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2020 Supreme(All) 817
IN THE HIGH COURT OF ALLAHABAD
RAJ BEER SINGH, J.
Ram Shanker – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 14 of 1987
Decided On : 06-08-2020
Advocate Appeared:
For the Appellants : Sri. Vindhyachal Singh, Sri. P.S. Yadav.
For the Respondent: Sri. Amit Kumar Singh.
Point of Law: 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
Headnote:
Code of Criminal Procedure, 1973 – Section 313 – Penal Code, 1860 – Sections 395, 399, 402 – Dacoity – Criminal Appeal has been preferred against judgment and order passed in Session Trial Crime, 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. – 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. –
Finding of the Court:
It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. – Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. – [Vide Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808, State of Rajasthan vs. Raja Ram, (2003) 8 SCC 180, Chandrappa and Others vs. State of Karnataka, (2007) 4 SCC 415, Upendra Pradhan vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain and Others vs. State of Assam and Another, (2015) 11 SCC 242]. – In the instant case, considering entire evidence carefully it is quite manifest that the long delay in holding the test identification parade coupled with other infirmities and inconsistencies, as pointed out above, render the prosecution case doubtful. – As stated earlier no recovery has been effected from possession of any of the accused-appellants and that it is also thoroughly doubtful whether the accused-appellants have been arrested in the manner as alleged by the prosecution. – In view of all these facts, it would not be safe to base conviction of accused-appellants merely on the basis of their alleged identification. – Impugned judgment and order of conviction and sentence is set aside and accused appellants Ram Shanker, Mahesh, Bodhu, Chhotey Lal and Ram Babu are acquitted of the charge levelled against them. – Accused-appellants are stated on bail, their personal bonds are cancelled and sureties discharged. –
Result: Appeal Allowed
JUDGMENT :
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 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 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 ½ cm x skin-deep on middle of head about 12 cm from left ear.
(ii) Lacerated wound 4 cm x ½ 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 accused-appellants 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
