RATHOD NARAYANA Vs. STATE OF A P

JUDGEMENT

(1.) Cri.A.No. 1713/98 is preferred by A-2 and A-4 as against the Judgment dated 2-12-1998 in S.C.No. 27/97(D) on the file of IV Additional Metropolitan Sessions Judge, Hyderabad. Crl.A.No. 1741/98 is preferred by A-5 as against the Judgment in S.C. No. 27/97 on the file of IV Additional Metropolitan Sessions Judge, Hyderabad.

(2.) The C.I. of Police, Chiragpally Police Station laid charge-sheet in Cr.No. 37/94 as against A-1 to A-7 for an offence punishable under Section 395 IPC and the case against A-6 was split up and the case against A-7 was deleted and A-1 to A-5 were tried. The learned IV Additional Metropolitan Sessions Judge, Hyderabad to whom the matter was made over recorded the evidence of P.W. 1 to P.W. 11, marked Exs.P-1 to P-16 and M.Os. 1 to 4 and convicted A-2, A-4 and A-5 under Section 395 IPC and sentenced them toundergo Rigorous Imprisonment for7years and to pay a fine of Rs. 5007- each and in default of payment of fine, to suffer Simple Imprisonment for 3 months. Hence the present Criminal Appeals.

(3.) Sri Praveen Kumar, the learned Counsel representing the appellants in both these Appeals had pointed out that the in view of the fact that acquittal had been recorded as against the other accused who were tried and conviction had been recorded as against A-2, A-4 and A-5 alone definitely the ingredients of Section 395 IPC are not attracted. The learned Counsel also submitted that the incident is said to have happened on 30-10-1994 and the Test Identification Parade in relation to the appellants in Crl.A.No. 1713/ 98 was held on 20-10-1995 i.e., one year after the incident. The learned Counsel also would submit that it is alleged that these accused had been arrested on 12-9-1995 and requisition for holding Test Identification Parade was given on 10-11-1995 and the Test Identification Parade was held on 20-10-1995. The Counsel also wouid submit that the prosecution had not given any explanation for the delay in holding the Test Identification Parade. The learned Counsel aiso would maintain that M.Os. 2 and 4 are common articles and no Test Identification Parade was conducted to identify these articles. The learned Counsel also would submit that the panch witnesses P.W. 5 and P.W. 6 were declared hostile and hence absolutely there is no evidence in relation to recovery. The learned Counsel also would further submit that as far as the appellant in Crl.A.No. 1741/98 is concerned i.e., A-5, the Test Identification Parade was held on 7-6-1997 i.e., nearly three years after the incident. The Counsel also would contend that the identification of A-5 by P.W. 2 who is aged about 70 years having defective eye sight should not have been relied upon. The Counsel also pointed out certain other discrepancies and placed reliance on certain decisions to substantiate his contentions.