# Kamlesh v. State of U.P

- **Citation:** (2021) 1 ILRA 336
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-19
- **Case number:** Criminal Appeal No. 181 of 1996
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-v-state-of-u-p-46769
- **Pages:** 12

## Headnote

A. Criminal Law - Indian Penal Code -
Section 392 & 397 - Robbery at Petrol
pump - Attempt to cause death or
grievous hurt - Test Identification Pared
(T.I.P.) - Accused not named in F.I.R. -
No
recovery
of
looted
property
-
Accused not known to the prosecution
witnesses - Cashier, Manager and Truck
Driver, who chased the accused, were
not produced as witness, though they
are important - None of the prosecution
witnesses has stated that he had seen
any
special
characteristics
or
appearance of any accused or any
identification marks of their faces -
Appellant is already acquitted under
Arms Act - T.I. Pared delayed by 15 days
- No explanation thereof - Held, the
prosecution has miserably
failed to
prove its case beyond reasonable doubt,
the appellant is entitled to be acquitted.
(Para 31, 33, 34, 36 and 37)
B. Evidence Law - Evidence Act, 1872 -
Section 9 - Test Identification Pared
(T.I.P.) - Object and evidentiary value -
Corroboratory value - Object of TIP is to
find out whether the suspected offender
arrested by police during investigation is
real culprit or not - Evidence of TIP can be
held as reliable and trustworthy only
where the suspects were neither shown to
the witnesses nor the witnesses had an
opportunity to see them prior to TIP and
the proceeding of TIP is not irregular -
Evidence of TIP is very weak evidence, it
has only the corroboratory value and
where the offenders were unknown to the
witnesses and the prosecution case is
based
only
on
the
evidence
of
identification, prosecution has to prove
that prosecution witnesses had proper
and sufficient opportunity to see and
identify the respondents and they had
properly seen and identified them. (Para
26 and 28)
Appeal allowed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,867 of 40,842. This is a partial read: ask again with offset=39867 for what follows._

336 INDIAN LAW REPORTS ALLAHABAD SERIES

8. In the result, this writ petition fails
and is dismissed. There shall be no order as
to costs.
----------
(2021)01ILR A336
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.01.2021

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 181 of 1996

Kamlesh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Alok Kapoor, (Amicus Curiae), Indrajeet
Shukla, Mohammad Mustafa Khan, Mohd.
Shafiq

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Indian Penal Code -
Section 392 & 397 - Robbery at Petrol
pump - Attempt to cause death or
grievous hurt - Test Identification Pared
(T.I.P.) - Accused not named in F.I.R. -
No
recovery
of
looted
property
-
Accused not known to the prosecution
witnesses - Cashier, Manager and Truck
Driver, who chased the accused, were
not produced as witness, though they
are important - None of the prosecution
witnesses has stated that he had seen
any
special
characteristics
or
appearance of any accused or any
identification marks of their faces -
Appellant is already acquitted under
Arms Act - T.I. Pared delayed by 15 days
- No explanation thereof - Held, the
prosecution has miserably
failed to
prove its case beyond reasonable doubt,
the appellant is entitled to be acquitted.
(Para 31, 33, 34, 36 and 37)
B. Evidence Law - Evidence Act, 1872 -
Section 9 - Test Identification Pared
(T.I.P.) - Object and evidentiary value -
Corroboratory value - Object of TIP is to
find out whether the suspected offender
arrested by police during investigation is
real culprit or not - Evidence of TIP can be
held as reliable and trustworthy only
where the suspects were neither shown to
the witnesses nor the witnesses had an
opportunity to see them prior to TIP and
the proceeding of TIP is not irregular -
Evidence of TIP is very weak evidence, it
has only the corroboratory value and
where the offenders were unknown to the
witnesses and the prosecution case is
based
only
on
the
evidence
of
identification, prosecution has to prove
that prosecution witnesses had proper
and sufficient opportunity to see and
identify the respondents and they had
properly seen and identified them. (Para
26 and 28)
Appeal allowed. (E-1)
Cases relied on :-
1. Wakil Singh Vs St. of Bihar, AIR. 1981
S.C.1392
2. Shaikh Umar Shaikh & anr. Vs St. of Mah.,
1998 SCC (Crl.) 1276
3. Mohd. Sajjad @ Raju @ Salim Vs St. of W.B.
AIR 2017 SC 642
4. Lal Singh & ors. Vs St. of U.P., (2003) 12 SCC
554
5. Subash and Shiv Shankar Vs St. of U.P.,
(1987) 3 SCC 331
6. Musheer Khan @ Badshah Khan & anr. Vs St.
of M.P., (2010) 2 SCC 748

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. The instant criminal appeal, under
Section 374 (2) of Code of Criminal
Procedure, 1973 (hereinafter referred to as
'Code'), has been preferred against the
1 All. Kamlesh Vs. State of U.P.
337
judgment and order dated 22.04.1996,
passed by Ist Additional Sessions Judge,
Unnao, in Sessions Trial No.191 of 1989,
arising out of Case Crime No106 of 1988,
P.S.-Achalganj, District-Unnao, whereby
the appellant-Kamlesh (hereinafter referred
to as appellant) has been convicted and
sentenced for offence under Section 392
I.P.C.
for
seven
years
rigorous
imprisonment and for offence under
Section 397 I.P.C. for seven years rigorous
imprisonment with further direction that
both the sentences of the appellant shall run
concurrently.

2. The prosecution case, in brief, is
that Sakur Ahmad (P.W.-1) informant, was
carrier of sales money from Kannaudia
Petrol Pump, situated at Azad Marg
Crossing, Kanpur, to the office of the firm
where he was posted. On 21.07.1988, at
about 8:30 a.m. he had come to the
Kannaudia Petrol Pump by scooter Super
Bajaj bearing registration No.UMO 257,
provided by the said firm to collect the
sales money and he received Rs.21,100/-
from Ghanshyam Srivastava (Cashier), kept
it in diggie (side luggage box) of scooter
and locked it. As he started the scooter to
proceed towards Kanpur, three unknown
persons,
who
were
carrying
with
countrymade pistol and bombs, appeared
there.
One
of
them
fired
by
his
countrymade pistol with shouting that if
anybody will move, he will kill all the
persons, present at the spot, including
informant (P.W.-1). Ghanshyam Srivastava
(Cashier),
Jagdamba
Prasad
Yadav
(Manager), Sukhram (Betel shopkeeper)
(P.W.-3), Pramod Kumar Singh (Truck
Driver) became afraid and maintained
silence due to fear. One of the said person
(criminal) started the scooter of the
informant and rest persons (other criminals)
rode on rear seat of the scooter and fled
away with cash, kept in scooter, towards
Lucknow.

3. Written information of the
occurrence
(Ext.-Ka-1),
prepared
by
Ghanshyam Srivastava (cashier) on the
dication of Sakur Ahmad (P.W.-1), was
filed at P.S.-Achalganj on 21.07.1988,
which was entered in G.D. report (Ext.-Ka4) by Head Constable Purushotam Narayan
Tandon (P.W.-7), who also prepared Chik
F.I.R. (Ext.-Ka-3) and registered the case
as case crime No.106 of 1988 under
Sections 392 and 397 I.P.C. against three
unknown persons. Investigation of the case
was entrusted to S.I. S. B. Singh (P.W.-11),
who reached at the place of occurrence,
took into his custody blank cartridges,
prepared a recovery memo (Ext.-Ka-2) and
also prepared site plan (Ext.-ka-8). During
investigation, he also recovered the scooter
of the informant, lying in jungle in
damaged condition, prepared recovery
memo, handed over the scooter to the
informant (P.W.-1) and also prepared site
plan (Ext.-Ka-11) of recovery of said
scooter. During investigation, he was in
training from 06.09.1988 to 14.09.1988 and
in the meantime, the appellant-Kamlesh
along with co-accused-Krishna Kumar @
Munsi (since deceased) were arrested on
07.09.1988
and
they
were
put
in
Identification Parade Test (T.I.P.) on
22.09.1988.

4. After conclusion of investigation,
S.I., S. B. Singh (P.W.11) filed charge
sheet (Ext.-Ka-14) against Hari Prasad
(since acquitted), Krishna Kumar @ Munsi
(since deceased) and the appellant-Kamlesh
before the concerned Magistrate, who took
the cognizance of the offence and since the
offence was exclusively triable by the
Court of Sessions, after providing the copy
of relevant police papers as required under
338 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 207 of the Code, committed the
case to the Court of Sessions, Unnao for
trial.

5. The learned trial Court framed charges
for the offence under Sections 392 & 397 I.P.C
against the appellant and other co-accused to
which they denied and claimed for trial.

6. The prosecution, in order to prove its
case, examined Sakur Ahmad (P.W.-1), Ram
Sajivan (P.W.-2), Sukhram Chaurasia (P.W.-3),
Ikramool Haque (P.W.-4), Head ConstablePurushotam Naraian Tandon (P.W.-5), Gaya
Bux Singh @ Gyari (P.W.-6), Sri Janardhan
Prasad (P.W.-7), Constable-Hari Shankar
(P.W.-8), Constable-R. K. Sachan (P.W.-9),
Constable-Chandra Bhan Singh (P.W.10) and
S. I., S. B. Singh (P.W.-11).

7. During trial, co-accused Krishna
Kumar had died and the trial against him was
abated by the trial Court. The statement of
appellant-Kamlesh and co-accused-Hari Prasad
(since acquitted) were recorded under Section
313 of the Code wherein they denied the
prosecution story and alleged that they were
falsely implicated. The appellant-Kamlesh
further stated that he was caught by police of
Police Station-Achalganj two days prior to his
arrest and after his photography, he was also
shown to the witnesses.

8. The appellant, to controvert the
prosecution story, had filed certified copy
of judgment dated 26.09.1989, passed in
Criminal Case No.1667A of 1989 (State vs.
Kamlesh), P.S.-Achalganj, District-Unnao,
whereby he was acquitted by concerned
Magistrate, from the offence under Section
25 of Arms Act.

9. After conclusion of the trial,
learned trial Court acquitted the coaccused-Hari Prasad, but convicted the
appellant-Kamlesh
as
above
by
the
impugned judgment and order. Aggrieved
by the impugned judgment and order, the
appellant has preferred this appeal.

10. Heard Sri Mohd. Mustafa, learned
counsel for the appellant and Sri Hansraj
Verma, learned A.G.A. for the State.

11. Learned counsel for the appellant
has submitted that the appellant is innocent
and has been falsely implicated by the
concerned police. Learned counsel further
submitted that the appellant is neither
named in the F.I.R. nor anything was
recovered from his possession. Learned
counsel further submitted that no special
characteristics or identification marks of
any accused person, involved in the said
occurrence were either mentioned in the
F.I.R.
or
stated
by
the
prosecution
witnesses.
Learned
counsel
further
submitted that according to prosecution
witnesses, one of co-accused-Hari Prasad
was employee of Kannaudia Petrol Pump
firm but his name was neither shown in the
F.I.R. nor stated by any witness. Learned
counsel further submitted that arrest of the
appellant as well as test identification
parade are highly doubtful as the arrest of
the appellant-Kamlesh and recovery of
countrymade pistol have already been held
doubtful and appellant has been acquitted.
Learned counsel further submitted that the
trial
Court,
without
considering
the
material available on record, acquitted one
co-accused-Hari Prasad and convicted the
appellant-Kamlesh only on the basis of
doubtful evidence of Identification Test,
which is against settled provision of
criminal jurisprudence and the impugned
judgment is liable to be set aside.

12. Per contra, learned A.G.A.,
vehemently opposing the submission made
1 All. Kamlesh Vs. State of U.P.
339
by learned counsel for the appellant,
submitted that the appellant has been
identified in T.I.P. and also before the trial
Court
by
the
prosecution
witnesses.
Learned A.G.A. further submitted that the
appellant was kept in baparda from the
date of his arrest till the identification
proceeding and there was no chance of the
photography of the appellant as well as
showing him to prosecution witnesses.
Learned A.G.A. further submitted that the
statement of prosecution witnesses is
reliable and trustworthy ; the impugned
judgment and order requires no interference
and the appeal is liable to be dismissed.

13. I have considered the rival
submissions made by learned counsel for
both the parties and perused the record.

14. Admittedly, the appellant is not
named
in
the
F.I.R.,
although,
the
occurrence took place in broad day light i.e.
21.07.1988 at 8:30 a.m. and the prosecution
witnesses had full opportunity to see and
identify the accused persons including the
appellant, but no identification marks of
any accused was mentioned in the F.I.R. In
the F.I.R., lodged by P.W.-1, it has been
mentioned that he (P.W.-1) and all
witnesses, present on the sport, had seen
properly the accused persons and can
identify if they would come before him.

15. Sakur Ahmad (P.W.-1) has
stated that he was employee of firm of
Kannaudia Petrol Pump and used to come
by
scooter
Super
Bajaj
bearing
registration No.UMO 257, provided by
the firm. Stating that on 21.07.1988 at
about 8:30 a.m., he had come on petrol
pump to collect the sales money and
parked his scooter near the northern door
of the cash counter, he further stated that
he received Rs.21,100/- from Ghanshyam
Srivastava (Cashier) and kept it in diggie
(side luggage box) of scooter along with
relevant papers and also locked it. Stating
that as he started his scooter, three
unknown persons, carrying countrymade
pistol and bomb (hathgola), came there
and one of them made air fire and
threatened him (P.W.-1) not to move
from his place, otherwise, they would kill
him, he further stated that Ghanshyam
Srivastava (Cashier), Jagdamba Prasad
Yadav (Manager), Ram Sajivan (P.W.-2)
Sukhram Chaurasia (P.W.-3), Pramod
Kumar Singh (Truck Driver) and so many
people, present on the spot, became
afraid. He further stated that one of the
accused started the scooter and rest two
accused rode on rear seat of the scooter.
Stating further that at starting point, the
scooter was unbalanced but later on, the
accused persons fled away on that scooter
with looted money and relevant papers,
he further stated that they could not
chased the accused persons due to fear
but Pramod Kumar Singh (Truck driver)
chased them by truck and returned
thereafter. Stating further that he had seen
the faces of all accused persons to whom
he did not know earlier, he further stated
that he got report (Ext.-Ka-1) written by
Ghanshyam Srivastava (Cashier) and
lodged the same at P.S.-Achalganj at
about 10:00 a.m. Stating further that he
had also attended T.I.P. at Jail, Unnao, he
pointed out the appellant-Kamlesh and
co-accused-Krishna Kumar @ Munsi
(since deceased) and said that he had
identified them in District Jail, Unnao.
Stating further that he had seen the
appellant-Kamlesh
and
co-accusedKrishna
Kumar
@
Munsi
(since
deceased) at the time of occurrence, who
committed the loot of sales money and
thereafter, identified them in T.I.P., he
further stated that he had not seen them in
340 INDIAN LAW REPORTS ALLAHABAD SERIES
between and also did not know them prior
to the occurrence.

16. Ram Sajivan (P.W.-2) has stated
that he was posted at Kannaudia Petrol
Pump since 7-8 years and was present at
the time of occurrence. Corroborating the
prosecution story as stated by Sakur
Ahmad (P.W.-1), he also stated that at the
time
of
occurrence,
Ghanshyam
Srivastava (Cashier), Jagdamba Prasad
Yadav (Manager), Sukhram Chaurasia
(P.W.-3) and Pramod Kumar Singh
(Truck Driver) were present at the place
of occurrence when the accused persons,
carrying the countrymade pistol and
bomb (hathgola), looted the sales money
and fled away with scooter Super Bajaj
bearing registration No.UMO 257 from
there and they could not chase the
accused persons due to fear ; Pramod
Kumar Singh (Truck Driver) chased them
but returned thereafter. Stating further
that he had seen the faces of the accused
persons, who were unknown to him, he
further stated that he had attended T.I.P.
in
Unnao
Jail
and
identified
the
appellant-Kamlesh
and
co-accusedKrishna
Kumar
@
Munsi
(since
deceased) to whom he had not seen after
the occurrence and before T.I.P.. He
further stated that the police, during
investigation, recovered blank cartridges
and prepared recovery memo (Ext.-ka-2).

17. Sukhram Chaurasia (P.W.-3) has
stated that at the time of occurrence, his
betel shop was situated near Kannaudia
Petrol Pump prior to 12-13 years of the
occurrence and he knew the employees of
said
petrol
pump.
Corroborating
the
prosecution story and stating that Sakur
Ahmad (P.W.-1) took Rs.21,100/- (sales
money)
from
Ghanshyam
Srivastava
(Cashier) and kept it in diggie (side luggage
box) of scooter, he further stated that as
Sakur Ahmad (P.W.-1) started the scooter,
he fell down and Ramashrey also fell down
and thereafter they balanced the scooter
and fled away to northern side with all
accused persons. He further stated that the
accused persons, carrying countrymade
pistol and bomb (hathgola), threatened
them not to move from their place,
Ghanshyam
Srivastava
(Cashier),
Jagdamba Prasad Yadav (Manager), Sakur
Ahmad (P.W.-1), Ram Sajivan (P.W.-2),
Sukhram Chaurasia (P.W.-3) and Pramod
Kumar Singh (Truck Driver) were also
present on the spot and Pramod Kumar
Singh chased the accused persons but
returned
thereafter.
Pointing
out
the
appellant-Kamlesh and co-accused-Krishna
Kumar @ Munsi (since deceased), he
further stated that he had seen the faces of
all three accused persons to whom he did
not know earlier but had identified the
appellant-Kamlesh and co-accused-Krishna
Kumar @ Munsi (since deceased) in T.I.P.
at Unnao Jail.

18. Ikramool Haque (P.W.-4), tyre
tube repairing mechanic, has stated that his
repairing shop was situated near the
Kannaudia Petrol Pump since 12-13 years
prior to the occurrence. He further stated
that at the time of occurrence, he was
taking bath and on hearing the gun sound,
he reached at the place of occurrence and
saw that the accused persons were fleeing
away with scooter from the place of
occurrence. Stating that two old cycles
were parked near by his shop and coaccused, Hari Prasad (since acquitted), took
away one of cycle just after the occurrence,
he further stated that since Hari Prasad was
employee of the said petrol pump, one and
half year prior to the occurrence, he knew
him very well. He also stated that another
cycle
was
taken
into
custody
by
1 All. Kamlesh Vs. State of U.P.
341
Investigating Officer and recovery memo
(Ext.-Ka-2) was prepared by him.

19. Purushotam Narain Tandon
(P.W.-5) has stated that he had preapred
Chik-F.I.R. (Ext.-Ka-3) and G.D. report
(Ext.-Ka-4).

20. Gaya Bux Singh @ Gyari (P.W.-
6) has stated that on 29.07.1988, coaccused, Hari Prasad (since acquitted) had
met with him and said that Ramashrey had
enquired
him
regarding
the
daily
transaction of Kannaudia Petrol Pump. He
further stated that co-accused, Hari Prasad
(since acquitted) also told him that he had
accompanied Ramashrey to petrol pump at
the time of occurrence and parked his cycle
behind the truck and when Ramashrey and
other accused persons, after looting the
sales money, fled away with scooter, coaccused, Hari Prasad (since acquitted) also
fled away with his cycle.

21. Janardhan Prasad (P.W.-7),
retired Special Executive Magistrate, has
stated that he had conducted T.I.P. of
appellant-Kamlesh
and
co-accusedKrishna
Kumar
@
Munsi
(since
deceased). He further stated that Sakur
Ahmad (P.W.-1), Ram Sajivan (P.W.-2)
and Sukhram Chaurasia (P.W.-3) had
identified the appellant-Kamlesh and coaccused-Krishna Kumar @ Munsi (since
deceased),
Ghanshyam
Srivastava
(Cashier)
had
identified
co-accusedKrishna
Kumar
@
Munsi
(since
deceased) and Jagdamba Prasad Yadav
(Manager) had identified the appellantKamlesh. Stating that he had prepared
identification
memo
(Ext.-Ka-5),
he
further stated that the appellant-Kamlesh
and co-accused-Krishna Kumar @ Munsi
(since deceased) were identified by four
persons each.

22. Constable Hari Shankar (P.W.-8)
has stated that on 07.09.1988, he was
posted as constable at P.S.-Achalganj. He
further stated that on that day, S.H.O., P. K.
Mishra, S.I., J. P. Singh along with other
police personnel came at police station with
the appellant-Kamlesh and co-accusedKrishna Kumar @ Munsi (since deceased)
in baparda and put them in lock up. He
further stated that he was on pahra (guard)
duty from 6:00 p.m. to 9:00 p.m., he had
not allowed any person to see the said
arrestees. Verifying the relevant G.D. (Ext.-
Ka-6), he further stated that he had handed
over charge to one Constable Chandra
Bhan Singh (P.W.-10). Stating that on
08.09.1988, he produced the appellantKamlesh and co-accused-Krishna Kumar
@
Munsi
(since
deceased)
before
concerned Magistrate in baparda and
thereafter, carried them to jail in baparda,
and verifying the relevant G.D. (Ext.-Ka-7)
of 08.09.1988, he further stated that during
the period of journey from police station
lock up to jail, no person was given
opportunity to see the said arrestees.

23. Constable R. K. Sachan (P.W.-9)
has stated that on 07.09.1988, he was
posted
at
P.S.-Achalganj,
where
the
appellant-Kamlesh and co-accused-Krishna
Kumar @ Munsi (since deceased) were
detained in lock up. Stating that he was on
pahra (Guard) duty from 12:00 a.m. to 3:00
a.m. in the night and thereafter, handed
over the charge to Constable, Hari Shankar
(P.W.-8), he further stated that during that
period, he had not allowed to any person to
see the said accused persons.

24. Chandra Bhan Singh (P.W.-10)
has stated that on 07.09.1988, he was
posted at P.S.-Achalganj and took charge
(pahra)
from
Constable-Hari
Shankar
(P.W.-8) and when he was on pahra
342 INDIAN LAW REPORTS ALLAHABAD SERIES
(Guard) duty from 9:00 p.m. to 12:00 a.m.
(night), he had not allowed to any one to
see the appellant-Kamlesh and co-accusedKrishna Kumar @ Munsi (since deceased),
who were detained as baparda in lock up.

25. S.I., S. B. Singh (P.W.-11) has
stated that on 21.07.1988, he was posted at
P.S.-Achalganj
and
was
deputed
as
Investigating
Officer
of
Case
Crime
No.106 of 1988. He further stated that
during investigation, he recorded the
statement of witnesses, inspected the place
of occurrence and prepared site plan (Ext.-
Ka-8). Stating that he also recovered blank
cartridges from the place of occurrence and
prepared recovery memo (Ext.-Ka-2), he
further stated that he also recovered a
scooter, used in the occurrence, in damaged
condition, prepared a recovery memo (Ext.-
ka-10) and site plan (Ext.-ka-11) and
handed over the scooter to the informant
(P.W.-1). He further stated that during
investigation, on 22.09.1988, he also
recorded the statement of S.H.O., P. K.
Mishra, Constables-Bhagwati Prasad, Moti
Lal
and
Lal
Mohammad
and
on
29.09.1988, statement of S.I., J. P. Singh,
Constable-Ramashrey
and
ConstableUmanath. Stating that from 06.09.1988 to
14.09.1988, he was in training and
investigation was carried by S.I., S. N.
Singh,
he
further
stated
that
after
investigation, he had submitted charge
sheet (Ext.-Ka-12) against the appellantKamlesh and other co-accused.

26. It is settled principal of law that if
the accused were not known to the
prosecution witnesses and prosecution case
is based only on the identification of the
accused (T.I.P.) or on the identification
produced before the Court, the prosecution
must prove that the accused were not
known to the prosecution witnesses prior to
the occurrence and they had sufficient
opportunity
to
see
the
special
characteristics as well as identification
marks on the person of the accused,
committing
the
crime
including
identification marks on their faces. In
addition to above, the prosecution also has
to produce a link evidence to rule out of all
the possibilities of opportunity of seeing
the accused persons by the prosecution
witnesses. Further, It is also settled
principle of criminal jurisprudence that
identification of accused by the witnesses
before the Court is substantive piece of
evidence whereas evidence of TIP is very
weak evidence,it has only the corroboratory
value and where the offenders were
unknown
to
the
witnesses
and
the
prosecution case is based only on the
evidence of identification, prosecution has
to prove that prosecution witnesses had
proper and sufficient opportunity to see and
identify the respondents and they had
properly seen and identified them.

27. In the case of Wakil Singh vs.
State of Bihar, AIR. 1981 S.C.1392, where
judgment and order of acquittal, passed by
trial Court as the evidence of identification
was doubtful, was reversed in appeal by the
High Court in appeal, Hon'ble Supreme
Court, setting aside the judgment of the
High Court, has held as under :

"2. In the instant case we may
mention that none of the witnesses in their
earlier statements or in oral evidence gave
any description of the dacoits whom they
have alleged to have identified in the
dacoity, nor did the witnesses give any
identification marks viz., stature of the
accused or whether they were fat or thin
or of a fair colour or of black colour. In
absence of any such description, it will be
impossible for us to convict any accused on
1 All. Kamlesh Vs. State of U.P.
343
the basis of a single identification, in which
case the reasonable possibility of mistake
in identification could not be excluded. For
these reasons, therefore, the trial Court
was right in not relying on the evidence of
witnesses and not convicting the accused
who are identified by only one witness,
apart from the reasons that were given by
the trial Court. The High Court, however
has chosen to rely on the evidence of a
single witness, completely over-looking the
facts and circumstances mentioned above.
The High Court also ignored the fact that
the identification was made at the T.I.
parade about 3 1/2 months after the dacoity
and in view of such a long lapse of time it is
not possible for any human being to
remember, the features of the accused and
he is, therefore, very likely to commit
mistakes. In these circumstances unless the
evidence is absolutely clear, it would be
unsafe to convict an accused for such a
serious offence on the testimony of a single
witness."( Emphasis supplied)

28. The object of TIP is to find out
whether the suspected offender arrested by
police during investigation is real culprit or
not. Evidence of TIP can be held as reliable
and trustworthy only where the the suspects
were neither shown to the witnesses nor the
witnesses had an opportunity to see them
prior to TIP and the proceeding of TIP is
not irregular. Thus if evidence of TIP is
shaky and doubt due to aforesaid reason,
the evidence of identification before the
court can not be relied upon.

29. In Shaikh Umar Shaikh and
another v. State of Maharashtra 1998
SCC (Crl.) 1276, wherein the trial Court
,after
rejecting
the
evidence
of
identification parade on the ground that
suspects were shown the witnesses prior to
identification parade, relied on the evidence
of identification before it and convicted the
appellant, Hon'ble Supreme Court while
allowing the appeal has held as under :

"The Designated Court after
having
rejected
the
evidence
of
identification parade on the ground that the
suspects were possible shown to the
witnesses, relied upon the evidence of
identification of the accused in the Court by
the two witnesses and on that evidence
recorded conviction against the appellants.
No doubt, the evidence of identification
parade is not a substantive evidence, but
its utility is for purpose of corroboration.
In
other
words,
it
is
utilised
for
corroboration of the sworn testimony of
witnesses in Court as to the identity of the
accused who are strangers to them. The
real and substantive evidence of the
identity of the accused comes when
witnesses give statement in the Court,
identifying the accused. It is true that in
the present case, PW-2 and PW-11
identified the two accused who are the
appellants before us in the Court. But, the
question arises; what value could be
attached to the evidence of identity of
accused by the witnesses in the Court
when the accused were possibly shown to
the witnesses before the identification
parade
in
the
police
station.
The
Designated Court has already recorded a
finding that there was strong possibility
that the suspects were shown to the
witnesses. Under such circumstances,
when the accused were already shown to
the witnesses, their identification in the
Court by the witnesses was meaningless.
The statement of witnesses in the Court
identifying the accused in the Court lost
all its value and could not be made basis
for recording conviction against the
accused. The reliance of evidence of
identification of the accused in the Court by
344 INDIAN LAW REPORTS ALLAHABAD SERIES
PW-2 and PW-11 by the Designated Court,
was an erroneous way of dealing with the
evidence of identification of the accused in
the Court by the two eye-witnesses and had
caused failure of justice. Since conviction
of the appellants have been recorded by the
Designated Court on wholly unreliable
evidence, the same deserves to be set
aside."(Emphasis supplied)

30. Now, coming to the facts of this
case, in F.I.R., it has been specifically
mentioned that the said scooter, which was
being used by Sakur Ahmad (P.W.-1), was
also used by the accused persons including
appellant-Kamlesh for fleeing away from
the place of occurrence, and was in
working condition. Sakur Ahmad (P.W.-1),
in examination-in-chief, had not stated that
the said scooter was recovered by the
Investigating Officer in his presence or on
the recovery memo prepared by I.O., he
had put his signature. He had not stated that
the said scooter was handed over to him by
the I.O. (P.W.-11) whereas P.W.-11 had
stated that the said scooter, lying in jungle
in damaged condition, was recovered by
him. P.W.-11 had specifically stated that
after preparing the recovery memo of said
scooter (Ext.-Ka-10), he had handed over it
to
the
informant.
("Mukadma
se
sambandhit scooter jungle me khada mila
jise kabje me liya | kharab dasha me tha |
supurd wadi kiya |")

31. In addition to above, the
prosecution has also not produced the
Ghanshyam
Srivastava
(Cashier),
Jagdamba Prasad Yadav (Manager) and
Pramod Kumar Singh (Truck Driver).
These witnesses were very important for
the prosecution story because Ghanshyam
Srivastava (Cashier) was witness of fact,
who can depose as to whether he had given
Rs.21,100/- to Sakur Ahmad (P.W.-1) or
not. Similarly, Jagdamba Prasad Yadav
(Manager), who was responsible for whole
transaction of petrol pump and Pramod
Kumar Singh (Truck Driver), who had not
only seen the occurrence but also chased
the accused persons. Prosecution has not
placed any explanation or justification as to
why it withhold the said important
witnesses. Non producing of the said
important witnesses creates a doubt in the
prosecution story.

32. Further, according to prosecution
story, the appellant-Kamlesh and coaccused-Krishna Kumar @ Munsi (since
deceased) were arrested on 07.09.1988 at
about 14:45 p.m. by S.H.O., P. K. Mishra
and S.I., J. B. Singh and were brought at
police station-Achalganj at about 8:00 p.m.
on same day. The prosecution has produced
Constable-Hari
Shankar
(P.W.-8),
Constable-R. K. Sachan (P.W.-9) and
Constable-Chandra Bhan Singh (P.W.10),
who were on pahra (guard) duty at P.S.-
Achalganj and had deposed that they had
not allowed to any person to see the
appellant-Kamlesh and co-accused-Krishna
Kumar @ Munsi (since deceased) but the
prosecution had failed to produce the
S.H.O., P. K. Mishra and S.I., J. B. Singh
and other police personnel, who had
arrested the appellant-Kamlesh and coaccused-Krishna Kumar @ Munsi (since
deceased) on 07.09.1988 at about 14:45
p.m. and in whose custody, they were kept
for more than six hours, to prove that the
appellant-Kamlesh and co-accused-Krishna
Kumar @ Munsi (since deceased) were not
shown to any person during that period.
Failure of the prosecution to produce these
police personnels further creates a doubt in
the prosecution story because there may be
possibility that the appellant-Kamlesh and
co-accused-Krishna Kumar @ Munsi (since
deceased) were shown to the witnesses.
1 All. Kamlesh Vs. State of U.P.
345

33. Further, in addition to above, in
F.I.R., no identification marks or special
characteristics of any accused have been
mentioned by Sakur Ahmad (P.W.-1) and
none of the prosecution witnesses has
stated that he had seen any special
characteristics
or
appearance
of
any
accused or any identification marks of their
faces. Sakur Ahmad (P.W.-1), in crossexamination, has specifically stated that
after firing, no one dared to see towards
any of the accused and when accused
persons had fled away from the place of
occurrence,
Ghanshyam
Srivastava
(Cashier) and Jagdamba Prasad (P.W.-7)
came out from the cabin. (fire hone par kisi
ki badmasho ki aur dekhne ki bhi himmat
kisi ki bhi nahi hui jab badmash chale gaye
tab ghanshyam va jagdamba cabin se
nikle.) Sukhram Chaurasia (P.W.-3), in
cross-examination, has admitted that at the
time of occurrence, he was behind the
boundary wall which was six feets in
height. Furthermore, from perusal of T.I.P.
report (Ext.-Ka-5), it appears that there
were 7-8 identification marks on the faces
of the appellant-Kamlesh and co-accusedKrishna Kumar @ Munsi (since deceased)
and Janardhan Prasad (P.W.-7) has stated
that he had pasted paper-sticker (kagaj ki
chippi) on each identification marks of
accused persons but Sukhram Chaurasia
(P.W.-3), in his cross-examination, has
specifically stated that no paper-sticker was
pasted on the faces of the accused persons
at the time of T.I.P. (shinakht ke samay
mulzim ke chehre par koi chippi nahi thi.).
Thus, in view of the above, where the
appellant-Kamlesh and co-accused-Krishna
Kumar @ Munsi (since deceased) were
having sufficient identification marks on
their faces but none of the identification
marks and their special characteristics were
either mentioned in the F.I.R. or stated by
the prosecution witnesses and in view of
statement of Sukhram Chaurasia (P.W.-3)
that identification marks of appellantKamlesh and co-accused-Krishna Kumar
@ Munsi (since deceased) were not
concealed, the prosecution story becomes
further doubtful.

34. Furthermore, appellant-Kamlesh,
who was arrested with other co-accusedKrishna Kumar @ Munsi (since deceased)
on
07.09.1988
at
14:45
p.m.
with
countrymade pistol and was also put on
trial for offence under Section 25 of Arms
Act but he was acquitted for the said
offence
by
concerned
Magistrate
on
26.09.1989. In addition to above, no
incriminating articles pertaining to this case
i.e. looted properties were recovered from
their
possession.
Non
recovery
of
incriminating articles pertaining to this case
and acquittal of the appellant-Kamlesh
from the offence under Section 25 of Arms
Act,
further
creates
doubt
in
the
prosecution version regarding his arrest on
07.09.1988 and also makes the prosecution
story doubtful.

35. In Mohd. Sajjad @ Raju @ Salim
vs. State of West Bengal, AIR 2017 SC
642, Hon'ble Supreme Court, relying on the
judgment passed by Hon'ble Supreme
Court in the cases of Lal Singh and others
vs. State of U.P., (2003) 12 SCC 554,
Subash and Shiv Shankar vs. State of
U.P., (1987) 3 SCC 331 and Musheer
Khan @ Badshah Khan and another vs.
State of Madhya Pradesh, (2010) 2 SCC
748, expressing its concerned of delay on
conducting the identification proceeding
(T.I.P.) after arresting the accused persons,
has held as under :

"In the instant case none of the
witnesses had disclosed any features for
identification which would lend some
346 INDIAN LAW REPORTS ALLAHABAD SERIES
corroboration. The identification parade
itself was held 25 days after the arrest.
Their chance meeting was also in the night
without there being any special occasion
for them to notice the features of any of the
accused which would then register in their
minds so as to enable them to identify them
on a future date. The chance meeting was
also for few minutes. In the circumstances,
in our considered view such identification
simpliciter cannot form the basis or be
taken as the fulcrum for the entire case of
prosecution. The suspicion expressed by
PW 8 Saraswati Singh was also not enough
to record the finding of guilt against the
appellant. We therefore grant benefit of
doubt to the appellant and hold that the
prosecution has failed to establish its case
against the appellant."

36. Coming to the present case again,
the appellant-Kamlesh was arrested on
07.09.1988 and was produced before the
concerned Magistrate on 08.09.1988 but his
identification proceeding along with coaccused-Krishna Kumar @ Munsi (since
deceased) was conducted on 22.09.1988.
The prosecution had not produced any
explanation
as
to
why
identification
proceeding was conducted after delay of 15
days. It has also not produced any evidence
whether it (T.I.P.) was conducted after
second remand of accused persons under
Section 167 of the Code or during first
remand of accused persons. Causing delay
in holding T.I.P further creates doubt in the
prosecution story. In addition to above,
according to Gaya Bux Singh @ Gyari
(P.W.-6), co-accused-Hari Prasad (since
acquitted) had made before him extra
judicial confession that one Ramashrey had
come to him with two persons and had
made enquiry regarding the cash of petrol
pump to whom he (Hari Prasad) told
everything
;
he
(Hari
Prasad)
also
confessed that he (Hari Prasad) went with
the said Ramashrey at the place of
occurrence and was present behind the
truck
and
he
(Hari
Prasad)
further
confessed that as Ramashrey and other coaccused looted the sales money and fled
away from the place of occurrence with the
said scooter, he (Hari Prasad) escaped there
from by his cycle. Sukhram Chaurasia
(P.W.-3)
has
also
stated
that
one
Ramashrey fell down at the time of
occurrence.
Thus,
the
presence
of
Ramashrey, at the time of occurrence, and
his involvement have been alleged by these
witnesses, but Investigating Officer had
exonerated him and he was not placed in
trial whereas the appellant-Kamlesh, who
was neither named in the F.I.R. nor named
by any witnesses and whose involvement in
the said occurrence is doubtful, has been
convicted in this case.

37. In the light of above discussion, I
am of the considered opinion that the
prosecution has miserably failed to prove
its case beyond reasonable doubt. Learned
trial
Court,
without
considering
the
aforesaid fact of the prosecution story,
passed the impugned judgment and order in
cursory manner. The impugned judgment
and order passed by trial Court is liable to
be set aside and the appellant is entitled to
be acquitted.

38. I am, therefore, unable to uphold
the conviction and sentence of the
appellant. The impugned judgment and
order, passed by the Trial Court, is
accordingly set aside. The appellant is
acquitted.
Consequently
appeal
is
allowed.

39. The appellant is on bail, his bail
bond
is
cancelled
and
sureties
are
discharged.
1 All. Furkan Ahamad Vs. State of U.P.
347

40. Keeping in view the provision of
Section 437-A of the Code, appellant is
hereby directed forthwith to furnish a
personal bond of a sum of Rs.20,000/- each
and two reliable sureties each of the like
amount before the trial Court, which shall
be effective for a period of six months,
along with an undertaking that in the event
of filing of Special Leave Petition against
this judgment or for grant of leave,
appellant on receipt of notice thereof, shall
appear before Hon'ble Supreme Court.

41. A copy of this judgment along
with lower court record be sent to Trial
Court by FAX for immediate compliance.
----------
(2021)01ILR A347
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2020

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 800 of 2018

Furkan Ahamad ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ashwini Kumar, Sri Ashwini Kumar, Sri
Ganesh Shanker Srivastava, Sri Girish
Kumar Singh

Counsel for the Opposite Party:
A.G.A., Sri Ram Dular, Sri Ram Surat Patel

Criminal Law - Indian Penal Code, 1860-
Section 326-A - Conviction- Sentence of
ten years rigorous imprisonment with
fine- Appeal pressed only on the quantum
of sentence.

Quantum of Sentence- "Proper Sentence"-
While
determining
the
quantum
of
sentence, the court should bear in mind
the principle of proportionately. Sentence
should be based on facts of a given case.
Gravity of offence, manner of commission
of crime, age and sex of accused should be
taken into account. Discretion of Court in
awarding sentence cannot be exercised
arbitrarily
or
whimsically.
The
fundamental purpose of imposition of
sentence is based on the principle that the
accused must realize that the crime
committed by him has not only created a
dent in the life of the victim but also a
concavity in the social fabric.Criminal
jurisprudence
in
our
country
is
reformative
and
corrective
and
not
retributive.

The question of awarding proper sentence is
based upon the doctrine of proportionality
whereby sentence should be commensurate to
the gravity of the offence, the impact upon the
victim and the society at large and should be
reformative and corrective instead of retributive.