[Cites 9, Cited by 0]
Allahabad High Court
Ram Bharosey vs State on 2 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:69831
Reserved On: 16.12.2025 Delivered on :2.4.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 680 of 1987
Ram Bharosey
.....Appellant(s)
Versus
State
.....Respondent(s)
Counsel for Appellant(s)
:
Babita Upadhyay (A.C.), U.C. Mishra
Counsel for Respondent(s)
:
A.G.A.
Court No. - 89
HON'BLE ANIL KUMAR-X, J.
1. Heard Smt. Babita Upadhyay, learned Amicus Curiae for appellant and Sri Acharya Rajesh Rajesh Tripathi, learned AGA for State.
2. The present criminal appeal has been preferred by the appellant under Section 374(2) CrPC against the order and judgment dated 3.3.1987 passed by Special Judge (Anti-Dacoity) Etawah in Special case no. 122 of 1986 and Special case no. 122A of 1986, convicting the appellant under Section 394 IPC, to set aside the order and acquit the appellant.
3. During the pendency of this appeal, the appellant no.1 namely Ram Bharosey has died and his appeal stands abated. Appellant no.2, Ram Das, is before this Court.
Facts of the case
4. The prosecution case, in brief, is that the complainant, Mahendra Singh, resident of village Purwa Guyani, lodged a written report at Police Station Bidhuna, District Etawah on 28.04.1984 stating that in the intervening night of 27/28.04.1984, while he was engaged in threshing his wheat crop in his khalihan, he returned to his house at about midnight and upon reaching the gate, heard alarm raised by the ladies inside. On flashing his torch, he noticed 3?4 miscreants coming out of his house. He attempted to apprehend them and identified one of the miscreants as Ram Bharosey, a washerman of neighbouring village Kusmara, who was armed with a firearm, while the other accused persons remained unidentified. During the course of the incident, one of the miscreants inflicted a blow on his head with a lathi-like object, causing him to become dizzy.
5. On the alarm being raised, villagers namely Jawahar, Jamadar, Salig Ram and others reached the spot with torches, and in order to create light, Jawahar set fire to nearby crop bundles. The miscreants, however, fled away with the looted articles from the house and, when pursued, fired from a gun to deter the villagers. The complainant asserted that he and the witnesses were in a position to identify the remaining accused persons as well as the looted property, which included gold and silver ornaments, wearing apparels and wrist watches, as detailed in the written report. He further expressed suspicion regarding the involvement of certain villagers, namely Munshi Lal, Mam Sewak and Ganga Ram Kori, in the conspiracy of the offence.
6. On the basis of the said report, Case Crime No. 64 of 1984 under Section 394 IPC was registered on 28.04.1984 at 08:45 A.M., and the necessary chik report and General Diary entries were prepared. The complainant was sent for medical examination, wherein he was examined on the same day at about 09:00 A.M., and one lacerated wound on the left side of the forehead was found, which was opined to be simple in nature, caused by a blunt object and was fresh in duration. The Investigating Officer thereafter proceeded to the place of occurrence and undertook the investigation.
7. During the course of investigation, the Investigating Officer visited the place of occurrence, prepared the site plan, and collected material evidence including empty cartridges, a torch, and other relevant articles from the spot, for which a recovery memo was duly prepared. The accused persons were thereafter arrested, and the unknown accused were subjected to test identification proceedings in jail, wherein they were identified by P.W.-1 Mahendra Singh and P.W.-2 Ram Autar. Upon completion of investigation, charge-sheet was submitted against accused Ram Bharosey on 03.08.1984 under Section 394 IPC, and against accused Ram Das, Jabar Singh and Shiv Ram on 28.09.1984 under Section 394 IPC.
8. Accused Shiv Ram did not appear in the Court and his case was separated. Remaining accused were prosecuted for offences in Special Case no. 122/1986 State vs Ram Bharose and Special Case no. 122-A / 1986 State vs Ram Das and others. A charge under section 394 IPC was framed against Ram Bharose,Ram Das and Jabar Singh. They pleaded not guilty and claimed to be tried.
9. Total eight witnesses were examined by prosecution. P.W.-1 Mahendra Singh supported prosecution and proved written report Ex.Ka-1. P.W.-2 Ram Autar also stated he was sleeping on the roof of his house along with his wife and mother on alleged night when he heard screams. He there upon climbed down from the roof and came at the main gate of his house. He saw his uncle P.W.-1 Mahendra was standing at main gate of his house flashing his torch. Other villagers also arrived after they heard alarm. They identified one of the accused Ram Bharose and recognised faces of other miscreants. Ram Bharose was armed with gun. One of the accused struck lathi on the head of P.W.-1 Mahendra. When miscreants began to flee with loot, P.W.-3 Jawahar Lal set fire in dry pile of mustard. All the miscreants were identified in the light of fire and flash light of torches. P.W.-3 Jawahar Lal and P.W.-4 Ramesh Chandra has also corroborated the prosecution version.
10. P.W.-5, S.I. S.N. Verma, the Investigating Officer, deposed that he conducted the investigation, prepared the site plan (Ext. Ka-2), and recorded statements of witnesses under Section 161 Cr.P.C. He proved the memos of taking into possession and supurdaginama of two tin boxes, recovery of three empty cartridges, and a pair of shoes (Ext. Ka-3, Ka-4 and Ka-5), as well as the memo regarding collection of ashes of burnt mustard wood used for identification of the accused (Ext. Ka-6). He further proved the memos of taking into possession and supurdaginama of torches belonging to witnesses Salig Ram (Ext. Ka-7), Jamadar and Jawahar Lal (Ext. Ka-8), and the complainant Mahendra Singh and Ramesh Chandra (Ext. Ka-9). He also proved the memo of search of the house of accused Ram Bharosey (Ext. Ka-10). Upon completion of investigation, he submitted charge-sheet against Ram Bharosey on 03.08.1984 and against Ram Das, Jabar Singh and Shiv Ram on 28.09.1984 under Section 394 IPC after their test identification parade, and proved the material exhibits including a pair of plastic shoes (Ext. 1 and 2), three empty cartridges (Ext. 3, 4 and 5), and ashes (Ext. 6).
11. P.W.-7 S.I. Sri Ganpat Singh deposed that he was posted as Sub Inspector at P.S. Acchhhalda and arrested accused Ram Das and Shiv Ram in the intervening night of 31/01-0-1984 and found country made guns and live cartridges during their frisking. They also confessed of their involvement in robbery committed in the house of P.W.-1 Mahendra.
Findings of Trial Court
12. The Trial Court, upon appreciation of the entire evidence on record, partly allowed the prosecution case. It acquitted accused Jabar Singh on the ground that his identification was made only by P.W.-1 Mahendra Singh and there was no sufficient corroboration from other reliable evidence, making his involvement doubtful.
13. However, the Trial Court convicted the remaining accused, namely Ram Bharosey and Ram Das, for the offence under Section 394 IPC, placing reliance upon the testimony of P.W.-1 Mahendra Singh and P.W.-2 Ram Autar, whose evidence regarding identification of the accused and their active participation in the commission of robbery was found to be consistent, trustworthy and reliable. The Court held that their presence at the spot was natural and their version stood duly corroborated by other prosecution witnesses and surrounding circumstances.
Arguments by Appellant's Counsel
14. Learned counsel for the appellant has contended that the test identification parade was conducted after an inordinate and unexplained delay from the date of arrest of the accused, which seriously affects its evidentiary value. It is submitted that such delay creates a strong possibility of the accused having been shown to the witnesses prior to the identification proceedings, thereby rendering the entire exercise doubtful. It is further argued that the very purpose of holding a test identification parade is to test the memory and veracity of the witnesses at the earliest opportunity, and any undue delay defeats this purpose. In the present case, no satisfactory explanation has been furnished by the prosecution for such delay, thus casting serious doubt on the fairness and reliability of the identification. Consequently, the identification of the appellant cannot be safely relied upon, particularly when it forms the sole basis of conviction.
Argument by Learned AGA
15. Learned A.G.A. has contended that mere delay in conducting the test identification parade is not fatal to the prosecution case, particularly when the guilt of the accused stands proved by reliable and cogent evidence. It is submitted that the identification of the accused is duly corroborated by the consistent and trustworthy testimony of P.W.-1 and P.W.-2, who had sufficient opportunity to see the accused at the time of occurrence in the light of torches and fire, and have also identified them before the Court. It is thus argued that the prosecution has proved the case beyond reasonable doubt, and the delay in holding the test identification parade does not materially affect the credibility of the prosecution case, hence the conviction recorded by the Trial Court requires no interference.
Conclusion
16. Since the entire prosecution case depends on the identification of the appellant, it is necessary to first see whether the Test Identification Parade (TIP) was conducted properly. The purpose of TIP is to test the memory of the witnesses, and therefore it should be held as soon as possible after the arrest of the accused, without delay. Before conducting TIP, the Investigating Officer should note details given by the witnesses such as description of the accused, lighting conditions, distance and duration of seeing the accused, and any special features. The TIP should be conducted by a Judicial Magistrate (or in his absence, by independent respectable persons), and police officers should not interfere in the process. The accused should be mixed with similar-looking persons, and the witnesses should be kept separate and called one by one so that there is no chance of tutoring or influence. It must also be ensured that the accused is not shown to the witnesses before the parade and his appearance is not changed. A proper record of the entire proceedings, including any objection raised by the accused, must be prepared and certified by the Magistrate. These safeguards are necessary to ensure fairness and reliability of identification, and if they are not followed, the value of such identification becomes doubtful.
17. It is well settled that where the prosecution case rests substantially on identification of the accused, the Test Identification Parade is required to be held at the earliest opportunity after arrest to test the memory of the witnesses. Any inordinate and unexplained delay in holding such parade diminishes its evidentiary value and necessitates a cautious approach, as it gives rise to the possibility of the accused having been shown to the witnesses and of fading memory, particularly where the witnesses had only a fleeting opportunity to see the accused. In such circumstances, and in the absence of prior descriptive particulars, identification evidence becomes doubtful and unsafe to rely upon, especially when it forms the sole basis of conviction, as held in Md. Sajjad @ Raju @ Salim v. State of West Bengal (AIR 2017 SC 642).
18. It is well settled that where the prosecution case substantially rests on identification, the Test Identification Parade is required to be held at the earliest opportunity after arrest. Any inordinate and unexplained delay diminishes its evidentiary value and raises serious doubt about the fairness of the process, as it creates the possibility of the accused being shown to the witnesses and of fading memory, particularly where the witnesses had only a fleeting glimpse.
19. In Md. Sajjad @ Raju @ Salim v. State of West Bengal (AIR 2017 SC 642), the Supreme Court doubted the identification where the TIP was held 25 days after arrest, in absence of prior description and where the witnesses had only a brief opportunity to see the accused at night. Similarly, in Subash Shiv Shankar v. State of U.P. (AIR 1987 SC 1222), delay of about 3 weeks in holding TIP without explanation was held sufficient to create doubt, with the Court observing that such delay could allow the witnesses to see the accused beforehand. Further, where there was a gap of about 4 months between the incident and TIP, the Court in Mohd. Abdul Hafeez v. State of A.P., AIR 1983 SC 367 found it unsafe to rely upon such identification due to fading memory. Likewise, in Musheer Khan v. State of M.P. (2010) 2 SCC 748, delay of over one month from arrest and about 3 months from the incident without explanation led the Court to discard the identification evidence. Thus, it is evident that unexplained delay?even of a few weeks?may render identification doubtful, and where the delay is substantial, the identification cannot safely be made the sole basis of conviction.
20. Applying the aforesaid settled principles to the facts of the present case, this Court finds that the prosecution case against the appellant Ram Das rests entirely upon his identification. However, the record reveals serious infirmities in the identification process. The F.I.R. lodged on 28.04.1984 does not contain any description of the unknown accused. Similarly, the statements of witnesses recorded during investigation and the testimony of the Investigating Officer (P.W.-5) do not indicate that any descriptive features of the accused were ever noted prior to the Test Identification Parade. Even in their depositions before the Court, the witnesses have merely stated that they identified the accused, without disclosing any distinctive features or basis of such identification.
21. Further, the appellant was arrested on 31.05.1984, whereas the Test Identification Parade was conducted on 24.09.1984, i.e., after a delay of about 3 months and 24 days, for which no plausible explanation has been furnished by the prosecution. In view of the law laid down in Md. Sajjad @ Raju @ Salim v. State of West Bengal (AIR 2017 SC 642), such inordinate and unexplained delay, coupled with absence of prior description and the fact that the incident occurred at night with only a limited opportunity to observe the assailants, renders the identification evidence highly doubtful.
22. In these circumstances, this Court is of the considered view that it would be unsafe to sustain the conviction of the appellant solely on the basis of such weak and unreliable identification evidence. The prosecution has failed to establish the guilt of the appellant beyond reasonable doubt, and the appellant is entitled to the benefit of doubt. Accordingly, the appeal deserves to be allowed. The conviction and sentence of the appellant Ram Das under Section 394 IPC are hereby set aside, and he is acquitted of the charges. The appellant is on bail; his bail bonds are discharged. The appeal with regard to appellant no.1 has already been abated by this Hon'ble Court.
23. The State Legal Services Authority is hereby directed to remit the requisite fees to Smt. Babita Upadhyay, learned Amicus Curiae, in consideration of her valuable assistance rendered to this court.
(Anil Kumar-X,J.)
April 2, 2026
Mukesh
