Criminal Appeal No.6 of 2004. 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPEAL NO.6 OF 2004. APPELLANT: The State of Maharashtra, Through Police Station Officer,Umarkhed, Tq-Umarkhed, District Yavatmal. -VERSUS- RESPONDENTS: 1 Bhimrao Sawai Rathod, aged about 39 years, 2 Pralhad Babhnaji Rathod, aged about 34 years, Both Residents of Belkhed Tanda Tq- Umarkhed, Dist-Yavatmal Mr. T. A. Mirza, APP for the appellant – State. Mr. K. S. Narwade (Absent) Advocate for respondent nos.1 & 2. CORAM: A. H. JOSHI AND U.V. BAKRE, JJ. DATED: 4th AUGUST 2011. ORAL JUDGMENT : (Per A. H. Joshi J) 1. This is a State Appeal against acquittal. 2. Heard learned APP. 3. None appears for the respondents. 4. Perused the record. Criminal Appeal No.6 of 2004. 2 5. The accused were charged for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 6. The fact of homicidal death is not in dispute. 7. The prosecution has relied upon the testimony of PW-1 Vijay who is examined at Exh.26. In the testimony before the Court, this witness has identified both accused persons and deposed in support of the prosecution case. 8. This witness was confronted with two things that: (i) The oral report given by him on the basis of which offence was registered and; (ii) The statement made by him before the Police. 9. It is seen that in the oral report, the contents whereof were shown to this witness, he had in an unambiguous words stated that the assault was done by two unknown persons. 10. This witness has admitted in the cross-examination that he had also identified the accused persons during the test identification parade. The identification parade is not proved before the Court by examining the Magistrate who had conducted test identification parade. 11. As we see from the judgment under appeal, the learned Trial Judge has referred in detail, various omissions which the witness has tried to improve and add in his examination-in-chief Criminal Appeal No.6 of 2004. 3 before the Court. 12. In the given situation, the case was totally based on the testimony of PW-1 Vijay who admittedly had no prior acquaintance with the accused and had stated so to the police in the oral report, however, identified the accused persons before the Court. The identification of the accused persons as assailants by PW-1 Vijay, therefore, comes under grave cloud of doubt. 13. The learned Sessions Judge has acquitted the accused for the reason that the accused were not proved to be duly identified to be the assailants. 14. Upon perusal of evidence and what we have discussed herein above, we find no reason to be able to arrive at any other conclusion than one reached by the learned Sessions Judge. 15. The appeal has, therefore, no merit and is dismissed. JUDGE JUDGE //MULEY//