( 1 ) crap184.98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 184 OF 1998 1. Subrao Shankar Kale .. Appellants Age. 50 years, Occ. Agril. 2. Raja Atmaram Shinde Age. 22 years, Occ. Agri. 3. Atmaram Gopinath Shinde Age. 45 years, Occ. Agri. 4. Rama Sakharam Pawar Age. 32 years, Occ. Agri. 5. Shivaji Suberao Kale Age. 22 years, Occ. Agri. All r/o. Waruda (Pardhi Pendhi) Tq. & Dist. Osmanabad. Versus The State of Maharashtra .. Respondent Mr. V.S. Tanwade, Advocate for the appellants. Mr. D.V. Tele, A.P.P. for the respondent/State. CORAM : V.R. KINGAONKAR,J. DATED : 13.12.2010 ORAL JUDGMENT :- ( 2 ) crap184.98 1. This appeal is directed against judgment of conviction and sentence rendered by the learned II Additional Sessions Judge, Osmanabad, in Sessions Case No. 45 of 1994. By that judgment, the appellants have been convicted for offence punishable under Section 395 of the Indian Penal Code and each of them is sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 1000/-, in default, to suffer rigorous imprisonment for six months. 2. Briefly stated, the prosecution case is that in the evening of 13th August, 1993, informant – Sayajirao (P.W.5) was returning to his village in a goods tempo vehicle. When the tempo vehicle left Osmanabad, it was around 11.30 p.m. At about 00.15 hours, the goods tempo vehicle was found to have bursted backside tyre. The goods tempo vehicle was stopped on the road with a view to remove the puncher portion of the tube. While he and other persons were engaged in putting jack for uplifting of the vehicle in order to remove the wheel, they noticed torches coming from front side. The appellants and one more accomplice encircled P.W.-Sayajirao and others. They started pelting stones in the direction of ( 3 ) crap184.98 P.W.-Sayajirao and others. They assaulted P.W.-Sayajirao and others by means of sticks. The truck driver was frightened. The appellants allegedly took away Rs. 700/-, his H.M.T. wrist watch and other small amounts etc. They were talking with each other in Hindi script. The incident was reported by P.W.-Sayajirao to the Rural Police Station, Osmanabad. The police carried out certain investigation into the crime (Crime No. 78 of 1993). The police arrested the appellants. It is alleged that they were identified by P.W.-Sayajirao and others in an identification parade held by the Executive Magistrate cum Tahsildar. It is also alleged that the wrist watch of Rs. 200/- came to be recovered from appellant No.1 as item of the stolen property. 3. The learned Sessions Judge was pleased to accept the prosecution evidence and convicted & sentenced the appellants for the offence punishable under Section 395 of the Indian Penal Code. 4. The prosecution has examined in all eight witnesses in support of its case. Out of these witnesses, P.W.5-Sayaji ( 4 ) crap184.98 is the informant. He corroborated the recitals of the F.I.R. (Exh.54). His version purports to show that the tempo vehicle had gone ahead of village Sanja. His version further shows that at about 00.15 hours the tempo vehicle was stopped by the side of the road. It is worthy to be noted that P.W. Sayaji states that he lost Rs. 700/- which was kept in his pocket. He states that the torch lights were held by the decoits. He admits that it was dark night. The persons accompanying him had started running away immediately after the incident of alleged assault and road decoity. His version purports to show that on 12.09.1993 he identified the appellants during the course of T.I.P. (Test Identification Parade), held in the Tahsil office. It is important to notice that he did not give details of the identification and the reasons thereof. Once it is noticed that the persons accompanying P.W.-Sayajirao had immediately started running, soon after commencement of the incident, their versions regarding identification of decoits is of no much avail. It is pertinent to notice that after about one month the T.I.P. was held in the Tahsil office. There is no tangible material on record to show that the appellants were not shown to P.W.- ( 5 ) crap184.98 Sayajirao prior to the T.I.P. The version of P.W. Sayajirao reveals that the torch lights had been shed over his face. It is but natural that his eyes were dazzled due to the torch light. The identification of the appellants after one month of relevant night is rather a weak piece of evidence. 5. So far as recoveries are concerned, there is only one recovery of Rs. 200/- and that of the wrist watch of the informant (P.W. Sayajirao). So far as identity of wrist watch is concerned, it is pertinent to note that P.W.6-Arun categorically states that his name was inscribed on the wrist watch. He admits that wrist watch (Article No.1) is not his property. Thus, the recovery of wrist watch (Article No.1) is also of no avail because P.W. Arun does not subscribe the story that the said wrist watch was looted by the decoits. It has come in the evidence of the prosecution witnesses that the incident occurred in the dark night. It is but natural that due to pitch dark surrounding the witnesses, they were unable to properly notice the profiles of the decoits. 6. The recovery of Rs. 200/- is also of no avail to ( 6 ) crap184.98 the prosecution. The identity of the currency notes could not be established. The F.I.R. does not show that any particular number of the currency note was noted down and there was reason to identify the currency note. The F.I.R. spells out the only denomination of the currency notes. 7. On going through the relevant evidence including that of P.W.4-Ravindra and others, it is explicit that the witnesses had not substantial reason to identify the culprits. The testimony of P.W. Ravindra shows that he identified only one of the culprits. He does not say anything about the identification of other decoits. His version is too vague. The testimony of P.W.3-Jivan also does not inspire confidence in so far as the identity of the appellants as culprits of the incident of the decoity is concerned. He claims to have identified the appellant No.1 - Subhash, but does not give any reason for such identification. The T.I.P. appears to have been held without following required procedure. In Sayed Mohammed Owais V/s. State of Maharashtra, 2003 Bom.C.R. (Cri) 588 and in any cases, it is held that identification parade has to be held ( 7 ) crap184.98 in keeping with the guidelines and not more than two of the suspects should be placed in one T.I.P. 8. Taking overall view of the matter, it is explicit that the learned Sessions Judge failed to properly appreciate the evidence adduced by the prosecution. The appellants are not proved to be guilty for the offence punishable under Section 395 of the Indian Penal Code. Hence, the appeal is allowed. The appellants are acquitted of the charge levelled against them for the offence punishable under Section 395 of the Indian Penal Code. Their bail bonds be deemed as cancelled. Fine amount, if any, deposited by them be refunded to the respective appellants. [V.R. KINGAONKAR,J.] snk/2010/DEC10/crap184.98