drp {1} Cri. Application No.161/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.161 OF 2010 The State of Maharashtra APPLICANT VERSUS Punjab Ramdas Pawar & others RESPONDENTS ....... Mr.D.V.Tele, APP for applicant State Mr.Shrikishan Sinde, Advocate for respondent No.5 Mr.C.V.Thombre, Advocate for respondent No.6. ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 17th February 2011 PER COURT: 1. By this application, the applicant-State challenges the judgment of the Additional Sessions Judge-2, Beed, dated 03.10.2009, in Sessions Trial No.16/2009, acquitting the respondents for an offence punishable u/s 395 r/w 397 and 396 of the Indian Penal Code. 2. It is the case of the prosecution that on 27.07.2008, at drp {2} Cri. Application No.161/2010 about 9.40 p.m. some unknown persons entered the house of the complainant-PW-3 Supriya and committed dacoity causing injuries to the witnesses. According to the prosecution, valuable ornaments like nose ring, earring etc. had been stolen by the dacoits. Accused came to be arrested and Test Identification Parade came to be conducted in which PW-3 Supriya failed to identify any of the accused while PW-11 Pandurang and PW-12 Padminibai identified 3 and 2 accused respectively. The trial court found several infirmities in the conduct of the Test Identification Parade, particularly that photographs of the accused had been published in the local newspapers and there was no evidence that the accused were kept ba-pardha, during the period prior to the holding of the Test Identification Parade. The trial court further found that there was no evidence that opportunity was given to the accused to change their places in the Test Identification Parade, during the identification by other witnesses. Other infirmities, which are pointed out by the trial court are that there was availability of very little light at the scene of offence and, therefore, it was doubtful if the witnesses had actually seen features of the accused. The trial court, therefore, found it unsafe to place reliance on the Test Identification Parade conducted by PW-10 Venkat. 3. The trial court, thereafter examined the discovery memorandums of the accused, relating to the discovery of the golden ornaments. As per Exhibit-53, Memorandum statement of accused Vikas, clothes and one nose ring came to be seized at his drp {3} Cri. Application No.161/2010 behest from his house. The trial court further found that in respect of the recovery, the same set of Panch witnesses were associated with though the recoveries are said to have been held on several dates. The trial court further found that there was no evidence that the house was in exclusive occupation of the accused and no other person had any access to the place. The trial court further found that the police were aware about the house of the accused and yet no steps had been taken for searching the house. The trial court further found that there was no description of the nose ring in the first information report and no prior parade for identification of the stolen articles had been held by the investigating officer. 4. Similar grounds have been found by the trial court for rejecting the discovery at Exhibit-55 and the discovery of earring at the behest of accused Panjab. The trial court, therefore, gave benefit of doubt to the accused and acquitted them. 5. We have heard learned APP on behalf of the applicant State, with whose assistance we have perused the findings recorded by the trial court. Upon such perusal, we find that the view taken by the trial court is a possible view to be taken on the basis of the evidence on record and we do not notice any perversity in the reasoning of the trial court, to warrant any interference in this appeal against acquittal. Learned APP has placed reliance on the judgment of the Supreme Court in “State of H.P. V/s Jeet Singh” AIR 1999 SC 1293. The Supreme Court held in the said drp {4} Cri. Application No.161/2010 judgment that even if the recovery is from an open place that by itself would not vitiate the recovery. According to us, the aforesaid question does not arise for consideration. We have already given reasons as to why we agree with the view of the trial court that the prosecution has failed to establish the discovery of the stolen articles at the behest of the accused. There being no merit in the present application, the application is dismissed. Leave refused. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/A11/criapln161-10