Allahabad High Court
Ram Chet And Another vs State Of U.P. on 9 July, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:111981-DB Court No. - 48 Case :- CRIMINAL APPEAL No. - 1244 of 2010 Appellant :- Ram Chet and another Respondent :- State of U.P. Counsel for Appellant :- I.K. Chaturvedi,Anil Kumar Singh,Jitendra Singh Counsel for Respondent :- Govt. Advocate Hon'ble Siddharth, J.
Hon'ble Brij Raj Singh, J.
1. Heard Sri Jitendra Singh, learned counsel for the appellants and Sri Ram Badan Pal, learned Brief Holder for the State.
2. The present appeal has been filed against the judgement and order dated 16.02.2010 passed by the learned Special Judge (D.A.A.) Act, Banda in Sessions Trial No.74 of 1987, arising out of Case Crime No.125 of 1986, State Vs. Ram Chet and another, thereby convicting and sentencing the appellants under Section 396 IPC for life imprisonment with fine of Rs.3,000/- each and in default of payment of fine to further undergo one year additional imprisonment.
3. The facts giving rise to the present appeal are that Man Singh S/o Shambhu Singh lodged a report mentioning therein that on 19.07.1986 at 7.30 in the evening he was coming back to his village after easing himself and as soon as he reached to his gate, he saw 19-20 miscreants wearing Khakhi clothes armed with Rifle and Gun entered into his village and surrounded the entire village. Three miscreants entered into his house and at that time his father was eating food. His father was made captive and was forced to sit outside his house and looted the articles and ornaments in the house. Some of the miscreants entered into the house of Nanhu Aarakh and he was also made to sit in front of his house. Some of the miscreants entered into the house of Bhaiya Lal Brahman, Dharm Singh, Raghunath sahai Brahman, Lala Brahman, Lalli Brahman, Ramsaware Brahman and Moti Bhujwa and started to beat them and thereafter looted the ornaments and articles in the house. Raghunath Sahai and Bhaiya Lal were made to sit in front of his house and Ram Saware Garg, Lala and Lalli Brahman were also made to sit in front of the house of Lalli Brahman. Similarly, Dayashanker Dubey, Indrapal and Lauha were also made to sit in front of the house of Lalli Brahman. Villagers identified the miscreants as Dadua, Sitaram, Dangua, Kishora, Radhe, Balgiri, Babulal @ Maulvi, Zalim @ Santa, B.D. Singh, Kamlesh, Hanuman, Brij Bhushan, Gulab and Ramanuj Lohar. The miscreants had beaten the villagers with Lathi and one miscreant, Sitaram shouted that the villagers were instrumental in arrest of his father and he will not spare them. Another miscreant, Hanuman said that son of Ram Samare, who is Police Constable in Shankergarh Police Station molested his wife. Thereafter, miscreants killed Shambhu Singh, Raghunath Sahai, Nanhu Aarakh and Bhaiya Lal by firing them. Shivpatia, sister of the complainant, was also killed by the miscreants by beating her with Lathi. Lalli Brahman, Lala Brahman and Ramsaware Garg were also killed by the miscreants in front of the house of Lalli. The villagers were also beaten by the miscreants with Lathi and Danda. Thereafter, the miscreants had looted Anklets, golden Bindi, golden earrings, golden ring, Jhunki, Kardhai, Mohar and Rs.1500/- from the house of the complainant. The miscreants were identified by the villagers and the complainant in the Torch light.
4. On the basis of the aforesaid information, FIR was lodged at Case Crime No.125 of 1986, under Section 396 IPC. The investigation was entrusted to the Sub-Inspector N.K. Singh, who conducted the inquest and thereafter the dead bodies were sent for post-mortem. Bullets and live cartridges were recovered from the place of occurrence. The Investigating Officer conducted the investigation and charge sheet was filed. Thereafter, the case was committed to the court of sessions. Charges were framed against the accused under Section 396 IPC. The accused denied the charges and pleaded for trial. The prosecution in support of its case, produced as many as thirteen witnesses:-
P.W.-1 Smt. Parvarti P.W.-2 Smt. Kalindi Devi P.W.-3 Trijugi Narain P.W.-4 Man Singh P.W.-5 Sampatia P.W.-6 Dr. R.K. Ram P.W.-7 Dr. Keshav Gupta P.W.-8 Dr. M.L. Verma P.W.-9 Munnulal P.W.-10 S.I. Ali Hasan P.W.-11 Narendra Kumar Singh P.W.-12 Munnulal Gupta P.W.13 Chandrakant
5. The prosecution had also produced 66 exhibits before the trial court. The accused were confronted under Section 313 Cr.P.C. and they denied the charges and deposed before the trial court that they were falsely implicated out of enmity.
6. P.W.-1, Smt. Parvati was examined by the trial court and she deposed before the Court that she did not identify any of the accused. She further deposed that she had no knowledge as to how many miscreants had come to village and how many villagers were beaten by them. Lastly, she has been declared hostile because she has not supported the prosecution case. P.W.-2, Smt. Kalindi Devi was been examined before the trial court and she deposed before the Court that Sitaram used to come to the house of Lalta and Man Singh and they were known to her. She further deposed that she fled away to village Neebi when dacoity was committed. The fields of Lalta and Man Singh were adjoining to her field and the cattle of Lalta and Man Singh used to come to her field and similarly her cattle also used to go to their filed. She further deposed that she was not present at the time of dacoity and her statement was recorded by the police under Section 161 Cr.P.C.
7. P.W.-3, Trijuginarain was also examined by the trial court and he deposed that he recognised accused Belgiri, B.D. Singh, Mansingh and Lalta Singh. His brother Sri Narain is Constable posted in Shankergarh Police Station. He deposed that he was present in the village at the time of incident. 20-25 persons came from the eastern side of the village and as soon as they reached to the village, they started beating the villagers. After easing himself, he returned to his village and he made to hide himself in a place surrounded by wall. Raghunath Sahai and Samudaria were made captive by the miscreants and they were made to sit in front of the house of the Dashrath Kurmi. Nanu Aarakh and Bhaiya Lal were also brought to the same place. Shivpatia W/o of Dashrath was inquired by the miscreants about the jewellery and when she did not tell the place of the jewellery, she was killed by them. Thereafter, Raghunath Sahai was tied by them and he was beaten and lastly he was shot dead. All the four persons were shot dead by the miscreants. He identified the accused Dadua, Hanuman, Tungua, Lalta, Mansingh, Balgiri and B.D. Singh before the court and deposed that they were involved in the commission of crime.
8. P.W.-4 Man Singh was examined before the trial court and he deposed before the court reiterating the same facts in examination-in-Chief as has narrated in the FIR. In cross-examination, he deposed that Sita Ram, one of the miscreants, shouted that the villagers are instrumental in arrest of his father and he will not spare anyone. He also deposed that nine persons were killed by the miscreants. The miscreants were identified in the Torch light. He proved his FIR version before the court. During Cross-examination, he deposed that he lodged the FIR at the behest of the villagers and the police. Bhola and Ram Chet were arrested after 3-4 months and he came to know the said fact when he was asked to identify them. He did not mention the descriptive particulars (hulia) of the miscreants. He further deposed that three miscreants, who had entered into his house, are different than the present accused-appellants Bhola and Ram Chet. He deposed that he could not identify any miscreant, who killed the villagers.
9. P.W.-4 Man Singh further deposed before the Court that one person was shouting the name of Sitaram and the other miscreants were talking together, therefore, he came to know that they were taking names of each other i.e. Sitaram and the present appellants, Ram Chet and Bhola. He came to know from the villagers that the present accused-appellants Bhola and Ram Chet were also involved in commission of crime. In cross-examination, he deposed that he identified the miscreants in the light of torch. During the course of trial, in witness box also he identified the accused-appellants and deposed that appellants Ram Chet and Bhola were also involved in the commission of crime.
10. P.W.-5 Smt. Sampatia has been declared hostile. She deposed before the Court that she was not present in the village when the dacoity was committed. She had come to her husband's house from her Maika when she was called as her husband was killed by the miscreants. Similarly, P.W.-9 Munnulal has also been declared hostile as he has not supported the prosecution case.
11. P.W.-8 Dr. M.L. Verma had conducted the post-mortem of the deceased Nanu Aarakh, Bhaiyalal, Shabhu Kurmi, Raghunath Sahai, Baldev Sakin and he proved the post-mortem reports of the aforesaid deceased and deposed that post-mortem was conducted by him on 21.07.1986.
12. P.W.-12 Munnulal Gupta, Pharmacist, was also examined and he deposed before the Court that Dr. S.N. Mishra conducted the post-mortem of the deceased Chunua, Lala Brahman, Lalli Brahman and Shivpatia. However, he deposed that he had no idea whether he was present at the time of post-mortem or not. He had also expressed his incapacity to state the fact whether Dr. S.N. Mishra conducted the post-mortem of the aforesaid deceased or not.
13. On post-mortem of nine deceased, the following ante-mortem injuries have been found on the body of the deceased:-
Deceased Ram
1. G.S.W. of entry 3 cm x 2-1/2 cm x cavity deep on the front (centre) of the chest 10 cm below the super(Paper torn) ..... 26 cm. Above the umbl(Paper torn) in the mid line. Direction - front to backward slightly R.
2. G.S. Wound of exit 5 cm x 3 cm on the Rt. (Paper torn) back of the chest 3 cm away from (Paper torn) thoracic vertebrae on the Rt. side (Paper torn).
3. O/S Heart through and through Rt. chamber punctured Rt. lung punctured through and through.
4. Lacerated wound 1 cm x 1/2 cm x muscle deep over (Paper torn) of right leg 15 cm above the right ankle joint.
5. Lacerated wound 6 cm x 2 cm x muscle deep on the Antiro? Medial side of left leg 10 cm about the left ankle joint.
6. Contusion 9 cm x 3 cm on the Rt. forearm 3 cm above the right wrist joint.
Cause of death is due to shock and haemorrhage as a result of ante-mortem gun shot injuries.
Deceased Nanhu Aarakh
1. Lacerated wound size 8 cm x cm brain cavity deep on left sided occipital region of skull, 10 cm behind left ear, clotted blood present, underlining occipital bone fractured. Brain cavity containing 150 ml. of free and clotted blood, meninges & brain lacerated and congested.
2. Contusion size 16 cm x 14 cm on front of forehead hair lining over level of tip of nose including both eyes area, both eyes black, underlying frontal bone & ..... nasal bone both maxillary bones fractured meninges and brain lacerated and congested.
3. Contusion size 10 cm x 8 cm on back of chest in middle, 8 cm below neck.
4. Contusion size 12 cm x 10 cm on back of chest, 10 cm below injury no.3.
5. Contusion size 10 cm x 8 cm on back of abdomen 9 cm below injury no.4.
6. Contusion size 16 cm x 7 cm on front of left forearm 2/3 lower part 3 cm below left elbow joint, underlying left ulnar & radius bones lower 2/3 fractured into pieces Cause of death is due to coma as a result of ante-mortem gun shot injuries.
Deceased Chhutwa
1. G.S.W of entry and inverted margins 4 cm x 4 cm x chest cavity deep Ċ clotted blood on the front of chest at the level of left Nipple, 4 cm medial to left nipple, ribs 4th & 5th fractured below the wound left lung is perforated through & through and lacerated & clotted blood, Blacking of 3 cm present, around the wound. chest cavity Contains about 500 cc blood coagulated trace. Direction is front to Back.
2. G.S.W of exit Ċ everted margins 6 cm x 5 cm x chest cavity deep on the back of chest on left scapular region, 4 cm lateral to thoracic three vertebrae, 2nd & 3rd rib & scapula is fractured, injury is through & through and communicate with Inj. No.1.
3. Incised wound 1 cm x 0.5 cm x muscle deep on the left side of chin 2 cm below the lower rib, Ċ clotted Blood and sharp margins.
Cause of death is due to shock and haemorrhage as a result of ante-mortem gun shot injuries.
Deceased Raghunath Sahai
1. Lacerated wound size (Paper torn) cm x 3 cm x Brain Cavity deep on Rt. Side of temporal region of skull Paper torn including,whole of pinna of Rt. Ear over the Rt. Ear. Un (Paper torn) lying Rt. Temporal bone fractured, Brain & Meningis ( Paper torn) lacerated & congested, Brain cavity contains 200 ml of fr(Paper torn) & clotted blood.
2. Lacerated wound size 10 cm x 4 cm x Brain cavity deep on front .of Rt. forehead ,2 cm above Rt. Eyebrow underlying frontal bone fractured Brain & Meningis lacerated & Cong (Paper torn)etted cavity Brain contains 200 ml of clotted blood.
3. Lacerated wound size 3 cm x 2 cm x muscle deep on left side outer angle of mouth on outer & uppr part of (Paper torn)p three (Paper torn) 2 incise 1 premolar ? Broken.
4. Lacerated wound size 3 cm x 3 cm x bone deep on front of chin, 3 cm below lower lip underlying mandible bone fractured.
5. Gun shot wound of entry- Size 2 cm x 2 cm x abdomen (Paper torn) cavity deep Through & Through lower left side of abdomen , 2 cm below umbilicus (Paper torn) /- inverted , blackening present, clotted blood present, underlying S. Intestine & large intestine (Paper torn) lacerated & congested. Abdominal cavity contains 250 ml free & clotted blood. Direction fr( Paper torn).
6. Gun shot wound of exit- Size 6 cm x 6 cm Abdominal cavity deep through & through on back of abdominal (Paper torn) 4 cm above illiac creast, S. Intestine, L. Intestine lacerated & congested, Peritonium lacerated & congested communicating injury No- 5 margin everted clotted blood present. Direction front to back.
7. Lacerated wound Size 10 cm x 4 cm x Bone deep on front of left leg, 10 cm above left ankle joint underlying tibia & fibu ? Fractured.
Cause of death is due to coma as a result of ante-mortem gun shot injuries.
Deceased Lalli Brahman
1. Incised wound 3 cm x 2 cm on the lateral aspect of left leg on its lower one third 5 cm above the lateral malleolus and muscle deep, margins are clean cut, clotted blood present.
2. G.S.W of entry 2.5 cm x 2.5 cm x bone deep on the medial side of right leg 9 cm above the medial malleolus with inverted margins underlying muscles lacerated, and Rt. Tibia is fractured into pieces clotted blood present. Direction is left to right.
3. G.S.W of exit 3 cm x 3 cm on the lateral aspect of Rt. leg 9 cm above the lateral malleolus with everted margins and communicate with Inj. no. 2, Clotted blood present.
4. G.S.W of entry 2.5 cm x 2.5 cm on the Rt. side of front of chest with inverted margins at the level of 3rd Rt. rib at its junction with sternum, thoracic cavity deep Rt. Rib is fractured underneath, right Rt. ventricle perforated through & through, Direction front to back, Rt. lung perforated through & through. chest cavity contains about 2 litter of blood.
5. G.S.W of exit 4 cm x 4 cm with everted margins on the back of chest in the mid line at the level of thoracic 6th vertebra which is fractured into pieces, clotted blood present. Injury communicate with Inj. no.4 (G.S.W) through & through.
6. Incised wound 2 cm x 1/2 cm x scalp deep on the left parietal region 8 cm away and (paper torned) and the left ear, margins are clean cut.
Cause of death is due to shock and haemorrhage as a result of ante-mortem gun shot injuries.
Deceased Bhaiya Lal
1. Gun shot wound of entry- Size 3.6 cm X 3.6 cm through & through on middle of front of chest, 7 cm away from left nipple. margin inverted, blackening present clotted blood present underlying sternum fractured atrial part of Heart lacerated & congested, Rt. Lung & Pleura lacerated & congested, ......... middle lobe lacerated & congested. Direction front to back.
2. Gun shot wound of exit- Size 7 cm X 7cm Through & Through as back of chest on left side, 2 cm below lowest end of scapula bone, margin everted, clotted blood present underlying 4th & 5th rib of left side(Back) fractured 150 ml of free & clotted blood present in thoracic cavity .. cavity injury No.1.
Cause of death is due to shock and haemorrhage as a result of ante-mortem gun shot injuries.
Deceased Lal Brahman 1- G S W of entry with inverted margins 4cm X 3 cm X brain cavity deep on the Rt. side of face 2 cm below the Rt. eye have blackening 4 cm around the wound, clotted blood present, underlying. maxilla, zygomatic fractured into pieces, direction is from front to Back.
2- G S W of exit with everted margins 5 cmX 4 cm (paper torn) the Rt. occipital region 10 cm behind the Rt. ear, underlying occipital is fractured into pieces and the brain matter along with coagulation coming out from exit wound, whole of brain tissue along with (Paper Torn) lacerated and contains clotted Blood, Base of skull also contains about 100 cc clotted Blood, this Injury communicates through & through from injury no. one 3- Contusion 10 cm X 8 cm on the back of Rt. elbow (Illegible) forearm adjacent to elbow joint.
Cause of death is due to coma as a result of ante-mortem gun shot injuries.
Deceased Shambhu Kurmi
1. Gun shot wound of entry size 2cmX 2cm X through & through on middle of left gluteal region 2 cm below the iliac crest blackening present margin inverted, clotted blood present underlying iliac bone fractured. Small intestine & Large Intestine lacerated & Congested peritonium lacerated & congested, Abdominal Cavity Containing 200 ml of free & clotted blood, Direction back to front.
2. Gun shot wound of exit- size 6 cm X 6 cmX through & through on front of left side of abdomen4 cm above umbilicus, Small intestine, large intestine lacerated & congested peritonium lacerated and congested, Abdominal Cavity containing about 200 ml of free & clotted blood, margin everted, communicating injury No. 1.
Cause of death is due to shock and haemorrhage as a result of ante-mortem gun shot injuries.
Deceased Shivpatia s1. Contusion 15cmX 12 Cm on the left side of face, including Temporal Maxillary and occipital region underlying subcutaneous tissue contains free & clotted blood and muscles lacerated.
2. Contusion 10 cm x 8 cm on the left axillary region and front of chest on its upper part on left side, underlying subcutaneous tissue contains free & coagulated blood muscles lacerated.
3. Multiple Contusion four in number over the back of chest and abdomen in various direction larger measured 12 cm x 8 cm on the back of abdomen and smaller being 6 cm x 6 cm on the back of Rt. Scapular region of chest.
4. Old Triangular ulcer on the front of Rt. Leg on its lower one third 10 cm above the Rt. Ankle joint which is dry and covered with old cloths ( bandaged).
Cause of death is due to coma as a result of ante-mortem gun shot injuries.
14. P.W.11 Narendra Kumar, P.W.-12 Munnulal Gupta and P.W.13 Chandrakant are the formal witnesses.
15. P.W.-13 Chief Development Officer, who was posted as Sub-Divisional Magistrate at the relevant time of the incident, was also examined. He deposed before the Court that on 07.03.1987 he was posted as Sub-Divisional Magistrate in Banda district and was also looking after the official affairs of the Pargana Baberu. He conducted the identification parade of accused Ghanshyam @ Naate, Ramchet and Bhola on 07.03.1987 in District Jail, Banda. He furthr deposed that witnesses Surya Narain and Mansingh identified the accused Ramchet and witnesses Munnulal and Mansingh identified accused Bhola. He also deposed that accused Ramchet was sent to jail on 11.11.1986, whereas accused Bhola was sent to jail on 02.12.1986.
16. The trial court after examining the witnesses and adducing the evidence on record, convicted the appellants as mentioned above. Hence, the present appeal has been filed.
17. Learned counsel for the appellants submits that the appellants were not named in the FIR and their name has come to light after their arrest on 11.11.1986 and 02.12.2986 respectively. He further submits that name of the appellants came to light after three months from the date of occurrence in the statement of P.W.-4 Mansingh. It has been submitted that Torch/Lantern was not recovered by the Investigating Officer, which is alleged to be the source of light. He also submits that the main accused namely, Radhey, Gulab Kurmi and Brij Bhushan, who were named in the FIR, have been acquitted, whereas the appellants who were not named in the FIR have been convicted. There is no recovery from the possession of the appellants. It is further submitted that the fact witnesses i.e. P.W.-1 Smt. Parvati, P.W.-5 Sampatia and P.W.-9 Munnulal have turned hostile during the course of trial. Similarly, P.W.-2 Smt. Kalindi Devi has also not disclosed the names of the appellants.
18. Learned counsel for the appellants has vehemently argued that the identification parade had been conducted after three months from the date of arrest of the appellants, therefore, the entire prosecution case, which is based on identification parade, is doubtful. P.W.-4 Mansingh, who identified the appellants, deposed before the Court that he could not see as to who shot fire at the deceased. It has been further submitted that the statement of P.W.-4 Mansingh is quite contradictory, wherein he has deposed before the Court that the appellants were not present at the place of occurrence, but later on he deposed before the Court that the appellants have committed the offence. Thus, his statement is contradictory. The identification parade was done at the behest of the police and for the three months, the identity of the appellants were not disclosed though they were in jail for such long period and their identity could not be hidden and the prosecution had committed grave error by not doing identification parade in a reasonable time from the date of arrest.
19. It has further been submitted by the learned counsel for the appellants that only on the basis of the statement of P.W.-4 Mansingh, who identified the appellants after three months from the date of arrest, the appellants may not be convicted. Lastly, it has been submitted by the learned counsel for the appellants that the appellants have been in jail for more than 16 years and the total custody including remission is 20 years. It has been submitted that the appellants may be released on the basis of the fact that they have undergone in jail for more than 20 years.
20. In support of his contention, learned counsel for the appellants has placed reliance upon the judgement of the Hon'ble Supreme Court passed in Criminal Appeal No.1953 of 2010, Md. Sajjad @ Raju @ Salim Vs. State of West Bengal, decided on 06.01.2017. He has relied upon paragraphs 16, 17 and 18 of the aforesaid judgement and has submitted that the identification parade was not conducted promptly and also P.W.-4 Mansingh did not mention any descriptive particulars of the appellants, therefore, the entire identification proceeding is vitiated and the prosecution is not able to prove the case beyond reasonable doubt. Therefore, the appeal may be allowed on this ground.
21. Learned AGA while rebutting the arguments of learned counsel for the appellants has submitted that it is a case of gruesome murder of nine villagers. The appellants along with other accused had surrounded the village and looted the villagers and also committed murder of nine persons. He has further submitted that P.W.-4 Mansingh has identified the appellants during identification parade in the jail and also before the trial court, therefore, prosecution case is established beyond reasonable doubt. P.W.-13 Chandrakant, Chief Development Officer also deposed before the trial court that he was posted as Sub-Divisional Magistrate and identification parade was conducted under his presence. He, therefore, submits that the trial court has rightly convicted the appellants on the basis of the evidence adduced before it, therefore, no interference is called for by this Court.
22. After hearing the learned counsel for the parties and going through the record, we find that out of all fact witnesses only P.W.-4 Mansingh has deposed before the trial court that the appellants were present on the date of incident. The record reveals that accused Ramchet was arrested on 11.11.1986, whereas accused Bhola was arrested on 02.12.1986 and the identification parade was conducted on 07.03.1987. Thus, the identification parade has been done after about three months. P.W.-4 Mansingh has identified the appellants before the trial court and has deposed that appellants were arrested after four months from the date of incident and then the identification was done. He has also deposed before the Court that he did not mention the descriptive particulars of the appellants. He also deposed that he did not see any weapon in the handa of the appellants. He further deposed before the Court that he could not see as to who was killed by whom. He only heard Sitaram, one of the miscreants taking the names of the appellants. Thus, it is clear that there are many contradictions in the statement of P.W.-4 Mansingh. The other important factor which is relevant to be noted, that all the other fact witnesses have not made any allegation against the appellants. P.W.-1, Smt. Parvati, P.W.-5 Sampatia and P.W.-9 Munnulal have been declared hostile and only on the basis of the statement of P.W.-4 Mansingh, the appellants have been convicted for life under Section 396 IPC.
23. The appellants are in jail for about 20 years including the remission period and there are various contradictions in the statement of P.W.-4 Mansingh and the identification parade was conducted after three months from the date of incident.
24. Hon'ble Supreme Court in the case of Md. Sajjad @ Raju @ Salim (supra) while dealing with the aforesaid question is of the opinion that identification parade should be held without delay and if there is inordinate delay, the same should be explained sufficiently. In the present case, identification has been done after about four months, therefore, the entire identification proceeding is highly doubtful. The descriptive particulars of the appellants were also not mentioned by P.W.-4 Mansingh during investigation, which is admitted by him in his cross-examination. Therefore, there is room for doubt as to whether the delay in holding the identification parade was in order to enable to identify witnesses to see them in the police lock-up or in the jail premises and make a note of their features. Hon'ble Supreme Court has reiterated the aforesaid view as stated above in the cases of Subhash Vs. State of U.P., 1987 (3) SCC 331, Muthuswami vs. State of Madras, AIR 1954 SC 4 and Mohd. Abdul Hafeez Vs. State of A.P., AIR 1983 SC 367: (1983) 1 SCC 143. The relevant paragraphs of the aforesaid judgement are extracted herein-below:-
"16. In Subhash Vs. State of U.P.2, the aspects of delay as well as absence of any special features for identification and the effect thereof were considered by this court in paragraphs 8 and 9 as under:-
"8. Apart from this infirmity we further find that Shiv Shankar was not put up for test identification parade promptly. The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features.
9. Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade. It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Exhibit Kha-1 nor in their statements during investigation, the eyewitnesses have given any descriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had "sallow" complexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then. Thus in the absence of any descriptive particulars of Shiv Shankar in Ex. Kha-1 or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu. As pointed out in Muthuswami v. State of Madras[3]where an identification parade was held about 2½ months after the occurrence it would not be safe to place reliance on the identification of the accused by the eyewitnesses. In another case Mohd. Abdul Hafeez v. State of A.P.[4] It was held that where the witnesses had not given any description of the accused in the first information report, their identification of the accused at the sessions trial cannot be safely accepted by the court for awarding conviction to the accused. In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade."
17. Similarly the issue of delay weighed with this court in Musheer Khan vs. State of M.P.5 in discarding the evidence regarding test identification as under:
"8. Insofar as the identification of A-5 is concerned that has taken place at a very delayed stage, namely, his identification took place on 24-1-2001 and the incident is of 29-11-2000, even though A-5 was arrested on 22-12- 2000. There is no explanation why his identification parade was held on 24- 1-2001 which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the courts below or the High Court on such delayed TI parade for which there is no explanation by the prosecution."
18. In the instant case none of the witnesses had disclosed any features for identification which would lend some corroboration. The identification parade itself was held 25 days after the arrest. Their chance meeting was also in the night without there being any special occasion for them to notice the features of any of the accused which would then register in their minds so as to enable them to identify them on a future date. The chance meeting was also for few minutes. In the circumstances, in our considered view such identification simplicitor cannot form the basis or be taken as the fulcrum for the entire case of prosecution. The suspicion expressed by PW 8 Saraswati Singh was also not enough to record the finding of guilt against the appellant. We therefore grant benefit of doubt to the appellant and hold that the prosecution has failed to establish its case against the appellant."
25. Looking into the factum of identification parade, statement of P.W.-4 Mansingh before the trial court and the issue of delay, we have no hesitation to hold that the testimony of P.W.-4 Mansingh is not reliable and on that basis the appellants cannot be convicted. All the other fact witnesses have not supported the prosecution case against the appellants.
26. Considering the over all facts and circumstances of the case and the evidence on record, we are of the considered opinion that the prosecution has not been able to prove the case beyond reasonable doubt. The trial court has also failed to appreciate the evidence on record in a correct perspective so as to convict the appellants, therefore, the judgement and order passed by the trial court is liable to be set aside. More over, the appellants are in jail for the last 20 years including the period of remission.
27. The appeal is accordingly allowed and the judgement and order dated 16.02.2010 passed by the learned Special Judge (D.A.A.) Act, Banda in Sessions Trial No.74 of 1987, arising out of Case Crime No.125 of 1986, State Vs. Ram Chet and another is hereby set aside. Appellants are in jail. They shall be released from jail forthwith. They need not surrender unless wanted in any other case.
.
(Brij Raj Singh, J.) (Siddharth, J.) Order Date :- 9.7.2024 Rao/-