1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL REVISION APPLICATION NO.22 OF 2009. Palkor @ Babasaheb s/o Somnath Kale, Age: 54 years, Occ: Agril., r/o: Rajura Shivar, Tq.Gangapur, Dist.Aurangabad. ...Applicant. (Ori.accused No.2.) VERSUS The State of Maharashtra Through Waluj Police Station, Sub-Division Cantonment, Aurangabad. ...Respondent. ... Mr.R.C.Patil, Advocate for the applicant. Mr.N.H.Borade, APP for the respondent. ... CORAM: A.V.NIRGUDE, J. Date : 11th June, 2009. ORAL JUDGMENT: 1. The applicant is challenging the judgment and order passed by the learned 1st Ad hoc Additional Sessions Judge, Aurangabad in Criminal Appeal No.46/2002. The learned Ad hoc Addl.Sessions Judge, confirmed the judgment of conviction and sentence passed by the learned 4th 2 Ad hoc Asstt.Sessions Judge, Aurangabad in Sessions Case ;No.430/1999. The applicant was convicted under Section 395 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.2000/-, in default of payment of fine, rigorous imprisonment for six months. It is thus clear that both the Courts below concurrently found the applicant guilty of committing dacoity. 2. The facts and evidence to prove the facts are as under: . The complainant Suresh Redekar(P.W.2) was in need of skilled labour to run his business of stone quarry which is situated at village Wagholi, District Pune. He engaged one Suresh Pawar to do the skilled labour work at his quarry. Suresh Pawar assured the complainant that he would provide skilled labours from his native place. Suresh Pawar then introduced the applicant to the complainant on 4th May, 1997. The applicant gave his name as Raju Ganpat Kale of village Rajura. After few days Suresh Pawar and Raju asked the complainant to come to their native place with sufficient funds for engaging skilled labour. Accordingly, the complainant and his companion along with cash went to village Turkabad, District Aurangabad. They met the 3 applicant. The applicant took the complainant and his companions to a hut where they were offered a glass of water etc.. Soon thereafter 14-15 unknown persons attacked the complainant and his companions and looted all of their valuable personal belongings including cash amount. 3. Mr.Patil, learned counsel appearing for the applicant brought to my notice the Judgment of acquittal recorded by the 3rd Adll.Sessions Judge, Aurangabad, in respect of other accused Suresh. Mr.Patil, asserted that the other accused Suresh was the main accused and if he was acquitted, the present applicant also should be acquitted. I have perused the Judgment acquitting the accused Suresh and found that the facts relating to his case were different. When the complainant and his companion went to village Turkabad, they did not meet accused Suresh and accused Suresh was not amongst the assailants and attackers. Where as the prosecution witnesses unanimously stated that they met the applicant at village Turkabad and it was he and others, who looted them. Mr.Patil's contention that despite of arrest of the applicant in this case, the police could not recover any amount or any stolen articles from the applicant. This aspect of the case has been considered by the trial Court and 4 lower appellate Court & rejected it. Failure to recover the stolen articles from a thief or dacoit, is not material defect in the prosecution case, if the thief or dacoit is identified properly. The prosecution witnesses knew the applicant since prior to the incident. Besides, the incident took place at broad day light. So, identification of the applicant as one of the dacoit can not be doubted. 4. All the witnesses, subsequently mentioned that the applicant who was known to them since prior to the incident was present amongst the dacoits. On the basis of this evidence, the learned trial Court held the applicant guilty and convicted him. Even the lower appellate Court found no fault in the finding recorded by the trial Court. I do not find any error in appreciation of the evidence and there appears no illegality or perversity in the Judgments of trial Court and lower appellate Court. The Revision Application stands dismissed. . Rule discharged. (A.V.NIRGUDE,J.) lkp