The conviction under IPC Sections 391 and 395 was undermined by unreliable identification evidence and procedural delays, warranting the benefit of the doubt for the appellants.

1Crl. 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 S.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 PW - 1 to PW - 11, marked Exs. P - 1 to P - 16 and M.Os. 1 to 4 and convicted A - 2, A - 4 and A - 5 under S.395, I.P.C. and sentenced them to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 500/- 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 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 S.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 would submit that the prosecution had not given any explanation for the delay in holding the Test Identification Parade. The learned counsel also 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 who would submit that the panch witnesses PW - 5 and PW - 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 PW - 2 who is aged about 70 years having defective eye sight not have been relied upon. The counsel also pointed out certain other discrepancies and placed reliance on certain decisions to substantiate his contentions.

4. On the contrary, the learned Additional Public Prosecutor had taken this Court through the findings recorded by the learned Judge and also the evidence available on record and would contend that though PW - 5 and PW - 6, the panch witnesses were declared hostile, the evidence of PW - 11, the Investigating Officer is available on record in relation to recovery and there is no reason why the Investigating Officer should falsely implicate these accused and further the accused are not claiming these items and hence in the light of the evidence of PW - 11 coupled with the evidence of PW - 1 and PW - 2, the conviction and sentence are to be confirmed or at least in the alternative since the recovery is said to have been made from A - 2 and A - 4, at least A - 2 and A - 4 are liable to be convic