JAIKAM KHAN versus THE STATE OF UTTAR PRADESH on 15 December 2021

[2021] 14 S.C.R. 767

JAIKAM KHAN

v.

THE STATE OF UTTAR PRADESH

(Criminal Appeal No. 434-436 of 2020)

DECEMBER 15, 2021

[L. NAGESWARA RAO, B.R. GAVAI ANDB.V. NAGARATHNA, JJ.]

Criminal Law – Murder – Interested and related witnesses –Deceased had four sonsincluding the appellant--accused No.1 andP.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 waskilled in angan, two in verandah, two inroom and one was killed in aroom upstairs –Appellants--accused Nos. 1, 3 and 4 convicted foroffence punishable u/ss.302/34 IPC and sentenced to death –Accused No.2 was acquitted– On appeal, held: Both P.W.1- andP.W.2- are witnesses, who are closely related to the deceased aswell as the accused No.1–These two witnesses cannot be consideredto be wholly reliable to base an order of conviction solely on theirtestimonies –However, they cannot be said to be wholly unreliableeither – They would fall in the category of ‘neither wholly reliablenor wholly unreliable’– A greater degree of care and caution wouldbe required and a corroboration in material particulars by reliabletestimony, direct or circumstantial, would be necessary to pass anorder of conviction – Even if the evidence of P.W.1 and P.W.2- istaken at its face value, the accused have murdered six deceased atdifferent places andif their version is compared with the site-plans,it is difficult to believe that they could have also seen the accusedassaulting the deceased who were killed in the rooms which are inthe 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 hideoutsand that is why it was not mentioned in the site- plan – Prosecutionfailed to prove the case beyond reasonable doubt–Conviction anddeath sentence imposed on the accused is unsustainable in law, tobe released– Appeal filed against acquittal of Accused No.2 is alsosans 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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AEvidence – Murder – Related witnesses – Credit worthinessof – Held: Merely because the witnesses are interested and relatedwitnesses, it cannot be a ground to disbelieve their testimony –However, the testimony of such witnesses has to be scrutinised withdue care and caution – Upon scrutiny of the evidence of suchwitnesses, if the Court is satisfied that the evidence is creditworthy,Bthen there is no bar on the court in relying on such evidence.

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Evidence – Murder – Non-examination of independentwitnesses – Held: A large number of villagers had gathered at thespot after the incident – However, none of the independent witnesseswere examined by the prosecution – Since the witnesses examinedCon behalf of the prosecution are interested witnesses, non--examination of independent witnesses, though available, wouldmake the prosecution version doubtful.

Evidence – Other circumstances – Murder of six persons atdifferent places in the house – Eye-witnesses were related witnessesDand were found not wholly reliable – Other circumstances relied onby the prosecution – Discussed.

Evidence Act, 1872 – s.27– Murder –Recovery of bloodstainedclothes allegedly worn by the accused while committing the crime –Held: Said clothes were not recovered on the memorandum of theEaccused u/s.27 and as such, the said circumstance could not havebeen used against the accused.

Evidence Act, 1872 – s.27 – Held: Only such information,which distinctly relates to the discovery of facts will be admissibleu/s.27 – In the present case, one of the alleged recoveries is fromFthe room where one of the deceased used to sleep –Other tworecoveries are from open field, just behind the house of otherdeceased, i.e., the place of incident –The recoveries were made fromthe places, which were accessible to one and all and as such, noreliance could be placed on such recoveries.

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Conclusion

GCriminal Law – Motive – Proof of – Held: In case of directevidence and the ocular testimony of the eye-witness being foundto be reliable and cogent, it will not be necessary for the prosecutionto prove the motive for the crime – However, in the present case, thetestimony of the eye-witnesses could not be said to be wholly reliable,thus the motive would be a relevant factor. H

Criminal Law – Criminal Jurisprudence –Prosecution failedto prove guilt of accused beyond reasonable doubt – Death penaltyawarded by Trial Court, confirmed by High Court – Deprecationby Supreme Court.

Allowing the appeals filed by accused persons whiledismissing that of the P.W-1, the Court HELD: 1.1 Both P.W.1- and P.W.2 are witnesses, who areclosely related to the deceased as well as the accused No.1.Merely because the witnesses are interested and relatedwitnesses, it cannot be a ground to disbelieve their testimony.However, the testimony of such witnesses has to be scrutinisedwith due care and caution. Upon scrutiny of the evidence of suchwitnesses, if the Court is satisfied that the evidence iscreditworthy, then there is no bar on the court in relying on suchevidence. Both P.W.1- and P.W.2- are witnesses, who are closelyrelated to the deceased and the accused No.1-. Therefore, it willbe necessary to scrutinise their evidence with more care, cautionand circumspection. Even if the evidence of P.W.1 and P.W.2 istaken at its face value, the accused have murdered six deceasedat different places. As per the admission given by P.W.1-, thehouse of the accused No.1- is 15 steps away from the place wherehe was hiding in the compound. According to him, there are atotal of 5 rooms in the house where the incident took place. Hehas stated in his cross-examination that Shaukeen Khan (brother)was murdered in the Angan of the house and his father MausamKhan was murdered in the veranda. His niece Muskan was alsomurdered in the veranda. His mother-Asgari and nephew Samadwere murdered in the room which is 15 steps away from thekitchen, whereas deceased Shanno (sister-in-law) was murderedin a room upstairs. He has further admitted that the aforesaidroom cannot be seen from the kitchen and the door of theaforesaid 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 evidenceof P.W.9- would reveal that the first site-plan (Exhibit Ka-51) wasprepared by P.W.9 on P.W.1-’s pointing out the details. All thethree site-plans (Exhibits Ka-51, Ka-52 and Ka-45) have been A

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Aprepared by P.W.9-, the I.O. The first site-plan (Exhibit Ka-51)shows the places where the dead bodies of the deceased werefound. Serial No.1 in the said site--plan is the place where thedead body of deceased Shaukeen Khan was found. Serial No.2 isthe spot where the dead body of deceased Mausam Khan wasfound. Serial No.3 is the spot where the dead body of deceasedBShanno Begam was found. Serial No.4 is the spot where the deadbody of deceased Muskan was found. Serial No.5 is the spot wherethe dead body of deceased Asgari was found. Serial No.6 is thespot where the dead body of deceased Samad was found. Thearrow marks in the said site-plan show the direction in which theCaccused fled away from the rear gate. It is to be seen that in thesaid site-plan, the room on the southern side is not shown. Thesecond site-plan (Exhibit Ka-52) is with regard to the recoveryof weapons made at the instance of the accused from the field ofthe deceased Shaukeen Khan. The third site-plan (ExhibitKa-45), which is drawn in connection with Case Crime No.26 ofD2014 under Section 25/4 of the Arms Act, also shows the placesfrom where the weapons alleged to have been used in the crime,were recovered at the instance of the accused. In the last twosite-plans at Exhibit Ka--52 and Exhibit Ka-45, a room has beenshown on the southern side. According to the evidence of P.W.1,Ethe room in which he hid himself in the south, is the Kitchen. Asper his evidence, the door of the kitchen opens to the north,whereas as per the third site-plan (Exhibit Ka-45), the gate ofthe said room on southern side, opens towards west. As per theversion of P.W.2, he has witnessed the incident from the placewhere the buffaloes are tethered, which is adjacent to theFbathroom. Though the bathroom is not shown in the site-plan,believing it to be adjacent to the place where buffaloes aretethered, 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, firstlyGMausam Khan was assaulted and done away with in veranda,whereas deceased Shaukeen Khan was done away with in thecourt- yard. Deceased Muskan, Asgari and Samad were assaultedin the rooms, which are in the middle portion of the house.

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According to these witnesses, Shanno Begam was assaultedupstairs. If the version of these two witnesses is compared withthe site--plans, then the position that emerges would reveal thatP.W.1-, at the most, could have witnessed the assault on deceasedShaukeen Khan, whereas P.W.2 could have witnessed the assaulton deceased Mausam Khan and deceased Shaukeen Khan.However, since from the perusal of the first site -plan (ExhibitKa--51), it could be seen that the dead -bodies of deceasedMuskan, Samad, and Asgari were inside the house, and the dead-body of deceased Shanno Begam was upstairs, it is difficult tobelieve that these two witnesses could have also seen the accusedassaulting Shanno Begam, Muskan, Asgari and Samad. It is furtherto be noted that P.W.9- in his cross- examination has admittedthat P.W.1 and P.W.2- had not told him about their hideouts andthat is why it was not mentioned in the site- plan. These twowitnesses cannot be considered to be wholly reliable to base anorder of conviction solely on their testimonies.As alreadydiscussed, though P.W.1- could have witnessed the assault ondeceased Shaukeen Khan and P.W.2- could have witnessed theassault on deceased Shaukeen Khan and deceased Mausam Khan,it is difficult to believe that they could have witnessed the assaulton the other four deceased persons. The said witnesses cannotbe said to be wholly unreliable. They would fall in the category of‘neither wholly reliable nor wholly unreliable’ and as such, agreater degree of care and caution would be required andacorroboration in material particulars by reliable testimony, director circumstantial, would be necessary to pass an order ofconviction. [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 werewaiting at Rajghat square, which is at a distance of hardly half akilometre from the place of occurrence, waiting for the Police tocome and arrest them. The alleged informer has neither beennamed nor has he been examined. It is further difficult to believe AB

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Athat accused No.2- was wandering in the village and coincidentlyat 6.40 a.m., crossed paths with P.W.9-(I.O.), when he wasreturning to the police station along with other accused. It isclear admission of P.W.2 -that when he and P.W.1 had gone to thepolice station to give the written report, (A-1), (A-2), (A-3) and(A-4) were already present there in the police station. AccordingBto the prosecution, the crime is registered on 23[rd ]January, 2014at 10.00 p.m. when both P.W.1 and P.W.2 were present. If theversion of P.W.2-, that all the four accused were present at thepolice station when they had gone to lodge the FIR, is to bebelieved, then the arrest of the accused Nos. 1, 3 and 4 at 2.00Ca.m. on 24[th ]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 inthe crime at the instance of the accused.

DInsofar as the recovery of the weapons alleged to have beenused 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 saidrecoveries were made in the presence of public witnesses, noEpublic witness has been examined to support the same. Since nopublic witness has been examined to support the said memo, thestatement made therein will have to be scrutinised with greatercaution and circumspection. All the statements made therein withregard to the confession of committing the crime would not beadmissible in evidence. Only such information, which distinctlyFrelates to the discovery of facts will be admissible under Section27 of the Indian Evidence Act, 1872. One of the alleged recoveriesis from the room where deceased Asgari used to sleep. The othertwo recoveries are from open field, just behind the house ofdeceased Shaukeen Khan, i.e., the place of incident. It could thusGbe seen that the recoveries were made from the places, whichwere accessible to one and all and as such, no reliance could beplaced on such recoveries. [Paras 54-56][795-D-E; 796-E-F;797-C-F]

2.3 Recovery of the bloodstained clothes alleged to haveHbeen worn by the accused while committing the crime.

As per the prosecution witnesses, the accused had run awayfrom the rear gate of the compound, which is towards north. Asper the evidence of P.W.1-, the house of (A-1) is at a distance of10-15 steps away from the place of the incident. According to theprosecution 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 thespot, came back at the said spot, changed their clothes and againwent away. It is also a mystery as to how the accused Nos. 3 and4, who are not residing in A-1’s house, had changed their clothesand kept them at A-1’s house. This coupled with the fact that theF.S.L. reports are inconclusive, creates a great shadow of doubton the genuineness of the said recovery. In any case, the saidclothes are not recovered on the memorandum of the accusedunder Section 27 of the Evidence Act and as such, the saidcircumstance 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 theeye-witness being found to be trustworthy, reliable and cogent, itwill not be necessary for the prosecution to prove the motive forthe crime. However, in the present case,the testimony of theeye-witnesses could not be said to be wholly reliable, the motiveaspect would be a relevant factor.As per the prosecution version,the main motive behind the crime was with regard to the disputeover the management of the brick-kiln between the accused No.1-on one hand and deceased Mausam Khan, deceased ShaukeenKhan 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 disputewith him over the property of brick-kiln. The said dispute wasover details of accounts. He has admitted that accused Nos. 3 and4 had nothing to do with regard to brick-kiln of his father deceasedMausam Khan. With regard to (A-3) and (A-4), the prosecutionhas utterly failed to prove any motive and has also failed to proveany strong motive insofar as (A-1) is concerned. There are variousother inconsistencies and lacunae in the prosecutioncase. According to P.W.1 and P.W.2, a large number of villagers AB

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Ahad gathered at the spot after the incident. However, none of theindependent witnesses have been examined by the prosecution.Since the witnesses examined on behalf of the prosecution areinterested 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 fingerprintsBwere taken at the spot, the fingerprint expert’s report is not placedon record. Similarly, his further evidence would reveal that thoughhe had come to the spot with the dog squad, report of the dogsquad is also not placed on record. This also casts a doubt withregard to the genuineness of the prosecution case. Apart fromCthat, it could be seen that, though it is the assertion of P.W.1 andP.W.2 that they together had gone to the police station to lodgethe report, the same has been contradicted by the evidence ofP.W.4-, who was the Constable Clerk at the police station. Coupledwith the fact that though P.W.1 and P.W.2, had mobile phones, theyhad not informed the Police on phone, also casts a serious doubtDwith regard to the genuineness of the prosecution case. Theprosecution has utterly failed to prove the case beyond reasonabledoubt. The conviction and death sentence imposed on the accusedis totally unsustainable in law. To be released forthwith, if notrequired in any other offence.Theappeal filed by the P.W.1 withEregard 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) 3SCC 147; Joydeb Patra and others v. State of WestBengal (2014) 12 SCC 444 : [2013] (4) SCR 192; TheFState of Punjab v. Jagir Singh, Baljit Singh and KaramSingh (1974) 3 SCC 277 : [1974] (1) SCR 328; AnandRamachandra Chougule v. Sidarai Laxman Chougalaand others (2019) 8 SCC 50 : [2019] (11) SCR 14 –relied on.

GPiara Singh and others v. State of Punjab (1977) 4 SCC452 : [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 1947PC 67 – referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 434-436 of 2020.

From the Judgment and Order dated 18.05.2018 of the High Courtof Judicature of Uttar Pradesh at Allahabad in Reference (No.1 of 2016)and Capital Cases No.602 and 844 of 2016.

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Criminal Appeal Nos. 442, 437-439 and 440-441 of 2020.

Vinod Diwakar, AAG, Ms. Nitya Ramakrishnan, Sr. Adv., DamaSeshadri Naidu, Ms. Shivali Chaudhary, Ananvay Anandvardhan,Siddharth Chapalgaonkar, Ashish Virmani, Anant Agarwal, Ms. SwetaRani, Ms. Ritika Khanna, Vibhor Jain, Ms. Vinodthana Vinjam, Ms. HariniRaghupathy, Ankit Kumar Lal, Sarvesh Singh Baghel, Rajan KumarChourasia, Upendra Mishra, Rajendra Kumar Singh, Ms. Arpika Singhal,B. N. Dubey, Prasanna S., Yuvraj Singh Rathore, Ms. Vinoothna V.,Advs. for the appearing parties.

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The Judgment of the Court was delivered by

B. R. GAVAI, J.

1. The present appeals arise out of the common judgment andorder passed by the Division Bench of the High Court of Judicature atAllahabad dated 18[th] May, 2018, in Reference No.01 of 2016 and, CapitalCase No.602 of 2016 and Capital Case No.844 of 2016, therebyconfirming the judgment and order of conviction dated 2[nd] January, 2016and the order of death sentence dated 11[th] January, 2016 awarded tooriginal accused Nos. 1, 3 and 4 by the Additional Sessions Judge,Bulandshahr. Vide the said impugned judgment dated 18[th] May, 2018, G

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Athe High Court has, however, allowed the appeal of the original accusedNo.2-Nazra and set aside the conviction under Section 302/34 of theIndian Penal Code, 1860 (hereinafter referred to as “the IPC”) and thedeath penalty awarded to her.

2. Being aggrieved, Criminal Appeal Nos. 434-436 of 2020 areBfiled by Jaikam Khan (Accused No.3); Criminal Appeal Nos. 437-439of 2020 are filed by Sajid (Accused No.4); and Criminal Appeal Nos.440-441 of 2020 are filed by Momin Khan (Accused No.1); whereasCriminal Appeal No. 442 of 2020 is filed by Ali Sher Khan, the firstinformant (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.C

3. Appellant-Momin Khan (A-1), deceased Shaukeen Khan, P.W.1-Ali Sher Khan and Kallu Khan are the four sons of deceased MausamKhan (father, aged about 85 years) and deceased Asgari (mother, agedabout 80 years). Deceased Shanno (aged about 30 years) is the wife ofdeceased Shaukeen Khan, whereas deceased Samad (aged about 8Dyears) 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 deceasedShaukeen 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). OriginalEAccused No.2-Nazra, who was convicted by the trial Court and acquittedby the High Court, is the wife of appellant-Momin Khan (A-1).

5. It is the prosecution case that deceased Shaukeen Khan andP.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)Fhad separated all the brothers and allotted their respective share ofproperties. 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 notgive the money earned by him from the brick-kiln to deceased MausamGKhan (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-AliSher Khan were running the brick-kiln with the help of his brotherdeceased Shaukeen Khan. Jaikam Khan (A-3) and Sajid (A-4) werejealous with their growing business and so a case was also lodged forHlaying bricks over the disputed land. Thereafter enmity arose between them, and the younger brother Momin Khan (A-1) joined the companyof his uncle’s son i.e. Jaikam Khan (A-3) and Jaikam Khan (A-3)’s sonSajid (A-4).

6. On the fateful day of the incident, i.e., 23[rd] January, 2014, ataround 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. Atthat time, Momin Khan (A-1) with his wife Nazra (A-2) along withJaikam Khan (A-3) and Sajid (A-4) came armed with knives andassaulted 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. Onhearing the cries of the deceased and others, many villagers gatheredand 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. Onthe basis of the report given by P.W.1-Ali Sher Khan, a First InformationReport (F.I.R.) came to be registered for the offence punishable underSection 302 read with Section 34 of the IPC. Upon completion of theinvestigation, a charge-sheet came to be filed before the concerned JudicialMagistrate. The case was committed to the court of Sessions.

8. The trial Judge framed charges for the offences punishableunder Section 302/34 of the IPC and under Section 25/4 of the IndianArms Act, 1878 (hereinafter referred to as “the Arms Act”). The accusedpleaded not guilty and claimed to be tried. At the conclusion of the trial,the trial judge vide judgment and order dated 2[nd] January, 2016 convictedall the four accused for the offence punishable under Section 302/34 ofthe IPC and sentenced them to death vide order dated 11[th] January,2016. The appellants-accused Nos. 1, 3 and 4 were also convicted forthe offence punishable under Section 25/4 of the Arms Act and awardedrigorous imprisonment for a term of three years with a fine of RupeesFive Thousand and in case of default, they were to undergo additionalimprisonment for a term of three months.

9. The trial judge vide the said order dated 11[th] January, 2016 alsomade a reference under Section 366(1) of the Code of CriminalProcedure, 1973 (hereinafter referred to as “Cr.P.C.”) to the High Courtvide Reference No.1 of 2016 for confirmation of the death sentenceawarded by it.

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A10. Being aggrieved thereby, all the four accused preferred appealsbefore the Division Bench of the High Court. The Division Bench of theHigh Court vide the impugned judgment, dismissed the appeals ofappellants- accused Nos. 1, 3 and 4 and confirmed the death sentenceawarded to them. However, the Division Bench of the High Court allowedthe appeal of the accused No.2-Nazra and acquitted her of the chargesBunder Section 302/34 of the IPC.

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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 thepresent appeals.

C12. We have heard Smt. Nitya Ramakrishnan, learned SeniorCounsel appearing on behalf of appellant- Momin Khan (A-1) as well asacquitted original accused No.2-Nazra, Shri Dama Seshadri Naidu,learned counsel for appellants-Jaikam Khan (A-3) and Sajid (A-4), ShriAnant Agarwal, learned counsel for appellant- P.W.1-Ali Sher Khanand Shri Vinod Diwakar, learned Additional Advocate General appearingDon behalf of the respondent-State of Uttar Pradesh.

13. Smt. Nitya Ramakrishnan, learned Senior Counsel appearingon behalf of the appellant-Momin Khan (A-1) would submit that theentire case rests on the ocular testimony of P.W.1-Ali Sher Khan andP.W.2-Jaan Mohammad, who are said to have witnessed the incidentEfrom the kitchen and the cattle-shed of the house respectively. She submitsthat both of them are interested witnesses. It is submitted that the HighCourt has disbelieved the evidence of these two witnesses insofar asoriginal accused No.2-Nazra is concerned. She submits that when theocular testimony of P.W.1-Ali Sher Khan and P.W.2-Jaan MohammadFwas found to be not trustworthy and reliable by the High Court withrespect to accused No.2-Nazra, the High Court fell in grave error inconvicting the other accused on the basis of the very same ocular evidence.

14. Learned Senior Counsel further submits that the prosecutionhas placed on record three site-plans at Exhibits Ka-51, Ka-52 and Ka-G45. It is, however, submitted that in none of the site-plans, the location ofthe 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 havereally witnessed the incident. She further submits that even if theprosecution case is to be believed, immediately after the occurrence ofHthe incident, many villagers had assembled at the spot, however, though

the statements of such witnesses were recorded, the prosecution hasnot examined a single witness. She, therefore, submits that an adverseinference needs to be drawn on account of non-examination ofindependent witnesses, though they were very much available.

15. Learned Senior Counsel further submits that both P.W.1-AliSher Khan and P.W.2-Jaan Mohammad have admitted in their evidencethat they were possessing mobile phones. She submits that in normalcircumstances, after such a dastardly incident had occurred, P.W.1-AliSher Khan and P.W.2-Jaan Mohammad would have informed the Policeabout it on their mobile phones. She submits that, however, the same hasnot been done by them. She further submits that though after recordingof 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 andP.W.2-Jaan Mohammad, the said application was rejected by the trialjudge. She submits that if the said C.D.Rs. would have been placed onrecord, they would have established the genuineness of the prosecution’scase.

16. She further submits that the recovery of clothes as well as therecovery of weapons are all farcical. She submits that from the materialsplaced on record, it is clear that the prosecution has not come to theCourt with clean hands. It is submitted that as per the Arrest Memo/Panchnama (Exhibit Ka-49), the Investigating Officer (I.O.) had receivedan information that accused Nos. 1, 3 and 4 were standing at RajghatSquare 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. Shesubmits that according to the prosecution, at around 2.00 a.m. in themorning on 24[th] January, 2014, the said three accused were arrested. Itis submitted that it is improbable that the accused, after committing sucha heinous crime, would remain in such a close vicinity of the place ofoccurrence. 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 trialcourt has grossly erred in convicting all the four accused and the HighCourt has erred in maintaining and confirming the death sentence againstthe accused Nos. 1, 3 and 4. She submits that in any case, neither theHigh Court nor the trial Court has given any reasons justifying the awardof capital punishment. She submits that there is not even a whisper, as to A

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Awhy there is no possibility of the accused being reformed or rehabilitatedand as to why there is no other alternative than to award the capitalpunishment.

18. Shri Dama Seshadri Naidu, learned counsel appearing on behalfof Jaikam Khan (A-3) and Sajid (A-4), submits that insofar as the saidBaccused are concerned, the prosecution story is totally unbelievable. Hesubmits that deceased Mausam Khan and Zafar Khan are the sons ofShakoor Khan. Jaikam Khan (A-3) is the son of Zafar Khan. He submitsthat from the evidence of the prosecution witnesses, it is clear that therewas a partition amongst Zafar Khan and deceased Mausam Khan longtime ago. Not only that, but there was a further partition amongst theCtwo branches of the family. He submits that the testimonies of these twowitnesses, i.e., P.W.1-Ali Sher Khan and P.W.2-Jaan Mohammad, wouldreveal that there is no enmity between deceased Mausam Khan, deceasedShaukeen 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 MominDKhan (A-1), who belonged to the branch of deceased Mausam Khan.He submits that, as such, the prosecution has utterly failed to prove anymotive 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 wouldEreveal that he does not know anything about the family holdings.

20. Shri Naidu further submitted that the recovery of clothes andweapon is totally farcical. He submits that it is totally impossible that theaccused Nos. 3 and 4, who are not the members of the family of MominKhan (A-1), would keep their bloodstained clothes at the house of MominFKhan (A-1) after committing the crime. Learned counsel further submitsthat though fingerprints were taken from the recovered articles, thefingerprint expert’s report is not placed on record and, therefore, anadverse inference needs to be drawn against the prosecution. Learnedcounsel further submits that all Forensic Science Laboratory (“F.S.L.”for short) reports are marked during examination under Section 313 Cr.GP.C., which is not permissible. He submits that, in any case, the saidreports are inconclusive. Shri Naidu would further submit that sinceP.W.1-Ali Sher Khan and P.W.2-Jaan Mohammad are related witnesses,their evidence will have to be scrutinized with greater care andcircumspection and it will not be safe to pass an order of conviction onHtheir sole testimony without there being any corroboration.

21. Shri Vinod Diwakar, learned Additional Advocate Generalappearing on behalf of the respondent–State of Uttar Pradesh submittedthat both the trial court and the High Court have concurrently, on theappreciation of the evidence, convicted the accused. He submits that noerror could be noticed in the concurrent findings. He submits that merelybecause kitchen and bathroom are not shown in the site-plans, it cannotbe a ground to disbelieve the ocular testimony of P.W.1-Ali Sher Khanand P.W.2-Jaan Mohammad. He submitted that the evidence of thesetwo witnesses is corroborated by the F.I.R.

22. Learned counsel submitted that merely because there arecertain discrepancies in the evidence of the witnesses, it cannot be aground to disbelieve the ocular testimonies of the witnesses, which areotherwise cogent, reliable and trustworthy. He, therefore, submits thatno interference is warranted in the appeals preferred at the behest ofaccused Nos. 1, 3 and 4 and the same deserve to be dismissed.

23. Shri Anant Agarwal, learned counsel appearing on behalf ofP.W.1-Ali Sher Khan, would submit that when the Additional SessionsJudge on the basis of correct appreciation of evidence convicted accusedNo.2-Nazra, there was no reason for the High Court to reverse thesame.

24. The learned counsel for respective parties, while supportingtheir 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 ofthe 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 beappropriate 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, theaccused -persons present in court namely Jaikam Khan, Shajid,Nazra too bore enmity. Nazra is wife of Mobin. Jaikam Khan isMobin’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. onthat day, my sister’s husband namely Jaan Mohammad had comeat about 2 o’ clock in afternoon and was present at the houseitself at the time of the incident. At the time of the incident, my A

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Afather Mausam Khan, my mother Asgari, my brother ShaukeenKhan, his wife Sanno and his elder brother Saukeen Khan’ sonSamad and my niece Muskan, my brother-in-law Jaan Mohammadand I were present at the house. Momin Khan, his wife Nazra,Jaikam Khan and his son Shajid entered our compound at about8.30 pm from the direction of the house of Momin Khan. When IBsaw them, I was in the kitchen room. All these accused personswere holding knives in their hands. These four attacked my fatherwith knife who was sleeping in veranda and when they attackedmy father then I was witnessing it from kitchen room. Hearinghue and cry raised by father, my niece Muskan came runningCthen these four accused persons present in court ran behind herand cut her also with knife holding in their hands. My mother andnephew Samad were also there in the same veranda whereMuskan was attacked. These four accused persons cut thesetwo also with knives. Hearing this hue and cry, when my elderbrother Saukeen came downstairs from upstairs, the accusedDpersons killed him also near the gate. My sister-in-law Sanno,who had come downstairs hearing hue & cry, was killed by themgoing upstairs. My sister-in-law Sanno seeing the incident occurringdownwards (sic.) ran away. My brother-in-law Jaan Mohammadwas hiding anywhere in the house saving his life and he had alsoEwitnessed the incident. The accused persons had fled away aftercommitting the incident. I due to fear could not save the deadpersons. After the incident, I alongwith my brother-in-law JaanMohammad had gone to the police station and lodged the reportat the police station. The complaint which was given by me at thepolice station is available on the file and the same is before meFtoday which I myself had written down and had given at the policestation. It was marked as Ext. ka-1. All six persons had died onthe spot. The accused persons present in court had committed allmurders before me which was witnessed by me while hiding.”

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Examination-in-chief of P.W.2-Jaan Mohammad G

“1 - The incident took place on 23.01.2014. on the day of theincident, I had come to the house of my father-in-law MausamKhan 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 H

who are present in the court namely Jaikam Khan, Sabid Khan,Momeen Khan and Naazra. I had firstly seen the accused personsat 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 seenthe accused persons from the place where the buffaloes aretethered and is adjacent to bathroom. All these accused personswere holding knife and chhuriyan (small knife) in their hands. Itwould be a distance of 10-15 steps from where I had seen themfor the first time. During the time of the incident, inverter poweredlight was on. I had seen the accused persons in the light of theinverter.

2 - My father-in-law Mausam Khan was offering Namaz on thecot at the verandah. All the accused persons who are present inthe court started inflicting blows of knives and chhuriyan (smallknife) on Mausam Khan and murdered him. When hearing thevoice of Mausam Khan, Muskan came out, then these four personsran behind her and these four accused persons killed her in the

verandah. After this they killed my mother-in-law Asgari andSamad. Hearing their outcry, Shaukeen Khan came down fromthe roof. These four persons caught Shaukeen Khan and killedhim too. When hearing the outcry of Shaukeen Khan, his wifeShanno came down then these four accused persons ran behindher on the roof and these four killed her too after going up on theroof. I had seen all this incident under the shade of the placewhere the buffaloes are tethered and is near the bathroom. Aftercommitting the incident, these four accused persons had run awayfrom there. After these accused persons had run away I cameout from the place where I was hiding and my brother-in-law AliSher and I had raised alarm after coming out of the house. Peopleof the village had arrived on the alarm raised by us. We wentinside the house and saw that all the people had died.

3 - There was a dispute over kiln between Momeen Khan and myfather-in-law Mausam Khan. Momeen wanted to run the kiln butmy father-in-law Mausam Khan was not willing to give kiln toMomeen. 2-3 years before the incident, Momeen had run the kilnand he had not given statement of accounts to Mausam Khan.Mausam Khan had taken the charge of kiln from Momeen andfor the same reason he was angry.

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A4 - Accused Sajid is the nephew of accused Momeen. Jaikam isthe cousin brother of Momin. Nazra is the wife of Momin. Thefour 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 8.30Bp.m. According to him, he saw them when he was in the kitchen. All theaccused 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 andcry raised by his father, his niece Muskan came running and then thesefour accused ran behind her and cut her also with knives holding in theirChands. His mother Asgari and nephew Samad were also there in thesame veranda where Muskan was attacked. The accused cut them alsowith knives. Hearing the hue and cry, his elder brother Shaukeen Khancame downstairs from upstairs and the accused killed him also near thegate. His sister-in-law Shanno, who had come downstairs hearing theDhue and cry, was also killed by them going upstairs. According to him,his brother-in-law, P.W.2-Jaan Mohammad, was hiding elsewhere. Hefurther stated that all the accused had fled away after committing themurder. After the incident, he along with his brother-in-law, P.W.2-JaanMohammad, had gone to the police station and lodged the report.

E27. According to P.W.2-Jaan Mohammad, on the day of the incidenti.e. 23[rd] January, 2014, he had come to the house of his father-in-lawMausam Khan at 2 p.m. He stated that the incident took place at around8 p.m. He had seen the accused at the house of his father-in-law MausamKhan in the veranda. That time, he had come out of bathroom and firsttime he had seen the accused from the place where the buffaloes areFtethered, which is adjacent to the bathroom. All the accused were holdingknives in their hands. According to him, his father-in-law Mausam Khanwas offering Namaz on the cot in the veranda. All the accused startedinflicting blows of knives on Mausam Khan and murdered him. Afterhearing the voice of Mausam Khan, Muskan came out, then the accusedGran behind her and killed her in the veranda. Thereafter, they killed hismother-in-law Asgari and Samad. On hearing their outcry, ShaukeenKhan came down from the roof. The accused caught Shaukeen Khanand killed him too. After hearing the cries of Shaukeen Khan, his wifeShanno came down, then the accused ran behind her on the roof andkilled her too after going up on the roof.H

28. Both P.W.1-Ali Sher Khan and P.W.2-Jaan Mohammad arewitnesses, who are closely related to the deceased as well as the accusedNo.1-Momin Khan. No doubt that, merely because the witnesses areinterested and related witnesses, it cannot be a ground to disbelieve theirtestimony. However, the testimony of such witnesses has to be scrutinisedwith due care and caution. Upon scrutiny of the evidence of suchwitnesses, if the Court is satisfied that the evidence is creditworthy, thenthere is no bar on the court in relying on such evidence.

29. For this proposition, we may refer to the following observationsof this Court in the case of Piara Singh and others v. State of Punjab[1]:

“4. ….It is well settled that the evidence of interested or inimicalwitnesses is to be scrutinised with care but cannot be rejectedmerely on the ground of being a partisan evidence. If on a perusalof 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 Courtin the case of Anil Phukan v. State of Assam[2]:

“3. This case primarily hinges on the testimony of a singleeyewitness Ajoy PW 3. Indeed, conviction can be based on thetestimony of a single eyewitness and there is no rule of law orevidence which says to the contrary provided the sole witnesspasses the test of reliability. So long as the single eyewitness is awholly reliable witness the courts have no difficulty in basingconviction on his testimony alone. However, where the singleeyewitness is not found to be a wholly reliable witness, in thesense that there are some circumstances which may show thathe could have an interest in the prosecution, then the courtsgenerally insist upon some independent corroboration of histestimony, in material particulars, before recording conviction. Itis only when the courts find that the single eyewitness is a whollyunreliable witness that his testimony is discarded in toto and noamount of corroboration can cure that defect. It is in the light ofthese settled principles that we shall examine the testimony ofPW 3 Ajoy.

1 (1977) 4 SCC 452

2 (1993) 3 SCC 282

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1 (1977) 4 SCC 452

2 (1993) 3 SCC 282

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A4. Ajoy PW 3, on his own showing, is the nephew of the deceased.He had accompanied the deceased to the place of occurrencewhen the latter went to recover the loan from Anil, appellant.This witness, therefore, is a relative of the deceased and aninterested witness. Of course, mere relationship with theBdeceased is no ground to discard his testimony, if it is otherwisefound to be reliable and trustworthy. In the normal course ofevents, a close relation would be the last person to spare thereal assailant of his uncle and implicate a false person.However, the possibility that he may also implicate someCinnocent person along with the real assailant cannot be ruledout and therefore, as a matter of prudence, we shall look forsome independent corroboration of his testimony, to decideabout 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 someDindependent corroboration, direct or circumstantial.”

[Emphasis supplied]

31. Undisputedly, both P.W.1-Ali Sher Khan and P.W.2-JaanMohammad are witnesses, who are closely related to the deceased andEthe accused No.1-Momin Khan. Therefore, we find that it will benecessary to scrutinise their evidence with more care, caution andcircumspection.

32. Even if the evidence of P.W.1-Ali Sher Khan and P.W.2-JaanFMohammad is taken at its face value, the accused have murdered sixdeceased at different places. As per the admission given by P.W.1-AliSher Khan, the house of the accused No.1- Momin Khan is 15 stepsaway from the place where he was hiding in the compound. Accordingto him, there are a total of 5 rooms in the house where the incident tookGplace. He has stated in his cross-examination that Shaukeen Khan wasmurdered in the Angan of the house and his father Mausam Khan wasmurdered in the veranda. His niece Muskan was also murdered in theveranda. His mother-Asgari and nephew Samad were murdered in the H

room which is 15 steps away from the kitchen, whereas deceased Shannowas murdered in a room upstairs. He has further admitted that theaforesaid room cannot be seen from the kitchen and the door of theaforesaid room opens towards south.

33. It will be relevant to refer to P.W.1-Ali Sher Khan’s depositionin his cross-examination.

“Site map was prepared by the police on my pointing. There isa courtyard in my house. There is a room built in the South ofthe courtyard whose door opens in the courtyard. The roomwhich I have told in South is a kitchen. The door of this kitchenopens in North. There is a gate in Western wall of thecourtyard.”

34. It would further be relevant to refer to the following depositionof 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. Ihad prepared the site-map of the scene of occurrence at theinstance of the case-complainant. I do not remember at whattime I started to prepared the site-map. I don’t even rememberhow much time I took to prepare the site-map. I don’t rememberat what time I stopped preparing the site-map. I don’t rememberwhether I had marked case-complainant’s hiding place in the site-map or not. This is correct to state that the place, from where thecase-complainant has stated to hide and see the accused persons,is not shown in the site-map. I had prepared the site-map of thescene of”

35. A perusal of the evidence of the P.W.1-Ali Sher Khan and theevidence of P.W.9-Brahmesh Kumar Yadav would reveal that the firstsite-plan (Exhibit Ka-51) was prepared by P.W.9-Brahmesh Kumar Yadavon 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: “

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788SUPREME COURT REPORTS[2021] 14 S.C.R.ABCDEFGH

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790SUPREME COURT REPORTS[2021] 14 S.C.R.ABCDEFG”H

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 KumarYadav, the I.O. The first site-plan (Exhibit Ka-51) was prepared on 24[th]January, 2014. The second site-plan (Exhibit Ka-52) was prepared on28[th] January, 2014 and the third site-plan (Exhibit Ka-45) was preparedon 29[th] January, 2014.

38. The first site-plan (Exhibit Ka-51) shows the places wherethe 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 wasfound. Serial No.2 is the spot where the dead body of deceased MausamKhan was found. Serial No.3 is the spot where the dead body of deceasedShanno Begam was found. Serial No.4 is the spot where the dead bodyof deceased Muskan was found. Serial No.5 is the spot where the deadbody of deceased Asgari was found. Serial No.6 is the spot where thedead body of deceased Samad was found. The arrow marks in the saidsite-plan show the direction in which the accused fled away from therear gate. It is to be seen that in the said site-plan, the room on thesouthern side is not shown.

39. The second site-plan (Exhibit Ka-52) is with regard to therecovery of weapons made at the instance of the accused from the fieldof the deceased Shaukeen Khan.

40. The third site-plan (Exhibit Ka-45), which is drawn in connectionwith 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 beenused 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 roomin 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, openstowards west.

43. As per the version of P.W.2-Jaan Mohammad, he has witnessedthe incident from the place where the buffaloes are tethered, which isadjacent 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.

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A44. As per the testimonies of P.W.1-Ali Sher Khan and P.W.2-Jaan Mohammad, firstly Mausam Khan was assaulted and done awaywith in veranda, whereas deceased Shaukeen Khan was done awaywith in the court-yard. Deceased Muskan, Asgari and Samad wereassaulted in the rooms, which are in the middle portion of the house.According to these witnesses, Shanno Begam was assaulted upstairs. IfBthe version of these two witnesses is compared with the site-plans, thenthe position that emerges would reveal that P.W.1-Ali Sher Khan, at themost, could have witnessed the assault on deceased Shaukeen Khan,whereas P.W.2-Jaan Mohammad could have witnessed the assault ondeceased Mausam Khan and deceased Shaukeen Khan. However, sinceCfrom the perusal of the first site-plan (Exhibit Ka-51), it could be seenthat the dead-bodies of deceased Muskan, Samad, and Asgari wereinside the house, and the dead-body of deceased Shanno Begam wasupstairs, it is difficult to believe that these two witnesses could have alsoseen 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-Dexamination has admitted that P.W.1-Ali Sher Khan and P.W.2-JaanMohammad had not told him about their hideouts and that is why it wasnot mentioned in the site-plan.

45. We are therefore of the view that these two witnesses cannotbe considered to be wholly reliable to base an order of conviction solelyEon their testimonies.

46. It will be relevant to refer to the following observation of thisCourt in the case of Vadivelu Thevar & another v. The State ofMadras[3]:F“11.….Hence, in our opinion, it is a sound and well-establishedrule of law that the court is concerned with the quality and notwith the quantity of the evidence necessary for proving ordisproving a fact. Generally speaking, oral testimony in this contextmay be classified into three categories, namely:

G(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

H3 (1957) SCR 981

In the first category of proof, the court should have nodifficulty in coming to its conclusion either way — it may convictor may acquit on the testimony of a single witness, if it is found tobe above reproach or suspicion of interestedness, incompetenceor subornation. In the second category, the court equally has nodifficulty in coming to its conclusion. It is in the third category ofcases, that the court has to be circumspect and has to look forcorroboration in material particulars by reliable testimony, director circumstantial……”

47. As already discussed hereinabove, we are of the view thatthough P.W.1-Ali Sher Khan could have witnessed the assault ondeceased Shaukeen Khan and P.W.2-Jaan Mohammad could havewitnessed the assault on deceased Shaukeen Khan and deceasedMausam Khan, it is difficult to believe that they could have witnessedthe assault on the other four deceased persons. We are also of the viewthat the said witnesses cannot be said to be wholly unreliable. Theywould 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 andcaution would be required and a corroboration in material particulars byreliable testimony, direct or circumstantial, would be necessary to passan order of conviction.

48. We, therefore, find it necessary to consider the othercircumstances relied on by the prosecution. The other circumstances,on which the prosecution relies, are as under:

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B.Recovery of the weapons alleged to have been used in theFcrime at the instance of the accused.

C.Recovery of the bloodstained clothes alleged to have beenworn by the accused while committing the crime.

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We will now deal with the evidence placed on behalf of theprosecution 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 H

Acomplaint, Crime No.25 of 2014 came to be registered for the offencepunishable 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 ofoccurrence with the police force, they received information throughBinformer that the accused of the aforesaid case were present at RajghatChauraha looking for a chance to go somewhere. Relying on thisinformation, when they reached at Rajghat Chauraha, three persons werethere in the passenger shed. The informer went away after showingthose three men and they arrested them at 2.00 a.m. in the morning ofC24[th] January, 2014. They revealed their names as Momin Khan, JaikamKhan and Sajid. According to him, the accused stated that they hadcommitted those six murders in association with Nazra and all the accusedtold them that they had thrown away the weapons with which they hadcommitted the crime and they could get those recovered. His furtherevidence states about the recovery of those weapons, with which weDwill deal later in this judgment. He further states that when they werereturning to the police station with accused, leaving a few policemenbehind at the scene of occurrence, accused No.2-Nazra, met at RajghatChauraha, 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 policeEstation at 6.50 a.m. on 24[th] January, 2014.50. P.W.1-Ali Sher Khan, in his cross-examination, states that hedoes not know how far the road of Rajghat is from his house. He furtherstates that he cannot say even by guessing.

51. P.W.2-Jaan Mohammad admitted in his cross-examination thatFthe house of deceased Mausam Khan is at a distance of one furlongfrom Rajghat road. He further clarified that by one furlong he meanshalf kilometre.

52. It is thus difficult to believe that accused Nos. 1, 3 and 4 werewaiting at Rajghat square, which is at a distance of hardly half a kilometreGfrom the place of occurrence, waiting for the Police to come and arrestthem. The alleged informer has neither been named nor has he beenexamined. It is further difficult to believe that accused No.2-Nazra waswandering in the village and coincidently at 6.40 a.m., crossed pathswith P.W.9- Brahmesh Kumar Yadav (I.O.), when he was returning toHthe police station along with other accused.

53. In this respect, it will also be relevant to refer to the testimonyof 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 atthe police station.”

It is thus clear admission of P.W.2-Jaan Mohammad that whenhe and P.W.1-Ali Sher Khan had gone to the police station to give thewritten report, Momin Khan (A-1), Nazra (A-2), Jaikam Khan (A-3)and Sajid (A-4) were already present there in the police station. Accordingto the prosecution, the crime is registered on 23[rd] January, 2014 at 10.00p.m. when both P.W.1-Ali Sher Khan and P.W.2-Jaan Mohammad werepresent. If the version of P.W.2-Jaan Mohammad, that all the fouraccused were present at the police station when they had gone to lodgethe FIR, is to be believed, then the arrest of the accused Nos. 1, 3 and 4at 2.00 a.m. on 24[th] January, 2014 and arrest of accused No.2 at 6.40a.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 beenused in the crime at the instance of the accused is concerned, theprosecution has relied on the arrest-cum-recovery memo, which is atExhibit Ka-49.

55. We have already dealt with this aspect in the said memo withregard to the arrest of the accused. The relevant part of the said memoreads thus:

“The aforesaid three persons were asked about the incident,Momeen Khan told that he had dispute with his father overpartition. In the beginning he used to run kiln, later on it was givento Shaukin Khan. The means of his livelihood came to an end, hewas in trouble. Jaikam and Sajid had enmity with his brothers.Thus he took help of Jaikam and Sajid and killed his parents andfamily of Shaukin in a planned manner after inflicting seriousinjuries over their neck, head and mouth. They had thrown theknives at the back of house and field with which they caused thedeath. Accused told that they could get the weapon used in murderrecovered. We came to the house of Shaukin at Village Pilkhanaalong with all the aforesaid accused in the hope of recovery of A

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Aweapon used. All the three accused live in the same compound.Momeen walked forward, entered the middle house where hismother used to sleep and took out a daav having wooden handlearound 7 fingers and blade around 1 balisht 1 finger that wasbloodstained from the rubbish beneath staircase. He handed overthe weapon at around 3 am and told that he caused death with it.BField unit is on the spot, photographs were clicked. Recovery ofweapon was made in presence of public witnesses Khemkaran s/o Tara Singh, Vilal s/o Usman Khan r/o Pilkhana. Another accusedJaikam s/o Jafar Khan walked forward into the field at the backof his house and got a knife measuring 1 balisht 6 fingers handleCrecovered in presence of aforesaid witnesses at around 3:15o’clock and stated that he caused death with the same. Itsphotograph was clicked and fingerprint taken and after sometimefingerprint team went away. After much time accused Sajid walkedinto the field behind the house of Shaukin and took out a knifemeasuring 1 balisht 5 fingers. Its blade is fitted with plastic arc.DHe got it recovered and stated that he caused death with it. Thethree aforesaid knives were bloodstained. Thus blade waswrapped into a cotton, kept in separate clothes, sealed and stampedon the spot and sample seal was prepared. Memo was dictatedby me to H.C.P. Sadar Singh in electric and torch light andEdocuments were prepared.”

Though the memo shows that the said recoveries were made inthe presence of public witnesses, no public witness has been examinedto support the same. It will be relevant to refer to the celebrated judgmentof the Privy Council in the case of Pulukuri Kottayya and others v.

FKing Emperor[4]

“…..On normal principles of construction their Lordships thinkthat the proviso to S. 26, added by s. 27, should not be held tonullify the substance of the section. In their Lordships’ view it isfallacious to treat the “fact discovered” within the section asGequivalent to the object produced; the fact discovered embracesthe place from which the object is produced and the knowledgeof the accused as to this, and the information given must relatedistinctly 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 H4 AIR 1947 PC 67

in which it is discovered. Information supplied by a person incustody that “I will produce a knife concealed in the roof of myhouse” does not lead to the discovery of a knife; knives werediscovered many years ago. It leads to the discovery of the factthat a knife is concealed in the house of the informant to hisknowledge, and if the knife is proved to have been used in thecommission of the offence, the fact discovered is very relevant.But if to the statement the words be added “with which I stabbedA.”, these words are inadmissible since they do not relate to thediscovery of the knife in the house of the informant.”

56. As already discussed hereinabove, since no public witnesshas been examined to support the said memo, the statement made thereinwill have to be scrutinised with greater caution and circumspection. Allthe statements made therein with regard to the confession of committingthe crime would not be admissible in evidence. Only such information,which distinctly relates to the discovery of facts will be admissible underSection 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 hadcome 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 24[th]January, 2014. Even according to him, the police party was very muchthere at the spot. One of the alleged recoveries is from the room wheredeceased Asgari used to sleep. The other two recoveries are from openfield, just behind the house of deceased Shaukeen Khan, i.e., the placeof incident. It could thus be seen that the recoveries were made fromthe places, which were accessible to one and all and as such, no reliancecould be placed on such recoveries.

C. Recovery of the bloodstained clothes alleged to havebeen 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 memoshows that the police party along with three sons and two daughters ofthe accused No.1-Momin Khan and accused No.2-Nazra came to thehouse 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 andneighbours Jabbar and Kishan Chandra and other villagers unlocked her AB

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Ahouse and took out her things. At that time, Maumin saw some clothesunder the bed in the room. On seeing the clothes, many villagers identifiedand told that the clothes were the same which Momin Khan (A-1) andothers had worn in the evening of 23[rd] January, 2014. The clothes wereidentified separately, in which Momin Khan (A-1) was wearing jeans ofblue colour and blue shirt having black and white squares, Jaikam KhanB(A-3) was wearing kurta of cream colour and printed readymade sweaterof brown colour, Sajid (A-4) was wearing pants of light black colour andprinted shirt of light yellow, red black colour and Nazra (A-2) was wearingprinted salwar kurta of light red colour.

58. As per the prosecution witnesses, the accused had run awayCfrom the rear gate of the compound, which is towards north. As per theevidence of P.W.1-Ali Sher Khan, the house of Momin Khan (A-1) is ata distance of 10-15 steps away from the place of the incident. Accordingto the prosecution witnesses, immediately after the incident occurred,many villagers had gathered at the spot. In these circumstances, it isDagain a mystery as to how all the four accused fled from the spot, cameback at the said spot, changed their clothes and again went away. It isalso a mystery as to how the accused Nos. 3 and 4, who are not residingin Momin Khan’s (A-1) house, had changed their clothes and kept themat 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 theEgenuineness of the said recovery. In any case, the said clothes are notrecovered on the memorandum of the accused under Section 27 of theEvidence Act and as such, the said circumstance could not have beenused against the accused.

D. MotiveF

59. No doubt that, in case of direct evidence and the oculartestimony of the eye-witness being found to be trustworthy, reliable andcogent, it will not be necessary for the prosecution to prove the motivefor the crime. However, in the present case, as we have already heldhereinabove, that the testimony of the eye-witnesses could not be saidGto be wholly reliable, the motive aspect would be a relevant factor.

60. As per the prosecution version, the main motive behind thecrime was with regard to the dispute over the management of the brick-kiln between the accused No.1-Momin Khan on one hand and deceasedMausam Khan, deceased Shaukeen Khan and P.W.1-Ali Sher Khan onHthe other hand. In the F.I.R., P.W.1-Ali Sher Khan has stated that the accused Nos. 3 and 4 were jealous with his business and a case wasalso lodged for laying bricks over the land. It is further stated that sincethen, enmity grew between the family and younger brother Momin Khan(A-1) joined the company of his uncle’s son Jaikam Khan (A-3) andJaikam Khan’s (A-3) son Sajid (A-4). No doubt, that the F.I.R. is not asubstantive piece of evidence, however, it will be relevant for scrutinisingthe 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 withhim, the reason for Momin Khan’s (A-1) rift with his parents and brotherswas, due to him not giving an account of the money earned from brick-kilnto 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 andsince then Momin Khan (A-1) bore enmity against him. He has furtherstated 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 clearlyadmitted that it is Momin Khan and family who had dispute with himover the property of brick-kiln. The said dispute was over details ofaccounts. He has admitted that accused Nos. 3 and 4 had nothing to dowith regard to brick-kiln of his father deceased Mausam Khan. It will berelevant 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 fatherdeceased Mausam Khan and Zafar Khan, father of Jaikam Khan (A-3), were separate. He has further admitted that the names of ZafarKhan and his four sons have been entered in the records and he hasseen that Khatauni was recorded in the name of Zafar’s sons, JaikamKhan and Yameen.

63. It will also be relevant to refer to the admission of P.W.2-JaanMohammad in his cross-examination, which is as under:

“It is correct that Jaikam Khan and Sajid Khan had no disputewith Mausam Khan. It is also correct that Jaikam Khan and SajidKhan had no partnership in the Kiln of Mausam Khan and Alisher.”

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A64. It could thus be seen that the alleged motive, if any, isattributable to the accused No.1-Momin Khan. P.W.1-Ali Sher Khanand P.W.2-Jaan Mohammad have admitted that Jaikam Khan (A-3) andSajid (A-4) had nothing to do with the brick-kiln business of deceasedMausam Khan. They have further admitted that there was no disputewith regard to brick-kiln amongst his father deceased Mausam Khan onBone hand and accused Nos. 3 and 4 on the other hand. It is further to benoted that even according to P.W.1-Ali Sher Khan, the dispute betweenhis father deceased Mausam Khan and accused No.1-Momin Khanwith regard to brick-kiln took place in the year 2010. Though P.W.1-AliSher Khan states in his cross-examination that heated exchanges regardingCbrick-kiln took place between Momin Khan (A-1) and his father deceasedMausam Khan, during last 3-4 years, no incident, which would causeprovocation to lead to such dastardly act, has been brought on record.On the contrary, he admitted in his cross-examination that though quarreltook place between his father deceased Mausam Khan and Momin Khan(A-1), no quarrel took place between Momin Khan (A-1), deceasedDShaukeen Khan and himself. He further admitted that decisions weretaken 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 motiveand has also failed to prove any strong motive insofar as Momin KhanE(A-1) is concerned.

66. The matter does not end at this. There are various otherinconsistencies and lacunae in the prosecution case.

67. According to P.W.1-Ali Sher Khan and P.W.2-JaanFMohammad, a large number of villagers had gathered at the spot afterthe incident. However, none of the independent witnesses have beenexamined by the prosecution. Since the witnesses examined on behalfof the prosecution are interested witnesses, non-examination ofindependent witnesses, though available, would make the prosecutionversion doubtful. Reference in this respect could be placed on theGfollowing observations of this Court in the case of State of Rajasthan v.Teja Singh and others[5]:

“5. In regard to the next argument of the appellant’s counsel thatthe High Court was wrong in assuming that other villagers were H5 (2001) 3 SCC 147

sitting with PWs 6, 7 and 9, assuming that it is an error even thenthere can be no doubt as could be seen from the prosecution casethat other villagers whether sitting with PWs 6, 7 and 9 or not didrush to the scene of occurrence, therefore, it is clear that apartfrom the said eyewitnesses produced by the prosecution many othervillagers would have at least seen the last part of the occurrenceincluding the escape of the accused and the accused not beingstrangers to the villagers could have been easily identified by them.By not examining those independent witnesses, the prosecution hasfailed to produce the available independent corroborative evidenceto support the evidence of interested witnesses, namely, PWs 6, 7and 9 because of which the High Court was justified in drawingadverse inference against the prosecution…”

68. The evidence of P.W.9-Brahmesh Kumar Yadav (I.O.) wouldshow that though fingerprints were taken at the spot, the fingerprintexpert’s report is not placed on record. Similarly, his further evidencewould 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 saidalso casts a doubt with regard to the genuineness of the prosecutioncase.

69. Apart from that, it could be seen that, though it is the assertionof P.W.1-Ali Sher Khan and P.W.2-Jaan Mohammad that they togetherhad gone to the police station to lodge the report, the same has beencontradicted by the evidence of P.W.4-Manveer Singh, who was theConstable Clerk at the police station. He has stated in his evidence thus:

“The complainant had come at the police station with the writtencomplaint. Only Alisher had come to me at the Police Station withthe written complaint. No other one had come.”

70. Coupled with the fact that though P.W.1-Ali Sher Khan andP.W.2-Jaan Mohammad, had mobile phones, they had not informed thePolice on phone, also casts a serious doubt with regard to the genuinenessof the prosecution case.

71. Insofar as the reliance placed by Shri Vinod Diwakar, learnedAAG on the burden not being discharged by the accused and noexplanation given by them in their Section 313 Cr.P.C. statement isconcerned, it is trite law that only after the prosecution discharges itsburden of proving the case beyond reasonable doubt, the burden would AB

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Ashift on the accused. It is not necessary to reiterate this proposition oflaw. It will suffice to refer to the following observations of this Court inthe case of Joydeb Patra and others v. State of West Bengal[6]:

“10. We are afraid, we cannot accept this submission of MrGhosh. This Court has repeatedly held that the burden to proveBthe guilt of the accused beyond reasonable doubt is on theprosecution and it is only when this burden is discharged that theaccused could prove any fact within his special knowledge underSection 106 of the Evidence Act to establish that he was not guilty.In Sucha Singh v. State of Punjab [(2001) 4 SCC 375 : 2001SCC (Cri) 717] this Court held: (SCC p. 381, para 19)

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“19. We pointed out that Section 106 of the Evidence Act isnot intended to relieve the prosecution of its burden to provethe guilt of the accused beyond reasonable doubt, but the sectionwould apply to cases where the prosecution has succeeded inproving facts for which a reasonable inference can be drawnDregarding the existence of certain other facts, unless the accusedby virtue of special knowledge regarding such facts failed tooffer any explanation which might drive the court to draw adifferent inference.”

Similarly, in Vikramjit Singh v. State of Punjab [(2006) 12 SCCE306 : (2007) 1 SCC (Cri) 732] this Court reiterated: (SCC p. 313,para 14)

“14. Section 106 of the Evidence Act does not relieve theprosecution to prove its case beyond all reasonable doubt. Onlywhen the prosecution case has been proved the burden in regardFto such facts which was within the special knowledge of theaccused 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 byreason of a statute.”

In that view of the matter, we do not find any merit in the saidGsubmissions.

72. While coming to the conclusion that the prosecution has failedto bring home the guilt of the accused beyond reasonable doubt, we areat 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, whenthe trial court awarded death penalty to the accused and the High Courtconfirmed it. The trial court and the High Court were expected to exercisea greater degree of scrutiny, care and circumspection while directingthe accused to be hanged till death.

73. Though there are serious infirmities on various counts in thejudgment of the trial court, we refer to only one paragraph of the saidjudgment:

“The above mentioned recovery of blood-stained clothes of theaccused Momin, Jaikam, Sajid and Nazra also proves theinvolvement of them in the crime. The above recovery alsoindicates to this fact that the entire episode of the murders was apre-planned one and that a comprehensive strategy was chalkedout for it. All the accused gathered at the house of the accusedMomin prior to committing the murders. They already knew thaton committing murders by sharp weapons, the splashes of bloodwould hurl at their clothes because of which, if they don’t changetheir clothes, they would be not be able to hide their crime duringbeing absconded. That is why, they had already managed additionalclothes for them in the house of the accused Momin. Aftercommitting the crime, they as per the planning, went to Momin’shouse, changed their clothes and ran away. Opening the lock oftheir home by sons and daughters of Momin on the third day ofthe occurrence also indicates that either Momin’s all sons anddaughters were at home at the time of the occurrence and theyleft from the house with the accused after the occurrence orMomin’s and Nazra’s kids were not at all present there in thehouse at the time of occurrence and that all the kids were sent totheir grand-parent’s house prior to the occurrence. Since the crimewas committed in a well and pre – planned way, it seems moreprobable that the kids were sent to their grand-parent’s homeprior to the occurrence. If this probability is accepted, the arrestof the accused Nazra after the occurrence, and the arrest of theremaining three accused viz Momin, Sajid and Jaikam at theRajghat Chauraha at 2.00 ‘O’ clock at night not taking place butin the morning at 6.30 ‘O’ clock becomes important. It indicatesthat Nazra, after the occurrence, was gone to her kids for meetingthem and delivering them the keys of home. Thereafter, as per A

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Athe pre-planned program, she had to reach the same RajghatChauraha, where the remaining three accused had already beenarrested at night. All the accused may have planned to gather atthe same Chauraha and run away together from here and that iswhy, 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 ifBthe occurrence took place around 8.30 pm, the three accusedMomin, Zaikam and Sajid had sufficient time after perpetratingthis crime, to run away very far. However, standing at RajghatChauraha till 2.00 am, indicates that they were waiting there forNazra to come.”

C74. To say the least, we are shocked at the aforesaid finding. Thenarration makes for an interesting reading as a story. However, all theobservations are nothing but conjectures and surmises, without therebeing any evidentiary support to them. It is really surprising, as to howthe Additional Sessions Judge could have dealt with the present case inDsuch a casual manner when he was considering the question of life anddeath of four accused.

75. At this stage, we would like to remind ourselves as well as allthe Courts in the country the golden principle to be followed in criminaljurisprudence. This Court, speaking through legendry H.R. Khanna, J.,Ein the case of The State of Punjab v. Jagir Singh, Baljit Singh andKaram Singh[7] observed thus:

“23. A criminal trial is not like a fairy tale wherein one is free togive flight to one’s imagination and phantasy. It concerns itselfwith the question as to whether the accused arraigned at the trialFis guilty of the crime with which he is charged. Crime is an eventin real life and is the product of interplay of different humanemotions. In arriving at the conclusion about the guilt of the accusedcharged with the commission of a crime, the court has to judgethe evidence by the yardstick of probabilities, its intrinsic worthand the animus of witnesses. Every case in the final analysis wouldGhave to depend upon its own facts. Although the benefit of everyreasonable doubt should be given to the accused, the courts shouldnot at the same time reject evidence which is ex facie trustworthyon grounds which are fanciful or in the nature of conjectures.”

H7 (1974) 3 SCC 277

76. We are amazed by the manner in which the High court hasdealt with the present matter. It will be apposite to refer to the followingobservations of the High Court with regard to the recovery of clothes.

“It has been urged that in order to prove the recovery of theclothes, no independent witness was produced. It is correct thatthe prosecution only produced the formal witness to prove therecovery, but on the other hand the disclosure of this fact aboutthe room having been opened by the keys provided by Hina, thedaughter of accused Momin was not rebutted by the defencewhich could have been done by producing Hina in order to denyany such recovery.”

77. The finding is not only contrary to the well settled lawinterpreting Section 27 of the Evidence Act but also attempts to put aburden on the accused, which does not shift unless prosecution has provedthe case beyond reasonable doubt.

78. The following observations of the High Court would also fallin the ambit of conjectures and surmises:

“There is yet another dimension which deserves mention namely,with the multiple nature of injuries and six persons beingslaughtered simultaneously, the same cannot be an act of a singleassailant. The presence, therefore, of the three assailants Momin,Jaikam and Sajid cannot be ruled out as there is no doubt thatsuch nature of assault in the natural course of things would becarried out by more than one person.”

79. Another finding of the High Court, which makes for aninteresting reading and is foreign to criminal jurisprudence is thus:

“The question of motive in relation to Jaikam and Sajid may notbe immediate and they being a separate family may be correct.This however by itself may not be sufficient to dilute the connectionof Sajid and Jaikam with Momin. However on this count, we findthat the trial court has raised a presumption about jealousy amongstthe families on account of Mausam Khan having developed hisbusiness and augmented his earnings through a brick klin. Thispart of the discussion of the trial court does not find sufficientcorroboration from the evidence on record, and therefore, themotive appears to be remote and not a very strong motive. This,however, does not mean to say that there was no connection with A

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AJaikam and Sajid with Momin, who did appear to be on friendlyterms and this fact is reflected from the statement of the witnessesparticularly, PW-1 and PW-2, where they have indicated an attitudeof vengeance being present for certain reasons. Thus even thougha strong motive may not have been established and the reasoningsof the trial court may be a little stretched, yet the same would notBwipe out their presence particularly when the ocular testimony toestablish their presence when the offence was committed.”

80. Further, it can be seen that, the very same Judges of the HighCourt refused to believe the very same evidence of prosecution witnessesin respect of accused No.2-Nazra. The High Court observed thus:C

“The arrest of Smt. Nazra has been shown from a public place inthe morning at about 6.40 am whereas Smt. Nazra claims to bepresent at the police station with her children. There is noindependent witness of her arrest. On cross-examination, PW-9the investigating officer has stated that he does not remember asDto whether Smt. Nazra was at the police station with her childrenor not. He however denies her arrest at the police station. PW-2in his cross-examination on 20.03.2015 has stated thatwhen hewent to the police station for lodging of the first information report,then Momin, Jaikab, Sajid andNazra were all present at the policeEstation. Thistestimony of PW-2 corroborates his presence atthepolice station with PW-1 informant who has admittedhavinggone to the police station with his brother-in-law PW-2. The storyof arrest of Nazra at 6:40 am thenext day morning in thesecircumstances as set up by the prosecution is therefore clearlydoubtful. This aspect further adds to the doubts expressed above.”F

81. We ask a question to ourselves, if the arrest of the accusedNo.2-Nazra was from a public place, was the arrest of the accusedNos. 1, 3 and 4 from any other place than the place from where theaccused No.2-Nazra was apprehended. If according to the High Court,there is no independent witness of her arrest, is there any independentGwitness for arrest of accused Nos. 1, 3 and 4. If on the basis of evidenceof 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 foundMomin 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, isHcorroborated by the testimony of P.W.1-Ali Sher Khan and, therefore, the story of arrest of Nazra (A-2) at 6.40 a.m. was found to beunbelievable, 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 24[th] January, 2016,i.e., much after the time of lodging the F.I.R. The High Court furthergoes on to have an academic discussion with regard to the possibility,preponderance of probability, a scientist conducting his experiments withgreat care, choosing between two or more possibilities, and preponderatesof 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 reasonabledoubt.

82. We may gainfully refer to the following observations of thisCourt in the case of Anand Ramachandra Chougule v. SidaraiLaxman Chougala and others[8]:

“10. The burden lies on the prosecution to prove the allegationsbeyond all reasonable doubt. In contradistinction to the same, theaccused has only to create a doubt about the prosecution caseand the probability of its defence. An accused is not required toestablish or prove his defence beyond all reasonable doubt, unlikethe prosecution. If the accused takes a defence, which is notimprobable and appears likely, there is material in support of suchdefence, the accused is not required to prove anything further.The benefit of doubt must follow unless the prosecution is able toprove its case beyond all reasonable doubt.

11. The fact that a defence may not have been taken by anaccused under Section 313 CrPC again cannot absolve theprosecution from proving its case beyond all reasonable doubt. Ifthere are materials which the prosecution is unable to answer, theweakness in the defence taken cannot become the strength ofthe prosecution to claim that in the circumstances it was notrequired to prove anything. In Sunil Kundu v. State ofJharkhand [Sunil Kundu v. State of Jharkhand, (2013) 4 SCC422 : (2013) 2 SCC (Cri) 427] , this Court observed : (SCC pp.433-34, para 28)

“28. … When the prosecution is not able to prove its casebeyond reasonable doubt it cannot take advantage of the factthat the accused have not been able to probabilise their defence.

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83. We, therefore, find that the prosecution has utterly failed toBprove the case beyond reasonable doubt. The conviction and deathsentence imposed on the accused is totally unsustainable in law.

Insofar as the appeal filed by the P.W.1-Ali Sher Khan with regardto acquittal of accused No.2-Nazra is concerned, it is sans any merit.

84. In the result:

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(a) Criminal Appeal Nos. 440-441 of 2020 filed by Momin Khan(Accused No.1); Criminal Appeal Nos. 434-436 of 2020filed by Jaikam Khan (Accused No.3); and Criminal AppealNos. 437-439 of 2020 filed by Sajid (Accused No.4) areallowed; D

(b) Momin Khan (Accused No.1), Jaikam Khan (AccusedNo.3) and Sajid (Accused No.4) are directed to be releasedforthwith, if not required in any other offence.

(c) Criminal Appeal No. 442 of 2020 filed by P.W.1-Ali SherKhan, is dismissed.E85. The appeals are disposed of in the above terms. All pendingapplications shall also stand disposed of.

86. Before we part with the judgment, we must appreciate thevaluable assistance rendered by Smt. Nitya Ramakrishnan, learned SeniorFCounsel appearing on behalf of accused No.1 as well as acquitted originalaccused No.2, Shri Dama Seshadri Naidu, learned counsel for accusedNos. 3 and 4, and Shri Vinod Diwakar, learned Additional AdvocateGeneral appearing on behalf of the State of Uttar Pradesh.

GDivya Pandey

Appeals disposed of.

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