# Kansa alias Kansraj (In Jail) v. State of U.P

- **Citation:** (2002) 1 ILRA 213
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-02-01
- **Case number:** Criminal Appeal No. 473 of 1981
- **Bench:** U.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kansa-alias-kansraj-in-jail-v-state-of-u-p-39798
- **Pages:** 7

## Headnote

Criminal Procedure Code- Section 374-
Criminal Appeal -identification- parade
was held more than 15 days after the
arrest-
The
prosecution
had
not
advanced any reason in not holding the
identification parade promptly- held-
unless there is good reason for delay, the
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
214
value
regarding
the
evidence
of
identification gets adversely affected.

Held- Para 24

There is also no evidence that when the
appellant was brought before the court
for taking remand, every precaution was
taken to conceal his identity from the
witnesses.
In
the
absence
of
any
corroborating evidence it is difficult to
place
implicit
reliance
on
the
identification
made
at
the
test
identification
parade.
Therefore,
the
appellant is entitled to the benefit of
doubt and acquittal. The appeal thus,
succeeds.

## Text

1All] Ram Murat V. State of Uttar Pradesh and others
213
(Delivered by Hon'ble Anjani Kumar, J.)

1. By means of the present writ
petition
under
Article
226
of
the
Constitution of India, the petitioner has
challenged the orders dated 5.6.1997 and
1.1.1999, Annexure-4 and 9 to the writ
petition, respectively, passed by licensing
authority as well as the appellate authority
cancelling the petitioner's fire -arm
license on the ground that the petitioner is
involved in criminal case being case
crime no. 141 of 1996, under Sections
307/323/504/506 I.P.C., registered at
police station Munderwa, district Basti,
which is pending before the Court below
and a charge sheet, in this connection, has
been submitted. With regard to the
aforesaid
criminal
case,
during
the
pendency of the present writ petition this
Court was of the opinion that the order
cancelling the license of the petitioner's
fire -arm shall remain stayed. This interim
order has been passed by this Court on 5th
of February, 1999. It is submitted by
learned counsel for the petitioner that the
trial of the aforesaid case, referred to
above, being Sessions Trial No. 347 of
1999 has resulted into the acquittal of the
petitioner from the aforesaid charge vide
order dated 29.1.2001 passed by VIth
Additional District Judge, Basti, a copy of
judgement and order dated 29.1.2001 has
been annexed as Ananexure-1 to the
rejoinder affidavit.

2. Learned counsel for the petitioner
has relied upon a decision of this Court
reported in JIC (1999) 2 page 732- Lalji
Versus Commissioner Kanpur Division,
Kanpur, in which learned Single Judge
relying upon the earlier decision of this
Court reported in 1996 (Supp.) AWC,
46- Anil Kumar Singh Versus District
Magistrate, Pratapgarh and others,
(W.P. No. 878 of 1979, decided on
22.9.1994) has held that if the license of
fire arm is cancelled on the ground of the
involvement in criminal case, and once
licensee was acquitted, those cases could
not furnish material for cancellation of his
license, therefore on the date on which the
Commissioner passed his order, it cannot
be said that the cancellation of license
was in the public interest and this fact
could not be substantiated by the State.

3. In this view of the matter and also
on the facts and circumstances stated
above, this writ petition deserves to be
allowed and is accordingly allowed. The
orders dated 5.6.1997 and 1.1.1999,
passed by respondent nos. 3 and 2,
(Annexure-4 and 9 to the writ petition)
are hereby quashed. However, partiers
shall bear their own costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 1.2.2002

BEFORE
THE HON'BLE U.S. TRIPATHI, J.

Criminal Appeal No. 473 of 1981

Kansa alias Kansraj ...Appellant(In Jail)
Versus
State of U.P.

...Opposite party

Counsel for the Appellants:
Sri Pratap Narain Misra

Counsel for the Opposite Party:
A.G.A.

Criminal Procedure Code- Section 374-
Criminal Appeal -identification- parade
was held more than 15 days after the
arrest-
The
prosecution
had
not
advanced any reason in not holding the
identification parade promptly- held-
unless there is good reason for delay, the
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
214
value
regarding
the
evidence
of
identification gets adversely affected.

Held- Para 24

There is also no evidence that when the
appellant was brought before the court
for taking remand, every precaution was
taken to conceal his identity from the
witnesses.
In
the
absence
of
any
corroborating evidence it is difficult to
place
implicit
reliance
on
the
identification
made
at
the
test
identification
parade.
Therefore,
the
appellant is entitled to the benefit of
doubt and acquittal. The appeal thus,
succeeds.

(Delivered by Hon'ble U.S. Tripathi, J.)

1. This appeal has been directed
against the judgement and order dated
17.2.1981 passed by Sri D.C. Srivastava,
the then Addl. Sessions Judge, Gyanpur,
district Varanasi in S.T.No. 9 of 1980,
convicting the appellant under section 396
IPC and sentencing him to undergo R.I.
for a period of seven years and to pay a
fine of Rs. 500/-. In default of payment of
fine he was further sentenced to undergo
one year R.I.

2. The prosecution story, briefly
stated was as under:

3. Raj Narain (PW 4) had his house
at village Pandeypur, P.S. Suriyawa,
district Varanasi, Ram Adhar deceased
was a uncle of Raj Narain (PW 4). On the
night of 16.10.1979. Raj Narain was
sleeping in his varandah of Dalan. Ram
Adhar, deceased was sleeping out side the
house under a Neem tree. Ladies of his
house were sleeping inside the house. At
about 10-11 p.m. 10-11 dacoits armed
with country made pistols, lathis and
torches came to the house of Raj Narain
(PW 4). The dacoits caused injuries to Raj
Narain (PW 4). On his alarm Ram Adhar,
deceased woke up and tried to save him.
One of the dacoits caused lathi injury on
him and other one fired country made
pistol. Thereafter the dacoits broke open
the main door of the house and by
entering into the house started looting the
house hold properties including the
ornaments of the ladies and clothes.
Hearing the alarm Jagdamba (PW 1),
Ram Singar (PW 3) and others came to
the spot, flashing their torches. One
Harihar set fire in the nearby hut, which
emitted sufficient light. The inmates of
the house and the witnesses recognized
the faces of the dacoits in the light of the
torches and flames of burning hut. When
the accused left the spot, Raj Narain (PW
4) came to Ram Adhar and found him
dead.

4. Raj Narain (PW 4) prepared
report Ext. Ka.-1 of the occurrence and
came to the police station Suriyawa in the
same night at 4.00 a.m. and lodged the
report , Chick F.I.R. Ext.Ka.-10 was
prepared by constable Sri Nath, who
made an endorsement of the same at G.D
report, Ext. Ka-11 and registered a case
under Section 396 I.P.C against unknown
persons.

5. Raj Narain (PW 4) was sent to
Primary Health Centre Suiryawa for
medical examination, where he was
medically examined at 7.30 a.m. on
17.10.79 by Dr. Rajendra Mani Tripathi
(PW 12), who found one incised wound
on the left side of root of neck, two
lacerated wounds on left side of chest and
right side of chest respectively, five
abrasions and one contusion.
1All] Kansa alias Kansraj V. State of U.P.
215
6. The investigation of the case was
taken up by Sri Ram Sanjeevan Singh
(PW 13). The I.O. proceeded to the spot
along with the police force. The dead
body of Ram Adhar was lying on the spot.
Inquest of the dead body was conducted
and inquest report and other relevant
papers were prepared. Thereafter the I.O.
went to Primary Health Centre, Suriyawa,
where he interrogated Raj Narain (PW 4).
He
again
came
to
the
spot
and
interrogated Smt. Ganga Devi (PW 2) and
other witnesses. He inspected the place of
occurrence and prepared site plan Ext.
Ka-12. He also took into possession blood
stained and simple earth and prepared
recovery memo Ext.Ka-14. He inspected
the lantern and prepared recovery memo.
Sample of burnt ashes of hut was also
taken into possession and recovery memo
Ext. Ka-16 was prepared. The I.O. also
recovered empty cartridge and blasted
cracker from the spot and prepared
recovery memo Ext.Ka-17 and 18. He
also inspected the boxes from which
articles
were
looted
and
prepared
recovery memo Ext.Ka-19. The I.O. also
inspected the torches of Laxmi Narain and
Om Prakash and prepared inspection
memo Ext. Ka-21. A bag and a laungi left
by the dacoits were also found on the
spot, which were taken into possession by
the I.O. vide recovery memo Ext. Ka-22.
On
18.10.79,
the
I.O.
interrogated
Jagdamba Prasad (PW 1) and Ram Singar
(PW 3).

7. The autopsy on the dead body of
Ram Adhar was conducted on 18.10.79 at
7.30 a.m. by Dr. J.S. Pawar (PW 10).
Who found the following ante mortem
injuries on the person of the deceased:

8. Gun shot wound of entry 7 cm. X
6 cm x chest on right side of chest 1 cm to
the right of nipple. No blackening and
charring.

9. The internal examination showed
4th and 5th ribs below injury no. 1
ruptured. The right lung and membrane
were also ruptured. 27 small pellets and
one wad were recovered below injury no.
1. In the opinion of the Doctor cause of
death was shock and haemorrhage as a
result of ante mortem injuries. The Doctor
prepared post report Ext. Ka-8.

10. On 19.10.79, the I.O. Sri Ram
Sanjeevan Singh (PW 13) got information
that one dacoit was coming from side of
Janghai Railway Station, who was having
illicit arms. Believing on the above
information he collected the witnesses
and laid ambush in the Nali towards south
of Primary Pathshala Harhua. At about
7.30 a.m. the appellant was seen coming
with a bag in his hand. On the pointing
out of the informer he was intercepted and
apprehended. On his personal search he
was found in possession of one country
made pistol and two live cartridges.
Recovery memo was prepared on the spot
and the appellant was made Bapardah and
was sent to jail in Baparda condition.

11. The identification of the
appellant was conducted by Shri Noor
Mohammad (PW 14), the then SDM,
Gyanpur, district Varanasi on 20.11.79 at
Sub Jail Gyan Pur. The appellant was
correctly identified by Jagdamba Prasad
(PW 1), Ganga Devi (PW 2), Ram Singar
(PW 3), Lalita Devi and Kashi Prasasd
out of seven witnesses who had gone to
identify
him.
The
SDM
prepared
identification memo Ext. Ka-26.

12. On receipt of the identification
memo and on completion of remaining
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
216
investigation, the I.O. challaned the
appellant through charge sheet Ext.Ka-34
under section 396 I.P.C.

13. The case of the appellant was
committed to the Court to Sessions and he
was charged and tried for the offence
punishable under section 396 I.P.C. He
pleaded not guilty and contended that he
was falsely implicated on account of
enmity with the police as he was once
acquitted in another dacoity case.

14. The prosecution in support of its
case examined Jagdamba Prasad (PW 1).
Smt. Ganga Devi (PW 2), Ram Singar
(PW 3), Raj Narain (PW 4) and Kashi
Prasad (PW 9) as witnesses of fact,
besides, SI. Shankar Das (PW 5),
Constable Ram Bachan Yadav (PW 6),
Constable
Bhibani
Yadav
(PW
7),
Constable Raj Narain Singh (PW 8), Dr.
J.S. Pawar (PW 11), Dr. Rajendra Mani
Tripathi (PW 12), Ram Sanjeevan Singh,
I.O. (PW 13) and Noor Mohammad,
SDM, (PW 14) as formal witnesses. The
appellant did not adduce any evidence in
his defence.

15. The learned Sessions Judge on
considering
the
evidence
of
the
prosecution held that the prosecution
succeeded in establishing beyond doubt
that the appellant was one of the dacoits
in the dacoity in question in which one of
the dacoits killed Ram Adhar during the
commission of dacoity. Therefore, his
guilt for the offence punishable under
section 396 I.P.C. was fully established.
With these findings he convicted him
under section 396 I.P.C. and sentenced as
mentioned above.

16. The appellant has challenged his
above conviction and sentence in this
appeal.

17. Heard Sri P.N. Misra, learned
Senior Counsel for the appellant, learned
A.G.A. for the respondent and perused the
record.

18. According to the prosecution on
the night of 16.10.79 at about 11.00 p.m.
a dacoity took place in the house of Raj
Narain (PW 4) and during course of
dacoity one of the dacoits killed Ram
Adhar, deceased. The appellant has not
disputed the factum of dacoity in the
house of Raj Narain (PW 4) on the night
of the occurrence and death to Ram Adhar
in the said dacoity. The prosecution
examined Jagdamba Prasad (PW 1), Smt.
Ganga Devi (PW 2), Ram Singar (PW 3)
and Kashi Prasad (PW 9) as witnesses of
fact. All the above witnesses have
categorically stated that on the night of
occurrence 10-11 dacoits raided the house
of Raj Narain (PW 4), caused injuries to
Raj Narain and Ram Adhar and by
breaking open the main door entered into
the house and looted the household
properties. The I.O. Shri Ram Sanjeevan
Singh (PW 13), visited the spot on the
next morning. Dr. Pawar (PW 13)
conducted the autopsy on the dead body
of Ram Adhar and found gun shot injuries
on his person, which resulted into his
death. The I.O. also found blood, broken
boxes, one empty cartridge and one
blasted cracker on the spot. The recovery
of above things on the spot and the
medical evidence fully corroborated the
evidence of ocular witnesses on the
factum of dacoity and death of Ram
Adhar in the said dacoity. Therefore, the
prosecution
successfully
proved
the
factum of dacoity on the night of
1All] Kansa alias Kansraj V. State of U.P.
217
occurrence in the house of Raj Narain and
death of Ram Adhar during the course of
dacoity.

19. The evidence against the
appellant is only that of identification,
therefore, it is to be considered whether
there was sufficient light on the spot and
the
witnesses
had
opportunity
to
recognize the face of the dacoits.

20. The ocular witnesses named
above had stated that inside the house a
lighted lantern was emitting light, that the
witnesses who came from the village,
namely, Jagdamba Prasad (PW 1), Ram
Singar (PW 3) and Kashi Prasad (PW 9)
had their torches. They also stated that
some dacoits were also having torches
and were flashing the same during the
course of dacoity. It has also come in the
evidence of the above witnesses that one
Hari Nath had set fire in the hut near the
house of Raj Narain, which emitted
sufficient light on the spot and the faces
of dacoits were seen in the said light. The
I.O. also inspected the lantern and torches
of the witnesses. He had also collected
sample of burnt ashes from the spot. The
place where the hut was burnt was at a
distance of only 13 paces from the main
door of Raj Narain. It is also in the
evidence of the witnesses that the dacoits
were entering into and coming out of the
house during the course of dacoity. The
dacoits also caused injuries to Raj Narain
(PW 4), who had sustained lacerated
wound, incised wounds, contusion and
abrasions, which shows that he had come
into close contact of the dacoits. The
dacoits had also entered into the house
and lady members had also opportunity to
see the faces of the dacoits. In this way
the prosecution has successfully proved
that there was sufficient light on the spot
and witnesses had full opportunity to
recognize the faces of the dacoits.

21. In the identification parade, the
appellant was correctly identified by
Jagdamba Prasad (PW 1), Ganga Devi
(PW 2), Ram Singar (PW 3), Lalita Devi
and Kashi Prasad. According to the
evidence of Noor Mohammad (PW 14)
these witnesses had not committed any
mistake. Thus, the performance of the
above witnesses who identified by the
appellant in the test identification parade
was cent percent. The prosecution had
examined Jagdamba Prasad (PW 1), Smt.
Ganga Devi (PW 2), Ram Singar (PW 3)
and Kashi Prasad (PW 9). However, Ram
Singar (PW 3) stated in his evidence that
prior to identification in the Jail he had
seen the appellant at Durgaganj Bazar. He
was declared hostile.

22. Learned counsel for the
appellant contended that admittedly the
dacoity took place on 16.10.1979 and the
appellant was arrested on 19.10.1979, but
his identification was conducted on
20.11.1979 i.e. after about a month and,
therefore, by that time the memory of the
witnesses regarding features of the dacoits
have faded from their mind, specially
when there is no evidence on record to
show that the witnesses identified the
appellant by any special identifying
feature and, therefore, the identification
was due to some extraneous aid such as
the appellant was shown to the witnesses
after his arrest. Learned counsel placed
reliance on Apex Court's decision in
Satrughana alias Satrughana Parida and
others Vs. State of Orrissa, 1995 Supp (4)
Supreme Court Cases 448.

23. In the above case appellant
Ravin Kandy was arrested on November
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
218
22, 1982 and other appellants were
arrested on November 12, 1982. The
identification
parade
was
held
on
December 10, 1982 i.e. more than 15 days
after the arrest. The prosecution had not
advanced any reason in not holding the
identification parade promptly. Held, that
unless there is good reason for delay the
value
regarding
the
evidence
of
identification gets adversely affected.
This dilution to the evidentiary value of
the identification by the witnesses who
claimed to have seen the accused on the
night of the occurrence almost one and
half month back, who did not in their
statement before the police or in the first
information report reveal any special
features for the identification, is a matter
which weighs against the prosecution. It
must be remembered that the accused
persons are required to be produced
before the court latest with 15 days of
their arrest and therefore, it would be
reasonable to infer that they were so
produced. There is nothing on record to
show that the prosecution had taken care
to ensure that their identity was not
revealed when they were taken to the
court and produced as required by law. In
these circumstances when the prosecution
witnesses had admitted in their oral
statement that they had not noticed any
special identifying features, it becomes
unsafe to place implicit reliance on the
evidence
regarding
identification
emanating from the proceedings at the test
identification
parade.
In
these
circumstances since there is no other
corroborative evidence, their Lordships
found it difficult to place implicit reliance
on the identification made at the test
identification parade. Their Lordships
were, therefore, of the opinion that the
appellants were entitled to benefit of
doubt.
24. In the instant case there is no
evidence to show that the prosecution
witnesses
had
noticed
any
special
identifying features of the appellant. They
had simply stated that they saw the
appellant at the time of dacoity and in the
identification parade and not in between
it. In the instant case as mentioned above
the dacoity took place on 16.10.79, the
appellant was arrested on 19.10.79 and
identification parade was conducted on
20.11.79 i.e. after a month of his arrest.
There is also no evidence in this case that
the appellant was not produced in the
court for obtaining remand in between his
lodging in the jail and conducting of
Identification. There is also no evidence
that when the appellant was brought
before the Court for taking remand, every
precaution was taken to conceal his
identity from the witnesses. Thus, the
contingency pointed out by the Apex
Court in the above noted case are fully
applicable to the facts of the present case
and in these circumstances I have no
option but to hold that in the absence of
any corroborating evidence it is difficult
to
place
implicit
reliance
on
the
identification
made
at
the
test
identification
parade.
Therefore,
the
appellant is entitled to the benefit of doubt
and acquittal. The appeal thus, succeeds.

25. The appeal is accordingly
allowed. Conviction and sentence of the
appellant under section 396 I.P.C. is set
aside and he is acquitted of the said
offence. He is on bail granted by this
Court. He need not surrender. His bail
bonds
are
cancelled
and
sureties
discharged.
---------
1All] Rameshwar & another V. The VIIth Upper District & Sessions Judge,Deoria & others
219
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2002

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 2770 of 1985

Rameshwar and another ...Petitioners
Versus
The VIIth Upper District and Sessions
Judge, Deoria & others ..Opposite Parties

Counsel for the Petitioners:
Sri Jokhan Prasad

Counsel for the Respondents:
S.C.

Constitution
of
India,
Article
226/227-
jurisdiction-
suit
for
cancellation
of
sale
deed
and
injunction-
whether
the
suit
is
triable by the civil court or by
Revenue Court- held- only the civil
court has jurisdiction.

Held- Para 4

Heard
learned
counsel
for
the
parties. Sri Jokhan Prasad learned
counsel
for
the
petitioners
has
argued that in view of the law, which
will depend on the allegations in
plaint and also the relief clause and
in view of the recent Supreme Court
decision reported in J.T. 2001 (Vol.2)
SC, 573- Sri Ram and another Versus
Ist Additional District Judge and
others, wherein the Supreme Court
has affirmed the decision of Full
Bench decision reported in 1989
RD21- Ram Padarath and others
Versus
IInd
Additional
District
Judge, Sultanpur and others, the law
laid down by Supreme Court and
after going through the relief clause,
the view taken by the revisional
Court is not correct and suffers from
the manifest error.

(Delivered by Hon'ble Anjani Kumar, J.)

1. Petitioners-plaintiffs filed suit no.
392 of 1982 before the Court Munsif,
Deoria with the following reliefs:-

"1- ;g fd olnwj fMxzh cSukek 22&12&81 ogd
oknhx.k cuke izfroknh x.k ealw[kk djus dh
fMxzh iznku fd;k tkos A
2- ;g fd olnwj fMxzh bErukbZ nokeh izfroknh
la0 ,d dks loZFkk ds fy, euk fd;k tkos
fd gLo rQlhy tSlk fookfnr vkjkfy;kr esa
fdlh izdkj dh eqtkfger u djsa vkSj u dCtk
n[ky ge oknhx.k esa vojks/k mRiUu djsa A
3- ;g fd ge oknhx.k dh izfroknh ua0 ,d ls
[kpkZ eqdnek o odhy esgurkuk fnykus dh
fMxzh iznku fd;k tkos A
4- ;g fd vykok ;k ctk; nknjlh etdwjkokyk
ds oknhx.k ftl fdlh vU; nknjlh ds
eqLrgy djkj ik;s tkos mldh Hkh fMxzh ogd
oknhx.k cuke izfroknh x.k lkfnj dj x;k
tkosA"

2. An objection was filed by the
defendants before the trial Court that the
suit is not cognisable before the civil
Court, therefore the same should be
rejected and the petitioners-plaintiffs be
relegated to the revenue Court. The trial
Court decided the said suit in favour of
the plaintiffs that the suit is cognizable by
the civil Court.

3. Being aggrieved by the aforesaid
order, the defendants preferred a revision
before the revisional Court and the
revisional Court arrived at and recorded
findings that the suit is not cognisable by
the civil Court, therefore the suit may be
dismissed and the petitioners-plaintiffs