1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.434436 OF 2020
JAIKAM KHAN ...APPELLANT(S)
VERSUS
THE STATE OF UTTAR PRADESH .... RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.442 OF 2020
CRIMINAL APPEAL NO.437439 OF 2020
CRIMINAL APPEAL NO. 440441 OF 2020
J U D G M E N T
B.R. GAVAI, J.
1. The present appeals arise out of the common
judgment and order passed by the Division Bench of the
High Court of Judicature at Allahabad dated 18th May,
2018, in Reference No.01 of 2016 and, Capital Case No.602
of 2016 and Capital Case No.844 of 2016, thereby
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confirming the judgment and order of conviction dated 2nd
January, 2016 and the order of death sentence dated 11th
January, 2016 awarded to original accused Nos. 1, 3 and 4
by the Additional Sessions Judge, Bulandshahr. Vide the
said impugned judgment dated 18th May, 2018, the High
Court has, however, allowed the appeal of the original
accused No.2Nazra and set aside the conviction under
Section 302/34 of the Indian Penal Code, 1860 (hereinafter
referred to as “the IPC”) and the death penalty awarded to
her.
2. Being aggrieved, Criminal Appeal Nos. 434436 of
2020 are filed by Jaikam Khan (Accused No.3); Criminal
Appeal Nos. 437439 of 2020 are filed by Sajid (Accused
No.4); and Criminal Appeal Nos. 440441 of 2020 are filed
by Momin Khan (Accused No.1); whereas Criminal Appeal
No. 442 of 2020 is filed by Ali Sher Khan, the first informant
(P.W.1) (hereinafter referred to as “P.W.1Ali Sher Khan”)
being aggrieved by the order of acquittal of original accused
No.2Nazra.
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3. AppellantMomin Khan (A1), deceased Shaukeen
Khan, P.W.1Ali Sher Khan and Kallu Khan are the four
sons of deceased Mausam Khan (father, aged about 85
years) and deceased Asgari (mother, aged about 80 years).
Deceased Shanno (aged about 30 years) is the wife of
deceased Shaukeen Khan, whereas deceased Samad (aged
about 8 years) is the son of deceased Shaukeen Khan and
deceased Muskan (aged about 15 years) is the niece of
P.W.1Ali Sher Khan.
4. AppellantJaikam Khan (A3) is the first cousin of
deceased Shaukeen Khan, appellantMomin Khan (A1) and
P.W.1Ali Sher Khan. AppellantSajid (A4) is the son of
appellantJaikam Khan (A3). Original Accused No.2Nazra,
who was convicted by the trial Court and acquitted by the
High Court, is the wife of appellantMomin Khan (A1).
5. It is the prosecution case that deceased
Shaukeen Khan and P.W.1Ali Sher Khan were not in good
terms with Momin Khan (A1) and his wife Nazra (A2).
Therefore, deceased Mausam Khan (father) had separated
all the brothers and allotted their respective share of
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properties. The houses of each one of them were in one
compound. Deceased Mausam Khan (father) owned a brickkiln. In the beginning, appellantMomin Khan (A1) used to
run the brickkiln, but he did not give the money earned by
him from the brickkiln to deceased Mausam Khan (father)
and his elder brother, deceased Shaukeen Khan. Therefore,
deceased Mausam Khan (father) had dispossessed Momin
Khan (A1) from the brickkiln. Thereafter, deceased
Mausam Khan and P.W.1Ali Sher Khan were running the
brickkiln with the help of his brother deceased Shaukeen
Khan. Jaikam Khan (A3) and Sajid (A4) were jealous with
their growing business and so a case was also lodged for
laying bricks over the disputed land. Thereafter enmity
arose between them, and the younger brother Momin Khan
(A1) joined the company of his uncle’s son i.e. Jaikam
Khan (A3) and Jaikam Khan (A3)’s son Sajid (A4).
6. On the fateful day of the incident, i.e., 23rd
January, 2014, at around 8.30 p.m., P.W.1Ali Sher Khan
and his brotherinlaw, P.W.2Jaan Mohammad, were
present at home i.e. the place of incident. At that time,
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Momin Khan (A1) with his wife Nazra (A2) along with
Jaikam Khan (A3) and Sajid (A4) came armed with knives
and assaulted Mausam Khan (father), Asgari (mother),
Shaukeen Khan (brother), Shanno (sisterinlaw), Samad
(nephew) and Muskan (niece) and killed them brutally.
P.W.1Ali Sher Khan and his brotherinlaw, P.W.2 Jaan
Mohammad, somehow managed to save their lives. On
hearing the cries of the deceased and others, many villagers
gathered and all four accused fled from the spot through the
backdoor.
7. Immediately after the incident, P.W.1Ali Sher
Khan and P.W.2Jaan Mohammad went to Police Station
Narora, District Bulandshahr. On the basis of the report
given by P.W.1Ali Sher Khan, a First Information Report
(F.I.R.) came to be registered for the offence punishable
under Section 302 read with Section 34 of the IPC. Upon
completion of the investigation, a chargesheet came to be
filed before the concerned Judicial Magistrate. The case
was committed to the court of Sessions.
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8. The trial Judge framed charges for the offences
punishable under Section 302/34 of the IPC and under Section 25/4 of the Indian Arms Act, 1878 (hereinafter referred
to as “the Arms Act”). The accused pleaded not guilty and
claimed to be tried. At the conclusion of the trial, the trial
judge vide judgment and order dated 2nd January, 2016
convicted all the four accused for the offence punishable
under Section 302/34 of the IPC and sentenced them to
death vide order dated 11th January, 2016. The appellantsaccused Nos. 1, 3 and 4 were also convicted for the offence
punishable under Section 25/4 of the Arms Act and
awarded rigorous imprisonment for a term of three years
with a fine of Rupees Five Thousand and in case of default,
they were to undergo additional imprisonment for a term of
three months.
9. The trial judge vide the said order dated 11th
January, 2016 also made a reference under Section 366(1)
of the Code of Criminal Procedure, 1973 (hereinafter
referred to as “Cr.P.C.”) to the High Court vide Reference
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No.1 of 2016 for confirmation of the death sentence
awarded by it.
10. Being aggrieved thereby, all the four accused preferred appeals before the Division Bench of the High Court.
The Division Bench of the High Court vide the impugned
judgment, dismissed the appeals of appellants accused
Nos. 1, 3 and 4 and confirmed the death sentence awarded
to them. However, the Division Bench of the High Court allowed the appeal of the accused No.2Nazra and acquitted
her of the charges under Section 302/34 of the IPC.
11. Being aggrieved thereby, Momin Khan (A1),
Jaikam Khan (A3), Sajid (A4) and P.W.1Ali Sher Khan are
before this Court in the present appeals.
12. We have heard Smt. Nitya Ramakrishnan,
learned Senior Counsel appearing on behalf of appellantMomin Khan (A1) as well as acquitted original accused
No.2Nazra, Shri Dama Seshadri Naidu, learned counsel for
appellantsJaikam Khan (A3) and Sajid (A4), Shri Anant
Agarwal, learned counsel for appellant P.W.1Ali Sher Khan
and Shri Vinod Diwakar, learned Additional Advocate
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General appearing on behalf of the respondentState of
Uttar Pradesh.
13. Smt. Nitya Ramakrishnan, learned Senior
Counsel appearing on behalf of the appellantMomin Khan
(A1) would submit that the entire case rests on the ocular
testimony of P.W.1Ali Sher Khan and P.W.2Jaan
Mohammad, who are said to have witnessed the incident
from the kitchen and the cattleshed of the house
respectively. She submits that both of them are interested
witnesses. It is submitted that the High Court has
disbelieved the evidence of these two witnesses insofar as
original accused No.2Nazra is concerned. She submits that
when the ocular testimony of P.W.1Ali Sher Khan and
P.W.2Jaan Mohammad was found to be not trustworthy
and reliable by the High Court with respect to accused No.2
Nazra, the High Court fell in grave error in convicting the
other accused on the basis of the very same ocular evidence.
14. Learned Senior Counsel further submits that the
prosecution has placed on record three siteplans at
Exhibits Ka51, Ka52 and Ka45. It is, however, submitted
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that in none of the siteplans, the location of the kitchen
and the bathroom (which is supposed to be adjacent to
cattleshed) has been shown. She submits that as such,
there is a serious doubt, as to whether P.W.1Ali Sher Khan
and P.W.2 Jaan Mohammad have really witnessed the
incident. She further submits that even if the prosecution
case is to be believed, immediately after the occurrence of
the incident, many villagers had assembled at the spot,
however, though the statements of such witnesses were
recorded, the prosecution has not examined a single
witness. She, therefore, submits that an adverse inference
needs to be drawn on account of nonexamination of
independent witnesses, though they were very much
available.
15. Learned Senior Counsel further submits that
both P.W.1Ali Sher Khan and P.W.2Jaan Mohammad have
admitted in their evidence that they were possessing mobile
phones. She submits that in normal circumstances, after
such a dastardly incident had occurred, P.W.1Ali Sher
Khan and P.W.2Jaan Mohammad would have informed the
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Police about it on their mobile phones. She submits that,
however, the same has not been done by them. She further
submits that though after recording of the statement under
Section 313 Cr.P.C., the wife of Jaikam Khan (A3) had filed
an application for producing the Call Detail Records
(hereinafter referred to as “C.D.Rs.”) of P.W.1Ali Sher Khan
and P.W.2Jaan Mohammad, the said application was
rejected by the trial judge. She submits that if the said
C.D.Rs. would have been placed on record, they would have
established the genuineness of the prosecution’s case.
16. She further submits that the recovery of clothes
as well as the recovery of weapons are all farcical. She
submits that from the materials placed on record, it is clear
that the prosecution has not come to the Court with clean
hands. It is submitted that as per the Arrest
Memo/Panchnama (Exhibit Ka49), the Investigating Officer
(I.O.) had received an information that accused Nos. 1, 3
and 4 were standing at Rajghat Square to go somewhere. On
the basis of the said information, the I.O. reached the said
square and found the said accused at that spot. She
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submits that according to the prosecution, at around 2.00
a.m. in the morning on 24th January, 2014, the said three
accused were arrested. It is submitted that it is improbable
that the accused, after committing such a heinous crime,
would remain in such a close vicinity of the place of
occurrence. She further submits that the arrest of the
accused No.2Nazra, which is shown at around 6.40 a.m., is
also farcical.
17. Learned Senior Counsel would further submit
that the trial court has grossly erred in convicting all the
four accused and the High Court has erred in maintaining
and confirming the death sentence against the accused Nos.
1, 3 and 4. She submits that in any case, neither the High
Court nor the trial Court has given any reasons justifying
the award of capital punishment. She submits that there is
not even a whisper, as to why there is no possibility of the
accused being reformed or rehabilitated and as to why there
is no other alternative than to award the capital
punishment.
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18. Shri Dama Seshadri Naidu, learned counsel
appearing on behalf of Jaikam Khan (A3) and Sajid (A4),
submits that insofar as the said accused are concerned, the
prosecution story is totally unbelievable. He submits that
deceased Mausam Khan and Zafar Khan are the sons of
Shakoor Khan. Jaikam Khan (A3) is the son of Zafar Khan.
He submits that from the evidence of the prosecution
witnesses, it is clear that there was a partition amongst
Zafar Khan and deceased Mausam Khan long time ago. Not
only that, but there was a further partition amongst the two
branches of the family. He submits that the testimonies of
these two witnesses, i.e., P.W.1Ali Sher Khan and P.W.2
Jaan Mohammad, would reveal that there is no enmity
between deceased Mausam Khan, deceased Shaukeen Khan
and P.W.1Ali Sher Khan on one side and Jaikam Khan (A3) and Sajid (A4) on the other. The alleged enmity was with
Momin Khan (A1), who belonged to the branch of deceased
Mausam Khan. He submits that, as such, the prosecution
has utterly failed to prove any motive insofar as accused
Nos. 3 and 4 are concerned.
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19. Learned counsel submits that even the evidence
of P.W.2Jaan Mohammad was not trustworthy. Perusal of
his evidence would reveal that he does not know anything
about the family holdings.
20. Shri Naidu further submitted that the recovery of
clothes and weapon is totally farcical. He submits that it is
totally impossible that the accused Nos. 3 and 4, who are
not the members of the family of Momin Khan (A1), would
keep their bloodstained clothes at the house of Momin Khan
(A1) after committing the crime. Learned counsel further
submits that though fingerprints were taken from the
recovered articles, the fingerprint expert’s report is not
placed on record and, therefore, an adverse inference needs
to be drawn against the prosecution. Learned counsel
further submits that all Forensic Science Laboratory
(“F.S.L.” for short) reports are marked during examination
under Section 313 Cr. P.C., which is not permissible. He
submits that, in any case, the said reports are inconclusive.
Shri Naidu would further submit that since P.W.1Ali Sher
Khan and P.W.2Jaan Mohammad are related witnesses,
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their evidence will have to be scrutinized with greater care
and circumspection and it will not be safe to pass an order
of conviction on their sole testimony without there being any
corroboration.
21. Shri Vinod Diwakar, learned Additional Advocate
General appearing on behalf of the respondent–State of
Uttar Pradesh submitted that both the trial court and the
High Court have concurrently, on the appreciation of the
evidence, convicted the accused. He submits that no error
could be noticed in the concurrent findings. He submits
that merely because kitchen and bathroom are not shown in
the siteplans, it cannot be a ground to disbelieve the ocular
testimony of P.W.1Ali Sher Khan and P.W.2Jaan
Mohammad. He submitted that the evidence of these two
witnesses is corroborated by the F.I.R.
22. Learned counsel submitted that merely because
there are certain discrepancies in the evidence of the
witnesses, it cannot be a ground to disbelieve the ocular
testimonies of the witnesses, which are otherwise cogent,
reliable and trustworthy. He, therefore, submits that no
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interference is warranted in the appeals preferred at the
behest of accused Nos. 1, 3 and 4 and the same deserve to
be dismissed.
23. Shri Anant Agarwal, learned counsel appearing
on behalf of P.W.1Ali Sher Khan, would submit that when
the Additional Sessions Judge on the basis of correct
appreciation of evidence convicted accused No.2Nazra,
there was no reason for the High Court to reverse the same.
24. The learned counsel for respective parties, while
supporting their contentions, have placed reliance on
various decisions of this Court.
25. With the assistance of the learned counsel for the
appellants, we have scrutinized the entire evidence in depth.
Since the conviction of the accused appellants is largely
based on the ocular testimonies of P.W.1Ali Sher Khan and
P.W.2Jaan Mohammad, we find that it will be appropriate
to reproduce relevant part of their examinationinchief:
Examinationinchief of P.W.1Ali Sher
Khan
“My father had brickklin and due to the
same brickklin, the accused persons
present in court namely Jaikam Khan,
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Shajid, Nazra too bore enmity. Nazra is
wife of Mobin. Jaikam Khan is Mobin’s
cousin and Sajid is Mobin’s nephew from
his taau family.
The incident is of 23th January, 2014
and it was about 8.30 pm. on that day,
my sister’s husband namely Jaan
Mohammad had come at about 2 o’ clock
in afternoon and was present at the
house itself at the time of the incident.
At the time of the incident, my father
Mausam Khan, my mother Asgari, my
brother Shaukeen Khan, his wife Sanno
and his elder brother Saukeen Khan’ son
Samad and my niece Muskan, my
brotherinlaw Jaan Mohammad and I
were present at the house. Momin Khan,
his wife Nazra, Jaikam Khan and his son
Shajid entered our compound at about
8.30 pm from the direction of the house
of Momin Khan. When I saw them, I was
in the kitchen room. All these accused
persons were holding knives in their
hands. These four attacked my father
with knife who was sleeping in veranda
and when they attacked my father then I
was witnessing it from kitchen room.
Hearing hue and cry raised by father, my
niece Muskan came running then these
four accused persons present in court
ran behind her and cut her also with
knife holding in their hands. My mother
and nephew Samad were also there in
the same veranda where Muskan was
attacked. These four accused persons
cut these two also with knives. Hearing
this hue and cry, when my elder brother
Saukeen came downstairs from upstairs,
the accused persons killed him also near
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the gate. My sisterinlaw Sanno, who
had come downstairs hearing hue & cry,
was killed by them going upstairs. My
sisterinlaw Sanno seeing the incident
occurring downwards (sic.) ran away. My
brotherinlaw Jaan Mohammad was
hiding anywhere in the house saving his
life and he had also witnessed the
incident. The accused persons had fled
away after committing the incident. I due
to fear could not save the dead persons.
After the incident, I alongwith my
brotherinlaw Jaan Mohammad had
gone to the police station and lodged the
report at the police station. The
complaint which was given by me at the
police station is available on the file and
the same is before me today which I
myself had written down and had given
at the police station. It was marked as
Ext. ka1. All six persons had died on
the spot. The accused persons present
in court had committed all murders
before me which was witnessed by me
while hiding.”
Examinationinchief of P.W.2Jaan
Mohammad
“1 The incident took place on
23.01.2014. on the day of the incident, I
had come to the house of my fatherinlaw Mausam Khan at Pilkhana village at
2 p.m. During the time of the incident, I
was present at the house of my fatherinlaw Mausam Khan. The incident took
place at around 8 pm. I know the
accused persons who are present in the
court namely Jaikam Khan, Sabid Khan,
Momeen Khan and Naazra. I had firstly
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seen the accused persons at the house of
my fatherinlaw Mausam Khan at the
verandah. That time I had come out of
bathroom and first time I had seen the
accused persons from the place where
the buffaloes are tethered and is
adjacent to bathroom. All these accused
persons were holding knife and
chhuriyan (small knife) in their hands. It
would be a distance of 1015 steps from
where I had seen them for the first time.
During the time of the incident, inverter
powered light was on. I had seen the
accused persons in the light of the
inverter.
2 My fatherinlaw Mausam Khan was
offering Namaz on the cot at the
verandah. All the accused persons who
are present in the court started inflicting
blows of knives and chhuriyan (small
knife) on Mausam Khan and murdered
him. When hearing the voice of Mausam
Khan, Muskan came out, then these four
persons ran behind her and these four
accused persons killed her in the
verandah. After this they killed my
motherinlaw Asgari and Samad.
Hearing their outcry, Shaukeen Khan
came down from the roof. These four
persons caught Shaukeen Khan and
killed him too. When hearing the outcry
of Shaukeen Khan, his wife Shanno
came down then these four accused
persons ran behind her on the roof and
these four killed her too after going up
on the roof. I had seen all this incident
under the shade of the place where the
buffaloes are tethered and is near the
bathroom. After committing the incident,
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these four accused persons had run
away from there. After these accused
persons had run away I came out from
the place where I was hiding and my
brotherinlaw Ali Sher and I had raised
alarm after coming out of the house.
People of the village had arrived on the
alarm raised by us. We went inside the
house and saw that all the people had
died.
3 There was a dispute over kiln
between Momeen Khan and my fatherinlaw Mausam Khan. Momeen wanted
to run the kiln but my fatherinlaw
Mausam Khan was not willing to give
kiln to Momeen. 23 years before the
incident, Momeen had run the kiln and
he had not given statement of accounts
to Mausam Khan. Mausam Khan had
taken the charge of kiln from Momeen
and for the same reason he was angry.
4 Accused Sajid is the nephew of
accused Momeen. Jaikam is the cousin
brother of Momin. Nazra is the wife of
Momin. The four accused are from the
same group.”
26. It could thus be seen that according to P.W.1Ali
Sher Khan, all the four accused entered the compound of
his house at about 8.30 p.m. According to him, he saw
them when he was in the kitchen. All the accused were
holding knives in their hands. According to him, firstly,
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they attacked his father Mausam Khan, who was sleeping in
the veranda. He was witnessing the same from the kitchen
room. Hearing a hue and cry raised by his father, his niece
Muskan came running and then these four accused ran
behind her and cut her also with knives holding in their
hands. His mother Asgari and nephew Samad were also
there in the same veranda where Muskan was attacked. The
accused cut them also with knives. Hearing the hue and
cry, his elder brother Shaukeen Khan came downstairs from
upstairs and the accused killed him also near the gate. His
sisterinlaw Shanno, who had come downstairs hearing the
hue and cry, was also killed by them going upstairs.
According to him, his brotherinlaw, P.W.2Jaan
Mohammad, was hiding elsewhere. He further stated that
all the accused had fled away after committing the murder.
After the incident, he along with his brotherinlaw, P.W.2
Jaan Mohammad, had gone to the police station and lodged
the report.
27. According to P.W.2Jaan Mohammad, on the day
of the incident i.e. 23rd January, 2014, he had come to the
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house of his fatherinlaw Mausam Khan at 2 p.m. He
stated that the incident took place at around 8 p.m. He had
seen the accused at the house of his fatherinlaw Mausam
Khan in the veranda. That time, he had come out of
bathroom and first time he had seen the accused from the
place where the buffaloes are tethered, which is adjacent to
the bathroom. All the accused were holding knives in their
hands. According to him, his fatherinlaw Mausam Khan
was offering Namaz on the cot in the veranda. All the
accused started inflicting blows of knives on Mausam Khan
and murdered him. After hearing the voice of Mausam
Khan, Muskan came out, then the accused ran behind her
and killed her in the veranda. Thereafter, they killed his
motherinlaw Asgari and Samad. On hearing their outcry,
Shaukeen Khan came down from the roof. The accused
caught Shaukeen Khan and killed him too. After hearing
the cries of Shaukeen Khan, his wife Shanno came down,
then the accused ran behind her on the roof and killed her
too after going up on the roof.
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28. Both P.W.1Ali Sher Khan and P.W.2Jaan
Mohammad are witnesses, who are closely related to the
deceased as well as the accused No.1Momin Khan. No
doubt that, merely because the witnesses are interested and
related witnesses, it cannot be a ground to disbelieve their
testimony. However, the testimony of such witnesses has to
be scrutinised with due care and caution. Upon scrutiny of
the evidence of such witnesses, if the Court is satisfied that
the evidence is creditworthy, then there is no bar on the
court in relying on such evidence.
29. For this proposition, we may refer to the following
observations of this Court in the case of Piara Singh and
others v. State of Punjab1
:
“4. ….It is well settled that the evidence
of interested or inimical witnesses is to
be scrutinised with care but cannot be
rejected merely on the ground of being a
partisan evidence. If on a perusal of the
evidence the court is satisfied that the
evidence is creditworthy there is no bar
in the Court relying on the said evidence.
…..”
1 (1977) 4 SCC 452
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30. We may also refer to the following observations of
this Court in the case of Anil Phukan v. State of Assam2
:
“3. This case primarily hinges on the
testimony of a single eyewitness Ajoy PW
3. Indeed, conviction can be based on
the testimony of a single eyewitness and
there is no rule of law or evidence which
says to the contrary provided the sole
witness passes the test of reliability. So
long as the single eyewitness is a wholly
reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single
eyewitness is not found to be a wholly
reliable witness, in the sense that there
are some circumstances which may
show that he could have an interest in
the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material
particulars, before recording conviction.
It is only when the courts find that the
single eyewitness is a wholly unreliable
witness that his testimony is discarded
in toto and no amount of corroboration
can cure that defect. It is in the light of
these settled principles that we shall examine the testimony of PW 3 Ajoy.
4. Ajoy PW 3, on his own showing, is
the nephew of the deceased. He had accompanied the deceased to the place of
occurrence when the latter went to recover the loan from Anil, appellant. This
2 (1993) 3 SCC 282
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witness, therefore, is a relative of the deceased and an interested witness. Of
course, mere relationship with the
deceased is no ground to discard his
testimony, if it is otherwise found to
be reliable and trustworthy. In the
normal course of events, a close relation would be the last person to
spare the real assailant of his uncle
and implicate a false person. However, the possibility that he may also
implicate some innocent person
along with the real assailant cannot
be ruled out and therefore, as a matter of prudence, we shall look for
some independent corroboration of
his testimony, to decide about the involvement of the appellant in the
crime. Since, there are some doubtful
aspects in the conduct of Ajoy PW 3,
it would not be safe to accept his evidence without some independent corroboration, direct or circumstantial.”
[Emphasis supplied]
31. Undisputedly, both P.W.1Ali Sher Khan and
P.W.2Jaan Mohammad are witnesses, who are closely
related to the deceased and the accused No.1Momin Khan.
Therefore, we find that it will be necessary to scrutinise
their evidence with more care, caution and circumspection.
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32. Even if the evidence of P.W.1Ali Sher Khan and
P.W.2Jaan Mohammad is taken at its face value, the
accused have murdered six deceased at different places. As
per the admission given by P.W.1Ali Sher Khan, the house
of the accused No.1 Momin Khan is 15 steps away from the
place where he was hiding in the compound. According to
him, there are a total of 5 rooms in the house where the
incident took place. He has stated in his crossexamination
that Shaukeen Khan was murdered in the Angan of the
house and his father Mausam Khan was murdered in the
veranda. His niece Muskan was also murdered in the
veranda. His motherAsgari and nephew Samad were
murdered in the room which is 15 steps away from the
kitchen, whereas deceased Shanno was murdered in a room
upstairs. He has further admitted that the aforesaid room
cannot be seen from the kitchen and the door of the
aforesaid room opens towards south.
33. It will be relevant to refer to P.W.1Ali Sher
Khan’s deposition in his crossexamination.
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“Site map was prepared by the police on
my pointing. There is a courtyard in my
house. There is a room built in the
South of the courtyard whose door opens
in the courtyard. The room which I have
told in South is a kitchen. The door of
this kitchen opens in North. There is a
gate in Western wall of the courtyard.”
34. It would further be relevant to refer to the
following deposition of P.W.9Brahmesh Kumar Yadav, i.e.
the I.O.
“I had prepared sitemap on the day of
occurrence on 24.1.14. I had prepared
the sitemap of the scene of occurrence
at the instance of the casecomplainant.
I do not remember at what time I started
to prepared the sitemap. I don’t even
remember how much time I took to
prepare the sitemap. I don’t remember
at what time I stopped preparing the
sitemap. I don’t remember whether I
had marked casecomplainant’s hiding
place in the sitemap or not. This is
correct to state that the place, from
where the casecomplainant has stated
27
to hide and see the accused persons, is
not shown in the sitemap. I had
prepared the sitemap of the scene of”
35. A perusal of the evidence of the P.W.1Ali Sher
Khan and the evidence of P.W.9Brahmesh Kumar Yadav
would reveal that the first siteplan (Exhibit Ka51) was
prepared by P.W.9Brahmesh Kumar Yadav on P.W.1Ali
Sher Khan’s pointing out the details.
28
36. It will be appropriate to reproduce all the three
siteplans, which are as under: “
29
30
31
”
37. It could thus be seen that all the three siteplans
(Exhibits Ka51, Ka52 and Ka45) have been prepared by
32
P.W.9Brahmesh Kumar Yadav, the I.O. The first siteplan
(Exhibit Ka51) was prepared on 24th January, 2014. The
second siteplan (Exhibit Ka52) was prepared on 28th
January, 2014 and the third siteplan (Exhibit Ka45) was
prepared on 29th January, 2014.
38. The first siteplan (Exhibit Ka51) shows the
places where the dead bodies of the deceased were found.
Serial No.1 in the said siteplan is the place where the dead
body of deceased Shaukeen Khan was found. Serial No.2 is
the spot where the dead body of deceased Mausam Khan
was found. Serial No.3 is the spot where the dead body of
deceased Shanno Begam was found. Serial No.4 is the spot
where the dead body of deceased Muskan was found. Serial
No.5 is the spot where the dead body of deceased Asgari was
found. Serial No.6 is the spot where the dead body of
deceased Samad was found. The arrow marks in the said
siteplan show the direction in which the accused fled away
from the rear gate. It is to be seen that in the said siteplan,
the room on the southern side is not shown.
33
39. The second siteplan (Exhibit Ka52) is with
regard to the recovery of weapons made at the instance of
the accused from the field of the deceased Shaukeen Khan.
40. The third siteplan (Exhibit Ka45), which is
drawn in connection with Case Crime No.26 of 2014 under
Section 25/4 of the Arms Act, also shows the places from
where the weapons alleged to have been used in the crime,
were recovered at the instance of the accused.
41. In the last two siteplans at Exhibit Ka52 and
Exhibit Ka45, a room has been shown on the southern
side.
42. According to the evidence of P.W.1Ali Sher Khan,
the room in which he hid himself in the south, is the
Kitchen. As per his evidence, the door of the kitchen opens
to the north, whereas as per the third siteplan (Exhibit Ka45), the gate of the said room on southern side, opens
towards west.
43. As per the version of P.W.2Jaan Mohammad, he
has witnessed the incident from the place where the
buffaloes are tethered, which is adjacent to the bathroom.
34
Though the bathroom is not shown in the siteplan,
believing it to be adjacent to the place where buffaloes are
tethered, it will be in the southwest corner.
44. As per the testimonies of P.W.1Ali Sher Khan
and P.W.2Jaan Mohammad, firstly Mausam Khan was
assaulted and done away with in veranda, whereas
deceased Shaukeen Khan was done away with in the courtyard. Deceased Muskan, Asgari and Samad were assaulted
in the rooms, which are in the middle portion of the house.
According to these witnesses, Shanno Begam was assaulted
upstairs. If the version of these two witnesses is compared
with the siteplans, then the position that emerges would
reveal that P.W.1Ali Sher Khan, at the most, could have
witnessed the assault on deceased Shaukeen Khan,
whereas P.W.2Jaan Mohammad could have witnessed the
assault on deceased Mausam Khan and deceased Shaukeen
Khan. However, since from the perusal of the first siteplan
(Exhibit Ka51), it could be seen that the deadbodies of
deceased Muskan, Samad, and Asgari were inside the
house, and the deadbody of deceased Shanno Begam was
35
upstairs, it is difficult to believe that these two witnesses
could have also seen the accused assaulting Shanno
Begam, Muskan, Asgari and Samad. It is further to be
noted that P.W.9Brahmesh Kumar Yadav in his crossexamination has admitted that P.W.1Ali Sher Khan and
P.W.2Jaan Mohammad had not told him about their
hideouts and that is why it was not mentioned in the siteplan.
45. We are therefore of the view that these two
witnesses cannot be considered to be wholly reliable to base
an order of conviction solely on their testimonies.
46. It will be relevant to refer to the following
observation of this Court in the case of Vadivelu Thevar &
another v. The State of Madras3
:
“11.….Hence, in our opinion, it is a
sound and wellestablished rule of law
that the court is concerned with the
quality and not with the quantity of the
evidence necessary for proving or disproving a fact. Generally speaking, oral
testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
3 (1957) SCR 981
36
(2) Wholly unreliable.
(3) Neither wholly reliable nor
wholly unreliable.
In the first category of proof, the court
should have no difficulty in coming to its
conclusion either way — it may convict
or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness,
incompetence or subornation. In the second category, the court equally has no
difficulty in coming to its conclusion. It
is in the third category of cases, that the
court has to be circumspect and has to
look for corroboration in material particulars by reliable testimony, direct or circumstantial……”
47. As already discussed hereinabove, we are of the
view that though P.W.1Ali Sher Khan could have witnessed
the assault on deceased Shaukeen Khan and P.W.2Jaan
Mohammad could have witnessed the assault on deceased
Shaukeen Khan and deceased Mausam Khan, it is difficult
to believe that they could have witnessed the assault on the
other four deceased persons. We are also of the view that
the said witnesses cannot be said to be wholly unreliable.
They would fall in the category of ‘neither wholly reliable nor
wholly unreliable’ and as such, we are of the view that a
37
greater degree of care and caution would be required and a
corroboration in material particulars by reliable testimony,
direct or circumstantial, would be necessary to pass an
order of conviction.
48. We, therefore, find it necessary to consider the
other circumstances relied on by the prosecution. The other
circumstances, on which the prosecution relies, are as
under:
A. Arrest of the accused immediately after the
incident;
B. Recovery of the weapons alleged to have been
used in the crime at the instance of the accused.
C. Recovery of the bloodstained clothes alleged to
have been worn by the accused while committing
the crime.
D. Motive.
We will now deal with the evidence placed on
behalf of the prosecution with regard to each of the
circumstances.
A. Arrest of the accused immediately after the
incident:
49. Insofar as the arrest of accused Nos.1, 3 and 4 is
concerned, P.W.9Brahmesh Kumar Yadav (I.O.), states
38
that, on the basis of written complaint, Crime No.25 of 2014
came to be registered for the offence punishable under
Section 302/34 of the IPC. He stated that thereafter, he
immediately reached at the complainant’s house along with
the force. It was crowded there. He recorded the statement
of the complainantP.W.1Ali Sher Khan. He stated that
when they were at the scene of occurrence with the police
force, they received information through informer that the
accused of the aforesaid case were present at Rajghat
Chauraha looking for a chance to go somewhere. Relying on
this information, when they reached at Rajghat Chauraha,
three persons were there in the passenger shed. The
informer went away after showing those three men and they
arrested them at 2.00 a.m. in the morning of 24th January,
2014. They revealed their names as Momin Khan, Jaikam
Khan and Sajid. According to him, the accused stated that
they had committed those six murders in association with
Nazra and all the accused told them that they had thrown
away the weapons with which they had committed the crime
and they could get those recovered. His further evidence
39
states about the recovery of those weapons, with which we
will deal later in this judgment. He further states that when
they were returning to the police station with accused,
leaving a few policemen behind at the scene of occurrence,
accused No.2Nazra, met at Rajghat Chauraha, seeing
whom Momin Khan (A1) said that she was his wife. She
was arrested at 6.40 a.m. and everyone was presented at
the police station at 6.50 a.m. on 24th January, 2014.
50. P.W.1Ali Sher Khan, in his crossexamination,
states that he does not know how far the road of Rajghat is
from his house. He further states that he cannot say even
by guessing.
51. P.W.2Jaan Mohammad admitted in his crossexamination that the house of deceased Mausam Khan is at
a distance of one furlong from Rajghat road. He further
clarified that by one furlong he means half kilometre.
52. It is thus difficult to believe that accused Nos. 1,
3 and 4 were waiting at Rajghat square, which is at a
distance of hardly half a kilometre from the place of
occurrence, waiting for the Police to come and arrest them.
40
The alleged informer has neither been named nor has he
been examined. It is further difficult to believe that accused
No.2Nazra was wandering in the village and coincidently at
6.40 a.m., crossed paths with P.W.9 Brahmesh Kumar
Yadav (I.O.), when he was returning to the police station
along with other accused.
53. In this respect, it will also be relevant to refer to
the testimony of P.W.2Jaan Mohammad.
“When we went to the police station to get
the report written, Momin and Nazra, as
well as Jaikam and Sajid were present at
the police station.”
It is thus clear admission of P.W.2Jaan
Mohammad that when he and P.W.1Ali Sher Khan had
gone to the police station to give the written report, Momin
Khan (A1), Nazra (A2), Jaikam Khan (A3) and Sajid (A4)
were already present there in the police station. According
to the prosecution, the crime is registered on 23rd January,
2014 at 10.00 p.m. when both P.W.1Ali Sher Khan and
P.W.2Jaan Mohammad were present. If the version of
P.W.2Jaan Mohammad, that all the four accused were
present at the police station when they had gone to lodge
41
the FIR, is to be believed, then the arrest of the accused
Nos. 1, 3 and 4 at 2.00 a.m. on 24th January, 2014 and
arrest of accused No.2 at 6.40 a.m. on the same day, to say
the least, is mysterious.
B. Recovery of the weapons alleged to have been used
in the crime at the instance of the accused.
54. Insofar as the recovery of the weapons alleged to
have been used in the crime at the instance of the accused
is concerned, the prosecution has relied on the arrestcumrecovery memo, which is at Exhibit Ka49.
55. We have already dealt with this aspect in the said
memo with regard to the arrest of the accused. The relevant
part of the said memo reads thus:
“The aforesaid three persons were asked
about the incident, Momeen Khan told
that he had dispute with his father over
partition. In the beginning he used to
run kiln, later on it was given to
Shaukin Khan. The means of his
livelihood came to an end, he was in
trouble. Jaikam and Sajid had enmity
with his brothers. Thus he took help of
Jaikam and Sajid and killed his parents
and family of Shaukin in a planned
manner after inflicting serious injuries
over their neck, head and mouth. They
had thrown the knives at the back of
42
house and field with which they caused
the death. Accused told that they could
get the weapon used in murder
recovered. We came to the house of
Shaukin at Village Pilkhana along with
all the aforesaid accused in the hope of
recovery of weapon used. All the three
accused live in the same compound.
Momeen walked forward, entered the
middle house where his mother used to
sleep and took out a daav having
wooden handle around 7 fingers and
blade around 1 balisht 1 finger that was
bloodstained from the rubbish beneath
staircase. He handed over the weapon at
around 3 am and told that he caused
death with it. Field unit is on the spot,
photographs were clicked. Recovery of
weapon was made in presence of public
witnesses Khemkaran s/o Tara Singh,
Vilal s/o Usman Khan r/o Pilkhana.
Another accused Jaikam s/o Jafar Khan
walked forward into the field at the back
of his house and got a knife measuring 1
balisht 6 fingers handle recovered in
presence of aforesaid witnesses at
around 3:15 o'clock and stated that he
caused death with the same. Its
photograph was clicked and fingerprint
taken and after sometime fingerprint
team went away. After much time
accused Sajid walked into the field
behind the house of Shaukin and took
out a knife measuring 1 balisht 5
fingers. Its blade is fitted with plastic
arc. He got it recovered and stated that
he caused death with it. The three
aforesaid knives were bloodstained. Thus
blade was wrapped into a cotton, kept in
separate clothes, sealed and stamped on
43
the spot and sample seal was prepared.
Memo was dictated by me to H.C.P.
Sadar Singh in electric and torch light
and documents were prepared.”
Though the memo shows that the said recoveries
were made in the presence of public witnesses, no public
witness has been examined to support the same. It will be
relevant to refer to the celebrated judgment of the Privy
Council in the case of Pulukuri Kottayya and others v.
King Emperor4
“…..On normal principles of construction
their Lordships think that the proviso to
S. 26, added by s. 27, should not be held
to nullify the substance of the section. In
their Lordships' view it is fallacious to
treat the “fact discovered” within the
section as equivalent to the object
produced; the fact discovered embraces
the place from which the object is
produced and the knowledge of the
accused as to this, and the information
given must relate distinctly to this fact.
Information as to past user, or the past
history, of the object produced is not
related to its discovery in the setting in
which it is discovered. Information
supplied by a person in custody that “I
will produce a knife concealed in the roof
of my house” does not lead to the
discovery of a knife; knives were
discovered many years ago. It leads to
the discovery of the fact that a knife is
4 AIR 1947 PC 67
44
concealed in the house of the informant
to his knowledge, and if the knife is
proved to have been used in the
commission of the offence, the fact
discovered is very relevant. But if to the
statement the words be added “with
which I stabbed A.”, these words are
inadmissible since they do not relate to
the discovery of the knife in the house of
the informant.”
56. As already discussed hereinabove, since no
public witness has been examined to support the said
memo, the statement made therein will have to be
scrutinised with greater caution and circumspection. All
the statements made therein with regard to the confession
of committing the crime would not be admissible in
evidence. Only such information, which distinctly relates
to the discovery of facts will be admissible under Section 27
of the Indian Evidence Act, 1872 (hereinafter referred to as
‘the Evidence Act”). The evidence of P.W.9Brahmesh
Kumar Yadav (I.O.) would reveal that immediately after the
F.I.R. was lodged, he had come to the spot of incident for
further investigation. According to him, the accused Nos. 1,
3 and 4 were arrested at around 2.00 a.m. on 24th January,
2014. Even according to him, the police party was very
45
much there at the spot. One of the alleged recoveries is
from the room where deceased Asgari used to sleep. The
other two recoveries are from open field, just behind the
house of deceased Shaukeen Khan, i.e., the place of
incident. It could thus be seen that the recoveries were
made from the places, which were accessible to one and all
and as such, no reliance could be placed on such
recoveries.
C. Recovery of the bloodstained clothes alleged to
have been worn by the accused while committing
the crime.
57. The recovery memo of bloodstained clothes
(Exhibit Ka34) also makes for an interesting reading.
Perusal of the aforesaid memo shows that the police party
along with three sons and two daughters of the accused
No.1Momin Khan and accused No.2Nazra came to the
house of the accused No.1Momin Khan. At that place,
Hina @ Yasmeen, daughter of accused No.1Momin Khan
and accused No.2Nazra, in the presence of her
grandparents, viz., Akhlaq and Shakila and neighbours
46
Jabbar and Kishan Chandra and other villagers unlocked
her house and took out her things. At that time, Maumin
saw some clothes under the bed in the room. On seeing the
clothes, many villagers identified and told that the clothes
were the same which Momin Khan (A1) and others had
worn in the evening of 23rd January, 2014. The clothes were
identified separately, in which Momin Khan (A1) was
wearing jeans of blue colour and blue shirt having black
and white squares, Jaikam Khan (A3) was wearing kurta of
cream colour and printed readymade sweater of brown
colour, Sajid (A4) was wearing pants of light black colour
and printed shirt of light yellow, red black colour and Nazra
(A2) was wearing printed salwar kurta of light red colour.
58. As per the prosecution witnesses, the accused
had run away from the rear gate of the compound, which is
towards north. As per the evidence of P.W.1Ali Sher Khan,
the house of Momin Khan (A1) is at a distance of 1015
steps away from the place of the incident. According to the
prosecution witnesses, immediately after the incident
occurred, many villagers had gathered at the spot. In these
47
circumstances, it is again a mystery as to how all the four
accused fled from the spot, came back at the said spot,
changed their clothes and again went away. It is also a
mystery as to how the accused Nos. 3 and 4, who are not
residing in Momin Khan’s (A1) house, had changed their
clothes and kept them at Momin Khan’s (A1) house. This
coupled with the fact that the F.S.L. reports are
inconclusive, creates a great shadow of doubt on the
genuineness of the said recovery. In any case, the said
clothes are not recovered on the memorandum of the
accused under Section 27 of the Evidence Act and as such,
the said circumstance could not have been used against the
accused.
D. Motive
59. No doubt that, in case of direct evidence and the
ocular testimony of the eyewitness being found to be
trustworthy, reliable and cogent, it will not be necessary for
the prosecution to prove the motive for the crime. However,
in the present case, as we have already held hereinabove,
that the testimony of the eyewitnesses could not be said to
48
be wholly reliable, the motive aspect would be a relevant
factor.
60. As per the prosecution version, the main motive
behind the crime was with regard to the dispute over the
management of the brickkiln between the accused No.1
Momin Khan on one hand and deceased Mausam Khan,
deceased Shaukeen Khan and P.W.1Ali Sher Khan on the
other hand. In the F.I.R., P.W.1Ali Sher Khan has stated
that the accused Nos. 3 and 4 were jealous with his
business and a case was also lodged for laying bricks over
the land. It is further stated that since then, enmity grew
between the family and younger brother Momin Khan (A1)
joined the company of his uncle’s son Jaikam Khan (A3)
and Jaikam Khan’s (A3) son Sajid (A4). No doubt, that the
F.I.R. is not a substantive piece of evidence, however, it will
be relevant for scrutinising the credibility of the first
informant. Though in his crossexamination, P.W.1Ali
Sher Khan has stated that Momin Khan (A1) had a rift with
him, the reason for Momin Khan’s (A1) rift with his parents
and brothers was, due to him not giving an account of the
49
money earned from brickkiln to them. He has further
stated that his father, deceased Mausam Khan, had relieved
Momin Khan (A1) from the duty of brickkiln in 2010 and
since then Momin Khan (A1) bore enmity against him. He
has further stated that due to the same brickkiln, accused
Nos. 2, 3 and 4, viz., Nazra, Jaikam Khan and Sajid
respectively, too bore enmity against him.
61. In his crossexamination, P.W.1Ali Sher Khan
has clearly admitted that it is Momin Khan and family who
had dispute with him over the property of brickkiln. The
said dispute was over details of accounts. He has admitted
that accused Nos. 3 and 4 had nothing to do with regard to
brickkiln of his father deceased Mausam Khan. It will be
relevant to refer to the original hindi version of the evidence
of P.W.1Ali Sher Khan, which is as under:
“यह बबात सहह हहकह जयकम व सबाजजद कबा ममेरमेजपितबा ममौसम
खबान समेभट्टबा कमे लमेनमेकबा नहहहथबा|”
62. P.W.1Ali Sher Khan has categorically admitted in
his crossexamination that the shares in the agricultural
land between his father deceased Mausam Khan and Zafar
50
Khan, father of Jaikam Khan (A3), were separate. He has
further admitted that the names of Zafar Khan and his four
sons have been entered in the records and he has seen that
Khatauni was recorded in the name of Zafar’s sons, Jaikam
Khan and Yameen.
63. It will also be relevant to refer to the admission of
P.W.2Jaan Mohammad in his crossexamination, which is
as under:
“It is correct that Jaikam Khan and Sajid
Khan had no dispute with Mausam
Khan. It is also correct that Jaikam
Khan and Sajid Khan had no
partnership in the Kiln of Mausam Khan
and Alisher.”
64. It could thus be seen that the alleged motive, if
any, is attributable to the accused No.1Momin Khan.
P.W.1Ali Sher Khan and P.W.2Jaan Mohammad have
admitted that Jaikam Khan (A3) and Sajid (A4) had
nothing to do with the brickkiln business of deceased
Mausam Khan. They have further admitted that there was
no dispute with regard to brickkiln amongst his father
deceased Mausam Khan on one hand and accused Nos. 3
51
and 4 on the other hand. It is further to be noted that even
according to P.W.1Ali Sher Khan, the dispute between his
father deceased Mausam Khan and accused No.1Momin
Khan with regard to brickkiln took place in the year 2010.
Though P.W.1Ali Sher Khan states in his crossexamination that heated exchanges regarding brickkiln
took place between Momin Khan (A1) and his father
deceased Mausam Khan, during last 34 years, no incident,
which would cause provocation to lead to such dastardly
act, has been brought on record. On the contrary, he
admitted in his crossexamination that though quarrel took
place between his father deceased Mausam Khan and
Momin Khan (A1), no quarrel took place between Momin
Khan (A1), deceased Shaukeen Khan and himself. He
further admitted that decisions were taken through the
relatives but Momin Khan (A1) did not accept it.
65. It could thus be seen that with regard to Jaikam
Khan (A3) and Sajid (A4), the prosecution has utterly
failed to prove any motive and has also failed to prove any
strong motive insofar as Momin Khan (A1) is concerned.
52
66. The matter does not end at this. There are
various other inconsistencies and lacunae in the
prosecution case.
67. According to P.W.1Ali Sher Khan and P.W.2
Jaan Mohammad, a large number of villagers had gathered
at the spot after the incident. However, none of the
independent witnesses have been examined by the
prosecution. Since the witnesses examined on behalf of the
prosecution are interested witnesses, nonexamination of
independent witnesses, though available, would make the
prosecution version doubtful. Reference in this respect
could be placed on the following observations of this Court
in the case of State of Rajasthan v. Teja Singh and
others5
:
“5. In regard to the next argument of the
appellant's counsel that the High Court
was wrong in assuming that other villagers were sitting with PWs 6, 7 and 9,
assuming that it is an error even then
there can be no doubt as could be seen
from the prosecution case that other villagers whether sitting with PWs 6, 7 and
9 or not did rush to the scene of occurrence, therefore, it is clear that apart
5 (2001) 3 SCC 147
53
from the said eyewitnesses produced by
the prosecution many other villagers
would have at least seen the last part of
the occurrence including the escape of
the accused and the accused not being
strangers to the villagers could have
been easily identified by them. By not
examining those independent witnesses,
the prosecution has failed to produce the
available independent corroborative evidence to support the evidence of interested witnesses, namely, PWs 6, 7 and 9
because of which the High Court was
justified in drawing adverse inference
against the prosecution…”
68. The evidence of P.W.9Brahmesh Kumar Yadav
(I.O.) would show that though fingerprints were taken at the
spot, the fingerprint expert’s report is not placed on record.
Similarly, his further evidence would reveal that though he
had come to the spot with the dog squad, report of the dog
squad is also not placed on record. In our view, the said
also casts a doubt with regard to the genuineness of the
prosecution case.
69. Apart from that, it could be seen that, though it is
the assertion of P.W.1Ali Sher Khan and P.W.2Jaan
Mohammad that they together had gone to the police station
to lodge the report, the same has been contradicted by the
54
evidence of P.W.4Manveer Singh, who was the Constable
Clerk at the police station. He has stated in his evidence
thus:
“The complainant had come at the police
station with the written complaint. Only
Alisher had come to me at the Police
Station with the written complaint. No
other one had come.”
70. Coupled with the fact that though P.W.1Ali Sher
Khan and P.W.2Jaan Mohammad, had mobile phones, they
had not informed the Police on phone, also casts a serious
doubt with regard to the genuineness of the prosecution
case.
71. Insofar as the reliance placed by Shri Vinod
Diwakar, learned AAG on the burden not being discharged
by the accused and no explanation given by them in their
Section 313 Cr.P.C. statement is concerned, it is trite law
that only after the prosecution discharges its burden of
proving the case beyond reasonable doubt, the burden
would shift on the accused. It is not necessary to reiterate
this proposition of law. It will suffice to refer to the
55
following observations of this Court in the case of Joydeb
Patra and others v. State of West Bengal6
:
“10. We are afraid, we cannot accept this
submission of Mr Ghosh. This Court has
repeatedly held that the burden to prove
the guilt of the accused beyond reasonable
doubt is on the prosecution and it is only
when this burden is discharged that the
accused could prove any fact within his
special knowledge under Section 106 of the
Evidence Act to establish that he was not
guilty. In Sucha Singh v. State of Punjab [(2001) 4 SCC 375 : 2001 SCC (Cri)
717] this Court held: (SCC p. 381, para 19)
“19. We pointed out that Section 106
of the Evidence Act is not intended to relieve the prosecution of its burden to
prove the guilt of the accused beyond
reasonable doubt, but the section would
apply to cases where the prosecution
has succeeded in proving facts for which
a reasonable inference can be drawn regarding the existence of certain other
facts, unless the accused by virtue of
special knowledge regarding such facts
failed to offer any explanation which
might drive the court to draw a different
inference.”
Similarly, in Vikramjit Singh v. State of Punjab [(2006) 12 SCC 306 : (2007) 1 SCC (Cri)
732] this Court reiterated: (SCC p. 313,
para 14)
“14. Section 106 of the Evidence Act
does not relieve the prosecution to prove
its case beyond all reasonable doubt.
Only when the prosecution case has
6 (2014) 12 SCC 444
56
been proved the burden in regard to
such facts which was within the special
knowledge of the accused may be shifted
to the accused for explaining the same.
Of course, there are certain exceptions to
the said rule e.g. where burden of proof
may be imposed upon the accused by
reason of a statute.””
In that view of the matter, we do not find any
merit in the said submissions.
72. While coming to the conclusion that the
prosecution has failed to bring home the guilt of the
accused beyond reasonable doubt, we are at pains to
observe the manner in which the present case has been
dealt with by the trial court as well as by the High Court,
particularly, when the trial court awarded death penalty to
the accused and the High Court confirmed it. The trial
court and the High Court were expected to exercise a greater
degree of scrutiny, care and circumspection while directing
the accused to be hanged till death.
73. Though there are serious infirmities on various
counts in the judgment of the trial court, we refer to only
one paragraph of the said judgment:
57
“The above mentioned recovery of bloodstained clothes of the accused Momin,
Jaikam, Sajid and Nazra also proves the
involvement of them in the crime. The
above recovery also indicates to this fact
that the entire episode of the murders
was a preplanned one and that a
comprehensive strategy was chalked out
for it. All the accused gathered at the
house of the accused Momin prior to
committing the murders. They already
knew that on committing murders by
sharp weapons, the splashes of blood
would hurl at their clothes because of
which, if they don’t change their clothes,
they would be not be able to hide their
crime during being absconded. That is
why, they had already managed
additional clothes for them in the house
of the accused Momin. After committing
the crime, they as per the planning, went
to Momin’s house, changed their clothes
and ran away. Opening the lock of their
home by sons and daughters of Momin
on the third day of the occurrence also
indicates that either Momin’s all sons
and daughters were at home at the time
of the occurrence and they left from the
house with the accused after the
occurrence or Momin’s and Nazra’s kids
were not at all present there in the
house at the time of occurrence and that
all the kids were sent to their grandparent’s house prior to the occurrence.
Since the crime was committed in a well
and pre – planned way, it seems more
probable that the kids were sent to their
grandparent’s home prior to the
occurrence. If this probability is
accepted, the arrest of the accused
58
Nazra after the occurrence, and the
arrest of the remaining three accused viz
Momin, Sajid and Jaikam at the Rajghat
Chauraha at 2.00 ‘O’ clock at night not
taking place but in the morning at 6.30
‘O’ clock becomes important. It indicates
that Nazra, after the occurrence, was
gone to her kids for meeting them and
delivering them the keys of home.
Thereafter, as per the preplanned
program, she had to reach the same
Rajghat Chauraha, where the remaining
three accused had already been arrested
at night. All the accused may have
planned to gather at the same Chauraha
and run away together from here and
that is why, they kept on waiting for
Nazra at the same place till 2.00 o’ Clock
at night. It is impossible because of this
reason also that if the occurrence took
place around 8.30 pm, the three accused
Momin, Zaikam and Sajid had sufficient
time after perpetrating this crime, to run
away very far. However, standing at
Rajghat Chauraha till 2.00 am, indicates
that they were waiting there for Nazra to
come.”
74. To say the least, we are shocked at the aforesaid
finding. The narration makes for an interesting reading as a
story. However, all the observations are nothing but
conjectures and surmises, without there being any
evidentiary support to them. It is really surprising, as to
how the Additional Sessions Judge could have dealt with
59
the present case in such a casual manner when he was
considering the question of life and death of four accused.
75. At this stage, we would like to remind ourselves
as well as all the Courts in the country the golden principle
to be followed in criminal jurisprudence. This Court,
speaking through legendry H.R. Khanna, J., in the case of
The State of Punjab v. Jagir Singh, Baljit Singh and
Karam Singh7
observed thus:
“23. A criminal trial is not like a fairy
tale wherein one is free to give flight to
one's imagination and phantasy. It concerns itself with the question as to
whether the accused arraigned at the
trial is guilty of the crime with which he
is charged. Crime is an event in real life
and is the product of interplay of different human emotions. In arriving at the
conclusion about the guilt of the accused charged with the commission of a
crime, the court has to judge the evidence by the yardstick of probabilities,
its intrinsic worth and the animus of
witnesses. Every case in the final analysis would have to depend upon its own
facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same
time reject evidence which is ex facie
trustworthy on grounds which are fanciful or in the nature of conjectures.”
7 (1974) 3 SCC 277
60
76. We are amazed by the manner in which the High
court has dealt with the present matter. It will be apposite
to refer to the following observations of the High Court with
regard to the recovery of clothes.
“It has been urged that in order to prove
the recovery of the clothes, no
independent witness was produced. It is
correct that the prosecution only
produced the formal witness to prove the
recovery, but on the other hand the
disclosure of this fact about the room
having been opened by the keys provided
by Hina, the daughter of accused Momin
was not rebutted by the defence which
could have been done by producing Hina
in order to deny any such recovery.”
77. The finding is not only contrary to the well settled
law interpreting Section 27 of the Evidence Act but also
attempts to put a burden on the accused, which does not
shift unless prosecution has proved the case beyond
reasonable doubt.
78. The following observations of the High Court
would also fall in the ambit of conjectures and surmises:
“There is yet another dimension which
deserves mention namely, with the
61
multiple nature of injuries and six
persons being slaughtered
simultaneously, the same cannot be an
act of a single assailant. The presence,
therefore, of the three assailants Momin,
Jaikam and Sajid cannot be ruled out as
there is no doubt that such nature of
assault in the natural course of things
would be carried out by more than one
person.”
79. Another finding of the High Court, which makes
for an interesting reading and is foreign to criminal
jurisprudence is thus:
“The question of motive in relation to
Jaikam and Sajid may not be immediate
and they being a separate family may be
correct. This however by itself may not
be sufficient to dilute the connection of
Sajid and Jaikam with Momin. However
on this count, we find that the trial court
has raised a presumption about jealousy
amongst the families on account of
Mausam Khan having developed his
business and augmented his earnings
through a brick klin. This part of the
discussion of the trial court does not
find sufficient corroboration from the
evidence on record, and therefore, the
motive appears to be remote and not a
very strong motive. This, however, does
not mean to say that there was no
connection with Jaikam and Sajid with
Momin, who did appear to be on friendly
terms and this fact is reflected from the
statement of the witnesses particularly,
62
PW1 and PW2, where they have
indicated an attitude of vengeance being
present for certain reasons. Thus even
though a strong motive may not have
been established and the reasonings of
the trial court may be a little stretched,
yet the same would not wipe out their
presence particularly when the ocular
testimony to establish their presence
when the offence was committed.”
80. Further, it can be seen that, the very same
Judges of the High Court refused to believe the very same
evidence of prosecution witnesses in respect of accused
No.2Nazra. The High Court observed thus:
“The arrest of Smt. Nazra has been
shown from a public place in the
morning at about 6.40 am whereas Smt.
Nazra claims to be present at the police
station with her children. There is no
independent witness of her arrest. On
crossexamination, PW9 the
investigating officer has stated that he
does not remember as to whether Smt.
Nazra was at the police station with her
children or not. He however denies her
arrest at the police station. PW2 in his
crossexamination on 20.03.2015 has
stated that when he went to the police
station for lodging of the first
information report, then Momin, Jaikab,
Sajid and Nazra were all present at the
police station. This testimony of PW2
corroborates his presence at the police
station with PW1 informant who has
63
admitted having gone to the police
station with his brotherinlaw PW2.
The story of arrest of Nazra at 6:40 am
the next day morning in these
circumstances as set up by the
prosecution is therefore clearly doubtful.
This aspect further adds to the doubts
expressed above.”
81. We ask a question to ourselves, if the arrest of
the accused No.2Nazra was from a public place, was the
arrest of the accused Nos. 1, 3 and 4 from any other place
than the place from where the accused No.2Nazra was
apprehended. If according to the High Court, there is no
independent witness of her arrest, is there any independent
witness for arrest of accused Nos. 1, 3 and 4. If on the
basis of evidence of P.W.2Jaan Mohammad, who has
deposed in his crossexamination, that, when he went to the
police station for lodging the F.I.R., he found Momin Khan
(A1), Jaikam Khan (A3), Sajid (A4) and Nazra (A2)
present in the police station, which, according to the High
Court, is corroborated by the testimony of P.W.1Ali Sher
Khan and, therefore, the story of arrest of Nazra (A2) at
6.40 a.m. was found to be unbelievable, then how was it
different from the arrest of accused Nos. 1, 3 and 4, which
64
was shown to be at 2.00 a.m. on 24th January, 2016, i.e.,
much after the time of lodging the F.I.R. The High Court
further goes on to have an academic discussion with regard
to the possibility, preponderance of probability, a scientist
conducting his experiments with great care, choosing
between two or more possibilities, and preponderates of one
over the other, etc. The law, however, that is fully settled, is
that, it is the duty of the prosecution to prove the case
beyond reasonable doubt.
82. We may gainfully refer to the following
observations of this Court in the case of Anand
Ramachandra Chougule v. Sidarai Laxman Chougala
and others8
:
“10. The burden lies on the prosecution to
prove the allegations beyond all reasonable
doubt. In contradistinction to the same, the
accused has only to create a doubt about
the prosecution case and the probability of
its defence. An accused is not required to
establish or prove his defence beyond all
reasonable doubt, unlike the prosecution.
If the accused takes a defence, which is not
improbable and appears likely, there is material in support of such defence, the ac8 (2019) 8 SCC 50
65
cused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its
case beyond all reasonable doubt.
11. The fact that a defence may not have
been taken by an accused under Section
313 CrPC again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which
the prosecution is unable to answer, the
weakness in the defence taken cannot become the strength of the prosecution to
claim that in the circumstances it was not
required to prove anything. In Sunil
Kundu v. State of Jharkhand [Sunil
Kundu v. State of Jharkhand, (2013) 4 SCC
422 : (2013) 2 SCC (Cri) 427] , this Court
observed : (SCC pp. 43334, para 28)
“28. … When the prosecution is not
able to prove its case beyond reasonable
doubt it cannot take advantage of the
fact that the accused have not been able
to probabilise their defence. It is well settled that the prosecution must stand or
fall on its own feet. It cannot draw support from the weakness of the case of the
accused, if it has not proved its case beyond reasonable doubt.””
83. We, therefore, find that the prosecution has
utterly failed to prove the case beyond reasonable doubt.
The conviction and death sentence imposed on the accused
is totally unsustainable in law.
66
Insofar as the appeal filed by the P.W.1Ali Sher
Khan with regard to acquittal of accused No.2Nazra is
concerned, it is sans any merit.
84. In the result:
(a) Criminal Appeal Nos. 440441 of 2020 filed by
Momin Khan (Accused No.1); Criminal Appeal
Nos. 434436 of 2020 filed by Jaikam Khan
(Accused No.3); and Criminal Appeal Nos. 437
439 of 2020 filed by Sajid (Accused No.4) are
allowed;
(b) Momin Khan (Accused No.1), Jaikam Khan
(Accused No.3) and Sajid (Accused No.4) are
directed to be released forthwith, if not required
in any other offence.
(c) Criminal Appeal No. 442 of 2020 filed by P.W.1
Ali Sher Khan, is dismissed.
85. The appeals are disposed of in the above terms.
All pending applications shall also stand disposed of.
86. Before we part with the judgment, we must
appreciate the valuable assistance rendered by Smt. Nitya
67
Ramakrishnan, learned Senior Counsel appearing on behalf
of accused No.1 as well as acquitted original accused No.2,
Shri Dama Seshadri Naidu, learned counsel for accused
Nos. 3 and 4, and Shri Vinod Diwakar, learned Additional
Advocate General appearing on behalf of the State of Uttar
Pradesh.
…….…....................., J.
[L. NAGESWARA RAO]
…….…....................., J.
[B.R. GAVAI]
…….…....................., J.
[B.V. NAGARATHNA]
NEW DELHI;
DECEMBER 15, 2021
