((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1810 OF 2008 The State of Maharashtra Applicant versus Jaywant Ukhardya Savara and seven others Respondents Mr.V.R.Bhosale, APP for State. CORAM : F.I.REBELLO AND A.A.KUMBHAKONI, JJ. DATE : 18th October 2008 PC : 1. The State has filed this application seeking leave to appeal against the judgement and order delivered by the Third Ad-hoc Additional Sessions Judge, Palghar dated 7th December 2007 passed in Sessions Case No.13 of 2005 whereby eight accused are acquitted of the offences punishable under sections 395, 342 r/w 34 of the Indian Penal Code. 2. The case of the prosecution in brief as reflected by the impugned judgement is as under. ((-2-)) . The complainant Harishchandra owns a farm house where he was residing with his wife and son. On 6th July 2004, past mid-night at 1.10 a.m., on hearing sound of the door, he opened the door of the farm house. Four persons who were around 25 to 30 years of age, entered the farm house of the complainant and switched on the light. Two of the four persons were wearing half pant and shirts and remaining two were wearing full pants and shirts. Three of them were covering their faces by means of white handkerchiefs. They were armed with tommy, sword, iron bar and stick. By putting sword on the neck of the complainant valuables were demanded from him. When he told them that he was having none, they assaulted on his fore hand by means of a stick. He was frightened and gave keys of his cup board. They checked all the rooms, opened the cup board and robbed him of Rs.15,000/- While leaving, they tide him with the rope and locked the door of the farm house from outside. After some time he freed himself, told the villagers the incident, went to the police station and lodged a report. 3. The Police carried did the Panchanama, recorded statements and completed the ((-3-)) investigation. During the course of investigation the complainant informed the Police that left leg of one of the accused showed that he was suffering from elephantiasis. On checking the record the Police found that this description matched with one of the accused Narendra, who came to be arrested on 11th August 2004. He gave a memorandum of statement implicating other accused who were also subsequently arrested. Certain cash amount was recovered from the house of Narendra. 4. First charge sheet was filed on 8th October 2004 against five accused. A supplementary charge sheet was filed on 12th December 2004 against one accused and a separate charge sheet was filed on 3rd March 2005 in regard to the eighth accused. 5. All the accused pleaded not guilty and claimed to be tried. They adopted the defence of denial simplicitor. 6. PW-1 (complainant) was put up as a sole eye witness. The son of the complainant was also examined as PW-4. Other witnesses were also ((-4-)) examined who are not of much assistance to us in appreciating the case of the prosecution at this stage. 7. The learned Sessions Judge finally concluded that the prosecution failed to prove the identity of the accused persons and held that the accused were arrested by Police only because they had a past criminal record. Principally on this ground the learned Sessions Judge acquitted all the accused. Hence, this criminal application by the State seeking leave to appeal. 8. The learned APP did not dispute the reproduction of the evidence in the impugned judgement by the learned Sessions Judge, which leads us to the following conclusions :- (a) The identification parade itself could not be proved by the prosecution as the Executive Magistrate did not turn up before the Court though witness summons was issued several times. The report of the test identification parade was thus not exhibited; (b) The sole eye witness PW-1 during the Court ((-5-)) question stated that he was unable to identify the accused; (c) PW-1 was the sole eye witness. The accused were not known to him. The incident occurred at 1.10 a.m. past mid-night. According to this sole eye witness, out of the four persons who entered his house, three were covering their faces with hand kerchiefs. Obviously, he never had an occasion to see their faces. He has not given any specific reason such as identification marks or exceptional structure of person for identifying the accused, save and except one accused Narendra; (d) In regard to the first accused who was arrested i.e. Narendra, according to PW-1, the distinguishing feature of his body was that his left leg showed that he was suffering from elephantiasis. However, the learned Sessions Judge has recorded a finding that the learned Judge has personally seen the left leg of accused Narendra at the time of recording his statement u/s 313 of the Code of Criminal Procedure and found that the leg was not swollen but was rather thick; ((-6-)) (e) The complainant in his report had not mentioned about the swollen leg of one of the accused and that this particular accused was wearing only a half pant. This assumes importance as according to the case of the prosecution out of four persons who entered the house of the complainant who were wearing half pants and the other two were wearing full pants; (f) Though the complainant and the sole eye witness PW-1 refers only to four persons involved in the crime, the Police had filed charge sheet against eight persons; (g) Nothing was mentioned by the complainant in his report as to the special characteristics of the physical appearances of the accused whose faces were covered by hand kerchiefs which would enable him to identify them during the test identification parade; (h) The only recovery alleged by the prosecution was of currency that too from the houses of only two accused Narendra and Jaywant. However, the complainant had not given any specific numbers of the currency ((-7-)) notes which were taken away by the accused during the course of the incident and, therefore, mere recovery of currency notes from the houses of two accused could not lead the prosecution any where especially considering that the amount recovered is so small that any way the accused could have had it with them even otherwise. 9. In view of the aforesaid aspects of the matter no fault can be found in the findings of facts recorded and the conclusions drawn by the learned Sessions Judge that the prosecution failed to prove the basic identify of the accused as the persons involved in the crime in issue. 10. In view of the aforesaid aspects of the matter, we do not find any substance in this application and the same is, therefore, dismissed. (A.A.KUMBHAKONI, J.) (F.I.REBELLO, J.)