Himachal Pradesh High Court
State Of H.P vs Sumit Vaidya & Ors on 24 July, 2026
2026:HHC:30607
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 310 of 2014
Reserved on: 16.07.2026
.
Date of Decision: 24.07.2026
State of H.P. ...Appellant
Versus
Sumit Vaidya & Ors ...Respondent
of
_______________________________________
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt
Whether approved for reporting?1 No
For the Appellant/State : Mr Lokender Kutlehria,
Additional Advocate General
For the Respondents : Mr Ankit Dhiman, Advocate.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment dated
12.05.2014 passed by the learned Chief Judicial Magistrate, Kullu,
H.P. (learned Trial Court) vide which the respondents (accused
before the learned Trial Court) were acquitted of the commission of
offences punishable under Sections 147, 341, 323 and 149 of the
Indian Penal Code (IPC). (The parties shall hereinafter be referred to in
the same manner as they were arrayed before the learned Trial Court for
convenience).
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. Briefly stated, the facts giving rise to the present appeal
are that the police presented a challan before the learned Trial Court
against the accused for the commission of offences punishable
.
under Sections 341, 147, 149 and 323 of the IPC. It was asserted that
the informant Prema Devi (not examined) was running a dhaba in
the name and style of Nisha Dhaba at Hathithan. The accused, Prem
Lal, Sumit Vaidya, Raju and three other boys came to her dhaba on
of
02.05.2006 at about 06.00 p.m. They enquired about Budhi Singh.
The informant replied that he had gone towards the backyards. All of
rt
them went to search for Budhi Singh. They brought him near the
dhaba after some time, accused him of stealing Prem Lal’s
motorcycle, and started beating him. The informant objected and
told the assailants to take Budhi Singh to the police station if he had
committed the theft. Prem Lal asked Budhi Singh to board the
motorcycle, and both of them proceeded towards the Police Post.
The other person followed the motorcycle in a car. Budhi Singh got
off the motorcycle near Y.M. Hospital and ran towards the river.
Prem Lal and his friends ran after him, shouting thief. Budhi Singh
jumped into the river, and he could not be found. The incident was
witnessed by Khem Chand (PW5), Rakesh Kumar and other persons.
The matter was reported to the police, and an entry (Ex.PW10/A) was
registered in the police station. Inspector Badri Singh (PW11) went
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for the verification of the information. Prema Devi made a statement
(Ex.PW11/A) which was sent to the Police Station, where FIR
(Ex.PW11/B) was registered. Inspector Badri Singh investigated the
.
matter. He prepared the site plans (Ex.PW11/C and Ex.PW11/D) and
recorded the statements of witnesses as per their version. He seized
the motorcycle and car vide memos (Ex.PW8/A and Ex.PW8/B).
Subsequently, the dead body of Budhi Singh was recovered. An
of
inquest on the dead body was conducted. Dr Bhupender Chauhan
(PW6) conducted the postmortem examination and found that the
rt
cause of death was head injury and drowning. He issued the report
(Ex.PW6/A). The statements of witnesses were recorded as per their
version, and after the completion of the investigation, the challan
was prepared and presented before the learned Trial Court.
3. Learned Trial Court found sufficient reasons to summon
the accused. When the accused appeared, a notice of accusation was
put to them for the commission of offences punishable under
Sections 147, 341 and 323 read with Section 149 of the IPC, to which
they pleaded not guilty and claimed to be tried.
4. The prosecution examined 13 witnesses to prove its case.
Amriti (PW1), Promila (PW4), Khem Chand (PW5) and Dinesh
Sharma (PW7) did not support the prosecution’s case. Om Prakash
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(PW2) is the father of Budhi Singh, to whom the incident was
narrated. Amar Nath (PW3) was also told about the beatings being
given to Budhi Singh. Chand Kumar (PW8) witnessed the recovery.
.
SI Durga Dass (PW9) went to the spot after the discovery of the dead
body. HHC Mohar Dass (PW10) proved the entry in the daily diary.
Inspector Badri Singh (PW11) investigated the matter. Bala Ram
(PW12) is an eyewitness. Inspector Sarwan Kumar (PW13) prepared
of
the challan.
5. The accused, in their statements recorded under Section
rt
313 of the Code of Criminal Procedure (CrPC), denied the
prosecution’s case in its entirety. They claimed that they were
innocent and that they were falsely implicated. They did not produce
any evidence in their defence.
6. Learned Trial Court held that the prosecution had only
examined Bala Ram (PW12) as the witness to the incident. The
informant, Prema Devi, was not examined. The incident occurred on
02.05.2006, and the statement of Bala Ram was recorded on
30.05.2006. No explanation was provided for the delay. He had seen
the accused for the first time on the date of the incident, and there
was no Test Identification Parade. It was highly unsafe to rely upon
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the testimony of Bala Ram to record a conviction. Hence, the learned
Trial Court acquitted the accused.
7. Being aggrieved by the judgment passed by the learned
.
Trial Court, the State has filed the present appeal asserting that the
testimony of Bala Ram was not shattered in the cross-examination,
and the learned Trial Court erred in discarding his testimony. The
statements of Om Prakash, Amar Nath and Balaram proved the
of
prosecution’s version. The testimonies of prosecution witnesses
were duly corroborated by the postmortem report. Therefore, it was
rt
prayed that the present appeal be allowed and the judgment passed
by the learned Trial Court be set aside.
8. I have heard Mr Lokender Kutlehria, learned Additional
Advocate General for the appellant/State and Mr Ankit Dhiman,
learned Counsel for the respondents/accused.
9. Mr Lokender Kutlehria, learned Additional Advocate
General for the Appellant/State, submitted that the learned Trial
Court erred in acquitting the accused. The statements of prosecution
witnesses corroborated each other in material particulars, and the
medical evidence corroborated the eye witnesses’ testimony. The
learned Trial Court erred in discarding the prosecution’s case.
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Hence, he prayed that the present appeal be allowed and the
judgment passed by the learned Trial Court be set aside.
10. Mr Ankit Dhiman, learned counsel for the
.
respondent/accused, submitted that the prosecution had not
examined the informant. The testimony of Bala Ram was doubtful
because no explanation was provided for his delayed examination.
The eyewitnesses had not supported the prosecution’s case, and
of
they were declared hostile. Learned Trial Court had taken a
reasonable view while acquitting the accused, and this Court should
rt
not interfere with the reasonable view of the learned Trial Court
while deciding an appeal against the acquittal. Therefore, he prayed
that the present appeal be dismissed. He relied upon the judgment of
the Hon’ble Supreme Court titled Harbeer Singh v. Sheeshpal, (2016)
16 SCC 418, and Tulasareddi v. State of Karnataka, 2026 SCC OnLine SC
89 in support of his submission.
11. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. The present appeal has been filed against a judgment of
acquittal. It was laid down by the Hon’ble Supreme Court in Surendra
Singh v. State of Uttarakhand, (2025) 5 SCC 433: 2025 SCC OnLine SC
176 that the Court can interfere with a judgment of acquittal if it is
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patently perverse, is based on misreading of evidence, omission to
consider the material evidence and no reasonable person could have
recorded the acquittal based on the evidence led before the learned
.
Trial Court. It was observed on page 438:
“24. It could thus be seen that it is a settled legal position that
the interference with the finding of acquittal recorded by the
learned trial Judge would be warranted by the High Court only
if the judgment of acquittal suffers from patent perversity;
of
that the same is based on a misreading/omission to consider
material evidence on record; and that no two reasonable views
are possible and only the view consistent with the guilt of the
accused is possible from the evidence available on record.
rt
13. This position was reiterated in State of M.P. v. Ramveer
Singh, 2025 SCC OnLine SC 1743, wherein it was observed:
21. We may note that the present appeal is one against
acquittal. Law is well-settled by a plethora of judgments ofthis Court that, in an appeal against acquittal, unless the
finding of acquittal is perverse on the face of the record and
the only possible view based on the evidence is consistentwith the guilt of the accused, only in such an event, should the
appellate Court interfere with a judgment of acquittal. Wheretwo views are possible, i.e., one consistent with the acquittal
and the other holding the accused guilty, the appellate Courtshould refuse to interfere with the judgment of acquittal.
Reference in this regard may be made to the judgments of this
Court in the cases of Babu Sahebagouda Rudragoudarv. State of
Karnataka (2024) 8 SCC 149; H.D. Sundara v. State of Karnataka
(2023) 9 SCC 581 and Rajesh Prasad v. State of Bihar (2022) 3
SCC 471.
14. A similar view was taken in Tulasareddi v. State of
Karnataka, 2026 SCC OnLine SC 89, wherein it was observed:
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“29. From the aforesaid decisions rendered by this Court, it
can be said that if two reasonable conclusions are possible on
the basis of the evidence on record, the Appellate Court should
not disturb the findings of acquittal recorded by the Trial
Court. Further, if the view taken is a possible view, the.
Appellate Court cannot overturn the order of acquittal on the
ground that another view was also possible. The following
principles have to be kept in mind by the Appellate Court
while dealing with the appeals against an order of acquittal:
(a) whether the judgment of acquittal suffers from
patent perversity;
(b) whether the judgment is based on
of
misreading/omission to consider the material evidence
on record;
(c) an order of acquittal is to be interfered with only
rt
when there are “compelling and substantial reasons”
for doing so. If the order is “clearly unreasonable”, it is
a compelling reason for interference.’
(d) The appellate court, while deciding an appeal against
acquittal, after reappreciating the evidence, is required
to consider whether the view taken by the trial court is apossible view which could have been taken on the basis
of the evidence on record;
(e) If the view taken is a possible view, the appellate
court cannot overturn the order of acquittal on theground that another view was also possible; and
(f) The appellate court can interfere with the order of
acquittal only if it comes to a finding that the onlyconclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused was
proved beyond a reasonable doubt and no other
conclusion was possible.”
15. The present appeal has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
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16. Om Prakash (PW2) stated that he had received a phone
call from Prema Devi on 02.05.2006, who told him that the accused
were beating Budhi Singh near her dhaba. She also said that they had
.
taken Budhi Singh towards Police Station, and Budhi Singh jumped
into the river. He stated in his cross-examination that he was
residing at Dhakrah and was not present on the spot.
17. Amar Nath (PW3) stated that he had received a call on
of
02.05.2006, at about 06.15 p.m., from Prema Devi that Prem Lal and
6-7 other persons were beating Budhi Singh. She also said that they
rt
followed Budhi Singh and took him towards the river. He also
admitted that in his cross-examination that he was not present on
the spot, and he could not say what had happened on the spot.
18. The statements of these witnesses show that they were
trying to prove what was narrated to them by Prema. The
prosecution had not examined Prema Devi, and the statements made
by these witnesses would be hearsay in nature. It was laid down by
the Hon’ble Supreme Court in J.D. Jain v. State Bank of India, (1982) 1
SCC 143, that the statement of a witness made by a person who is not
called as a witness is hearsay and inadmissible when the object of
the evidence is to establish the truth of what is contained in the
statement. It was observed: –
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“20. The next question is, is the evidence in the domestic
enquiry really hearsay, as held by the Tribunal?
21. The word ‘hearsay’ is used in various senses. Sometimes it
means whatever a person is heard to say; sometimes it means
whatever a person declares on the information given by.
someone else. (See Stephen on Law of Evidence).
22. The Privy Council in the case of Subramaniam v. Public
Prosecutor, (1956) 1 WLR 965 observed:
“Evidence of a statement made to a witness who is not
himself called as a witness may or may not be hearsay. It
is hearsay and inadmissible when the object of the
evidence is to establish the truth of what is contained inof
the statement. It is not hearsay and is admissible when it
is proposed to establish by the evidence, not the truth of
the statement, but the fact that it was made. The fact
that it was made quite apart from its truth is frequently
rt
relevant in considering the mental state and conduct
thereafter of the witness or some other persons inwhose presence these statements are made.”
19. It was held in Kalyan Kumar Gogoi v. Ashutosh Agnihotri,
(2011) 2 SCC 532: 2011 SCC OnLine SC 200 that hearsay evidence is
inadmissible. It was observed at page 545:
37. Here comes the rule of appreciation of hearsay evidence.
Hearsay evidence is excluded on the ground that it is always
desirable, in the interest of justice, to get the person whose
statement is relied upon into court for his examination in the
regular way, in order that many possible sources of inaccuracy
and untrustworthiness can be brought to light and exposed, if
they exist, by the test of cross-examination. The phrase
“hearsay evidence” is not used in the Evidence Act because it
is inaccurate and vague. It is a fundamental rule of evidence
under Indian law that hearsay evidence is inadmissible. A
statement, oral or written, made otherwise than by a witness
in giving evidence and a statement contained or recorded in
any book, document or record whatsoever, proof of which is
not admitted on other grounds, are deemed to be irrelevant for
the purpose of proving the truth of the matter stated. An
assertion other than one made by a person while giving oral
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evidence in the proceedings is inadmissible as evidence of any
fact asserted. That this species of evidence cannot be tested by
cross-examination and that, in many cases, it supposes some
better testimony which ought to be offered in a particular
case, are not the sole grounds for its exclusion. Its tendency to
.
protract legal investigations to an embarrassing and
dangerous length, its intrinsic weakness, its incompetence to
satisfy the mind of a judge about the existence of a fact, and
the fraud which may be practised with impunity, under its
cover, combine to support the rule that hearsay evidence is
inadmissible.
38. The reasons why hearsay evidence is not received as
of
relevant evidence are:
(a) The person giving such evidence does not feel any
responsibility. The law requires all evidence to be given
rt
under personal responsibility, i.e. every witness must give
his testimony, under such circumstances as expose him to
all the penalties of falsehood. If the person giving hearsayevidence is cornered, he has a line of escape by saying, “I
do not know, but so and so told me”
(b) Truth is diluted and diminished with each repetition,
and
(c) If permitted, it gives ample scope for playing fraud by
saying “someone told me that…”. It would be attachingimportance to false rumour flying from one foul lip to
another. Thus, statements of witnesses based oninformation received from others are inadmissible.”
20. Therefore, the testimonies of these witnesses are
inadmissible, and no conviction can be recorded based on their
testimonies.
21. Promila Devi (PW4) stated that she heard some noise. She
saw a boy floating in the river. She was permitted to be cross-
examined. She denied that the accused had said that the person
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floating in the river had committed the theft. She denied that he had
jumped into the river after he was beaten by the accused. She denied
the previous statement recorded by the police. Thus, it is apparent
.
that she has not supported the prosecution’s version.
22. Khem Chand (PW5) stated that he saw many people who
were saying that Budhi Singh had jumped into the river. He was also
permitted to be cross-examined. He denied that the accused were
of
beating Budhi Singh, and they were saying that Budhi Singh had
committed theft of Prem Lal’s motorcycle. He denied that Budhi
rt
Singh had jumped into the river. He denied the previous statement
recorded by the police.
23. Dinesh Sharma (PW7) stated that he had heard some
noise and saw many people on the spot. He was permitted to be
cross- examined. He denied that he saw Budhi Singh drowning in
the river. He also denied that the accused were present on the spot.
Therefore, this witness has also not supported the prosecution’s
case.
24. Bala Ram (PW12) stated that he was going to his home.
He saw 5-6 people beating one person. He identified the accused as
the assailant. Prema Devi enquired as to why the accused were
beating Budhi Singh. They asked Budhi Singh to board the
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motorcycle and took him towards Bhuntar. Budhi Singh jumped. The
accused ran after him and pelted stones upon Budhi Singh, who
jumped into the river and drowned. He admitted in his cross-
.
examination that his statement was recorded on 31.05.2006,
whereas the incident had taken place on 02.05.2006. It was laid
down by the Hon’ble Supreme Court in Harbeer Singh v. Sheeshpal,
(2016) 16 SCC 418, that the witness’s testimony becomes doubtful in
of
the absence of any explanation for his delayed examination. It was
observed: rt
16. As regards the incident of the murder of the deceased, the
prosecution has produced six eyewitnesses to the same. The
argument raised against the reliance upon the testimony of
these witnesses pertains to the delay in the recording of their
statements by the police under Section 161 CrPC. In the present
case, the date of occurrence was 21-12-1993, but the
statements of PW 1 and PW 5 were recorded after two days of
the incident, i.e. on 23-12-1993. The evidence of PW 6 was
recorded on 26-12-1993, while the evidence of PW 11 was
recorded after 10 days of the incident, i.e. on 31-12-1993.
Further, it is well-settled law that a delay in recording the
statement of the witnesses does not necessarily discredit their
testimony. The court may rely on such testimony if they are
cogent and credible and the delay is explained to the
satisfaction of the court. [See Ganeshlal v. State of Maharashtra
[Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106: 1993 SCC
(Cri) 435]; Mohd. Khalid v. State of W.B. [Mohd. Khalid v. State of
W.B., (2002) 7 SCC 334: 2002 SCC (Cri) 1734]; Prithvi v. Mam Raj
[Prithvi v. Mam Raj, (2004) 13 SCC 279: 2005 SCC (Cri) 198] and
Manu Sharma v. State (NCT of Delhi) [Manu Sharma v. State
(NCT of Delhi), (2010) 6 SCC 1: (2010) 2 SCC (Cri) 1385].]
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17. However, Ganesh Bhavan Patel v. State of Maharashtra
[Ganesh Bhavan Patel v. State of Maharashtra, (1978) 4 SCC 371:
1979 SCC (Cri) 1], is an authority for the proposition that delay
in recording of statements of the prosecution witnesses under
Section 161 CrPC, although those witnesses were or could be.
available for examination when the investigating officer
visited the scene of occurrence or soon thereafter, would cast a
doubt upon the prosecution case. (See also Balakrushna Swain
v. State of Orissa [Balakrushna Swain v. State of Orissa, (1971) 3SCC 192: 1971 SCC (Cri) 313]; Maruti Rama Naik v. State of
Maharashtra [Maruti Rama Naik v. State of Maharashtra, (2003)
10 SCC 670: 2004 SCC (Cri) 958] and Jagjit Singh v. State ofof
Punjab [Jagjit Singh v. State of Punjab, (2005) 3 SCC 689: 2005
SCC (Cri) 893] .) Thus, we see no reason to interfere with the
observations of the High Court on the point of delay and its
rt
corresponding impact on the prosecution case.
25. Therefore, the learned Trial Court was justified in
discarding his testimony.
26. Bala Ram admitted in his cross-examination that he had
not met the accused before or after the incident. The police had
revealed the names of the accused to him. Thus, it is apparent from
his testimony that he had no personal acquaintance with the accused
and had seen the accused for the first time on the date of the
incident. The prosecution relied upon the identification made in the
Court. However, not much advantage can be derived from the
identification made for the first time in the Court. Professor Rupert
Cross has stated in his celebrated treatise, Cross on Evidence, Fifth
Edition, Butterworths, that identification of the accused for the first
time in the dock is highly suspect. He observed:
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“It might be thought that in criminal cases there could not be
better identification of an accused than that of a witness who
goes into the box and swears that the man in the dock is the
one he saw coming out of a house at a particular time, or the
man who assaulted him. Nevertheless, such evidence is.
suspect where there has been no previous identification of the
accused by the witness, and this is because its weight is
reduced by the reflection that, if there is any degree of
resemblance between the man in the dock and the personpreviously seen by him. The witness may very well think to
himself that the police must have got hold of the right person,
particularly if he has already described the latter to them, withof
the result that he will be inclined to swear positively to a fact
of which he is by no means certain.
People have mistakenly identified friends and relations well
known to them with sufficient frequency to make them
rt
question the propriety of convicting an accused person on
nothing more than the visual identification of a single witnesswho may only have had a fleeting glance of him in poor light.”
27. It has been stated in Halsbury’s Laws of England 4th Edition
Volume 2 that the identification of the accused for the first time in
the Court is improper and the witness should be asked to identify the
accused in a prior test identification parade. It has been observed in
para 363:
“A witness shouldn’t be asked to identify the defendant for
the first time in the dock at his trial; and as a general practice,
it is preferable that he should have been placed previously in a
parade with other persons, so that potential witnesses may be
asked to pick him up.”
28. It was laid down by the Hon’ble Supreme Court in P.
Sasikumar v. State of T.N., (2024) 8 SCC 600: (2024) 3 SCC (Cri) 791:
2024 SCC OnLine SC 1652 that when the accused were not known to
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the witnesses on the date of the incident, their identification in thedock is not acceptable. It was observed on page 605:
“17. The admitted position in this case is that the test
.
identification parade (hereinafter referred to as “TIP”) was
not conducted. All the prosecution witnesses who identified
the accused in the Court, such as PW 1 and PW 5, were not
known to the present appellant, i.e. Accused 2. They had notseen the present appellant before the said incident. He was a
stranger to both of them. More importantly, both of them have
seen the appellant/Accused 2 on the date of the crime while heof
was wearing a “green-coloured monkey cap”!
xxx
21.It is well settled that TIP is only a part of the police
rt
investigation. The identification in TIP of an accused is not a
substantive piece of evidence. The substantive piece ofevidence, or what can be called evidence, is only dock
identification, that is, identification made by a witness in
court during the trial. This identification has been made in
court by PW 1 and PW 5. The High Court rightly dismissed theidentification made by PW 1 for the reason that the appellant,
i.e. Accused 2, was a stranger to PW 1 and PW 1 had seen the
appellant for the first time when he was wearing a monkeycap, and in the absence of TIP to admit the identification by
PW 1 made for the first time in the court was not proper.
xxxx
23. We are afraid the High Court has gone completely wrong in
believing the testimony of PW 5 as to the identification of the
appellant. In cases where the accused is a stranger to a
witness, and there has been no TIP, the trial court should be
very cautious while accepting the dock identification by such a
witness (see: Kunjumon v. State of Kerala, (2012) 13 SCC 750:
(2012) 4 SCC (Cri) 406]).
xxx
27. In the facts of the present case, the identification of the
accused before the court ought to have been corroborated by
the previous TIP, which has not been done. The emphasis of
TIP in a given case is of vital importance, as has been shown
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by this Court in the recent two cases of Jayanv. State of Kerala,
(2021) 20 SCC 38 and Amrik Singh v. State of Punjab, (2022) 9
SCC 402: (2023) 2 SCC (Cri) 404.
28. In Jayan v. State of Kerala, (2021) 20 SCC 38, this Court
disbelieved the dock identification of the accused therein by a
.
witness, and while doing so, this Court discussed the aspect of
TIP in the following words: (Jayan v. State of Kerala, (2021) 20
SCC 38, SCC p. 44, para 18)
“18. It is well settled that the TI parade is a part of the
investigation, and it is not substantive evidence. The question
of holding a TI parade arises when the accused is not known to
the witness beforehand. The identification by a witness of the
of
accused in the Court who has, for the first time, seen the
accused in the incident of the offence is a weak piece of
evidence, especially when there is a large time gap between
rt
the date of the incident and the date of recording of his
evidence. In such a case, the TI parade may make the
identification of the accused by the witness before the Court
trustworthy.”
29. Therefore, the identification of the accused by the
witnesses for the first time in the Court without any corroboration
from previous Test Identification Parades is meaningless, and
cannot be relied upon to record the conviction.
30. There was no other evidence to show that the accused had
beaten Budhi Singh or that Budhi Singh had jumped into the river
because of the fear of the beatings given by the accused. Therefore,
the learned Trial Court had taken a reasonable view while acquitting
the accused, and this Court will not interfere with the reasonable
view of the learned Trial Court while deciding an appeal against
acquittal.
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31. No other point was urged.
32. In view of the above, the present appeal fails, and it is
dismissed. Pending miscellaneous application(s), if any, also stand
.
disposed of.
33. In view of the provisions of Section 437-A of the Code of
Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha
of
Sanhita, 2023) the respondents/accused are directed to furnish bail
bonds in the sum of ₹25,000/- each with one surety each in the like
rt
amount to the satisfaction of the learned Trial Court within four
weeks, which shall be effective for six months with stipulation that
in the event of Special Leave Petition being filed against this
judgment, or on grant of the leave, the respondents/accused on
receipt of notice thereof, shall appear before the Hon’ble Supreme
Court.
34. Records be sent back to the learned Trial Court forthwith,
along with a copy of the judgment.
(Rakesh Kainthla)
Judge
24th July, 2026
(Nikita)
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