1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.810 OF 2006 1. Varun Virendra Vyas ) Aged 24 years, Occu: Business ) residing at Post Taluka Begu, ) District Udaypur, ) Rajasthan ) ) 2. Shakil Ahmed Israr ) Ahmed Ansari, ) residing at Patel Wadi, ) Behram ) (Both the appellants are at ) present undergoing the ) sentence imposed upon them ) at Mumbai Central Prison, ) Mumbai.) ).... Appellants. V/s The State of Maharashtra ...... Respondent. ---- Mr. Khan Abdul Wahab appointed as amicus curiae for appellants. Mrs R.V. Newton, APP for the State. ----- CORAM: V.M. KANADE, J. DATE : 17th March, 2010 2 ORAL JUDGMENT 1. Counsel for the appellant is absent. Mr. Khan Wahab, is appointed as an amicus curiae to appear on behalf of the appellant. He had gone through the paper-book which was supplied to him. 2. Heard the learned Counsel (amicus curiae) appearing on behalf of the appellant and the learned APP appearing on behalf of the State at length. 3. Appellants are original accused Nos. 1 and 4 and the offence was registered against three unknown persons with Versova Police Station vide C.R. No.30 of 2001 under sections 392, 397 read with section 34 of the Indian Penal Code. The complaint was registered on 21/07/2001. 4. Prosecution case is that in the morning of 21st July 2001 at 10.30 a.m., the appellants entered the house of the complainant and took away the gold jewelery at the point of knife. Accused were arrested on the very next day. The test identification parade was held and the appellants were identified by the complainant. After the accused were arrested on the next day, recovery of the golden ornaments was made at their instance. During the course of investigation, the seized ornaments were shown to P.W.1 and the complainant – P.W.4. They identified the said ornaments. The Sessions Court, however, did not rely on the 3 test identification parade since there was material on record to show that the appellants were shown to the witnesses before the test identification parade and, therefore, this valuable piece of evidence was not relied upon by the Sessions Court. The Sessions Court, however, convicted the accused only on the basis of recovery which was made at their instance. 5. Counsel for the appellants submitted that recovery under section 27 is a weak type of evidence and that alone cannot form the basis for conviction and more particularly in the absence of any other material on record to indicate that the appellants have committed the said offence. 6. I have perused the statements of witnesses and I have gone through the judgment and order passed by the Sessions Court. Since the identity of the accused has not been established by the prosecution and the Sessions Court has refused to rely upon the test identification parade, the only evidence which is on record is the recovery of ornaments. It is a well settled position in law that recovery at the instance of the accused is a weak type of evidence. It is an admitted position that, initially, complaint was filed against unknown persons and the identity of the accused has not been established. The Trial Court, therefore, in my view, erred in convicting the accused only on the basis of recovery which was made at their instance. In my view, appellants are entitled to be given a benefit of doubt. 4 7. In the result the following order is passed:- ORDER Appeal is allowed. Judgment and Order of the Sessions Court is set aside and the Appellants are acquitted of the offences with which they are charged. Appellants be released forthwith, if not required in any other case. (V. M. KANADE, J.)