JAIKAM KHAN versus THE STATE OF UTTAR PRADESH
[2021] 14 S.C.R. 767, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Ratio
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[2021] 14 S.C.R. 767
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JAIKAM KHAN
v.
THE STATE OF UTTAR PRADESH
(Criminal Appeal No. 434-436 of 2020)
DECEMBER 15, 2021
[L. NAGESWARA RAO, B.R. GAVAI AND
B.V. NAGARATHNA, JJ.]
Criminal Law – Murder – Interested and related witnesses –
Deceased had four sonsincluding the appellant--accused No.1 and
P.W.1-–Six persons were murdered at different places in thehouse,
witnessed by P.W.1- and P.W.2- (P.W.1-’s brother-in-law) – One was
killed in angan, two in verandah, two inroom and one was killed in a
room upstairs –Appellants--accused Nos. 1, 3 and 4 convicted for
offence punishable u/ss.302/34 IPC and sentenced to death –
Accused No.2 was acquitted– On appeal, held: Both P.W.1- and
P.W.2- are witnesses, who are closely related to the deceased as
well as the accused No.1–These two witnesses cannot be considered
to be wholly reliable to base an order of conviction solely on their
testimonies –However, they cannot be said to be wholly unreliable
either – They would fall in the category of ‘neither wholly reliable
nor wholly unreliable’– A 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 – Even if the evidence of P.W.1 and P.W.2- is
taken at its face value, the accused have murdered six deceased at
different places andif their version is compared with the site-plans,
it is difficult to believe that they could have
also seen the accused
assaulting the deceased who were killed in the rooms which are in
the middle portion of the house or in the room upstairs –P.W-9 (IO)
admitted that P.W.1- and P.W.2- had not told him about their hideouts
and that is why it was not mentioned in the site- plan – Prosecution
failed to prove the case beyond reasonable doubt–Conviction and
death sentence imposed on the accused is unsustainable in law, to
be released– Appeal filed against acquittal of Accused No.2 is also
sans any merit –Penal Code, 1860 – ss.302/34 – Arms Act – s.25/4–
Evidence Act, 1872 – Code of Criminal Procedure, 1973 – s.313.
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Evidence – Murder – Related witnesses – Credit worthiness
of – Held: 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.
Evidence – Murder – Non-examination of independent
witnesses – Held: A large number of villagers had gathered at the
spot after the incident – However, none of the independent witnesses
were examined by the prosecution – Since the witnesses examined
on behalf of the prosecution are interested witnesses, non-
-examination of independent witnesses, though available, would
make the prosecution version doubtful.
Evidence – Other circumstances – Murder of six persons at
different places in the house – Eye-witnesses were related witnesses
and were found not wholly reliable – Other circumstances relied on
by the prosecution – Discussed.
Evidence Act, 1872 – s.27– Murder –Recovery of bloodstained
clothes allegedly worn by the accused while committing the crime –
Held: Said clothes were not recovered on the memorandum of the
accused u/s.27 and as such, the said circumstance could not have
been used against the accused.
Evidence Act, 1872 – s.27 – Held: Only such information,
which
distinctly relates to the discovery of facts will be admissible
u/s.27 – In the present case, one of the alleged recoveries is from
the room where one of the deceased used to sleep –Other two
recoveries are from open field, just behind the house of other
deceased, i.e., the place of incident –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.
Criminal Law – Motive – Proof of – Held: In case of direct
evidence and the ocular testimony of the eye-witness being found
to be reliable and cogent, it will not be necessary for the prosecution
to prove the motive for the crime – However, in the present case, the
testimony of the eye-witnesses could not be said to be wholly reliable,
thus the motive would be a relevant factor.
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Criminal Law – Criminal Jurisprudence –Prosecution failed
to prove guilt of accused beyond reasonable doubt – Death penalty
awarded by Trial Court, confirmed by High Court – Deprecation
by Supreme Court.
Allowing the appeals filed by accused persons while
dismissing that of the P.W-1, the Court
HELD: 1.1 Both P.W.1- and P.W.2 are witnesses, who are
closely related to the deceased as well as the accused No.1.
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. Both P.W.1- and P.W.2- are witnesses, who are closely
related to the deceased and the accused No.1-. Therefore, it will
be necessary to scrutinise their evidence with more care, caution
and circumspection. Even if the evidence of P.W.1 and P.W.2 is
taken at its face value, the accused have murdered six deceased
at different places. As per the admission given by P.W.1-, the
house of the accused No.1- 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 cross-examination that Shaukeen Khan (brother)
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 mother-Asgari and nephew Samad
were murdered in the room which is 15 steps away from the
kitchen, whereas deceased Shanno (sister-in-law) 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. [Paras 28, 31 and 32]
[785-A-B; 786-E, F-H; 787-A]
1.2 A perusal of the evidence of the P.W.1 and the evidence
of P.W.9- would reveal that the first site-plan (Exhibit Ka-51) was
prepared by P.W.9 on P.W.1-’s pointing out the details. All the
three site-plans (Exhibits Ka-51, Ka-52 and Ka-45) have been
JAIKAM KHAN v. THE STATE OF UTTAR PRADESH
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prepared by P.W.9-, the I.O. The first site-plan (Exhibit Ka-51)
shows the places where the dead bodies of the deceased were
found. Serial No.1 in the said site--plan 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 site-plan show the direction in which the
accused fled away from the rear gate. It is to be seen that in the
said site-plan, the room on the southern side is not shown. The
second site-plan (Exhibit Ka-52) is with regard to the recovery
of weapons made at the instance of the accused from the field of
the deceased Shaukeen Khan. The third site-plan (Exhibit
Ka-45), 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. In the last two
site-plans at Exhibit Ka--52 and Exhibit Ka-45, a room has been
shown on the southern side. According to the evidence of P.W.1,
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 site-plan (Exhibit Ka-45), the gate of
the said room on southern side, opens towards west. As per the
version of P.W.2, he has witnessed the incident from the place
where the buffaloes are tethered, which is adjacent to the
bathroom. Though the bathroom is not shown in the site-plan,
believing it to be adjacent to the place where buffaloes are
tethered, it will be in the south-west corner. [Paras 35, 37-43]
[787-F-G; 791-A-H]
1.3 As per the testimonies of P.W.1 and P.W.2, firstly
Mausam Khan was assaulted and done away with in veranda,
whereas deceased Shaukeen Khan was done away with in the
court- yard. Deceased Muskan, Asgari and Samad were assaulted
in the rooms, which are in the middle portion of the house.
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According to these witnesses, Shanno Begam was assaulted
upstairs. If the version of these two witnesses is compared with
the site--plans, then the position that emerges would reveal that
P.W.1-, at the most, could have witnessed the assault on deceased
Shaukeen Khan, whereas P.W.2 could have witnessed the assault
on deceased Mausam Khan and deceased Shaukeen Khan.
However, since from the perusal of the first site -plan (Exhibit
Ka--51), it could be seen that the dead -bodies of deceased
Muskan, Samad, and Asgari were inside the house, and the dead
-body of deceased Shanno Begam was 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.9- in his cross- examination has admitted
that P.W.1 and P.W.2- had not told him about their hideouts and
that is why it was not mentioned in the site- plan. These two
witnesses cannot be considered to be wholly reliable to base an
order of conviction solely on their testimonies.As already
discussed, though P.W.1- could have witnessed the assault on
deceased Shaukeen Khan and P.W.2- 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. 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, a
greater degree of care and caution would be required and
acorroboration in material particulars by reliable testimony, direct
or circumstantial, would be necessary to pass an order of
conviction. [Paras 44,45 and 47][792-A-E; 793-C-D]
Vadivelu Thevar & another v. The State of Madras
(1957) SCR 981 – relied on.
2.1 The other circumstances relied on by the prosecution-
Arrest of the accused immediately after the incident:
It is 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. The alleged informer has neither been
named nor has he been examined. It is further difficult to believe
JAIKAM KHAN v. THE STATE OF UTTAR PRADESH
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that accused No.2- was wandering in the village and coincidently
at 6.40 a.m., crossed paths with P.W.9-(I.O.), when he was
returning to the police station along with other accused. It is
clear admission of P.W.2 -that when he and P.W.1 had gone to the
police station to give the written report, (A-1), (A-2), (A-3) and
(A-4) 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.1 and P.W.2 were present. If the
version of P.W.2-, that all the four accused were present at the
police station when they had gone to lodge 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 is mysterious. [Paras 52, 53][794-G-H;
795-A-D]
2.2 Recovery of the weapons alleged to have been used in
the crime at the instance of the accused.
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 arrest-cum-recovery memo,
which is at Exhibit Ka-49. 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. 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. 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. [Paras 54-56][795-D-E; 796-E-F;
797-C-F]
2.3 Recovery of the bloodstained clothes alleged to have
been worn by the accused while committing the crime.
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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.1-, the house of (A-1) is at a distance of
10-15 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 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 A-1’s house, had changed their clothes
and kept them at A-1’s 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.
[Para 58][798-C-E]
2.4 Motive
In case of direct evidence and the ocular testimony of the
eye-witness 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,the testimony of the
eye-witnesses could not be said to be wholly reliable, the motive
aspect would be a relevant factor.As per the prosecution version,
the main motive behind the crime was with
regard to the dispute
over the management of the brick-kiln between the accused No.1-
on one hand and deceased Mausam Khan, deceased Shaukeen
Khan and P.W.1- on the other hand.In his cross-examination,
P.W.1has clearly admitted that it is A-1 and family who had dispute
with him over the property of brick-kiln. The said dispute was
over details of accounts. He has admitted that accused Nos. 3 and
4 had nothing to do with regard to brick-kiln of his father deceased
Mausam Khan. With regard to (A-3) and (A-4), the prosecution
has utterly failed to prove any motive and has also failed to prove
any strong motive insofar as (A-1) is concerned. There are various
other inconsistencies and lacunae in the prosecution
case. According to P.W.1 and P.W.2, a large number of villagers
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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, non-examination of independent witnesses,
though available, would make the prosecution version doubtful.
The evidence of P.W.9 (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. This also casts a doubt with
regard to the genuineness of the prosecution case. Apart from
that, it could be seen that, though it is the assertion of P.W.1 and
P.W.2 that they together had gone to the police station to lodge
the report, the same has been contradicted by the evidence of
P.W.4-, who was the Constable Clerk at the police station. Coupled
with the fact that though P.W.1 and P.W.2, 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. 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. To be released forthwith, if not
required in any other offence.Theappeal filed by the P.W.1 with
regard to
acquittal of accused No.2 is sans any merit. [Paras 59-61,
65-70, 83 and 84][800-E-G; 801-D-E, F-G; 808-B-E]
State of Rajasthan v. Teja Singh and others (2001) 3
SCC 147; Joydeb Patra and others v. State of West
Bengal (2014) 12 SCC 444 : [2013] (4) SCR 192; The
State of Punjab v. Jagir Singh, Baljit Singh and Karam
Singh (1974) 3 SCC 277 : [1974] (1) SCR 328; Anand
Ramachandra Chougule v. Sidarai Laxman Chougala
and others (2019) 8 SCC 50 : [2019] (11) SCR 14 –
relied on.
Piara Singh and others v. State of Punjab (1977) 4 SCC
452 : [1978] (1) SCR 597; Anil Phukan v. State of Assam
(1993) 3 SCC 282 : [1993] (2) SCR 389 – referred to.
Pulukuri Kottayya and others v. King Emperor AIR 1947
PC 67 – referred to.
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Case Law Reference
[1978] (1) SCR 597
referred to
Para 29
[1993] (2) SCR 389
referred to
Para 30
(1957) SCR 981
relied on
Para 46
(2001) 3 SCC 147
relied on
Para 67
[2013] (4) SCR 192
relied on
Para 71
[1974] (1) SCR 328
relied on
Para 75
[2019] (11) SCR 14
relied on
Para 82
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 434-436 of 2020.
From the Judgment and Order dated 18.05.2018 of the High Court
of Judicature of Uttar Pradesh at Allahabad in Reference (No.1 of 2016)
and Capital Cases No.602 and 844 of 2016.
With
Criminal Appeal Nos. 442, 437-439 and 440-441 of 2020.
Vinod Diwakar, AAG, Ms. Nitya Ramakrishnan, Sr. Adv., Dama
Seshadri Naidu, Ms. Shivali Chaudhary, Ananvay Anandvardhan,
Siddharth Chapalgaonkar, Ashish Virmani, Anant Agarwal, Ms. Sweta
Rani, Ms. Ritika Khanna, Vibhor Jain, Ms. Vinodthana Vinjam, Ms. Harini
Raghupathy, Ankit Kumar Lal, Sarvesh Singh Baghel, Rajan Kumar
Chourasia, Upendra Mishra, Rajendra Kumar Singh, Ms. Arpika Singhal,
B. N. Dubey, Prasanna S., Yuvraj Singh Rathore, Ms. Vinoothna V.,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
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
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,
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the High Court has, however, allowed the appeal of the original accused
No.2-Nazra 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. 434-436 of 2020 are
filed by Jaikam Khan (Accused No.3); Criminal Appeal Nos. 437-439
of 2020 are filed by Sajid (Accused No.4); and Criminal Appeal Nos.
440-441 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.1-Ali Sher Khan”)
being aggrieved by the order of acquittal of original accused No.2-Nazra.
3. Appellant-Momin Khan (A-1), deceased Shaukeen Khan, P.W.1-
Ali 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.1-Ali Sher Khan.
4. Appellant-Jaikam Khan (A-3) is the first cousin of deceased
Shaukeen Khan, appellant-Momin Khan (A-1) and P.W.1-Ali Sher Khan.
Appellant-Sajid (A-4) is the son of appellant-Jaikam Khan (A-3). Original
Accused No.2-Nazra, who was convicted by the trial Court and acquitted
by
the High Court, is the wife of appellant-Momin Khan (A-1).
5. It is the prosecution case that deceased Shaukeen Khan and
P.W.1-Ali Sher Khan were not in good terms with Momin Khan (A-1)
and his wife Nazra (A-2). Therefore, deceased Mausam Khan (father)
had separated all the brothers and allotted their respective share of
properties. The houses of each one of them were in one compound.
Deceased Mausam Khan (father) owned a brick-kiln. In the beginning,
appellant-Momin Khan (A-1) used to run the brick-kiln, but he did not
give the money earned by him from the brick-kiln to deceased Mausam
Khan (father) and his elder brother, deceased Shaukeen Khan. Therefore,
deceased Mausam Khan (father) had dispossessed Momin Khan (A-1)
from the brick-kiln. Thereafter, deceased Mausam Khan and P.W.1-Ali
Sher Khan were running the brick-kiln with the help of his brother
deceased Shaukeen Khan. Jaikam Khan (A-3) and Sajid (A-4) were
jealous with their growing business and so a case was also lodged for
laying bricks over the disputed land. Thereafter enmity arose between
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them, and the younger brother Momin Khan (A-1) joined the company
of his uncle’s son i.e. Jaikam Khan (A-3) and Jaikam Khan (A-3)’s son
Sajid (A-4).
6. On the fateful day of the incident, i.e., 23rd January, 2014, at
around 8.30 p.m., P.W.1-Ali Sher Khan and his brother-in-law, P.W.2-
Jaan Mohammad, were present at home i.e. the place of incident. At
that time, Momin Khan (A-1) with his wife Nazra (A-2) along with
Jaikam Khan (A-3) and Sajid (A-4) came armed with knives and
assaulted Mausam Khan (father), Asgari (mother), Shaukeen Khan
(brother), Shanno (sister-in-law), Samad (nephew) and Muskan (niece)
and killed them brutally. P.W.1-Ali Sher Khan and his brother-in-law,
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 back-door.
7. Immediately after the incident, P.W.1-Ali Sher Khan and P.W.2-
Jaan Mohammad went to Police Station Narora, District Bulandshahr. On
the basis of the report given by P.W.1-Ali 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 charge-sheet came to be filed before the concerned Judicial
Magistrate. The case was committed to the court of Sessions.
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 appellants-accused 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 No.1 of 2016 for confirmation of the death sentence
awarded by it.
JAIKAM KHAN v. THE STATE OF UTTAR PRADESH
[B. R. GAVAI, J.]
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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.2-Nazra and acquitted her of the charges
under Section 302/34 of the IPC.
11. Being aggrieved thereby, Momin Khan (A-1), Jaikam Khan
(A-3), Sajid (A-4) and P.W.1-Ali Sher Khan are before this Court in the
present appeals.
12. We have heard Smt. Nitya Ramakrishnan, learned Senior
Counsel appearing on behalf of appellant- Momin Khan (A-1) as well as
acquitted original accused No.2-Nazra, Shri Dama Seshadri Naidu,
learned counsel for appellants-Jaikam Khan (A-3) and Sajid (A-4), Shri
Anant Agarwal, learned counsel for appellant- P.W.1-Ali Sher Khan
and Shri Vinod Diwakar, learned Additional Advocate General appearing
on behalf of the respondent-State of Uttar Pradesh.
13. Smt. Nitya Ramakrishnan, learned Senior Counsel appearing
on behalf of the appellant-Momin Khan (A-1) would submit that the
entire case rests on the ocular testimony of P.W.1-Ali Sher Khan and
P.W.2-Jaan Mohammad, who are said to have witnessed the incident
from the kitchen and the cattle-shed 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.2-Nazra is concerned. She submits that when the
ocular testimony of P.W.1-Ali Sher Khan and P.W.2-Jaan 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 site-plans at Exhibits Ka-51, Ka-52 and Ka-
45. It is, however, submitted that in none of the site-plans, the location of
the kitchen and the bathroom (which is supposed to be adjacent to cattle-
shed) has been shown. She submits that as such, there is a serious doubt,
as to whether P.W.1-Ali 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
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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 non-examination of
independent witnesses, though they were very much available.
15. Learned Senior Counsel further submits that both P.W.1-Ali
Sher Khan and P.W.2-Jaan 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.1-Ali
Sher Khan and P.W.2-Jaan Mohammad would have informed the 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
(A-3) had filed an application for producing the Call Detail Records
(hereinafter referred to as “C.D.Rs.”) of P.W.1-Ali Sher Khan and
P.W.2-Jaan 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 Ka-49), 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
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.2-
Nazra, 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
JAIKAM KHAN v. THE STATE OF UTTAR PRADESH
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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.
18. Shri Dama Seshadri Naidu, learned counsel appearing on behalf
of Jaikam Khan (A-3) and Sajid (A-4), 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 (A-3) 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.1-Ali 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.1-Ali Sher Khan on one side and Jaikam Khan
(A-3) and Sajid (A--4) on the other. The alleged enmity was with Momin
Khan (A-1), 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.
19. Learned counsel submits that even the evidence of P.W.2-
Jaan 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 (A-1), would keep their bloodstained clothes at the house of Momin
Khan (A-1) 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.1-Ali Sher Khan and P.W.2-Jaan Mohammad are related witnesses,
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.
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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 site-plans, it cannot
be a ground to disbelieve the ocular testimony of P.W.1-Ali Sher Khan
and P.W.2-Jaan 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 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.1-Ali Sher Khan, would submit that when the Additional Sessions
Judge on the basis of correct appreciation of evidence convicted accused
No.2-Nazra, 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.1-
Ali Sher Khan and P.W.2-Jaan Mohammad, we find that it will be
appropriate to reproduce relevant part of their examination-in-chief:
Examination-in-chief of P.W.1-Ali Sher Khan
“My father had brick-klin and due to the same brick-klin, the
accused -persons present in court namely Jaikam Khan, 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
JAIKAM KHAN v. THE STATE OF UTTAR PRADESH
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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 brother-in-law 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 the gate. My sister-in-law Sanno,
who had come downstairs hearing hue & cry, was killed by them
going upstairs. My sister-in-law Sanno seeing the incident occurring
downwards (sic.) ran away. My brother-in-law 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 brother-in-law 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. ka-1. 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.”
Examination-in-chief of P.W.2-Jaan Mohammad
“1 - The incident took place on 23.01.2014. on the day of the
incident, I had come to the house of my father-in-law Mausam
Khan at Pilkhana village at 2 p.m. During the time of the incident,
I was present at the house of my father-in-law Mausam Khan.
The incident took place at around 8 pm. I know the accused persons
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who are present in the court namely Jaikam Khan, Sabid Khan,
Momeen Khan and Naazra. I had firstly seen the accused persons
at the house of my father-in-law 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 10-15 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 father-in-law 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 mother-in-law 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, 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 brother-in-law 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
father-in-law Mausam Khan. Momeen wanted to run the kiln but
my father-in-law Mausam Khan was not willing to give kiln to
Momeen. 2-3 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.
JAIKAM KHAN v. THE STATE OF UTTAR PRADESH
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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.1-Ali 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,
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 sister-in-law Shanno, who had come downstairs hearing the
hue and cry, was also killed by them going upstairs. According to him,
his brother-in-law, P.W.2-Jaan 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 brother-in-law, P.W.2-Jaan
Mohammad, had gone to the police station and lodged the report.
27. According to P.W.2-Jaan
Mohammad, on the day of the incident
i.e. 23rd January, 2014, he had come to the house of his father-in-law
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 father-in-law 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 father-in-law 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
mother-in-law 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.1-Ali Sher Khan and P.W.2-Jaan Mohammad are
witnesses, who are closely related to the deceased as well as the accused
No.1-Momin 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 credit-
worthy there is no bar in the Court relying on the said evidence.
…..”
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.
1 (1977) 4 SCC 452
2 (1993) 3 SCC 282
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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 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.1-Ali Sher Khan and P.W.2-Jaan
Mohammad are witnesses, who are closely related to the deceased and
the accused No.1-Momin Khan. Therefore, we find that it will be
necessary to scrutinise their evidence with more care, caution and
circumspection.
32. Even if the evidence of P.W.1-Ali Sher Khan and P.W.2-Jaan
Mohammad is taken at its face value, the accused have
murdered six
deceased at different places. As per the admission given by P.W.1-Ali
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 cross-examination 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 mother-Asgari and nephew Samad were murdered in the
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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.1-Ali Sher Khan’s deposition
in his cross-examination.
“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.9-Brahmesh Kumar Yadav, i.e. the I.O.
“I had prepared site-map on the day of occurrence on 24.1.14. I
had prepared the site-map of the scene of occurrence at the
instance of the case-complainant. I do not remember at what
time I started to prepared the site-map. I don’t even remember
how much time I took to prepare the site-map. I don’t remember
at what time I stopped preparing the site-map. I don’t remember
whether I had marked case-complainant’s hiding place in the site-
map or not. This is correct to state that the place, from where the
case-complainant has stated to hide and see the accused persons,
is not shown in the site-map. I had prepared the site-map of the
scene of”
35. A perusal of the evidence of the P.W.1-Ali Sher Khan and the
evidence of P.W.9-Brahmesh Kumar Yadav would reveal that the first
site-plan (Exhibit Ka-51) was prepared by P.W.9-Brahmesh Kumar Yadav
on P.W.1-Ali Sher Khan’s pointing out the details.
36. It will be appropriate to reproduce all the three site-plans,
which are as under:        “
JAIKAM KHAN v. THE STATE OF UTTAR PRADESH
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JAIKAM KHAN v. THE STATE OF UTTAR PRADESH
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37. It could thus be seen that all the three site-plans (Exhibits Ka-
51, Ka-52 and Ka-45) have been prepared by P.W.9-Brahmesh Kumar
Yadav, the I.O. The first site-plan (Exhibit Ka-51) was prepared on 24th
January, 2014. The second site-plan (Exhibit Ka-52) was prepared on
28th January, 2014 and the third site-plan (Exhibit Ka-45) was prepared
on 29th January, 2014.
38. The first site-plan (Exhibit Ka-51) shows the places where
the dead bodies of the deceased were found. Serial No.1 in the said site-
plan 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
site-plan show the direction in which the accused fled away from the
rear gate. It is to be seen that in the said site-plan, the room on the
southern side is not shown.
39. The second site-plan (Exhibit Ka-52) 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 site-plan (Exhibit Ka-45), 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 site-plans at Exhibit Ka-52 and Exhibit Ka-45,
a room has been shown on the southern side.
42. According to the evidence of P.W.1-Ali 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 site-
plan (Exhibit Ka-45), the gate of the said room on southern side, opens
towards west.
43. As per the version of P.W.2-Jaan Mohammad, he has witnessed
the incident from the place where the buffaloes are tethered, which is
adjacent to the bathroom. Though the bathroom is not shown in the site-
plan, believing it to be adjacent to the place where buffaloes are tethered,
it will be in the south-west corner.
JAIKAM KHAN v. THE STATE OF UTTAR PRADESH
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44. As per the testimonies of P.W.1-Ali Sher Khan and P.W.2-
Jaan Mohammad, firstly Mausam Khan was assaulted and done away
with in veranda, whereas deceased Shaukeen Khan was done away
with in the court-yard. 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 site-plans, then
the position that emerges would reveal that P.W.1-Ali Sher Khan, at the
most, could have witnessed the assault on deceased Shaukeen Khan,
whereas P.W.2-Jaan Mohammad could have witnessed the assault on
deceased Mausam Khan and deceased Shaukeen Khan. However, since
from the perusal of the first site-plan (Exhibit Ka-51), it could be seen
that the dead-bodies of deceased Muskan, Samad, and Asgari were
inside the house, and the dead-body of deceased Shanno Begam was
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.9-Brahmesh Kumar Yadav in his cross-
examination has admitted that P.W.1-Ali Sher Khan and P.W.2-Jaan
Mohammad had not told him about their hideouts and that is why it was
not mentioned in the site-plan.
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 well-established
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.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
3 (1957) SCR 981
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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.1-Ali Sher Khan could have witnessed the assault on
deceased Shaukeen Khan and P.W.2-Jaan 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 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.9-Brahmesh Kumar Yadav (I.O.), states that, on the basis of written
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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 complainant-
P.W.1-Ali 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 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.2-Nazra, met at Rajghat
Chauraha, seeing whom Momin Khan (A-1) 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.1-Ali Sher Khan, in his cross-examination, 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.2-Jaan Mohammad admitted in his cross-examination 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. The alleged informer has neither been named nor has he been
examined. It is further difficult to believe that accused No.2-Nazra 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.
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53. In this respect, it will also be relevant to refer to the testimony
of P.W.2-Jaan 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.2-Jaan Mohammad that when
he and P.W.1-Ali Sher Khan had gone to the police station to give the
written report, Momin Khan (A-1), Nazra (A-2), Jaikam Khan (A-3)
and Sajid (A-4) 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.1-Ali Sher Khan and P.W.2-Jaan Mohammad were
present. If the version of P.W.2-Jaan Mohammad, that all the four
accused were present at the police station when they had gone to lodge
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 arrest-cum-recovery memo, which is at
Exhibit Ka-49.
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 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
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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 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
4 AIR 1947 PC 67
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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 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.9-Brahmesh 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 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 Ka-34)
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.1-Momin Khan and accused No.2-Nazra came to the
house of the accused No.1-Momin Khan. At that place, Hina @
Yasmeen, daughter of accused No.1-Momin Khan and accused No.2-
Nazra, in the presence of her grandparents, viz., Akhlaq and Shakila and
neighbours Jabbar and Kishan Chandra and other villagers unlocked her
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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 (A-1) and
others had worn in the evening of 23rd January, 2014. The clothes were
identified separately, in which Momin Khan (A-1) was wearing jeans of
blue colour and blue shirt having black and white squares, Jaikam Khan
(A-3) was wearing kurta of cream colour and printed readymade sweater
of brown colour, Sajid (A-4) was wearing pants of light black colour and
printed shirt of light yellow, red black colour and Nazra (A-2) 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.1-Ali Sher Khan, the house of Momin Khan (A-1) is at
a distance of 10-15 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 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 (A-1) house, had changed their clothes and kept them
at Momin Khan’s (A-1) 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 eye-witness 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 eye-witnesses could not be said
to 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 brick-
kiln between the accused No.1-Momin Khan on one hand and deceased
Mausam Khan, deceased Shaukeen Khan and P.W.1-Ali Sher Khan on
the other hand. In the F.I.R., P.W.1-Ali Sher Khan has stated that the
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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
(A-1) joined the company of his uncle’s son Jaikam Khan (A-3) and
Jaikam Khan’s (A-3) son Sajid (A-4). 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 cross-examination,
P.W.1-Ali Sher Khan has stated that Momin Khan (A-1) had a rift with
him, the reason for Momin Khan’s (A-1) rift with his parents and brothers
was, due to him not giving an account of the money earned from brick-kiln
to them. He has further stated that his father, deceased Mausam Khan,
had relieved Momin Khan (A-1) from the duty of brick-kiln in 2010 and
since then Momin Khan (A-1) bore enmity against him. He has further
stated that due to the same brick-kiln, accused Nos. 2, 3 and 4, viz., Nazra,
Jaikam Khan and Sajid respectively, too bore enmity against him.
61. In his cross-examination, P.W.1-Ali Sher Khan has clearly
admitted that it is Momin Khan and family who had dispute with him
over the property of brick-kiln. The said dispute was over details of
accounts. He has admitted that accused Nos. 3 and 4 had nothing to do
with regard to brick-kiln of his father deceased Mausam Khan. It will be
relevant to refer to the original hindi version of the evidence of
P.W.1-
Ali Sher Khan, which is as under:
62. P.W.1-Ali Sher Khan has categorically admitted in his cross-
examination that the shares in the agricultural land between his father
deceased Mausam Khan and Zafar Khan, father of Jaikam Khan (A-
3), 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.2-Jaan
Mohammad in his cross-examination, 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.”
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64. It could thus be seen that the alleged motive, if any, is
attributable to the accused No.1-Momin Khan. P.W.1-Ali Sher Khan
and P.W.2-Jaan Mohammad have admitted that Jaikam Khan (A-3) and
Sajid (A-4) had nothing to do with the brick-kiln business of deceased
Mausam Khan. They have further admitted that there was no dispute
with regard to brick-kiln amongst his father deceased Mausam Khan on
one hand and accused Nos. 3 and 4 on the other hand. It is further to be
noted that even according to P.W.1-Ali Sher Khan, the dispute between
his father deceased Mausam Khan and accused No.1-Momin Khan
with regard to brick-kiln took place in the year 2010. Though P.W.1-Ali
Sher Khan states in his cross-examination that heated exchanges regarding
brick-kiln took place between Momin Khan (A-1) and his father deceased
Mausam Khan, during last 3-4 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 cross-examination that though quarrel
took place between his father deceased Mausam Khan and Momin Khan
(A-1), no quarrel took place between Momin Khan (A-1), deceased
Shaukeen Khan and himself. He further admitted that decisions were
taken through the relatives but Momin Khan (A-1) did not accept it.
65. It could thus be seen that with regard to Jaikam Khan (A-3)
and Sajid (A-4), the prosecution has utterly failed to prove any motive
and has
also failed to prove any strong motive insofar as Momin Khan
(A-1) is concerned.
66. The matter does not end at this. There are various other
inconsistencies and lacunae in the prosecution case.
67. According to P.W.1-Ali 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, non-examination 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
5 (2001) 3 SCC 147
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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
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.9-Brahmesh 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.1-Ali Sher Khan and P.W.2-Jaan Mohammad that they together
had gone to the police station to lodge the report, the same has been
contradicted by the evidence of P.W.4-Manveer 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.1-Ali Sher Khan and
P.W.2-Jaan 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
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shift on the accused. It is not necessary to reiterate this proposition of
law. It will suffice to refer to the 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 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
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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:
“The above mentioned recovery of blood-stained 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
pre-planned 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 grand-parent’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 grand-parent’s home
prior to the occurrence. If this probability is accepted, the arrest
of the accused 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
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the pre-planned 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 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
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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 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
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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, PW-1 and PW-2, 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.2-Nazra. 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 cross-examination, PW-9
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. PW-2
in his cross-examination on 20.03.2015 has stated thatwhen he
went to the police station for lodging of the first information report,
then Momin, Jaikab, Sajid andNazra were all present at the police
station. Thistestimony of PW-2 corroborates his presence at
thepolice
station with PW-1 informant who has admittedhaving
gone to the police station with his brother-in-law PW-2. The story
of arrest of Nazra at 6:40 am thenext 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.2-Nazra 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.2-Nazra 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.2-Jaan Mohammad, who has deposed in his cross-examination,
that, when he went to the police station for lodging the F.I.R., he found
Momin Khan (A-1), Jaikam Khan (A-3), Sajid (A-4) and Nazra (A-2)
present in the police station, which, according to the High Court, is
corroborated by the testimony of P.W.1-Ali Sher Khan and, therefore,
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the story of arrest of Nazra (A-2) 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 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 accused 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.
433-34, 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.
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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.
Insofar as the appeal filed by the P.W.1-Ali Sher Khan with regard
to acquittal of accused No.2-Nazra is concerned, it is sans any merit.
84. In the result:
(a)
Criminal Appeal Nos. 440-441 of 2020 filed by Momin Khan
(Accused No.1); Criminal Appeal Nos. 434-436 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 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.
Divya Pandey
Appeals disposed of.