Allahabad HC Acquits Two of 1985 Robbery After 39-Year Appeal, Faults Delayed TIP and Absent Corroboration
Justice Santosh Rai set aside a 1987 conviction under Section 392 IPC, holding that a 42-day delayed identification parade unsupported by independent witnesses or recovery could not sustain conviction of strangers to the complainant.
Nearly four decades after a robbery on a rural road in Budaun district, the High Court of Judicature at Allahabad has acquitted two of the four original convicts. Justice Santosh Rai, sitting singly, allowed Criminal Appeal No. 1470 of 1987 on 29 July 2026, reserved on 6 July 2026, and set aside the judgment of the Special Judge, Budaun dated 15 May 1987 insofar as it convicted Kanhai and Kallu under Section 392 IPC and sentenced each to five years’ rigorous imprisonment. The other two co-accused — Harpal and Dalchand — had died during the pendency of the appeal; their portion stood abated by order dated 26 November 2025. The court found that a 42-day gap before the test identification parade, the failure of the parade’s own independent witnesses to identify the two appellants, and the complete absence of any recovery together left the prosecution case resting on nothing beyond the sole, uncorroborated in-court identification by the complainant.
The Robbery of 21 February 1985 and the Trial Court’s Conviction
The prosecution case was that on 21 February 1985 at about 6.30 p.m., complainant Radhey Shayam Sharma was cycling from Bisauli to his village Palia when four miscreants waylaid him on the road between village Kot and Bisauli. They held a knife to his chest, searched him, and took two containers of desi ghee weighing 4 kg each, Rs. 126.50 in cash, and certain grocery articles. The written report was lodged at Police Station Bisauli against unknown persons and registered as Crime No. 69 of 1985 under Section 392 IPC.
The accused were later arrested, put up for a test identification parade, and charge-sheeted. The Special Judge, Budaun convicted all four and sentenced each to five years’ rigorous imprisonment in Special Sessions Trial No. 98 of 1985. That conviction is what the present appeal challenged.
Why the Identification Parade Could Not Inspire Confidence
The FIR named no accused — it was lodged against unknown persons — making identification the pivotal issue. Kanhai was admitted to jail on 21 March 1985 and Kallu on 20 March 1985, yet the test identification parade was held only on 6 May 1985, a gap of over 42 days from their admission to jail and more than two and a half months from the date of the incident. The prosecution offered no explanation for this delay.
Justice Rai applied the well-settled position that unexplained and inordinate delay in holding a TIP, where the accused were not previously known to the witness, seriously dilutes the evidentiary value of the proceedings. The delay affords the accused a reasonable opportunity — whether by design or otherwise — of being shown to witnesses before the parade is conducted.
What made the matter worse for the prosecution was the content of the parade report itself. Two independent witnesses participated: Ram Dass (P.W.1) and Ganga Sahai (P.W.3). Ram Dass identified only the deceased appellants Dalchand and Harpal. Ganga Sahai identified only the deceased appellant Dalchand. Neither identified Kanhai or Kallu at the parade. The court observed that this was not a case where a witness had identified all accused at the parade and his court testimony was therefore corroborated. Here, the independent witnesses had wholly failed to connect the surviving appellants to the offence at the identification stage.
Procedural Lapses Under the U.P. Police Regulations and Jail Manual
Justice Rai further noted that the investigating officer had not conducted the identification proceedings in strict conformity with the safeguards prescribed under the U.P. Police Regulations and the U.P. Jail Manual. The judgment set out the applicable procedure in detail: Paragraph 116 of the U.P. Police Regulations and Paragraph 416 of the Jail Manual (renumbered Paragraph 443 in the 2022 edition) govern TIPs for undertrial prisoners.
The prescribed safeguards include holding the parade inside jail, not at a police station; ensuring the accused retains the same appearance as at arrest; keeping witnesses separated and bringing them individually; mixing the accused with persons of similar age, height, complexion and build; and conducting the parade under the exclusive control of a Judicial Magistrate. The object is to prevent any possibility of the accused being shown to witnesses before the parade and to ensure reliability. The court held that non-observance of these safeguards, coupled with the delay, further diminished the reliability of the proceedings and that the accused were entitled to the benefit of these material omissions and procedural lapses.
The Legal Framework on TIP as Corroborative Evidence
Justice Rai drew on three Supreme Court decisions to articulate the governing principles. In Budhsen v. State of U.P., (1970) 2 SCC 128, the Supreme Court held that evidence of identification must ordinarily clarify how and under what circumstances the witness came to pick out the particular accused, and that a TIP is a safe rule of prudence to look for corroboration of court testimony regarding strangers. In Malkhansingh v. State of M.P., (2003) 5 SCC 746, the Supreme Court stated that the substantive evidence is the identification in court, while the TIP is corroborative; failure to hold a TIP is not invariably fatal, but the weight to be attached to dock identification without a preceding TIP is a matter for the court of fact. In State of H.P. v. Lekh Raj, (2000) 1 SCC 247, the court reiterated that evidence of first-time in-court identification of a stranger is inherently weak in character.
Applying these principles, Justice Rai held that where the TIP itself is vitiated by unexplained delay and fails to connect the appellants through any independent witness, it ceases to furnish any corroboration at all. The court is then left with nothing but the bare, uncorroborated word of the complainant, given more than two years after the occurrence, identifying persons who were total strangers to him at the time of the incident.
No Independent Eyewitness and No Recovery
The court also found that no reliable independent public witness to the actual occurrence had been examined. P.W.1 Ram Dass and P.W.3 Ganga Sahai did not figure in the FIR at all and were introduced for the first time before the trial court. Even setting that aside, they had failed to identify the appellants at the parade.
There was also no recovery — not of the looted desi ghee, cash, grocery articles, or any weapon — from the possession of Kanhai or Kallu. Recovery could have furnished independent corroboration to the prosecution story, but none existed.
Why the Trial Court Erred
The Special Judge had placed implicit reliance on the sole testimony of complainant Radhey Shayam Sharma (P.W.2), who identified the appellants for the first time in the witness box. Justice Rai acknowledged that the sole testimony of a robbed witness can, in appropriate cases, sustain a conviction, but held that such testimony must be of unimpeachable quality when the accused were strangers and the case rests entirely on identification.
The trial court, in the High Court’s assessment, had failed to appreciate the cumulative effect of the delayed TIP, the failure of the independent witnesses to identify the appellants at the parade, and the total absence of any other corroborative material. That cumulative deficit meant the prosecution had not proved the identity of Kanhai and Kallu as the perpetrators beyond reasonable doubt. The benefit of the resultant doubt must go to the appellants.
Order
The appeal was allowed. The judgment and order dated 15 May 1987 passed by the Special Judge, Budaun in Special Sessions Trial No. 98 of 1985 was set aside insofar as it convicted Kanhai and Kallu under Section 392 IPC and sentenced each to five years’ rigorous imprisonment.
Both appellants were acquitted of the charges under Section 392 IPC. As they were on bail, their bail bonds and sureties were discharged and they were directed not to surrender. If in custody, they were to be released forthwith unless wanted in any other case.
The trial court record was directed to be sent back forthwith to the trial court along with a copy of the judgment. The Registry was directed to communicate the order to the concerned trial court through the District and Sessions Judge within three days.