# Bhola v. State

- **Citation:** (2025) 12 ILRA 84
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-05
- **Case number:** Criminal Appeal No. 1529 of 1989
- **Bench:** Salil Kumar Rai, Vinai Kumar Dwivedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhola-v-state-52938
- **Pages:** 7

## Text

84 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2025) 12 ILRA 84
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.12.2025

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE VINAI KUMAR DWIVEDI, J.

Criminal Appeal No. 1529 of 1989

Bhola ...Appellant
Versus
State ...Respondent

Issue for consideration
Delay in Test Identification Parade

Headnotes
Test Identification Parade-only on the
ground of test identification parade- even after
delay of more than two months- accusedappellant could not be held guilty for the
commission of the heinous crime like murder.
Appeal allowed.(E-9)

Case Law Cited
1.Harinath and another Vs. State of U.P., (1988)
1 SCC 14

List of Acts
Indian Penal Code, 1860

List of Keywords
Test Identification Parade, heinous crime, delay

Appearances of parties
Counsel for Appellant(s) : Akhilesh Tripathi,
Sanjeeva Kumar Yadava
Counsel for Respondent(s) : A.G.A.

(Delivered by Hon'ble Vinai Kumar
Dwivedi, J.)

1. This Criminal Appeal has been filed
against the judgment and order dated
10.07.1989 passed by Additional District
and Sessions Judge, Gyanpur, Varanasi in
Session Trial No. 37 of 1982 arising out of
Case Crime No. 52 of 1981, under Sections
147, 148, 149, 302, 120B IPC, police
station Gyanpur, district Varanasi. By the
impugned order, the Additional Sessions
Judge has acquitted the accused Brahm
Shankar, Vijay Shankar, Nirahoo and
Awadh Narain and has convicted and
sentenced the accused-appellant Bhola to
life imprisonment under section 302 IPC.
Aggrieved by the judgment and order dated
10.07.1989 by which the accused-appellant
Bhola was convicted under Section 302
IPC, he filed the instant criminal appeal
challenging the aforesaid judgment and
order dated 10.07.1989.

2. In short compass, the facts of the
case are that on 27.05.1981, a written
report was given to the Inspector, Police
Station Gyanpur, District Varanasi by PW1 Lalmani Dubey alleging inter alia that
there was enmity between him and Brahm
Shankar @ Bechu. Due to old enmity,
Brahm Shankar @ Bechu and Vijay
Shankar
@
Mothai
alongwith
three
unknown persons came at his house from
the North keeping lathi, danda and countrymade pistol and attacked his cousin Aadhya
Prasad and nephew Faujdar, who were
sleeping at the door, by lathi-danda. The
unknown person who wore kurta paijama
fired from the country-made pistol upon his
nephew Rakesh Kumar, who was also
sleeping on the cot, which hit his chest and
the blood started oozing. On hearing the
noise of the fire-shot and screaming, he and
Aadhya Prasad, Faujdar and younger
brother
Chaturgun
and
neighbours
Phoolchandra Dubey, Shivshankar and
Jayshankar and many people of the locality
came at the spot. On seeing the aforesaid
persons, the culprits ran towards the East
direction. The complainant alongwith the
persons gathered at the spot identified the
accused persons Brahm Shankar and Vijay
12 All. Bhola Vs. State
85
Shankar in the light of the torch. The first
informant claimed that he can also
recognize the three unknown assailants on
seeing them. The assailants were chased
but they could not be caught. Thereafter,
the condition of the injured Rakesh Kumar
started deteriorating and he was taken to
the hospital but he died on the way.

3. On the basis of the aforesaid report,
a case was registered as Case Crime No. 52
of 1981, which was proved as Ext. Ka-3.
Investigation of the crime was started by
the police. The investigating officer of the
case
recorded
the
statement
of
the
witnesses of the crime. Panchayatnama and
post mortem of the dead body of the
deceased were conducted. After completing
all the formalities of the investigation,
investigating officer submitted charge-sheet
against accused Brahm Shankar @ Bechu,
Vijay Shankar @ Mothai and Nirahoo,
which
was
proved
as
Ext.
Ka-14.
Thereafter, the charge-sheet was also
submitted by the investigating officer
against the accused-appellant Bhola which
was proved as Ext.Ka-4.

4. The charge was framed under
Sections 147, 148, 149, 323 read with
Section 149 IPC against the accused Bhola,
Brahm Shankar @ Bechu, Vijay Shankar
@ Mothai, Nirhoo and Awadh Narain by
the trial Court on 31.03.1983. Against the
appellant-accused Bhola, the charge was
framed under Section 302 IPC (simplicitor)
by the trial Court. The charge was framed
under Section 120B IPC against the
accused Nirahoo and Awadh Narain. All
the accused persons including the accusedappellant Bhola denied the charges framed
against them and claimed for trial.

5. After recording the evidence of the
prosecution witnesses and taking into
consideration their evidence on record,
statement of the accused-appellant Bhola
and other accused were recorded under
Section 313 Cr.P.C.

6. Vide judgment and order dated
10.07.1989, trial Court after hearing the
arguments of the prosecution and defence,
on the basis of the evidence available on
record, acquitted accused Brahm Shankar
@ Bechu, Vijay Shankar @ Mothai,
Nirahoo and Awadh Narain under Sections
147, 302/149, 323/149 and 120B IPC, by
giving benefit of doubt. The accusedappellant Bhola was also acquitted of the
charge under Sections 148, 302/149,
323/149 IPC but he was held guilty under
Section
302
IPC
(simplicitor)
and
convicted for life imprisonment. No fine
was imposed upon the accused-appellant
Bhola.

7. It is also worthwhile to mention
here that against the acquittal order of the
trial Court in respect of accused Brahm
Shankar @ Bechu, Vijay Shankar @
Mothai, Nirahoo and Awadh Narain, State
of Uttar Pradesh has not filed any appeal.

8. Learned counsel for the accusedappellant Bhola submitted that in the
written report Ext. Ka-1, accused-appellant
Bhola has not been named whereas accused
Brahm Shankar and Vijay Shankar have
been named in the F.I.R. Informant
Lalmani Dubey, who is PW-1, has stated
three kinds of enmity only against the
named accused Brahm Shankar and Vijay
Shankar. No enmity or cause or reason has
been stated by the informant/PW-1 Lalmani
Dubey against the accused-appellant Bhola,
therefore, no motive for the commission of
the crime by the accused-appellant Bhola
has emerged from the F.I.R. The trial Court
on the basis of the evidence acquitted the
86 INDIAN LAW REPORTS ALLAHABAD SERIES
accused Brahm Shankar, Vijay Shankar,
Nirahoo and Awadh Narain from the
charge under Sections 147, 302/149,
323/149 and 120B IPC. The trial Court
wrongly relied on the evidence of the
informant/PW-1 Lalmani Dubey, PW-2
Chaturgun and PW-10 Isht Dev Prasad Rai
and convicted and sentenced the accusedappellant Bhola under Section 302 IPC.

9. It is also submitted by learned
counsel for the appellant that on the test
identification parade of accused-appellant
Bhola by the informant/PW-1 Lalmani
Dubey and PW-2 Chaturgun, the trial Court
wrongly and illegally held guilty the
accused-appellant
Bhola.
It
is
also
submitted by the counsel for the appellant
that date of incident is 26/27.05.1981 at
about 12:15 O'clock in the night.

10. The accused-appellant Bhola was
arrested by the investigating officer on
03.07.1981 and his test identification
parade was conducted in Sub Jail, Gyanpur,
Varanasi on 07.09.1981, i.e., after about
two months from the date of his arrest.
From the evidence of PW-10 Isht Dev
Prasad Rai, it is clear that before the test
identification parade of the accusedappellant Bhola, prosecution witnesses
already knew and were familiar to the
accused-appellant Bhola, because village of
the first informant Lalmani where incident
occurred on 26/27.05.1981 and village of
accused-appellant Bhola are situated in
close vicinity.

11. On the above arguments, learned
counsel for the accused-appellant Bhola
submitted that without proper appreciation
of the prosecution evidence, trial Court
convicted the accused-appellant Bhola
against the set principles of law of evidence
in this regard. Hence, it is submitted by the
counsel for the accused-appellant Bhola
that accused-appellant Bhola is also entitled
for acquittal by giving benefit of doubt.

12.
Per
contra,
learned
A.G.A.
representing the State of U.P. has submitted
that the trial Court in proper prospective
and in legal way after appreciating the
prosecution evidence found the accusedappellant Bhola guilty for commission of
the alleged crime. The accused-appellant
Bhola is the sole accused person, who fired
at the deceased Rakesh Kumar on his chest
from
a
country-made
pistol,
thereby
murdered Rakesh Kumar. It is also
submitted that judgment of conviction and
sentence as passed by the trial Court is
fully based on the evidence of the
prosecution. The finding and conclusion
drawn by the trial Court is legally sound as
per law and parameters in this regard.
Hence, the criminal appeal filed by the
accused-appellant Bhola is liable to be
rejected and conviction and sentence
passed by the trial Court must be
confirmed.

13. We have heard learned counsel for
the appellant and the A.G.A. for the State
of U.P. We have also perused the oral and
documentary evidence as available on the
record and gone through the record in the
light of the arguments as adduced by the
counsel for the accused-appellant and the
A.G.A. representing the State.

14. From perusal of the written report
Ext. Ka-1 and evidence of the first
informant/PW-1 Lalmani Dubey and PW-2
Chaturgun, it is amply clear that three kinds
of
enmity
were
stated
by
the
informant/PW-1
Lalmani
Dubey
and
witness PW-2 Chaturgun only against the
accused
Brahm
Shankar
and
Vijay
Shankar, Nirahoo and Awadh Narain.
12 All. Bhola Vs. State
87
Neither any single reference about enmity
or
reason
has
been
stated
by
the
informant/PW-1 Lalmani Dubey in his
written report Ext. Ka-1 nor in his oral
evidence. In his evidence of PW-2
Chaturgun also has not stated any enmity,
cause or reason, which motivated the
accused-appellant Bhola to come at the
residence of the first informant/PW-1
Lalmani
Dubey
in
the
night
of
26/27.05.1981 and fire at Rakesh Kumar
son of Chaturgun PW-2. It is also not stated
by any of the prosecution witness that
accused-appellant Bhola is a hired assassin.
During the course of investigation by the
investigating officer S.I. Sarju Prasad
Chaudhary/PW-7,
no
fact
of
enmity
between the informant side and accusedappellant Bhola has come into light. From
the evidence of the prosecution witnesses,
no single sentence has been stated about the
motive, reason or cause, that has motivated
or inspired the accused-appellant Bhola to
commit the alleged crime. Despite the socalled enmity between the family of the
informant Lalmani Dubey and accused
Brahm
Shankar
and
Vijay
Shankar,
accused Brahm Shankar and Vijay Shankar
have been acquitted by the trial Court. This
fact in absence of any motive against the
accused-appellant
Bhola
makes
the
prosecution story suspicious and doubtful.
Therefore, testimonies and evidence of the
prosecution witnesses in this regard are not
found to be trustworthy and believable.

15. In the written report Ext. Ka-1,
name of accused-appellant Bhola has not
been stated by the informant/PW-1 Lalmani
Dubey. The date of the incident is
26/27.05.1981. Accused-appellant Bhola
was arrested on 03.07.1981 alongwith
accused
Nirahoo.
The
investigating
officer/PW-7 Sarju Prasad Chaudhary has
stated in his cross-examination that "only
on the ground of doubt and information
(mukhbiri), name of accused Bhola has
come into light in respect of the alleged
crime. The accused Awadh Narain in his
statement has stated about the involvement
of the accused Bhola in the commission of
the crime and on believing many other
causes, accused Bhola has been arrested."

16. From the above statement of the
investigating officer/PW-7 Sarju Prasad
Chaudhary as given by him in his crossexamination, it is amply clear that accusedappellant Bhola was arrested by the
investigating officer only on the ground of
doubt, suspicion and statement of other coaccused Awadh Narain. From the above, it
is clear that only on the ground of suspicion
and doubt, the accused-appellant Bhola got
involved and implicated in this case as an
accused.

17. The accused-appellant Bhola was
arrested by the investigating officer/PW-7
on
03.07.1981
alongwith
co-accused
Nirahoo. The so-called test identification
parade was organized on 07.09.1981 at Sub
Jail, Gyanpur, Varanasi by PW-10 Isht Dev
Prasad Rai.

18. From the aforesaid, it is clear that
date of incident is 26/27.05.1981 and after
about 36 days, accused-appellant Bhola
was arrested on 03.07.1981 by PW-7 SI
Sarju Prasad Chaudhary. Thereafter, the
test identification parade was conducted
under the supervision of the prosecution
witness PW-10 Isht Dev Prasad Rai on
07.09.1981 after a delay of about two
months from his arrrest. The above fact of
about two months delay has also been
confirmed by PW-2 Chaturgun from his
statement that after two months and five
days from the date of incident, he with
Lalmani Dubey, Aadhya Prasad and Autar
88 INDIAN LAW REPORTS ALLAHABAD SERIES
have gone in the test identification parade
to identify the culprit. Apart from this, the
first informant Lalmani Dubey has stated in
his cross-examination that "accused Bhola
is resident of village Bhagwas. The test
identification of accused Bhola has been
done after two months from his arrest.
There was his land in village Bhagwas
where he does agricultural work. He knew
accused Bhola for the last about 41/2 years.
He had seen firing from country-made
pistol by the accused Bhola."

19. Thus from the above statement of
informant/PW-1 Lalmani Dubey, it is clear
that accused Bhola is resident of village
Bhagwas.
The
agricultural
land
of
informant/PW-1 Lalmani is situated in
village Bhagwas where he does agricultural
work. This fact also becomes clear that
informant PW-1 Lalmani Dubey is also
known to the accused-appellant Bhola and
well-acquainted with him.

20. We have also perused the evidence
of PW-2 Chaturgun and find that PW-2
Chaturgun allegedly denied that he had
heard the name of Bhola for the first time.
PW-2 Chaturgun stated that he does not go
to village Bhagwas in any marriage
ceremony or other functions. Thus from the
two contradictory statement on the same
point by informant/PW-1 Lalmani Dubey
and PW-2 Chaturgun, the fact emerged that
PW-2 Chaturgun is trying to conceal this
fact that he does not go to village Bhagwas
where accused-appellant Bhola resides.
Thus,
from
the
above
contradictory
statement of the first informant/PW-1
Lalmani Dubey and PW-2 Chaturgun, it
becomes amply clear that PW-2 Chaturgun
is purposely trying to conceal this fact that
he did not know or was acquainted with the
accused-appellant Bhola, who is resident of
village Bhagwas. From the contradictory
statement of PW-1 Lalmani Dubey and
PW-2 Chaturgun, it is apparent that village
Chhatrashahpur
where
the
incident
happened on 26/27.05.1981 and village
Bhagwas where the accused Bhola resides
is located in the close vicinity of each
other.

21.
In
other
words,
village
Chhatrashahpur where the complainant's
side resides and village Bhagwas where
accused Bhola resides are located in the
vicinity of each other. Although PW-1
Lalmani and PW-2 Chaturgun in their
evidences tried to conceal this fact but in
cross-examination, this fact emerged in the
statement of PW-1 Lalmani Dubey.

22. The test identification parade of
the accused-appellant Bhola was conducted
by the prosecution on 07.09.1981 after a
delay of about two months from his arrest
on 03.07.1981. No cause or explanation for
two months delay has been explained or
stated by the PW-10 Isht Dev Prasad Rai.
When we see this fact in totality of the
circumstances of the case and in the light of
the fact that accused-appellant Bhola is not
named in the written report Ext. Ka-1, then
the delay of two months in conducting the
test identification parade, proceeding of the
test identification parade in the above
circumstances and facts become totally
doubtful,
suspicious
and,
thereby
unbelievable.

23. From the perusal of the evidence
as given by the prosecution witness Isth
Dev Prasad Rai and in his crossexamination, it appears that PW-10 Isht
Dev Prasad Rai, who conducted the test
identification parade has stated in his crossexamination that "witnesses Aadhya Prasad
and Autar had given statement to him that
they have come to identify accused Bhola".
12 All. Bhola Vs. State
89
From the above, statement of PW-10 Isth
Dev Prasad Rai, it explicitly becomes clear
that PW-1 Lalmani Dubey and PW-2
Chaturgun, Aadhya Prasad, Faujdar are
familiar and acquainted with the accusedappellant Bhola, before commission of the
alleged
crime.
In
other
words,
test
identification witnesses are well-acquainted
and known to accused-appellant Bhola.
Without considering this fact and without
giving any reason on this point, the trial
Court held accused-appellant Bhola guilty.
How and by which means, PW-10 Isht Dev
Prasad Rai stated that they had come to
identify accused Bhola. Meaning thereby
that
prosecution
witnesses,
who
participated in the test identification
parade, were familiar and acquainted with
the
accused-appellant
Bhola.
These
prosecution witnesses before the date of
incident were known to the accusedappellant Bhola and accused Bhola was
also familiar and known to the prosecution
witnesses. Since village Chhatrashahpur
and village Bhagwas where complainant's
side
and
accused-appellant
Bhola
respectively reside, are located in the close
vicinity of each other. The agricultural land
of the complainant Lalmani Dubey is
located and situated in village Bhagwas.
Both the above villages are neighbouring
village, so in this facts and circumstances
of the case, it could not be presumed that
complainant's side and the appellant Bhola
are not familiar and acquainted with each
other.

24. We have gone through the
judgment of the Hon'ble Apex Court in the
case of Harinath and another Vs. State of
U.P., (1988) 1 SCC 14. From perusal of the
fact of the above case law of Hon'ble Apex
Court, it appears that facts and circumstances
of the said case are nearly similar to the facts
and circumstances of the present criminal
appeal at hand. From perusal of the aforesaid
case law, we find that above case is fully
applicable in the facts and circumstances of
the case at hand, wherein Hon'ble Apex Court
has held that :

"The evidence establishing the
identity of the culprits assumes particular
materiality in a case, as here, of a dacoity
occurring in the darkness of the night. The
evidence of the test identification would then
call for a careful scrutiny. In the present case
the fact that the prosecution witness could
reasonably be expected to have known some
of the accused-appellants as residents of
villages in close vicinity of his village and as
students of the same institution in which he
was a student is a statable probability and
that his feigned ignorance of any prior
familiarity with identity of the accused
becomes irreconcilable with what are
incidents of ordinary human intercourse.
The omission to disclose their identity in
the FIR would raise a reasonable doubt
about their complicity in the crime.
Moreover, there was a serious lapse on the
part of the prosecution in putting up the
suspected culprits for a test identification
after a lapse of four months after their
arrest without any explanation for the
delay.
The
benefit
of
this
wholly
unexplained lack of promptitude in holding
the test identification enures to the
accused-appellants. The evidence of test
identification lacks the requisite element of
reassurance to support the conviction. A
reasonable doubt, therefore, arises."

25. When we see the evidence of the
witness of the test identification parade in the
light of the law as held by the Hon'ble Apex
Court, we find that accused-appellant Bhola
was arrested on 03.07.1981 after about 36
days
from
the
date
of
incident
on
26/27.05.1981.
90 INDIAN LAW REPORTS ALLAHABAD SERIES

26. The test identification parade was
organized
and
conducted
by
the
prosecution on 07.09.1981 after two
months of his arrest on 03.07.1981. No
explanation for the delay of two months in
conducting the test identification parade
has been given by the prosecution. It is also
surprising that village Chhatrashahpur
where the complainant's side resides and
village Bhagwas where the accused resides,
are located in the close vicinity of each
other. The villagers of neighbourhoood
villages situated in close vicinity are wellacquainted and familiar with each other.
The delay of about two months in
conducting the test identification parade
after arrest of the accused-appellant Bhola,
even without any explanation of delay,
itself
becomes
highly
doubtful
and
suspicious. Therefore, only on the ground
of test identification parade even after
delay of more than two months, accusedappellant Bhola could not be held guilty for
the commission of the heinous crime like
murder.

27. This delay of about two months in
conducting the test identification parade
makes the prosecution story as projected by
the prosecution against
the accusedappellant Bhola, highly doubtful and
unbelievable.

28. In light of the case law as held by
the Hon'ble Apex Court in the case of
Harinath and another (supra), we find that
judgment and order dated 10.07.1989 as
passed by the learned trial Court in Session
Trial No. 37 of 1982 (State Vs. Bhola and
others) holding guilty the accused-appellant
Bhola is not sustainable as per the law.

29. We find that accused-appellant
Bhola is also entitled to be acquitted of the
charge under Section 302 IPC by giving
benefit of doubt.

30. In the light of the above
discussions and analysis, we find that
Criminal Appeal No. 1529 of 1989 (Bhola
Vs. State) deserves to be allowed.

31. The criminal appeal is allowed.
Accordingly, we set aside the impugned
judgment and order dated 10.07.1989 of
conviction and sentence passed against the
accused-appellant Bhola by learned trial
Court in Session Trial No. 37 of 1982
arising out of Case Crime No. 52 of 1981,
under Sections 147, 148, 149, 302, 120B
IPC, police station Gyanpur, district
Varanasi. The appellant Bhola is acquitted
of the charge under Section 302 IPC. The
appellant is on bail. His bail bond is
cancelled and sureties are discharged. He
need not surrender.

32. Office is directed to certify the
judgment to the learned trial Court
forthwith along with lower court record.
----------
(2025) 12 ILRA 90
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.12.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.
THE HON'BLE ZAFEER AHMAD, J.

Criminal Appeal No. 1701 of 2004

Phool Chandra & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Issue for consideration
Culpable Homicide and murder

Headnotes