HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL No. - 2837 of 1984 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. Versus Counsel for Appellant(s) : Abha Gupta, G.P.Dixit Counsel for Respondent(s) : D.G.A. Ram Singh And Others .....Appellant(s) State of U.P. .....Respondent(s) 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. CRLA No. 2837 of 1984 2 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. CRLA No. 2837 of 1984 3 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 CRLA No. 2837 of 1984 4 Mrs. Vani Ranjan Agrawal,J.) Digitally signed by :- PRAVESH KUMAR MISHRA High Court of Judicature at Allahabad Digitally signed by :- PRAVESH KUMAR MISHRA High Court of Judicature at Allahabad