Ashok Kumar And Another vs State Of U.P. on 21 November, 2025

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Allahabad High Court

Ashok Kumar And Another vs State Of U.P. on 21 November, 2025

1. The instant Criminal Appeal has been filed by the convicted accused against judgment dated 12.9.1996 of Shri R.K. Gupta, Special Judge (U.P. Dacoity Affected Areas Act), Etawah in Sessions Trial no.150 of 1993 (State versus Ashok Kumar, Gore alias Ujagar Singh and Ramdas) arising out of case crime No. 58 of 1983, PS Bharthana, District Etawah, whereby all the accused have been convicted for the offence under section 302/34 IPC and sentenced to suffer life imprisonment, for offence under section 201 IPC to suffer 7 years imprisonment and for offence under section 404 IPC to suffer three years imprisonment. All the above sentences were ordered to run concurrently.

2. Factual matrix is that, on 9.4.1983 at about 4 PM accused Ashok along with two unknown accomplices, arrived at the house of first informant Ramswaroop Dubey (PW-1 at the trial). The unknown accomplices were disclosed by accused Ashok to be his relatives and he enquired about first informant's son Govind, for transporting the bricks of his accomplices by his tractor, from the brick kiln. On their request, Govind was called, who arrived and freight for transporting the bricks was settled with them. At that time, Ramswaroop Dubey and his daughter Heera(PW-3 at the trial) were present, who had recognised accused Ashok and his two accomplices. Thereafter, Govind, Ashok and his two accomplices went by tractor no.7911, to the brick kiln for loading the bricks on the tractor. At about 5:30 PM, Govind along with Ashok and his two accomplices passed in front of the house of Ramswaroop Dubey, who were going towards Bharthana, who were sitting in the above tractor with trolley loaded with bricks. Ramswaroop Dubey saw Govind on the above tractor going towards Bharthana. When first informant's son Govind didn't return till the next morning with the tractor, then he enquired about him, then he was told by Mahesh Chandra that he saw his tractor, Saturday evening going through railway crossing towards the market, on which Ashok and two persons were seated, the tractor was being driven by Govind. Thereafter, first informant was told by Chandra Prakash of Baluganj that on Saturday evening, he saw his tractor loaded with bricks, on which three persons were seated, which was being driven by Govind towards Umarsanda. On further enquiry the first informant was told by Narain that he met Govind, who was driving the tractor loaded with bricks on which three persons were seated, after crossing Umarsanda bridge. Thereafter, the first informant enquired at many places then, he was told by Rajendra Prasad Shukla(PW-2 at the trial) that when he was coming from bus from Kishni and was going towards Bharthana, then he saw Govind near village Maman, who was carrying bricks in a tractor, on which three other persons were seated. The first informant continuously enquired about his son Govind, then ultimately, he came to know that a boy's dead body was found in the area of Police Station Kurra, District Mainpuri. The first informant apprehended that his son Govind might have been killed by Ashok and his two accomplices or there might be more persons and they had also taken his tractor-trolley.

3. On the basis of the above written complaint (Ex.Ka-1 at the trial),scribed by Balram Singh, dated 12.4.1983 of first informant Ramswaroop Dubey, FIR(Ex.Ka-4) was registered on 15.4.1983 at 1 PM, being case crime no. 58 of 1983 under section 364/368 IPC at Police Station Bharthana, District Etawah, against accused Ashok and his 4 accomplices. The investigation was assigned to SI Shafiq Ahmad Siddiqui(PW-11 at the trial).

4. Prior to the above FIR, one Nawab Singh had given oral information at Police Station Kurra, District Mainpuri on 10.4.1983 that he left his village Bilanda for attending Karhal market, then near village Padura, he saw the dead body of an unknown person in the Ganges canal, lying in water, who had injuries on his neck, he left some person near the dead body. On this information, FIR(Ex.Ka-8) on 10.4.1983 at 2 PM being case crime no. 36 of 1983 under section 302 IPC was registered at police Station Kurra, District Mainpuri against unknown persons. The investigation was assigned to SI Ramkrishna Arya(PW-10 at the trial).

5. The dead body of an unknown person was taken into possession by the police and blood stained and plain soil was also collected from the spot on 10.4.1983. The recovery memo is Ex.Ka-16 at the trial. A shoe was also recovered from the left leg of unknown deceased, on which BUMPY was written, which was of orange colour. The recovery memo is Ex.Ka-17 at the trial. Further, some papers from the pocket of kurta of the unknown deceased--a slip of Messers Anoop brick manufacturing factory, Modie, Bharthana, Etawah bearing the name of Ram Siya nai , a slip signed by Govind Narain Dubey, 4 cash memo of purchasing 10-10 litre diesel from Kasimbhai upbaitawala Indo Burma Petroleum Co. Ltd on 2.4.1983, 4.4.1983, 5.4.1983 and 6.4.1983 and one book titled 'film Brij Bhumi' were also recovered. The recovery memo of above items is Ex. Ka-18 at the trial.

6. The Panchayatnama of unknown deceased was prepared on 10.4.1983 between 16:00 hours and 18:30 hours by SI Ramkrishna Arya, which is Ex. Ka-9 at the trial.

7. The autopsy of the unknown dead body was conducted at post-morterm house, Mainpuri on 12.4.1983 at 12:30 PM by Dr. Rajeshwar Prasad Samboo (PW-5 at the trial). The following ante-mortem injuries were found on the dead body :-

(i)Transverse incised wound 4 cm x 1.5 cm x muscle deep, 1 cm below chin. Margins are sharp and clean cut tapering laterally right side.

(ii)Ligature mark 24 cm x 2 cm present over front and side of neck, 6 cm above supra sternel Notch. Abrasions and Eechymosis present around the ligature mark. Sub-cutaneous tissue under the ligature mark is Eechymosid.

(iii)Multiple abrasions in an area of 13 cm x 8 cm on front of left side chest and abdomen 3 cm below left nipple.

8. In the autopsy Hyoid bone and larynx were found fractured, lungs and trachea were found congested, carotid vessels were found lacerated. In the opinion of the doctor, the deceased died about three days prior to the time of post-mortem, due to asphyxia, due to strangulation and ante-mortem injuries. The autopsy report is Ex. Ka-2 at the trial.

9. According to prosecution, the accused persons after murdering Govind had sold his tractor no.URB-7911 make Swaraj 735, colour yellow-green, to Tabarak Ali (PW-8 at the trial).The tractor was sold by Akil Ahmed in the presence of accused Ashok to Tabarak Ali on 13.4.1983 for ₹ 32,200/-, regarding this transaction, receipt was also prepared, which is Ex. ka.-7 at the trial. The witnesses of this transaction were Tarachand (PW-9 at the trial) and Ved Prakash. The tractor was recovered on 19.4.1983 from Tabarak Ali's house situated in village Bondara, Police Station Kithore, District Meerut. The recovery memo of the tractor is Ex.Ka-20 at the trial. Further, the trolley of the tractor was sold to Vishnu Dutt Sharma at Sonipat(Haryana).

10. According to the prosecution on 29.4.1983, 892 bricks and 216 half bricks, of 'T & Co' and 'Shri' make, were recovered from the courtyard(angan) situated inside the house of accused Ramdas, in Police Station Basrehar, District Etawah, which were concealed in a pit beneath the soil, covered by straw. The bricks were recovered after digging the ground. The bricks were given in the custody of Kali Charan and Nathuram. The recovery memo of bricks is Ex. ka-24 at the trial. One brick of 'Shri' make and one brick of 'T& Co' make, from the bricks recovered from the house of accused Ramdas, were taken as sample on 29.4.1983. The recovery memo is Ex.Ka-23 at the trial.

11. A receipt book from Anup Brick factory Maudhi, Police Station Bharthna, District Etawah, bearing T & Co. make, starting from 9.4.1983, which was issued by Swami Saroop, was also taken into possession on 29.4.1983, in which receipts no.801-855 were issued. The recovery memo is Ex.Ka-25 at the trial.

12. After investigation chargesheet was submitted against accused Ashok Kumar and Gore alias Ujagar Singh under section 364, 368, 302, 201, 394 IPC and against accused Ramdas under section 364, 368, 302 and 201 IPC on which cognizance was taken by the court below and the case was committed to the Sessions Court for trial.

13. The trial court on 22.5.1986 framed charges against accused Ashok Kumar, Gore alias Ujagar Singh and Ramdas under section 302/34, 201 and 404 IPC to which they pleaded not guilty and claimed trial.

14. The prosecution examined the following witnesses at the trial to prove the following documents/objects:-

Sr.no.

Witness Examined Document/object proved 1 Ram Swaroop Dubey, first informant, examined as PW-1 (1) Proved written application as Ex.Ka-1.

(2) Proved tractor as material Ex.-1, trolley as material Ex.-2,shoe of deceased as material Ex.-3.

Rajendra Prasad, as PW-2 None 3 Km.Heera, as PW-3 Shoe of deceased as material Ex.-3.

Sarvesh Kumar, as PW-4 None 5 Dr. Rajeshwar Prasad Samboo, as PW-5 Proved autopsy report of deceased as Ex.Ka-2.

Swamy Swaroop Tiwari , as PW-6 (1)Proved carbon copy of receipt no.809 issued to accused Ashok for purchasing 1000 bricks, as Ex.Ka-3.

(2)Proved sample brick of 'Shri' and 'T&Co' make, as material Ex.4 & 5.

Jairam Dubey, retired Head Constable as PW-7 (1)Proved copy of G.D.entry dated 12.4.1983 no.4 time 5.30 hours, as Ex.Ka-3.

(2)Proved chick FIR dated 15.4.1983 as Ex.Ka-4 and copy of G.D.entry no.25 time 1 PM, as Ex.Ka-5.

(3)Proved copy of G.D.entry dated 21.4.1983 regarding recovery of tractor-trolley and arrest of accused Ashok, as Ex.Ka-6.

Tabarak Ali, as PW-8 None 9 Tarachand, as PW-9 Proved sale receipt of tractor dated 13.4.1983,as Ex.Ka-7 10 Ramkrishna Arya, as PW-10 (1) Proved chik FIR dated 10.4.1983 as Ex.Ka-8.

(2)Proved panchayatnama of deceased as Ex.Ka-9.

(3)Proved other prosecution papers prepared at the time of panchayatnama as Ex.Ka-10 to 14.

(4) Proved site-plan of place of recovery of dead body as Ex.Ka-15.

(5)Proved recovery memo of blood stained & plain soil as Ex.Ka-16,recovery memo of shoe of deceased as Ex.Ka-17,recovery memo of documents recovered from the pocket of kurta of deceased as Ex.Ka-18.

(6)Proved blood stained and plain soil,book'film Brij Bhumi',4 diesel purchase cash memos and slip of M/S Anoop Brick manufacturing factory as material Ex.4 to 11.

S.I.Shafiq Ahmed, as PW-11 Proved recovery memo of tractor as Ex.Ka-20, site plan of the place of recovery of tractor as Ex.Ka-21, site plan of the place of murder as Ex.Ka-22, recovery memo of sample bricks as Ex.Ka-23, superd ginama of bricks as Ex.Ka-24, recovery memo of whole receipt book of brick kiln as Ex.Ka-25, site plan of trolley as Ex.Ka-26, chargesheet against accused Ashok as Ex.Ka-27 12 Ramesh Dutt Sharma, as PW-12 Proved chargesheet against accused Ramdas as Ex.Ka-28.

Manrakhan Lal Sharma ,as PW-13 Proved identification memo of accused Gore alias Ujagar and Ramdas as Ex.Ka-29 & 30.

Evidence of prosecution

15. The first informant Ramswaroop Dubey PW-1 deposed in his examination-in-chief that his son Govind was abducted on 9.4.83 at about 4 PM, at that time he was in his house along with his daughter Km. Heera, then accused Ashok and his two accomplice, who were unknown to him but whom he can recognise, came to his house. He knew Ashok prior to the incident. Ashok informed him that his accomplices were his relatives. He enquired about Govind for transporting the bricks. He called Govind, then Ashok told Govind to transport the bricks of his relatives, the freight of transportation of bricks was also settled. His son went with the above named three persons on his tractor trolley no.URB-7911, tractor was of Swaraj make of green yellow colour, the trolley was of blue colour on which for agricultural purposes and Dubey agricultural farm, was written, in front Jai Bajrang Bali and in back Horn Please, was written. His son left with the above accused for loading the bricks at about 4 PM who, after loading the bricks in the tractor trolley, left for Barthana, who was seen by him from his house, along with the above three accused persons at about 5- 5:30 PM. His son had not returned that day. He started searching his son next morning at 8 9 AM then in the Bharthana market, he was informed that his son, accused Ashok and two other persons were seen going on tractor trolley loaded with bricks at Bharthana railway crossing yesterday evening at about five 5:30 PM. He further deposed that in Baluganj he was informed by Chandraprakash that yesterday Govind was transporting bricks, along with Ashok and two other persons and they were going towards UmarSanda.

16. He further deposed that he met Narain in Bharthana market, who also told him that he met Govind transporting bricks near Umarsanda village, on the bridge, along with Ashok and two other persons. He further deposed that Rajendra Shukla also informed him that he saw Govind with Ashok and two persons transporting bricks near Maman. He also informed him that of the two unknown persons, one was having fair complexion and another was having dark complexion. The person with fair complexion was having some golden hair. The first informant proved the application written by Balram on his dictates, which was given on 12.4.1983 at Police Station, Barthana, District Etawah as Ex.Ka-1.

17. He further deposed that on the evening of the third day, in the market, he came to know that a boy's dead body was found near Bilinda bridge within Police Station Kurra District Mainpuri, then he apprehended that it was possible that the dead body might be of his son, who might been killed by those persons. Since, that day it was too late, as such, he did not go to Bilinda bridge, but the next day he went there, then people present informed that the dead body was sent to the post-mortem house Mainpuri, where he saw and identified the dead body of his son, but his tractor- trolley were not found. He further deposed that after autopsy, his son's dead body was handed over to him.

18. He further deposed that after about 4 5 days, his tractor was recovered from some village within Police Station Kithore, District Meerut and after about 5 6 days, trolley was also recovered within Police Station Sonipat in Haryana. He disclosed that tractor and trolley were given in his custody by the court. During his testimony, the first informant proved the above tractor as material Ex.-1 and trolley as material Ex.-2.

19. He further deposed that for identifying the two unknown persons who accompanied accused Ashok on that day, who came to his house for taking Govind with them, he went to the District Jail Etawah. This witness identified accused Ujagar Singh in the dock, as the accused he previously identified in the Jail, who accompanied accused Ashok for taking tractor, to his house. He also identified accused Ashok in the dock. This witness also identified and proved the canvas shoe of yellow colour of his son Govind as material Ex.-3, which was recovered from his son's dead body.

20. PW-1 deposed in cross-examination that when his son had left his house then he was wearing kurta, paijama, baniyan and underwear. When he saw his son's dead body then, it was naked, which was having cut injuries on neck. He saw his son's dead body at Mainpuri at about 11 12 AM, after taking permission of the doctor, which was lying on a table in the post-mortem house, which was handed to him at about 1.30 2 PM by Mainpuri police.

21. He further deposed that when he went to register his complaint to police station Bharthana, he was aware that a dead body was lying near Bilinda canal bridge in Kurra police station, but he was not sure about the identity of the dead body. He became aware on the third day after his son left, at 4 5 PM that a dead body was lying near Bilinda bridge.

22. The first informant in cross-examination deposed that he heard the conversation that took place between his son, Ashok and others. He had not noticed what freight was agreed. In his presence, it was not agreed, where the bricks were to be transported, but he heard Ashok saying that the bricks were to be transported to his relatives place. When the above conversation took place, at that time tractor-trolley was at his house. He had written the number of tractor in his report. He had also informed URB in the number of his tractor to the investigating officer, if, it is not mentioned in his statement, then he cannot tell its reason. He had not mentioned the colour of the tractor trolley and what was written on it, in his report.

23. He further admitted in his cross-examination that he had not mentioned that Mahesh told him that he saw his son driving tractor at 5:00 5:30 at Barthana railway crossing. Rajendra had informed him that he saw the accused in the night. He scribed the complaint at his house from Balram at about 7 8 PM, on the third evening, after his son left. At that time his daughter Heera was studying in BA, but he had not scribed the complaint from her. He had not made any complaint at Police Station Panipat regarding tractor-trolley. He purchased the tractor after taking loan from State Bank Bharthana. Lalta Prasad was with him when tractor was purchased. He intimated the bank that his tractor-trolley was stolen. He possesses 7 8 acre land. He heard that after 8-10 days of his report, Ashok was apprehended. He disclosed that he had signed the superdginama of tractor -trolley. He denied the suggestion that accused had not taken Govind in his presence. He also denied the suggestion that he gave complaint at the police station on 15.4.1983.

24. Rajendra Prasad Shukla PW-2 deposed in his examination-in-chief that he knew deceased Govind and his father Ram Swaroop much prior to the incident. On 9.4.1983 he went to Kishni for his personal work and returned by bus through Usarahar, the same night at about 8 8:30 PM. He was returning from bus to Bharthana, and when he was in between village Maman and Bharthana, then at about a distance of 23 furlong from Maman, he saw a tractor coming from Bharthana, in which bricks were loaded, which was going towards Maman, the tractor was being driven by Govind, in which 3 other persons were also seated. He recognised accused Ashok Kumar, in the dock. He also recognised the appearance of two other persons seated in the tractor, in the light of his bus. The two unknown persons whom he had recognised, he had not known their name and address previously. Then he returned to Bharthana and on the next day, he met Ram Swaroop, who asked about Govind, then he informed him, that he saw Govind near Maman, driving tractor-trolley loaded with bricks. 4 5 days later, he became aware that Govind was murdered, whose dead body was found in Mainpuri. His statement was taken by the investigating officer. He further deposed that he went to the District Jail, Etawah for identification of accused. This witness identified accused Ramdas in the dock, as the same person, he previously identified in the Jail, whom he also saw in the tractor- trolley near Maman.

25. PW-2 deposed in cross-examination that his statement was recorded by the investigating officer after 20 days. During this period, he didn't go to the police station for giving his statement. When he was 2 furlongs ahead of Maman culvert towards Bharthana, then tractor met. The culvert is situated on small canal. He saw the tractor at about 8:30 PM, it was dark at that time, he saw the tractor in bus light, when the bus and tractor came near to each other. He saw the accused from front. There was hood on the tractor. There was light inside the bus. He left by the last bus from Usarahar for Bharthana, which is a distance of 24 26 km from Usarahar. The road was in north south direction. There is a gallery in the centre of the bus and besides it, there are seats. He was seated exactly behind the driver of the bus. The bus was having drivers seat on the right side. Besides that, no other tractor trolley and cart met. Pedestrians and bicycle riders met.

26. He further deposed in cross-examination that he went to the jail twice for identification. There was a gap of 15 days between both the identification. The eyes of accused were normal and his moustache was joined at the centre. The investigating officer neither asked him about the identity of the accused nor he told him. The accused was aged about 27 to 28 years. He denied the suggestion that during remand he was shown the face of the accused. He denied that he saw accused Ramdas taking potatoes on a tractor trolley, from his house. He further disclosed that the bus from which he was returning, was a private bus, which was not driven at a speed, in excess of 30 km. He further disclosed that when the tractor came near to the bus, the speed of the bus was very much reduced, but he had not told this to the investigating officer. He further disclosed that Ram Swaroop met him on the next day near tehsil at about 4 PM. Ram Swaroop's house was at a distance of about 2 km. from his house. He disclosed the name of accused Ashok to Ram Swaroop.

27. First informant's daughter Km. Heera PW-3 deposed in her examination-in-chief that about 4 years and 9 months back, at about 4 PM, she was present in the courtyard of her house along with her father, then accused Ashok along with two other persons arrived at her house. Ashok told them to call Govind, for transportation of bricks of his relatives to their place, at this, her father called her brother Govind. She also called her brother Govind, then Govind arrived. Then, these persons started conversation with Govind near tractor, which was standing in the courtyard on the Chabutra. She hadn't heard their conversation. Thereafter, Ashok and his two accomplices went with Govind, on his tractor, to brick kiln at about 4 PM, who returned and passed in front of her house at about 5:30 PM. At that time, the tractor was loaded with bricks, which went towards the market. The tractor no.URB-7911 belonged to her father Ram Swaroop Dubey. Thereafter, her brother never returned. When that night, her brother Govind had not returned, then on the next day 10.4.1983, her father went in search of Govind, who returned at 12 noon, and informed that Mahesh Chandra told him that he saw Govind near the railway crossing, driving tractor, with Ashok and two other persons. Her father made further inquiries, then in the evening of 11.4.1983, he became aware that an unknown dead body was found in the area of police station Kurra, then they became apprehensive. Her father had not gone to Kurra to see the dead body, he went straightaway to post-mortem house at Mainpuri, where he identified her brother Govind's dead body. When her brother Govind left, at that time he was wearing underwear, baniyan, kurta, paijama and shoes. This witness identified the shoe found on the dead body of her brother, which has already been exhibited as material Ex. 3. This witness identified accused Ashok in the dock.

28. PW-3 deposed in cross-examination that she had not gone to Mainpuri to see the dead body of her brother. She didn't ever had any talk with Ashok. Ashok used to frequently visit her brother, who had told her Ashok's name. Her brother Govind used to operate tractor daily on freight. He used to return home in the evening. The day Ashok came to her house, she was reading in the courtyard with her father. The conversation took place for around 4 5 minutes. She didn't focus on their conversation. The investigating officer visited her house on 29.4.1983 and enquired from her. She told the I.O. that they went towards the brick kiln. She doesnt know whether her father purchased tractor by taking loan from the bank or from his own money. On getting apprehensive, her father went on 12.4.1983 at 7 AM to Mainpuri, and returned at 6-7 PM. Her father went in the evening of 10.4.1983 to Ashok's house. The complaint was written at her house in the evening of 11.4.1983, which was taken the next day by her father to the police station. She denied that she had witnessed nothing and she was giving false testimony on behalf of her brother and police.

29. Sarvesh Kumar PW-4 deposed in his examination-in-chief that about five years back, at 11:15 PM, he was operating engine for irrigating his field near Lucknow canal bridge, then he saw a light coming from the side of village Bilinda canal bridge. When the light came nearby, he saw a tractor, make Swaraj, on which 2-3 persons were seated, which went towards Karhal. The next day at about 8 PM, the investigating officer of Kurra police station came with a dead body, at that time, he was present near canal, operating his engine. The investigating officer enquired about a vehicle which passed from there, then he told him, what he saw. In cross-examination he deposed that his field is at a distance of about one furlong from the footpath of canal. The night was not dark, there was moonlight till morning. He recognised the tractor was of Swaraj company, only from his sound, he could not see the tractor number. He saw 2-3 people on the tractor, from his engine. He cannot recognise any of them.

30. Dr Rajeshwar Prasad Samboo PW-5 deposed in his examination-in-chief that on 12.4.1983 he was posted as incharge medical officer at District Hospital Mainpuri, then at 12:30 PM he conducted autopsy of an unknown male, aged about 27 years, who died about three days back. Foul smell was emanating from the dead body, maggots were present, skin was peeling off from body, hairs were loose, blisters were present, the tongue was clenched between the teeth, clotted blood was present around mouth and face, face was swollen and livid. Faecal matter was present around anal orifice. The body was smeared with mud. Eyes were bulged out and congested. The ante-mortem injuries found on the dead body, have already been mentioned earlier in this judgment. This witness proved the autopsy report of the deceased as Ex.ka-2. He further opined that the deceased died due to asphyxia, due to strangulation and ante-mortem injuries, in the intervening night of 9/10.4.1983 at about 11 PM, but he could also have died on 9.4.1983 at 12 noon and also, on 9.4.1983 at 3 PM.

31. Swami Swaroop PW-6 deposed in his examination-in-chief that his brick kiln was situated in Patiya Chatorpur, Police Station Bakewar. He was the owner of the brick kiln. On 9.4.1983 he was present at his brick kiln, then accused Ashok along with two other persons with tractor of Govind, arrived at his brick kiln, who purchased 1000 awwal bricks from his brick kiln. He issued a receipt, a carbon copy of which was available with him, in his receipt book which was from no. 801 900. He issued original receipt no. 809 to accused Ashok Kumar, the carbon copy of which was available in his receipt book, which was in his own handwriting. This witness proved the carbon copy of the receipt no. 809 as Ex.Ka-3. He further deposed that the two sample bricks of make 'Shri' and 'T&Co' were of his brick kiln. He clarified that 'T& Co' denotes 'Tiwari & Co'. The above sample bricks were proved as material Ex.-4 and 5. He further deposed that the bricks were loaded in the tractor-trolley by his servants. He further deposed that the tractor which accused Ashok Kumar brought for transporting bricks, was having no.URB-7911, which was driven by Govind.

32. PW-6 deposed in cross-examination that in receipt Ex.ka3, Govind's name was not mentioned. He also disclosed that when these persons came to take bricks, at that time he didn't knew accused Ashok. He further disclosed that one of them told his name as Ashok, then he issued receipt in the name of Ashok. He sat in his room at the brick kiln. A Munim also remained at the brick kiln, who in his absence, issued receipts. His brick kiln opened in the year 1981. For two years, his bricks had 'shri' make inscribed on them. Thereafter, make 'T & Co' began to be inscribed. In between the year 1981 to 1983, several lacs bricks of 'shri' make were sold. In the year 1987 several lacs bricks of 'T & Co' make were sold. He cannot tell who had taken the bricks of the above make, which were present in the court. The investigating officer recorded his statement 20 days after the bricks were sold, who had also taken the statement of the labourers working at the brick kiln, who loaded the bricks in the tractor.

33. Jairam Dubey PW-7,retd.Head Constable deposed in his examination-in-chief that on 12.4.1983 he was posted as Head Moharrir at Police Station Bharthana, then on the basis of written complaint of Ram Swaroop Dubey, an entry was made in the GD of the police station at serial no. 4 at 5:30 AM by Vijay Singh, Head Constable. This witness proved the copy of the above GD entry as Ex.Ka-3. He further deposed that its investigation was assigned to SI Shafiq Ahmed. He further deposed that on the direction of the investigating officer, case was registered on 15.4.1983, regarding which an entry was made in the GD at serial no. 25 at 13:00 hours. This witness proved the Chik FIR dated 15.4.1983 as Ex.ka.4 and the copy of the above GD entry as Ex.ka.5. He further deposed that on 21.4.1983 and entry was made in the GD regarding recovery of tractor trolley and arrest of accused Ashok. This witness proved a copy of this GD entry as Ex. ka.6. In cross-examination he disclosed that no Chik FIR was registered on 12.4.1983, only an entry was made in the GD. Tractor-trolley was not brought by the investigating officer to Police Station Bharthana.

34. Tabarak Ali PW-8 deposed in his examination-in-chief that about 5 6 years back, he purchased a tractor make Swaraj, of 3 cylinder, of yellow green colour. Since, he was illiterate, he cannot tell the number of the tractor. He purchased this tractor in Sonipat from Akil and accused Ashok,who was accompanying Akil. At that time, Kakku was also present, who brokered the deal. This witness identified accused Ashok in the dock, as the person, who accompanied Akil. He purchased tractor for a consideration of ₹ 32,200/-. He further deposed that, Akil disclosed that he was the owner of the tractor. He paid ₹ 30,000/- in cash. When he demanded the papers(of the tractor) then they were not given by Akil, due to this, he withheld ₹ 2,200/-, which were to be paid, after the receipt of papers(of the tractor). He further deposed that on the third day Akil again came with another person, even then, he reiterated that he will only pay the remaining amount, when the papers were received. Then, they left after assuring that in 2 4 days they will send the papers. He further deposed that a receipt of the above transaction was written by Kakku, which was signed by Akil Ahmed, the receipt remained with him for a month. This witness identified the signature of Kakku on the above receipt. He further deposed that the above tractor was recovered by the investigating officer after about 5-7 days. He further deposed that he was not aware that the tractor was stolen or looted, he only became aware of this fact at the Police Station Kithore. He further deposed that on enquiry he had given the above receipt of tractor purchase to the investigating officer.

35. PW-8 deposed in cross-examination that for purchasing the tractor, he went to Sonipat. His village is at a distance of 6-7 kilometre from Kithore. The writer of receipt, Kakku is resident of Sonipat. Since, he is illiterate, he does not know the date when the tractor was purchased but he recollects that he went after Holi for purchasing the tractor. He paid ₹ 30,000/-. He handed the receipt of the tractor after about 20 days or a month after its purchase, to the investigating officer. He handed the receipt to the investigating officer, on his second visit. He disclosed that he was confined in the lock-up of the police station, along with tractor, because he had not shown the receipt at that time. He further disclosed that on the next day he was produced before a court in Meerut. He revealed that since, the receipt was at his house, he could not show it in the court. On the same day, he was enlarged on bail. He remained for one night in the lock-up of the police station. He further disclosed that he was not arrested, he himself went on tractor to the police station. He denied the suggestion that after he was released on bail, he prepared the receipt fraudulently, for his defence. He further deposed that the tractor was at the shop of Vishnu. Akil Ahmed had given his Haryana address. He further deposed that he had not told the investigating officer that ''Akil Ahmed disclosed his Delhi address and now he became aware that he was resident of 136 Vikaspuri, Meerut.''

36. Tarachand PW-9 deposed in his examination-in-chief that about six years back, he was a mechanic in the factory of Vishnu Dutt, situated at Murthan road Sonipat, when a person came with a tractor. This witness identified accused Ashok Kumar in the dock, as the person, who came with a tractor on that day. He further deposed that accused Ashok Kumar was accompanied by two other persons. The tractor was of Swaraj make 735, accompanied by trolley. This witness also identified that tractor-trolley in the court, which was already exhibited as material Ex.-1 & 2. He further deposed that the above persons brought the above tractor-trolley to the factory of VishnuDutt for sale, which was purchased by someone belonging to U.P., whose name he does not remember. He also disclosed that a receipt of the above sale transaction was prepared and at that time, besides him, Ved Prakash, VishnuDutt, purchaser and 2-3 other persons were also present. The tractor was sold for ₹ 32,200/-, trolley was not sold. ₹ 30,000/- was given in cash and the remaining amount of ₹ 2,200/- was to be paid after the papers were handed. He further disclosed that the receipt was prepared in his presence by Harbanslal alias Kakku. He further deposed that the tractor was sold by Akil Ahmed after disclosing that he was the owner of the tractor. This witness identified his signature on the above receipt and proved it as Ex.Ka 7. He deposed that later on, he became aware that the tractor was sold dishonestly and a foul play was committed. He further disclosed that after the tractor was sold, accused Ashok, Akil and his two accomplices had left.

37. PW-9 deposed in cross-examination that he didn't knew accused Ashok and his two accomplices, previously. For the first time he saw the tractor in the factory of VishnuDutt. Accused Ashok remained present nearby, but no conversation took place with him. He disclosed that since Ashok was residing there for 2-3 days, he became aware of his name. He cannot tell from where the tractor came to Akil Ahmed. Akil Ahmed told that he was a resident of Meerut. Meerut is at a distance of 60-65 kilometre from Sonipat. Receipt Ex.Ka7 was prepared at about 11 or 12 AM. Receipt writer Kakku was a resident of Sonipat. He admitted that receipt Ex.ka.7 does not bear signature of accused Ashok.

38. The investigating officer Ramkrishna Arya PW-10 deposed in his examination-in-chief that on 10.4.1983 at police station Kurra, District Mainpuri at 2:00 PM Nawab Singh orally informed that a dead body was found, then on the basis of the above information an FIR was registered in his presence. This witness proved the FIR dated 10.4.1983 registered at 2:00 PM being case crime no. 36 of 1983 at police station Kurra, District Mainpuri as Ex.Ka8. He further deposed that a corresponding entry in the GD was made at serial no. 18 at 2 PM in his presence, thereafter, he started investigation. After reaching the place where the dead body was found, he prepared the panchayatnama of the dead body, which this witness proved as Ex.Ka9. This witness also proved the other documents prepared at the time of panchayatnama as Ex.Ka10 to 14, the site plan of the place where the dead body was found as Ex.Ka15, the recovery memo of taking blood stained soil and plain soil as Ex.Ka16, the recovery memo of taking shoe of deceased as Ex.Ka-17, the recovery memo of taking into possession the documents recovered from the pocket of kurta of the deceased as Ex.Ka18. He also proved the blood stained soil and plain soil in the court as material Ex.-4 and 5, the book titled 'Film Brij Bhumi' recovered from the pocket of deceased as material Ex.-6, four receipts each of purchase of 10 L diesel as material Ex.-7,8,9,10 and the slip of Messers Anup brick manufacturing factory as material Ex.-11.

39. PW-10 deposed in cross-examination that the dead body was found near village Begumpur canal.He prepared the panchayatnama at the spot. He estimated the age of the deceased to be 27 years in the panchayatnama. He had not found anything lying near the dead body. He had not taken any photograph of the dead body. The receipts and the book were not blood stained.

40. SI Shafiq Ahmed Sidddiqui PW-11 deposed in his examination-in-chief that he started the investigation of this case after receiving on 12.4.1983 an application of complainant Ramswaroop Dubey, which is Ex.Ka1, the receipt of which was also entered in the GD of the police station. During investigation, it was informed by the complainant Ramswaroop that the body of his son Govind was found in the area of Police Station Kurra. He acknowledged that a FIR being case crime no. 36 of 1983 under section 302/201 IPC against unknown person was registered at police station Kurra, but since the crime was committed within the jurisdiction of police station Bharthana, as such, after altering this FIR to case crime no. 58 of 1983, the investigation was assigned to him.

41. He further deposed that the trolley was recovered on 19.4.1983 from Sonipat Haryana, regarding which the recovery memo was prepared by SI Madan Gopal, which was not available on the file because it was on record in case crime no. 221 of 1983 under section 411 IPC police station Kotwali city, Sonipat, which was pending in the court of CJM, Sonipat. The recovery memo was signed by him, the trolley was also recovered in his presence. He further deposed that on searching Vishnu Dutt Sharma, the above trolley and a receipt, in which it was mentioned that ₹ 200/- was received as advance, was recovered, which was written by Ved Prakash. He further deposed that he became aware on 19.4.1983 that the tractor was sold for ₹ 32,000/- to Tabarak Ali resident of village Bondara, police station Kithore, District Meerut and then he along with other police personnel reached there and enquired from Tabarak Ali. The tractor was found in the compound of Tabarak Ali, who searched its receipt, but it could not be found, but his family members assured that they were searching for it and if found, they will hand it. This witness proved the recovery memo of the above tractor as Ex.Ka 20 and the site plan of the recovery place of the tractor as Ex.Ka-21. He further disclosed that accused Ashok was arrested from the house of his in-laws in village Chanderi, District Etawah on 20.4.1983 at 11 PM then on enquiry he revealed that accused Gore, Rajendra and Ramdas were his accomplice in the crime. He further deposed that he brought accused Ashok to village Nangla Hargaon and prepared the site plan of the spot where the murder of Govind was committed. This witness proved the site plan as Ex.Ka 22.

42. He further deposed that during investigation he became aware that the bricks which were being transported by deceased were concealed beneath the ground in the house of accused Ramdas. Thereafter, this witness recovered the above bricks and prepared the recovery memo and also took sample of two bricks. This witness proved the recovery memo of taking two bricks in sample as Ex.Ka23. The superdginama of bricks recovered from the house of Ramdas was also proved by this witness as Ex.Ka24. He further proved the receipt book obtained from brick kiln owner Swami Swaroop, which contained the carbon copy of receipt of 1000 bricks purchased by accused Ashok, which were transported on Swaraj tractor no. URB-7911, as Ex.Ka 25. He further deposed that the tractor was recovered from village Bondara.

43. He further deposed that trolley was recovered from Sonipat. Site plan of the recovery place of trolley was prepared by SI Madan Gopal, which was available in the record of CJM, Sonipat, he copied the above site plan in his handwriting, which was proved as Ex.Ka26. He also disclosed that at the time of preparation of site-plan, SI Madan Gopal,was with him. He further proved the chargesheet submitted against accused Ashok under section 364, 368, 302/201 and 394 IPC as Ex. Ka 27.

44. PW-11 deposed in cross-examination that the complaint of Ramswaroop Dubey Ex.Ka1 dated 12.4.1983 was assigned to him for taking appropriate action, not for conducting enquiry, he entered its receipt in the GD but neither the chick was written nor any crime number was assigned. He further elaborated that since investigation in case crime no. 36 under section 302 /201 IPC at police station Kurra, District Mainpuri had already started, as such, he didn't deem appropriate to investigate and register FIR. He admitted that the chik was written on 15.4.1983, crime number was also assigned the same day and he also started the investigation on 15.4.1983. He deposed that the statement of Km. Heera was recorded on 29.4.1983. He revealed that Ramswaroop continuously visited him between 12.4.1983 till 15.4.1983 but he didn't record his statement. He disclosed that the statement of Rajendra Shukla was recorded on 1.5.1983.

45. He further deposed in cross-examination that in the case diary the number of tractor was written, but URB was not written. He admitted that case crime no. 221 of 1983 under section 411 IPC against Vishnu Dutt Sharma regarding trolley was pending in the court of CJM, Sonipat Haryana. He admitted that Ex.Ka3 was a receipt of selling 1000 bricks in which the consideration was not mentioned, but the name of purchaser was mentioned as Ashok Kumar. He disclosed that the receipt available in the receipt book was the carbon copy, because original was given to the purchaser. He further admitted that in the receipt it was not mentioned that the bricks of 'T & Co' make were sold. He further deposed that he recovered 1,000 bricks from the courtyard(angan) of accused Ramdas, which were concealed beneath soil and sugercane leaves. He disclosed that accused Ramdas and Ashok were not of the same village. He admitted that instead of the name of accused Ramdas, the name of accused Ashok was mentioned on the above receipt. He further deposed that he conducted the investigation of the case till 27.6.1983 and during his investigation, the complainant disclosed the appearance of two accused.

46. Ramesh Dutt Sharma PW-12 deposed in his examination-in-chief that after the identification of accused Ramdas, he filed chargesheet against him. This witness proved the chargesheet against accused Ramdas as Ex. Ka 28.

47. Manrakhan Lal Sharma, retired A.D.M. PW-13 deposed in his examination-in-chief that on 9.9.1983 he was posted as SDM in Etawah, then he went to District Jail, Etawah for identification of accused, where he conducted the identification parade of accused Ujagar alias Bhoora. He deposed that during identification parade, 10 identical prisoners were included, who were having resemblance with the real accused. Then one by one, witness was called and made to identify the accused from among those prisoners, who were standing in a line. After identification, the witness was isolated till the conclusion of proceedings. In this manner, five witnesses tried to identify the accused in the identification parade, during which, only one witness Ramswaroop correctly identified accused Ujagar alias Bhoora.

48. He further deposed that on 16.9.1983 he also conducted in District Jail, the identification parade of accused Ramdas, in which all the above-mentioned precautions were taken, and in the identification parade, accused Ramdas was correctly identified by witness Rajendra Prasad. This witness proved the memo of identification of the above accused as Ex.Ka29 and 30.

49. PW-13 in cross-examination deposed that on 9.9.1983 five witnesses were called for identification, during which witness Rajendra Prasad identified wrong accused. On 16.9.1983 witness Rajendra Prasad and Narain Prasad alias Narain Singh were called for identification. In the column 3 of identification memo, it was mentioned that accused Ramdas had smallpox mark on his face. He mentioned in the memo that some prisoners having smallpox marks on their face were included in the identification parade, but the number of such prisoners was not mentioned. Accused Ujagar alias Bhoora was having 'kanji' eyes. He had not mentioned in the memo that prisoners having 'kanji' eyes were included in the parade. He admitted that he had mentioned that the hair of accused Ujagar were slightly golden and as such, as a matter of precaution, he capped the head of accused and all the other prisoners taking part in the parade, and the colour of their cap was also similar. He does not remember that on 9.9.1983 whether accused Ramdas had given an application for conducting identification parade or not. He denied the suggestion that he had not conducted the identification parade of accused Bhoora and Ramdas in accordance with law and due to this, they were identified.

Statement of accused under section 313 CrP.C.

50. The statement of all the accused under section 313 CrPC was recorded in which they denied the prosecution version and claimed that they were falsely implicated due to enmity and they were innocent. Accused Ujagar alias Bhoora alias Gore claimed that he was identified when he was brought for remand to the court. Similarly, accused Ashok Kumar and Ramdas stated that the police got them identified.

Submissions of the learned counsel for the convicted accused-appellants

51. Learned counsel for the convicted accused appellants submitted that prosecution witnesses are not reliable. The chain of incriminating circumstances against the accused was incomplete, on the basis of which, it was not proved beyond reasonable doubt that the accused committed murder of Govind. Learned counsel submitted that accused Gore alias Ujagar and Ramdas are neither named in the FIR nor identified by prosecution witnesses. Learned counsel submitted that the identification parade of the above accused was not substantive evidence, as such, no reliance can be placed on it for convicting them. Learned counsel further submitted that the identification parade of the accused Gore alias Ujagar and Ramdas was conducted with delay and each accused was allegedly identified by only a single witness, which makes the prosecution case doubtful. Learned counsel also submitted that the evidence of PW-2 was unreliable.

52. Learned counsel further submitted that there was no proof that the tractor was sold by accused Ashok Kumar to Tabarak Ali, because the receipt of the same was executed by Akil Ahmed, who was not tried with the accused. Learned counsel submitted that since the tractor was sold by Akil Ahmed, it cannot be presumed that the tractor was sold on behalf of accused Ashok Kumar. Learned counsel further submitted that similarly, the trolley was purchased by Vishnu Dutt Sharma at Sonipat, Haryana but he was also not tried with the accused, by the prosecution. Learned counsel further submitted that there was no link evidence between the accused and the tractor-trolley because, the tractor trolley was neither recovered at the pointing of the accused nor from their possession.

53. Learned counsel further submitted that as per the receipt of bricks, the accused Ashok Kumar purchased the bricks for himself, which was not looted or stolen property, and as such, the recovery of bricks from the house of accused Ramdas does not prove that accused had looted or misappropriated the bricks.

54. Learned counsel further submitted that the first information report was registered belatedly, which renders the whole prosecution story doubtful. The trial court erred in appreciating the evidence on record and in convicting the accused. With these submissions, it was prayed that the appeal be allowed and the conviction of the appellants be set aside.

Submissions of AGA for the State

55. Learned AGA for the State submitted that on 9.4.1983 at about 4 PM, first informant Ramswaroop Dubey PW-1 and his daughter Heera PW-3 were present at their house along with Govind, the son of first informant, then accused Ashok Kumar along with his two accomplices, whom he disclosed as his relatives, came to the house of the first informant for having talks with Govind for transporting the bricks to the place of the above accomplices of Ashok Kumar from brick kiln. After having conversation, the freight for transporting bricks was settled and thereafter, Govind left with accused Ashok and his 2 accomplices on tractor number URB-7911 for brick kiln. After loading the bricks in the tractor trolley, Govind, Ashok Kumar and his two accomplices passed in front of the house of the first informant at about 5:30 PM, who were seen by PW-1 & PW-3 going towards Bharthana.

56. Learned counsel further submitted that the accused were identified by the first informant and his daughter at that time and subsequently, they were identified by Rajendra Prasad Shukla PW-2 on 9.4.83 at about 8 PM in the light of the bus, in which he was travelling at that time from Usarahar to Bharthana. PW-2 saw the accused and Govind going on the above tractor trolley from front when, the tractor trolley crossed the bus from the opposite side near village Maman.

57. Learned counsel further submitted that PW-6 Swami Swaroop, the owner of brick kiln proved that on 9.4.1983, the accused and Govind came on the above tractor to his brick kiln, where accused Ashok purchased 1,000 bricks, regarding which a receipt was issued to accused Ashok in his name, the carbon copy of which was proved during trial. Learned counsel further submitted that Govind was last seen alive with the accused in the above tractor trolley, thereafter his dead body was found on 10.4.1983 lying in a canal, and thereafter, the first informant made a complaint at the police station Bharthana regarding the abduction of his son Govind on 12.4.1983, which was registered on 15.4.1983. Learned counsel further submitted that after 9.4.1983 the first informant continuously searched for his son Govind and during this period he was informed by several persons that they saw Govind with the accused on the above tractor trolley at different places and time and when the dead body of Govind was found, the first informant expressed his apprehension that he might have been killed by the accused.

58. Learned counsel submitted that the accused after murdering Govind, misappropriated his tractor trolley and took it to Sonipat, Haryana, where on 13.4.1983, tractor was sold for ₹ 32,000 to Tabarak Ali PW-8 by the ostensible owner Akil Ahmed, regarding which a receipt was prepared which was proved by Tarachand PW-9. Learned counsel submitted that the above tractor was recovered from the possession of PW-8, which was sold by Akil Ahmed, who was accompanied by accused Ashok Kumar.

59. Learned counsel submitted that trolley was sold to Vishnu Dutt Sharma at Sonipat, Haryana, regarding which case crime no. 221 of 1983 was registered against him under section 411 IPC at Sonipat, Haryana which was pending.

60. Learned counsel further submitted that in the identification parade conducted in District Jail, Etawah accused Gore alias Ujagar and Ramdas were identified by first informant Ramswaroop and PW-2 respectively. Besides this, PW-1,2 & 3 also identified the accused in the court. The doctor PW-5 proved that deceased Govind was strangulated to death. PW-8 proved that when he purchased tractor then at that time accused Ashok Kumar was present. PW-13 proved the identification parade of accused Gore alias Ujagar and Ramdas.

61. Learned counsel submitted that Govind was last seen alive in the company of accused on 9.4.983 at about 8 PM and thereafter his dead body was found lying in a canal on 10.4.1983 at about 2 PM. According to the autopsy report of deceased, Govind could have died on 9.4.83 at about 11 PM. Learned counsel further submitted that it was proved by prosecution that the tractor trolley of the deceased was sold by the accused after committing the murder of Govind, which was later on recovered by the police. Learned counsel further submitted that though there was no eyewitness of the murder of Govind, the prosecution case was based on circumstantial evidence, the chain of circumstances against the accused was complete, on the basis of which only one conclusion was possible that only the accused murdered Govind. In view of the above evidence on record, the trial court has not erred in convicting the accused appellants for the murder of Govind, for concealing the evidence of murder and for misappropriating the tractor of the deceased. With these submissions, it was prayed that the appeal is meritless and be dismissed.

Appreciation of evidence by this Court

(i) From the evidence of first informant Ramswaroop PW-1 and his daughter Km.Heera PW-3 it is proved that on 9.4.1983 at about 4 PM accused Ashok Kumar along with his two accomplices arrived at the house of the first informant for having conversation with first informant's son Govind, for hiring his tractor number URB-7911 on freight, for carrying the bricks of his accomplices, whom accused Ashok disclosed as his relatives, from a brick kiln to their relative's place. It is also proved that after settling the freight, Govind left with the accused Ashok and his two accomplices on his above tractor, to load the bricks in the tractor trolley, from a brick kiln.

(ii) From the evidence of first informant Ramswaroop PW-1 and his daughter Km.Heera PW-3 it is also proved that Govind, accused Ashok and his two accomplices, after loading the bricks from a brick kiln in the tractor trolley, passed in front of the house of the first informant on 9.4 1983 at about 5:30 PM, who were seen by the first informant and his daughter, who were going towards Bharthana.

(iii) From the evidence of first informant Ramswaroop PW-1 it is proved that Govind left his house on 9.4.1983 at 4 PM, who failed to return that night. From the morning of 10.4.1983 till 11.4.1983 the first informant searched his son Govind and made several inquiries from many persons during which he was told by Mahesh Chandra, Chandra Prakash Gupta, Narain and Rajendra Prasad Shukla that they saw Govind driving the tractor trolley, loaded with bricks, on which accused Ashok Kumar and his two accomplices were seated, at different places in the evening on 9.4.1983.

(iv) From the evidence of first informant Ramswaroop PW-1 it is proved that on 11.4.1983 he became aware that the dead body of a boy was found in Kurra, District Manipuri, then he apprehended that it might be of his son Govind, who might have been killed by the accused. It is also proved that PW-1 did not went to see the dead body on 11.4.1983. Instead, he went in the morning of 12.4.1983 to the place where the dead body was found lying in the canal, and then he was told by the people present there, that the dead body was sent to the mortuary at District Hospital Mainpuri. On getting this information, PW-1 went straightaway to the post-mortem house Mainpuri, where he identified the dead body of unknown, as of his son Govind, which was handed to him by the police, after autopsy.

(v) It is also proved from the evidence of PW-1 that he gave his written complaint Ex.Ka-1 at police station Bharthana on 12.4.1983, which was entered in the GD of the police station, but his FIR was not registered. Jairam Dubey PW-7 corroborated this evidence by proving the above GD entry no.4 time 5:30 AM dated 12.4.1983 as Ex.ka.3. It is apparent that PW-1 searched his son Govind on 10.4.83 and 11.4.1983 and after seeing the dead body of his son on 12.4.1983, he submitted his complaint at the police station Bharthana on 12.4.1983. In these circumstances, there was no delay on the part of the first informant in making the complaint. The complainant proved his complaint as Ex.Ka-1.

(vi) It is also proved from the evidence of PW-1 that his tractor was recovered from the area of police station Kithore, District Meerut after 4-5 days and further, trolley was recovered after 5-6 days from Sonipat Haryana, which were handed to him. The first informant proved tractor trolley as material Ex.1 and 2. From the evidence of PW-11 SI Shafiq Ahmed it is also proved that the trolley was recovered from Sonipat on 19.4.1983 and the tractor was also recovered on 19.4.1983 from the house of Tabarak Ali PW-8 situated in village Bondara, police station Kithore, District Meerut. PW-11 proved the recovery memo of the above tractor as Ex.Ka20.

(vii) It is also proved from the evidence of PW-1 that he participated in the identification parade of accused Gore alias Ujagar, which was conducted in District Jail, Etawah, which is also corroborated from the evidence of Manrakhan Lal Sharma PW-13. PW-1 identified accused Gore alias Ujagar in the above jail, as well as, in the dock during his testimony.

(viii) From the evidence of Rajendra Prasad Shukla PW-2 it is proved that on 9.4.1983 at about 8.30 PM when this witness was returning in a private bus from Usarahar to Bharthana, then near village Maman, he saw Govind with the accused Ashok and two other accomplices, the tractor was being driven by Govind, trolley was loaded with bricks and the accused were seated in the tractor. This witness saw Govind and the accused in the light of his bus, when the tractor crossed the bus from the opposite direction, which was coming from Bharthana. This witness specifically stated in his cross-examination that when the tractor crossed the bus from the opposite direction then the bus was moving at a very slow speed and he saw the accused from the front and recognised accused Ashok Kumar and also noted the appearance of other two accused.

(ix) From the evidence of PW-2 it is proved that he participated in the identification parade of accused Ramdas, which was conducted in District Jail, Etawah, which is also corroborated from the evidence of Manrakhan Lal Sharma PW-13. PW-2 identified accused Ramdas in the above jail, as well as, in the dock during his testimony.

(x) From the evidence of Dr Rajeshwar Prasad Samboo PW-5 it is proved that Govind was strangulated to death and he died due to asphyxia, who could have died on 9.4.1983 at about 11 PM. This witness proved the autopsy report of deceased as Ex.Ka-2.

(xi) From the evidence of Swami Swaroop Tiwari PW-6 it is proved that on 9.4.1983 he was present at his brick kiln then Govind, Ashok and his two accomplices arrived at his brick kiln and thereafter, accused Ashok purchased 1,000 bricks awwal, regarding which a receipt no.809 of 'T & Co' was also issued in the name of accused Ashok Kumar, on which the tractor number URB-7911 was also mentioned. During investigation the investigating officer SI Shafiq Ahmed PW-11 taken the whole receipt book containing the carbon copy of the above receipt from PW-6 on 29.4.1983, the recovery memo of which was proved as Ex.Ka-25 during trial. PW-6 also proved the carbon copy of above receipt no. 809 as Ex.Ka3.

(xii) From the evidence of Tabarak Ali PW-8 and Tarachand PW-9 it is proved that tractor number URB-7911 was sold for ₹ 32,200/- by Akil Ahmed on 13.4.1983 to Tabarak Ali, in the presence of witnesses Tarachand and Ved Prakash. Tarachand proved the receipt of this transaction as Ex.Ka-7. It is also proved from the evidence of these witnesses that the tractor was sold in the factory of Vishnu Dutt Sharma at Sonipat, Haryana and at the time of the sale transaction, accused Ashok Kumar was also present. Both the witnesses identified Ashok Kumar in the dock and proved that he was present when the tractor was purchased by Tabarak Ali. It is also proved that when the tractor was sold, Akil Ahmed was not having its registration papers, as such, an amount of ₹ 2,200/-was withheld by Tabarak Ali, which was to be paid on receipt of registration papers of the tractor. From the evidence of SI Shafiq Ahmed PW-11 it is also proved that the above tractor was recovered from the possession of Tabarak Ali, from his house situated at village Bondara, police station Kithore, District Meerut on 19.4.1983 and a recovery memo Ex.Ka20 was also prepared. It is also proved that, Tabarak Ali was arrested for illegal possession of the tractor but was later enlarged on bail by the competent court.

(xiii) From the evidence of Tabarak Ali PW-8 and Tarachand PW-9 it is also proved that they were not aware when tractor was sold by Akil Ahmed that, it was stolen or looted property. It is also proved that the tractor was sold by ostensible owner Akil Ahmed. The burden lies upon the accused to prove as to how the tractor came into the possession of Akil Ahmed. The mere presence of accused Ashok Kumar at the time of the sale of the tractor, itself proves that he was very much interested in the transaction. It is also apparent that Ashok Kumar knew that if he sold the tractor himself, then it can invite trouble for him because, he was not the true owner of the tractor. For this reason, the tractor was sold by ostensible owner Akil Ahmed ,so as to shield accused Ashok Kumar from any future trouble.

(xiv) From the evidence of Tarachand PW-9 it is proved that along with tractor, its trolley was also brought for sale by accused Ashok and his accomplices, to the factory of Vishnu Dutt Sharma in Sonipat, and the trolley was also sold. This witness identified the subsequently recovered tractor and trolley in the court, as the same tractor and trolley, which was brought for sale to the above factory by accused Ashok.

(xv) From the evidence of SI Shafiq Ahmed Siddiqui PW-11 it is proved that the trolley was recovered on 19.4.1983 from Sonipat Haryana and its recovery memo was prepared by SI Madan Gopal, which is available in the file of case crime no. 211 of 1983 State versus Vishnudutt Sharma under section 411 IPC police station Kotwali city, Sonipat.

(xvi) It is also proved from the evidence of SI Shafiq Ahmed Siddiqui PW-11 that accused Ashok Kumar was arrested on 20.4.1983 at 11 PM then he disclosed the name of his 2 accomplices as Gore alias Ujagar Singh and Ramdas. We are conscious of this fact that the above disclosure has very weak evidentiary value.

(xvii) It is also proved from the evidence of SI Shafiq Ahmed Siddiqui PW-11 that he got information that the bricks purchased from the brick kiln, were concealed in the house of accused Ramdas, then 892 full bricks and 216 half bricks of make ' Shri ' and ' T & Co ' were recovered from beneath the ground concealed in a pit covered with soil and sugarcane leaves on 29.4.1983, the recovery memo of which was proved as Ex.Ka 24 during trial by this witness. It is also proved that from the above recovered bricks, one brick of ' Shri ' make and one brick of ' T & Co ' make were also taken as simple, the recovery memo of which was prepared on 29.4.1983 and proved as Ex.Ka-23 during trial by this witness.

(xviii) Since the above bricks were purchased by accused Ashok from the brick kiln, they did not belong to the deceased Govind, as such, the above property does not fall within the category of stolen or looted property and the recovery of bricks does not fall within the ambit of section 27 of the Evidence Act.

(xix) It is also proved from the evidence of SI Shafiq Ahmed Siddiqui PW-11 that the above bricks were recovered from inside the house of accused Ramdas, which were buried beneath the ground, which were recovered after digging. The bricks were concealed in a pit covered with soil and sugarcane leaves. The concealment of bricks in this particular manner itself proves that the accused wanted to conceal the bricks, so that any trail of murder of Govind remained untraceable.

(xx) From the evidence of Manrakhan Lal Sharma PW-13 it is proved that under his supervision identification parade of accused Gore alias Ujagar Singh was conducted in the District Jail Etawah on 9.9.1983 and of accused Ramdas on 16.9.1983, during which they were identified by first informant Ramswaroop Dubey PW-1 and Rajendra Prasad Shukla PW-2, respectively. These witnesses later on identified the above accused in the dock also, during their testimony in the court.

Circumstances proved beyond reasonable doubt against the accused

62. I am conscious that there is no eyewitness of the murder of Govind. The prosecution case is based on circumstantial evidence. On the basis of the above evidence on record, the prosecution has succeeded in proving the following circumstances beyond reasonable doubt against the accused: -

(i) The accused Ashok Kumar came to the house of first informant Ram Swaroop Dubey PW-1 on 9.4.1983 at 4:00 PM with his two accomplices, who were later identified as Gore alias Ujagar Singh and Ramdas, and they took with them Govind, along with his tractor trolley number URB-7911, for loading bricks in the trolley for transporting it to the accused 's place, on freight. The accused were seen and identified by first informant and his daughter Heera PW-3.

(ii) The accused and Govind arrived on the above tractor trolley, at the brick kiln of Swami Swaroop Tiwari PW-6, purchased and loaded about 1000 bricks in the trolley, regarding which receipt was issued in the name of accused Ashok Kumar.

(iii) The accused after loading the bricks in the trolley from brick kiln of PW-6, passed in front of the house of first informant Ramswaroop Dubey and his daughter Heera on 9.4.1983 at 5:30 PM, who were going towards Bharthana. The accused were again identified by the first informant and his daughter going on the above tractor trolley, with Govind.

(iv) The accused were again seen in the above tractor trolley with Govind, who was driving the tractor, on 9.4.1983 at about 8:30 PM, near village Maman, by Rajendra Prasad Shukla PW-2, who was travelling in a private bus. The accused were seen from the front in the light of the bus, when their tractor crossed the bus from the opposite direction.

(v) The dead body of Govind was found on 10.4.1983 at about 2 PM lying in a canal, in the area of police station Kurra, District Mainpuri, who could have died according to the doctor PW-5, who conducted the autopsy of the deceased, on 9.4.1983 at about 11 PM. From the evidence of PW-5 it also proved that he was strangulated to death.

(vi) The above tractor number URB-7911 was sold on 13.4.1983 to Tabarak Ali, at the factory of Vishnu Dutt Sharma at Sonipat, Haryana by ostensible owner Akil Ahmed, who was accompanied by accused Ashok Kumar. The tractor was later on recovered from the house of Tabarak Ali situated in village Bondara, Kithore, District Meerut on 19.4.1983.

(vii) The trolley was also recovered from the factory of Vishnu Dutt Sharma at Sonipat Haryana on 19.4.1983, regarding which separate case crime no. 221 of 1983 under section 411 IPC at police station Kotwali city, Sonipat Haryana was pending before the court of CJM, Sonipat.

(viii) The 1000 bricks that were loaded on the tractor trolley on 9.4.1983 were later on recovered on 29.4.1983 from the house of accused Ramdas, by digging the ground, which were covered with soil and sugarcane leaves.

Conclusion drawn by this Court on the basis of proved circumstances

63. The Apex Court in the case of Surajdeo Mahto and Another v. State of Bihar (2022) 11 SCC 800(By three Judges), held as under:-

30. The case of the prosecution in the present case heavily banks upon the principle of last seen theory. Briefly put, the last seen theory is applied where the time interval between the point of when the accused and the deceased were last seen together, and when the victim is found dead, is so small that the possibility of any other person other than the accused being the perpetrator of crime becomes impossible. Elaborating on the principle of last seen alive, a three-Judge Bench of this Court in Satpal v. State of Haryana [Satpal v. State of Haryana, (2018) 6 SCC 610, para 6] has, however, cautioned that unless the fact of last seen is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the accused, would by itself, only be a weak kind of evidence. The Court further held : (SCC pp. 612-13, para 6)

6. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.

31. We may hasten to clarify that the fact of last seen should not be weighed in isolation or be segregated from the other evidence led by the prosecution. The last seen theory should rather be applied taking into account the case of the prosecution in its entirety. Hence, the courts have to not only consider the factum of last seen, but also have to keep in mind the circumstances that preceded and followed from the point of the deceased being so last seen in the presence of the accused.

36. The counsel for the State appears to be right in relying upon the decision of this Court in Kashi Ram [State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254, paras 19-24 : (2007) 1 SCC (Cri) 688] to assert that once the fact of last seen is established, the accused must offer some explanation as to the circumstances in which he departed the company of the deceased. This position of law, as covered under Section 106 of the IEA, was duly considered in Satpal [Satpal v. State of Haryana, (2018) 6 SCC 610, para 6], wherein, this Court clarified that if the accused fails to offer any plausible explanation, an adverse inference can be drawn against the accused. In the instant case also, Appellant 1 has been unable to offer any explanation as to circumstances in which he departed from the company of the deceased.

(emphasis supplied)

64. The Apex Court in the case of Ram Gopal s/o Mansharam v. State of Madhya Pradesh (2023) 5 SCC 534, held as under:-

6. It may be noted that once the theory of last seen together was established by the prosecution, the accused was expected to offer some explanation as to when and under what circumstances he had parted the company of the deceased. It is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. Of course, Section 106 is certainly not intended to relieve the prosecution of its duty to prove the guilt of the accused, nonetheless it is also equally settled legal position that if the accused does not throw any light upon the facts which are proved to be within his special knowledge, in view of Section 106 of the Evidence Act, such failure on the part of the accused may be used against the accused as it may provide an additional link in the chain of circumstances required to be proved against him. In the case based on circumstantial evidence, furnishing or non-furnishing of the explanation by the accused would be a very crucial fact, when the theory of last seen together as propounded by the prosecution was proved against him.

7. In Rajender v. State (NCT of Delhi) [Rajender v. State (NCT of Delhi), (2019) 10 SCC 623 : (2020) 1 SCC (Cri) 63] , it was observed as under : (SCC p. 632, para 12.2.4)

12. 12.2.4. Having observed so, it is crucial to note that the reasonableness of the explanation offered by the accused as to how and when he/she parted company with the deceased has a bearing on the effect of the last seen in a case. Section 106 of the Evidence Act, 1872 provides that the burden of proof for any fact that is especially within the knowledge of a person lies upon such person. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the court to be probable and satisfactory, and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which are specially within his/her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances.

8. In Satpal v. State of Haryana [Satpal v. State of Haryana, (2018) 6 SCC 610] , this Court observed as under : (SCC pp. 612-13, para 6)

6. We have considered the respective submissions and the evidence on record. There is no eyewitness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.

9. In view of the aforestated legal position, it is discernible that though the last seen theory as propounded by the prosecution in a case based on circumstantial evidence may be a weak kind of evidence by itself to base conviction solely on such theory, when the said theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused does owe an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon, etc. forming a chain of circumstances is established, the conviction could be based on such evidence.

(emphasis supplied)

65. The Apex Court and the case of Vinod alias Nasmulla v. State of Chhattisgarh (2025) 4 SCC 312 while discussing the evidentiary value of test identification parade, under section 9 of the Evidence Act, held as under:-

21. A test identification parade under Section 9 of the Evidence Act, 1872 is not substantive evidence in a criminal prosecution but is only corroborative evidence. The purpose of holding a test identification parade during the stage of investigation is, firstly, to ensure that the investigating agency is proceeding in the right direction where the accused is unknown and, secondly, to serve as a corroborative piece of evidence when the witness identifies the accused during trial. The evidence of identification merely corroborates and strengthens the oral testimony in court which alone is the primary and substantive evidence as to identity.

22. In Rameshwar Singh v. State of J&K[ (1971) 2 SCC 715 : 1971 SCC (Cri) 638] , a three-Judge Bench of this Court succinctly summarised the evidentiary value of the TIP as under : (SCC p. 719, para 6)

6. The identification during police investigation is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in Court. The identification proceedings must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in Court of the identifying witness.

Thus, if the witness who identified a person or an article in the TIP is not examined during trial, the TIP report which may be useful to corroborate or contradict him would lose its evidentiary value for the purposes of identification.

23.The rationale behind the aforesaid legal principle is that unless the witness enters the witness box and submits himself for cross-examination how can it be ascertained as to on what basis he identified the person or the article. Because it is quite possible that before the TIP is conducted the accused may be shown to the witness or the witness may be tutored to identify the accused. Be that as it may, once the person who identifies the accused during the TIP is not produced as a witness during trial, the TIP is of no use to sustain an identification by some other witness.

66. From the law laid down by the Apex Court in the case of Surajdeo Mahto (supra) and Ram Gopal (supra), it is clear that the evidence of last seen is, by itself, a weak piece of evidence on which a conviction cannot be solely recorded. The circumstance of last seen should not be considered in isolation or segregated from the other evidence led by the prosecution but must be appreciated in the light of the entire prosecution evidence on record. However, once the prosecution establishes the theory of last seen, the accused is bound to offer a plausible explanation, failing which an adverse inference may be drawn, which would form an additional link in the chain of circumstances proved against him. It is only when the prosecution establishes the theory of last seen, coupled with the accuseds failure to give a plausible explanation and other corroborative evidences, that the conviction of the accused can be recorded.

67. From the law laid down by the Apex Court in the case of Vinod alias Nasmulla(supra), it is apparent that the identification under section 9 of the Indian Evidence Act is only corroborative evidence, which ensures that the investigating agency is proceeding in the right direction where the accused is unknown. The evidence of identification merely corroborates and strengthens the oral testimony in Court, which alone is the primary and substantive evidence as to identity of the accused. It is also clear that unless the witness enters the witness box and submits himself for cross-examination, his prior identification in test identification parade has no evidentiary value.

68. It is proved that Govind was last seen alive in the company of the accused, driving tractor trolley number URB-7911 on 9.4.1983 at about 8:30 PM and thereafter, his dead body was found on 10.4.1983 at 2 PM. According to the doctor, he could have died on 9.4.1983 at 11 PM. There is only a time gap of about 2:30 hours between, when Govind was last seen alive with the accused and when he could have died, which is very short duration. There is a close proximity of time, when Govind was last seen alive with the accused and when he could have died and the distance between places, where he was last seen alive with the accused and from where his dead body was recovered the next day. The above circumstances proved against the accused unerringly point towards their guilt. The circumstances, taken cumulatively, form a complete chain on the basis of which, only one conclusion is drawn that the crime was committed by the accused and none else.

69. In the instant case the prosecution successfully proved that on 9.4.1983 at about 8:30 PM Govind was last seen alive in the company of accused, driving tractor trolley number URB-7911, loaded with bricks and thereafter, his dead body was found on the next day at 2 PM in a canal. The doctor conducting autopsy opined that Govind might have died on 9.4.1983 at about 11 PM, which means that, Govind died about 2:30 hours later, when he was last seen alive with the accused. Once the prosecution proved these facts, the burden was upon the accused to prove under section 106 of the Evidence Act when and where they disembarked from the above tractor trolley, when and where the bricks were unloaded from the above trolley, till what time they remained with Govind, at what time they disembarked from the tractor, who was present with them when they disembarked from the tractor, where did they went on the tractor with Govind, how the tractor came into the possession of Akil Ahmed, for what purpose accused Ashok Kumar went to Vishnu Dutt Sharma's factory at Sonipat with Akil Ahmed, how the tractor trolley reached Vishnu Dutt Sharma's factory at Sonipat, why the bricks were concealed beneath the ground in the house of accused Ramdas, but the accused neither disclosed this in their statement under section 313 CrPC nor adduced any evidence in defence. The burden was on the accused to give answer to the above legitimate queries, in the absence of which, the accused failed to rebut the presumption against them. The non-explanation of the accused furnishes an additional link in the chain of circumstances against them. The time gap when Govind was last seen alive and when he might have died, is so short, that only one conclusion is possible that it was only the accused, who committed the murder of Govind for misappropriating his tractor trolley.

70. I have considered the identification parade proceedings conducted by PW-13 in the District Jail Etawah. Accused Gore alias Ujagar Singh was arrested on 5.5.1983 and his identification parade took place on 9.9.1983. He alleged during identification parade that previously on 30.8.1983 he and accused Ramdas were shown to witnesses in the jail, regarding which he gave an application to the 4th Munsif Magistrate. The accused was having distinguishing features such as a cut mark on his left cheek, both the earlobes were pierced, his name was tattooed on his right arm, he was having a black spot below left eye near the nostril, his hair were slightly golden and forehead was broad. During parade, the distinguishing features were covered with chits, similar chits on the same place were applied on the dummy, dummy of the same age group, complexion, height and resemblance were included in the parade, heads of all included in the parade were capped and all were covered upto waist by blanket. In his identification parade five witnesses namely Ramswaroop (PW-1), Km.Heera Devi(PW-3), Mahesh Chandra, Lal Kishore and Rajendra Prasad Shukla(PW-2) participated, in which only Ramswaroop PW-1 correctly identified the accused, as the person he saw with his son on tractor. PW-1 later on, during his testimony in the court, corroborated the above identification.

71. The accused Ramdas was arrested on 3.8.1983 and his identification parade was conducted on 16.9.1983. The accused was having distinguishing features such as small pox marks on his face, both the earlobes were pierced, a wart(massa) below the right ear, a flower, Scorpion and his name Ramdas Yadav was tattooed on his right arm. To conceal the above distinguishing marks, chits were applied on his face and similar chits on the same place, were applied on the dummy also. Besides this, the dummy were of the same age group, complexion, height and resemblance. Some dummy having smallpox marks on their face were also included in the parade. The right arm of all the persons present in the parade was covered. Besides this, all the persons were covered upto the waist by a blanket. Two witnesses namely Shri Narain and Rajendra Prasad Shukla PW-2 participated in the parade, in which only one witness Rajendra Prasad Shukla correctly identified the accused Ramdas, who stated that he saw the accused near Maman culvert(puliya) sitting on the tractor. This witness later on, in the dock also corroborated the above identification. PW-2 identified the accused Ramdas on 9.4.1983 at about 8:30 PM when he was travelling in the private bus, and the tractor trolley driven by Govind crossed the bus from the opposite direction on which accused Ramdas was seated.

72. The Apex Court in the case of Raja v. State By The Inspector of Police (2020)15 SCC 562, held as under: -

16. Again, there is no hard-and-fast rule about the period within which the TIP must be held from the arrest of the accused. In certain cases, this Court considered delay of 10 days to be fatal while in other cases even delay of 40 days or more was not considered to be fatal at all. For instance, inPramod Mandalv.State of Bihar[Pramod Mandalv.State of Bihar, (2004) 13 SCC 150 : 2005 SCC (Cri) 75] the accused was arrested on 17-1-1989 and was put up for test identification on 18-2-1989, that is to say there was a delay of a month for holding the TIP. Additionally, there was only one identifying witness against the said accused. After dealing with the decisions of this Court inWakil Singhv.State of Bihar [Wakil Singh v. State of Bihar, 1981 Supp SCC 28 : 1981 SCC (Cri) 634], Subash v. State of U.P. [Subash v. State of U.P., (1987) 3 SCC 331 : 1987 SCC (Cri) 573] and Soni v. State of U.P. [Soni v. State of U.P., (1982) 3 SCC 368 (1) : 1983 SCC (Cri) 49 (1)] in which benefit was conferred upon the accused because of delay in holding the TIP, this Court considered the line of cases taking a contrary view as under: (Pramod Mandal case [Pramod Mandal v. State of Bihar, (2004) 13 SCC 150 : 2005 SCC (Cri) 75] , SCC pp. 157-59, paras 18-21)

18. The learned counsel for the State submitted that in the instant case there was no inordinate delay in holding the test identification parade so as to create a doubt on the genuineness of the test identification parade. In any event he submitted that even if it is assumed that there was some delay in holding the test identification parade, it was the duty of the accused to question the investigating officer and the Magistrate if any advantage was sought to be taken on account of the delay in holding the test identification parade. Reliance was placed on the judgment of this Court in Bharat Sing v. State of U.P. [Bharat Singh v. State of U.P., (1973) 3 SCC 896 : 1973 SCC (Cri) 574] In the aforesaid judgment this Court observed thus: (SCC p. 898, para 6)

6. In Sk. Hasib v. State of Bihar [Sk. Hasib v. State of Bihar, (1972) 4 SCC 773] it was observed by the Court that identification parades belong to the investigation stage and therefore it is desirable to hold them at the earliest opportunity. An early opportunity to identify tends to minimise the chances of the memory of the identifying witnesses fading away due to long lapse of time. Relying on this decision, counsel for the appellant contends that no support can be derived from what transpired at the parade as it was held long after the arrest of the appellant. Now it is true that in the instant case there was a delay of about three months in holding the identification parade but here again, no questions were asked of the investigating officer as to why and how the delay occurred. It is true that the burden of establishing the guilt is on the prosecution but that theory cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. If the contention was that the identification parade was held in an irregular manner or that there was an undue delay in holding it, the Magistrate who held the parade and the police officer who conducted the investigation should have been cross-examined in that behalf.

In the instant case we find that the defence has not imputed any motive to the prosecution for the delay in holding the test identification parade, nor has the defence alleged that there was any irregularity in the holding of the test identification parade. The evidence of the Magistrate conducting the test identification parade as well as the investigating officer has gone unchallenged.The learned counsel for the State is, therefore, justified in contending that in the facts and circumstances of this case the holding of the test identification parade, about one month after the occurrence, is not fatal to the case of the prosecutionas there is nothing to suggest that there was any motive for the prosecution to delay the holding of the test identification parade or that any irregularity was committed in holding the test identification parade.

19. The learned counsel for the State has also relied upon the decision of this Court in Anil Kumar v. State of U.P. [(2003) 3 SCC 569 : 2003 SCC (Cri) 770] wherein the test identification parade was held 47 days after the arrest of the appellants. This Court after considering several decisions of this Court including the decisions in Brij Mohan v. State of Rajasthan [(1994) 1 SCC 413 : 1994 SCC (Cri) 527], Daya Singh v. State of Haryana [(2001) 3 SCC 468 : 2001 SCC (Cri) 553] and State of Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263] concluded that since the identifying witness was attacked by the assailants including the appellant and another, he had a clear look at the assailants. When his younger brother came to save him, he was killed by the assailants while the witness also received serious injuries. These were circumstances which would have imprinted in the memory of the witness the facial expressions of the assailants and this impression would not diminish or disappear within a period of 47 days. Similar was the case of the father and the mother of the identifying witness who had seen the assailants attacking their sons and one of their sons getting killed. In their memory also the facial expressions of the assailants will get embossed. A mere lapse of 47 days would not erase the facial expressions from their memory.

20. It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction.These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification.

21. Lastly in Malkhansingh v. State of M.P. [Malkhansingh v. State of M.P., (2003) 5 SCC 746 : 2003 SCC (Cri) 1247] a three-Judge Bench of this Court of which one of us (B.P. Singh, J.) was a member, after considering various decisions of this Court observed thus: (SCC pp. 751-52, para 7)

7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. 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 purpose of a prior test identification, therefore, is 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 proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.

(emphasis supplied)

73. From the law laid down by the Apex Court in the case of Raja (supra), it is evident that no hard-and-fast rule can be prescribed with regard to the time within which an identification parade is to be conducted after the arrest of an accused. Likewise, the number of witnesses identifying the accused in such a parade cannot, by itself, be treated as the sole criterion for determining the credibility of the prosecution case. Even if a single witness identifies the accused during the identification parade, the prosecution version cannot, on that ground alone, be rendered doubtful. It is further evident that it is incumbent upon the accused to cross-examine the Investigating Officer and the Magistrate who conducted the identification parade, in order to elicit the reasons, if any, as to why parade was not conducted promptly after the arrest of the accused and what was the reason behind the delay and if, the accused fails to cross-examine the prosecution witnesses on the above fact, then the accused cannot take advantage of the delay, if any, in conducting the identification parade.

74. I am of the considered opinion that since PW-1 & 2 identified accused Gore alias Ujagar Singh and Ramdas, respectively, in the identification parade in District Jail Etawah and also in dock, as such, the involvement of both the above accused was proved beyond reasonable doubt in the crime, along with accused Ashok. The participation of accused Ashok Kumar in the crime was never in doubt. Further, the accused Ramdas was arrested on 03.08.1983 and his identification parade was held on 16.09.1983. Accused Gore alias Ujagar Singh was arrested on 05.05.1983 but his identification parade was held on 09.09.1983, but the investigating officer PW-11 and PW-12 and the Magistrate PW-13 were not cross-examined by the accused to ascertain why the delay in conducting the identification parade occurred, as such, they cannot take the plea that the prosecution case is doubtful because of this delay. It is evident that there was no motive on the part of first informant to falsely implicate the accused. No suggestion was given to PW-1, PW-2 and PW-3 by the accused, that they were having enmity with the accused and due to this, they have falsely implicated the accused. Even in their statement under section 313 CrPC, the accused had not specified what enmity the first informant and other prosecution witnesses were having with them, so as to implicate them falsely in this case.

75. In view of the above analysis, I am of the considered opinion that the trial court has not committed any illegality in convicting all the accused for the offence of murder of Govind, for concealing the evidence of murder and for misappropriating his tractor-trolley and convicting them under section 302/34, 201 and 404 I.P.C and sentencing them to undergo the minimum punishment of life imprisonment for offence under section 302/34 IPC. For other offences, lesser sentence have been awarded, which have been ordered to run concurrently with the major sentence of life imprisonment. I am of the considered opinion that the appeal is meritless and is liable to be dismissed.

76. The appeal is hereby dismissed. The judgment of conviction and the sentence imposed on 12.9.1996 by the trial Court on all the accused-appellants in ST no. 150 of 1993, is affirmed.

77. Accused Ashok Kumar & Ramdas are on bail, who are directed to surrender in the trial court forthwith, failing which the trial court is directed to adopt coercive measures for securing the presence of the accused, in accordance with law. Accused Gore alias Ujagar Singh is in jail.

78. A copy of this order be sent by Registrar compliance to the trial court and the jail concerned forthwith. The trial court is directed to submit its compliance report within two months. Office is directed to send back, the original record of the trial court, forthwith.

Order Date:- 21.11.2025 Jitendra/Himanshu/Mayank (Sandeep Jain, J.)

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Allahabad High Court