# Daya Ram Pasi v. State of U.P

- **Citation:** (2023) 9 ILRA 636
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-06
- **Case number:** Criminal Appeal No. 586 of 2003
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-ram-pasi-v-state-of-u-p-50720
- **Pages:** 6

## Headnote

A. Criminal Law-Criminal Procedure
Code,1973-Section 374(2) - Indian
Penal Code, 1860-Sections 395 & 397Challenge to-Conviction- P.W.1, P.W.2,
P.W.3 and P.W.4 who are witnesses of
the
fact
have
given
consistent
statements
that
on
that
day,
an
incident of dacoity took place in their
houses- P.W.1 and P.W.2 have not said
anything
with
regard
to
the
involvement of the present appellant
in the commission of dacoity-P.W.3 has
identified the accused in the open
Court likewise P.W.4 has specifically
said that the accused, who is present
in the Court, was the person who had
committed dacoity in his own house
and
neighbourhood-a
test
identification parade was conducted in
District
Jail
where
both
correctly
identified
the
accused-defence
contended
that
the
identification
parade has been carried out after a
gap of a number of months and that it
is not possible to retain the memory of
face for such a long period,therefore
the evidence of the prosecution cannot
be relied upon but there were sources
of light to sufficiently see their facesMore so,when some incident of intense
nature takes place, the victim may
retain its vivid memory life long- Thus,
The identification of the accused in the
open Court is a substantive evidenceThe conduct of identification parade
during the investigation, though a very
important piece of evidence has, at the
most, a corroborative value-There is
nothing to suggest that there was any
cause for them to falsely implicate the
accused- The accused was not named
in the F.I.R and he is a resident of
another village-There is not even a
suggestion of having any previous
enmity or any reason which could have
prompted the witnesses to identify
falsely the accused as one of the
dacoits or to doubt the identification
evidence given by the prosecution-
Hence,The
learned
trial
court
has
elaborately dealt with the evidence
produced by the prosecution and took
up all the arguments advanced on
behalf of the defence systematically
and found the charges as having been
proved beyond reasonable doubt. (Para
1 to 19)

The appeal is dismissed. (E-6)
9 All. Daya Ram Pasi Vs. State of U.P.
637
List of Cases cited:

## Text

636 INDIAN LAW REPORTS ALLAHABAD SERIES
sentenced the accused persons without any
basis. Hence, the appeal is liable to be
allowed.

54. Accordingly, the appeal succeeds
and is allowed.

55. The impugned judgment and order
of
conviction
and
sentencing
dated
01.10.1999 passed by the Special Judge
(EC
Act)/Additional
Sessions
Judge,
Barabanki
is
hereby
quashed.
The
surviving accused be set free immediately,
if he is in jail and if he is not wanted in any
other criminal case.

56. The lower court record alongwith
a copy of this judgment be sent back to the
court concerned for its consignment and
necessary compliance.
----------
(2023) 9 ILRA 636
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Appeal No. 586 of 2003

Daya Ram Pasi ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Nisha Srivastava

Counsel for the Opposite Party:
G.A.

A. Criminal Law-Criminal Procedure
Code,1973-Section 374(2) - Indian
Penal Code, 1860-Sections 395 & 397Challenge to-Conviction- P.W.1, P.W.2,
P.W.3 and P.W.4 who are witnesses of
the
fact
have
given
consistent
statements
that
on
that
day,
an
incident of dacoity took place in their
houses- P.W.1 and P.W.2 have not said
anything
with
regard
to
the
involvement of the present appellant
in the commission of dacoity-P.W.3 has
identified the accused in the open
Court likewise P.W.4 has specifically
said that the accused, who is present
in the Court, was the person who had
committed dacoity in his own house
and
neighbourhood-a
test
identification parade was conducted in
District
Jail
where
both
correctly
identified
the
accused-defence
contended
that
the
identification
parade has been carried out after a
gap of a number of months and that it
is not possible to retain the memory of
face for such a long period,therefore
the evidence of the prosecution cannot
be relied upon but there were sources
of light to sufficiently see their facesMore so,when some incident of intense
nature takes place, the victim may
retain its vivid memory life long- Thus,
The identification of the accused in the
open Court is a substantive evidenceThe conduct of identification parade
during the investigation, though a very
important piece of evidence has, at the
most, a corroborative value-There is
nothing to suggest that there was any
cause for them to falsely implicate the
accused- The accused was not named
in the F.I.R and he is a resident of
another village-There is not even a
suggestion of having any previous
enmity or any reason which could have
prompted the witnesses to identify
falsely the accused as one of the
dacoits or to doubt the identification
evidence given by the prosecution-
Hence,The
learned
trial
court
has
elaborately dealt with the evidence
produced by the prosecution and took
up all the arguments advanced on
behalf of the defence systematically
and found the charges as having been
proved beyond reasonable doubt. (Para
1 to 19)

The appeal is dismissed. (E-6)
9 All. Daya Ram Pasi Vs. State of U.P.
637
List of Cases cited:

1. Sampat Tatiya Shinde Vs St. of Mah. (1974)
SCC Cri 382

2. Surendra Narayan @ Munna Pandey Vs St. of
U.P. (1998) SC Crl. Rul. 508

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Smt. Nisha Srivastava,
learned counsel for the appellant, Sri Yugal
Kishore, learned A.G.A. for the State and
perused the material brought on record.

2. By means of this criminal appeal,
the sole appellant- Daya Ram Pasi has
challenged the order dated 22.03.2008
passed by learned Additional Sessions
Judge, Court No.29, Barabanki in S.T.
No.192 of 1993 arising out of Case Crime
No.10 of 1991, under sections- 395/397
I.P.C., Police Station- Ram Nagar, District-
Barabanki, whereby the accused-appellant
has been convicted and sentenced for seven
years rigorous imprisonment with fine of
Rs.10,000/-.

3. T he facts relating to this appeal are
as below:-

* As per prosecution case, the
first informant- Bhai Lal, on the basis of
hand written tehrir, got lodged an F.I.R.
The tehrir said that the previous night at
about 1:00 a.m., some burglers, with the
help of a bamboo climbed over his roof and
intruded inside to commit theft. Hearing
some noise, his wife woke up and raised
alarm. The first informant tried to catch
hold of them, but they roughed him up with
the danda held by them; they were seven
persons. The first informant could see their
faces in the light of lantern; they also
thrashed his father-in-law, who was lying
in the veranda. They took away a number
of items made up of gold and silver (as
detailed in the tehrir). After committing
dacoity in his house, they entered in the
house of Maya Ram and Satguru, who
resided in his immediate neighbourhood.
The first informant, Maya Ram, Satguru,
Muneshwar Prasad, Hinsit Lal and a
number of co-villagers collected on their
raising alarm; all of them saw the dacoits
taking away their belongings. When the
villagers tried to follow them, they threw
grenades on them.

* On the basis of this written
report, an F.I.R. being Case Crime No.10
of 1991, under section- 459 I.P.C. was
registered and investigated upon; one of
the accused Daya Ram Pasi was chargesheeted by submitting a supplementary
charge-sheet under sections- 395 and 397
I.P.C.

* The Investigating Officer visited
the spot and prepared the site map,
separate seizure memos of taking into
possession the lantern, the torch, the
bamboo; collected the medical examination
reports of Ishwardeen, Bhai Lal and Arvind
Kumar; the suspected accused persons
were put to identification test in District
Jail, Barabanki and instant accused Daya
Ram Pasi was identified by the witnesses
and charge-sheeted.

* The accused was put to trial
and was convicted for the offence under
sections- 395 read with 397 I.P.C. and was
sentenced
to
seven
years
rigorous
imprisonment and a fine of Rs.10,000/-.
Now, the convict-appellant is before this
Court in this appeal.

4. Besides producing the prosecution
papers viz. photocopy of tehrir, copy of
638 INDIAN LAW REPORTS ALLAHABAD SERIES
identification test, chik F.I.R., charge-sheet,
site-map, the X-ray reports and the injury
reports, the prosecution examined P.W.1-
Rama Devi @ Phoolmati, P.W.2- Arvind
Kumar and P.W.4- Maya Ram as the eyewitnesses; P.W.3- Bhai Lal (the first
informant and the eye-witness), P.W.5- S.I.
Om Prakash (the Investigating Officer),
P.W.6- S.I. Raghunandan Prasad (the
Investigating Officer) and P.W.7- Dr.
Madan Lal.

5. Before I proceed to take the
contentions of the defence, it shall be
useful to briefly mention the oral testimony
given by the prosecution witnesses.

*
P.W.1-
Ram
Devi
@
Phoolmati has stated that she with her
children was sleeping on the roof. The
dacoits climbed over and asked her to open
the door. She refused to budge. They broke
upon the door and tried to manhandle and
drag her inside. She managed to extricate
herself and jumped on the ground. They
were five in all. They opened the main door
from inside. The dacoits who were standing
outside intruded. They assaulted her
husband; took away cash of Rs.800/-, the
silver and gold jewellery worth Rs.1 lakh;
initially his husband refused to tell them
about the place where jewellery etc. was
kept safe, but when they threatened to put
him on fire after pouring kerosene, her
husband disclosed the place and they
removed the jewellery. They were having
fire arms and hand grenades; she could not
recognize them because they were throwing
light on her face directly.

* P.W.2- Arvind Kumar has
said that he saw the dacoits committing
dacoity. He was spotted by them and they
threw hand grenades at him and he
sustained injuries by their explosion. He
could not recognize any of them.

* P.W.3- Bhai Lal (the first
informant) has supported the prosecution
story and the evidence given by his wife as
P.W.1, stating that the dacoits, after
climbing over his roof intruded inside.
They opened the main door and took him
as hostage. 5 or 6 persons were inside and a
few
were
outside.
They
physically
assaulted him and caused him injuries on
his head. They had threatened him to set
him ablaze by pouring kerosene and putting
him on fire. They looted jewellery worth
Rs.1 lakh, Rs.800/- cash and some other
things like quilt, mattress, blanket etc.

Most
important
evidence
regarding identification of the culprit has
been given by this witness. He said that a
test identification parade of suspect accused
persons was conducted. He identified one
of them Daya Ram Pasi correctly. This
witness identified accused Daya Ram Pasi
in open court and said that he was the
person who had committed dacoity and had
physically assaulted him causing him
injuries. That day three houses were looted.
The witness has also given evidence
regarding his medical examination and
hand written report of the incident given by
him.

* P.W.4- Maya Ram has said
that after committing dacoity in the
house of Bhai Lal, the dacoits entered
his house. By that time, he had whisked
away women and the children of the
house to a safer place. The witness has
further stated that the dacoits looted
property from his and his brother
Satguru's house. He could see their faces
in the light of torch.
9 All. Daya Ram Pasi Vs. State of U.P.
639

This witness has identified his
signatures on the identification test report
(Exhibit ka-1); he could identify one of the
culprits, who is present in the Court.

This
witness
most
importantly
identified the accused in open court and
said that he was the same who committed
dacoity in his house. He with his
companions had looted jewellery, clothes
and cash from his house.

* P.W.5- S.I. Om Prakash
Tripathi (the Investigating Officer) has
proved the charge-sheet.

* P.W.6- S.I. Raghunandan
Prasad
Kannaujia
(the
Investigating
Officer) has proved the prosecution papers
namely site map (Exhibit ka-4), the seizure
memo of lantern (Exhibit ka-5), the seizure
memo of bamboo (Exhibit ka-6); he has
stated
that
after
conduct
of
test
identification parade, he submitted chargesheet against certain accused persons,
thereafter the investigation was taken over
by S.I. Om Prakash Tripathi.

* P.W.7- Dr. Madan Lal has
proved the injury reports of injured namely
Ishwardeen, Bhai Lal and Arvind Kumar.
The doctor found that some of the injuries
were caused by some explosive substance
and some by blunt objects.

6. The accused-appellant Daya Ram
Pasi, in his statement recorded under
section-
313
Cr.P.C.,
denied
his
involvement in the incident; he stated that
the police had filed a wrong challan against
him. He, in answer to specific query raised
in the statement under section 313 Cr.P.C.,
stated that the witness Bhai Lal could
identify him in the test identification parade
because he was shown to the witness by the
police. He did not give any evidence in
defence.

7. From the papers on record, it
appears that a supplementary charge-sheet
was
filed
against
the
present
accused/appellant and that at that time the
investigation against a number of other
accused persons was still going on as they
could not be apprehended. Besides two
accused namely Keshan Yadav and Ram
Suresh Pasi were charge-sheeted earlier.

8. As far as the occurrence is
concerned, P.W.1- Ram Devi, P.W.2-
Arvind Kumar, P.W.3- Bhai Lal and
P.W.4- Maya Rama, who are witnesses of
the fact have given consistent statements
that on that day, after 12:00 midnight, a
number of dacoits first committed dacoity
in the house of Bhai Lal; they managed to
climb over the wall and reach the roof of
his house with the help of a bamboo pole;
they opened the door and looted the
property; they resorted to violence. It has
come in the evidence that they threatened
to set the first informant- Bhai Lal on fire.
He has stated that not only Bhai Lal was
beaten but his wife was also pulled by her
hand to facilitate opening of the door of her
house. The injury reports and the F.I.R.
sufficiently corroborate the fact that an
incident of dacoity took place. The bandits
were having fire arms and hand grenades;
they actually exploded the hand grenades to
deter the inmates of the house from
offering any resistance.

9. In my view, the prosecution has
been able to prove that an incident of
dacoity took place in the house of Bhai Lal,
Maya Ram and Satguru. The most
important question which remains to be
decided by this Court is whether the instant
appellant was one of the dacoits?
640 INDIAN LAW REPORTS ALLAHABAD SERIES

10. I perused the evidence given by
the witnesses in this regard; P.W.1 and
P.W.2 have not said anything with regard
to the involvement of the instant appellant
in the commission of dacoity. P.W.3 Bhai
Lal has identified the accused in the open
Court and said that he was the person who
committed dacoity in his house; likewise
P.W.4- Maya Ram has specifically said that
the accused, who is present in the Court,
was the person who had committed dacoity
in Bhai Lal and his own house.

11. In this case a test identification
parade was conducted in District Jail,
Barabanki on 02.12.1991 as per rules,
which is Exhibit ka-1. Witnesses Bhai Lal
and Maya Ram both correctly identified the
accused. Both had stated before the officer
concerned, at the test identification parade,
that he was one of the accused persons who
committed dacoity in their houses.

12. It is contended on behalf of the
defence that the identification parade has
been carried out after a gap of a number
of months and that it is not possible to
retain the memory of face for such a long
period. It has been further argued that the
accused was shown to the witnesses at
the police station itself, therefore the
evidence of the prosecution cannot be
relied upon.

13. I do not find any substance in the
aforesaid arguments for the reasons as
below:-

(i) Firstly, there were sources of
light to sufficiently see their faces.

(ii) It is a fact of common
knowledge when some incident of intense
nature takes place, the victim may retain its
vivid memory life long.

(iii) In his statement recorded
under section- 313 Cr.P.C., the accused has
claimed that his face was shown to first
informant Bhai Lal. No such claim has
been made as regards testimony given by
witness Maya Ram. It may be noted herein
that two specific questions were asked to
the accused in this regard during recording
of statement under section 313 Cr.P.C.; the
accused has not said that his face was
shown to P.W.4- Maya Ram as well. Both
the witnesses have said that he was the
person who committed dacoity in their
houses; they emphatically identified the
accused in the open court. The relevant
portion of the oral testimony is as below.

* P.W.3 has said that "वही डकैत इस
समय न्यायालय में उपस्थित दयाराम पासी है। इसी ने मुझे मारा पीटा
और मेरे घर में डकैती डाली िी। इसने मेरे घर से माल लूटा िा।"

* P.W.4 has said that "वही डकैत
न्यायालय में उपस्थित दयाराम है। इसी ने डकैती डाली िी। अस्िज्ञान
परीक्षण के थमरण पत्र प्रदर्श क-1 पर मेरा हथताक्षर है।"

(iv) Both the witnesses have
denied having been shown the face of the
accused before test identification parade
was carried out; the evidence given by both
the witnesses on this count is quite
emphatic and convincing.

14. The identification of the accused
in the open Court is a substantive evidence.
The conduct of identification parade during
the investigation, though a very important
piece of evidence has, at the most, a
corroborative value. There is nothing to
suggest that there was any cause for them
to falsely implicate the accused. The
accused was not named in the F.I.R. It may
be noted that the accused is a resident of
another village. There is not even a
suggestion of having any previous enmity
9 All. Kallu & Ors. Vs. State of U.P.
641
or any reason which could have prompted
the witnesses to identify falsely the accused
as one of the dacoits or to doubt the
identification
evidence
given
by
the
prosecution.

15. The evidence produced by
prosecution proves the fact that there were
more than five persons who committed the
dacoity. What was the fate of other persons,
whether they were apprehended, whether
they were put to trial, whether they were
acquitted has no bearing in the instant case.
The important thing is that there were more
than
five
persons
who
conjointly
committed the dacoity.

16. The learned trial court has
elaborately dealt with the evidence produced
by the prosecution and took up all the
arguments advanced on behalf of the defence
systematically and found the charges as
having been proved beyond reasonable
doubt. The learned trial court relied upon the
judgments of Supreme Court given in
Sampat
Tatiya
Shinde
vs.
State
of
Maharashtra, 1974 SCC (Criminal) 382 and
Surendra Narayan @ Munna Pandey vs.
State of U.P., 1998, SC Crl. Rul. 508 to
support the finding that the identification of
the accused during the recording of evidence
is substantive one and the conclusions drawn
or the result of identification proceeding has a
corroborative value only.

17. I agree with the opinion of the
trial court; the learned trial court has also
tested the regularity of identification
proceedings and found that it was carried
out as per the rules and regulations and
retained its corroborative value.

18. I do not find any infirmity in the
inference drawn by the trial court. The
judgment of the trial court is sound on facts
as well as law and there is no merit in
appeal.

19. Accordingly, this criminal appeal
is
dismissed.
Accused-appellant
shall
immediately surrender before the court
concerned to undergo remaining portion of
the sentence. The sureties are hereby
discharged from their liability.

20. Copy of this order shall be
immediately transmitted to the court
concerned for compliance.

21. A copy of the judgment be also
handed over to the accused/his counsel free
of cost immediately.

22. The court concerned shall transmit
a copy of the judgment to concerned
Superintendent of District Jail for handing
over the same to the accused when he is
taken into custody and is lodged therein.
----------
(2023) 9 ILRA 641
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Appeal No. 677 of 2002

Kallu & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Prem Shanker, R.N.S. Chauhan

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 374(2) - Indian Penal