A-4) against the
judgment in C.C.No.104/2010 dated 14-2-2014 on the file of Additional Judicial
Magistrate of First Class, Kovur is hereby allowed and consequently the
conviction and sentence recorded is hereby set-aside. Accused No.1 is found
not guilty for the offence under Section 394 of Indian Penal Code and Accused
No.4 is found not guilty for the offence under Section 394 read with 34 of
Indian Penal Code. They are acquitted of the same. Fine amount, if any
paid by A-1 and A-4, shall be refunded to them after appeal time is
over.
Typed on my direct dictation by steno, corrected and pronounced by me
in the open Court on this the 4th day of December 2014.

IV ADDL. DISTRICT & SESSIONS JUDGE

NELLORE.

APPENDIX OF EVIDENCE

NIL
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IV ADDL. DISTRICT & SESSIONS JUDGE

NELLORE.