1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Criminal Application No.573 of 2009, Criminal Application No.574 of 2009 In Criminal Appeal No.86 of 2009 Amd Criminal Appeal No.86 of 2009 (State of Maharashtra v. Batha Ranchhod Jograna and others) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Shri Anoop Parihar, APP for State. CORAM : A.H. Joshi & R.C. Chavan, JJ. DATE : 16th March, 2009 1. The appeal has been delayed by 27 days. We have called for the record and heard the appeal on merits. Perused the record. Heard the learned APP. 2. It is the case where about 8 to 9 Kathewadi persons had assaulted the deceased. 3. Right from the status of the complaint, the accused were described as Kathewadi persons. 4. It is clear that the identification being incomplete and inadequate, the test identification parade was conducted. 5. The entire case thus depended on the evidence of PW 3 Dnyaneshwar, the complainant and eye-witness; PW 5 Prafulla, 2 another eye-witness; and PW 6 Manohar, the witness on test identification parade. 6. The test identification parade was vitiated, since the persons participating in the parade were not given clothing alike to that of Kathewadi costume, or similar clothing of type whatsoever. The crux of identification was that the accused persons were identified from their posture and costume being Kathewadi. The accused persons whose identification parade was said to be done had a right of not being differentiated, which was violated. Admittedly, this facility was denied to them and, therefore, the evidence of PW 6 Manohar for proof of identification through the test identification parade is of no worth. 7. As urged by the prosecution, important it was to have the accused identified before the Court, however, the importance would be lost if the accused were not of acquaintance, yet the witnesses identifying them without clarifying as to how amongst eight similarly appearing persons, could identify the accused. The result is that what the Trial Court had found that the accused were not identified, appears to us only the convincing conclusion available in the case. 8. We, therefore, find no merit in the appeal and thus there is no case to condone the delay. 3 9. Both the applications as well as the appeal are rejected. JUDGE JUDGE pdl