# Raj Pal v. State - **Citation:** (2016) 5 ILRA 244 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-26 - **Bench:** Shashi Kant Gupta, Kaushal Jayendra Thaker - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-pal-v-state-43932 - **Pages:** 14 ## Text 244 INDIAN LAW REPORTS ALLAHABAD SERIES without cross-examination of witnesses and without any express view by the court below that there is likelihood of their conviction. 10. Therefore, the revision has no force and it is accordingly dismissed. 11. However, considering the submissions advanced by learned counsel for the revisionists, it is directed that in case the revisionists appear before the court concerned within thirty days from today and apply for bail, the same shall be heard and disposed of expeditiously by the courts below in view of the settled law laid by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P. Reported in 2005 Cr.L.J. 755 and affirmed by Hon'ble Apex Court in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD: 26.05.2016 BEFORE THE HON'BLE SHASHI KANT GUPTA, J. THE HON'BLE KAUSHAL JAYENDRA THAKER, J. Criminal Appeal No. 1892 Of 1982 & Criminal Appeal No. 1950 Of 1982 Raj Pal ...Appellant Versus State ...Respondent Counsel for Appellant: Dharampal Singh, Senior Advocate, B.C. Katiyar, Mahavir Verma, V.C. Katiyar Counsel for Respondent: Rajeev Gupta, A.G.A. HELD:- Conviction under Section 396 IPC cannot be sustained where it is based solely on test identification parade conducted after unexplained and inordinate delay. Delay in holding Test Identification Parade (TIP) without satisfactory explanation renders identification unreliable. Dock identification after a long lapse of time, without reliable prior TIP, is unsafe to base conviction. Non-recovery of looted articles from accused and absence of credible corroborative evidence is fatal to prosecution. 5 All. Raj Pal Vs State 245 Defective investigation, absence of a clear starting point, and failure to explain how suspicion fell on accused creates serious doubt. Confessional statements of co-accused cannot be used to convict another accused under Section 30 Evidence Act without substantive corroboration. Where genesis of occurrence is doubtful and prosecution evidence suffers from material gaps, benefit of doubt must go to the accused. Conviction recorded by trial court was held perverse and unsustainable. Accused Rajpal and Ram Singh were acquitted. CASE LAW CITED:- Budhsen v. State of Uttar Pradesh Soni v. State of Uttar Pradesh Hari Nath v. State of Uttar Pradesh Iqbal v. State of Uttar Pradesh Subash v. State of Uttar Pradesh Manmeet Singh @ Goldie v. State of Punjab Jabar Singh v. State of Uttar Pradesh Mohd. Farooq Abdul Gafur v. State of Maharashtra Puttu v. State Ram Babu v. State of Uttar Pradesh Mohd. Khalid v. State of West Bengal Nirmal Pasi v. State of Bihar State of Maharashtra v. Sukhdeo Singh (Delivered by Hon'ble Kaushal Jayendra Thaker, J.) 1. The appellants of Criminal Appeal No.1950 of 1982 are two in number. However, out of them, Suraj Bali - appellant No.1 died and the appeal qua him stood abated on 29.9.2015. We are left with the case of Ram Singh, who is now the appellant in Criminal Appeal No.1950 of 1982. This Court, while admitting the said appeal, passed the following order:- "Admit. Issue Notice. Connect with Criminal Appeal of Rajpal admitted on 11.8.1982. The appellants shall be released on their furnishing bail to the satisfaction of the learned Chief Judicial Magistrate, Fatehpur." 2. There were other appeals which also stood abated except Appeal No.1892 of 1982 filed by Ram Pal and hence out of 7 convicted accused, we have to deal with only 2 accused appellants who 246 INDIAN LAW REPORTS ALLAHABAD SERIES were tried and sentenced under Section 396 IPC. These appeals are filed against the judgment and order dated 3.8.1982 passed by IInd Addl. Sessions Judge, Fatehpur, and the accused have been awarded the sentence of life imprisonment. 3. Heard Sri Dharam Pal Singh, learned Senior Advocate, assisted by Sri R.C. Uttam and Sri Rajiv Gupta, learned A.G.A. 4. The appeal came to be filed in 1982. However, the same was placed before us for hearing exactly after 33 years and we have heard the learned Counsel for the parties at length. 5. On the fateful date i.e. 13.8.1977 the incident occurred at about midnight 12.00. The F.I.R. Came to be lodged at the instance of one Ram Sajiwan, who was son of Khushali Prasad Kurmi in early morning at 08.45 a.m., on 14.8.1977. alleging that on the previous night at about 12.00 hours when he and his family members namely Ajay Kumar and Rakesh Kumar (his nephew) were sleeping at the doorsteps and that some lady members of the family were sleeping in the house, whereas his mother and 2 sisters, were sleeping in the courtyard, 2 miscreants jumped in the courtyard on the cot of Smt. Kaushalya and they opened the door and facilitated the entry of 7 other miscreants. It is further alleged that the said miscreants assaulted him, his brother Ajay Kumar and nephew Rakesh Kumar and dragged them inside from the courtyard. The F.I.R. Further discloses that the assailants were armed with Tamancha (country-made pistol). It is alleged in the F.I.R. that 3 miscreants started assaulting them. They mainly asked the inmates to reveal the place where the jewelry belonging to Smt. Kaushalya, was kept. Smt. Kaushalya was staying in Rewadi and had come to the paternal house. The assailants also inquired about the sale proceeds of rice. An alarm was raised by Ajay Kumar and his sister, who was examined as PW1, who escaped to the Southern door on this alarm being raised, number of persons of the vicinity including one Sadlu-PW3, son of Ram Kishore, reached at the spot. Seeing these people reach the place of incident, the miscreants poured Kerosene Oil on Smt. Kaushalya and set her ablaze and left the place of incident after committing dacaoity. Then they went to the house of Ram son of Bharat and looted his place also. The F.I.R. even discloses the description of the light which was available at that point of time in the courtyard. The tentative age, height and weight of the miscreants was also revealed. The first informant gave the list of all the articles which were looted from the house of Ram Sajiwan and that of Shri Ram. 6. Thereafter, the miscreants gathered at the door of the house and then they looted the house of Shri Ram, S/o Bharat. They also looted the Sutiya of silver from the person of the mother of Ram Gopal Kumar, who was present at the door of the house. The miscreants then ran away towards the East with the booty. The village people chased them but could not catch any one of the miscreants. The miscreants committed dacoity for about half an hour during which period they looted the property and fired 9 - 10 shots from Tamanchas. 7. The complainant Ram Sajiwan and the family members of his house and witnesses clearly saw the faces of the miscreants in the light of Dhibri, Lantern and Torches and noted their features. As a result of beating by the dacoits, Ram Sajiwan, his mother Smt. Janak Dulari, Km. Rekha, Ram 5 All. Raj Pal Vs State 247 Gopal Kumar, Ajai Kumar and Shri Ram received injuries besides Smt. Kaushalya who had serious burns and her condition was precarious. Kaushalya was rushed to Government Hospital Amauli in the night but she scummed to the severe burn injuries. 8. Ram Sajiwan scribed written report Ex.Ka-1 and went to Police Station Chandpur on 14.8.1977 at 8.45 a.m. and lodged the report there. On the basis of the written report check FIR Ex. Ka-4 was scribed by H.M. Shri Lal Man Nishadh PW7, who registered the case in the G.D. At Sl. No.11 vide G.D. Extract Ex.Ka-5. The injured were sent for medical examination of their injuries to P.H.C., Amauli. 9. Sri Prahlad Singh, who was working as Station Officer at P.S. Chandpur, was present at the police station when Ram Sajiwan lodged the written report Ex. Ka-1 and the case was registered and the Station Officer took up the investigation. He conducted inquest on the dead-body of Kaushalya, after appointing Panches and prepared inquest report Ex. Ka-8, Sketch of the dead body Ex. Ka-9, Challan of the dead body Ex. Ka-10 and report for conducting post-mortem examination Ex. Ka-11. He sealed the dead body and sent it for post-mortem. 10. Dr. M.M.S.A. Khan, who was working as Medical Officer, District Hospital, Fatehpur, on 15.8.1977, on that date at 3.55 AP.M. Conducted post-mortem of Smt. Kaushalya. The sealed deadbody was produced before him by Constable Ramadhar Singh, 286 C.P.C. of P.S. Chandpur and V.C. Maya Ram of village Amauli, who identified the dead-body to be that of Smt. Kaushalya before Dr. Khan. Dr. Khan assessed the age of the deceased to be around 22 years. Dr. Khan assessed the duration of death about 11⁄2 days from the time of post-mortem examination. On external examination, the dead-body was found to be of an average built woman. Rigor mortis was partially present in the lower extremities but it was found absent in the upper extremities Blisters were found present at places and skin was peeling off. Eyes were found closed and the mouth was found shut. Dr. Khan found the following ante-mortem injuries on the dead-body:- "1. Abraded contusion 2" x 1" present over the outer aspect of lower third of left upper arm. 2. Abraded contusion 3" x 1" present over the outer aspect of upper third of left thigh. 3. Abraded contusion 4" x 1" present over the left infra scapular region. 4. Second to third degree burn present over the whole body except lower third of both legs and feet. Blisters present at places, on rupturing them fluid came out. Line of redness present at the junction of middle third and lower third of both legs. Injuries No.1 to 3 were not mentioned in the inquest report." 11. On internal examination the brain and the membranes were found congested. The lungs and its membranes were also found congested. The heart weighted about 4 Oz and was found 248 INDIAN LAW REPORTS ALLAHABAD SERIES empty. The stomach was found empty. The large intestine contained faecal matter. The urinary bladder was found empty. In the uterus a dead fetus of about 16 - 18 weeks was found. 12. The cause of death was ascertained as shock due to burn injuries. Dr. Khan prepared the post-mortem examination report which is at Ex.Ka-2. 13. The First Information Report got registered and after registering the F.I.R., the Investigating Officer reached the place of incident immediately on 14.8.1977. The Dhibri, Lantern as well as Torches were recovered and the farad of recovery was respectively prepared. Nothing happened till 29.1.1978. This date was marked in GD Rapat No.12 given by so called informant, which is termed as the starting point of arrest of accused. The Investigating Officer arrested one of the miscreants namely Shri Pal. On investigation, Shri Pal took them to his house and a recovery of looted shirt, lady's Dhoti and Chadar was made. The exculpatory statement of Shri Pal was also recorded. He gave name of other 10 accused persons, who were involved in the incident of loot at the house of Ram Sajiwan. On the basis of this revelation, the Investigating Officer arrested Ram Singh and Suraj Bali. All these 3 accused were sent to Jail and they were kept Baparda and their identity was not disclosed as they had to be subjected to identification parade. 14. Rajpal, accused appellant, surrendered on 4.3.1978 and he was kept Baparda and sent to Jail. On 20.3.1978, the test identification parade was carried out of the accused persons by the witnesses. It is an admitted position, as per the report of learned Magistrate, that no objection whatsoever had been raised by the accused persons about the conducting of test identification parade. It is an admitted position of fact that 3 witnesses namely Rekha-PW1, Ajay Kumar-PW2 and Ram Sajiwan-PW3 participated in the test identification parade. The chart prepared by the Magistrate conducting the test identification parade is perused by us. Ram Sajiwan had correctly identified 3 and wrongly identified 2 accused persons. Ajay Kumar had correctly identified 3, wrongly identified 1, whereas, Km. Rekha had identified all the miscreants correctly, thus, their percentage of identification being 60%, 75% and 100% respectively and as per the settled preposition of law, their identification has been found to be "Good identification" worthy of credence and reliance. 15. After the identification and after the investigation was over, chargesheet was laid before the court of competent Magistrate. The said competent Magistrate committed the case to the court of sessions where the case was registered as Sessions Case No.279 of 1978. 16. The learned Judge summoned all the accused and on 13.7.1979 framed the charges against 5 accused namely Shri Pal, Suraj Bali, Rajpal, Chandra Pal and Ram Singh. 17. Charges were also framed on 13.7.1979, 13.7.1979, 3.7.1981 and 22.7.1981 as different accused were produced on different dates. 18. The accused denied the commission of offence and wanted to be tried. 5 All. Raj Pal Vs State 249 19. The prosecution so as to bring home the charges examined about 19 witnesses, which are as follows:- 1 Deposition of Rekha Deposition of Rekha 01/05/81 04/07/81 PW1 PW1 2 Deposition of Ajai Kumar Deposition of Ajai Kumar 01/05/81 04/07/81 PW2 PW2 3 Deposition of Ram Sajiwan 06/07/81 PW3 4 Deposition of Sadlu Deposition of Sadlu 06/07/81 10/08/81 PW4 PW4 5 Deposition of Dr. M.M.S.A. Khan 22/07/81 PW5 6 Deposition of Jageshwar Prasad 22/07/81 PW6 7 Deposition of Lal Mani Misra 10/08/81 PW7 8 Deposition of Prahlad Singh 05/09/81 PW8 9 Deposition of R.P. Misra 05/09/81 PW9 10 Deposition of Chatur Singh 05/09/81 PW10 11 Deposition of Shanker Shukla 20/11/81 PW11 12 Deposition of Ratan Singh 20/11/81 PW12 13 Deposition of Raj Narain 20/11/81 PW13 14 Deposition of Hausala Prasad 20/11/81 PW14 15 Deposition of Shamshuddin 20/11/81 PW15 16 Deposition of R.K. Singh 14/01/82 PW16 17 Deposition of Ram Mohan 29/01/82 PW17 18 Deposition of R.K. Verma 12/02/82 PW18 19 Deposition of L.A. Kureel 12/02/82 PW19 20. In support of the same and to prove the charges, documents were also filed and were exhibited with aid of ocular evidence, which are as follows:- 1 FIR 14.8.77 Ex.Ka.4 2 Written Report 14.8.77 Ex.Ka.1 3 Recovery memo & Superdginama of Lantern and 'Dibri' 14.8.77 Ex.Ka.2/13 4 Recovery memo and Superdginama of Torch 14.8.77 Ex.Ka.3/14 5 Recovery memo of Goods 29.1.78 Ex.Ka.15 6 P.M. Report 15.8.77 Ex.Ka.25 7 Identification 25.3.78 Ex.Ka.23 8 Identification 29.9.79 Ex.Ka.24 21. The accused were examined under Section 313 and the accused even sought support of defence witnesses being DW1, DW2, DW3 and DW4. 250 INDIAN LAW REPORTS ALLAHABAD SERIES 22. It is submitted by learned Counsel Sri Dharampal Singh appearing for the appellant that he is confining his argument to that of Ram Singh and Rajpal. It is submitted that identification parade was held on 20.3.1978. The incident occurred on 13/14.8.1977 at mid night. The accused Ram Singh was arrested on 29.1.1978 but was never subjected to test identification parade which is accepted by PW19 - L.A. Kureel (police official). It is further submitted that result of the test identification parade was as follows:- "Appellant Ram Singh was correctly identified by three witnesses i.e. (1) PW1 - Km. Rekha (100%) (2) PW2 - Ajay Kumar (75%) (3) PW3 - Informant Ram Sajiwan (60%) Appellant Rajpal was identified by three witnesses i.e. (1) PW1 - Km. Rekha (100%) (2) PW2 - Ajay Kumar (75%) (3) PW3 - Ram Sajiwan - committed mistake in the parade of appellant Rajpal." 23. As far as the dacoty is concerned, it is submitted that genesis of the prosecution story is doubtful. It is further submitted that status of the family as per the informant was not such that dacoty could have been committed at their house as they possessed only 5 Bighas of land without any other source of income. It is further submitted that by ocular version it has come on record that the family consists of 2 male members and 4 female members. It is further submitted that the manner of burning of Smt. Kaushalya by the accused persons also causes doubt. From the evidence it has come on record that all the accused fled away from the scene of occurrence immediately when Kaushalya was set ablaze. The injuries on the other victim have not been proved by leading cogent evidence of the doctor. It is submitted that the accused have been falsely implicated and the real purpose of the unknown assailant was to commit the murder of Kaushalya and later on theory of dacoty was put forth by PW3 - Ram Sajiwan. It is further submitted that Sri Ram, S/o Bharat, and Ram Gopal in whose house the so-called dacoty has been committed after committing the dacoty at the house of Ram Sajiwan have not been examined by prosecution which causes serious doubt on the truth of role played by accused or of their presence at the time and place of offence. 24. 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 appellants in the present case. There is no evidence or clarification as to who and under what circumstances, the Investigating Officer came to pick up the particular persons and detail of the part which accused played in the crime in question with reasonable particularity was also not mentioned. 5 All. Raj Pal Vs State 251 25. It is further submitted that from the Evidence, it is apparent that the Investigating Officer did not care to get more information about the description of the alleged accused/dacoits by questioning the informant and other identifying witnesses. It is further submitted that in the first information report, the description of the miscreanes is very vague and insufficient for picking up the real culprits. No specific feature of any particular accused was given in the first information report. In the evidence before the court by the identifying witnesses no special feature or mark of the alleged dacoits was given. 26. It is submitted that the prosecution is relying on G.D. Entry (Exhibit Ka.16) for showing that the Investigating Officer got the starting point of the investigation from the arrest of coaccused Shreepal @ Bhaiya Lal, who was arrested from his own village - Burhwa. According to police, accused Shreepal @ Bhaiya Lal had disclosed the names of other culprits including the present appellants. Accused Shreepal @ Bhaiya Lal was arrested on 29.1.1978 i.e. after expiry of four months and 15 days from the day of occurrence. 27. It is submitted by learned Advocate that there is absolutely no evidence on the record as to what the Investigating Officer did and the manner in which the Investigating Officer had proceeded with the investigation from 14.8.1977 to 29.1.1978. 28. It is submitted by learned Advocate that the alleged arrest of accused Shreepal @ Bhaiya Lal and recovery of three clothes from him on 29.1.1978 is nothing, but concoction by the Investigating Officer. 29. It is submitted by learned Advocate that the Investigating Officer even after the arrest of the appellant Ram Singh on 29.1.1978 and after surrender on 4.3.1978 by the appellant Rajpal made no attempt to recover the looted property or the incriminating material. 30. While arresting accused Shreepal @ Bhaiya Lal, the Investigating Officer has not made any attempt to procure the witnesses of locality. The Investigating Officer has not come with the case that he has tried to procure the local witnesses or that local witnesses refused to help the Investigating Officer in the process of arrest and recovery. 31. It has been the specific case of appellant Rajpal that he has been falsely named by coaccused Shreepal @ Bhaiya Lal due to enmity. It is mentioned here that co-accused Shreepal @ Bhaiya Lal and appellant Rajpal, both are resident of same Village Burhwa, Police Station - Jahanabad, District - Fatehpur. 32. Learned Counsel has submitted that Exhibit Kha.1 proved by the accused appellant shows that accused Shreepal @ Bhaiya Lal abducted aunt of appellant Rajpal, for which the report under Section 498 IPC was lodged at Police Station - Jahanabad vide G.D. (Exhibit Kha.1). 33. Learned Counsel has submitted that there was insufficient light to enable the witnesses to identify the dacoits. 252 INDIAN LAW REPORTS ALLAHABAD SERIES 34. Learned Counsel has submitted that evidence of identification parade is also very doubtful and he has submitted that the total evidence against the two surviving appellants is their identification in the identification parade held on 20.3.1978, which is the sole basis of their conviction. 35. He has heavily relied upon the following decisions of the Apex Court:- "(i) Budhsen and another Vs. State of U.P., 1970 (2) SCC 128; (ii) Soni Vs. State of U.P., (1982) 3 SCC 368 (I); (iii) Hari Nath and another Vs. State of U.P. and others, (1988) 1 SCC 14; (iv) Iqbal and another Vs. State of U.P. and others; (2015) 6 SCC 623; (v) Subash and Shiv Shankar Vs. State of U.P., (1987) 3 SCC 331; (vi) Manmeet Singh alias Goldie Vs. State of Punjab, (2015) 7 SCC 167; (vii) Jabar Singh and another Vs. State of U.P., 2010 Law Suit (All) 2467. Hence it is submitted that prosecution has failed to prove the involvement of the present 2 accused in the so called offence. 36. Learned Counsel for the State has submitted that as per Section 30 of the Evidence Act exculpatory statement of the witnesses caught or arrested and the Case Diary has been proved and, therefore, there is a link and the delay in investigation is properly explained. The fact that Mukhbir had conveyed to the prosecution witness No.9 and that was noted in the Case Diary also shows that only after getting proper information the accused was arrested. It is contended that immediately after the arrest, the test identification parade was held and he has heavily relied upon the decision of the Apex Court in the case of Mohd. Farooq Abdul Gafur and another Vs. State of Maharashtra, (2010) 14 SCC 641, and the case of Puttu and another Vs. State, AIR 1979 ACC 217, and has submitted that there is reliable performance and witnesses whose performance is 66% or more correct, it would be reliable and, therefore, has submitted that minimum percentage of correct identification has been made in the facts of this case. He has further relied on the decision of the Apex Court in Ram Babu Vs. State of U.P., (2010) 5 SCC 63, and has contended that proper conduct of identification parade if explained will not be fatal. In this case, according to him, the accused was nabbed only after the Mukhbir revealed the name of Shripal, who in turn, gave the name of the other accused and he has submitted that this is a case where the learned Judge has rightly convicted the accused. It is submitted that immediately after the arrest, the accused were sent to Jail and were kept Baparda. The incriminating items have been recovered from the house of Shripal and he has given the identity of other miscreants. 5 All. Raj Pal Vs State 253 37. It is further submitted by learned A.G.A. that as many as 3 witnesses namely Rakha-PW1, Ajay Kumar-PW2 and Ram Sajiwan-PW3 has participated in the test identification parade and as per the chart prepared by the Magistrate conducting the test identification parade. Ram Sajiwan has correctly identified 3 and wrongly identified 2 accused persons. Ajay Kumar has correctly identified 3, wrongly identified 1, whereas Km. Rekha has identified all the miscreants correctly, thus, their percentage of identification being 60%, 75% and 100% respectively and as per the settled preposition of law their identification have been found to be "Good identification" worth of credence and reliance. 38. It is also submitted by learned A.G.A. that apart from this another reliable piece of evidence is in the form of identification of the recovered articles i.e. Chadar, Shirt and Lady's dhoti, which has been mentioned at serial Nos. 16, 17 and 18 in the list of looted articles, has also been made and duly proved by PW16-Sub Divisional Magistrate, Baghpat Sri R.K. Singh. The facturm of test identification of the recovered looted articles has been admitted by the defence and none of the accused-appellants have cross-examined the said witness, as such, the same stands proved against the appellant and establishes the case of the prosecution against the appellants. 39. It is further submitted by learned A.G.A. that during the course of arguments the important points, which have been argued on behalf of the defence, are that there was no sufficient light for the identification of the accused appellants who were 11 in numbers and, therefore, the testimony of witnesses so far as it reveals to the identity of the dacoits is not proved beyond reasonable doubt. 40. In respect of the said argument it is submitted that the assailants have been recognized in the light of Lantern, Dhibri and Torches flashed by the miscreants as well as the other witnesses present there. Further more it is specific case of prosecution that one Smt. Kaushalya, who has refused to divulge the place where her jewelry from Rewadi have been kept and the money of sale proceeds of rice etc. as such, she had been assaulted by the assailants due to which she has received as many as 3 contusions and was set ablaze by miscreants particularly by the two surviving appellants. Therefore, the contentions of the defence counsel that there was no sufficient source of light to identify the accused is baseless and cannot be given any weight. Moreover, in the test identification parade the identification made by them has been found to be in the category of "good identification" and they have also been identified in the Court, therefore, there does not arise any doubt about the identity of the 2 surviving appellants. 41. Having heard the learned Advocates the following facts emerge. 42. The evidence of recovery of three clothes from accused Shreepal @ Bhaiya Lal by PW-14 on 4.6.1980 can be read against accused Shreepal only whose appeal has been abated due to his death. 43. In view of the evidence on the record, it is apparent that available light during occurrence was insufficient for the identification of real culprits. 254 INDIAN LAW REPORTS ALLAHABAD SERIES 44. The three eye witnesses examined by the prosecution are of one family and they had no opportunity to mark the face of the real culprits. There was no fight between any of the witnesses on the one hand and the accused persons on the other hand. 45. The evidence proves that admittedly no attempt was made by any of the dacoits to conceal their own identity. This is very unnatural as the accused were total strangers. 46. The occurrence took place on 13/14.8.1977. The appellant Ram Singh was arrested on 29.1.1978 i.e. after 165 days equivalent to five months and 15 days. 47. The appellant Ram Singh was arrested on 29.1.1978 whereas the identification of appellant Ram Singh was held on 20.3.1978. Thus, there was delay of 50 days in holding the identification parade from the date of arrest of appellant Ram Singh. There is delay in holding the identification parade of the surviving appellants. The delay has not been explained by the prosecution in any manner. It has been observed by the Supreme Court that holding the identification parade after 50 days from the arrest of the accused would prove fatal to the prosecution case. 48. The appellant Rajpal surrendered on 19.4.1978 i.e. after 200 days equivalent to six months and 20 days from the date of occurrence. The statements of the alleged eye-witnesses were recorded between 1.5.1981 and 6.7.1981. 49. The identification of the two appellants by three eye-witnesses in the court can be said to be substantive evidence, but the identification in court is also subject to doubt i.e. it may be result of imagination of the witnesses or may be as that accused were shown by the police or that the witnesses had full opportunity to see the two appellants during pendency of the trial, prior to recording the statements of the witnesses. It is very doubtful that the identifying witnesses could correctly identify the appellants in court after such a long time i.e. almost after three years and eight months. 50. In the circumstances of the present case, there were chances that the accused appellants were 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 appellants by the identifying witnesses after such a long gap cannot be ruled out. 51. The individual role of the accused in the dacoty was never mentioned in the F.I.R. only in the ocular version of PW1 - Rekha, it was first came up before the Court. The appellant - Ram Singh was shown to have poured Kerosene oil on the deceased and appellant - Rajpal set her on fire. This is highly improbable and no credence could have been placed by the learned Trial Judge on this evidence. While thing is silent in Column No.10 which requires that identifying Magistrate should record the statement of the identifying witnesses as far as the part played by accused person. 5 All. Raj Pal Vs State 255 The column No.10 of the said memo is absolutely silent, which was causes doubt about the credence of evidence of Rekha. 52. PW-1 at page 44 clearly stated that accused used container of four liters of Kerosene oil which was filled with Kerosene oil and which was turned on the head of Smt. Kaushalya. She further stated that when the Investigating Officer came for inspection of spot, the said container was lying in the courtyard of the house. However, there is no recovery of this incriminating material shown in Panchayatnama. 53. The looted properties are not recovered from any of the accused persons. 54. It is admitted position of fact that investigation itself was defective. The improbability and prosecution story will permit us to reverse the conviction. There is a long delay between first investigation and the arrest of all the accused. Absence of certain facts would prima facie exculpate the accused from offence of dacoty. The appreciation of evidence in this fact has been viewed by us. There are very important missing links and the accused, therefore, cannot be convicted for such heinous offence without there being proper justification. The Supreme Court has elaborately discussed the issue of Section 30 of the Indian Evidence Act in Mohd. Khalid Vs. State of West Bengal, (2002) 7 SCC 334, and, therefore, the G.D. entry cannot be used as a confession so as to rope in the present 2 accused with the aid of Section 30 of the Indian Evidence Act rather PW9 in his statement has not stated anything about confession of so-called accused nor about naming the other aspects by co-accused Shripal hence this will also go against the prosecution. 55. The submission of the learned A.G.A. that Rajpal had surrendered himself and, therefore, the judgment of Ram Babu (supra) will be helpful to the prosecution cannot be accepted. The delay itself is such that even if his submission that it is not from the date of incident but from the date of arrest, the days are to be counted then also there is a delay and the identification based on Puttu's judgment (supra) will not help the prosecution. His alternative submission that even if it is not an offence under Section 396 IPC, it is offence under Section 302 IPC, cannot be believed because the substratum about Rajpal and Ram Singh, being involved itself has crumbled and, therefore, this submission of learned A.G.A. is required to be rejected. 56. The prosecution case in this appeal would be hit by 3 aspects; (i) No recovery of articles allegedly looted by the accused namely Rampal and Ram Singh are ever recovered from them; (ii) The evidence of police officials do not indicate whether they had even tried to recover the same; (iii) This appeal requires to be allowed as there is no material on record except the fact that one informant conveyed the name of one of the accused. However, nothing has been placed on record to show as to how the suspicion of the Investigating officer had fallen on the present two appellants. The Investigating Officer nowhere in his deposition or the investigating papers showed to have persuaded him to form an opinion as to the involvement of these accused-appellant. The main aspect on which the conviction is based also is faulty. The seriousness of the crime was such despite that even after the arrest, the test identification parade was delayed though under Section 294 of the Criminal Procedure Code, the Advocate for the accused had not raised objection on the 256 INDIAN LAW REPORTS ALLAHABAD SERIES procedure of test identification parade procedure but the delay makes it non reliable and conviction based only on the basis of test identification parade cannot be sustained. The decision in the case of Ram Babu Vs. State of U.P., (2010) 5 SCC 63, relied by the learned A.G.A. will be of no avail in the fact of this case as in the case of 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, will enure for the benefit of the accused as the test identification parade took place after long time and the corroboration is also not justified looking to the light at night and the way the incident occurred. Therefore, the accused could not have been convicted on the basis of the identification made by the witnesses. The aspects and standard of proof required for convicting an accused under Section 396 IPC as laid down in the case of Iqbal (supra) are absent in this case hence this appeal will have to succeed. 57. We are fortified in our opinion by the judgment cited by the learned Counsel for the appellant. We hold that there is no starting point. The test identification parade is the sole basis, on which the learned Judge has convicted the accused which is bad in the eye of law. The nonrecovery of any incriminating article has also not been considered by the learned Trial Judge which would also prove fatal to the prosecution in view of the latest decision by the Supreme Court in Iqbal and another (supra) hence on all these three counts the conviction of both these accused appellants cannot be sustained and is quashed. 58. Considering the facts and circumstances of the case, we are of the considered opinion that the view taken by the Court below while convicting the accused-appellants - Rajpal and Ram Singh is palpably wrong and the findings recorded by the Court below are perverse, erroneous and can not stand the scrutiny of law. In our considered opinion, the reasons given by the Trial Court are not sufficient to convict the accused-appellant - Rajpal and Ram Singh. 59. In the facts and circumstances of the case and the evidence led by the parties renders the origin and genesis of the occurrence doubtful and as such the accused-appellants Rajpal and Ram Singh is entitled to benefit of doubt and acquittal. 60. On the basis of aforesaid discussion in our considered opinion and also applying the rule of caution, conviction of the accused-appellant namely Rajpal and Ram Singh can not be sustained and is liable to be set-aside and in the circumstances of the case, the accused-appellants Rajpal and Ram Singh deserves acquittal. 61. The impugned judgment and order dated 3.8.1982 passed by IInd Additional Sessions Judge, Fatehpur, in Sessions Trial No. 279 of 1978 is set-aside and the appellant namely Rajpal and Ram Singh are acquitted of the charges levelled against them and their conviction and sentence are hereby quashed and set-aside. The appellants namely Rajpal and Ram Singh are on bail. They need not to surrender. Their personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 5 All. Umakant & Ors. Vs State Of U.P. & Ors. 257 62. In the result, we find and hold that the present appeal has got merit and the appeal is allowed. 63. In the result, we find and hold that both the appeals have got merit and are allowed. 64. Let a copy of this judgment along with the trial court record be sent to the court concerned for compliance. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 02.05.2016 BEFORE THE HON'BLE DR. DEVENDRA KUMAR ARORA, J. Writ Petition/Service Single No.- 2697 Of 2003 Umakant & Ors. ...Petitioners Versus State of U.P. & Ors. ...Opposite Parties This petition has been filed for a direction to pass order for giving financial approval for payment of salary and further to pay monthly salary alongwith arrears of salary. The issue which arise in this writ was whether prior approval is required before advertising the said post or before issuing the appointment letter. Court observed that it proper to direct the District Inspector of Schools, Hardoi, to examine the matter in the light of the fact that petitioners are in service last more than ten years and even are being paid salary and in the event he finds that there is no defect in the selection process then financial concurrence shall be given in the manner as has been given to S/Sri Arvind Kumar and Gurudutt Pandey by the District Inspector of Schools vide order dated 29.1.2005. It is also made open to the District Inspector of Schools to recover the salary paid earlier from the Management of the College in case refusal of financial concurrence by the DIOS on finding any irregularity in the selection process or short coming in the candidature of the petitioners. This writ petition is disposed of finally. List of Cases Cited: 1. Rajendra Yadav v. Deputy Director of Education; 1999 (3)AWC 2123 2. Shri Ranjan and others vs. District Inspector of Schools, Allahabad and others; 2005(2) ESC (All) 1023 3. Dubari and other vs. State of U.P. and others 2007(25) LCD 1176 4. Jagdish Singh vs. State of aU.P. And others (2006) 2 UPLBEC 1851 (Delivered by Hon'ble Dr. Devendra Kumar Arora, J.)