1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 231 OF 2000 Dilip Laxman Vengurlekar and Another .. Applicants Vs The State of Maharashtra .. Respondent Mr. K.N. Kore for Applicant No. 1 Mr. M.K. Kocharekar for Applicant No. 2 Ms. S.D. Shinde, APP for the State CORAM : SMT. V.K. TAHILRAMANI, JJ DATE : 12th APRIL, 2010 P.C.: 1. Heard learned counsel for the applicants and learned APP for the State. 2. By judgment and order dated 20.07.1998, the applicants / original accused nos. 1 and 2 were convicted by J.M.F.C., Malwan in Reg. C.R. Case No. 28 of 1995 of the offences punishable under sections 461, 380 read with section 34 of IPC . Being aggrieved by the said order, the original accused nos. 1 and 2 preferred criminal appeal no. 15 of 1998 before the learned Sessions Judge, Sindhudurg. By judgment rev231-00 2 and order dated 30.06.2000, the criminal appeal came to be dismissed, hence, this revision. 3. The prosecution case, briefly stated, is as under: The complainant Uwe. Karl Nie Blbeck resident of Germany visited Vengurla on 08.04.1995. On 11.04.1995 at about 4.00 pm, he along with his companion friend arrived at Malwan and put up a tent. At about 11.00 am, the complainant along with his companion friend went to Malwan city. When they returned back to the tent, they found that the tent was torn and some articles from the tent including walkman, camera, money purse etc were missing. He made inquiry and he received information that 2 to three persons aged about 25 years were running away with bags at about 1.00 pm whose names were not known. The complainant then approached Malwan Police Station and at his instance C.R. No. 36 of 1995 under Section 461, 380 r/w 34 of IPC came to be registered. It is the prosecution case that the applicants - original accused nos. 1 and 2 with one other person had entered into the tent and committed theft of the articles lying in the tent which articles were later on recovered at their instance. rev231-00 3 3. As far as recovery is concerned, the learned Magistrate as well as the learned Sessions Judge has not appreciated that the said evidence could not have been relied upon. Both the panchas have stated that on 13.04.2005, they were called by the police at about 4 p.m.. At that time, only the police were present and the police seized the articles on the spot and prepared panchanama and it is signed by the said panchas. From the evidence of both these panchas, it cannot be said that the articles were recovered at the instance of any of the applicants. 4. It is the prosecution case that three witnesses i.e PW1 to PW3 had seen the applicants-original accused nos. 1 and 2 entering into the tent and running away with the articles. These witnesses have been examined by the prosecution. It is pertinent to note that none of these three witnesses have stated that any of the accused persons were known to them prior to the incident. Thus, it is clear that none of the witnesses knew the accused persons prior to the incident. In this view of the matter, direct identification of the accused persons in rev231-00 4 the court by the witnesses cannot be relied upon. The learned Magistrate as well as the learned Sessions Judge has erred in not taking this vital aspect into consideration. 5. In view of the fact that no test identification parade was held and in view of the fact that recovery cannot be relied upon, the learned Magistrate erred in convicting the applicants - original accused nos. 1 and 2 under section 461, 380 read with 34 of IPC. Learned Sessions Judge also erred in dismissing the appeal. In view of the above facts, revision application deserved to be allowed. 6. The judgment and order dated 20.07.1998 passed by J.M.F.C., Malwan in Reg.C.R. No. 28 of 1995 convicting the applicants - original accused nos. 1 and 2 of the offences punishable under section 461, 380 read with 34 of IPC is hereby set aside and both the applicants i.e original accused nos. 1 and 2 are acquitted of the said offences. Their bail bonds shall stand cancelled. 7. Revision application is disposed of accordingly. [SMT. V.K. TAHILRAMANI, J.] rev231-00 5 rev231-00