# State of U.P v. Avadh Ram & Ors

- **Citation:** (2020) 6 ILRA 1023
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-19
- **Case number:** Criminal Appeal No. 15 of 1982
- **Bench:** Anil Kumar, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-avadh-ram-ors-45745
- **Pages:** 14

## Headnote

Criminal Law-Indian Penal Code, 1860Section-396- Appeal against conviction.

Test Identification Parade-
The evidence of identification parade is not a
substantive evidence, its only corroborative
evidence.(Para-38)

Thus if evidence of TIP is shaky and doubtful
due
to
this
reason,
the
evidence
of
identification before the court cannot be relied
upon. This case is based only on TIP evidence.
(Para-37)

Criminal Appeal rejected. (E-2)

List of cases cited: -

## Text

_Characters 0–39,952 of 45,739. This is a partial read: ask again with offset=39952 for what follows._

6 All. State of U.P. Vs. Avadh Ram & Ors. 1023
confirmation of Death sentence awarded
to the appellant Ram Gopal Saini s/o Ram
Naresh Saini r/o Mohalla Hayatganj,
Police Station Kotwali Tanda, District
Ambedkar Nagar in reference case
no.1/2017 (Capital Sentence) is declined.

D) Copy of the order be sent to
the Jail Superintendent of District Jail,
Ambedkar
Nagar
for
necessary
compliance under intimation of the Court.

E) Copy of the order be also
sent to the District Judge, Ambedkar
Nagar for information and necessary
action pursuant to the order passed by this
Court in Criminal Appeal No. 358 of
2017 and Capital Punishment reference
case
No.1
of
2017
for
necessary
compliance under intimation to the Court.

F)
The
Deputy
Registrar
(Criminal) is directed to enter the
judgment
in
compliance
register
maintained for the purpose in the Court
and to intimate the compliance to the
Court within a maximum period of 10
days.
----------

(2020)06ILR A1023
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.06.2020

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 15 of 1982

State of U.P. ...Appellant
Versus
Avadh Ram & Ors. ...Respondents

Counsel for the Appellant:
G.A.

Counsel for the Respondents:
Badri Prasad, B N Rai, Shiv Pal Singh,
Subodh Kumar Shukla

Criminal Law-Indian Penal Code, 1860Section-396- Appeal against conviction.

Test Identification Parade-
The evidence of identification parade is not a
substantive evidence, its only corroborative
evidence.(Para-38)

Thus if evidence of TIP is shaky and doubtful
due
to
this
reason,
the
evidence
of
identification before the court cannot be relied
upon. This case is based only on TIP evidence.
(Para-37)

Criminal Appeal rejected. (E-2)

List of cases cited: -

1. Shaikh Umar & anr. Vs St.of Maha. AIR
1998 SC.

2. Surajpal Singh & ors. Vs St. of Punjab, AIR
1952 SC 52

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

The instant appeal has been filed
against the judgment and order dated
06.02.1981, passed by the IInd Additional
Sessions Judge, Bahraich, in S.T. No. 417
of 1979 (State vs. Awadh Ram and
others), arising out of the Case Crime No.
43 of 1979, under Section-396 IPC,
Police Station (in short P.S.) Sonwa,
District-Bahraich whereby respondentsaccused (hereinafter referred to as 'the
respondents,)
Awadh
Ram,
Piarey,
Chhotey, Gaya Prasad, Jhabbar, Kallan,
Azeem Sain, Bharosey and Hari Ram
have been acquitted by the trial Court
from the charge for offence under Section
396 IPC.
1024 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The brief facts, arising out of this
appeal, are that Awadh Ram, (Pw-1),
informant, resident of village Majhawwa
Bujurg, P.S.- Sonwa, District Bahraich,
lodged first information report (in short
FIR) (Ext. Ka-1), on 03.7.1979 at 6.40
A.M.,
stating
therein
that
in
the
intervening night of 2/3 July, 1979, he,
his father Samaydin, brother Faren and
other family members were sleeping
outside his house whereas the ladies were
sleeping inside the house. A lantern was
emitting light on the Darawaja (outer door
of Court-yard) of the house. At about
00.30 A.M., 18-20 dacoits appeared at his
house and as they dashed the door, he and
other family members, sleeping outside
the house, got-up. It is further stated that
when the informant (Pw-1) and his other
family members asked about the identity
of the dacoits , they started to beat them
by Lathi- Danda and by removing the
Tatia (temporary partition made by gross
and wood), they, armed with Lathi,
Danda, Pistol, Gun, Ballam and Torches,
entered into his house . Informant (Pw-1)
and his family members raised alarm
whereupon Faquirey (Pw-5), Munna (not
examined), Pahalwan (not examined),
Ashok Kumar (not examined), Ram
Adhar (not examined) Daya Ram (not
examined), deceased Ram Sumiran ,
Autar (not examined) and other covillagers came with Torches, Lathi,
Danda and Beroo. Ashok Kumar put fire
on Jhakhar (heap of Chara) which
emitted sufficient light to identify the
dacoits. It is further stated in FIR that
dacoits started fire with gun and country
made pistol which caused injury to
Samaydin,
Smt.
Dulara
(wife
of
informant), and Ram Sumiran and they
died on the spot. Since the dacoits were
bent upon to kill so many people of the
village, the villagers challenged the
dacoits and attacked upon them with
Lathi, Danda, Beroo , brick and stones;
one dacoit was caught and died on the
spot, due to injuries caused by the
villagers, crying Sardar- Sardar and some
dacoits had also got serious injuries in
counter attack. It is further stated that
dacoits
remained
at
the
place
of
occurrence about half-an-hour and looted
the house of Chhotey Lal (not examined),
Ram Autar (not examined) and Maya
Ram (not examined), besides the house of
informant and thereafter they escaped
from the place of occurrence towards
western side of the village after looting
the jewelery and cash. It is further stated
in FIR that Faquirey (Pw-5),Munna
Lal(not examined) and Sarojini (not
examined) also got serious injuries,
caused by dacoits and they had been sent
to Sadar Hospital, Bahraich for treatment
. It is further stated that dacoits had been
identified in the light of torches, lantern
and light emitted from burning of
Jhakhar.

3. On the basis of the said
information, the Chik report (Ext.-Ka 4)
was prepared, a case was registered on
report No.9 at 06.40 A.M. on 03.07.2019
(Ext. Ka-5) and investigation of the case
was entrusted to Sub Inspector (In short
S.I). Sukh Sagar Singh (Pw-7) who
rushed to the place of occurrence,
inspected the dead body of Samaydin,
Smt. Dulara Devi, Ram Sumiran and
unknown dacoits, prepared inquest memo
of the dead bodies and other relevant
papers (Ext. Ka-6 to Ext. Ka-17), required
for post-mortem examination,sent the
dead bodies to District Hospital Baharich
for post-mortum examination, recorded
the statement of Awadh Ram (Pw-1),
Budh Sagar (Pw-2), Tula Ram (Pw-3),
Devesh Kumar (Pw-4), Faquirey (Pw-5)
6 All. State of U.P. Vs. Avadh Ram & Ors. 1025
and other witnesses, inspected the place
of occurrence and prepared site plan
(Ext.Ka-18), took the sample of blood
stained and plane earth, a pair of Sandle,
one shoe, empty cartridges, ashes of burnt
Jhakhar from the place of occurrence ,
inspected the lantern and torches and
prepared memo (Ext. Ka-19 to Ext.Ka25). Meanwhile the investigation was
undertaken by Station Officer Sonwa, S.I.
Rana Pratap Singh (Pw-9) on 05.07.1979
who arrested the respondent Awadh Ram
and also sent instructions to S.I. T.N.
Singh (Pw-8) of Police Station Hardi for
arrest of other respondents. S.I. Ram
Nagina Singh (Pw-6) arrested respondents
Hari Ram, Azeem Sain and Bharosey, S.I.
T.N. Singh (Pw-8) arrested respondents
Tej Bahadur, Gaya Prasad, Chhotey, S.I.
Shyam Nath Singh (Pw-10) arrested
respondent Kallan, S.I. Mehndi Hasan
(Pw-13) arrested respondent Jhabbar, and
Constable(In short Const.) Daya Shanker
(Pw-16) arrested respondent Piarey.

4. After arrest of respondents, S.I.
Rana Pratap Singh (Pw-9) also sent a
report for Test Identification Parade (in
short ''TIP'). Upon such report, TIP of
thirteen person namely Awadh Ram,
Piarey , Chhotey, Gaya Prasad, Jhabbar,
Kallan, Azeem Sain, Bharosey, Hari Ram
Tej Bahadur, Lalji , Jhabbar @ Rafeeq
and Kirau , was conducted in District Jail
Bahraich on 26.07.1979 before Ram
Achhaibar
Singh
(Pw-14),
Extra
Magistrate Bahraich, by Awadh Ram
(Pw-1), Budh Sagar (Pw-2), Tula Ram
(Pw-3), Devesh Kumar (Pw-4), Faquirey
(Pw-5),
Amerika
(not
examined),
Ramadhar (not examined), Ramavtar (not
examined) and Pahalwan (not examined).
Awadh
Ram
(Pw-1)
identified
six
respondents Awadh Ram, Piarey, Gaya
Prasad, Jhabbar, Kallan, and Hari Ram
and one accused Tej Bahadur (since
deceased). Budh Sagar (Pw-2) identified
six respondents Awadh Ram, Piarey,
Chhotey, Gaya Prasad, Jhabbar, and
Kallan. Tula Ram (Pw-3) identified three
respondents Chhotey, Jhabbar, Kallan
including one accused Tej Bahadur (since
deceased).
Devesh
Kumar
(Pw-4)
identified all the respondents including
one
accused
Tej
Bahadur
(since
deceased). Faquirey (Pw-5) identified five
respondents
Awadh
Ram,
Piarey,
Chhotey Lal, Gaya Prasad and Jhabbar
and one accused Tej Bahadur (since
deceased). Pw-14, on the performance of
the witnesses, prepared TIP report (Ext.-
34). After investigation, PW-9 submitted
a charge sheet (Ext. Ka- 28) only against
the respondents Awadh Ram, Piarey,
Chhotey Lal, Gaya Prasad, Jhabbar,
Kallan, Azeem Sain, Bharosey, Hari Ram
including accused Tej Bahadur, Lalji ,
Jhabbar@ Rafeeq and Kirau before the
competent Magistrate, who, since the
offence was exclusively triable by the
Court of Session, after providing the
copies of relevant documents in view of
Section 207 of Code of Criminal
Procedure
1973
(in
short
Code),
committed the case for trial to the Court
of Session Judge, Bahraich.

5. Learned counsel appearing for the
State and defence were heard at the stage
of framing of charge by the trial Court ;
Lalji , Jhabbar @ Rafeeq and Kirau were
discharged whereas charge was framed
against
respondents
including
one
accused Tej Bahadur, who died during
trial.

6. In order to prove its case, the
prosecution examined Awadh Ram (Pw1), Budh Sagar (Pw-2), Tula Ram (Pw-3),
Devesh Kumar (Pw-4), Faquirey (Pw-5),
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
S.I. Ram Nagina Singh (Pw-6), Sukh
Sagar (Pw-7), S.I. T.N. Singh (Pw-8), S.I.
Rana Pratap Singh (Pw-9), S.I. Shyam
Nath Singh (Pw-10), Const. Govinda
Prasad Awasthi (Pw-11), Const. Brij
Mohan Pathak (Pw-12), Const. Mehndi
Hasan (Pw-13), Ram Achhaibar Singh
(Pw-14), Const. Ashok Kumar Singh
(Pw-15) and Const. Dayashankar Singh
(Pw-16). Awadh Ram (Pw-1); Budh
Sagar (Pw-2); Tula Ram (Pw-3), Devesh
Kumar (Pw-4) and Faquirey (Pw-5) are
witnesses of fact as well as eye-witnesses
whereas rest witnesses are formal witness.

7. After conclusion of prosecution
evidence, statement of respondents were
recorded under Section 313 of the Code
wherein they denied the prosecution story
and stated that they had been falsely
implicated. They further stated that they
were arrested from their houses; their
photographs were taken in the police
station; prosecution witnesses already knew
them and they were shown to the
prosecution
witnesses
prior
to
TIP.
Respondent Awadh Ram further stated that
Awadh Ram, Tula Ram, Devesh Kumar,
Pahalwan, Budh Sagar (Pw-1 to Pw-5)
respectively, already were knowing him
prior to alleged incident as his maternal
uncle Kandhai Lal (Cw-1) resides in village
Manjhawa Bujurg who was neighbour of
the informant Awadh Ram (Pw-1) and
other prosecution witnesses. He further
stated that a second daughter of CW-1 was
married with his elder brother and since no
one was available to look after the
agricultural farming of Kandhai Lal, he
used to look after his farming, Awadh Ram
(Pw-1) used to quarrel with Khandhai Lal
(Cw-1) and falsely implicated him.

8. Respondent-Chhotey further stated
that he is relative of respondent Awadh
Ram; Kandhai (Cw-1) who is in-laws of
respondent Awadh Ram , resides in village
Manjhawa Bujurg, is neighbour of the
informant (Pw-1). He also used to go to the
village of CW-1. Respondents Hari Ram
and Bharosey further stated that they were
servant for only Rs.30/- of village Pradhan
Ikrauli and left his service , hence they were
falsely implicated. Respondent Gaya Prasad
stated that he was falsely implicated by the
police and he was shown to the witnesses at
Kotwali and his photo was also taken.
Respondent Azeem Sain further stated that
Devesh Kumar (Pw-4) had caused an
accident by his by-cycle wherein his goat
was injured, and due to dispute whereof he
was falsely implicated.

9. Kandhai (Cw-1) ,resident of
Majhawwa Bujurg, P.S.- Sonwa, District
Bahraich, was produced before Trial
Court by the respondents, in their
defence,
who
stated
that
his
two
daughters namely, Parwati and Kalawati
had been married with Kailash and
respondent Awadh Ram, who were sons
of Ram Lautan and respondent Awadh
Ram is his son-in-law. He further stated
that respondent Awadh Ram used to come
frequently at his house.

10. After conclusion of evidence of
both sides and hearing the arguments of
learned counsel for both sides the learned
trial Court acquitted all the respondents
vide impugned judgment and order.
Aggrieved by the said judgment and order
the State has filed this appeal.

11. During pendency of the appeal,
the respondent Chhotey Lal and Gaya
Prasad did not appear despite repeated
notices, hence the appeal against them
was
separated
vide
order
dated
05.07.1982, while respondent no.7 Azeem
6 All. State of U.P. Vs. Avadh Ram & Ors. 1027
Sain and respondent no.8 Bharosey had
died during pendency of appeal. The
appeal filed against them has been abated
vide order dated 10.02.2020.

12. Heard Sri Badrul Hasan learned
A.G.A. appearing for appellant-State, Mr.
Subodh Kumar Shukla learned counsel
for remaining respondents Awadh Ram,
Piarey, Jhabbar, Kallan, and Hari Ram,
and perused the record.

13. Learned A.G.A. has submitted
that respondents had been properly
identified by the prosecution witnesses at
the time of occurrence in the TIP and also
before the trial Court during their
examination. Learned A.G.A. further
submitted that there was sufficient light of
torches, Jhakhar, burnt at the place of
occurrence, and lantern wherein the
respondents were identified. Learned
A.G.A. further submitted that trial Court
did not properly appreciated the evidence.
Learned A.G.A. further submitted that
judgment of trial Court, based on the
premises that respondents were shown to
the witnesses in Police Station before
TIP, is baseless because no such plea was
taken by the respondents before the trial
Court. Learned A.G.A. further submitted
that the impugned judgment and order is
against the settled principle of law, liable
to be set aside and appeal be allowed.

14. Per-contra learned counsel
appearing for the respondents submitted
that prosecution has miserably failed to
prove its case beyond reasonable doubt.
The finding of trial Court that respondent
Awadh Ram is son-in-law as well as
nephew (Bhanja) of Kandhai (Cw-1) who
is neighbour of Awadh Ram (Pw-1) is not
disputed.
Learned
counsel
further
submitted that the prosecution story
regarding the source of light at the place
of occurrence is also doubtful . Learned
counsel further submitted that Budh Sagar
(Pw-2) has not supported the prosecution
case whereas the presence of Tula Ram
(Pw-3) and Devesh Kumar (Pw-4) at the
place of occurrence is also doubtful.
Learned counsel further submitted that
the witnesses ( Pw-2, Pw-3 and Pw-4),
produced by the prosecution, are also not
named in the FIR and the prosecution has
not put any explanation as to why the
prosecution witnesses ,except Faquirey
(Pw-5), named in the FIR, were not
produced before the trial Court. Learned
counsel further submitted that sole
evidence of identification is not reliable
because the respondents were already
known to the prosecution witnesses prior
to the occurrence, they had also been
shown to witnesses and their photographs
had also been taken by police prior to TIP
proceeding. .Learned counsel further
submitted
that
the
respondents
are
innocent,
they
have
been
falsely
implicated and the judgment and order
passed by the learned trial Court is well
discussed and according to the settled
principle of law and there is no
requirement of interference in this appeal
by this Court and the appeal is liable to be
dismissed.

15. We have considered the
arguments led by learned counsel for both
the parties and perused the record.

16. The occurrence in question, that
dacoity was caused in the intervening
night of 2/3.7.1979 at about 00.30 A.M.
in the village Majjhawa Bujurg P.S.-
Sonwa, District Bahraich wherein three
persons namely, Samaydin, Ram Sumiran
and Dulara were killed including one
dacoit was killed on the spot and
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
Munnalal, Faquirey (Pw-5) and Sarojni
were injured, is not disputed.

17. Ram Awadh (Pw1), informant
and star witness of the prosecution, while
supporting the prosecution case, as stated
in the FIR lodged by him, has admitted in
cross-examination that injured Munnalal,
Sarojni
and
Faquirey
(Pw-5)
and
deceased Samaydin, Dulara and Sumiran
had not received injury in his presence as
he had gone in village to raise alarm for
witnesses. So far as the light of lantern is
concerned he stated that it was very
dimmer when he went to sleep. However,
he further stated that all the dacoits were
without any precaution to conceal their
identity but he did not mention any
distinction or particular of identity of any
dacoits. He further admitted that he had
come to Bahraich with other witnesses
after 13-14 days of the occurrence. He
further admitted that respondent Jhhabbar
is dark black and also admitted that house
of Kandhai (Cw-1) is in the south of his
house but he did not know that his one
daughter had been married to the
respondent Awadh Ram and another to
his brother.

18. Budh Sagar (Pw-2) supported
the prosecution story in examination in
chief but in the cross-examination he did
not support the prosecution story and
admitted that in the intervening night
when the occurrence took place he was
not present at the place of occurrence as
he had gone to village Bibipur to
participate Gauna ceremony of his brother
Anirudh Kumar and returned in the
morning of 03.07.1979. He further
admitted that he had given statement in
examination in chief , due to fear of
police.

19. Tula Ram (Pw-3) is another eye
witness who has admitted that at the time
of occurrence he was teacher Salon Risia
situated at a distance of 4 miles from the
place of occurrence. He further admitted
that he had not seen that Munna, Faquirey
(Pw-5) and Sarojni were injured. He also
admitted that he had not seen fire arm
injury at Simiran. He also admitted that
he had not seen fire on deceased Simiran,
Dulara, and Samaydin and when he saw
them, they were already dead.

20. Devesh Kumar ( Pw-4) was
student at the time of occurrence. He
admitted that dacoits were 18-20 in
number and he had seen all the dacoits by
face but he was not carrying a torch at
that time. He further admitted that he had
not
informed
any
description
or
identification
marks
of
dacoits
to
Investigating Officer.

21. Faquirey (Pw-5) has stated that
he had informed the description and
identification
marks
of
dacoits
to
Investigating Officer but he could not
give an explanation as to why the
investigating officer had not noted that
fact in his statement. S.I. Sukh Sagar
Singh (Pw-7), I investigating officer, who
had recorded the statement of witnesses
during investigation, has admitted that
Faquirey (Pw-5), in his statement, had not
stated any description or identification
mark of any dacoits.

22. S.I. Rana Pratap Singh (Pw-9),
II investigating officer, arrested the
respondent Awadh Ram and filed charge
sheet (Ext.Ka-28),after the investigation.

23. Ram Achhaibar Singh (Pw-14),
extra magistrate, conducted the TIP of the
6 All. State of U.P. Vs. Avadh Ram & Ors. 1029
respondents and prepared TIP report
(Ext.Ka-34).

24. S.I. Ram Nagina Singh (Pw-6),
S.I. T.N. Singh (Pw-8), S.I. Shyam Nath
Singh (Pw-10), Const. Mehndi Hasan
(Pw-13), , and Const. Dayashankar Singh
(Pw-16) are the arresting police officers
of
the
respondents
whereas
Const.
Govinda Prasad Awasthi (Pw-11),Const.
Brij Mohan Pathak (Pw-12) and Const.
Ashok Kumar Singh (Pw-15) are the
police officers who took away the
respondents to District Jail Bahraich ,after
their arrest.

25. Trial Court disbelieved the
testimony
of
aforesaid
prosecution
witnesses
on
the
ground
that
the
respondent Awadh Ram was married to
the daughter of Kandhai (Cw-1) who is
co-villager of the aforesaid prosecution
witnesses and neighbour of informant
Awadh Ram (Pw-1). Trial Court also
found that Investigating Officer has also
shown the house of Kandhai (Cw-1)
adjoining the house of Awadh Ram (Pw1) and Chhotey Lal. Respondent Awadh
Ram has not only his Sasural in the house
of Kandhai (Cw-1) but sister of Kandhai
(Cw-1) was also his mother. On that
count the trial Court was of the view that
the respondent Awadh Ram had been
frequently visiting to the maternal relation
as well as his in-laws to the house of
Kandhai (Cw-1), adjoining to the place of
occurrence and the statement of Awadh
Ram (Pw-1) that he did not know the
respondent Awadh Ram, according to the
trial Court was not reliable. The trial
Court also found that Awadh Ram (Pw-1)
has admitted in his examination in chief
that respondent Hari Ram and respondent
Bharosey (since deceased) were real
brother who were resident of village
Dehwa, sitauted at a distance of 2-3
furlong from the place of occurrence. The
trial Court was of the view that identity of
respondent Awadh Ram, Hari Ram and
Bharosey (since deceased) were presumed
to be known to Awadh Ram (Pw-1) and if
they were present at the time and place of
occurrence their names should have been
disclosed in the FIR.

26. In addition to above the trial
Court further found that neither any
identification marks of dacoits were
mentioned in the FIR nor it was stated
before the trial Court by witnesses during
their examination and the trial Court was
of the view that if the prosecution
witnesses
had
seen
any
dacoits/respondents
at
the
time
of
occurrence they had noticed the peculiar
feature
and
identity
of
dacoits/respondents but they failed to do
so. The trial Court also found that some
respondents have peculiar feature of
identity in view of their clear chiken-pox's
mark and colour but none of the witness
has stated any peculiar identity of any
respondent. In view of the above
inconsistency, irregularity, short coming
and contradiction in the testimony of
witnesses the trial Court disbelieved the
prosecution story and acquitted all the
respondents.

27.

Admittedly
the
alleged
occurrence
was
happened
in
the
intervening night of 2/3.07.1979. Awadh
Ram (Pw-1 ) has stated that dacoits were
18-20 in number. He specifically stated
that at the time of occurrence he, Chhotey
Lal, Samaydin (deceased) Feran, Sanehi
and Ram Bilas were sleeping at his house
and suddenly dacoits appeared and started
to beat them whereupon they (including
him) run away from his house and raised
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
alarm in the village. He further stated that
some dacoits entered into his house from
the back side and opened the main door
and thereafter the dacoits who were
present at the main gate also entered into
the house. He further stated that on his
alarm Faquirey (Pw-5), Munnalal, Ashok
Kumar, Amerika, Pahalwan, Tula Ram,
Ram
Adhar
and
other
co-villagers
appeared with Danda, Berroo and torches.
He further stated that Ashok Kumar burnt
the Jhakhar, placed near the house of one
Bhagwandin. In F.I.R. (Ext.Ka-1) it is
mentioned that upon alarm raised by
Awadh Ram (Pw-1) and his family
members, Faquirey , Munna, Pahalwan ,
Ashok Kumar, Ram Adhar, Daya Ram,
Ram Sumiran and Awatar appeared with
Lathi, Danda, Berroo and torches. Thus
the presence of Budh Sagar (Pw-2), Tula
Ram (Pw-3) and Devesh Kumar (Pw-4)
have been shown neither in the FIR nor
stated by Pw-1 during his examination.
Faquirey (Pw-5) has also not stated about
the presence of Budh Sagar (Pw-2) and
Devesh Kumar (Pw-4) at the time of
occurrence. The prosecution has not given
any explanation that if these witnesses
were present at the time and place of
occurrence why their presence were not
shown in the FIR and also not stated by
Awadh Ram (Pw-1) in his statement.
Thus, the trial Court was of the view that
these witnesses were not present at the
time and place of occurrence. For the
reasons mentioned in the impugned
judgment and order we are also of the
view that the findings of trial Court
requires no interference in the light of
aforesaid grounds also.

28.

Learned
trial
Court
has
specifically doubted the presence of Tula
Ram (Pw-3) and Devesh Kumar (Pw-4)
on the ground that at the time of
occurrence, Tula Ram (Pw-3) was teacher
in Sitai Salon at Risiya situated 4 miles
away from the place of occurrence and he
has not seen the major part of dacoity.
Similarly Devesh Kumar (Pw-4) was a
student and studying in Bahraich in those
days. Further, Budh Sagar (Pw-2) did not
support the prosecution story in crossexamination and specifically stated that
he had not seen the occurrence as he was
not present at the time and place of
occurrence . In our opinion, the finding of
the trial Court , dis-believing the presence
of (Pw-2) Budh Sagar, (Pw-3) Tula Ram,
(Pw-4) Devesh Kumar at the place of
occurrence, further finds support as their
presence has neither been mentioned in
the FIR (Ext. Ka-1) nor stated by Awadh
Ram (Pw-1).

29. Admittedly the alleged dacoity
was caused in the dark night at about
00.30 A.M. by unknown persons. Awadh
Ram (Pw-1), in his examination in chief,
has specifically admitted that he did not
know any dacoit either by his name or by
face earlier to the occurrence. He had, for
the first time, seen them in the light of
burning Jhakhar and 5(five) torches. He
further admitted that he was also carrying
torch at the time of occurrence. Record
shows that during trial no torch was
produced before the trial Court either
during the examination of eye-witnesses
or during examination of Investigating
Officer S.I. Sukh Sagar Singh (Pw-7) and
S.I. Rana Pratap Singh (Pw-9) because
S.I. Sukh Sagar Singh (Pw-7) has proved
only the recovery memos of torches,
lantern, Sandles, empty cartriages, plain
and blood stained earth as Ext. Ka-19 to
Ext. Ka-25. Now question arises as to
whether there was sufficient light at the
place
of
occurrence
wherein
the
respondents-dacoits could have been
6 All. State of U.P. Vs. Avadh Ram & Ors. 1031
identified by the prosecution witnesses.
Non-production of torches and lantern
before the trial Court without any
justification creates further doubt in the
prosecution story that respondents were
seen and identified by the prosecution
witnesses in the light of torches because
the trial Court had no occasion to verify
the existence of torches at the time of
occurrence as well as its' working
condition. This doubt further strengthened
due
to
non-production
of
Munna,
Pahalwan, Ashok Kumar, Ram Adhar,
Daya Ram and Ram Autar who, as per
FIR, appeared at the place of occurrence
with torches.

30. In addition to above, according
to the prosecution, the respondents were
also seen and identified in the light of
Jhakhar of Bhagwandin, burnt by one
Ashok Kumar. In site-plan (Ext. Ka-18),
said Jhakhar was situated behind the
western side of the Ghari (animal yard) of
Bhagwandin
whereas
the
alleged
occurrence was happened in the house of
Awadh Ram (Pw-1) and marked as "X-1"
which is situated towards south-east to the
said Jhakhar and between the place of
occurrence and said Jhakhar, houses of
Avatar Kahar, Gokul Kahar, Bhagwandin
are situated and one Babul tree was also
situated nearby the said Jhakhar. Awadh
Ram (Pw-1), in his cross-examination,
has specifically admitted that it was a
rainy season at the time of occurrence,
although it was not rained for so many
days. He further admitted that the said
Jhakhar was containing 10-15 bundles
(Bojha) and by the burning of Jhakhar the
Babul tree was not scorched. Admittedly,
dacoits
were
18-20
in
numbers.
According to Awadh Ram (Pw-1) the
dacoits had been remained at the place of
occurrence only for half-an-hour. It can
not be supposed that they were standing
at any particular place. Since it was rainy
season, the Babul tree, standing nearby
the said Jhakhar, was not scorched and
said
Jhakhar
was
situated
towards
western side of the house of Bhawandin
and it was situated at considerable
distance from the place of occurrence, the
prosecution version that the said Jhakhar
had emitted sufficient light wherein the
dacoits were identified by the prosecution
witnesses is doubtful. This conclusion
further gets strengthen as the prosecution
has failed to produce Ashok Kumar who
had
burnt
the
said
Jhakhar
and
Bhagwandin, owner of the said Jhakhar,
who could state whether or not the said
Jhakhar was burnt at the time of dacoity
to identify the the dacoits.

31. So for as the submission of
learned AGA that finding of trial Court
that the respondents were shown to the
prosecution witnesses prior to TIP, is not
just because no such plea was taken by
respondents
before
trial
Court,
is
concerned,
record
shows
specific
suggestion had been put by counsel of
respondents during trial to prosecution
witnesses that respondents were shown to
them by police and their photographs
were also taken in police station. In
addition to above respondents, in their
statement u/s 313 of the Code while
denying the prosecution evidence, had
also taken the aforesaid plea. Thus the
aforesaid submission of Ld. AGA has no
force.

32. It is also pertinent to point out at
this
juncture
that
according
to
prosecution, in this occurrence dacoity
was committed in three houses wherein
huge money and ornaments were looted
by dacoits, armed with deadly weapons,
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
for which thirteen person including
respondents were arrested within 10 days
of the occurrence and made accused in
police report u/s 173(2) of the Code but
neither any weapon ,used in committing
the said dacoity nor any looted property
was recovered from possession of any
respondents. Prosecution case is silent on
the point of any effort made by police for
recovery of such weapons and looted
property. Silence of prosecution on such
vital piece of evidence is also fatal to the
prosecution.

33. As discussed herein above, most
of the witnesses named in the FIR i.e.
Munna, Pahalwan, Ashok Kumar, Ram
Adhar, and Daya Ram carrying torches at
the time of occurrence and the witnesses
Autar, Maya Ram and Chhote Lal, whose
houses were also looted, have not been
produced by the prosecution whereas
Budh Sagar (Pw-2), Tula Ram (Pw-3) and
Devesh Kumar (Pw-4) whose presence
have been found as doubtful as discussed
herein above, have been produced by the
prosecution. TIP of respondents were held
in District Jail Bahraich. Nine person
namely Awadh Ram (Pw-1) Amerika,
Pahalwan, Budh Sagar (Pw-2), Ram
Adhar, Ram Avatar, Tula Ram(Pw-3)
Devesh (Pw-4) and Faquirey (Pw-5) were
produced during investigation to identify
the respondents-accused wherein Budh
Sagar (Pw-2) did not support the
prosecution story. Prosecution has neither
produced
Amerika,
Munna,
Ashok
Kumar, Pahalwan, Ram Adhar and Ram
Avatar, before the trial Court nor put any
explanation for their non production. It is
very amazing fact that Devesh Kumar
(Pw-4)
whose
presence
was
found
suspicious and was not carrying any torch
with him at the time of occurrence, had
identified all the ten person including
respondents who were arrested during
investigation
as
accused
of
this
occurrence. Trial Court disbelieved the
100% identification of this witness (Pw4). In addition to above, admission of
Awadh Ram (Pw-1) , that he had come to
Bahraich with other witnesses after 13-14
days of the occurrence, had further
created doubt in the reliability of evidence
of identification and the trial Court found
force in the argument of defence counsel
that the respondents had been shown to
the witnesses prior to TIP and held TIP as
shaky and suspicious. In the fact and
circumstances as discussed herein above
we are also of the view that TIP of
respondents is not reliable and finding of
the
trial
Court
does
not
require
interference.

34. There is another reason which
makes
the
prosecution
case
highly
doubtful. The prosecution case is based
only on the evidence of identification. In
FIR no identification marks of any dacoits
has been mentioned. Neither Awadh Ram
(Pw-1) nor other witnesses have stated
that
they
had
seen
any particular
identification marks on the face of
respondents. Awadh Ram (Pw-1), before
the trial Court, had identified the
respondents Kallan, Piarey , Awadh Ram,
Jhabbar, Gaya Prasad and Hari Ram and
one
accused
Tej
Bahadur
(since
deceased). He has further admitted that
respondent Jhabbar is black having read
bond (Dhaga) on his neck but he had not
noticed any bond (Dhaga) on his neck at
the time of occurrence. He further
admitted that some of dummies standing
with respondent Jhabbar at the time of
TIP, were white, and some were matching
and some were more black than him but
he had not noticed even at the time of TIP
whether respondent Jhabbar had weared
6 All. State of U.P. Vs. Avadh Ram & Ors. 1033
bond (Dhaga) on his neck or not. This
witness (Pw-1) further admitted that
Kandhai Pasi (Cw-1) is his co-villager
who is elder than him. He further
admitted that he could not disclose the
description of dress, weared by dacoits
and weapons carried by them. This
witness (Pw-1) has also admitted that
respondent
Kallan
having
small
moustache had no beard whereas some of
dummies had moustache , some were
without moustache or beard, some were
white in colour and some were in colour
similar to respondent Kallan standing in
TIP.
Faquirey
(Pw-5)
in
crossexamination admitted that respondent
Chhotey is pox-pitted. TIP report (Ext.
Ka-34)
further
shows
that
some
respondents were pox-pitted and each
respondents had considerable numbers ( 5
to
8)
specific
identification
marks
including black mole and pox- pit on their
face as well as on both sides of their
tamples but Achhayver Singh (Pw-14),
has not stated that any pox-pitted under
trial was mixed in the parade of
respondent who was pox-pitted. Ram
Achhavar Singh (Pw-14) had only stated
that under trial prisoners ,who were lined
up with respondents in TIP, were similar
in hight, colour and in appearance. Thus it
is clear that dummies, lined up with
respondents at the time of TIP, were not
similar in colour, hight and facial
appearance to the respondents. In such
fact and circumstances, we are of the
view that trial Court rightly dis-believed
the prosecution evidence.

35. It is settled principle of criminal
jurisprudence
that
identification
of
accused by the witnesses before the Court
is substantive piece of evidence whereas
evidence of TIP is very weak evidence,it
has only the corroboratory value and
where the offenders were unknown to the
witnesses and the prosecution case is
based
only
on
the
evidence
of
identification, prosecution has to prove
that prosecution witnesses had proper and
sufficient opportunity to see and identify
the respondents and they had properly
seen and identified them . It was dark
midnight at the time of occurrence.
Evidence, produced by the prosecution,
regarding sufficiency of light at the place
of occurrence, has been found shaky and
doubtful. As discussed herein above,
prosecution witnesses had admitted that
they had neither noted the description or
special characteristic of any dacoits nor
disclosed it in their statement given to
investigating officer. They had further
admitted that they neither noted the
colour of the dacoits nor noted the colour
of their clothes. Every person has his
specific appearance, characteristic and
bodily
strength.
During
examination
prosecution
witnesses
seeing
the
respondents
admitted
that
some
of
respondents especially Jhabbar, Chhotey
and Kallan had special appearance,
identification marks and characteristic.
Prosecution has not placed a single
justification that if the respondents had
special appearance identification marks
why the prosecution witnesses had not
noted and disclosed it to investigating
officer . Neither mentioning specific
feature
or
identification
marks
or
appearance of any dacoits in FIR nor
disclosing to investigating officer had
further
made
the
evidence
of
identification shaky and doubtful.

36. In the case of Wakil Singh vs.
State of Bihar, AIR. 1981 S.C.1392,
where judgment and order of acquittal,
passed by trial Court as the evidence of
identification was doubtful, was reversed
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
in appeal by the High Court in appeal ,
Hon'ble Supreme Court, setting aside the
judgment of the High Court ,has held as
under:

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

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

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

"The Designated Court after
having
rejected
the
evidence
of
identification parade on the ground that
the suspects were possible shown to the
witnesses, relied upon the evidence of
identification of the accused in the Court
by the two witnesses and on that evidence
recorded
conviction
against
the
appellants. No doubt, the evidence of
identification parade is not a substantive
evidence, but its utility is for purpose of
corroboration. In other words, it is
utilised for corroboration of the sworn
testimony of witnesses in Court as to the
identity of the accused who are strangers
to them. The real and substantive
evidence of the identity of the accused
comes when witnesses give statement in
the Court, identifying the accused. It is
true that in the present case, PW-2 and
PW-11 identified the two accused who are
6 All. State of U.P. Vs. Avadh Ram & Ors.