# Umesh & Anr v. State Of U.P - **Citation:** (2016) 6 ILRA 140 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-06-17 - **Bench:** Amar Singh Chauhan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-anr-v-state-of-u-p-44047 - **Pages:** 6 ## Headnote A.G.A. Prosecution case is that written report was lodged on 11.2.1980 at Police Station Sasni, District Aligarh by Sri Jai Pal Singh son of Basdeo Singh with the effect that in the intervening night of 9/10 February, 1980 dacoity was committed in his house when he and his children were sleeping in a room and in another Gher his nephew Ratendra Kumar was sleeping with his children and the lantern was lighting inside the house. It is stated that at about 2.00 a.m. he heard a noise of breaking the door leaves of his stair case and he came out with flashed torch and saw that miscreants had entered into his house. Thereafter he awakened his children and the children of his brother and came out from another door of his house and made hue and cry that the 6 All. Umesh & Anr. Vs State Of U.P. 141 miscreants had come. Thereupon Netra Pal Singh, Jogendra Kumar, Khushal Singh, Raghu Nandan Singh, Mohan Singh gun licensee holders came out with their guns and other witnesses brought their lathis and lit fire to the heap of KARAB kept near the house of Shish Pal Singh. On seeing the light, the dacoits, who were standing on the roof, started firing and caused bullet injury to Hira Lal, Jai Chand and Mohan Singh. In reply, when the witnesses opened fired, then the dacoits ran away in the eastern side. They were about 15-16 in number and have been identified by the witnesses. On the basis of the aforesaid report, a case was registered on 11.2.1980 as Case Crime No. 57 of 1980 under sections 395/397 IPC at Police Station Sasni, District Aligarh but both the accused-appellants were charged under section 395 IPC only because neither any specific lethal weapon was recovered from the possession of the accused persons nor looted property was recovered from them. Prosecution has produced two witnesses of the fact namely P.W. 2 Jai Pal Singh son of Basdeo Singh and P.W. 3 Jogendra Kumar son of Raghu Nandan Singh. Both these witnesses have deposed about the commission of the dacoity at the house of Jai Pal Singh in the presence of adequate and sufficient light of Lalten and burning KARAB. They also stated that they identified these accused persons during the commission of the dacoity. They did not know any of these accused persons from before. Held: Para- The case in hand there is solitary identification report prepared in jail to connect the appellants with the crime. It has come from the evidence that the accused were known to the witnesses. Neither any injury was said to be caused by the appellants nor any looted property was recovered from the possession of the accused-appellants. T.I. Parade identification by itself cannot form the basis of conviction. Therefore, it is not justified to maintain conviction Case Law discussed: Puttan alias Kamal Prasad vs. State of U.P., AIR 1992 SC 1032, 1992 Cri.L.J. 1122 , Raj Kishore Singh vs. State of Bihar, AIR 1971 SC 1058.Budhsen and Another vs. State of U.P., AIR 1970 SCC 1321. ## Text 140 INDIAN LAW REPORTS ALLAHABAD SERIES this, under the facts and circumstances of the case, the punishment awarded to appellants under section 307 read with section 149 I.P.C. appears to be sufficient and adequate. 57. In view of the aforesaid discussions, both, the Criminal Appeal and Criminal Revision sans merit and therefore, deserves to be dismissed. 58. Both the Criminal Appeal and Criminal Revision are dismissed. The Judgement and order dated 03.10.2013 recorded by the learned Additional Sessions Judge are confirmed. Appellants Krishna Kumar @ Gabbar is already in jail and he need not surrender to serve the punishment. Other appellants namely Balram Yadav, Mahendra Yadav, Brijesh @ Sonu, Shiv Bahadur, Narendra Kumar Yadav @ Guddu and Pushpendra Kumar Yadav are on bail, their bonds are cancelled and sureties are discharged and they are directed to surrender before the learned Additional Sessions Judge within 15 days from the date of Judgement of this Court to serve the punishment provided to them, failing which learned Additional Sessions Judge shall ensure compliance of the order by issuing Non Bailable Warrant against them. 59. A copy of Judgement be immediately sent to Court concerned for compliance under intimation to this Court. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 17.06.2016 BEFORE THE HON'BLE AMAR SINGH CHAUHAN, J. Criminal Appeal No.- 1917 Of 1982 Umesh & Anr. ...Appellants Versus State Of U.P. ...Respondent Counsel for the Appellants: P.C. Srivastava, M.D Singh, S.K. Lal Counsel for the Respondent: A.G.A. Prosecution case is that written report was lodged on 11.2.1980 at Police Station Sasni, District Aligarh by Sri Jai Pal Singh son of Basdeo Singh with the effect that in the intervening night of 9/10 February, 1980 dacoity was committed in his house when he and his children were sleeping in a room and in another Gher his nephew Ratendra Kumar was sleeping with his children and the lantern was lighting inside the house. It is stated that at about 2.00 a.m. he heard a noise of breaking the door leaves of his stair case and he came out with flashed torch and saw that miscreants had entered into his house. Thereafter he awakened his children and the children of his brother and came out from another door of his house and made hue and cry that the 6 All. Umesh & Anr. Vs State Of U.P. 141 miscreants had come. Thereupon Netra Pal Singh, Jogendra Kumar, Khushal Singh, Raghu Nandan Singh, Mohan Singh gun licensee holders came out with their guns and other witnesses brought their lathis and lit fire to the heap of KARAB kept near the house of Shish Pal Singh. On seeing the light, the dacoits, who were standing on the roof, started firing and caused bullet injury to Hira Lal, Jai Chand and Mohan Singh. In reply, when the witnesses opened fired, then the dacoits ran away in the eastern side. They were about 15-16 in number and have been identified by the witnesses. On the basis of the aforesaid report, a case was registered on 11.2.1980 as Case Crime No. 57 of 1980 under sections 395/397 IPC at Police Station Sasni, District Aligarh but both the accused-appellants were charged under section 395 IPC only because neither any specific lethal weapon was recovered from the possession of the accused persons nor looted property was recovered from them. Prosecution has produced two witnesses of the fact namely P.W. 2 Jai Pal Singh son of Basdeo Singh and P.W. 3 Jogendra Kumar son of Raghu Nandan Singh. Both these witnesses have deposed about the commission of the dacoity at the house of Jai Pal Singh in the presence of adequate and sufficient light of Lalten and burning KARAB. They also stated that they identified these accused persons during the commission of the dacoity. They did not know any of these accused persons from before. Held: Para- The case in hand there is solitary identification report prepared in jail to connect the appellants with the crime. It has come from the evidence that the accused were known to the witnesses. Neither any injury was said to be caused by the appellants nor any looted property was recovered from the possession of the accused-appellants. T.I. Parade identification by itself cannot form the basis of conviction. Therefore, it is not justified to maintain conviction Case Law discussed: Puttan alias Kamal Prasad vs. State of U.P., AIR 1992 SC 1032, 1992 Cri.L.J. 1122 , Raj Kishore Singh vs. State of Bihar, AIR 1971 SC 1058.Budhsen and Another vs. State of U.P., AIR 1970 SCC 1321. (Delivered by Hon'ble Amar Singh Chauhan, J.) 1. Challenge in this appeal is to the judgement and order dated 5.8.1982, passed by II Additional Sessions Judge, Aligarh in Sessions Trial No. 221 of 1981 (State vs. Umesh and others) whereby the accused-appellants Umesh and Arjun have been convicted and sentenced to undergo five years rigorous imprisonment each under section 395 IPC. 2. In nutshell, prosecution case is that written report was lodged on 11.2.1980 at Police Station Sasni, District Aligarh by Sri Jai Pal Singh son of Basdeo Singh with the effect that in the intervening night of 9/10 February, 1980 dacoity was committed in his house when he and his children were sleeping in a room and in another Gher his nephew Ratendra Kumar was sleeping with his children and the lantern was lighting inside the house. It is stated that at about 2.00 a.m. he heard a noise of breaking the door leaves of his stair case and he came out with flashed torch and saw that miscreants had entered into his house. Thereafter he awakened his children and the children of his brother and came out from another door of his house and made hue and cry that the miscreants had come. Thereupon Netra Pal Singh, Jogendra Kumar, Khushal Singh, Raghu Nandan Singh, Mohan Singh gun licensee holders came out with their guns and other witnesses brought their lathis and lit fire to the heap of KARAB kept near the house of Shish Pal Singh. On seeing the light, the dacoits, who were standing on the roof, started firing and caused bullet injury to Hira Lal, Jai Chand and Mohan Singh. In reply, when the witnesses opened fired, then the dacoits ran away 142 INDIAN LAW REPORTS ALLAHABAD SERIES in the eastern side. They were about 15-16 in number and have been identified by the witnesses. On the basis of the aforesaid report, a case was registered on 11.2.1980 as Case Crime No. 57 of 1980 under sections 395/397 IPC at Police Station Sasni, District Aligarh but both the accused-appellants were charged under section 395 IPC only because neither any specific lethal weapon was recovered from the possession of the accused persons nor looted property was recovered from them. 3. Prosecution has produced two witnesses of the fact namely P.W. 2 Jai Pal Singh son of Basdeo Singh and P.W. 3 Jogendra Kumar son of Raghu Nandan Singh. Both these witnesses have deposed about the commission of the dacoity at the house of Jai Pal Singh in the presence of adequate and sufficient light of Lalten and burning KARAB. They also stated that they identified these accused persons during the commission of the dacoity. They did not know any of these accused persons from before. 4. Prosecution claimed the complicity of both of these accused-appellants on the basis of the result of test identification parade and produced formal evidence consisting of P.W.1 Sri Fasiuddin, Special Executive Magistrate, Aligarh who deposed that on 22.4.1980 he conducted test identification parade of Umesh, Prakash Chand and Arjun in District Jail, Aligarh. The names of the witnesses were read over to the accused persons and their statement was recorded in column no. 1. The distinctive marks on the faces of the accused persons were noted in column no. 3 and the precautions taken in respect of each accused were mentioned in column no. 4. Witnesses were called one by one and after participating in the identification parade they were asked to sit at a place where from they could not talk or hint to the subsequent prosecution witnesses. Separate parades were arranged in respect of each accused and 10 under trials were mixed of similar description in the parade of each accused. The accused persons were wearing fetters as such each parade was covered upto waist with blankets. The result of test identification parade was that accused Umesh was correctly identified by witnesses Jai Pal Singh, Raghu Nandan Singh and Jogendra Kumar without committing any mistake and accused Arjun was correctly identified by witnesses Jai Pal Singh, Ratendra Kumar and Jogendra Kumar and Khushal without committing any mistake. He proved the identification memo (Ex.Ka-1) which was prepared and signed by him at the time of the identification parade and the carbon copy was on record prepared in the same process with the original identification memo. He had mixed the under trials of the same height as that of these accused persons and it was not necessary to mention in column no. 3 as it was mentioned in the identification memo that the undertrials of similar description of the accused were mixed in their parades. These undertrials were picked up by the accused themselves, which was not written in column no. 3 and was written on different place in this identification memo. 5. Prosecution witness Sri C.S. Rathor P.W. 4, Inspector In-charge of Police Station Sasni stated that on 18.5.1980, he was posted in Sasni Police Station and he conducted the investigation after the transfer of Sri Tota Ram Gupta, Inspector. After completing the investigation he submitted the charge-sheet on 26.5.1980 which was written and signed by him. He had perused the case diary before submission of the charge-sheet. 6 All. Umesh & Anr. Vs State Of U.P. 143 6. Prosecution witness Sri Pratap Singh Chauhan P.W.-5 S.I. stated that on 21.2.1980 when he was posted as Sub-Inspector in the concerned Police Station he along with S.O. and other members of police force on that date had gone to the bridge of Sengar river where they met with the members of the police force of Police Station Hathras Junction and Police Station Sasni then they raided in village Bagharaya collectively and arrested accused Umesh and Arjun. He denied that these accused persons were not kept BAPARDA. Prosecution also filed affidavit of Head Constable Keshao Deo who had deposed that on 22.2.1980 he was posted at Hathras Junction Police Station and took accused Umesh and Arjun and other accused persons along with constable Raghubar Dayal and Constable Shiv Kumar BAPARDA to the District Jail, Aligarh. Nobody was allowed to see them. Identification parade was taken on 22.4.1980 in District Jail, Aligarh. 7. Prosecution has produced F.I.R. (Ex.Ka-5) and site plan (Ex.Ka-6), injury report of Hira Lal (Ex.Ka-7) and injury report of Jai Chand (Ex.Ka-8) and extract of G.D. vide report no. 18 at 11.15 a.m. dated 20.2.1980 (Ex.Ka-9) and the recovery memo of torch (Ex.Ka-10 & Ex.Ka-11) and supurdginama of lanterns (Ex.Ka-12 and Ka-13) and recovery memo of empty cartridge (Ex.Ka-14) and burnt ash (Ex.Ka-15). 8. After the evidence of the prosecution was closed, the statement of the accused was recorded under section 313 Cr.P.C., in which they denied the occurrence and stated that they have falsely been implicated in the case. 9. Accused Umesh stated that the prosecution witnesses knew him from before. He added that earlier he used to study in Thulai school in 1979 in IX class. He had a quarrel with Jai Pal teacher and he had been visiting the house of Sri Mahendra Singh. Accused Arjun Singh stated under section 313 Cr.P.C. that he was not present on the spot and the prosecution witnesses knew him from before. He was falsely implicated due to enmity. He further added that Sri Mahendra Pal Singh, Sarpanch of village Mohari was father's sister's son and Pappu was his son. He stated that since before this dacoity he was residing at the house of Mahendra Pal Singh Sarpanch and was looking after his agricultural land. His Bua Parwati was married to Ishwari Singh deceased in village Mohari. He had a quarrel with one Bhoori in village Mohari prior to commission of this dacoity in respect of which a case was pending. He was falsely implicated in another dacoity of adjoining village in which he was acquitted. After the death of his Phoopha Ishwari Singh, his land was illegally possessed by Jai Chand, Bhoori and Raghu Nandan Singh. 10. In defence the accused did produce documentary evidence viz copy of the judgement dated 3.3.1982 in Sessions Trial No. 88 of 1980 in which Arjun Singh and Umesh were also accused and they were acquitted in that trial under section 395 IPC vide copy of judgement Ex. Kha-1. They also filed the copy of statement of Komal Singh and Durjan Singh (Ex. Kha-2 and Kha-3). Copy of the F.I.R. Ex. Kha-4 dated 16.4.1979 was lodged by Bhoorey Singh against Pappu alias Rajvir son of Mahendra Pal Singh and Brijendra son of Shiv Singh resident of Hajipur, Police Station Hathras Junction and Arjun Singh son of Chandan Singh resident of Bagharaya, Police Station Hasain, under section 323/324 IPC. It relates to Marpit with Lathi and Farsa as mentioned in the charge sheet in the case of State vs. Pappu and others under section 323/324 IPC in which Jai Pal Singh son of Mini Lal Singh was mentioned besides 6 others witnesses dated 18.4.1979. Ex. Kha-6 was the copy of charge sheet against Arjun Singh and two others. 144 INDIAN LAW REPORTS ALLAHABAD SERIES 11. The learned Additional Session Judge, Aligarh after perusing the record and hearing came to the conclusion that prosecution had established the charges of dacoity and, therefore, convicted and sentenced them, as has already mentioned herein above vide judgement and order, hence this appeal questioning the said judgements. 12. Feeling aggrieved, the accused-appellants have come up in appeal. 13. We have heard Sri S.K. Lal, learned counsel for the appellants and learned Additional Government Advocate for the State-respondent and perused the record of the case. 14. Learned counsel for the appellants mainly assailed the impugned judgement of conviction and sentence on two counts. Firstly, that there is a solitary identifier in the parade to connect the appellant with the crime. 15. Secondly, appellants have filed certain documents in defence viz Ex. Kha-4 copy of FIR dated 16.4.1979 lodged by Bhoorey Singh against pappu @ Rajvir son of Mahendra Pal Singh and Arjun Singh son of Chandan Singh which shows that appellant Arjun was falsely implicated as Jaipal Singh was mentioned prosecution witness of fact were known these appellants/accused person. 16. In response, learned AGA submitted that though identification in jail is not itself substantive evidence but corroborated by independent witnesses. 17. At this juncture, it is necessary to take note that eye witness PW-3 Jogendra Kumar had admitted that Mahendra Pal was resident of this village. He also admitted that his father was imposed a fine of Rs. 5 by Mahendra Pal and his father was acquitted from the Hon'ble High Court, Allahabad. He also admitted that Phool Singh and Niranjan Singh of his village were married in village Bagharaya. In the F.I.R. Ex.ka-4 Mahendra Pal and applicant Arjun were co-accused and it is suggested that accused Arjun did look after the agriculture plots of Mahendra Pal. He also admitted that he and Arjun belong to same community. On putting suggestion he denied that his father and Mahendra Pal had enmity as such Arjun was falsely implicated. There was a dispute between accused Arjun on one side and Bhoorey and Jai Chand on the other side which was proved by copy of the FIR Ex.ka-4. Accused-appellant as well as witnesses are residents of adjoining villages and on account of above discussion, it is vivid that accused person was known to the witness from before. 18. Prosecution claimed the complicity of both of these accused persons only on the basis of the result of the Test Identification Parade which was conducted on 22.4.1980. The T.I. Parade was held near about two months of arrest but delay was not explained. It was held by Hon'ble Apex Court in the case of Puttan alias Kamal Prasad vs. State of U.P., AIR 1992 SC 1032, 1992 Cri.L.J. 1122 that in absence of any plausible explanation for the inordinate delay had no evidence forthwith. 19.Test identification report in jail is not a substantive piece of evidence but it can only be used as corroborative evidence and could not be of much evidentiary value as held by the Apex Court in case of Raj Kishore Singh vs. State of Bihar, AIR 1971 SC 1058. 6 All. Dr. Gurumukh Singh Vs State Of U.P. 145 20. Hon'ble Supreme Court in case of Budhsen and another vs. State of U.P., AIR 1970 SCC 1321 observed that the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly. considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. 21. The case in hand there is solitary identification report prepared in jail to connect the appellants with the crime. It has come from the evidence that the accused were known to the witnesses. Neither any injury was said to be caused by the appellants nor any looted property was recovered from the possession of the accused-appellants. T.I. Parade identification by itself cannot form the basis of conviction. Therefore, it is not justified to maintain conviction 22. This criminal appeal is allowed and for the reason aforesaid the conviction and sentence of the appellants namely Umesh and Arjun under section 395 IPC are hereby set aside and appellants are acquitted of alleged charge. Since the appellants are on bail, bail bonds, if any, are cancelled and sureties stand discharged. 23. Let a copy of the order be sent to lower court for compliance. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 09.06.2016 BEFORE THE HON'BLE VIKRAM NATH, J. THE HON'BLE PRATYUSH KUMAR, J. Criminal Appeal No.- 4375 Of 2006 & Criminal Appeal No.- 4374 Of 2006 Dr. Gurumukh Singh ...Appellant Versus State Of U.P. ...Respondent Counsel for Appellant: Samit Gopal, A.K. Umrao, C.K. Mishra, Daya Shanker Mishra, G.C. Saxena