/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1139 OF 2005 Shafikur Rahman Ab. Raheman & Anr. ...Appellants Vs. The State of Maharashtra ... Respondent --- Ms.S.A. Dhamale for Appellants Mr. S.S. Pednekar APP for State. ---- CORAM: V.M. KANADE J. DATED 17TH OCTOBER, 2008 P.C. 1. Heard the learned Counsel for the Appellants and the learned APP for State. The Appellants are Original Accused Nos.2 and 3. They are challenging the judgment and order passed by the 2nd Ad-hoc Assistant Sessions Judge, Malegaon, who by his judgment and order dated 5.5.2005 was pleased to convict the Appellants for the offence punishable under section 394, 397 of the Indian Penal Code and sentenced them to undergo R.I. for seven years. 2. Prosecution case in brief is that the Complainant was getting ready to take bath early in the morning and at that time Accused had entered in the house forcibly through main door and committed robbery by showing knife and other weapons. The Complaint's son was assaulted by the Accused and they took one necklace and Rs.600/- cash from the cupboard. The / 2 / Complainant caught the Accused No.1 red handed. Whereas Accused No.2 and 3 Appellants herein ran away. The Accused No.1 gave the name of the other Accused and on the basis of the said information, they were arrested. Chargesheet was filed against them. The Trial Court, on the basis of the evidence has convicted for the aforesaid offences. 3. Mrs. Dhamale, the learned Counsel appearing on behalf of the Appellants submits that only evidence against the present appellant is the circumstantial evidence. The Appellants were identified by the Complainant when they were taken by the police to the hospital, where the Complainant's son was admitted. Admittedly, no identification parade has been held. The name of the present Appellants have been given by the Accused No.1. Recovery of the ornaments was made at the instance of the Accused No.2. This being the position. 5. I have perused the impugned order and also the evidence of the prosecution witnesses. It is an admitted position that no identification parade was held. Therefore, the identification of the accused in the Court is not sufficient, since the Accused were already showed in the hospital where the son of the Complainant was kept. Mere recovery of the necklace cannot be a circumstance, on the basis of which the Appellants can be convicted for the serious offence under section 392. Further it has to be noted that the / 3 / Complainant had not given description of the necklace to the police. Therefore, it cannot be said that necklace, which was recovered at the instanced of the Appellant No.2 is the same necklace, which was stolen from the house. There are number of contradictions and omissions in the statement. Taking into consideration the evidence on record, it cannot be said that the prosecution has proved its case against the Accused Nos.2 and 3, the Appellants herein. The Appellants, therefore, are acquitted. The Judgment and order of the Trial Court against the Accused No.2 and 3 is set aside. The Appellant are released on bail unless they are otherwise wanted any other case. V.M. KANADE J.