# Ram Shanker & Ors v. State of U.P. 786 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 9 ILRA 785
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-06
- **Case number:** Criminal Appeal No.14 of 1987
- **Bench:** Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-shanker-ors-v-state-of-u-p-786-indian-law-reports-allahabad-series-46078
- **Pages:** 13

## Headnote

Criminal Law-Appeal against Conviction
U/S Section 302 & 307 of IPC

Genuineness of Identification Parade of
Accused-Delay in conducting the test identification
parade, No specific features of accused mentioned in
F.I.R. The fact of witness and informant being known
to accused since prior to incident - no specific role
assigned to accused, renders the test identification
parade doubtful and insufficient to conviction of the
applicant/accused.

Appeal allowed. (E-2)

List of Cases cited: -

## Text

_Characters 0–39,876 of 43,649. This is a partial read: ask again with offset=39876 for what follows._

9 All. Ram Shanker & Ors. Vs. State of U.P.
785

15. Aforesaid settled view of Hon'ble
Supreme Court was further followed in
Para 18 of the case reported in Babu Ram
& others vs. State of Punjab, 2008 (3)
SCC 709, and further in para 22 of another
case reported in (2009) 16 SCC 649
(Amarjit Singh vs. State of Haryana).

16. It is, therefore, incumbent upon the
prosecution to explain the injuries on the person
of the accused as well and prima facie this
lacuna or infirmity appearing in the prosecution
case, entitles the applicants to be enlarged on
bail. However, there may be cases where the
non-explanation of the injuries by the
prosecution may not affect the prosecution case
but that would apply to cases where the injuries
sustained by the accused are minor and
superficial. In the instant case, prima facie what
we find from the record is that four persons
from the accused side namely Shishupal, Suraj
Bhan, Mahesh and Surendra have sustained
grievous injuries of which there is no
explanation forthcoming from the side of the
prosecution.

17. Having scanned through the
evidence on record, considering the facts
and circumstances of the case, and also
rival submissions of the parties, without
commenting anything on the merit of the
case, prima facie we find that a case of bail
is made out.

18. Let the appellants, namely Suraj
Bhan, Jomdar, Mahesh, Shishu Pal @ Rishi
Pal, Surendra and Satendra be released on
bail on each of them executing a personal
bond and furnishing two sureties each in
the like amount to the satisfaction of the
court concerned in Sessions Trial No. 1139
of 2009 (State Vs Jomdar and others), and
Sessions Trial No. 123 of 2010 (State Vs
Surendra), arising out of Case Crime No.
199 of 2009, under Sections 147, 148,
302/149, 307/149 IPC, and Sessions Trial
No. 03 of 2010 (State Vs Satendra), and
Sessions Trial No. 1140 of 2009 (State Vs
Shishu Pal @ Rishi Pal) arising out of Case
Crime Nos. 200 of 2009 & 201 of 2009
respectively, under Sections 25/27 Arms
Act, P.S. Kagarol, District Agra subject to
deposit of whole of the fine amount
imposed on them within a month from the
date of their release.

19. On acceptance of bail bond and
personal bond, the lower court shall transmit
photostat copies thereof to this Court for being
kept on the record of this appeal.

20. It is made clear that any
observations made while deciding this
application
are
merely
prima
facie
observations made for the purpose of grant
of bail and shall have no bearing on the
final outcome of the appeal.

21. The lower court record is
available. Office is directed to prepare the
paper book within two months.

Learned counsel for the parties may
collect the paper book thereafter from the
office.

22. List this appeal for hearing in due
course.
----------
(2020)09ILR A785
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2020

BEFORE

THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No.14 of 1987

Ram Shanker & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party
786 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Vindhyachal Singh, Sri P.S. Yadav, Sri
S.N. Singh, Sri Ajai Kumar, Sri Rajesh
Kumar Tripathi, Sri Phool Singh Yadav

Counsel for the Opposite Party:
Sri Amit Kumar Singh, A.G.A.

Criminal Law-Appeal against Conviction
U/S Section 302 & 307 of IPC

Genuineness of Identification Parade of
Accused-Delay in conducting the test identification
parade, No specific features of accused mentioned in
F.I.R. The fact of witness and informant being known
to accused since prior to incident - no specific role
assigned to accused, renders the test identification
parade doubtful and insufficient to conviction of the
applicant/accused.

Appeal allowed. (E-2)

List of Cases cited: -

1. Subhash & anr. Vs St. of U.P. AIR 1987 SC
1222

2. Anil Kumar Vs St. of U.P. reported in (2003) 3
SCC 569

3. Muthuswami Vs St. of Madras AIR 1954 SC 4,
1954 Cri LJ 236

4. Musheer Khan Vs St. of M.P.2010 (2) SCC 748

(Delivered by Hon'ble Raj Beer Singh, J.)

1. This Criminal Appeal has been
preferred
against
judgment
dated
19.12.1986 and order dated 20.12.1986
passed in Session Trial No. 194 of 1979
(State Vs. Ram Shanker and 4 others),
Crime No. 65/1979, under Sections 395 of
IPC, Police Station Shivrajpur, District
Kanpur Dehat, whereby accused-appellants
Ram Shanker, Mahesh, Bodhu, Chhotey
Lal and Ram Babu were convicted under
section 395 of IPC and sentenced to five
years rigorous imprisonment.

2. During pendency of this appeal,
appellant no. 4 Chhotey Lal has passed
away thus, this appeal qua appellant No. 4
was abated.

3. Prosecution version is that on the
intervening
night
of
22/23.03.1979,
informant / PW-1 Kailash Nath was
sleeping under thatch roof of his house
whereas women of his family were
sleeping inside the house and there was
light of lantern. At around midnight, 6-7
bandits, armed with pistols, hockey and
sticks, intruded into his house through the
roof and opened the main gate of the house.
Out of them, two bandits over-powered
informant Kailash Nath and his father
whereas other bandits committed dacoity in
his house. Hearing noise, many villagers
including
Ramesh
Chandra,
Bhagwan
Deen, Bhagwat, Udai Narayan and Vansh
Gopal came and challenged the miscreants.
Bhagwan Deen set ''sirsori', lying near
house of informant, to fire and thereby in
the light of the same, they have seen the
said bandits. After committing dacoity at
the house of informant, said bandits also
committed dacoity at the house of his
neighbour Devi Prasad and Heera Lal. It
was alleged that the said miscreants have
robbed various jewellery items, cash and
clothes and after committing dacoity, all the
miscreants succeeded in running away from
there.

4. In the morning, the informant
Kailash Nath reported the matter to police
by submitting tehrir exhibit Ka-1. and
consequently, the case was registered on
23.07.1979 at 09:45 hrs against 6-7
unknown persons. During investigation,
one lantern, produced by witness Hari Lal
was taken into possession vide seizure
memo exhibit Ka-7. One slipper and
'gamchha', found at the spot were seized
9 All. Ram Shanker & Ors. Vs. State of U.P.
787
vide memo exhibit ka-8. The lantern
produced by informant and witness Shyam
Babu were seized vide memo exhibit Ka-9
and Ka-10.

5. In the alleged incident, witness
Devi Prasad and his son Shyambabu have
sustained injuries and they were sent for
medical examination. Injured Devi Prasad
was examined vide MLC exhibit Ka-4 and
he has sustained following injuries.

(i) Lacerated wound 2 cm x 1/2
cm x skindeep on middle of head about 12
cm from left ear.

(ii) Lacerated wound 4 cm x 1/2
cm x skin deep on left side forehead 3.5 cm
above the left eye brow.

(iii) Abraded contusion on front
side of chest left side about 10 cm x 1 cm,
3 cm below the clavicle bone of left side.

(iv) Contusion 6 cm x 2 cm on
left shoulder joint.

(v) Abrasion 2 cm x 1.5 cm right
side of 6 cm above right nipple. (vi)
Contusion 22 cm x 2.5 cm on epigastrium
area of abdomen 7 cm above the umbilicus.

(vii) Abraded contusion 5 cm x 3
cm on backside of body in centre on 6th
thoracic vertebra.

(viii) Contusion 18 cm x 4 cm on right
side back 4.5 cm above the right iliac crest.

(ix) Abraded contusion 7 cm x 3 cm
on back left side just above the left iliac crest.

(x) Traumatic swelling over upper
1/3 of forearm right side advised x-ray at
UHM hospital Kanpur.

Injured
Shyam
Babu
has
sustained following injuries:-

(i) Abraded contusion 2 cm x 1
cm on left side of forehead over 1 cm left
eye brow.

(ii)
Complaint
of
pain
and
tenderness over right gluteal region (Hip
region) but no swelling detected.

6. It is further the case of prosecution
that on the night of 27/28.04.1979,
accused-appellants Ram Shanker, Mahesh,
Bodhu, Chhotey Lal and Ram Babu and
two other persons were apprehended near
village Jaitpur by the police of Police
Station
Shivli,
while
these
accusedappellants were planning to commit dacoity
and a case was registered against them
under Section 399/402 of IPC and Section
25 of Arms Act. After their arrest in that
case, they have confessed before the police
that they were involved in the alleged
incident of dacoity, committed at house of
informant Kailash Nath. The accused
persons were produced in Court in
''baaparda' condition (in face covered
condition). Their test identification parade
was conducted in jail on 16.06.1979 by
PW-6
Har
Govind
Sahai
Mathur,
Magistrate Kanpur. In the identification
parade, witness Kailash has identified
accused Bodhu, Chhotey Lal and Ram
Babu correctly but he could not identify
accused Mahesh, witness Devi Prasad has
identified all the five accused persons
correctly, witness Heera Lal has identified
only accused Mahesh, witness Ramesh
Chandra has identified only accused
Rameshwar
and
Ram Babu,
witness
Bhagwan Deen has identified accused Ram
Shanker, Bodhu and Ram Babu, witness
Udai Narayan has identified Ram Shanker,
Mahesh, Bodhu and Ram Babu and witness
788 INDIAN LAW REPORTS ALLAHABAD SERIES
Vansh Gopal has identified accused Ram
Shanker and Ram Babu vide identification
memo exhibit Ka-7.

7. After completion of investigation,
all the five accused persons were charge
sheeted for offence under Section 395 of
IPC.

8. Trial Court framed charge under
Section 395 of IPC against all the five
accused persons. In order to bring home
guilt of accused appellants, prosecution has
examined seven witnesses.

9. Accused persons were examined
under Section 313 Cr.P.C. wherein they
have denied the prosecution evidence and
alleged that they were known to informant
and witnesses since before the incident.
Accused Ram Shanker has alleged that his
agricultural land is adjoining to village
Maharajpur and that he has got education in
the village of informant. Accused Mahesh
Chandra has alleged that his land is situated
at Sukhkha Nivada and that boundary of
village Sukhkha Nivada and Manoh are
adjoining. Accused appellant Bodhu Singh
alleged that he runs a flour mill (aata
chakki) and informant and witnesses used
to come there for getting flour.

10. In their defence, accused persons
have filed certified copy of judgment
passed in Session Trial No. 161/1979 (State
Vs. Ram Shanker and others), under
section 399/402 IPC, copy of order passed
in Misc. Case No. 2/1981 under Section
411 IPC, statements of witnesses recorded
in session trial No. 161/1979 and all these
documents have been exhibited as Kha-1 to
Kha-5.

11. After hearing and analysing the
evidence on record, all the four accusedappellants as well as accused Chhote Lal
(since dead) were convicted under section
395 of IPC vide impugned judgment and
order dated 19/20.12.1986 and sentenced as
stated in opening part of this judgment.

12. Being aggrieved by the impugned
judgment and order, accused-appellants
have preferred present criminal appeal.

13. Heard Sri Vindhyachal Singh,
learned counsel for appellant No. 1 and Sri
P.S. Yadav, learned counsel for appellant
Nos. 2, 3 and 5 and Sri Amit Kumar Singh,
learned A.G.A. for the State and perused
the record.

14. In evidence, PW-1 Kailash Nath
has stated that on the night of incident, he
was sleeping under the thatch roof of his
house and there was light of lantern. After
hearing noise of his father, he raised an
alarm and called villagers. Bhagwan Deen
has put ''sirsori', lying outside his house, at
fire and thereby there became sufficient
light. The bandits went away after robbing
jewellery, clothes and cash from his house.
PW-1 Kailash Nath further stated that he
has recognized the miscreants in the light
of torch, fire and lantern. He has also
identified the accused persons in the Court
during his statement in court.

15. PW-2 Devi Prasad has stated that
a dacoity was committed at the house of
Kailash and others by 10-12 dacoits. He
has recognised all the five accused persons
in the light of lantern and torch. He has
identified all the five accused-appellants
during his statement in court.

16. PW-3 Udai Narayan has stated
that about four and a half year back, a
dacoity was committed at house of Kailash
Nath in the midnight. Hearing noise of
9 All. Ram Shanker & Ors. Vs. State of U.P.
789
Kailash, he had reached near door of
Kailash and he has put the ''sirsori' lying
outside his home at fire and that there was
also light of lantern. He has identified four
accused persons during his statement and
that he has also identified them in test
identification parade.

17. PW-4 Constable Rajju Prasad has
stated that on 29.07.1979 he along with
other constables has taken the accused
persons to jail and during that period, their
faces were kept coverned.

18. PW-5 Chhotey Lal Sharma has
stated that on the night of 27/28.4.1979, he
has apprehended the accused persons,
however, his statement could not be
completed as this witness could not appear
for further examination-in-chief and cross
examination,
thus,
his
mere
part
examination in chief cannot be read in
evidence.

19. PW-6 Har Govind Sahai Mathur,
Special
Executive
Magistrate
has
conducted test identification parade in
District Jail.

20. PW-7 Constable Triloki Nath is a
witness of arrest of accused-appellants.

21. Learned counsel for the accusedappellants has mainly argued that accusedappellants
are
not
named
in
first
information
report
and
that
as
per
prosecution
version,
they
were
apprehended after 35 days of the incident,
in case under Sections 399/402 IPC by
police of Police Station Shivli, Kanpur and
that their test identification parade was
conducted on 16.06.1979, ie after about 49
days of their arrest and after about 82 days
of incident, and thus, this long delay in test
identification parade has rendered the
evidence
regarding
test
identification
parade unreliable. It was stated that even
otherwise mere test identification parade is
not sufficient to base conviction of accused
appellants. No recovery has been effected
from any of the accused appellant. It was
also pointed out that accused-appellants
have already been acquitted in case under
Section 399/ 402 IPC and section 25 Arms
Act vide judgement and order dated
26.03.1981 passed by First Assistant
Sessions Judge, Kanpur and thus, their
arrest becomes fully doubtful. In this
connection, it was also stated that public
witnesses, examined in Session Trial No.
161/1979, have denied the prosecution
version
regarding
arrest
of
accused
appellants.
Learned
counsel
further
submitted that accused persons were known
to the informant and witnesses since before
the incident as they were residents of
nearby villages and that accused persons
have taken specific plea in this regard but
the FIR was lodged against unknown
persons, which indicates that the informant
and alleged witnesses have not recognized
any of the miscreant during incident and
later on accused-appellants were falsely
implicated. In support of his contentions,
learned counsel for the appellants has relied
the case of Kamlesh Vs. State of U.P. [2018
(102) ACC 199]. It was submitted that trial
court has committed grave error by
convicting the accused-appellants merely
on the basis of test identification parade,
which was thoroughly unreliable.

22. Per-contra, learned State Counsel
argued that there is clear evidence that at
the time of alleged incident, there was light
of lantern and that ''sirsori', lying outside
the house of informant, was also put at fire
and thus, there was sufficient light to
recognise the faces of miscreants. In
alleged incident, PW-2 Devi Prasad has
790 INDIAN LAW REPORTS ALLAHABAD SERIES
sustained several injuries and thus, there
was sufficient opportunity to recognise the
miscreants. All the accused-appellants were
identified during test identification parade,
which has been duly proved by PW-6 Har
Govind Sahai Mathur. It was submitted that
conviction of accused appellants is based
on evidence and it calls for no interference.

23. At the outset, it may be mentioned
that alleged incident took place in midnight and that no one was named in FIR
and that no recovery has been effected from
any
of
the
accused-appellant.
The
conviction of accused appellants is solely
based on the identification of accusedappellants.

As
per
prosecution,
alleged
incident of dacoity took place on the night
of
22/23.03.1979
and
that
accusedappellants were arrested in an another case
under Sections 399/ 402 IPC in the
intervening night of 27/28.04.1979 and that
after their arrest they have admitted their
involvement in the said incident of dacoity.
Thereafter, the test identification parade of
accused-appellants
was
conducted
on
16.06.1979. Thus, their test identification
parade was conducted after about 82 days
of the incident. It is also clear that even
after arrest of the accused-appellants, their
test identification parade was conducted
after about 49 days. There is absolutely no
explanation as to why this long delay in
conducting the test identification parade
took place.

24. It is trite to say that the
substantive evidence is the evidence of
identification in court. Apart from the clear
provisions of Section 9 of the Evidence
Act, the position in law is well settled by a
catena of decisions of the Hon'ble Apex
Court. The facts, which establish the
identity of the accused persons, are relevant
under Section 9 of the Evidence Act. As a
general rule, the substantive evidence of a
witness is the statement made in court. The
purpose of a prior test identification is to
test and strengthen the trustworthiness of
that evidence. The identification parades
belong to the stage of investigation, and
though there is no provision in the Criminal
Procedure
Code
which
obliges
the
investigating
agency
to hold
a
test
identification parade, but it is quite
desirable that the Test Identification Parade
should be conducted as early as possible,
however, at the same time, the very purpose
of conducting Test Identification Parade
during
the
investigation
is
for
the
satisfaction of the investigating officer that
the suspect is the real culprit, but the
substantive evidence is the identification of
the accused in the Court. There is no hard
and fast rule that in every case, where the
Test Identification Parade was conducted
belatedly, the identification of the accused
by the victim should be discarded.
(Budhsen and another vs. State of U.P. :
AIR 1970 SC 1321). If the delay in holding
the Test Identification Parade is duly
explained or where the delay had occurred
due to reasons beyond the control of the
investigation officer, then the delay in
holding the Test Identification Parade may
not be fatal. Thus, in nutshell, it can be said
that in each and every case, the effect of
delay in holding the Test Identification
Parade has to be considered in the peculiar
facts and circumstances of that case.

25. In Lal Singh and others Vs. State
of U.P. 2003 (12) SCC 554, the Hon'ble
Apex court in Paragraphs 28 and 43 dealt
with the value or weightage to be attached
to Test Identification Parade and the effect
of delay in holding such Test Identification
Parade. Said paragraphs are as under:-
9 All. Ram Shanker & Ors. Vs. State of U.P.
791

"28. The next question is whether
the
prosecution
has
proved
beyond
reasonable doubt that the appellants are
the real culprits. The value to be attached
to a test identification parade depends on
the facts and circumstances of each case
and no hard-and-fast rule can be laid
down. The court has to examine the facts of
the case to find out whether there was
sufficient opportunity for the witnesses to
identify the accused. The court has also to
rule out the possibility of their having been
shown to the witnesses before holding a test
identification parade. Where there is an
inordinate
delay
in
holding
a
test
identification parade, the court must adopt
a cautious approach so as to prevent
miscarriage
of
justice.
In
cases
of
inordinate delay, it may be that the
witnesses may forget the features of the
accused put up for identification in the test
identification parade. This, however, is not
an absolute rule because it depends upon
the facts of each case and the opportunity
which the witnesses had to notice the
features
of
the
accused
and
the
circumstances in which they had seen the
accused committing the offence. Where the
witness had only a fleeting glimpse of the
accused at the time of occurrence, delay in
holding a test identification parade has to
be viewed seriously. Where, however, the
court is satisfied that the witnesses had
ample opportunity of seeing the accused at
the time of the commission of the offence
and there is no chance of mistaken identity,
delay in holding the test identification
parade may not be held to be fatal. It all
depends upon the facts and circumstances
of each case.

43, It will thus be seen that the
evidence of identification has to be
considered in the peculiar facts and
circumstances of each case. Though it is
desirable to hold the test identification
parade at the earliest- possible opportunity,
no hard-and-fast rule can be laid down in
this regard. If the delay is inordinate and
there
is
evidence
probabilising
the
possibility of the accused having been
shown to the witnesses, the court may not
act on the basis of such evidence.
Moreover, cases where the conviction is
based
not
solely
on
the
basis
of
identification in court, but on the basis of
other corroborative evidence, such as
recovery of looted articles, stand on a
different footing and the court has to
consider the evidence in its entirety."

26. In Soni vs. State of U.P. : (1982)
3 SCC 368, test identification parade was
held after a lapse of 42 days from the date
of arrest of the appellant. The delay in
holding the test identification parade
created a doubt in the genuineness thereof,
apart from the fact that it may be difficult
that after lapse of such a long time the
witnesses would be remembering the facial
expressions of the appellant. The Hon'ble
Apex Court, therefore, held that if this
evidence cannot be relied upon and there is
no other evidence which can sustain the
conviction of the appellant. In these
circumstances the appellant was acquitted

27. In Subhash and another vs. State
of U.P. : AIR 1987 SC 1222 the test
identification parade was held three weeks
after the arrest of the appellant and it was
observed that there was a room for doubt as
to whether the delay in holding the test
identification parade was in order to enable
the identifying witnesses to see him in the
police lock-up or in the jail premises and
make a note of his features. The Court also
noticed that 4 months had elapsed between
the date of occurrence and the date of
holding of the test identification parade.
792 INDIAN LAW REPORTS ALLAHABAD SERIES
The descriptive particulars of the appellant
were not given when the report was lodged.
But while deposing before the Sessions
Judge, the witnesses had stated that the
appellant was a tall person and had sallow
complexion. It was observed that if on
account of these features the witnesses
were able to identify appellant at the
identification parade, they would have
certainly mentioned about them at the
earliest point of time when his face was
fresh in their memory. As the conviction of
the appellant was based solely on the
identification at the test identification
parade, the Apex Court extended benefit of
doubt to the appellant, while upholding the
conviction of the co-accused. There being a
delay in holding the test identification
parade and in the absence of corroborative
evidence, the Apex Court found it unsafe to
uphold his conviction.

28. In Anil Kumar v. State of U.P.
reported in (2003) 3 SCC 569 the Supreme
Court has observed as under:

"9. ... It is to be seen that apart
from stating that delay throws a doubt on
the genuineness of the identification parade
and observing that after lapse of such a
long time it would be difficult for the
witnesses
to
remember
the
facial
expressions, no other reasoning is given
why such a small delay would be fatal."

29. In Muthuswami v. State of
Madras AIR 1954 SC 4, 1954 Cri LJ 236,
where an identification parade was held
about 21⁄2 months after the occurrence, it it
was held that it would not be safe to place
reliance on the identification of the accused
by the eyewitnesses.

30. In another case Mohd. Abdul
Hafeez v. State of A.P. AIR 1983 SC 367
(1983) 1 SCC 143, it was held that where
the witnesses had not given any description
of the accused in the first information
report, their identification of the accused at
the sessions trial cannot be safely accepted
by the court for awarding conviction to the
accused.

31. Similarly the issue of delay
weighed with the Hon'ble Supreme court in
Musheer Khan vs. State of M.P.2010 (2)
SCC 748 in discarding the evidence
regarding test identification as under:

"8. Insofar as the identification of
A-5 is concerned that has taken place at a
very
delayed
stage,
namely,
his
identification took place on 24-1-2001 and
the incident is of 29-11-2000, even though
A-5 was arrested on 22-12- 2000. There is
no explanation why his identification
parade was held on 24- 1-2001 which is
after a gap of over a month from the date of
arrest and after about 3 months from the
date of the incident. No reliance ought to
have been placed by the courts below or
the High Court on such delayed TI parade
for which there is no explanation by the
prosecution."

32. In the instant case, as noticed
earlier, the alleged incident of dacoity took
place on the night of 22/23.03.1979 and
thereafter the accused-appellants were
arrested on the night of 27/28.04.1979 in an
another case under Sections 399/ 402 IPC,
wherein allegedly they have disclosed their
involvement in the said incident of dacoity.
However, their test identification parade of
accused-appellants
was
conducted
on
16.06.1979, that is after about 82 days of
the incident and 49 days of their arrest.
Prosecution
has
not
offered
any
explanation, what so ever, regarding this
long delay in holding the Test Identification
9 All. Ram Shanker & Ors. Vs. State of U.P.
793
Parade
of
accused-appellants.
The
investigating officer of the case has not
been examined by the prosecution. In fact
there is absolutely no explanation as to why
this long delay took place in conducting
test identification parade took place.

33. Considering the above stated legal
position,
in
the
peculiar
facts
and
circumstances of the instant case, it can not
be ruled out that the delay of seven weeks
in holding the test identification parade of
accused-appellants was in order to enable
the identifying witnesses to see them in the
police lock-up or in the jail premises and
make a note of his features. Here it would
be pertinent to mention that in the first
information report, no specific descriptive
features/ particulars of alleged dacoits were
mentioned. Only it was mentioned that
some bandits were of dusky complexion
and some of wheatish. It is a too general
description to identify a person after about
three months of incident. Alleged incident
took place in mid night. It appears doubtful
that on account of such common features
the witnesses were able to identify accusedappellants after three months of incident in
the identification parade. It may also be
noticed that after their arrest, during the
above stated period of 49 days, the accused
appellants might have been produced
before the court of Magistrate for several
times for extension of their judicial remand
but there is no evidence that whenever they
were taken into court or produced in court
for extension of judicial remand, they were
kept ''baaparda'. All these facts give rise to
a serious doubt about the genuineness of
the identification parade of the accusedappellants.

34. Further, the accused-appellants
have taken specific pleas that they were
known to the informant and the witnesses
since
before
the
incident.
Accusedappellant Ram Shanker, in his statement
under Section 313 Cr.P.C., stated that his
agricultural land is just adjoining with the
informant's village and that informant and
witnesses were known to him since before
the incident. Accused-appellant Mahesh has
also taken a similar plea. Accused-appellant
Bodhu Singh has stated that he runs a flour
mill (aata chakki) and that informant and
witnesses used to visit his flour grinder for
grinding flour and thus, they know him
since
before
the
incident.
Accusedappellant Ram Babu has alleged that his
land is also adjoining to the land of
informant. Here it may be stated that in his
cross examination, PW-1 Kailash Nath has
not denied the suggestion that accusedappellant Ram Shanker used to study in his
village and that he has worked as tailor in
his village. PW-1 has admitted that the
village of accused-appellant Ram Shanker
is situated at a distance of one kilometer
from his village. In his cross-examination,
PW-1 Kailash Nath has also stated that
there are 3-4 flour grinder in village
Abdulpur but he does not know whether
one of the flour grinder is of accused
Bodhu Singh. In his cross examination,
PW-2 Devi Prasad has stated that he came
to know about the villages of accusedappellants outside the gate of jail, while he
has gone for test identification parade. This
fact shows that he was already aware about
the villages of accused-appellants before
the test identification parade. PW-3 Uday
Narayan has admitted in his crossexamination that accused-appellant Ram
Shanker is a resident of Maharaj Nagar and
that agricultural land of Maharaj Nagar is
adjoining to the land of his village. PW-3
has also admitted that some time he used to
visit village Sukha Navada but he is not
aware whether land of father of accused
Mahesh is situated in that village or not. It
794 INDIAN LAW REPORTS ALLAHABAD SERIES
is apparent that all the accused-appellants
were
residents
of
nearby
villages.
Considering all these facts, this possibility
cannot be ruled out that accused-appellants
were known to the informant and other
witnesses since before the incident. Further,
as stated earlier, in the first information
report, no specific descriptive particulars of
alleged
miscreants
/
dacoits
were
mentioned. Only it was mentioned that
some bandits were of dusky complexion
and some of wheatish. As stated earlier, it is
a too general description to identify a
person after long period of several months
of the incident.

35. In case of Kamlesh V State of UP
(supra), relied by learned counsel for
appellants, the Division Bench of this court
held as under:

''27.
The
evidence
of
identification is no exception to the
definition of the word 'proof' in section 3 of
the Evidence Act. The court should
approach the evidence of identification with
the reasonable doubts of an intelligent
person and accept it only if those doubts
were removed. In order to remove these
doubts, the touchstone to be adopted could
be (i) fair, if not good, opportunity of the
witness for observation, (ii) reasonable
time within which the identification was
made, (iii) reliable power of observation of
the witness, (iv) his credibility, and (v) the
fact
whether
the
witness
got
any
opportunity to identify the accused at the
time of incident and also after arrest of the
accused. The crucial requirement would be
the satisfaction of the court on the
acceptability of the identification.

28. The condition precedent for
accepting the evidence of identification
should be fair and beyond approach to
secure that it has to be ensured that prior to
the test identification that suspect was not
shown
to
the
identity
witness
and
identification
was
held
in
manner
stipulated by the Criminal Manual. When
the learned trial court itself has observed
that the miscreants were shown to the
witnesses because all the three miscreants
and witnesses were present in the police
station on that date, then this possibility
cannot be ruled out that this appellant was
also shown to the witnesses in advance to
the test identification parade. The appellant
has clearly stated in his statement recorded
under Section 313 Cr.P.C. that police men
had taken his photograph from his mother,
which was shown to the witnesses and on
that basis he was identified by the
witnesses.

29. When a witness identifies an
accused in court, court has to appreciate
the evidence in the light of its intrinsic
worth,
other
evidence,
circumstances
probabilities.30. If the witness knew any
miscreant, obviously it is a matter of
recognition, if not, it is a matter of
identification. Recognition of a familiar
person is certainly more reliable than
identification of stranger. When a stranger
witness identifies an accused in court, the
court, by way of caution or prudence may
seek same assurance before accepting the
identification as correct. This assurance
may be available from other sources and
circumstances.

30. When the persons are known,
identification is possible from the physique,
gesture of movement, manner of walking
etc. and gesticulating and special features
of a person like the physical attributes; in
such cases even where a light is dim, known
persons can be successfully identified as
was held in State of U.P. Vs. Babu, AIR
9 All. Ram Shanker & Ors. Vs. State of U.P.
795
2003 SC 3408. But here this is not a case
because no miscreant is known to any of
the witnesses, no source of light has been
proved, then no question arises to identify
any of the miscreant on the spot by any of
the witness. It is also proved that
occurrence had taken place during early
hours of the day, but there was darkness
and only dim light of the trucks were
present. In our opinion this was not
sufficient for any person to identify and
recognize any person and have their phiz in
their memory for such a long time. It is also
very important to note here that when
miscreants
came
on
the
spot,
they
immediately started beating the persons
present there. In that circumstance all these
witnesses must have been in a state of daze
as they were themselves one of the victims
and father of one of the victim was shot
dead on the spot. In such circumstances it
was not possible for any of the witness to
identify any miscreant and to remember
phiz for such a long period. In these
circumstances, in our opinion it would not
be reasonable and proper to accept the
evidence of identification that recorded the
conviction on that basis''.

36. In case of Budhsen and another
vs. State of U.P. : AIR 1970 SC 1321, the
prosecution case depended upon the
identification of the appellants and this
identification was founded solely on test
identification parade. The Apex Court
found that the High Court had not correctly
appreciated the evidentiary value of these
parades though they had treated it as the
primary evidence in support of the
prosecution case. It was observed that the
High Court seems to have proceeded on the
erroneous legal assumption that it was a
substantive piece of evidence and that on
the basis of that evidence alone the
conviction could be sustained. The Court
also ignored important evidence on the
record in regard to the manner in which the
test identification parades were held
suggesting that they were held more or less
in a mechanical way without the necessary
precautions being taken to eliminate
unfairness. It was observed that this was
clearly an erroneous way of dealing with
the test identification parades and had
caused
failure
of
justice.
In
these
circumstances that the Apex Court set aside
the conviction of the appellants in that case,
which
was
based
solely
on
the
identification of the appellants in a test
identification parade.

37. In the instant case after careful
consideration of the evidence and attending
facts and circumstances of case, it appears
that the witnesses had no fair opportunity to
see the accused-persons or note their
special features on spot because there was
no occasion for the witnesses to fix
themselves in the memory as incident took
place suddenly and in the mid of night and
that this possibility can not be ruled out that
accused-appellants
were
known
to
witnesses since before the incident, and
thus, the identification made by the
witnesses in the court cannot be found free
from doubt. There is no evidence that
accused-appellants have any special and
outstanding feature which enabled the
witnesses to carefully mark the visages of
the appellants so that witnesses could
identify him even after a long gap. Only by
identifying the appellants in TIP and in
court would not be sufficient to convict the
appellant as the value to be attached to
identification evidence would depend on
the facts of each case. The evidence of
identification in order to carry conviction
should ordinarily clarify as to how and
under what circumstances the identifying
witnesses came to pick out the particular
796 INDIAN LAW REPORTS ALLAHABAD SERIES
accused person, details of the part which
the accused played in the crime in question
with reasonable particularity. In the instant
case it would also be pertinent to state that
no specific role was assigned to any of the
accused-appellant. The injury report of PW
2 Devi Prasad has been filed on record but
in his statement, he has not stated a single
word that he sustained injury in the said
incident nor he has assigned any specific
role or weapon to any of the accusedappellant. In view of these facts, the
identification of accused-appellants
in
alleged test identification parade becomes
throughly doubtful. Since the identification
in test identification parade is doubtful,
thus the alleged dock identification of
accused-appellants also loses its credibility.

38. No doubt the substantive evidence
is the evidence of identification in court
and
that
purpose
of
a
prior
test
identification is to test and strengthen the
trustworthiness of that evidence, however
in the instant case long and undue delay in
holding the test identification parade, non
mentioning of any specific features or
identification marks of the miscreants in
first
information
report,
absence
of
evidence that after their arrest accusedappellants were kept ''baaparda'' whenever
they were produced in Court before their
test identification report and the possibility
that accused-appellants were known to
witnesses since before the incident, render
the evidence of the said eye-witnesses
regrding
identification
of
accusedappellants
throughly
doubtful
and
unreliable.

39. One important aspect of the
matter is that accused-appellants were
arrested on the night of 27/28.04.1979 in a
case under Section 399/ 402 of IPC and
thereafter, they have disclosed about their
involvement in the alleged incident of
dacoity. All the accused-appellants have
already been acquitted by judgment and
order dated 26.03.1981 passed by Ist Asstt.
Sessions Judge, Kanpur in session trial No.
161/1979. It would also be relevant to
mention here that in that case public
witness Kanhai, Gangaram and Radhey
Shyam have stated that accused persons
were not apprehended in their presence and
they have denied the prosecution version
regarding arrest of accused-appellants in
said case under Section 399/ 402 of IPC.
There is nothing to show that any appeal
has been filed against the said judgement
and order dated 26.03.1981 and thus, that
judgment has become final. Accused
persons have filed certified copy of
judgment of session trial No. 161 of 1979,
under Section 399 / 402 IPC as well as
certified copies of statements of above
stated witnesses of that case.