State v. Lalli, Piyare Lal, Baldeo Prasad and Badri. By that order learned trial court has

occurrence in torch light. First, they challenged the miscreants. However, they did not withdraw. Later, the miscreants challenged to kill anyone if they dared to come near them. At the same time, the miscreants assaulted the ladies of the house namely Lalita Devi, Sudhariya and Boota Devi and committed loot. When the villagers tried to get near the house of the informant, the miscreants fired at them. In that Bhagirath was shot in his arm. The Written Report further narrates that firing was witnessed from both sides, however, the miscreants managed to escape with the loot. Upon entering their home, they found that three ladies were badly injured. It was further narrated that the miscreants were armed with guns, wooden sticks and axe. The Written Report further describes that the miscreants looted jewellery worn by the ladies as also valuable items kept in a locked trunk and Rs. 5800/- in cash. The Written Report is Ex. Ka-1 at the trial. On such report, the FIR was duly registered at PS Karvi, District Banda at about 4:45 AM on 10.6.1980.

3. On 10.6.1980 itself the police recovered blood stained cloth of the mattress used to by Lalita Devi. That Recovery Memo is Ex. Ka-2 at the trial. The police recovered the blood stained plaster from the wall that Recovery Memo is Ex. Ka-19 at the trial. Also, on 10.06.1980, the police recovered one empty cartridge of 12 bore with mark K.S. Special Ordinance Factory as also 3 'dot', 2 'tikli' (no.2) and 12 'tikli' plain found strewn. That is Recovery Memo Ex. Ka-20 at the trial. Further, on 10.6.1980, the police also recovered an oil lantern from Rajkaran. After examining the same, it was given in the custody of Rajkaran. That Recovery Memo is Ex. Ka-21 at the trial. Further, the police also recovered the trunk from which valuables had been looted. It was recovered from Rajkaran and given back in his custody. A torch. That Recovery Memo is Ex. Ka-22 at the trial was also recovered on 10.6.1980 from Narmada. It was also examined and given in the custody of said Narmada. That Recovery Memo is Ex. Ka-23 at the trial.

4. The injured were examined. Those injury reports are also dated

10.6.1980 with respect to the injured persons namely Sudhariya, Bhagirath, Boota Devi and Lalita Devi. They are Ex. Ka-24, 26 and 25 at the trial. Lalita Devi died on 10.6.1980 about 6:45 AM. Inquest Report was prepared on 10.06.1980 in the morning between 5:45 a.m. and 6:45 a.m. It is Ex. Ka-3 at the trial. Autopsy examination was conducted on the body of the deceased Lalita Devi at about 4:45 a.m. on 10.06.1980 by doctor Shivdayal Chauhan (P.W.-10 at the trial). It is Ex. Ka-8 at the trial. Upon completion of the investigation, police submitted the chargesheet against four accused persons.

5. Upon case being committed for trial to the court of sessions, following charge came to be framed against the appellants and the other accused. बलदेव प्रसाद पर आरोप लगाता हूं कि प लल्ली्रसाद प लल्लीर आरोप लल्ली लगाता हू (cid:23)ी दरकि (cid:24)यानी रात (cid:23)ो (cid:23)रीब 12.00 ं कि कि (cid:23) 9/10- आप लल्ली लल्ली, प्यारे लाल, " बजे रात अन्य प लल्लीाँच 06-1980 बद(cid:24)ाशों के साथ असलहों से लैस होकर राजाभईया गर्ग के घर स्थित (cid:23)े साथ असलहों से लैस होकर राजाभईया गर्ग के घर स्थित असलहों के साथ असलहों से लैस होकर राजाभईया गर्ग के घर स्थित से लैस हो(cid:23)र राजाभईया गग% (cid:23)े घर कि ’थ असलहों से लैस होकर राजाभईया गर्ग के घर स्थितत चौ(cid:23)ी कि शव प्रसाद पर आरोप लगाता हूं कि रा(cid:24)प लल्लीु र थ असलहों से लैस होकर राजाभईया गर्ग के घर स्थिताना (cid:23)व प्रसाद पर आरोप लगाता हूं कि ी% श्री(cid:24)ती ग्रा(cid:24) हकि रयरप लल्लीु र (अप लल्लीठनीय) लकि लता देव प्रसाद पर आरोप लगाता हूं कि ी (cid:23)ो घात(cid:23) चोटे प लल्लीहु ं कि चा(cid:23)र (cid:24)ाल लूट (cid:23)र ले गये इस प लल्ली्र(cid:23)ार आई०प लल्लीी०सी० (cid:23)े अन्तग%त दण्डनीय अप लल्लीराध (cid:24)ेरे आप लल्लीने धारा 396 प लल्ली्रसं कि ज्ञान (cid:24)ें किया। कि (cid:23)या। "

6. At the trial besides proving the above documents, the prosecution examined 13 witnesses. Raja Bhaiya was examined to prove the Written Report as also the occurrence disclosed by him. Similarly Sudhariya (P.W.-2 at the trial), Boota Devi P.W.-3 at the trial), Badri Prasad (P.W.-4 at the trial) and Bhagirath (P.W.-8 at the trial) were examined to prove the occurrence, as narrated. It has also come on record that Raja Bhaiya (P.W.-1 at the trial) identified the accused Badri, Baldeo and Lalli. Similarly, Sudhariya identified Badri, Piyare Lal, Baldeo and Lalli. Boota Devi identified Baldeo and Lalli while Badri Prasad identified Badri, Piyare Lal, Baldeo and Lalli. Bhagirath identified all four accused persons. Thereafter, constable Ramesh Singh was examined as P.W.-5. He proved the registration of the FIR as also the corresponding GD entry. He also tried to prove that accused Lalli was veiled/kept 'baparda' till his identification. Constable Pooran Singh Karvi was examined as P.W.-6. He proved that the accused Piyare Lal was kept veiled/'baparda' till his identification. Constable Maharani Deen was examined as P.W.-7. He proved that the accused Baldeo was kept veiled/'baparda' till his identification. Thereafter, injured eye-witness Bhagirath was examined as P.W.-8. He proved the occurrence as noted above and also identified the accused. Thereafter, Ram Vilas Pandey was examined as P.W.-9. He also proved that the accused Baldeo was kept veiled/'baparda' till his identification. Thereafter, Dr. Shivdayal Chauhan was examined as P.W.-10. He proved the injuries and cause of death of Lalita Devi. There is no dispute raised by the defence as to the nature of those injuries. The proven injuries are: "1. Incised wound 2cm x 1cm thickness of lip on left side of upper lip.

2. Contusion (multiple) over laging each other in an area 17cm x 13cm on anterio lateral aspect of left arm upper 3/4.

3. Contusion in an area 13cm x 13cm on posterio lateral aspect of left forearm upper 3/4.

4. Multiple contusion in an area of 18cm x 11cm on anterio lateral aspect of Rt. upper arm upper 2/3.

5. Multiple contusion in an area 11cm x 9cm on cheak of right forearm upper 1/3.

6. Incised wound 2cm x 2cm on top of right middle finger. Distal part of finger is missing.

7. Incised wound 2cm x 2cm on top of right ring finger. Distal part of finger is missing.

8. Contusion 8cm x 2cm on front of chest right side middle.

9. Multiple contusion over lapping each other in an area of 3cm x 23cm on back both sides upper 1/2.

10. Contusion in an area of 15cm x 8cm on left buttock.

11. Contusion in an area 15cm x 10cm on front of left thigh middle.

12. Contusion in an area of 20cm x 8cm on right buttock.

13. Lacerated wound 1cm x 1cm x skin on front of left leg middle.

14. Lacerated wound 1cm x 1cm x skin on front of right leg middle.

15. Incised wound 4cm x 2cm x bone on dorsal right foot distal and outer part 4th meta-dorsal bone cut underneath.

16. Incised wound 2cm x 1cm x skin on dorsam of root of right 5th toe.

17. Incised wound 3cm x 2cm on lip of right great toe. Distal part missing."

7. The Executive Magistrate Satyadev Bajpyee who conducted the Test Identification Parade, was examined as P.W.-11. He proved that he had conducted the Test Identification Parade on 9.9.1980 i.e. 3 months after the occurrence. In that Piyare Lal was correctly identified by the witnesses Sudhariya, Badri Prasad, Narmada (not examined at the trial), Bhagirath (PW.-8) and Ramabhavan (D.W.-3). Whereas, the accused Baldeo Prasad was correctly identified by the witness Raja Bhaiya (P.W.-1), Sudhariya (P.W.-2), Boota Devi (P.W.- 3), Badri Prasad (P.W.-4), Narmada (not examined at the trial) and Bhagirath (P.W.-8 at the trial). Similarly, the accused Lalli was correctly identified by Raja Bhaiya (PW.-1), Smt. Boota Devi (PW.- 3), Badri Prasad (PW.-4), Narmada (not examined at the trial), Bhagirath (PW.-8) and Ram Bhavan (D.W.-3). The accused Badri was correctly identified by Raja Bhaiya (P.W.-1), Badri Prasad (P.W.-4), Narmada (not examined), Bhagirath (P.W.-8), Ram Bhavan (D.W.-3) and Ram Avtar (not examined at the trial).

8. Thereafter, Head Constable Shyamlal was examined as P.W.-12. He proved the fact relevant to the conduct of the Test Identification Parade. The Investigating Officer Kshetrapal Singh was examined as P.W.-13. He proved the recoveries as also the investigation. After that statement of the accused were recorded under Section 313 Cr.P.C. Thereafter, opportunity was given to the defence to lead its evidence. The defence led evidence through seven witnesses namely Ramkhelavan (D.W.-1), a resident of Bandari. He is the uncle of accused Badri. He tried to prove that the parties were known to him before. Guliniya was examined as D.W.-2. She too was a resident of Bandari and wife of Ram Bhavan (D.W.-3). She also tried to prove that the parties were known from before. Ram Bhavan was examined as D.W.-3. He was resident of Hariyarpur. He also proved that the parties were known to before to the extent he proved that Badri was regular visitor to his house and he also used to visit Badri's house. Thereafter, he proved that Chandrapal Prasad @ Raja Bhaiya (P.W.-1), Badri (appellant), Narmada (not examined at the trial) and Bhagirath (P.W.-8) belong to the same family. He also proved that Chandrapal @ Raja Bhaiya (P.W.-1) held agricultural lands in the village Bandari. As to the occurrence, he proved dacoity had been committed at the house of Raja Bhaiya (P.W.-1), wherein, his mother was killed. Though, he was present at the time of occurrence, he could not see the actual occurrence as it was dark. He further proved that he entered the house of Raja Bhaiya (P.W.-1) after the dacoits had left. He also doubted the reliability and the credibility of the Test Identification Parade, inasmuch as, the police personnel had threatened to challan him, if he failed to identify the accused persons as dacoits involved in the occurrence.

9. Thereafter, Deshraj the uncle of accused Piyare Lal was examined as D.W.-4. He claimed, parties were known from before. Thus, Shyamlal an uncle of the accused Lalli was examined as D.W.-5. He proved that the daughter of Anant Rai namely Sudhariya (P.W.-2) was married to Raja Bhaiya (P.W.-1). Thus, Sudhariya knew accused Lalli from before. Ramakant was examined as D.W.-6. He a cousin brother of the accused Lalli proved, Sudhariya (P.W.-2) daughter of Anant Rai was a resident of his village and, therefore, she knew the parties from to before. Specifically, he claimed Bhagirath, Narmada, Raja Bhaiya, Sudhariya etc. all new Lalli from before. Pyare Lal D.W.-7 was also examined to prove that the parties knew each other from before.

10. On the strength of all such evidences the prosecution story has been believed in part. Based solely on the cooperation of consistent identification of the accused Baldeo and Piyare Lal, they have convicted, whereas, other two accused Lalli and Badri have been acquitted.

11. The submission of learned counsel for the appellants is that no conviction can arise solely on the strength of identification of the accused. There is no substantive evidence. Secondly, neither any recovery was made as may link any of the appellants to the occurrence nor any material like weapon etc. arose as may link either appellant to the occurrence. Here, it has been submitted that, in any case the Test Identification Parade is wholly doubtful. In that regard more than reasonable doubt has been created. That the appellants were not kept veiled/'baparda'; they were prosecuted for identification, not promptly after their arrest but with gross delay; Ram Bhavan (D.W.-3) was a listed witness of the charge sheet. Therefore, his presence is undoubted. He proved that the parties were known from before. That fact was not contested by the prosecution during his cross examination.

12. Therefore, the entire premise of the prosecution story falls to ground. The parties being known from before there arose no occasion why they were not identified at the time of the occurrence. Also, no credence may be given to their identification. No material discovery was made as may lent any credibility to the prosecution claim that the accused came to be identified during investigation. The entire prosecution story is unbelievable.

13. Reliance has been placed upon Iqbal and another vs. State of U.P. (2015) 6 SCC 623; Satrughana Alias Satrughana Parida vs. State of Orissa 1995 (Supp4) SCC 448, Nirmal Pasi vs. State of Bihar 2002 LawSuit (SC) 648. Also, reliance has been placed on two co-ordinate bench decisions of this Court in Bhup Singh & Ors. vs. State of U.P. [2015 (1) JIC 669 (All)] and Shyam Singh vs. State of U.P. 2022 0 Supreme (All) 887.

14. On the other-hand, learned A.G.A. would submit, to the extent, defence does not doubt that more than five persons caused the occurrence and to the extent the appellants were identified by the prosecution witnesses and other ingredients of the offence alleged were duly proven the appeal does not merit interference. As to the recovery, that is not a necessary ingredient of the offence. Therefore, no benefit may be granted to the accused-appellants on that count.

15. Having heard learned counsel for parties and having perused the record, in the first place, the prosecution brought a story of direct evidence. In that Test Identification Parade, on which heavy reliance was placed both at the trial and before us, is not a substantive piece of evidence. As to substantive evidence there is more to establish the the appellants were involved in the occurrence of dacoity, that was proven. To the extent, the prosecution story itself admits and it does not doubt that atleast some of the accused were known to the witnesses from before, the fact that none was named in the FIR, though the prosecution witnesses had been able to throw torch light at the miscreants and had been orally warned by the dacoits to not come near the house of Raja Bhaiya (P.W.-1), they would have identified the dacoits as the incident lasted over a duration of time. The absence of any substantive evidence led at that stage or the complete pack of corroboration of the prosecution story as prosecuted at the trial with that narrated in the FIR creates serious doubts as to its credibility especially when the accused appellaats were first identified at a TIP conducted on 09.09.1980 against their arrest made on 29.07.1980 and

17.08.1980 whereas the occurrence was of 9/10.06.1980 i.e. three months old. The prosecution story is doubtful from beginning.

16. In Iqbal (supra) both as to the source of light claimed and also conviction sought only on the strength of Test Identification Parade, the Supreme Court had the occasion to consider its implications in law. Pertinent to this case, it was observed as below: "11. In our considered view, it is unbelievable that on a new moon night when it was pitch dark, the witnesses who were frightened and who were hiding themselves behind the walls in order to save themselves, could have seen actual faces of the accused persons just by flash of torchlights on their faces and in the light of lantern. Further, there were about 14-15 dacoits in number, all armed with deadly weapons and were continuously making ingress and egress in the house of the deceased, it becomes inconceivable as to how the witnesses standing at a distance in a feeble light would have been able to identify the dacoits. (emphasis supplied)

12. When the witnesses are in a panicky state and standing at a distance of three-and-a-half yards and five-six yards, it is doubtful whether the witnesses would have gained an enduring impression of the identity of the accused. In the commission of offence of dacoity, identification becomes susceptible to [(1988) 1 SCC errors and miscarriage of justice. In Hari Nath 14 : 1988 SCC (Cri) 14] , this Court held as under : v. State of U.P. "16. … The conduct of an identification parade belongs to the realm, and is part of the investigation. The evidence of test identification is admissible under Section 9 of the Evidence Act. But the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification, depends on the promptitude in point of time with which the suspected persons are put up for test identification. If there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself, detracts from the credibility of the test.

17. The one area of criminal evidence susceptible of miscarriage of criminal justice is the error in the identification of the criminal. Indeed Prof. Borchard's Convicting the Innocent records several criminal convictions in which the accused was subsequently proved innocent. The major source of the error is to be found in the identification of the accused by the victim of the crime. Indeed the learned author refers to the source of mistaken identification thus: 'The emotional balance of the victim or eyewitness is so disturbed by his extraordinary experience that his powers of perception become distorted and his identification is frequently most untrustworthy. Into the identification enter other motives not necessarily stimulated originally by the accused personally — the desire to requite a crime, to exact vengeance upon the person believed guilty, to find a scapegoat, to support, consciously or unconsciously, an identification already made by another. Thus, doubts are resolved against the accused.'

18. Glanville Williams in The Proof of Guilt — (Hamlyn Lectures) — refers to the errors of recognition breeding an invincible assurance in the witnesses, highly deceptive for those who are not forewarned of such possibilities, and excerpts Gorphe's results of a continental investigation, thus: 'There is no difference from the subjective point of view, between true and false recognition, so far as their intrinsic qualities are concerned, and there are no objective signs to distinguish one from the other. … The witness's certainty may not be immediate, without this delay being necessarily a sign of error. Nevertheless, error is more frequent when recognition comes some time after seeing .... The act of recognition is very open to suggestion in all its forms…. Resemblance is a matter of relativity. For a white person, all negroes are like each other, and conversely. A person can much better distinguish those of his own age and condition than those of different ages and condition. Uniform is a cause of fallacious resemblance, above all for those who do not wear it.'

19. The evidence of identification merely corroborates and strengthens the oral testimony in court which alone is the primary and substantive evidence as to identify."

13. As noticed earlier, test identification parade was conducted in jail on 15-11-1979 by PW 6 Special Executive Magistrate in which the witnesses PW 1, PW 2 and PW 3 identified the accused. As far as test identification parade is concerned, it is relevant to note that accused Kripa has contended that he had been falsely implicated in the case because of the rivalry with Rampal Singh and his maternal uncle Mangeram. Accused Kripa also pleaded that the witnesses knew them as they were living in nearby villages and because of rivalry, they were being falsely implicated in the case. So far as Appellant 2 Khurshed and another co-accused Kishnu are concerned, they had stated that they were arrested by the police from their houses and they were shown to the witnesses at the police station and they were also photographed before holding the test identification parade." (emphasis supplied)

17. Further, as to the nature of eivdnece that a Test Identification Parade is, it was observed as below: "15. The evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject-matter of dacoity and the alleged weapons used in the commission of the offence." (emphasis supplied)

18. The Supreme Court had the occasion to consider the effect of non- recovery of any of the looted items, in the context of heavy reliance placed by the prosecution on the Test Identification Parade and identification of the accused, to prove the heinous offence of dacoity. In that regard, it was observed as below "19. The courts below based the verdict of conviction solely on the oral testimony of PW 1 to PW 3 and the identification of the appellants and other non-appealing accused in the test identification parade. As discussed earlier, in the absence of any other evidence like recovery of stolen jewellery or other articles strengthening the prosecution case, conviction cannot be based solely on the identification of the accused in the test identification parade. Serious doubts arise as regards identification of the accused regarding complicity of the appellants in the commission of dacoity and their identification by the witnesses and the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and in our view, the conviction of the appellants under Section 396 IPC cannot be sustained and is liable to be set aside." (emphasis supplied)

19. In the context of Satrughana (Supra), it has further been submitted that accused Bal Deo came to be arrested on 29.07.1980, whereas his Test Identification Parade was first conducted on

09.09.1980. Similarly, the accused Pyare Lal was arrested on

17.08.1980, whereas his Test Identification Parade was conducted on

09.09.1980 i.e. after lapse of substantial time. It may never be accepted beyond reasonable doubt that identify of those accused persons would either have remained veiled/'baparda' or accurate considering the failings or limitations of ordinary human memory. In that regard, the Supreme Court has observed as below "2. We have heard counsel on both sides. The fate of the appellants depends on the probative value to be given to the evidence of PWs 1, 4, 6 and 8 in regard to the identification of the appellants. It may be mentioned that the occurrence in question had taken place at midnight almost 1½ months prior to their identification. One of the appellants, Rabin Kandy was arrested on November 22, 1982, while the other two Rabindra Kumar Sahu and Satrughana were arrested on November 12, 1982. The identification parade was held on December 10, 1982, i.e. more than 15 days after the arrest of Rabin Kandy and almost a month after the arrest of the other two accused. The prosecution has not advanced any reason for not holding the identification parade promptly. In other words the prosecution has not placed on record the reason why it was not possible for it to hold the identification parade with promptitude, i.e. soon after arrest. Where the fate of the accused persons hangs solely on the identification by the witnesses who claim to have seen them almost 1½ months prior to the date of identification, it is the duty of the prosecution to state why the identification parade could not be arranged immediately after the arrest of the accused and without loss of time. Unless there is good reason for the delay, the value regarding the evidence of identification gets adversely affected. This dilution of the evidentiary value of identification by witnesses who claim to have seen the accused at night almost 1½ months back but who did not in their statements before the police or in the first information report reveal any special features for identification, is a matter which weighs against the prosecution. It must be remembered that the accused persons are required to be produced before the court latest within 15 days of their arrest and, therefore, it would be reasonable to infer that they were so produced. There is nothing on the record to show that the prosecution had taken care to ensure that their identity was not revealed when they were taken to court and produced as required by law. In these circumstances, when the prosecution witnesses had admitted in their oral statements that they had not noticed any special identifying features, it becomes unsafe to place implicit reliance on the evidence regarding identification emanating from the proceedings at the test identification parade. In these circumstances since there is no other corroborative evidence, we find it difficult to place implicit reliance on the identification made at the test identification parade. We are, therefore, of the opinion that the appellants are entitled to benefit of doubt." (emphasis supplied)

20. These facts are similar. Therefore, it may not be available to the prosecution to rely on such belated Test Identification Parade as the solitary evidence to secure the conviction. Then in Nirmal Pasi (Supra), delay in conducting of Test Identification Parade and lack of disclosure, how suspicion arose against the accused leading to their arrest were considered to be relevant in the context of heavy charge of dacoity. In that regard, it was observed as below: "6. Firstly, Sona Pasi and Nirmal Baheliya, the two accused-appellants were put up for identification after a delay of about 1 month and 10 days from the date of their arrest. Similarly, accused Krishna Choudhary was put up for test identification parade after a delay of 1 month and 20 days from the date of his arrest. The prosecution has not assigned any explanation, much less a satisfactory explanation, for the delay in holding the test identification parades. Secondly, the accused-appellants have voluntarily surrendered and their surrender was preceded by the initiation of proceedings for declaring them as absconding offenders. The investigating officer had initiated proceedings under Sections 82-83 of Cr.P.C. against the three accused persons by naming them. Nothing has been placed on record to show as to how the suspicion of the investigating officer had fallen on these three accused persons and what had persuaded him to form an opinion as to the involvement of these three accused-persons in the offence of dacoity so as to treat them as absconding offenders." (emphasis supplied)

21. Another aspect of the issue was considered by a coordinate bench of this Court in Shyam Singh (supra) wherein considering the case of Shatrughan (Supra), the coordinate bench found that the prosecution evidence stood diluted for reason of delay of 35 days, 52 days and 15 days (in that case). The coordinate bench also took note of the fact that the First Information Report did not disclose any special features of the miscreants. Here only this much came to be revealed at that stage that some of the miscreants were dark skinned and the others were light skinned. All were young. Some were wearing 'Kurta Paijama' and others were wearing 'Pant Shirt'. That narration was wholly generic and vague as may be common to citizens at large inasmuch as description of skin colour as dark or light is a highly subjective and in any case relative description. It is not exact or distinctive. In any case in the context of our society, it is a very commonly observed variation where people in the same family have different skin colours and tone from dark to light, that too on a very relative scale. Also, the clothing described is also generic and commonly worth by citizens as may not offer any peculiarity or distinguished feature for the purpose of exact/credible identification of the accused.

22. Last, we also note that the learned counsel for the appellants has rightly pointed out that it being admitted to the prosecution that occurrence was caused in midnight, mere alleged examination of the torch during investigation without its recovery and without it being made a material exhibit at the trial, the source of light that was otherwise absent was not allowed to be questioned by the defence by non-production of such torch. While an oil lantern may never offer enough light specially from a distance, a torch light may allow a person to see objects/persons placed at some distance provided the torch light is of such strength and specification as may offer help to the witnesses to identify the accused. That they did not. To the extent, the prosecution story itself proved that all the witnesses were standing at some distance away from the firing range of the miscreants and to the extent it was mid-night, the non-production of the source of light claimed by the prosecution also lends another reasonable doubt in the truthfulness or reliability of the prosecution story. It is also not the case of prosecution that the accused had called each other by their names at the time of occurrence.

23. In view of the discussion made above, we find that the prosecution has not led any substantive evidence to prove that the appellants Baldeo Prasad and Pyarelal were involved in the occurrence. In any case, in view of the fact that the learned court below has itself disbelieved the prosecution evidence based on identification with respect to the identification of the other accused Lalli and Badri, it is further doubtful if such conviction may ever be maintained against the other accused i.e. appellants Bal Deo Prasad and Pyare Lal.

24. We are also mindful there is neither recovery of any firearm nor there is recovery of any looted article. Therefore, it is an unsolved mystery how the appellants came to be arrested. It is only on the strength of their arrest that the prosecution story progressed through Test Identification Parade alone. If the accused persons/appellants had been named before and thereafter arrested and identified to confirm their involvement in the occurrence, case would have been otherwise.

25. The learned court below has completely erred in convicting the present appellants.

26. In view of the above discussion, the appeal succeeds and is allowed. The judgment and order dated 12.11.1984 is set aside and quashed. The appellants are acquitted of the charges framed against them. They are on bail. They need not surrender. Their bail bonds and sureties are discharged. The appellants are directed to furnish bail bonds in compliance of Section 437-A Cr.P.C. to the satisfaction of the Court concerned within two months from today.

27. A copy of this judgment alongwith original record of the trial Court be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court, at the earliest. Office is directed to keep the compliance report on record. Order Date :- 21.7.2025 S.A. (Madan Pal Singh, J.) (S. D. Singh, J.)

occurrence in torch light. First, they challenged the miscreants. However, they did not withdraw. Later, the miscreants challenged to kill anyone if they dared to come near them. At the same time, the miscreants assaulted the ladies of the house namely Lalita Devi, Sudhariya and Boota Devi and committed loot. When the villagers tried to get near the house of the informant, the miscreants fired at them. In that Bhagirath was shot in his arm. The Written Report further narrates that firing was witnessed from both sides, however, the miscreants managed to escape with the loot. Upon entering their home, they found that three ladies were badly injured. It was further narrated that the miscreants were armed with guns, wooden sticks and axe. The Written Report further describes that the miscreants looted jewellery worn by the ladies as also valuable items kept in a locked trunk and Rs. 5800/- in cash. The Written Report is Ex. Ka-1 at the trial. On such report, the FIR was duly registered at PS Karvi, District Banda at about 4:45 AM on 10.6.1980.

3. On 10.6.1980 itself the police recovered blood stained cloth of the mattress used to by Lalita Devi. That Recovery Memo is Ex. Ka-2 at the trial. The police recovered the blood stained plaster from the wall that Recovery Memo is Ex. Ka-19 at the trial. Also, on 10.06.1980, the police recovered one empty cartridge of 12 bore with mark K.S. Special Ordinance Factory as also 3 'dot', 2 'tikli' (no.2) and 12 'tikli' plain found strewn. That is Recovery Memo Ex. Ka-20 at the trial. Further, on 10.6.1980, the police also recovered an oil lantern from Rajkaran. After examining the same, it was given in the custody of Rajkaran. That Recovery Memo is Ex. Ka-21 at the trial. Further, the police also recovered the trunk from which valuables had been looted. It was recovered from Rajkaran and given back in his custody. A torch. That Recovery Memo is Ex. Ka-22 at the trial was also recovered on 10.6.1980 from Narmada. It was also examined and given in the custody of said Narmada. That Recovery Memo is Ex. Ka-23 at the trial.

4. The injured were examined. Those injury reports are also dated

10.6.1980 with respect to the injured persons namely Sudhariya, Bhagirath, Boota Devi and Lalita Devi. They are Ex. Ka-24, 26 and 25 at the trial. Lalita Devi died on 10.6.1980 about 6:45 AM. Inquest Report was prepared on 10.06.1980 in the morning between 5:45 a.m. and 6:45 a.m. It is Ex. Ka-3 at the trial. Autopsy examination was conducted on the body of the deceased Lalita Devi at about 4:45 a.m. on 10.06.1980 by doctor Shivdayal Chauhan (P.W.-10 at the trial). It is Ex. Ka-8 at the trial. Upon completion of the investigation, police submitted the chargesheet against four accused persons.

5. Upon case being committed for trial to the court of sessions, following charge came to be framed against the appellants and the other accused. बलदेव प्रसाद पर आरोप लगाता हूं कि प लल्ली्रसाद प लल्लीर आरोप लल्ली लगाता हू (cid:23)ी दरकि (cid:24)यानी रात (cid:23)ो (cid:23)रीब 12.00 ं कि कि (cid:23) 9/10- आप लल्ली लल्ली, प्यारे लाल, " बजे रात अन्य प लल्लीाँच 06-1980 बद(cid:24)ाशों के साथ असलहों से लैस होकर राजाभईया गर्ग के घर स्थित (cid:23)े साथ असलहों से लैस होकर राजाभईया गर्ग के घर स्थित असलहों के साथ असलहों से लैस होकर राजाभईया गर्ग के घर स्थित से लैस हो(cid:23)र राजाभईया गग% (cid:23)े घर कि ’थ असलहों से लैस होकर राजाभईया गर्ग के घर स्थितत चौ(cid:23)ी कि शव प्रसाद पर आरोप लगाता हूं कि रा(cid:24)प लल्लीु र थ असलहों से लैस होकर राजाभईया गर्ग के घर स्थिताना (cid:23)व प्रसाद पर आरोप लगाता हूं कि ी% श्री(cid:24)ती ग्रा(cid:24) हकि रयरप लल्लीु र (अप लल्लीठनीय) लकि लता देव प्रसाद पर आरोप लगाता हूं कि ी (cid:23)ो घात(cid:23) चोटे प लल्लीहु ं कि चा(cid:23)र (cid:24)ाल लूट (cid:23)र ले गये इस प लल्ली्र(cid:23)ार आई०प लल्लीी०सी० (cid:23)े अन्तग%त दण्डनीय अप लल्लीराध (cid:24)ेरे आप लल्लीने धारा 396 प लल्ली्रसं कि ज्ञान (cid:24)ें किया। कि (cid:23)या। "

6. At the trial besides proving the above documents, the prosecution examined 13 witnesses. Raja Bhaiya was examined to prove the Written Report as also the occurrence disclosed by him. Similarly Sudhariya (P.W.-2 at the trial), Boota Devi P.W.-3 at the trial), Badri Prasad (P.W.-4 at the trial) and Bhagirath (P.W.-8 at the trial) were examined to prove the occurrence, as narrated. It has also come on record that Raja Bhaiya (P.W.-1 at the trial) identified the accused Badri, Baldeo and Lalli. Similarly, Sudhariya identified Badri, Piyare Lal, Baldeo and Lalli. Boota Devi identified Baldeo and Lalli while Badri Prasad identified Badri, Piyare Lal, Baldeo and Lalli. Bhagirath identified all four accused persons. Thereafter, constable Ramesh Singh was examined as P.W.-5. He proved the registration of the FIR as also the corresponding GD entry. He also tried to prove that accused Lalli was veiled/kept 'baparda' till his identification. Constable Pooran Singh Karvi was examined as P.W.-6. He proved that the accused Piyare Lal was kept veiled/'baparda' till his identification. Constable Maharani Deen was examined as P.W.-7. He proved that the accused Baldeo was kept veiled/'baparda' till his identification. Thereafter, injured eye-witness Bhagirath was examined as P.W.-8. He proved the occurrence as noted above and also identified the accused. Thereafter, Ram Vilas Pandey was examined as P.W.-9. He also proved that the accused Baldeo was kept veiled/'baparda' till his identification. Thereafter, Dr. Shivdayal Chauhan was examined as P.W.-10. He proved the injuries and cause of death of Lalita Devi. There is no dispute raised by the defence as to the nature of those injuries. The proven injuries are: "1. Incised wound 2cm x 1cm thickness of lip on left side of upper lip.

2. Contusion (multiple) over laging each other in an area 17cm x 13cm on anterio lateral aspect of left arm upper 3/4.

3. Contusion in an area 13cm x 13cm on posterio lateral aspect of left forearm upper 3/4.

4. Multiple contusion in an area of 18cm x 11cm on anterio lateral aspect of Rt. upper arm upper 2/3.

5. Multiple contusion in an area 11cm x 9cm on cheak of right forearm upper 1/3.

6. Incised wound 2cm x 2cm on top of right middle finger. Distal part of finger is missing.

7. Incised wound 2cm x 2cm on top of right ring finger. Distal part of finger is missing.

8. Contusion 8cm x 2cm on front of chest right side middle.

9. Multiple contusion over lapping each other in an area of 3cm x 23cm on back both sides upper 1/2.

10. Contusion in an area of 15cm x 8cm on left buttock.

11. Contusion in an area 15cm x 10cm on front of left thigh middle.

12. Contusion in an area of 20cm x 8cm on right buttock.

13. Lacerated wound 1cm x 1cm x skin on front of left leg middle.

14. Lacerated wound 1cm x 1cm x skin on front of right leg middle.

15. Incised wound 4cm x 2cm x bone on dorsal right foot distal and outer part 4th meta-dorsal bone cut underneath.

16. Incised wound 2cm x 1cm x skin on dorsam of root of right 5th toe.

17. Incised wound 3cm x 2cm on lip of right great toe. Distal part missing."

7. The Executive Magistrate Satyadev Bajpyee who conducted the Test Identification Parade, was examined as P.W.-11. He proved that he had conducted the Test Identification Parade on 9.9.1980 i.e. 3 months after the occurrence. In that Piyare Lal was correctly identified by the witnesses Sudhariya, Badri Prasad, Narmada (not examined at the trial), Bhagirath (PW.-8) and Ramabhavan (D.W.-3). Whereas, the accused Baldeo Prasad was correctly identified by the witness Raja Bhaiya (P.W.-1), Sudhariya (P.W.-2), Boota Devi (P.W.- 3), Badri Prasad (P.W.-4), Narmada (not examined at the trial) and Bhagirath (P.W.-8 at the trial). Similarly, the accused Lalli was correctly identified by Raja Bhaiya (PW.-1), Smt. Boota Devi (PW.- 3), Badri Prasad (PW.-4), Narmada (not examined at the trial), Bhagirath (PW.-8) and Ram Bhavan (D.W.-3). The accused Badri was correctly identified by Raja Bhaiya (P.W.-1), Badri Prasad (P.W.-4), Narmada (not examined), Bhagirath (P.W.-8), Ram Bhavan (D.W.-3) and Ram Avtar (not examined at the trial).

8. Thereafter, Head Constable Shyamlal was examined as P.W.-12. He proved the fact relevant to the conduct of the Test Identification Parade. The Investigating Officer Kshetrapal Singh was examined as P.W.-13. He proved the recoveries as also the investigation. After that statement of the accused were recorded under Section 313 Cr.P.C. Thereafter, opportunity was given to the defence to lead its evidence. The defence led evidence through seven witnesses namely Ramkhelavan (D.W.-1), a resident of Bandari. He is the uncle of accused Badri. He tried to prove that the parties were known to him before. Guliniya was examined as D.W.-2. She too was a resident of Bandari and wife of Ram Bhavan (D.W.-3). She also tried to prove that the parties were known from before. Ram Bhavan was examined as D.W.-3. He was resident of Hariyarpur. He also proved that the parties were known to before to the extent he proved that Badri was regular visitor to his house and he also used to visit Badri's house. Thereafter, he proved that Chandrapal Prasad @ Raja Bhaiya (P.W.-1), Badri (appellant), Narmada (not examined at the trial) and Bhagirath (P.W.-8) belong to the same family. He also proved that Chandrapal @ Raja Bhaiya (P.W.-1) held agricultural lands in the village Bandari. As to the occurrence, he proved dacoity had been committed at the house of Raja Bhaiya (P.W.-1), wherein, his mother was killed. Though, he was present at the time of occurrence, he could not see the actual occurrence as it was dark. He further proved that he entered the house of Raja Bhaiya (P.W.-1) after the dacoits had left. He also doubted the reliability and the credibility of the Test Identification Parade, inasmuch as, the police personnel had threatened to challan him, if he failed to identify the accused persons as dacoits involved in the occurrence.

9. Thereafter, Deshraj the uncle of accused Piyare Lal was examined as D.W.-4. He claimed, parties were known from before. Thus, Shyamlal an uncle of the accused Lalli was examined as D.W.-5. He proved that the daughter of Anant Rai namely Sudhariya (P.W.-2) was married to Raja Bhaiya (P.W.-1). Thus, Sudhariya knew accused Lalli from before. Ramakant was examined as D.W.-6. He a cousin brother of the accused Lalli proved, Sudhariya (P.W.-2) daughter of Anant Rai was a resident of his village and, therefore, she knew the parties from to before. Specifically, he claimed Bhagirath, Narmada, Raja Bhaiya, Sudhariya etc. all new Lalli from before. Pyare Lal D.W.-7 was also examined to prove that the parties knew each other from before.

10. On the strength of all such evidences the prosecution story has been believed in part. Based solely on the cooperation of consistent identification of the accused Baldeo and Piyare Lal, they have convicted, whereas, other two accused Lalli and Badri have been acquitted.

11. The submission of learned counsel for the appellants is that no conviction can arise solely on the strength of identification of the accused. There is no substantive evidence. Secondly, neither any recovery was made as may link any of the appellants to the occurrence nor any material like weapon etc. arose as may link either appellant to the occurrence. Here, it has been submitted that, in any case the Test Identification Parade is wholly doubtful. In that regard more than reasonable doubt has been created. That the appellants were not kept veiled/'baparda'; they were prosecuted for identification, not promptly after their arrest but with gross delay; Ram Bhavan (D.W.-3) was a listed witness of the charge sheet. Therefore, his presence is undoubted. He proved that the parties were known from before. That fact was not contested by the prosecution during his cross examination.

12. Therefore, the entire premise of the prosecution story falls to ground. The parties being known from before there arose no occasion why they were not identified at the time of the occurrence. Also, no credence may be given to their identification. No material discovery was made as may lent any credibility to the prosecution claim that the accused came to be identified during investigation. The entire prosecution story is unbelievable.

13. Reliance has been placed upon Iqbal and another vs. State of U.P. (2015) 6 SCC 623; Satrughana Alias Satrughana Parida vs. State of Orissa 1995 (Supp4) SCC 448, Nirmal Pasi vs. State of Bihar 2002 LawSuit (SC) 648. Also, reliance has been placed on two co-ordinate bench decisions of this Court in Bhup Singh & Ors. vs. State of U.P. [2015 (1) JIC 669 (All)] and Shyam Singh vs. State of U.P. 2022 0 Supreme (All) 887.

14. On the other-hand, learned A.G.A. would submit, to the extent, defence does not doubt that more than five persons caused the occurrence and to the extent the appellants were identified by the prosecution witnesses and other ingredients of the offence alleged were duly proven the appeal does not merit interference. As to the recovery, that is not a necessary ingredient of the offence. Therefore, no benefit may be granted to the accused-appellants on that count.

15. Having heard learned counsel for parties and having perused the record, in the first place, the prosecution brought a story of direct evidence. In that Test Identification Parade, on which heavy reliance was placed both at the trial and before us, is not a substantive piece of evidence. As to substantive evidence there is more to establish the the appellants were involved in the occurrence of dacoity, that was proven. To the extent, the prosecution story itself admits and it does not doubt that atleast some of the accused were known to the witnesses from before, the fact that none was named in the FIR, though the prosecution witnesses had been able to throw torch light at the miscreants and had been orally warned by the dacoits to not come near the house of Raja Bhaiya (P.W.-1), they would have identified the dacoits as the incident lasted over a duration of time. The absence of any substantive evidence led at that stage or the complete pack of corroboration of the prosecution story as prosecuted at the trial with that narrated in the FIR creates serious doubts as to its credibility especially when the accused appellaats were first identified at a TIP conducted on 09.09.1980 against their arrest made on 29.07.1980 and

17.08.1980 whereas the occurrence was of 9/10.06.1980 i.e. three months old. The prosecution story is doubtful from beginning.

16. In Iqbal (supra) both as to the source of light claimed and also conviction sought only on the strength of Test Identification Parade, the Supreme Court had the occasion to consider its implications in law. Pertinent to this case, it was observed as below: "11. In our considered view, it is unbelievable that on a new moon night when it was pitch dark, the witnesses who were frightened and who were hiding themselves behind the walls in order to save themselves, could have seen actual faces of the accused persons just by flash of torchlights on their faces and in the light of lantern. Further, there were about 14-15 dacoits in number, all armed with deadly weapons and were continuously making ingress and egress in the house of the deceased, it becomes inconceivable as to how the witnesses standing at a distance in a feeble light would have been able to identify the dacoits. (emphasis supplied)

12. When the witnesses are in a panicky state and standing at a distance of three-and-a-half yards and five-six yards, it is doubtful whether the witnesses would have gained an enduring impression of the identity of the accused. In the commission of offence of dacoity, identification becomes susceptible to [(1988) 1 SCC errors and miscarriage of justice. In Hari Nath 14 : 1988 SCC (Cri) 14] , this Court held as under : v. State of U.P. "16. … The conduct of an identification parade belongs to the realm, and is part of the investigation. The evidence of test identification is admissible under Section 9 of the Evidence Act. But the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification, depends on the promptitude in point of time with which the suspected persons are put up for test identification. If there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself, detracts from the credibility of the test.

17. The one area of criminal evidence susceptible of miscarriage of criminal justice is the error in the identification of the criminal. Indeed Prof. Borchard's Convicting the Innocent records several criminal convictions in which the accused was subsequently proved innocent. The major source of the error is to be found in the identification of the accused by the victim of the crime. Indeed the learned author refers to the source of mistaken identification thus: 'The emotional balance of the victim or eyewitness is so disturbed by his extraordinary experience that his powers of perception become distorted and his identification is frequently most untrustworthy. Into the identification enter other motives not necessarily stimulated originally by the accused personally — the desire to requite a crime, to exact vengeance upon the person believed guilty, to find a scapegoat, to support, consciously or unconsciously, an identification already made by another. Thus, doubts are resolved against the accused.'

18. Glanville Williams in The Proof of Guilt — (Hamlyn Lectures) — refers to the errors of recognition breeding an invincible assurance in the witnesses, highly deceptive for those who are not forewarned of such possibilities, and excerpts Gorphe's results of a continental investigation, thus: 'There is no difference from the subjective point of view, between true and false recognition, so far as their intrinsic qualities are concerned, and there are no objective signs to distinguish one from the other. … The witness's certainty may not be immediate, without this delay being necessarily a sign of error. Nevertheless, error is more frequent when recognition comes some time after seeing .... The act of recognition is very open to suggestion in all its forms…. Resemblance is a matter of relativity. For a white person, all negroes are like each other, and conversely. A person can much better distinguish those of his own age and condition than those of different ages and condition. Uniform is a cause of fallacious resemblance, above all for those who do not wear it.'

19. The evidence of identification merely corroborates and strengthens the oral testimony in court which alone is the primary and substantive evidence as to identify."

13. As noticed earlier, test identification parade was conducted in jail on 15-11-1979 by PW 6 Special Executive Magistrate in which the witnesses PW 1, PW 2 and PW 3 identified the accused. As far as test identification parade is concerned, it is relevant to note that accused Kripa has contended that he had been falsely implicated in the case because of the rivalry with Rampal Singh and his maternal uncle Mangeram. Accused Kripa also pleaded that the witnesses knew them as they were living in nearby villages and because of rivalry, they were being falsely implicated in the case. So far as Appellant 2 Khurshed and another co-accused Kishnu are concerned, they had stated that they were arrested by the police from their houses and they were shown to the witnesses at the police station and they were also photographed before holding the test identification parade." (emphasis supplied)

17. Further, as to the nature of eivdnece that a Test Identification Parade is, it was observed as below: "15. The evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject-matter of dacoity and the alleged weapons used in the commission of the offence." (emphasis supplied)

18. The Supreme Court had the occasion to consider the effect of non- recovery of any of the looted items, in the context of heavy reliance placed by the prosecution on the Test Identification Parade and identification of the accused, to prove the heinous offence of dacoity. In that regard, it was observed as below "19. The courts below based the verdict of conviction solely on the oral testimony of PW 1 to PW 3 and the identification of the appellants and other non-appealing accused in the test identification parade. As discussed earlier, in the absence of any other evidence like recovery of stolen jewellery or other articles strengthening the prosecution case, conviction cannot be based solely on the identification of the accused in the test identification parade. Serious doubts arise as regards identification of the accused regarding complicity of the appellants in the commission of dacoity and their identification by the witnesses and the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and in our view, the conviction of the appellants under Section 396 IPC cannot be sustained and is liable to be set aside." (emphasis supplied)

19. In the context of Satrughana (Supra), it has further been submitted that accused Bal Deo came to be arrested on 29.07.1980, whereas his Test Identification Parade was first conducted on

09.09.1980. Similarly, the accused Pyare Lal was arrested on

17.08.1980, whereas his Test Identification Parade was conducted on

09.09.1980 i.e. after lapse of substantial time. It may never be accepted beyond reasonable doubt that identify of those accused persons would either have remained veiled/'baparda' or accurate considering the failings or limitations of ordinary human memory. In that regard, the Supreme Court has observed as below "2. We have heard counsel on both sides. The fate of the appellants depends on the probative value to be given to the evidence of PWs 1, 4, 6 and 8 in regard to the identification of the appellants. It may be mentioned that the occurrence in question had taken place at midnight almost 1½ months prior to their identification. One of the appellants, Rabin Kandy was arrested on November 22, 1982, while the other two Rabindra Kumar Sahu and Satrughana were arrested on November 12, 1982. The identification parade was held on December 10, 1982, i.e. more than 15 days after the arrest of Rabin Kandy and almost a month after the arrest of the other two accused. The prosecution has not advanced any reason for not holding the identification parade promptly. In other words the prosecution has not placed on record the reason why it was not possible for it to hold the identification parade with promptitude, i.e. soon after arrest. Where the fate of the accused persons hangs solely on the identification by the witnesses who claim to have seen them almost 1½ months prior to the date of identification, it is the duty of the prosecution to state why the identification parade could not be arranged immediately after the arrest of the accused and without loss of time. Unless there is good reason for the delay, the value regarding the evidence of identification gets adversely affected. This dilution of the evidentiary value of identification by witnesses who claim to have seen the accused at night almost 1½ months back but who did not in their statements before the police or in the first information report reveal any special features for identification, is a matter which weighs against the prosecution. It must be remembered that the accused persons are required to be produced before the court latest within 15 days of their arrest and, therefore, it would be reasonable to infer that they were so produced. There is nothing on the record to show that the prosecution had taken care to ensure that their identity was not revealed when they were taken to court and produced as required by law. In these circumstances, when the prosecution witnesses had admitted in their oral statements that they had not noticed any special identifying features, it becomes unsafe to place implicit reliance on the evidence regarding identification emanating from the proceedings at the test identification parade. In these circumstances since there is no other corroborative evidence, we find it difficult to place implicit reliance on the identification made at the test identification parade. We are, therefore, of the opinion that the appellants are entitled to benefit of doubt." (emphasis supplied)

20. These facts are similar. Therefore, it may not be available to the prosecution to rely on such belated Test Identification Parade as the solitary evidence to secure the conviction. Then in Nirmal Pasi (Supra), delay in conducting of Test Identification Parade and lack of disclosure, how suspicion arose against the accused leading to their arrest were considered to be relevant in the context of heavy charge of dacoity. In that regard, it was observed as below: "6. Firstly, Sona Pasi and Nirmal Baheliya, the two accused-appellants were put up for identification after a delay of about 1 month and 10 days from the date of their arrest. Similarly, accused Krishna Choudhary was put up for test identification parade after a delay of 1 month and 20 days from the date of his arrest. The prosecution has not assigned any explanation, much less a satisfactory explanation, for the delay in holding the test identification parades. Secondly, the accused-appellants have voluntarily surrendered and their surrender was preceded by the initiation of proceedings for declaring them as absconding offenders. The investigating officer had initiated proceedings under Sections 82-83 of Cr.P.C. against the three accused persons by naming them. Nothing has been placed on record to show as to how the suspicion of the investigating officer had fallen on these three accused persons and what had persuaded him to form an opinion as to the involvement of these three accused-persons in the offence of dacoity so as to treat them as absconding offenders." (emphasis supplied)

21. Another aspect of the issue was considered by a coordinate bench of this Court in Shyam Singh (supra) wherein considering the case of Shatrughan (Supra), the coordinate bench found that the prosecution evidence stood diluted for reason of delay of 35 days, 52 days and 15 days (in that case). The coordinate bench also took note of the fact that the First Information Report did not disclose any special features of the miscreants. Here only this much came to be revealed at that stage that some of the miscreants were dark skinned and the others were light skinned. All were young. Some were wearing 'Kurta Paijama' and others were wearing 'Pant Shirt'. That narration was wholly generic and vague as may be common to citizens at large inasmuch as description of skin colour as dark or light is a highly subjective and in any case relative description. It is not exact or distinctive. In any case in the context of our society, it is a very commonly observed variation where people in the same family have different skin colours and tone from dark to light, that too on a very relative scale. Also, the clothing described is also generic and commonly worth by citizens as may not offer any peculiarity or distinguished feature for the purpose of exact/credible identification of the accused.

22. Last, we also note that the learned counsel for the appellants has rightly pointed out that it being admitted to the prosecution that occurrence was caused in midnight, mere alleged examination of the torch during investigation without its recovery and without it being made a material exhibit at the trial, the source of light that was otherwise absent was not allowed to be questioned by the defence by non-production of such torch. While an oil lantern may never offer enough light specially from a distance, a torch light may allow a person to see objects/persons placed at some distance provided the torch light is of such strength and specification as may offer help to the witnesses to identify the accused. That they did not. To the extent, the prosecution story itself proved that all the witnesses were standing at some distance away from the firing range of the miscreants and to the extent it was mid-night, the non-production of the source of light claimed by the prosecution also lends another reasonable doubt in the truthfulness or reliability of the prosecution story. It is also not the case of prosecution that the accused had called each other by their names at the time of occurrence.

23. In view of the discussion made above, we find that the prosecution has not led any substantive evidence to prove that the appellants Baldeo Prasad and Pyarelal were involved in the occurrence. In any case, in view of the fact that the learned court below has itself disbelieved the prosecution evidence based on identification with respect to the identification of the other accused Lalli and Badri, it is further doubtful if such conviction may ever be maintained against the other accused i.e. appellants Bal Deo Prasad and Pyare Lal.

24. We are also mindful there is neither recovery of any firearm nor there is recovery of any looted article. Therefore, it is an unsolved mystery how the appellants came to be arrested. It is only on the strength of their arrest that the prosecution story progressed through Test Identification Parade alone. If the accused persons/appellants had been named before and thereafter arrested and identified to confirm their involvement in the occurrence, case would have been otherwise.

25. The learned court below has completely erred in convicting the present appellants.

26. In view of the above discussion, the appeal succeeds and is allowed. The judgment and order dated 12.11.1984 is set aside and quashed. The appellants are acquitted of the charges framed against them. They are on bail. They need not surrender. Their bail bonds and sureties are discharged. The appellants are directed to furnish bail bonds in compliance of Section 437-A Cr.P.C. to the satisfaction of the Court concerned within two months from today.

27. A copy of this judgment alongwith original record of the trial Court be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court, at the earliest. Office is directed to keep the compliance report on record. Order Date :- 21.7.2025 S.A. (Madan Pal Singh, J.) (S. D. Singh, J.)