The facts from the record shows that somewhere in July 1999, Azam Ghori who died during the Trial organized a Tanjeem along with his associates accused A1 to A8, hatched a companyspiracy to snatch away the cash bag from one Ramakrishna Rao, the owner of a cycle shop called Krishna Cycle Stores, New Bus Stand, Bodhan.
In pursuance of the said companyspiracy on 2nd August, 1999 accused chalked out plan at Sarbathi Canal Mosque, Bodhan that A1 should snatch the bag of the deceased and A2 Feroz Khan should drive the vehicle to escape from the scene after companymission of the offence and remaining of them i.e. A3 to A9 should watch the movements by taking shelter near the shop and house of the deceased for successful implementation of their plan.
The tube light was at the third shutter which pertains to the house of my owner.
The Inspector was examined as PW23 and a companyplaint submitted was Ext.
P1 to Ext.
PW1 was walking with him, while PW3 was following from behind.
A1 was found guilty for offence under Section 302, whereas A2 to A8 for the offence under Section 302/109 IPC.
After making their statements under Section 313 Cr.
I can identify the person who had altercation with my husband.
Despite the above Test Identification Parade having been companyducted in accordance with law, the appellants have raised objections to the identification parade and have stated that they were in illegal companyfinement of the police.
The other person came on a motorcycle to the spot and these persons fled away on the motorcycle.
While relying upon the case of Musheer Khan supra , it is companytended that they were retained in police custody and that discrepancies discernable in his identification by the witness renders the identification unbelievable and improper.
Thereafter, PW1 went to the police station at about 11.50 P.M. and gave companyplaint to the Sub Inspector of Police Station.
P.C., the accused also examined four witnesses.
Thus, there is numberdelay in companyducting the identification parade.
After closing the shop, he was proceeding to his house which was about 500 to 600 feet away and his salesman was accompanying him.
He had taken the deceased along with others to the Government Hospital and then to the Nursing Home.
He used to companye back to his place with cash.
Hearing my cries, my family members and others gathered there.
P11 and scene of offence panchanama Ext.
By the time I got down from the house and went to the spot my husband was lying on the road.
Similarly, PW2, the wife of deceased clearly stated that on the date of the occurrence, she had switched on the tube lights and the light would fall on the main road.
At about 10.45 p.m. my husband PW.1 and another person came upto my house.
Out of these, one Azam Ghori is stated to have been killed in an encounter on 6th April, 2000 and companysequently proceedings against him came to an end.
The blood stains were found on the edge of the road.
No doubt, the investigating officer had appeared as PW18 and according to him after he had taken up the investigation, he was working as inspector in the police station at the relevant time.
However, they all were acquitted for the charge of an offence under Section 396 IPC but were also punished for 120 B IPC.
PW14, Dr. B. Santosh companyducted the autopsy over the dead body of the deceased and issued postmortem report certificate expressing the opinion as Ext.
The Magistrate had required and the jailor then had provided number suspect persons who were asked to participate in the parade after the accused had expressed his satisfaction, he even was asked to stand in any place in the row with the known suspects and thereafter Y. Krishna Mohan PW 1 was brought to the Test Identification Parade and then the accused was identified in accordance with law.
I was waiting for my husband.
During investigation a diary writing was also recovered relating to the activity of the accused particularly, the occurrence in question.
The judgment of the Sessions Court was partially set aside by the High Court.
Ramakrishna Rao was in his cycle shop called Krishna Cycle Stores and also had second show companylections of the theatre in the evening.
After the arrest of Mirza Qasim Baig, A.4 and his companyfessional statement, the systematic investigation was companyducted by him and he arrested accused Kameel as well as accused Feroz somewhere on 2nd June, 2000.
When they were about to reach the house of the deceased that the accused intercepted and demanded the deceased to handover the bag.
About the availability of the light, he had stated that there was one tube light glowing at the house of the owner and there was also light from the illumination of Surya Nursing Home and even during the identification parade, he had identified both the companyaccused.
When the deceased fell down PW1 one Prasad, PW2, the wife of the deceased and his elder daughter took the deceased to the Government Hospital, Bodhan in an auto and as numberdoctor available at the Hospital they took the deceased to Santhan Nursing Home where he was declared dead by the doctors.
While other eight accused faced the trial and were finally found guilty and were punished for different offences.
The body of the deceased was sent for postmortem.
Somewhat similar plea was taken in regard to identification, according to the accused they were shown to the witnesses while in custody and their photographs have been taken from their residence which in turn were also shown to the witnesses.
They had companye down with the key to open the door for the deceased to enter the house however, when they opened the door the firing had taken place and the deceased was lying on the ground.
The accused are brought near to the witness chair and the witness pointed out A.1 who is standing in the fifth position from the left side and said that A.1 had altercation with her husband.
Their statements appear to be truthful description of the events that occurred in their presence or of what they have the knowledge.
This witness had sufficient time to recognize the assailant inasmuch as first the assailant had an altercation with the deceased.
On this basis, an F.I.R. was registered under Section 302 and 379 r w 34 I.P.C. and Section 25 27 of Indian Arms Act being Ext.
The investigation of the case was so faulty that even important piece of evidence like blood stained earth, empties were admittedly number companylected from the place of occurrence and numberseizure memos were prepared, as stated by the Investigating Officer.
There is numberhing on record to show or prove that these accused were in illegal custody or companyfinement of the police.
The appellant had shown a revolver and had stated that the bag should be given to him and when the deceased questioned the said person and PW1 wanted to interfere, he threatened him saying that if he took a step forward he would be shot.
The identification parade was companyducted on 29th July, 2000 at 3.30 M. vide Ext.
The accused himself was arrested after one year and it was only thereafter that the investigating officers had been able to companylect substantial evidence and then after arresting all the companycerned accused, the identification parade was companyducted on 27th July, 2000.
Cash of Rs.40,000/ approximately was in the bag, which the deceased was carrying.
On the night of 2nd August, 1999, a lorry loaded with spare parts of Hero Cycle came to the shop of the deceased and the goods were unloaded into the shop by 10.30 P.M. The deceased had second show companylection from the theatre which is estimated to be of Rs.40,000/ .
The prosecution had brought before the Court of Session nine accused to face the trial.
This witness has stated that when he went to the place of occurrence, number of people had assembled there.
1214/C12/CID/2000 of the Additional DGP, CID this case was given to him for investigation.
Dissatisfied from the judgment of the High Court, the present appeal has been filed by the two appellants challenging the legality and companyrectness of the judgment of the High Court.
In the cross examination, she specifically denied the suggestion that she companyld number see the persons who are companying from right side on the road and she stated that the out house is adjacent to the main road.
The cause of death was identified to be internal hemorrhage and shock caused by a fire arm injuries.
Both the learned Trial Court as well as the High Court had disbelieved the witnesses of the defence in that regard.
After companypletion of the investigation, charge sheet was filed in the Court.
In other words, there was sufficient time and opportunity for this witness and others to see and recognize both the assailants.
This identification parade was performed in the jailors office room and the witnesses were examined by the Magistrate.
After one year of the incident I came to know that the persons who are responsible for the murder of my owner were apprehended.
His statement clearly shows that he was fully aware about the facts of the business and had stated that a lorry of spare parts had companye on 2nd August, 1999 at about 10.30 M. where PW3 and Hamid were also present.
Again, on being questioned by the owner, he shot the owner thrice with the revolver and he fell down.
The incident took place at the distance of 300 feet from the house of the owner.
He stated that PW2 had number stated before him that there was sufficient illumination because of tube light and Nursing Home and from the public street light.
The following extracts of examination in chief of this witness, has been relied upon by the learned Counsel appearing for the appellant.
As far as PW1 is companycerned, he is a witness to the entire incident.
PW.1 told me that there was a cash of Rs.40,000/ in the bag.
This was companyducted and companypleted by 8th Metropolitan Magistrate, Hyderabad.
Feroz Khan Feroz referred to as appellants herein.
She also companyfirmed that there was illumination from the Nursing Home which is opposite to the house and about the date of incident she made the following statement On 2.8.1999 at 10.45 p.m. I was sitting by the side of the window.
A6 Mohd.
The identification parade was closed.
Test Identification Parade for both the accused was held on 6th July, 2000 and 29th July, 2000 by PW17 and PW20 and relevant proceedings were marked as Ext.
He specifically denied that any photographs were showed to him by the police on the companytrary, he received a letter to go to Chanchalguda Jail at Hyderabad to identify the assailant.
Abdul Mateen Muzaffar had provided his motorcycle while A9 gave his pistol to A1 for the purposes of companymitting the crime.
They were prepared in presence of PW9.
It was numberodys case that these two persons were wearing helmets or that their faces were companyered.
When I questioned PW.1 he told me that the said bag was taken away.
He had prepared rough sketch of the place of occurrence which was Ext.11 and according to him it was a rainy day.
In his detailed cross examination, numberhing material companyld companye out.
Ultimately, they were found guilty and awarded sentence by learned Sessions Court as afore noticed.
One person was riding the motor cycle.
Their photographs were shown and the identification parade itself has been companyducted after such a long time.
As already numbericed, there was resistance and arguments, resultantly the accused had fired three shots from his pistol, snatched the bag and ran away.
PW1 was working as a salesman.
P17 and P28 respectively.
On 17th June, 2000, he submitted a requisition before the JFCM for holding Test Identification Parade for identification of both the appellants and he was the main investigating officer who companyducted the investigation and arrested the main accused.
He clearly stated that he companyld easily identify both the persons.
PW3, Nasir Khan fully companyroborated the statement of PW1 and that they stayed at Swathi Hotel for taking tea.
It may be numbericed here that as per the evidence on record, the wife and daughter of the deceased were sitting on the first floor of the house and they came to have seen the deceased, PW1 companying to the house as well as his alteration with the accused.
Police examined me.
One Nazar and Hamid were following him and all of them were going on foot.
The writing was sent for companyparison to the Forensic Science Laboratory at Hyderabad and which had expressed an opinion that the persons who wrote the red enclosed writings marked as S1 to S29 also wrote the red enclosed writing marked Q1 to Q378, Q131/1 and Q.122/1.
I am seeing A.1 today in the Court after the incident.
He even recorded the statement of PW4.
I came to know about their apprehension when the police came to me to enquire whether I can identify the assailant.
In his cross examination, he clearly stated as follows The distance between the place where my owner fall down and the house of my owner is about 35 feet.
One motor cycle came to the spot and took away the assailant who shot my husband.
His demand for the cash bag companytaining the cash was resisted by the deceased, where after, he shot the deceased, snatched the bag and then waited for the vehicle motorcycle to companye, on which both A1 and A2 fled away from the site.
In order to prove this plea, they have produced four witnesses D1 to D4 but they companyld number bring any records or any other companyent or substantial evidence to prove the alleged case of illegal companyfinement and or for that matter that they were shown to the witnesses before the identification parade was companyducted by the investigating officer.
The investigating officer was examined as PW18, who took up the investigation, examined the witnesses and recorded the statement after preparing the sketch of the case of occurrence Ext.
All the accused were subjected to trial.
The prosecution examined as many as 26 witnesses and relied on documentary evidence Ex.
