Ram Swarup @Chhotey Chela vs State

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 370 of 1985
AFR
Reserved On 30.10.2025
Delivered On 29.04.2026
Ram Swarup @Chhotey Chela
…..Appellant(s)
Versus
State
…..Respondent(s)
Counsel for Appellant(s) : Laxmi Narayan Rathour,
R.k.srivastava
Counsel for Respondent(s) : D.g.a.
Court No. - 47
HON'BLE J.J. MUNIR, J.
HON'BLE SANJIV KUMAR, J.
(Delivered by Hon’ble Sanjiv Kumar,J.)
1. This appeal is directed by appellant Ram Swarup alias Chhotey
Chela alias Mehtab Singh against the judgment and order of Mr. R.C.
Gupta, the then Special Judge (Anti-Dacoity), Jalaun at Orai, dated
08.01.1985 passed in Sessions Trial No.37 of 1983, State v Ram
Swaroop, arising out of Case Crime No.503 of 1982, under Section 302
read with 34 Indian Penal Code (in short IPC) and Section 14 of U.P.
Dacoity Affected Areas Act No.31 of 1983, Police Station- Konch,
District- Jalaun.
2. By the impugned judgment and order the appellant Ram Swarup
has been held guilty and convicted under Section 302 read with 34 IPC
and sentenced to undergo imprisonment for life, for the offence

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punishable under Section 302 read with 34 IPC and Section 14 of U.P.
Dacoity Affected Areas Act No. 31 of 1983. The appellant was however,
not found guilty for offences punishable under Section 365 read with 511
IPC and Section 10/12 of U.P. Ordinance No.2 of 1983 and was
accordingly, acquitted of the said offences.
3. Brief facts of the prosecution case are that the first informant, Ram
Prakash son of Ram Ratan Gupta, a resident of Village- Kanausi, Police
Station- Konch, District- Jalaun, filed a written application ( tehrir ) dated
17.12.1982 (Ext. Ka-3), before Incharge Police Station- Konch, District-
Jalaun, stating therein that today i.e. on 17.12.1982 he was at his shop
alongwith his mother Smt. Ram Pyari and servant Ram Singh son of
Badri Kacchi. Kachare son of Teejan Kacchi and some persons, to wit,
Prabhu son of Sewak Nai and Mahaveer Singh son of Manohar Singh
were also present, as customers, in the first informant’s shop. A light was
there in and outside the shop. At about 06:15 p.m., four miscreants
climbed up on the shop’s platform ( chabutara ) wearing khakhi clothes.
Out of them, two miscreants entered the shop, caught hold of his hand
and tried to drag him outside. The first informant became nervous and
shouted why he would go outside and pulled down one miscreant, by
twisting his leg. Two miscreants, who were standing outside the shop
opened fire employing their firearms, causing injuries to his mother, who
fell down onto the floor of the shop. Upon their hue and cry and hearing
the shots rang out, people rushed towards the shop. This led all the four
miscreants too flee towards the North. None of those present, could
apprehend the miscreants fearing for their lives. His mother died
instantly and he had seen all the four miscreants clearly in the light,
whom he can identify if they were produced before him. All the
miscreants were young, and one of them was tall.
4. Upon this information, an FIR under Section 302 IPC in Case
Crime No.503 of 1982 was lodged at Police Station- Konch on
17.12.1983 at about 09:30 p.m. against four unknown men. After lodging
the FIR, the investigation was commenced by S.P. Singh the Station
House Officer, Police Station- Konch, who reached the place of

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CRLA No. - 370 of 1985
occurrence and collected blood stained and plain earth; blood stained
clothes of the first informant; empty cartridges and missed cartridges;
and a shoe of one of the miscreants from the place of occurrence. He
prepared fard baramadagi Ext. Ka-8 to Ext. Ka-11, respectively. After
recording the statement of first informant, the SHO inspected the place
of occurrence and prepared a site plan, Ext. Ka-12.
5. During investigation the name of the appellants and others came to
light and their test identification parade (TIP) was conducted. The
appellant was identified by the witnesses. Earlier, the inquest of the dead
body of deceased Ram Pyari was held, and thereafter, the body was sent
for autopsy, where post-mortem was conducted. The blood stained earth
and clothes etc., recovered from the place of occurrence, were sent for
chemical examination. In the chemical examination report human blood
was found on the blood stained earth and clothes. After investigation a
charge-sheet was filed against the appellant under Section- 302 read with
34 IPC, 365 read with 511 IPC and 10/12 of Uttar Pradesh Dacoity
Affected Areas Act No.31 of 1983.
6. The concerned court took cognizance and summoned the accused
and furnished him copies of relevant prosecution papers under Section
207 Cr.P.C. and thereafter, charges were framed against him under
Section 302 read with 34 IPC and Section 10/12 of Uttar Pradesh U.P.
Ordinance No.2 of 1983 and also under Section 365 read with 511 IPC
and Section 10/12 of U.P. Dacoity Affected Areas No.31 of 1983. The
accused pleaded not guilty and claimed to be tried.
7. The prosecution examined ten witnesses in support of their case,
to wit, P.W.1 Dr. E.A.K. Tiwari; P.W.2 SDM Bhagwan Das; P.W. 3
informant Ram Prakash; P.W.4 Ram Singh; P.W. 5 Constable Babu Lal;
P.W.6 Constable Chandra Shekhar Tripathi; P.W. 7 Constable Siya Ram;
P.W. 8 S.O. S.P. Singh; P.W.9 S.I. Bardani Singh and P.W.10 Constable
Shiv Paras Singh.
8. P.W. 1 Dr. E.A.K. Tiwari, has conducted autopsy of the deceased
Smt. Ram Pyari on 18.12.1982 at 02:30 p.m. while posted as a surgeon

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CRLA No. - 370 of 1985
in the male Hospital, Konch. He has stated that, she was aged about 65
years, body average built and had grey hair. Rigor mortis was present all
over the body. The body had not decomposed and some grains of sago
(sabudana) were sticking over the body. He found following ante-
mortem injuries over the body of the deceased:-
(i) Gunshot wound of entry 1.25 cm x muscle deep, circular in shape. The
margins were clear cut inverted below pomum adami, almost in the middle of
the body and there was no blackening or scorching present around the wound.
(ii) Gunshot wound of exit 1.5 cm x 1.5 cm x muscle deep below the left
scapula, the margins were lacerated and everted.
Both these injuries were corresponding to each other and the direction
was downwards, backward and everted.
Upon internal examination of injury no.1, the bullet had entered the
thoracic inlet and after entering the upper left lung passed through it
th
from back side after causing fracture to 7 rib in its course and it exists
in the line of injury no.2.
In examination of throat there was blood around cord over injury no.1.
th
The 7 rib under injury no.1 was fractured and three pieces of cork were
found and taken out. The left pleura was open having three milliliters
blood, left lung was open at two spots. Large blood vessel was also
lacerated in pieces under injury no.2. The death could have occurred
about one day ago and the cause of death of was shock and hemorrhage
as a result of ante - mortem gunshot injury. The doctor has proved the
post-mortem report as Ext. Ka-1 and stated that these injuries could have
been caused on 17.12.1982 at about 06-06:15 or 06-06:30 p.m.
9. In cross-examination he disagreed, that in all the gunshot wounds
there has to be blackening, scorching and tattooing present. He also does
not agree that because the bullet had passed through the body, and pieces
of cork were found in the body, then on this basis alone, it could be
observed that the victim must have been shot from a close range. He has
said that as no blackening or tattooing was present around injury no.1, it

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CRLA No. - 370 of 1985
could have been caused from a distance of more than three feet. Since,
the pieces of cork were found, the assailants might have been at a
distance of two yards from the deceased.
10. P.W. 2 S.D.M. Bhagwan Das is a formal witness before whom the
test identification parade (TIP) of the appellant Ram Swarup @ Chhotey
Chela @ Mehtab Singh was held in District- Jalaun at Orai. He has
stated that he recorded the statement of appellant in column no.1, of the
memo and his specific mark of identification was mentioned in column
no.4. The steps taken to conceal them is also mentioned therein. He has
stated that all the witnesses were produced one by one for the purpose of
test identification, and thereafter, each witness was taken at a place so
that he could not gesticulate to other witness. He has stated that
witnesses Ram Prakash and Ram Singh had correctly identified the
appellant not committing any mistake. The witness has proved the test
identification memo as Ext. Ka-2. He has also proved an application of
the counsel for the accused given in jail as Ext. Kha-1 and other
applications as Exts. Kha-2, 3 and 4.
11. P.W.3 Ram Prakash is the first informant of the case. He has stated
that at the time of the incident he was sitting in his shop alongwith his
mother, Khachere, Prabhu Nai, Mahaveer and Ram Singh. The bulb was
lit. In the meantime, four miscreants came carrying rifles/ guns and tried
to pull him out of the shop. He lay down in the shop to foil their attempt.
In the meantime, his mother came to his rescue. The miscreants standing
outside the shop, opened fire as a result his mother sustained injuries and
fell to the ground dead. The villagers came running, carrying guns, to
save them and upon return fire by the villagers, all the miscreants
escaped towards the North. He had identified all the miscreants in the
light produced by the bulb, and thereafter, he lodged the FIR at Police
Station- Konch. He has proved tehrir Ext.Ka-3 and stated that a shoe of
one of the miscreants was left back in his shop. He has also stated that he
had gone to the jail to identify the miscreants and identified one of the
them, who is present in Court. The witness has testified that he identified
the appellant Ram Swarup @ Chhotey Chela @ Mehtab Singh in jail at

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CRLA No. - 370 of 1985
Orai. He had seen the appellant at the time of the incident in his shop,
and, thereafter, at the time of identification in jail, and in between he had
not seen him nor knew him since before. The witness has identified one
shoe of the miscreants, which was left behind in the shop as material
Ext.1.
12. In his cross-examination, the witness has said that his shop is
inside his house with an area of 10 feet x 10 feet. There is a platform
( chabutara ) outside the shop with a height of about 4 feet from the
ground. His mother was sitting inside the shop, when the miscreants
arrived. His servant was also sitting inside the shop and tried to rescue
and his mother also clung to him, the customers also tried to rescue him.
The miscreants who were outside the shop, fired in the air, as a result
whereof the customers fled away from the spot and his servant also
moved away and stood still. His mother kept clinging to him. Then the
miscreants fired three rounds at him inside the shop, but it hit his mother.
At the time of firing the other two miscreants had left him and his
mother alone was clinging to him. Three pellets hit the wall of the shop
and the fourth shot hit his mother. The gun was discharged from a
distance of about 3 feet. His shop is at the end of the village. The
incident took place for about five minutes. The miscreants were young.
He could not notice any kind of mark of identification on the miscreants.
After about 6 months from the date of the incident, one constable came
to him and said that the miscreants had been arrested and he would have
to go to jail to identify them. He was not shown the miscreants at the
police station. He identified the miscreants in jail. The miscreants did not
cover their faces at the time of the incident. Their faces were open and
they were wearing police uniforms. In Jail 10 people were standing in a
queue, wearing the same kind of kurtas . All the 10 persons were pale
black colour, having the same height with no mustaches. The miscreants
had come to kidnap him for ransom. The witness has denied the
suggestion that the appellant was shown to him at the police station.
13. P.W. 4 Ram Singh, is the servant of the informant. He has said that
at the time of incident, he himself, the first informant and first

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CRLA No. - 370 of 1985
informant’s mother were present. Four miscreants carrying guns arrived.
Two of the miscreants entered inside the shop and commenced dragging
the first informant Ram Prakash out of his shop and the rest of the
miscreants opened fire. Ram Prakash’s mother was clinging to him.
Therefore, when the miscreants opened fired to shot him, the bullet hit
his mother. Upon the hue and cry the miscreants ran away. He had
identified the faces of miscreants in electric light from the bulb and had
gone to the District Jail to identify the miscreants. He had identified one
of the miscreants and after gesturing towards the appellant in Court, the
witness has said that he had identified him in jail. He had seen the
appellant at the time of the incident, and thereafter, during the test
identification in jail. In between he had not seen the appellant elsewhere
and also did not knew him earlier.
14. In his cross-examination he has said that, he was a servant at the
first informant’s shop since a year and a half last. The electricity supply
remains uninterrupted round the clock in village Kanausi. He was sitting
one step away from the first informant. When the miscreants tried to
drag Ram Prakash out of the shop then he, Prabhu Nai and Ram
Prakash’s mother tried to save him. Ram Prakash twisted the leg of one
of the miscreants and pulled him down. The miscreants emerged from
the shop and started shooting. The witness ran into the house whereas
Prabhu Nai ran inside the shop. After the miscreants ran away, he
returned. The entire incident took place within five minutes. After first
round of fire he ran inside the house. He had seen the faces of the
miscreants. The miscreants did not try to destroy the bulb. All the
persons whose test identification was conducted were standing in a line
in jail. They were wrapped in blanket upto the chest, their kurta and shirt
was not visible. All the four miscreants were pale, black in complexion.
He did not pay any attention to marks of identification. All of them were
of the same height and were aged about 28 years. The witness has stated
that the appellant was not brought to village and neither he nor Ram
Prakash were taken to police station. The witness has denied the

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CRLA No. - 370 of 1985
suggestion that the appellant was identified at the police station and he
was not present at the time of incident.
15. P.W. 5 Constable Babu Lal, is a formal witness who has stated that
on 20.08.1983 he was posted as a Constable at Police Station-
Madhaogarh and was on sentry duty at the station. During this period of
time the appellant Ram Swarup was lodged in the lockup. He did not
give any person opportunity to see or talk to him. The appellant was kept
masked in a lockup.
16. P.W. 6 Constable Chandra Shekhar Tripathi, is also a formal
witness, who has said that on 20.08.1983 at Police Station- Madhaogarh
at 06:45 a.m. he and Constable Ravi Paras Singh brought the appellant
Ram Swarup @ Chhotey Chela, masked, from police station-
Madhaogarh to Court and from the Court to the District Jail- Orai. The
appellant was kept masked and nobody was given an opportunity to see
or talk to him.
17. P.W. 7 Constable Siya Ram is also a formal witness who has said
that on 20.08.1983 he was posted at Police Station- Madhaogarh and was
on duty on 20.08.1983 from 03:00 a.m. to 06:00 a.m. He was on sentry
duty at the lockup, where the appellant Ram Swarup @ Chhotey Chela
was kept masked ( baparda ). He did not give any person opportunity to
see or talk to him.
18. P.W. 8 S.O. S.P. Singh, has proved the check FIR scribed by
Constable Heera Lal and G.D. No. 39 dated 17.12.1982 at 07:30 p.m. He
has stated that he commenced investigation in the case and recorded
statements of the informant Ram Prakash and Constable Heera Lal at the
police station. He searched for the accused and reached the place of
occurrence by night. On 18.12.1982, the inquest of the deceased Ram
Pyari was held before the Panch witnesses and a report prepared, which
he proved as Ext. Ka-5. He has also proved related papers as Exts. Ka-6
and 7. He has stated that the dead body was sealed and handed over to
Constables Dharmendra Kumar and Surendra Singh, alongwith related
papers for the purpose of autopsy. He has stated that he inspected the

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CRLA No. - 370 of 1985
place of occurrence and collected blood stained earth and plain earth and
sealed them in separate boxes which he has proved as Exts. 2 and 3 and
stated that he prepared a fard baramadagi , which he proved as Ext. Ka-
8. The witness has further proved blood stained clothes, four empty
cartridges, one missed cartridge of .12 bore and its memo of recovery.
He has also said that he collected the shoe found at the place of
occurrence and prepared a fard baramadagi, thereof.
19. During investigation it was found that incident was caused by a
gang of Fakkad dacoits. The appellant Ram Swarup was brought to jail
from Police Station- Madhaogarh, where his test identification was
conducted on 22.08.1983 and upon result of the test identification,
charge-sheet Ext. Ka-3 was filed in Court. He has also stated that blood
stained clothes and blood stained earth were sent for chemical
examination.
20. In his cross-examination he has said that in the site-plan, he has
not shown the place from where the fire opened. He has shown place K
and K-1 where the miscreants were standing and from where they had
shot. The empty cartridges were recovered from under the platform
( chabutara ) and the wad was found from a place ‘O’ inside the shop.
The distance of place K and K-1 from the place where the dead body
was lying was about 2- 3 steps. The distance of Konch from Madhaogarh
is about 55-60 kms. He has denied the suggestion that the accused was
shown to the witnesses before identification.
21. P.W. 9 S.I. Bardani Singh, has said that on 18.08.1983, he
alongwith S.I. Shankar Dayal Tripathi, and six constables, was busy in
search of the members of Fakkad dacoit gang, when at about 09:00 p.m.
upon a secret information he reached near the well on Jogi Bagh at 10:00
p.m. and arrested accused Ram Swarup and Krishna from there. Upon
their search a country-made pistol (tamancha) and two cartridges were
recovered from the possession of Ram Swarup and one country-made
pistol and a cartridge from the possession of Krishna, which was sealed
at the place of recovery. They confessed to committing dacoity and

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CRLA No. - 370 of 1985
murder elsewhere. Therefore, they were kept masked ( baparda ) and
brought to the police station Madhaogarh and lodged there on
20.08.1983. The appellant was kept masked since arrest, until he was
taken to the police station. Nobody was given an opportunity to see or
talk to him.
22. P.W. 10 Constable Shiv Paras Singh, is again a formal witness
who has said that on 20.08.1983 he was on sentry duty from 06:00 a.m.
to 03:00 p.m. at Police Station- Madhaogarh and the accused and another
were kept there in lockup, masked. The same day at about 06:45 a.m. he
and other constable brought accused and another, before the Magistrate
for remand, duly masked and thereafter, they were lodged in jail. During
the entire period the accused was kept masked and nobody was given
opportunity to identify or see him.
23. After closure of prosecution evidence, the statement of the
appellant was recorded under Section 313 CrPC, where he has denied
the prosecution case and stated that the police had got him identified
from witnesses at the police station and the witnesses are deposing
against him due to enmity. He has further said that on 16.08.1983 he was
arrested from his house by the police.
24. In defence the appellant had examined two witnesses, to wit, D.W.
1 Mahendra Singh and D.W. 2 Jagdish Prasad.
25. D.W. 1 Mahendra Singh has stated that his cousin Vijay Singh is
Pradhan of village- Kanheri. He knows the appellant Ram Swarup since
the last 4-5 years and about 4-5 years ago the appellant lived at his
maternal uncle’s (mama) house in village- Kanheri.
26. D.W. 2 Jagdish Prasad has stated that he is the Gram Pradhan of
Gopalpur and he knows accused Ram Swarup, who was arrested from
his house about one year and three months ago by the police and after
keeping him at the police station for 3-4 days he was challaned in this
case.

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CRLA No. - 370 of 1985
27. In his cross-examination he has said that after arresting the
accused three more persons were arrested by the police after 5-6 days.
28. The Trial Court after hearing the argument and upon a perusal of
the evidence on record, came to the conclusion that the prosecution has
been able to prove its case beyond reasonable doubt, and, accordingly,
convicted the appellant and sentenced him for the offences punishable
under Section 302 read with 34 IPC and Section 14 of U.P. Dacoity
Affected Areas Act No.31 of 1983, as indicated above. The appellant
was, however, acquitted of the offence punishable under Section 365
read with 511 IPC and Section 10/12 of U.P. Ordinance No.2 of 1983.
29. We have heard Mr. Laxmi Narayan Rathour, learned counsel for
appellant and Mr. Ghanshyam Kumar, Learned Additional Government
Advocate-I, on behalf of State, and perused the evidence on record.
30. It is submitted on behalf of the appellant, that the prosecution
could not establish that the appellant was connected with members of
Fakkad Dacoit Gang. It is also submitted that the evidence against the
appellant is not reliable and actually the appellant was arrested from his
house by the police on 16.08.1983 and after keeping him at the Police
Station for two days, he was lodged in District Jail- Orai. It is also
submitted that the appellant belongs to a poor family and is currently
aged about 65 years.
31. The learned A.G.A on the hand, has submitted that the prosecution
case is proved beyond reasonable doubt. There is evidence that the
appellant is one of the miscreants who committed the said offence. It is
also submitted that the first informant and his servant Ram Singh have
identified the assailants at the time of commission of the offence and,
thereafter, they identified the appellant in the District Jail during TIP.
The evidence of the prosecution is consistent, reliable and trustworthy.
Therefore, the appellant was rightly convicted and sentenced. Hence,
this appeal has no force and is liable to be dismissed.
32. In a criminal trial, the burden of proof always lies upon the
prosecution to prove its case beyond reasonable doubt. In the present

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CRLA No. - 370 of 1985
case, according to the prosecution on 17.12.1982 at about 06:15 p.m.
The informant Ram Prakash alongwith his mother Smt. Ram Pyari,
servant Ram Singh and some customers were present in his shop, when
four unknown miscreants alighted to his shop. Two of them tried to drag
the first informant out and the two others, who kept standing outside the
shop, fired at him. The shots hit his mother. As a result she died on the
spot. It is the case of the prosecution that there was a electricity bulb
illuminating his shop and the first informant had identified the
miscreants in the light sourced from the bulb. The FIR was lodged the
same day at about 19:30 which means the FIR was lodged after one hour
and 15 minutes of the incident. The distance of the place of occurrence
from the police station according to check FIR (Ext. Ka-4), is 12
kilometers. Therefore, the FIR was lodged promptly and there is no
delay in lodging the FIR. The appellant has also not raised any objection
with regard to the promptness of the FIR, which was lodged against four
unknown men.
33. The place of occurrence is the shop of the first informant in
Village- Kanausi under Police Station- Konch, District- Jalaun. The
Investigating Officer has collected blood stained earth and plain earth
from the place of occurrence, which is the shop of the first informant. He
also collected empty cartridges, missed cartridges, a bullet and a wad
from the place of occurrence. A shoe was also recovered from there
belonging to one of the miscreants, which was left there while the
miscreants were on the run. The Investigation Officer has prepared a
site-plan and the place of occurrence is shown inside the shop of the first
informant. Beside this, the first informant in his testimony has said that
the incident occurred in his shop. The servant of the first informant i.e.
Ram Singh has also testified likewise. Therefore, from the above
evidence, the place of occurrence is fully established. The appellants
have not raised any objection with regard to the place of occurrence and
also not suggested any other place of occurrence. Therefore, in the
present case, the place of occurrence is fully established.

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CRLA No. - 370 of 1985
34. According to the prosecution, the offence was committed by four
unknown miscreants. The FIR was lodged against four unknown men.
According to the prosecution, the first informant identified by the light
of an electrict bulb. During investigation, the Investigation Officer
arrested some persons, upon suspicion and a Test Identification Parade
(TIP) was held inside the jail. Out of them one of the persons was the
appellant Ram Swarup @ Chhotey Chela and the first informant Ram
Prakash and his servant Ram Singh correctly identified him during the
TIP. Thereafter, the Investigation Officer has submitted a charge-sheet
before in Court.
35. Let us see whether the appellant is one of the miscreants, who
committed the said offence. Before proceeding further, it is also relevant
to mention that the inquest of the deceased Ram Pyari, the mother of the
first informant was held and post-mortem examination also conducted
alongwith other connecting papers. According to the post-mortem report,
Ram Pyari sustained two gunshot wounds and (one entry wound and
other exit wound) and both the injuries were inter-connected each other.
It was also found that some of the internal organs were lacerated due to
the above injuries and the cause of death was shock and hemorrhage as a
result of ante-mortem gunshot injuries. Therefore, it is established that
deceased Ram Pyari was shot dead at the place of occurrence.
36. Here, in the present case, the prosecution has examined P.W.2
Bhagwan Das, S.D.M. Kannauj, District- Jalaun who conducted test
identification parade in jail. He has proved test identification memo as
Ext. Ka-2 and has said that Ram Prakash and Ram Singh correctly
identified accused Ram Swarup @ Chhota Chela. Nothing material has
come in his cross-examination to raise any doubt over the TIP conducted
inside the jail. Beside this, according to the prosecution the appellant
was arrested on 18.08.1983 by S.I. Bardani Singh (P.W.9) and his
companion policemen, upon prior information and the accused confessed
to committing this crime. Therefore, he was kept masked ( baparda ). The
prosecution has examined P.W.10 Shiv Paras Singh; P.W.5 Constable
Babu Lal; P.W.6 Constable Chandra Shekhar Tripathi; P.W. 7 Constable

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CRLA No. - 370 of 1985
Siya Ram, and from their evidence, it comes out that the appellant was
kept masked ( baparda ), after his arrest till he was lodged in the lockup
of the Police Station- Madhaogarh and also upto the time he was lodged
in jail. Nobody was given a chance to see and identify him.
37. It is argued on behalf of the appellant that he was shown to the
witnesses in the police station prior to the TIP, but in this regard, no
evidence of any kind has been adduced on behalf of the defence nor any
material thing has come out from the statement of prosecution witnesses
which could support his contention.
38. In view of the above evidence, prosecution has proved that after
his arrest upto the time the appellant was lodged in jail, nobody was
given a chance to see him. Here, in the present case, the incident
occurred on 17.12.1982. The appellant was arrested on 18.08.1983, his
test identification was carried out in jail on 09.09.1983. He was lodged
in Madhaogarh jail on 20.08.1983. P.W. 10 brought him from Orai on
20.08.1983 at 11:00 p.m. and he was lodged in jail at 04:00 p.m. on the
same day. Here, it is also relevant to note that after about 10 months of
the incident, the TIP of the appellant was conducted in jail. In support of
the prosecution case the first informant and his servant were examined in
Court after more than seven months from the date when the TIP was
conducted in jail.
39. It is settled law that TIP is not a substantive piece of evidence and
it could be used only for corroboration and contradiction, with regard to
the statement given by the witness produced in Court during trial. The
substantive evidence is that, which is given on oath by a witness in
Court.
40. Here, in the present case, according to the prosecution P.W. 3 Ram
Prakash, the first informant and P.W. 4, his servant Ram Singh, have
correctly identified the appellant in jail. Looking into the testimony of
P.W. 3 Ram Prakash, at the time of incident, four unknown miscreants
came at his shop with guns. Two of the miscreants tried to drag him
outside the shop but he resisted and lay on the ground so that they could

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CRLA No. - 370 of 1985
not drag him out, but when his mother came to his rescue. Then the
miscreants standing outside the shop opened firing which hit his mother
and she died at the spot. The first informant, in his testimony in Court,
has said that he had identified all the four miscreants in the light of bulb
and has said that he had gone to District Jail- Orai to identify the
miscreants and had identified one of them who is present in Court. He
has said that he had identified the appellant Ram Swarup @ Chhotey
Chela in jail. P.W. 4 Ram Singh has also testified to the same effect and
said that he had identified the faces of the miscreants in electric light
from the bulb. He had gone to jail to identify them and had identified
Ram Swarup @ Chhotey Chela in jail.
41. It is relevant to mention that both these witnesses have not said in
Court, that appellant Ram Swarup @ Chhotey Chela was present at the
time of incident and was one of the miscreants who had committed the
offence. They have also not stated what role the appellant played at the
time the crime was committed, and if he was one of the two miscreants,
who were standing outside the shop or one of two who opened fire at the
first informant or was he one of two miscreants who entered inside the
shop and tried to drag the first informant out. They have simply said that
they went to the District Jail and had identified him there and he is
present in Court.
42. In view of the above evidence adduced by the prosecution, it has to
be examined what is the evidentiary value of this evidence and whether
it is proper and sufficient in regard to test identification of the appellant.
In this regard a Division Bench of this Court in the case of Ashrafi and
Ram Dhani v. State, AIR (1961) ALL 153, has discussed, in detail,
about the evidentiary value of test identification parade during
investigation and also dock identification of accused in Court, the
relevant part of the holding in Ashrafi and Ram Dhani (supra) is as
follows:
“33. CONDITIONS NECESSARY FOR
ACCEPTABLE IDENTIFICATION EVIDENCE :
The Court is bound to follow the rule that evidence as to the
identification of an accused person must be such as to exclude

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CRLA No. - 370 of 1985
with reasonable certainty the possibility of an innocent person
being identified. In the very recent case of State of Madhya
Pradesh v. Manka, 1980 MFC 216, a Division Bench of the
Madhya Pradesh High Court, after examining some
Indian English and American rulings, held:
"The evidence of identity must be thoroughly
scrutinized, giving benefit of all doubt to the accused; but if
after a thorough scrutiny there appears to be nothing on the
record to suspect the testimony of the identification witnesses,
the Court ought not to fight shy of basing a conviction on
such evidence alone, because of the bare possibility that there
could be honest though mistaken identification."
With great respect we agree with their Lordships.
The following twelve questions are apt to arise and
must be answered by the Court to its satisfaction before it
can accept the evidence:--
(1) Did the identifier know the accused from before?
(2) Did he see him between the crime and the test
identification?
(3) Was there unnecessary delay in the holding of the
test?
(4) Did the Magistrate take sufficient precautions to
ensure that the test was a fair one?
(5) What was the state of the prevailing light?
(6) What was the condition of the eye-sight of the
identifier?
(7) What was the state of his mind?
(8) What opportunity did he have of seeing; the
offenders?
(9) What were the errors committed by him?
(10) Was there anything outstanding in the, features or
conduct of the accused which impressed him?
(11) How did the identifier fare at other test
identifications held in respect of the same offence?
(12) Was the quantum of identification evidence
sufficient?”
43. In the above decision, the Division Bench has discussed these
points in detail with regard to their importance, precautions to be taken
and their effect while conducting the identification, and, thereafter, the
appreciation of evidence in this regard.
44. In view of the above, for reaching a satisfaction about the
evidence of identification of the accused, we are of the considered view
that every Trial Court has to be, further, careful during dock
identification of an accused by a witness, in Court, by at least observing
following precautions :
(1) Essentials of Valid Dock Identification:

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CRLA No. - 370 of 1985
>Direct Physical Pointing:
• The witness must clearly and unambiguously point to the accused in
the dock from among the persons kept there.
• This ensures recognition is directed at the actual person present,
not merely a name or rank number from the charge sheet.
• The actual role played by the accused, in the crime committed.
(2) Precise Descriptive Recording
• The Trial Judge should record the identification with specific
noting:
> Position: e.g. “second from the left.”
> Distinct features: attire, height, facial hair, or other marks used
by the witness.
> Such detail prevents perfunctory or omnibus identification and
strengthens evidentiary reliability.
(3) Judicial Certification of Exactitude
(i) The judge has a proactive duty to endorse in the deposition that
identification was made.
(ii) This includes:
• A note that the accused in the dock was identified
• The manner of identification (e.g., “witness pointed towards the
second accused”)
• A statement of judicial satisfaction that the person identified is the
same accused.
(4) Individualization in Group Offences
(i) In cases of unlawful assembly or multiple accused, identification
must not be generic.
(ii) Witnesses must link each accused’s identity in the dock to a specific
physical act/role, to prove their active participation.
(5) Prosecutorial Initiation
(i) It specifies that the Public Prosecutor must actively ask the witness
to identify the accused in the dock.
(ii) This is a procedural duty of the prosecution, and failure to do so
“cuts at the root” of the case.
45. Beside the above, in Tukesh Singh and Others v State of
Chhatisgarh, 2025 INSC 683, the Supreme Court had held:-
“ 21. In a case where there are eyewitnesses, one situation can
be that the eyewitness knew the accused before the incident.
The eyewitnesses must identify the accused sitting in the dock
as the same accused whom they had seen committing the
crime. Another situation can be that the eyewitness did not
know the accused before the incident. In the normal course, in
case of the second situation, it is necessary to hold a Test
Identification Parade. If it is not held and if the evidence of
the eyewitness is recorded after a few years, the identification
of such an accused by the eyewitness in the Court becomes
vulnerable. Identification of the accused sitting in the Court
by the eyewitness is of utmost importance. For example, if an
eyewitness states in his deposition that “he had seen A, B
and C killing X and he knew A, B and C”. Such a statement
in the examination-in-chief is not sufficient to link the same
to the accused. The eye witness must identify the accused A,

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CRLA No. - 370 of 1985
B and C in the Court. Unless this is done, the prosecution
cannot establish that the accused are the same persons who
are named by the eyewitness in his deposition. If an
eyewitness states that “he had seen one accused assaulting
the deceased with a sword, another accused assaulting the
deceased with a stick and another accused holding the
deceased to enable other accused to assault the deceased.”
In such a case, the eyewitness must identify the accused in
the open Court who, according to him, had assaulted the
accused with a stick, who had assaulted the deceased with a
sword and who was holding the deceased. Unless the
eyewitnesses identify the accused present in the Court, it
cannot be said that, based on the testimony of the
eyewitnesses, the guilt of the accused has been proved.”
46. In Jayan v State of Kerala, LL 2021 SC 582, AIRONLINE 2021
SC 920, the Supreme Court held :
“18. It is well settled that T.I Parade is a part of investigation
and it is not a substantive evidence. The question of holding
T.I Parade arises when the accused is not known to the
witness earlier. The identification by a witness of the accused
in the Court who has for the first time seen the accused in the
incident of offence is a weak piece of evidence especially
when there is a large time gap between the date of the
incident and the date of recording of his evidence. In such a
case, T.I Parade may make the identification of the accused
by the witness before the Court trustworthy.
47. In Kattavellai v. State of Tamil Nadu, 2025 SCC Online SC
1439, the Supreme Court has held:
“ no provision of law casts an obligation upon the investigating
authorities to conduct a test identification parade. If it is conducted,
the provision that governs is Section 162, Cr.P.C. The onus to show
that the T.I.P. has been conducted in accordance with law lies on the
prosecution, and only after this burden stands prima facie discharged,
does the question of considering objections in this regard arise. It is
not a substantive piece of evidence. Its only purpose is for the
investigating authorities to analyse the correctness, or lack thereof, of
the direction in which they are steering the investigation. The
prosecution must establish that prior to the test identification parade
being conducted, the witness had no opportunity to see the accused. In
other words, the accused must be kept ‘baparda’. If the above has not
been ensured, the evidence of the T.I.P. becomes inadmissible. It has
also been held that if, prior to the T.I.P. the witness has the opportunity
to see even the photograph of the accused person, such process
becomes inconsequential”.

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48. In view of the above legal position, it is clear that Section 9 of the
Indian Evidence Act, 1872 makes the identification of accused
admissible as ‘relevant fact’ in a Court of Law. It is only the
identification of an accused in Court, which is substantive evidence.
Whereas, evidence of identification in test identification parade is not
substantive one and the same can be used only to corroborate the
identification of the accused by the witness in Court. After about 10
months from the incident, TIP of accused in jail was conducted and more
than 07 months thereafter, the statements of P.W3 and P.W.4 were
recorded in the Court. Such a long delay, coupled with non disclosure of
presence of appellant and role played by him at the time of crime and
other necessary details shows that the dock identification conducted by
the prosecution during testimony of P.W.3 and P.W.4 in Court, was not
proper, reliable and trustworthy. Thus the prosecution has failed to prove
that the appellant participated in the crime. There is no other evidence
adduced by the prosecution connecting the appellant to the crime.
49. In view of the above, we come to the conclusion that prosecution
have failed to prove its case beyond reasonable doubt, that the appellant
was one of the assailants involved in the commission of the offence.
There is also no evidence that the offence was committed by Fakkad
dacoit gang and the appellant was one of the members of that gang.
Therefore, the prosecution has failed to prove its case beyond reasonable
doubt. Thus, the learned Trial Judge has failed to appreciate the evidence
on record, correctly and thereby came to the wrong conclusion of guilt of
the appellant.
50. In view of the above, the instant criminal appeal is, accordingly,
allowed. We set aside the impugned judgment and order dated
08.01.1985 passed in Sessions Trial No.37 of 1983 and appellant Ram
Swarup @ Chhotey Chela is acquitted of the offence under Section
302 read with 34 IPC and Section 14 of U.P. Dacoity Affected Areas Act
No.31 of 1983.

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51. The appellant Ram Swarup @ Chhotey Chela is on bail. His bail
bonds and personal bonds are cancelled and the sureties discharged. The
appellant Ram Swarup @ Chhotey Chela , need not surrender.
52. The appellant Ram Swarup @ Chhotey Chela shall execute a
personal bond to the sum of Rs. 25,000/- under Section 481 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section
437-A of the Cr.P.C.) for his appearance, before the appellate court, in
the event of an appeal being preferred against his acquittal.
53. Let a copy of this order be sent to the Trial Court concerned
alongwith the Trial Court record for information and necessary
compliance.
(Sanjiv Kumar,J.) (J.J. Munir,J.)
April 29, 2026
AdityaG
Digitally signed by :-
ADITYA GAUTAM
High Court of Judicature at Allahabad