11.appln3942-09 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3942 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra .. Applicant Vs Vijay Deshraj Saini and Ors .. Respondents Mrs. U.V. Kejariwal APP. Mr. Vinit Naik with Mr. Sandesh Patil for the Respondents CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ. DATE : 13th JULY, 2010 ORAL ORDER [PER SMT. V.K. TAHILRAMANI, J]: 1. The applicant - State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 29.05.2009 passed by the learned Ad-hoc Additional Sessions Judge, Thane in Sessions Case No. 117 of 2003 with S.C. 284 of 2007. By the said judgment and order, the respondents i.e original accused nos. 1 to 10 came to be acquitted of the offences under sections 120-B, 147, 148, 149, 302, 307, 447, 448, 506(2), 212 r/w. 34 of the I.P.C., section 114 r/w 302 of the IPC and under section 25(1A) r/w section 27 of Arms Act and section 37(1)(3) 135 of the Bombay 1 11.appln3942-09 Police Act. 2. The prosecution case briefly stated is that on 02.02.1998 at about 11.45 a.m., after entering into a conspiracy, the respondents i.e original accused nos. 1 to 10 entered in the office of Asmat Patel (deceased) and all of them started firing at Asmat Patel and PW4 Shahaji who was in the said office. The deceased Asmat Patel and PW4 Shahaji sustained bullet injuries due to firing. 3. We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge. We have also perused the evidence which has been annexed by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 4. The prosecution case mainly rests on the evidence of PW4 Shahaji who is an eye witness to the incident and who sustained injury in the incident. Shahaji has stated that at about 11.30 to 11.40 am, all the respondents came into the office of Asmat Patel and started firing at Asmat Patel and himself. Both Asmat Patel and Shahaji received injuries due to firing. It is noticed that this witness has not ascribed 2 11.appln3942-09 any specific role to any of the accused persons but he has stated that all of them started firing at Asmat Patel and himself. One glaring lacuna in this case is that this witness has not stated that he knew any of the accused nos. 1, 2 and 4 to 10 prior to the incident or that he had any occasion to see them prior to the incident. PW4 Shahaji has stated that after the incident, police showed him some photographs. Shahaji identified 3 or 4 persons from the said photographs i.e he identified accused no. 1 Vijay Saini, accused no. 2 Amjad Khan and accused no. 9 Ajay Saini from the said photographs. Thereafter, he identified the accused persons in the court. 5. It is pertinent to note that there is no material to show that PW4 Shahaji knew any of these three accused persons prior to the incident or had any occasion to see them prior to the incident. In the facts of this case, identification of accused from photographs would not be sufficient and holding of a Test Identification Parade was very much necessary. Not holding of Test Identification Parade would be fatal to the prosecution case. Even as far as accused no. 3 Kamlakar is concerned, no Test Identification Parade was held and he has been identified by the witness i.e PW4 Shahaji from photographs shown to him during investigation. As far as accused no.3 Kamlakar is concerned, Shahaji has stated that 3 11.appln3942-09 he identified accused no. 3 Kamlakar from the photographs because Kamlakar used to visit the office of Asmat Patel frequently. It does not appear to be the prosecution case that respondent no. 3 Kamlakar was present in the office of Asmat Patel at the time of the incident. The prosecution case appears to be that Kamlakar along with others had entered into a conspiracy to commit the crime. However, there is no material to that effect. We may also refer to the evidence of PW4 Shahaji wherein he has stated that accused no. 3 Kamlakar had come to the office of Asmat Patel before the incident and after his departure, after 15-20 minutes, the alleged incident took place. This clearly shows that accused Kamlakar was not present at the time of the incident and has not participated in the actual incident of firing. 6. We may also make a reference to the evidence of the Investigation Officer. It has come on record through the Investigating Officer PW9 Mahadev Pimpalkar that there was material to show that at the relevant time, respondent nos. 1, 2 and 4 to 9 were not present at the time of incident. This admission almost demolishes the prosecution case. 7. The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to 4 11.appln3942-09 a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, will not interfere solely because a different possible view may arise from the evidence. The Supreme Court in the case of C. Anthony Vs. K.G. Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. 8. Looking to the evidence on record, we are of the opinion that the view taken by the learned Sessions Judge is a reasonable and plausible view. Hence, we are not inclined to interfere in the judgment and order of acquittal. In view of the above, leave to file appeal, is refused. Application is rejected. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] 5 11.appln3942-09 6