# Chhotey Shah v. State

- **Citation:** (2016) 8 ILRA 1009
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-12
- **Bench:** Shashi Kant Gupta, Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhotey-shah-v-state-44107
- **Pages:** 16

## Headnote

The Division Bench allowed the 33-year-old appeal against life imprisonment under Section 396 IPC for dacoity
(with murder), acquitting sole surviving appellant Chhotey Shah due to unreliable identification in pitch-dark
conditions, delayed test identification parade (100+ days post-incident), no recovery of looted property linking
him, and flawed investigation (fabricated recovery from co-accused, inconsistencies in site plan and witness
accounts).

Appeal allowed; conviction & life sentence set aside, appellant acquitted u/s 396 IPC

Held: Para-

Case Law discussed:

Iqbal Vs. State of U.P.(2015) 6 SCC 623, Budh Sen Vs. State of U.P.(1970) 2 SC C 128,
Soni Vs. State of U.P. (1982)3 SCC 368 and Subhash and Shiv Shankar Vs.State of U.P. (1987) 3
SCC 331,
Ram Babu Vs. State of U.P., (2010) 5 SCC 63,Nirmal Pasi Vs. State of Bihar, 2002 (6) JT 28,
Budhsen Vs. State of U.P. and Others, AIR 1970 SC 1321 and that of State of Maharashra Vs.
Sukhdeo Singh, AIR 1992 SC 2100,

## Text

_Characters 0–39,964 of 51,748. This is a partial read: ask again with offset=39964 for what follows._

8 All. Chhotey Shah Vs State
1009
(2016) 8 ILRA 1009
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.08.2016

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE KAUSHAL JAYENDRA THAKER, J.

Criminal Appeal No.- 196 Of 1983

Chhotey Shah ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
V. Saran

Counsel for the Respondent:
A.G.A.

The Division Bench allowed the 33-year-old appeal against life imprisonment under Section 396 IPC for dacoity
(with murder), acquitting sole surviving appellant Chhotey Shah due to unreliable identification in pitch-dark
conditions, delayed test identification parade (100+ days post-incident), no recovery of looted property linking
him, and flawed investigation (fabricated recovery from co-accused, inconsistencies in site plan and witness
accounts).

Appeal allowed; conviction & life sentence set aside, appellant acquitted u/s 396 IPC

Held: Para-

Case Law discussed:

Iqbal Vs. State of U.P.(2015) 6 SCC 623, Budh Sen Vs. State of U.P.(1970) 2 SC C 128,
Soni Vs. State of U.P. (1982)3 SCC 368 and Subhash and Shiv Shankar Vs.State of U.P. (1987) 3
SCC 331,
Ram Babu Vs. State of U.P., (2010) 5 SCC 63,Nirmal Pasi Vs. State of Bihar, 2002 (6) JT 28,
Budhsen Vs. State of U.P. and Others, AIR 1970 SC 1321 and that of State of Maharashra Vs.
Sukhdeo Singh, AIR 1992 SC 2100,

(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. This appeal has been preferred by the accused-appellants against the judgment and order
dated 15.12.1982 passed by the Special Judge, Badaun in Sessions Trial No. 414 of 1981, under
Sections 396/412 IPC, Police Station Dataganj, District Badaun whereby the accused appellants
have been convicted and sentenced to undergo imprisonment for life for the offence punishable
under Section 396 IPC.
1010 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The present appeal was filed in the year 1983 against the impugned judgment dated
15.12.1982 and it has come up for hearing before us after lapse of almost a period of 33 years.

3. At the outset, it is pertinent to mention here that during the pendency of this appeal, the
co-accused persons namely Ram Chandra and Dwarika, who filed the separate Criminal Appeal
No. 3203 of 1982 have died. Accordingly, vide order dated 16.04.2016, this Court had abated the
Criminal Appeal no. 3203 of 1982 as dismissed qua Ram Chandra and Dwarika.

4. Now, we are proceeding to consider the present Criminal Appeal No. 196 of 1983 in
respect of the sole surviving appellant namely Chhotey Shah.

5. Factual scenario according to the prosecution is essentially as follows:

An armed dacoity was committed in between the night of 15/16th December, 1980,
at the house of P.W. 1-Lakhan in village Diyori within the jurisdiction of police station Dataganj.
At the time of dacoity i.e. at about 00.30 hours, Lakhan (P.W.1) was sleeping inside his house. His
father was sleeping in the Baithak. His wife and mother were sleeping at the verandah inside the
house. His son Om Prakash (P.W.3) was sleeping in the Dehliz of the house and the lantern was
glowing as usual in the inner verandah where two dacoits entered inside the house by scaling over
the wall. On hearing the sound, the complainant (PW 1) woke up when he flashed his torch light,
the dacoits caught hold of him. One of them opened the bolt of the front door which facilitated the
entry of six more dacoits inside the house. The dacoits, who were about 10 or 11 in number started
beating the female members of the house and tried to extract information about their valuables. One
of the dacoits climbed on the roof through the stair case. He was armed with a gun. Another dacoit
stood guard on the front door with gun. The dacoits resorted to firing from the roof as well as from
the front door. They also caught hold of the father of the complainant from his Baithak and brought
him inside the house. Om Prakash (P.W. 3), the son of the complainant finding an opportunity
escaped from his house and raised an alarm in the village. The dacoits started looting the property
of the complainant and in the course of committing dacoity they were entering into and going out of
the house. The residents of village assembled with torches and lathis and started pelting brick-bats
on the dacoits. One of them namely Naubat (deceased) climbed over the roof of Dal Singh and
started throwing brick bats at the dacoits. Whereupon the dacoit, who was on the roof of the house
of the complainant, fired a shot at him killing him outright. Budhpal set fire to the Puwal (paddy
straw) heaped there which produced a flood of light. After committing dacoity which lasted about
20- 25 minutes, the dacoits fled away towards north. In the course of dacoity complainant's mother
Tirka, father of Malkhan and wife Dev Kuar received injuries. The residents of the village who had
assembled at the time of dacoity included Ishwari (P.W. 2), Sarnam, Ram Chander, Budhpal,
Sardar and Kanhai etc. Except Budhpal all of them were carrying torches and lathis. It is claimed
that in the light of torches, fire and lantern the witnesses succeeded in identifying the accused Ram
Chander and Dwarika as they were the residents of the same village. The other dacoits were not
known to them but it was claimed that the witnesses had noticed their facial image in the light.
8 All. Chhotey Shah Vs State
1011
6. After the retreat of the dacoits, the dead body of Naubat was brought down from the roof
of Budhpal and was kept in front of complainant's Baithak on a cot. The complainant could not
proceed to the police station in the night out of fear. His son Om Prakash scribed the report (ext Ka
1) on his dictation and thereafter the complainant took it to the police station Dataganj where he
lodged the report at 6.10 hours on the following morning. A list of looted articles including Radio,
cash, ornaments, utensils and clothes was given along with the FIR. The looted utensils viz. Batuya,
Thali, Lota and a Glass was allegedly recovered from the co- accused Jeetendra Pal Singh.

7. On the basis of the written report (Ext. Ka-1) a formal F.I.R. (Ext. Ka-14) was prepared
by Azhar Husain head constable (P.W. 7) and a case under section 396 I.P.C. was registered against
the accused Ram Chander, Dwarika and 8-9 unknown persons vide G.D. (Ext. Ka.15).

8. Sri Soran Singh, S.O. Dataganj (P.W.8) started the investigation and he recorded the
statement of the complainant at the police station and proceeded to the place of the occurrence
where he made an inquest on the dead body of Naubat, prepared inquest report (Ext. Ka-9), photo
of the dead body (Ext. Ka-7), challan (Ext. Ka.11), sample seal (Ext. Ka-10) and sent the dead body
for post-mortem through constables Rameshwar Dayal and V.C. Shivlal. He recovered one Towel
from the head of the dead body of Naubat and prepared its memo (Ext. Ka-18). He inspected the
lantern of the complainant and torches of the witnesses in the light of which they claimed to have
identified the dacoits and returned them in their supardagi vide memo (Ext. Ka-2). He prepared the
site-plan (Ext. Ka-19) of the place of occurrence. He recovered nine empty cartridges (Ext. 4) from
the roof of the complainant under a memo (Ext. Ka-20). He recovered blood stained earth from the
roof of Budhpal and Dal Singh (Ext. 6 and 7) and unstained earth (Ext. 8 and 9), kept it in separate
sealed container under a memo (Ext. Ka-21). He recovered ashes from the khandahar of Budhpal
Singh, took its sample (Ext. 10) under a memo (Ext Ka 22). Three pairs of shoes (Ext. 11) and one
cap (Ext. 12) left behind by the dacoits were also recovered by him from the house of the
complainant under a memo (Ext. Ka-23).

9. On a tip off by a Mukhbir Khas 14.1.1981 the S.O. Proceeded from the police station,
collected witnesses Sita Ram (P.W. 4) and Radhey Shiam (P.W.5 ) from the bus stand and reached
the out-skirts of village Gangola near Dharamshala where he found accused Jitendra Pal Singh,
sitting on the foot-path. The accused tried to run away but he was chased by the police men and the
witnesses and was apprehended at a short distance of 50 paces on the main road. It is alleged that
one bundle containing Thali (Ext 1), Gilas (Ext. 2) and Lota (Ext. 3) were recovered from his
possession. It was suspected to be the property looted in the course of dacoity in question. It was,
therefore, seized by the S.O. under a memo (Ext. Ka 12) and sealed at the spot. The S.O. prepared
the site plan (Ext. Ka-24) of the place of recovery. He sent a report for identification of the
recovered property. The identification was held on 27.03.1981 wherein the complainant and his
family members identified (Ext. 1 to 3) as belonging to them which was looted in the course of the
same dacoity.

10. Accused Dwarika was arrested on 19.1.1981 by S.I. Din Dayal Saroj. Accused Ram
Chander surrendered in court.
1012 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Accused Chhotey surrendered in court on 7.2.1981. The I.O. sent a report on 23.2.1981
for keeping him bapurda He was put to test identification in Budaun jail on 27.3.1981 wherein he
was correctly identified by all the six witnesses.

12. After necessary investigation the Investigating Officer submitted charge-sheet (Ext. Ka25) against all the four accused persons under sections 396 and 412 I.P.C. As the case was
exclusively triable by the court of Sessions the learned Magistrate committed the case to the court
of Session.

13. The accused were all charged of the offence under section 396 I.P.C. Co-accused
Jitendra Pal Singh was charged alternatively for the offence punishable under section 412 I.P.C.
The accused pleaded not guilty to the charges framed against them. They denied their participation
in the offence and attributed their prosecution to enmity. According to co-accused Ram Chander
and Dwarika who were named in the F.I.R., they had enmity with the complainant and the
prosecution witnesses on the issue of fishing from the tank. Proceedings were also drawn under
sections 107/117 Cr. P. C. between them on account of that dispute. They have filed certified copy
of the chalani report under section 107 Cr. P. C. (Ext. Kha-1 and kha-2) in their defence.

14. Accused Chhote Shah has pleaded that he has been falsely implicated due to village
rivalry. He had surrendered in the Court of Judicial Magistrate in an another case under section 25
Arms Act. He used to come to the court without Parda and was shown to the prosecution witnesses
by the police on 27.2.1981. The accused has filed a certified copy of the order sheet of the case
against him under section 25 Arms Act (Ext. Kha-3) and has examined Liakat (D.W. 1) to show
that he was known to the prosecution witnesses from before.

15. Accused Jitendra Pal Singh has claimed that the property recovered from him was his.
He was not arrested on the road but the property was recovered from his house falsely showing it to
be the looted property of the complainant due to his enmity with Soran Singh, S.I., who harboured
ill will against him because his (Jeetendra Pal Singh) brother Sukhpal was acquitted in a case
wherein he was falsely implicated in a murder case under the pressure of the village's carpenters.
The accused has examined Suleman (D.W. 2) in proof of his allegation that recovery of (Ext. 1 to
3) was effected by the S.I. from house search.

16. The prosecution produced in all 8 witnesses in the Court. Of these Lakhan (P.W. 1),
Ishwari (P.W. 2) and Om Prakash (P.W. 3) are the witnesses of fact. They claimed to have
identified the accused Ram Chandra and Dwarika during the course of dacoity and also identified
the accused Chhotey Shah in jail.

17. Sita Ram (P.W. 4) and Radhey Shiam (P.W. 5) are witnesses of the alleged recovery of
(Ext. 1 to 3) from the possession of accused Jitendra Pal Singh on 14.1.1981.

18. Dr. A.K. Malpani (P.W.6) conducted post-mortem of deceased Naubat on 17.12.1980.
He has proved (Ext. Ka-13) as post-mortem report prepared by him.
8 All. Chhotey Shah Vs State
1013
19. Azhar Husain (P.W.7) is head constable of police station Dataganj who has proved the
F.I.R. (Ext. Ka-14) prepared on the basis of the written report (Ext. Ka-1) and the G.D. entry (Ext.
Ka-15). He has also proved G.D. (Ext. Ka 16) dated 14.1.1981 on the arrest of accused Jitendra.
Exhibit Ka-17 was proved being the G.D. entry of 19.1.1981 made at 18.05 hours in respect of the
arrest of accused Dwarika.

20. Soran Singh (P.W. 8) is S.O. Dataganj who investigated the case. He has proved (Ext.
Ka-7 to Ka-11) as the documents prepared by him on the inquest of deceased Naubat. Exhibit Ka12 has been proved to be the recovery memo of (Ext. 1 to 3) from the possession of accused
Jitendra. Exhibit Ka-18, Ka-20 to Ka-24 have been proved to be Fards of the various articles
recovered by him from the spot of the occurrence. Exhibit Ka-19-site plan was proved and prepared
by him of the place of occurrence and Ext. 24 is the site-plan prepared by him of the place of
recovery from accused Jitendra. Exhibit Ka-25 has been proved to be the charge-sheet submitted by
him against the accused persons. Exhibit Ka-27 is the report dated 23.2.1981 sent by him for
keeping accused Chhotey bapurda.

21. The genuineness of the injury reports of Smt. Kitka (Ext. Ka-3), Smt. Dev Kumar (Ext.
Ka-4) and Malkhan (Ext. Ka-5) has been admitted by the learned counsel for the accused. The
genuineness of the post-mortem report of Naubat (Ext. Ka-6) has also been admitted by the learned
defence counsel. The genuineness of the identification memo of the recovered property (Ext. Ka13) and the genuineness of the identification memo of accused Chhotey (Ext. Ka-26) has also been
admitted by the learned counsel for the accused.

22. The Trial court after hearing the learned counsel for the parties and going through the
record found that the prosecution has fully succeeded in bringing home the charges against the
appellants beyond reasonable doubt and vide impugned judgment and order dated 15.12.1982
convicted and sentenced the accused appellants, hence the present appeal.

23. Mr. Mohd. Waseem, learned counsel for the appellant has submitted that the appellant
namely Chhotey Shah had surrendered before the Court below on 06.02.1981 in an another case
under Section 25 Arms Act. He further submitted that the alleged incident had occurred on
15/16.12.1980 at about 00.30 hours and the appellant Chhotey Shah surrendered before the Court
below on 06.02.1981 but the test identification parade was conducted on 27.03.1981, as such, there
was an inordinate delay in conducting the test identification parade. It was further submitted that
the appellant was neither named in the first information report nor any recovery whatsoever was
made from his possession. It was further submitted that the appellant was known earlier to the
informant side as his maternal aunt (Mausi) was residing in the village in question and he used to
visit the village quite often. In support of his submission, he has placed reliance upon the testimony
of the D.W. 1 Liyaqat. He further submitted that the alleged recovery was made from the coaccused namely Jeetendra Pal Singh who was acquitted from all the charges levelled against him
including under Section 412 IPC by the impugned judgment as the recovery was found by the trial
to be false. It was further submitted that the incident had occurred in the pitch dark winter night of
15/16.12.1980 and despite the fact that there was no sufficient light, the witnesses claim to have
1014 INDIAN LAW REPORTS ALLAHABAD SERIES

identified the accused persons from a distance. It was further submitted that the informant namely
Lakhan despite being the head of the family did not suffer any injury while the other family
members including old father, daughter and wife suffered several injuries. He further submitted that
the site plan was prepared by the Investigating Officer on his own as the informant and other
witnesses have specifically stated that the site plan was not prepared in their presence or under their
instructions. It was further submitted that the site plan does not mention the place where the P.W.2 -
Ishwari had hidden himself and witnessed the incident. Neither any brick bats, which were alleged
to have been pelted by the villagers at the accused persons, were recovered from the spot nor any
Fard of it was prepared. It was further submitted that the appellant had surrendered himself before
the Court below on 06.02.1981 in connection with some other case under Section 25 Arms Act and
thereafter during the course of remand he was produced before the Judicial Magistrate and was
shown to the witnesses, as such, the test identification was nothing but a farce. In the test
identification parade he was identified by all the six witnesses. He further submitted that brick bats
were allegedly pelted the deceased Naubat from the terrace of Dal Singh but the alleged body was
recovered from the terrace of Budhpal and no explanation has been given by the prosecution as to
how the blood was found from the two terraces although they did not form one continuous space.
He further submitted that in order to show that there was sufficient light, the prosecution has set up
a story that in the Khandahar of Budhpal Singh situated around 20-30 paces away from the place of
incident, they set fire to Puwal (paddy straw) which produced a flood of light enabling them to
identify the dacoits, who were standing on the terrace of the house in question. He further submitted
that the appellant has been implicated falsely due to village party bandi. He further submitted that
the prosecution has failed to show the starting point as to how they could able to know that the
appellant was involved in the commission of the present offence.

24. Per contra, Shri Ram Yash Pandey, learned AGA appearing on behalf of the State has
supported the impugned judgment and submitted that the Court below has given a cogent,
convincing and satisfactory reasons while convicting the appellant. He further submitted that the
appellant has been identified by all the witnesses and the name of the appellant Chhotey Shah came
into light in the confessional statement of the co-accused Jeetendra Pal Singh from whom the
alleged recovery was made.

25. Heard Mohd. Waseem, learned counsel for the appellant, Shri Ram Yash Pandey,
learned AGA appearing on behalf of the State and perused the material available on record.

26. The Court below by impugned judgment dated 21.12.1982 has convicted the appellants
Chhotey Shah, Ram Chandra and Dwarika under Section 396 IPC, however the co-accused
Jeetendra Pal Singh from whose possession the recovery was made, has been acquitted from the
charges under Section 396 IPC as well as under Section 412 IPC, as such, the alleged recovery of
some utensils from his possession was found to be false and fabricated and as such his (Jeetendra
Pal Singh) confessional statement disclosing the name of the appellant also falls to the ground.

27. The incident is said to have been occurred in the midnight of 15/16.12.1980.
Admittedly the appellant Chhotey Shah was not named in the first information report, however
8 All. Chhotey Shah Vs State
1015
other co-accused namely Ram Chandra and Dwarika were specifically named in the FIR as they
belong to the same village Diyori, where the incident had occurred. In the said incident, one Naubat
Ram, who belongs to the same village died and three inmates also suffered injuries, however the
informant, the head of the family, did not receive even a scratch during the course of dacoity.

28. The incident had occurred in the mid night of 15/16.12.1980 and the appellant Chhotey
Shah surrendered before the Court below on 06.02.1981 and yet the test identification parade was
conducted on 27.03.1981.

29. According to the prosecution story, one lantern was burning inside the house at the time
when the dacoity was committed and the informant and other witnesses could able to see the
miscreants in the light of torch as well in the light produced by the fire set to Puwal (paddy straw).

30. Now the question remains to be determined as to whether the light available on the spot
was sufficient to identify the accused persons including the appellant as the dacoity was committed
in the pitch dark winter night of 15/16.12.1980. It must also be borne in mind that in the year 1980
there was no concept of global warming and mid December month used to very cold. There were
three sources of light set out by the prosecution. One was the light of lantern hanging inside the
house in the verandah. Another was the light that emanated from the Puwal (paddy straw), when it
was set on fire at the Khandahar of Budhpal during the course of dacoity and the third source of the
light was the torches flashed by the villagers. The material available on record shows that around
10-12 dacoits had barged in to the house of the informant to commit dacoity and as soon as the
dacoits entered into his house, he took out his torch and flashed the torch light at them. No enquiry
was made as to whether the alleged light available on the spot was sufficient to enable the witnesses
to identify the dacoits from a distance.

31. It is worth noting at this stage that the informant and the inmates of the house must be
terrified and intimidated after seeing so many dacoits raiding the house and therefore would not
have been in proper frame of mind at the relevant time to flash torch light at the accused persons,
who were around 10-12 in number. It may also be noted that charge sheet was filed only against
five persons and three out of them were shown to be the resident of the village in question. Coaccused Ram Chandra and Dwarika , who belong to the same village where the dacoity was
committed admittedly had enmity with the informant side as Criminal case under Sections 107/117
Cr.P.C was pending between them. In these circumstances, it was highly improbable that the
residents of the same village without concealing their identity or covering their faces would commit
dacoity in the house of the informant and the same analogy goes with the appellant Chhotey Shah
also, who was also the resident of the adjoining village and according to D.W. 1- Liyaqat, he, being
a wrestler (Pahalwan), used to visit the village in question quite frequently to participate in the
Dangal organized in the village in question.

32. It may also be noted that there are material contradictions and inconsistencies in the
evidence of the alleged eye witnesses with regard to the fact whether the accused persons were
covering their faces or not. According to P.W. 1- Lakhan Ram, during the course of dacoity, dhatas
1016 INDIAN LAW REPORTS ALLAHABAD SERIES

of dacoits had opened automatically one after the other, however other witnesses P.W. 2 and P.W. 3
have specifically stated that none of them were concealing their identity or covering their faces,
therefore, in the present circumstances it is most improbable that the accused persons would not
have been covering their faces during the course of dacoity.

33. The story set up by the prosecution that the heap of Puwal was set on fire, does not
inspire us. If at all the Puwal was set on fire, the question is as to how long had it lasted and
whether the light produced by it was sufficient to enable the witnesses to recognize the dacoits from
such a long distance. Thus, we are of the view that since the alleged dacoity was committed in the
pitch dark winter night in the month of December and in view of the evidence on record the light
available during occurrence was not sufficient for the identification of the real culprits.

34. There is one another important aspect which goes to the root of the matter. The incident
had occurred on 15/16.12.1980 and the test identification parade was conducted on 27.03.1981.
Thus the test identification parade was conducted nearly after 100 days from the date of incident
and 51 days from the date of surrender as the appellant had surrendered on 06.02.1981 before the
Court. Holding identification parade after lapse of such a long time creates doubt. No justification
has been given by the prosecution for such an inordinate delay.It is difficult to conceive that after
such a long time the witnesses would be remembering facial image and profile of the accused
persons.
In this regard, we are fortified by the decision of the Apex Court in the cases of
Iqbal Vs. State of U.P. (2015) 6 SCC 623, Budh Sen Vs. State of U.P. (1970) 2 SC C 128, Soni
Vs. State of U.P. (1982) 3 SCC 368 and Subhash and Shiv Shankar Vs. State of U.P. (1987) 3
SCC 331.

35. The test identification report also indicates that all the six persons, who were called for
identification had identified the appellant. Thus there was 100% identification. This also creates
suspicion about the veracity of the prosecution story. It is difficult to comprehend as to how all the
six witnesses would correctly identify the appellant who had allegedly seen him in the pitch dark
winter night from a distance after more than three months.

36. At this stage, it would also be relevant to refer to the testimony of the P.W. 8 Soran
Singh, the Investigating Officer. According to him, the site plan was prepared in the presence of the
informant and the witnesses. In the present case only three witnesses of fact have been produced
before the Court below i.e. P.W. 1-Lakhan Ram (informant), P.W. 2- Ishwari (one of the villager)
and P.W. 3- Om Prakash (son of the informant). All these three witnesses have categorically stated
that the site plan was not prepared in their presence, as such, their deposition completely belied the
evidence of the P.W.8- Investigating Officer that it was prepared in the presence of the P.W 1, P.W.
2 and P.W. 3. Perusal of the statement of the P.W. 8 Investigating Officer further shows that it
suffers from a number of deficiencies. The brick bats, which were pelted by the villagers at the
house of the informant has not been shown in the site plan nor any Fard of the said brick bats have
been prepared. The report of the Forensic Lab has not been placed with regard to the blood which
was collected from the terrace of Budhpal and Dal Singh. No effort was made to connect three pairs
8 All. Chhotey Shah Vs State
1017
of shoes and cap, which were allegedly recovered from the spot. In this reference, the extract of the
statement of P.W. 8 is quoted herein below:-

^^11- oknh o xokgku dh fu'kknsgh ij eSaus ekSdk eqvkbuk fd;k FkkA tgkWa ls xokgku us ?kVuk ns[kh og
txg uD'kk esa ugha fn[kkbZ gSA bZ'ojh ds c;ku esa ugha fy[kk gS fd mlus ogkWa [kMs gksdj ?kVuk ns[khA eSaus oknh ds ?kj esa
ykyVSu [kqn Vaxh ugha ns[kh A cfYd 1⁄411⁄2 LFkku ij xokgku us ykyVSu dk tyuk crk;k FkkA oknh ds edku ds nfD[ku
rjQ okys dejks esa ykyVSu dk gksuk ugha ekywe iM+kA

12- uD'ks esa vkse izdk'k ds lksus dk LFkku ugha fn[kk;k gS u ;g fn[kk;k gS fd mlus ?kVuk ogkWa ls
ns[khA yk[ku us ?kVuk ds le; ?kj esa gksuk crk;k uD'kk esa ugha fn[kk;k gSA xokgku yk[ku] bZ'ojh o vkse izdk'k us
eqyteku jke pUnz o }kjdk ds gkFk esa reapk o cUnwd gksus dh ckr ugha crkbZA

15- uD'ks esa lqyseku dk edku ugha fn[kk;kA u fdlh edku ds Njjs ds fu'kku ik;sA ;g xyr gS fd
lqyseku dk edku o mlesa yxs Njjs eqdnesa dh ?kVuk LFky ls esy ugha [kkrs Fks blfy, mudks uD'ks esa u fn[kk;k gksA**

37. In Paragraph 18 of his testimony P.W. 1 Lakhan Ram has categorically stated that the
site plan was not prepared in his presence. The said paragraph 18 is quoted herein below:-

^^18- ;g eSaus ugha ns[kk fd xokgku us dgkWa ls ?kVuk ns[khA esjs lkeus njksxk th dks fdlh us ugha
crk;k fd ogka ls ?kVuk ns[kh esjs lkeus njksxk th us uD'kk ugha cuk;kA ;g xyr gS fd ?kVuk ds le; dksbZ vkx ;k
ykyVSu ugha ty jgh gks o njksxk th us vkx o ykyVSu cuk nh gksA

38. It is also notable that Rohan Lal and Suleman witnesses of Ext. Ka 18 Ext. ka 20-
empty cartridge of tikli, Ext. Ka 21- Blood stained soil, Ext. Ka 22- Ashes of burnt puwal and Ext.
Ka 23- Shoes and cap were not produced before the Trial Court to prove the aforesaid recovery
from the spot. It was also not explained as to how the P.W. 1 Lakhan who was in the ground floor
of his house could able to see or recognize the appellant who was alleged to be present on the
terrace. It also appears to be very improbable that dacoits would intimidate and cause injuries to the
family members of the informant alone in order to extract information about the valuables and
would spare the informant (who was the head of the family) and not cause even a scratch upon his
body although he allegedly remained in the house during the course of the alleged dacoity.

39. The testimony of P.W. 2 also appears to be concocted. P.W. 2 tried to implicate the coaccused Jeetendra Pal Singh, who was also the resident of the same village and from whom the
false recovery was made by the police. According to the P.W. 2 Jeetendra Pal Singh was also
involved in committing dacoity and despite the fact that he knew him from before neither his name
was mentioned in the FIR nor in the statement of P.W. 2 recorded under Section 161 Cr.P.C. False
recovery was shown from the possession of the co-accused Jeetendra Pal Singh. As a result, the
Court below disbelieved the factum of recovery and recorded a categorical finding that the coaccused Jeetendra Pal Singh was not at all involved in the commission of the offence. The relevant
paragraphs 41 to 46 of the impugned judgment are quoted herein below:-

"41. Accused Jeetendra Pal Singh is resident of the same village Diyori where
the dacoity took place. He is not named in the FIR. Ishwari (PW2) has stated that he saw him
1018 INDIAN LAW REPORTS ALLAHABAD SERIES

amongst the dacoits but no other witness has corroborated him. Even Ishwari (PW 2) did not
name him in his statement under Section 161 Cr.P.C., hence it can not be concluded that any
prosecution witness could identify him amongst the dacoits at the time of dacoity.

42. The only evidence against the accused is that of recovery of one Thali
(Ext.1), one Gilas (Ext. 2) and one Lota (3) which is alleged to be looted property, the
possession of which was transferred through the commission of this dacoity. The recovery is
alleged to have been made by the investigating officer on 14.01.1981 ie after about a month of
the dacoity. According to the investigating officer (Soron Singh P.W. 8) the accused was
apprehended by him in the outskirts of village Gangola on the mettled road near the
Dharmshala at about 3.45 PM of 14.01.1981 when the recovery of (Ext. 1 to 3) was made from
his possession in the presence of Sita Ram (PW 4) and Radhey Shiam (P.W. 5).

43. The accused does not deny the recovery of (Ext 1 to 3) from his possession.
But according to him this recovery was made by the Investigating Officer from his house by
house search. Suleman (D.W. 2) has been produced in support of the defence plea that the
recovery was made by the S.O from the house search of the accused.

44. Whatever might have been the mode of the recovery of (Ext. 1 to 3), it
remains admitted on the part of the accused as well the ext. 1 to 3 belong to him and these
were recovered from his possession by the investigating officer.

45. It has only to be seen if (Ext. 1 to 3) were stolen property having been
stolen in the course of this dacoity. In the FIR (Ext Ka-1) at serial numbers 20,21 and 22 one
Lota, one Thali and Gilas are included in the list of the stolen property along with their
weight and value. No other description has been given. According to the complainant as well
as the Investigating Officer, no other description of the stolen property was given by the
witnesses in the course of his statement under Section 161 Cr.P.C. But both Lakhan (PW 1)
and Om Prakash (PW 3) identified (Ext. 1 to 3) as theirs in the course of the identification
proceedings held on 27.03.1981 helf by Shri V.P. Singh, Executive Magistrate. The
genuineness of the identification memo (Ext. Ka 13) has been admitted by the learned counsel
for the accused.

46. It is also admitted by all the prosecution witnesses as well as by the
Investigating Officer tht utensils of the type of (Ext. 1 to 3) are very common which can be
found in most of the houses. It is also admitted by the complainant as well as his son Om
Prakash that there was no distinguishable mark on any of these utensils which are in common
use of every house. Under these circumstances it cannot be definitely held with all certainty
that (Ext. 1 to 3) were stolen property looted in the course of this dacoity. These are minimum
requirements of a house hold. It is not at all surprising if these minimum requirements were
recovered from the possession of the accused either from his house as alleged by the accused
or on the road as alleged by the prosecution. There is also nothing to show that accused
Jitendra retained this property knowing or having reason to believe the same to be stolen
8 All. Chhotey Shah Vs State
1019
property the possession of which was transferred through the commission of dacoity. Accused
Jitendra, therefore, cannot be held guilty of the offence under Section 412 Cr.P.C also and he
deserves his acquittal. "

40. It is further submitted that the Investigating Officer of the case has completely failed to
show as to how and on what basis he has picked up the accused appellant in the present case. It is
also notable that Jeetendra Pal Singh from whom the alleged recovery was shown and had disclosed
the name of the appellant has been acquitted by the Court below while recording a categorical
finding that the alleged recovery made from him was false and fabricated. In view of the above, the
story set up by the prosecution that the name of the appellant was disclosed by the co-accused
Jeetendra Pal Singh falls to the ground.

41. In the case of Iqbal Vs. State of U.P. (Supra), the Apex Court in paragraphs 5, 11, 15
and 16 has held as follows:

"5. Learned counsel for the appellants contended that at the time of incident,
it was pitch dark and it would have been highly improbable for the witnesses to identify the
dacoits with flash of torches. It was further submitted that PW1-Patia Singh had given an
exhaustive list of more than fifty valuable items which had been stolen, but except three
kilograms of ghee in a clay pot, nothing was recovered from the appellants and in the absence
of substantive evidence corroborating the identification, the courts below ought not to have
convicted the appellants. It was also submitted that the appellants have no criminal
antecedents to commit such heinous crime.

38. 11. In our considered view, it is unbelievable that on a new moon night
when it was pitch dark, the witnesses who were frightened and who were hiding themselves
behind the walls in order to save themselves, could have seen actual faces of the accused
persons just by flash of torch lights on their faces and in the light of lantern. Further, there
were about 14-15 dacoits in number, all armed with deadly weapons and were continuously
making ingress and egress in the house of the deceased, it becomes inconceivable as to how
the witnesses standing at a distance in a feeble light would have been able to identify the
dacoits.

15. Evidence of identification of the miscreants in the test identification parade
is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits
by the witnesses in the test identification parade. The prosecution has to adduce substantive
evidence by establishing incriminating evidence connecting the accused with the crime, like
recovery of articles which are the subject matter of dacoity and the alleged weapons used in
the commission of the offence.

16. It is pertinent to note that in the present case no recovery of articles which
are the subject of dacoity was made from the appellants or other non-appealing accused
persons. In his complaint, PW1 gave a list enumerating fifty expensive items, such as gold
1020 INDIAN LAW REPORTS ALLAHABAD SERIES

jewellery, silver articles, sarees and clothes and also cash. As per the recovery memo, what
was recovered was just three kilograms of ghee in a clay pot. In his deposition, PW8-Nepal
Singh (investigating officer) has stated that at the instance of Kripa, he had recovered a
''chaptaghu' and an ''attire'. However, in the recovery memo, only three kilogram of ghee is
mentioned which is said to have been recovered on the disclosure statement of accused Kripa.
From the appellants as well as from the non -appealing accused persons, not a single item of
valuable out of the whole list of stolen articles was recovered. It is quite unbelievable that
within a short span of time i.e. from 21.09.1979 (date of incident) to 9.10.1979 (date of arrest),
the accused would have converted or sold out all the valuable items. Even if we accept that
they had done so, the prosecution ought to have adduced evidence as to how and in what
manner the articles which were the subject matter of dacoity were either disposed of or
converted. Murder and robbery were part of the same transaction. Consequent upon the
disclosure statement, only three kilograms of ghee was recovered."

42. In the present case also no recovery whatsoever has been made from the possession of
the appellant and in fact there was no starting point giving any clue to the Investigating Officer to
show the complicity of the appellant in the commission of the alleged offence. In the present case
also the alleged incident had occurred in the pitch dark winter night and the witnesses P.W. 2 and
P.W. 3 were standing quite far away from the place of occurrence and it becomes inconceivable as
to how they would have identified the dacoits in a feeble light. The prosecution has to adduce
substantive evidence by establishing incriminating evidence connecting the accused with the crime,
like recovery of articles which are the subject matter of dacoity and the alleged weapons used in the
commission of the offence. In view of the evidence on the record, it is apparent that available light
during occurrence was insufficient for the identification of real culprits.

43. The test identification parade was conducted after more than three months and no
explanation has been offered with regard to such inordinate delay. In the circumstances, there were
chances that the accused appellant was shown to the identifying witnesses prior to identification
parade and during pendency of the trial. The natural possibility of gathering false impressions of the
accused appellant by the identifying witnesses after such a long gap cannot be ruled out. No serious
effort was made by the Investigating Officer to recover the looted property except few utensils from
the co-accused Jeetendra Pal Singh, which too was held by the Court below to be false and
fabricated while acquitting the co-accused Jeetendra Pal Singh.

44. In the above context it will be useful to refer to a decision of the Apex Court in the case
of Soni Vs. State of U.P. (Supra) wherein in paragraph 2 it was held as follows:-

"After hearing counsel on either side we are satisfied that the conviction of the
appellant for the offence of dacoity is difficult to sustain. The conviction rests purely upon his
identification by five witnesses, Smt.