{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.280 OF 2010 The State of Maharashtra APPLICANT VERSUS Shaikh Chand Shaikh Ashraf & Others RESPONDENTS ....... Mr.N.R.Shaikh, APP for applicant-State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 6th October 2010 PER COURT: 1. This is an application filed by applicant-State seeking to challenge the judgment of the Ad Hoc Additional Sessions Judge-2 Latur, dated 25.09.2009, in Sessions Case No.70/2007, acquitting the respondents for an offence punishable u/s 432, 495 r/w 34 of the Indian Penal Code. 2. Undisputedly, the respondents-accused were not acquainted with the complainant and, therefore, in order to test the identification of the respondents / accused, as perpetrators of the crime, a test identification parade was arranged and it was {2} conducted by PW-6, Sulbha Prabhakar Ausekar, a Naib Tahsildar, Tahsil Office, Latur. The memorandum of the test identification parade is at Exhibit-35. The trial court has acquitted the respondents on account of various infirmities, which were noticed in the conduct of the Test Identification Parade. The trial court has highlighted these infirmities at para No.9 of the judgment, which may be stated thus - 9. At the outset, disclose that the defence has no serious dispute as to alleged incident of dacoity and confinement of the prosecution witnesses. Serious dispute raised by the defence, in the background of the evidence adduced by the prosecution, as to the test identification parade. Here in this case the facts explained in the F.I.R. Indicate that the faces of the miscreants were covered by handkerchief. They were holding the swords and Suraajs. In this kind of version made in F.I.R. Exh.26. Test Identification parade evidence indicated no such appearance of suspects prepared at the time of test identification parade. On perusing evidence of PW No.6 Sulbha, that she has conducted test identification parade mechanically. The nature of such mechanical process manifest that she did not prefer to observe the identity explained in F.I.R. Hight of the suspect, maintaining ratio with non suspect, so also the appearance by personally examining the suspects while calling non suspects. In this way some precautionary measure are not explained by her in her evidence. On perusal of report Exh.36 as to the identification parade also do not indicate alleged option given to accused to stand by as explained in evidence. All these errors in her evidence affect much as to the credibility of her evidence.” {3} 3. The ratio of 1:6 was not maintained and the dummies were called in the ratio of 1:2. All of the accused were placed in the test identification parade together. The Naib Tahsildar had also not brought the dummies, who were similar in hight and complexion with the accused and further it appears that option of standing at the place of their choice or change their clothes was also not made available to the respondents-accused. The trial court, therefore, concluded that on account of infirmities in the test identification parade, the identification of the accused in the court could not be said to be corroborated. 4. We have heard learned APP on behalf of the applicant State and we have perused the findings recorded by the trial court. On such perusal, we do not notice any perversity in the findings of the trial court, to warrant any interference in the findings recorded by the trial court. Consequently, this application fails and summarily dismissed. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapln280-10