1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPLICATION NO. 2045 OF 2007 IN APPEAL NO. OF 2007 THE STATE OF MAHARASHTRA .. APPLICANT Vs. SURAJ SHRIKANT ARYEKAR & ANR. .. RESPONDENTS Mrs. V.R. Bhonsale, APP Mr. R. R. Mahagaonkar for respondents CORAM:SMT.RANJANA DESAI & DR. D.Y. CHANDRACHUD,JJ. DATE: 24/9/2008 P.C. . The State of Maharashtra has challenged the judgment and order dated 7/2/07 passed by the Additional Sessions Judge Satara in Sessions Case No. 146 of 2005. By the impugned order the respondents were acquitted of the offence punishable under Section 395 and 397 of the Indian Penal Code. 2. We have heard learned APP Mrs. Bhonsale at some length. 3. In our opinion, the view taken by the trial 2 court is a reasonably possible view which cannot be disturbed in this appeal against order of acquittal. The prosecution case rests on identification parade. The alleged dacoity is said to have taken place on 17/4/03. The respondents i.e. accused 1 and 2 were arrested on 3/6/03, however, the identification parade was held on 26/8/03 i.e. almost after about three months. No explanation is given by the prosecution as to why there is such inordinate delay in holding the identification parade. Besides the prosecution has not examined the Special Executive Magistrate who held the identification parade. 4. In this connection reliance is placed on Section 291A of the Criminal Procedure Code. However, as rightly observed by learned Sessions Judge in order to avail of the benefit of Section 291A it was the duty of the prosecution to tender the memorandum of identification parade with the list as provided by Section 294 of the Code and the defence ought to have been called upon to admit or deny the genuineness of the said document for the purpose of dispensing with the formal proof of the facts stated therein. This is not done. In our opinion this is a flaw in the prosecution case. In 3 any case in the identification parade accused 2 has not been identified. 5. The case of the prosecution is that the complainant had received a knife injury on his arm. However, there is no such injury on the complainant’s arm. The medical certificate Exh. 44 states that there is one simple injury caused by hard and blunt object on right forearm of the complainant. Learned Sessions Judge has also observed that in order to make out a case of dacoity supplementary statement of the complainant was recorded in which he stated that there was one more accused but that person has not been traced. His name is also not brought on record. Learned Sessions Judge is, therefore, right in holding that the prosecution tried to make out a case of dacoity which the prosecution could not establish. by adducing cogent evidence. 6. It is also pertinent to note that prosecution has failed to establish the ownership of mobile handsets. In the above circumstances, in our opinion no case is made out for entertaining the appeal. Leave is, therefore, refused. Application is rejected. 4 JUDGE JUDGE