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Judgment
SWAPNA JOSHI, J.
The instant Appeal takes exception to the judgment and order dated 16.02.2004 delivered by the learned Additional Sessions Judge, Kelapur in
Sessions Trial No.196/2002 acquitting the respondents (hereinafter referred to as “the accusedâ€) of the offence punishable under Section 395 and
397 of the Indian Penal Code.
The prosecution case can be summarized as under :
Shyam Belorkar (PW5) was residing along with his wife Shobha @ Shital, nephew-Akash, elder brother Arun and his wife Prabha, at Babasaheb
Deshmukh Society at Ghatanji. During the intervening night of 17 and 18th August,1999 between 2.00 and 2.30 am, Shyam (PW5) heard noise of
knocking the back side door of his house. Shyam as well as his wife Shoba, both woke up from their sleep. They came from their bed room and put on
the inside and outside lamps. They both went to the door which was knocked. They noticed that four persons being Sardarji, had broke open the door
and entered inside the house, while two Sardarjis were guarding outside the house of PW5. Out of those 4 sardarjis, one of them assaulted Shyam
(PW 5) by means of an iron bar on his head. He asked PW5 to come inside. Those culprits then took Shyam (PW5) and Shobha (PW7) through the
entire rooms and questioned them as to where the valuable property was kept. While threatening PW5 and PW7, the accused caused injuries to them.
Those four accused removed the gold ornaments of PW7, namely, two patlyas, four bangles, a mangalsootra and a chain. They also removed the gold
ring and gold bracelet from the hands of PW7. The accused removed two gold rings, two earrings from the person of PW7. One of the accused
raised a knife to assault PW5. However PW7 caught hold of the said knife, due to which she sustained injury on her left palm. The accused asked
PW5 and PW7 to sit in a room. Out of the four accused, two accused were standing near them and the other two accused went near the adjoining
room. They tried to remove the articles kept in the almirah. As the almirah was locked, one of the accused demanded keys from PW5. The accused
asked PW5 to unlock the almirah. However PW5 could not do the same. PW5 was then made to sit beside PW7. One of the accused broke open the
lock of the iron box, which was kept in the house. He removed the pant piece and some clothes from the said box. Thereafter, all the four accused
went outside the house. Four accused persons who were inside the house and the two accused who were guarding the scene, then fled away.
Thereafter PW 5 and PW7 came outside from the broken door and called their neighbour, namely, Shridhar Bhaskarwar (PW1). PW1-Bhaskarwar
who was already awoke, told PW5 that the door of his house was chained from outside, so he opened the door. As PW5 and PW7 had received
injuries, PW1-Bhaskarwar brought Dr.Bhure to their house, who advised PW5 and PW7 to proceed to the hospital at Yavatmal. Accordingly PW5
and PW7 proceeded to the hospital at Yavatmal. PW1-Bhaskarwar then proceeded to the Police Station and lodged his complaint (Exh.43).
On 18.8.1999 Head constable Annaji Dhurve (PW 23) was attached to Ghatanji Police Station. He received a phone call from Shridhar
Bhaskarwar (PW1) to the effect that some dacoits entered into the house of Shyam (PW 5) at about 3.30 am. Shyam and his wife Shobha, Dr.Bhure
and Dr.Gupte proceeded to the Police Station, Ghatanji. As PW5 and PW7 were in injured condition, Head Constable Annaji (PW 23) referred them
to medical hospital at Yavatmal. He communicated the incident of dacoity to PSOs of all Police Stations in Yavatmal District. He also informed the
superior police officers about the incident. PW23-Annaji recorded the complaint of Bhaskarwar and on the basis of it, he registered the offence vide
C.R. No. 83/1999 for offence punishable u/s. 395 and 397 of the Indian Penal Code. Police Inspector Anant Thorat (PW13) visited the place of
incident and prepared the spot panchnama (Exh.109). He took charge of the articles lying on the spot under seizure Panchnama (Exh.47).
It is the case of the prosecution that on 18.8.1999 PSI Vishnu Gawai (PW 20) was on a patrolling duty at Yavatmal town. He noticed one truck
coming by the road in front of the Police Station, Yavatmal. PW20 stopped the truck. He noticed that one person was found sitting in the back side of
the truck ina suspicious condition. The said person tried to flee from that place, however, PW20 apprehended the said person. In the presence of two
panchas. Sk.Mehboob Sk.Rahim and Mohd. Mujaffar Mohd Zafar, PW20 took search of that person. The name of the said person was Kanhaiya
(accused no.5). From the left side pant pocket of accused no.5, PW 20 took charge of the total amount of Rs.2080/-. He seized the said amount from
Kanhaiyya. PW20 arrested accused no.5-Kanhaiya under arrest panchnama Exh.63. The seizure panchnama was prepared at Exh.64. During the
relevant period, PSI Annnasaheb Gholap (PW 21) was attached to Wadgaon Police Station. On 18.8.1999 he received a wireless information that
there was a dacoity in the house of one Shaym Belorkar at Ghatanji. PW21 along with the police staff proceeded for checking and patrolling by a
police jeep. PW21 received an information that some villagers of Hatgaon, Police Station, Wadgaon had caught hold of one of the accused. PW21
proceeded to that place to bring the accused at Wadgaon Police Station. PW 21 noticed that one accused being Sardarji was tied by the villagers in
the house of Police Patil, Hatgaon. The name of the said accused was Gurmitsing Tak ( accused No.4). There were gold ornaments in his possession.
PW21 arrested the said accused under arrest panchnama (Exh.66). The gold ornaments and coins of foreign currency and coin of Lord Ganesh was
taken charge from accused no.4-Gurmitsing under seizure panchnama (Exh.67).
Police Inspector-Manohar Sonone (PW27) was attached to LCB Yavatmal. On 18.8.1999 at about 4.15 pm, he received information from Police
Control Room, Yavatmal, that there was a dacoity at Ghatanji in the house of Shyam Belorkar. So he proceeded towards Ghatanaji and, on the way,
he was checking the vehicles.
He noticed three persons in a suspicious condition. There was one bag with them. PW 27 checked the said bag and found that in that bag, there was
another small bag. While PW27 was checking that small bag, out of the three persons, one Sikalkari person started running towards the hutment area.
They found in the small bag, some gold ornaments. Head Constable-Hanwante and Dr. Raju chased the persons. Out of those two persons, one was
accused no.4-Gurmitsingh who raised a dagger to assault Head Constable-Sambhaji by means of the said dagger, due to which PC Ashok received
bleeding injuries and while he was taken to the hospital, the doctor declared him as dead. PW27 prepared panchnama of those articles found with
accused no.4 vide Exh.48. On 18.8.1999 at about 2.00 pm, PW27 received information that accused persons who fled away were chased by the
villagers and they were proceeding towards Kurhad vicinity. Accordingly the police went towards Kurhad vicinity. The police apprehended accused
no.1-Rajendrasing; accused no.2-Jitendrasingh who were caught hold by the villagers and accused no.3-Satnamsing fled away in the jwar crop. He
was also caught hold by the villagers. One accused who jumped in the water died at that place. The police took charge of one gold ring, two bundles
of currency notes of Rs.10/- and one kada in his hand vide seizure panchanama (Exh.92). The arrest panchnama of accused no.1-Rajendrasing and
accused no.2-Jitendrasing and accused no.3- Satnasingh was prepared by PW27. The cash amount of Rs. 3500/- with accused no. 3-Satnamsingh
was taken charge under panchnama Exh.61. The clothes of the accused persons were taken charge by the police. The statement of the witnesses
were recorded. Identification parade in respect of the accused persons was arranged by PW 27 with the help of Executive Magistrate, Ghatanji. After
completion of investigation, the charge-sheet was filed. The case was committed to the court of Sessions. Charge was framed. On appreciation of the
evidence and after hearing both sides, the learned trial Judge acquitted the accused.
We have heard Shri N.R. Patil, learned APP for the appellant State. Though served, none appeared for the accused.
Learned APP for the appellant-State contended that the learned Additional Sessions Judge should have considered the evidence led by the
prosecution in its right perspective. He failed to consider the evidence led by the eye witnesses. He submitted that the witnesses had ample
opportunity to see the accused persons and they have also identified the accused persons in the test identification parade ( in short “TI paradeâ€).
He further contended that the recovery of the ornaments and the cash amount from the accused persons proved the guilt of the accused. Thus,
according to him, the prosecution has proved its case beyond reasonable doubt. He submitted that the learned trial Judge has not considered the
evidence on all the aspects and has erroneously acquitted the accused. According to him, the impugned judgment is illegal and perverse.
In order to substantiate its case, the prosecution has heavily relied upon the testimony of complainant-PW1-Bhaskarwar, who was the neighbour of
PWs 5 & 7. Shyam Belorakar (PW5) stated that during the intervening night of 17th and 18th August, 1999 between 2.00 and 2.30 am. when PW 5-
Shyam was in deep sleep in his house, he heard noise of knocking the back door of his house. He along with his wife-PW7 woke up and came outside
the bedroom by switching on the lights. They went towards the door which was knocked. They noticed that four persons who were sardarjis broke
open the door and came inside the house. Two more sardarjis were standing outside the house. Out of the four persons who entered inside the house
one of them gave a blow of iron bar on his head. He took inside PW5 towards the pooja room. At that time that person again gave two blows of iron
bar on his back and head, due to which PW5 sustained injuries. PW 5 was then brought in the dining room. Again, PW5 was taken to another room.
The accused enquired with him as to where the valuables were kept. Those four culprits removed the gold ornaments from the person of PWs 5 and
Those articles were two gold patlya ( thick bangle), four gold bangles, mangalsootra and gold chain from the person of PW7; so also a gold chain,
gold ring and gold bracelet from the person of PW5. They also removed gold rings, two earrings from PW7. One of the culprits pointed out a knife
towards PW5. PW7 caught hold of said knife due to which she received injury to her left palm. The culprits asked PWs5 & 7 to sit in the room. One
of the accused demanded keys of the almirah from PW5. Accordingly he handed over the same. However the accused could not open the almirah.
There was one iron box in the house. One of the accused broke open the lock of the said box by means of rod. He took some clothes from the said
box. Thereafter, all six accused fled away. PWs5 & 7 came out of the house and called their neighbour namely Bhaskarwar (PW1). Bhaskarwar told
him that the door of his house was closed from outside. Therefore, PW5 opened the door of his house. Bhaskarwar then took PWs5 & 7 to Dr. Bhure
, who referred them to Yavatmal hospital. Accordingly Pws5 & 7 were treated at Yavatmal hospital.
PW5-Shyam identified accused before the Court. He identified accused no.2 Jitendrasingh as a person who assaulted him by an iron rod. He
identified accused no.4-Gurmitsingh as a person who had assaulted him by means of knife. He identified accused no.1-Rajendrasingh and accused
no.5- Kanhaiyya as the persons who were standing outside his house. According to PW5-Shyam, he was called to attend the identification parade
about two months after the incident. Two panchas  were present. Police mixed the other ornaments with the stolen ornaments and he was asked to
identify his ornaments. He as well as his wife identified some articles. The police prepared the panchnama (Exh.56) accordingly. PW5 stated that the
gold ornaments were given to him on suptratnama. PW5 was called for identification of the accused at Amravati by the Executive Magistrate.
Accordingly, PW5 attended the parade and identified accused no.2-Jitendrasingh; accused no.1-Rajendrasingh. PW5 fairly stated that he could not
identify any one else in the third round. In the forth round he identified accused no.4-Gurmitsingh and accused no.5 Kanhaiyya.
During the cross-examination, PW5-Shyam admitted that he had stated that there were four accused persons who entered inside his house.
According to him, at the relevant time, his mental condition was not good. He further admitted that he had mentioned the time of incident as 3.30 am.
An improvement was pointed out in his version that according to him there were 8 to 10 persons standing in a row at the time of TI parade and the
age of those persons was about 25 to 30 years. According to him, on the date of identification parade, four witnesses were called for identification of
the accused. However no TI parade was conducted on that day. He denied that as he could not identify the accused on that day, the TI parade was
adjourned. He also denied that on that day he saw the accused in the police custody and identified them and at that time except the accused, no one
was present in the queue of TI parade. Significantly, in the cross-examination, PW5 admitted that there were some scarves on the faces of the
culprits. With respect to identification of the ornaments, PW5 failed to state as to the number of ornaments which were kept in the identification of the
ornaments. According to him, the test identification of ornaments was conducted about two months after the incident.
The deposition of PW7-Shobha, who is the wife of PW5-Shyam, demonstrates that during the intervening night of 17th and 18th August, 1999 at
about 2 or 2.30 am. the incident had taken place. She heard noise of breaking back side door of her house, therefore, she woke up. She saw that four
sardarjis entered inside her house and two sardarjis were standing outside her house. Out of the four persons who entered inside the house, one gave
a blow of iron rod on the head of her husband. She stated that accused brought her as well as her husband in the pooja room of the house and then
near the dining table. They were again brought to one another room. At that time, one of the accused assaulted her husband by means of iron rod on
the head of her husband due to which he sustained bleeding injury. The accused then enquired them as to where the ornaments were kept. They
removed the ornaments from the person of PW7; those ornaments were four gold bangles, two gold patlya, two gold finger rings, mangalsootra, two
gold earrings and a gold chain. They also removed the ornaments from the person of her husband. Those ornaments were gold chain, gold ring and
gold bracelet. One of the accused tried to assault PW5 by means of knife. At that time PW7 intervened, due to which she sustained bleeding injury on
her hand. Her clothes were stained with blood. Two accused persons went to another room and opened the almirah as they could not open it, they
demanded the keys from her husband. Her husband tried to open the almirah, however, he could not open the same. The accused persons then broke
open the lock of almirah and removed all the ornaments from the almirah. They also broke open the iron box which was kept in the house and
removed the clothes and other articles from that box. PW7 stated that the accused persons then went outside the house. PWs 5 & 7 also followed
them. PW 5 and PW7 then went to the house of Bhaskarwar (PW1). The house of Bhaskarwar was bolted from outside. PWs5 & 7 opened the door
of the house of Bhaskarwar. Bhaskarwar then came outside the house; other neighbourers also assembled at that place. PWs5 & 7 were taken to the
hospital. On 13.10.1999 they were called in the Police Station for identification of the ornaments. The police mixed their ornaments with other
ornaments and asked PW7 to identify the articles. PW7 identified her ornaments. The police prepared the panchnama in that regard (Exh.56).
According to PW7, she alongwith her husband PW5, Bhaskarwar and Manish Bhskarwar went to the Central Prison at Amravati for TI parade of
the accused. At the first instance, the TI parade could not be arranged, however, again on 10.11.1999 they were called in Amravati jail for TI parade.
From about 6 to 7 persons standing in a row, she identified the accused. She identified four accused persons in 1st 2nd 4th and 5th rounds. PW7 also
identified accused no. 1 to 5 in the Court. PW7 admitted that after the incident she had visited the police station. She denied that since she could not
identify the accused persons in the first TI parade, it was adjourned. She further denied that some papers were prepared on that day with regard to
the identification parade. PW7 stated that the ornaments identified by her were handed over to her on supratnama by the Court.
The testimony of PW1-Bhaskarwar-complainant, shows that on the date of incident at about 2.30 am, he heard the noise of breaking open the
door of the house of Shyam Belorakar which was towards his house. Due to said noise, he woke up. He heard the noise of beating and shouting from
the house of Shyam (PW5). He noticed that one person came out of the house of Shyam who was armed with stick. The said accused tried to beat
him. The said person threatened PW1 to switch off the lights, not to telephone, otherwise they would kill him. Therefore he went inside the house. The
accused then closed the door of his house from outside. Son of PW1 tried to contact the police on telephone, however, one of the accused shouted not
to do so, otherwise he would kill him. After some time, 3 to 4 accused persons who were moving outside the house of Shyam went away. After some
time, Shyam and his wife came to their house. They had received bleeding injuries. They informed that they were beaten by the accused persons.
PWs5 & 7 were then shifted to hospital. PW1 lodged the complaint (Exh.43).
PW1-Bhaskarwar stated that he was called at Amravati Jail for the purpose of TI parade. On first occasion, the said parade was adjourned. After
ten to 12 days ie. On 20.11.1999 he was called for TI parade again. He was asked to sit in a hall. He was taken to the TI parade room. Out of 10 to
12 persons standing in a row, he identified one accused who had threatened him and was standing outside the house. According to him, he was
accused no.5-Kanhaiyya. In the cross-examination, PW1 stated that the incident was going on for about 15 to 20 minutes.
No doubt, the testimony of PW1-Bhaskarwar, PW5-Shyam and PW7-Shobha corroborates with each other on material aspects, However there is
no medical evidence on record to substantiate the case of Pws5 & 7 that they were injured in the said incident.
Since the accused persons were unknown to the witnesses, it would be advantageous to go through the testimony of the Executive Magistrate who
conducted the TI parade in respect of the accused. The testimony of Executive Magistrate (PW14)Ramesh Bhad, shows that PW5-Shyam identified
accused nos. 1 to 5 in the TI parade; PW7-Shobha identified accused nos.2,1,4 and 5; whereas PW1-Bhaskarwar identified accused no.4. According
to PWs5 & 7 about 10 to 12 persons were standing in a row at the time of TI parade, wheres the testimony of PW14 indicates that there were only
six persons standing in a row in each round. It is noticed that there was overwriting and interpolations in each and every panchnama of the TI parade.
The Investigating Officer Madhav Sonone (PW27) admitted that after arrest of the accused persons he took them thrice to the court for the purpose
of remand. PW14 however failed to explain as to why the TI parade of all the accused was conducted two months after the incident. From the
testimony of PW14, it appears that he had not followed the guidelines issued in the Criminal Manual while conducting the TI parade. From the
document {Exh. 86 to 90 and 101} (TI parade memorandums), it appears that there was scoring and overwriting one each and every document and
there were no initials put up by the witness-PW14. Thus, the fact that the TI parade is delayed by more than two and a half months and the accused
persons were taken thrice to the court, does not rule out the possibility of the accused persons being shown to the witnesses and, therefore, the TI
parade comes under the shadow of doubt. Similarly, twice the witnesses attended the jail at Amravati to attend the TI parade. Significantly, PW14
failed to prepare document with regard to the visit of the witnesses to the Amravati jail on the first occasion. It is therefore not clear as to why TI
parade was not conducted on the same day and why the witnesses were asked to attend the TI parade later on. In these circumstances, the possibility
of the accused persons being shown to the witnesses cannot be ruled out.
It has come in the testimony of PW7-Shobha that the accused persons were sardarjis. However, the testimony of PW14-Ramesh Bhad does not
indicate that all the accused persons were sardarjis and that all the sardar dummies were put in the TI parade. It is not clear from the testimony of
PW14 as to why there was a gap of 11 days in conducting the first TI parade which was fixed on 29.10.1999 and the second TI parade which was
held on 10.11.1999. We are unable to understand as to when the accused persons were allegedly arrested on the date of incident i.e. 18.8.1999, why
there was a delay of about two-and-a-half months in conducting the TI parade. No explanation in that regard is forthcoming from the investigating
agency. It appears that the witnesses did not identify the accused at first instance. The identification parade memos reveal different type of
handwritings. It appears that a single person has not scribed the TI parade memos. Thus, the TI parade is not conducted as per the norms prescribed.
It is held by the Hon’ble Apex Court in the case of Subhash vs. State of U.P., reported in (1987) 3 SCC 331 viz. “apart from this infirmity
we further find that Shiv Shankar was not put up for test identification parade promptly. The identification parade has been held three weeks after his
arrest and no explanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the
delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and
make a notice of his features. Thus, the delay in holding test identification parade is to be viewed seriously and it can be safely held that the identity of
the accused has not been established beyond reasonable doubt by the prosecution.â€
In the case of V.V. Patil vs. State of Maharashtra reported in 1997 (1) B.Cr.C. 268, the Division Bench of this Court issued guidelines while
conducting the TI parade, which reads as under :-
“11. This Court has issued instructions for conducting identification parades and these are contained in the Criminal Manual issued by this Court for
the guidance of the Criminal courts and Officers subordinate to it. Paras 16(3)(i) to (xxii) of Chapter I, contain the procedure for holding identification
parades. It is stipulated therein that the Executive Magistrate must first acquaint himself, very briefly, with the facts of the case and find out who is to
be put in the identification parade and who are the witnesses to be called up for identification. Two independent respectable persons should be
associated with the identification parade. The identification parade should be arranged in a room or place which is such that the identifying witnesses,
as well as the persons connected with the police, should not be able to look into it. If there is one accused person to be identified, there should be at
least half a dozen persons placed in the parade. If two accused persons are to be identified, then there should be about 10 or 12 persons in the parade.
Not more than two accused should be placed in any single parade. The police officers and/or constables should be asked to withdraw themselves from
the room or place where identification parade is being held. After the parade is arranged, one of the two respectable persons should be sent up to
bring the accused from the lock-up. Care has to be taken to see that when the accused is being brought from the lock-up, the identifying witnesses do
not have an opportunity of seeing them. They should be kept in quite a different room, out of sight of the lock-up. After doing so, the Executive
Magistrate should commerce writing the memorandum. It should include the place, date and time at which the identification parade commenced; the
names, ages, occupations and full addresses of the two respectable persons; the names and the approximate ages of the persons standing in the
parade, mentioning clearly, one below the other in numerical order their positions in the parade; the fact that no persons other than those in the parade
and the two respectable persons were allowed to remain in the room and that all the police officers and constables were asked to go out; and that a
particular respectable person fetched the accused from the lock-up and that the identifying witnesses were in a different room and they could not see
the accused while being brought from the lock-up to the identification room. When the accused is brought, the Executive Magistrate should ask him to
take whatever place he likes in the parade and such place must be mentioned in the memorandum. The accused should then be asked if he wants to
make any alteration in his dress. He should be allowed to put on or remove a cap or coat. This fact has to be noted in the memorandum. If he does not
wish to change his dress, this fact too should be noted in the memorandum. Thereafter one of the respectable persons should be asked to fetch the
first identifying witness. When the witness arrives, the Executive Magistrate should question him and ascertain from him whether he had an
opportunity to see the culprit at any time subsequent to the offence or after the arrest. He may either record the statement separately or make a
reference to that statement in the memorandum. The witness should then be asked to view the parade carefully and see whether he would be able to
identify the person who had robbed him. If he identifies any person, he should be asked to go forward and touch that person. The fact that the
indentifying witness identified the accused has to be recorded in the memorandum. After the identifying witness leaves the room, the accused has to
be asked again whether he wants to change his place in the parade or change his dress. If he changes his place or declines to do so, this fact should
be noted in the memorandum. Similarly, if he changes hid dress or declines to do so, this fact also should be noted in the memorandum. One of the
respectable persons has then to be asked to bring the second identifying witness and the same procedure has to be followed to each subsequent
witness. After the memorandum is completed, the Executive Magistrate shall make an endorsement as envisaged in Para 16(3)(xvi).â€
In the instant case, there is no convincing evidence on record to show that the independent and respectable persons who were associated with the
TI parade were examined as Panchas. There is no convincing evidence on record to show that PW 14-Ramesh ensured while accused persons were
being brought from the lock up to the TI parade room, the identifying witnesses did not have an opportunity to see the accused persons. There is no
convincing evidence on record to show that the TI parade was arranged in a room or a place from where the identifying witnesses could not see the
accused persons. There is variance in the number of dummies placed in the TI parade. According to PW 14-Ramesh Bhand there were six persons in
the TI parade, whereas there were 10 to 12 dummies, according to PWs 5 & 7. Similarly, there is no convincing evidence on record to show that all
the dummies were similar to the accused persons in age, height, physic and complexion. Similarly it is not clear whether PW14 arranged for different
sets of dummies for the purpose of identification of all the accused persons.
In Ramcharan B. Gupta vs. State of Maharashtra, reported in 1995 (1) ALL MR 122, it is held by this Court in para No.15 that it is well settled
that the evidence of identification can only be relied upon if all the chances of the suspects being shown to the witnesses prior to their test
identification are eliminated. To ensure that firstly, the prosecution has to adduce link evidence to the effect that right from the time of arrest till being
lodged in the jail, the faces of suspects were kept veiled and no one had the opportunity to see them. In the instant case, although the accused persons
were brought to the court thrice there is absolutely no evidence on record to show that they were brought in veiled condition to the court. As regards
the identification of the ornaments, it was held about 8 to 9 weeks after the incident. There was no special identification mentioned by the witnesses
while identifying the ornaments before the Court.
In the case of Sheikh Sintha Mandhar vs. State, reported in (2016) 11 SCC 265, the Hon’ble Apex Court held that, “the purpose of TIP is
to ensure that investigation is going on right track and it is merely a corroborative evidence. The actual identification must be done in court and that is
the substantive evidence. If the accused is already known to witness, the TIP does not hold much value and it is the identification in the Court, which
is of utmost importance.â€
So far as the investigation with regard to the recovery of articles is concerned, it is a simple seizure by the Investigating Officer. In view thereof,
no importance can be given to the said seizure. Importantly, no medical evidence with regard to the witnesses has been collected by the Investigating
Officer in order to substantiate their case with regard to the injuries caused to the witnesses. Thus, the learned trial Judge has assessed the evidence
led by the prosecution in its correct perspective. No interference is, therefore, called for.
It is worthwhile to note that this is an Appeal against acquittal, hence the scope for appellate court is limited. In the case of Mahendra Pratap
Singh vs. State of Uttar Pradesh, reported in (2009) 11 SCC 334, the Hon'ble Apex Court has given a rule of prudence that if on appraisal of evidence
and on considering relevant attending circumstances, it is found that two views are possible, one for acquitting accused and other for convicting
accused, in such a situation, rule of prudence should guide High Court not to disturb the order of acquittal made by the trial court, unless conclusions of
trial court drawn on evidence on record are found to be unreasonable and perverse or unsustainable, High Court should not interfere with the order of
acquittal. In the case of Commissioner of Central Excise, Chandigarh .vs. Pepsi Foods Limited, reported in (2011) 1 SCC 601, it is further held by the
Hon'ble Apex Court that unless there are substantial and compelling circumstances, order of acquittal is not required to be reversed in appeal. In the
case of Harbeer Singh vs. Sheeshpal and others, reported in (2016) 16 SCC 418, it is observed by the Hon'ble Supreme Court on the same facts that
another view could also have been taken on the evidence on record, is not a ground for reversing an order of acquittal. In view of the aforesaid facts
and circumstances, no interference is warranted with the order of acquittal.
In summary, we are of the considered view that the incident of dacoity might have taken place, however, the prosecution has failed to establish the
presence of the accused at the place of the incident and connect the accused with the crime. The learned trial Judge has rightly assessed the evidence
led by the prosecution witnesses.
No illegality or perversity is noticed in the impugned judgment. Hence the order:-
Criminal Appeal No.229/2004 is dismissed.