RAM SINGH AND OTHERSversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 2837 of 1984

Ram Singh And Others
                                                              .....Appellant(s)
                                   Versus
State of U.P.
                                                            .....Respondent(s)

Counsel for Appellant(s)                    :   Abha Gupta, G.P.Dixit
Counsel for Respondent(s)                   :   D.G.A.

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. Heard Ms. Abha Gupta, learned counsel for the appellants and learned Sri
Rahul Asthana, learned A.G.A. on behalf of the State.

2. The present Criminal Appeal has been preferred against the judgment and
order dated 09.10.1984 passed by the Learned Special Judge, Dacoity
Affected Area, Banda, in S.T. No. 20 of 1983, whereby the appellants were
convicted and sentenced under Section 304 I.P.C. to ten years' rigorous
imprisonment and under Section 147 I.P.C. to one year's rigorous
imprisonment. All sentences shall run concurrently.

3. The prosecution's case, in brief, is that upon receipt of information that
Natthu Singh and his associates were present in the forest area near Sharda
Ahir, the complainant, Shri Ram Pal Singh, S.O., Police Station Baberu,
District Banda, along with the police force and public witnesses, proceeded
to apprehend them.

4. The police party was divided into three groups and surrounded the area.
At about the evening hours, when they approached near the dera of Sharda
Ahir, Natthu Singh and others started fleeing towards a nala and opened
indiscriminate fire upon the police party with the intention to kill them. The
police also retaliated in self-defence. During the exchange of fire, Constable
Rajendra Singh sustained a gunshot injury on his thigh and later succumbed
to the same.

5. On the basis of a written report, a First Information Report was lodged,
and after investigation, a charge-sheet was submitted under Sections
302/149, 148, and 307/149 I.P.C.
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6. Charges were framed and read over to the accused persons. They pleaded
not guilty and claimed trial.

7. The prosecution examined P.W.-1 S.I. Ram Pal Singh, P.W.-2 S.I. Shri
Sheo Charan Verma, P.W.-3 Ram Singh, and P.W.-4 S.I. Ram Pal Singh.
Documentary evidence, Ext. Ka-1 to Ext. Ka-12, is available on record.

8. After hearing the arguments advanced by both parties and upon
appreciation of the evidence on record, the trial court convicted the accused
persons, holding that they formed an unlawful assembly and, in furtherance
of their common criminal object, opened fire on the police party, thereby
causing the death of Constable Rajendra Singh.

9. Aggrieved by the judgment of conviction and sentence, the present appeal
has been preferred.

10. The principal issue for determination in this appeal is whether the
prosecution has been able to prove its case beyond reasonable doubt against
the accused persons and whether the appellants were members of the
unlawful assembly and participated in the incident.

11. During the pendency of the appeal, appellants Ram Singh and
Chandrapal @ Dhaphali expired, and the appeal qua them stands abated. The
present appeal now survives only with respect to appellant Adharwa @ Ram
Adhar.

12. A careful perusal of the testimony of P.W.-1, S.I. Ram Pal Singh, reveals
that he primarily referred to Natthu Singh and his associates; however, no
specific role or overt act has been attributed to the present appellant. The
case of the prosecution hinges upon identification of the appellant at the
spot. However, material contradictions emerge.

13. P.W.-2, S.I. Shri Shiv Charan Verma, initially stated that he identified
the accused persons at the spot; however, in court, he wrongly identified
another accused, Ram Singh, as Maiku, thereby rendering his identification
doubtful.

14. P.W.-3, Raghunath, an independent public witness, clearly stated in his
cross-examination that the accused persons were not identified at the spot
and that their names were learned subsequently.
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15. P.W.-2 S.I. Shiv Charan Verma and P.W.-3 Raghunath have attributed
the fatal shot to Natthu Singh. Thus, even according to the prosecution
witnesses, no evidence connects the appellant with the act causing death. It
is noteworthy that the appellant was not apprehended at the spot; no weapon
or incriminating article was recovered from his possession; no evidence has
been led to show that he was a member of the Natthu Singh gang; and no
criminal antecedents have been proved.

16. The incident is stated to have occurred during the evening hours, amidst
indiscriminate cross-firing and in a situation of chaos. In such circumstances,
the possibility of mistaken identity cannot be ruled out, particularly when
prosecution witnesses themselves admit darkness and lack of visibility at the
time of occurrence.

17. It is well settled that in criminal cases, the prosecution must prove its
case beyond reasonable doubt. Where identification of the appellant at the
spot is doubtful, conviction cannot be sustained, and the benefit of doubt
must go to the accused.

18. The Hon'ble Supreme Court has consistently held that where two views
are possible, the one favourable to the accused must be adopted. Conviction
cannot be based on uncertain and unreliable identification.

19. From a cumulative analysis of the evidence on record, this Court finds
that:-

The presence of the appellant at the spot is not proved beyond reasonable
doubt;

The identification evidence is unreliable and contradictory;

There is no recovery of any firearm from the appellant; and

20. The prosecution has failed to establish that the appellant was a member
of the alleged unlawful assembly or shared any common criminal object.

21. It is further noteworthy that the prosecution has utterly failed to establish
any linkage of the appellant with the alleged gang of Natthu Singh. There is
no evidence on record to show that the appellant was ever a member of any
organised gang led by Natthu Singh or that he had previously acted in
concert with the said accused in the commission of any offence.
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                                    22. The prosecution has also failed to bring on record any material to show
                                    that the appellant had ever been involved in similar activities or was known
                                    to be associated with such unlawful assemblies.

                                    23. The trial court failed to properly appreciate the material infirmities and
                                    recorded the conviction of the appellant on insufficient and doubtful
                                    evidence.

                                    24. The judgment and order of conviction are not sustainable in the eyes of
                                    law, and the appellant no.2 is entitled to the benefit of doubt.

                                    25. Accordingly, the appeal deserves to be allowed. The appeal is allowed.
                                    The judgment and order of conviction passed by the trial court are set aside,
                                    and the appellant no.2 is acquitted of all charges.

                                    26. The appellant no.2 is on bail. His bail bonds are cancelled, and the
                                    sureties are discharged.

                                    27. A copy of this judgment along with the trial court record be transmitted
                                    to the trial court for compliance.

                                    April 15, 2026
                                    Pravesh Mishra
                                                                                 Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
PRAVESH KUMAR MISHRA
High Court of Judicature at Allahabad