Point of Law : Test identification report do not constitute substantive evidence and its corroboration from the surrounding circumstance is required.

JUDGMENT :

SUNITA AGARWAL. J

1. Heard Sri Amrish Sahai learned Advocate for the appellant and Sri Patanjali Mishra learned A.G.A for the State.

2. This appeal is directed against the judgment and order dated 06.02.1984 passed by the Second Additional Sessions Judge, Fatehpur in Sessions Trial no.145 of 1993 arising out of Case Crime no.139 of 1982 under Section 396 IPC, P.S-Malwan, District-Fatehpur whereby sole appellant Rakesh has been convicted for the offence punishable under Section 396 IPC and sentenced to undergo imprisonment for life.

3. The first report of the incident was given in writing by P.W-1-Naresh Chandra s/o Jagdish Chandra, a driver of the truck no.3901 URQ. The averments in the said report are that the first informant was driver of the aforesaid truck and on 14.10.1982, at about 2.00 a.m., while they were going to Bhogaon from Varanasi, three persons namely Suresh Chandra s/o Matadeen (second Driver) Shyam Singh s/o Puselal (Cleaner) and one Ram Sewak Dubey were sitting in his truck. At about 2.00 a.m., when they reached near the village Allipur in a convoy, about 3 kms away from the said village, the road was blocked by placing branches of Babool tree across the road. Seeing that, the first informant slowed down his vehicle (truck) and at that time, 8-10 miscreants armed with weapons gheraoed his vehicle pointing out Tamancha and Gun. The miscreants started looting money and then one of them fired which hit deceased Ram Sewak Dubey who died in the vehicle itself. The cleaner Shyam Singh got injuries in his right leg. The police personnel on convoy duty present in the vehicle behind namely Truck no. UTM 2400 also fired. The miscreants looted Rs.3800/-from the first informant and the persons sitting in the truck. It is stated in the written report that this incident was witnessed by the drivers of the vehicle No.UTM2400, Bhagwan Singh s/o Bhupal Singh and Lalaram s/o Ulfat Singh as also the driver of vehicle no.8030 HRU namely Laxman Singh s/o Chatur Singh as well as others present on the spot. It was stated in the written report that they all had seen and identified the assailants in the light of the trucks and they could identify the miscreants if they were brought before them. The body of the deceased Ram Sewak and the injured Shyam Singh (cleaner) were taken to the police station. The Check report and the GD entry of the report were proved by P.W-6 being in his writing and signature as Exhibit Ka-4 and 5. It was stated by P.W-6 that the written report was given by the first informant Naresh Chandra at about 2.30 a.m on 13/14.10.1982 who came along with the driver Suresh Chandra and injured cleaner Shyam Singh and also brought the dead body of Ram Sewak. Two constables Ramdeo Singh and Vinay Kumar who were on convoy duty came along with them.

4. The G.D entry of the movement of Constable Ramdeo Singh and Vinay Kumar from the Police Station on 13.10.1982 at about 9.30 p.m in Rapat no.32 was proved by P.W-6 being in his hand writing by bringing the original G.D and filing the copy with his signature proved as Exhibit Ka-3. In cross, P.W-6 stated that the convoy used to be prepared in front of the police station, one Constable used to make the convoy and two Constables accompany it. On confrontation, it was stated, in cross, by P.W-6, that G.D entries of the duty of the Constables, on convoy duty, was before him and as per the GD dated 17.10.1982, Constable Vinay Kumar was on Santri duty from 6.00 p.m till 9.00 p.m and Constable Ramdeo was on Convoy duty from 17.10.1982 at 19.00 hours till 18.10.1982 at 4.00 a.m. However, the movement of these constables from the police station on the said dates ie 17.10.1982-18.10.1982 was not recorded in the GD.

5. The written report of the incident reported by P.W-1 was read over to him during his deposition before the Court, who admitted his signature and handwriting on the same, it was proved as Exhibit Ka-1. After lodging of the report, blood from inside the truck, found on