Factual background
Appeal filed against the life imprisonment
1. This appeal has been filed against the judgment dated 9th October, 2018 of the High Court of Allahabad. The impugned judgment upheld the conviction of the appellant nos. 1 and 2 for the offences punishable under Section 302 and Section 307 read with Section 34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Both of them were sentenced to suffer life imprisonment.
FIR registered for firearm shot and succumbed to injuries
2. First Information Report (for short, ‘the FIR’) dated 5th May, 1981 was registered against the accused no. 1 (Abrar), appellant no. 1/accused no. 2 (Sakhawat) and appellant no. 2/accused no. 3 (Mehndi) for the aforementioned offences. The case of the prosecution is that PW-4 (Amir Hussain) was sleeping under a Babool tree, and the deceased (Sukha) was sleeping in his hut. On the intervening night of 4th/5th May, 1981, PW-4 (Amir Hussain) woke up at 2 a.m. to the sound of a firearm being shot. PW-5 (Allah Baksh) and PW-6 (Mohd. Hanif) also arrived at the scene where they heard a voice from the hut of the deceased (Sukha) and a firearm shot. They saw appellant no. 1 armed with a country-made pistol, appellant no. 2 armed with a knife, and accused no. 1 armed with a danda. The accused allegedly had a scuffle with the deceased and PW-7 (Nanhi), who were allegedly in an illicit relationship. Appellant no. 2 inflicted an injury to the neck of PW-7 using his knife. The accused fled and the deceased was found trembling on account of injuries near his hut, and eventually succumbed to the injuries.
Trial court convicted for sentence of life imprisonment
3. On 16th October 1982, the Trial Court convicted appellant no. 1 and appellant no. 2 for the offences alleged against them, and a sentence of life imprisonment was imposed. The Trial Court acquitted the accused no. 1 as he had only held a danda and no injury marks were found on the deceased or PW-7 that were made using a danda.
Appeal confirmed by Hon’ble High Court
4. The present appellants are accused nos. 2 and 3. They had preferred an appeal before the High Court. By the impugned judgment, the High Court confirmed the judgment of the Trial Court.
Prosecution proved the case through witnesses
5. The prosecution has examined 10 witnesses to prove their case. PW-1 (Dr. R. M. Bhardwaj) is the doctor who conducted the autopsy of the deceased, PW-2 (Dr. K. Chandra) is the doctor who examined the injuries of PW7, and PW-3 (Dr. Pratibha Gupta) is the gynaecologist who examined PW-7. PW-4 (Amir Hussain) is the informant/complainant who has been examined as an eye witness to the offence. He was sleeping just a few steps away when he heard noises and rushed to the scene of the crime. PW-5 (Allah Baksh) and PW-6 (Mohd. Hanif) have been examined as eye-witnesses and arrived at the crime scene on hearing a gunshot. PW-7 is an injured witness who was allegedly in an illicit relationship with the deceased and was declared hostile when she claimed that PW-4 and accused no. 1 shot the deceased and wounded her. PW-8 (Raj Bahadur Singh) is the constable who accompanied the dead body for autopsy. PW-9 (Noora) was acquainted with both the deceased and PW-7 and deposed on the existence of a relationship between the deceased and PW-7. PW-10 (Harpal Singh) is the Investigating Officer who initiated the inquest proceedings, drew a site map, made seizures and recorded statements of witnesses.
Consideration
PW-7 did not see the illicit relationship
9. We have carefully perused the evidence of the material prosecution witnesses. PW-4 is the first informant. He stated that he knew the appellants. He stated that accused no. 1 and the appellants were present in the Court. He stated that accused no. 1 and appellant no. 1 were real brothers, and appellant no. 3 was their cousin. He pointed out that the appellant no. 1 and accused no. 1 were the brothers of the injured witness, PW-7. He stated that the deceased had an illicit relationship with PW-7. He stated that he was doing joint farming with the deceased. He described the incident that took place at 2:00 a.m. He stated that the deceased was sleeping in his hut, and he was sleeping under a Babool tree. When he heard the sound of a gunshot, he opened his eyes and found that PW-5 and PW-6 had come there. He heard a voice from inside the hut saying, “Brother, you have done this wrong”. Thereafter, another gunshot was heard. He stated that he switched on a torchlight and looked towards the hut. He saw appellant no.1 with a country-made pistol in his hand. Appellant no. 2 had a knife in his hand, and accused no. 1 had a danda in his hand. They were clinging to PW-7. When the witness raised an alarm, all three accused ran away. He stated that PW-7 had a bullet wound on her stomach and a knife wound on her back. He stated that the deceased had already died. In the cross-examination, he stated that he did not see the illicit relationship between the deceased and PW-7. He stated that this was a common discussion in the village. On the second sound of firing, while answering the question in the cross-examination about who fired the gunshot and at whom, PW-4 stated that he had only heard the sound of the second gunshot. He denied the suggestion that the police came to the village between 10:00 am and 11:00 am and arrested him. He also denied the suggestion that the police had kept him in custody till the next day.
Witness even though said he did not sworn affidavit he was not confronted with the affidavit in his cross examination
10. Now, we come to the evidence of PW-5. He identified the three accused before the Court. He stated that at 2:00 am, he was sleeping in his hut along with PW-6 (Mohd. Hanif). He was awakened by the sound of a firearm. He went near the hut of the deceased (Sukha) with a three-cell torch, when he saw that accused no. 1, appellant no. 1 and appellant no. 2 were clinging to PW-7, who was telling them, “Brother, you had done wrong”. Thereafter, the second sound of fire came. Then the three accused fled. He stated that appellant no. 1 was carrying a country-made pistol and appellant no. 2 was carrying a knife. In the cross-examination, he was confronted with the affidavit marked as ‘A’ by giving a suggestion that this affidavit was verified by him at the time when an application for bail of the appellants was considered. Witness denied having executed any such affidavit. He reiterated that he did not submit any affidavit. However, he has not been confronted with the specific parts of the affidavit during his cross-examination. He stated that he went to the police station at 8:00 am and was there until 8:00 am the next day. He stated that the Sub-Inspector left the police station after recording the report and directed that the witness should not be allowed to go. He stated that his son, PW-6 (Mohd. Hanif), did not visit the police station. The statement of PW-5 that the appellants were present with a country-made revolver and a knife, and were clinging to PW-7, has also not been challenged in the cross-examination at all.
The weapons carried by the accused gone unchallenged
11. Now, we come to the evidence of PW-6 (Mohd. Hanif). He stated that at 02:00 am on the date of the incident, he was sleeping at home with his father, PW-5. His eyes opened after hearing a sound of firing. Thereafter, he, along with PW-5 (Allah Baksh), went towards the hut of the deceased (Sukha). He stated that PW-4, who was sleeping under a babool tree, also woke up. He heard a voice saying, “Brother, I am telling the truth and will tell everyone that you have done wrong”. Then they heard one more gunshot. He stated that PW-4 and PW-5 were carrying a torch, and in the light of the torch, they saw the three accused clinging to PW-7. He also stated that appellant no. 1 was having a country made pistol in his hand and appellant no.2 had a knife in his hand. When they shouted and ran towards the accused, all three accused fled away. PW-6 was confronted, in cross-examination, by showing an affidavit marked as ‘B’. He denied having submitted any such affidavit. On the presence of appellants with a country made gun and a knife, respectively, there was no serious cross-examination. Thus, his version about hearing two gunshots, the accused clinging to PW-7, and the accused carrying weapons has gone unchallenged.
No cross examination on injuries
12. As regards the injury to PW-7, PW-2 (Dr. K. Chandra), a Medical Officer who examined PW-7, stated that there were multiple gunshot wounds. There was an incise wound of 6cm X 2cm, which was muscle deep on the front and left side of the neck. Four abrasions were found. He stated that the incised wound could have been caused by a knife. There is hardly any cross-examination on this aspect.
No material contradictions and omissions were brought on record
17. We must record here that in the cross-examination of PWs-4, 5 and 6, no material contradictions and omissions have been brought on record. The cross examination, unfortunately, is very sketchy. But, there is something which goes to the root of the matter. Under Article 21 of the Constitution of India, the accused is entitled to a fair trial. Even the Police are under an obligation to carry out a fair investigation. This is a crucial aspect of fairness. The objective of the investigation is to ensure that the real culprits are brought to justice. The legal system must ensure that an innocent person is not punished.
Bail was granted based on the affidavit filed by eyewitnesses stating appellant no.1 was not shot the deceased
18. We have perused the entire trial Court record. The appellant no.1 made an application for bail before the Sessions Court. Appellant No. 2 and accused no.1 made another application. The order sheet of the bail application made by the appellant no.1 shows that the affidavits were produced in the bail application, and time was granted by the Session Court to file a counter-affidavit to the Investigating Officer. Bail was granted to the appellant no.1, by observing that all the eyewitnesses except PW-4 (complainant) have given their affidavits stating that the appellant no.1 was not the person who shot at the deceased. The order also refers to the affidavit of PW-7 (Nanhi), which is on record of the bail application. In the affidavit, she states that PW-4 (Amir Hussain) and one Akbar are the assailants of the deceased who injured her. Accused no.1 and appellant no.2 were granted bail by the Sessions Court by relying upon the affidavit of PW-7 (Nanhi).
Investigation Officer did not counter the affidavits filed during bail and obtain supplementary statements of the eye witnesses
20. Thus, the fact that PW-5 and PW-6 had submitted the affidavits in the bail application in favour of the accused is admitted by the investigating officer. Even the affidavit of PW-7 (Nanhi) is admitted. Though there is defence evidence adduced to prove the execution of the affidavits by PW-5 and PW-6, marked as Annexure ‘A’ and ‘B’, the police did not conduct an investigation by sending the affidavits and admitted thumb impressions of the witnesses for examination by an expert. Thus, three major prosecution witnesses, who were the eyewitnesses, had admittedly filed the affidavits before the Session Court stating that the present appellants were not the culprits. The Session Court relied upon the affidavits for granting bail to the accused. After getting the knowledge of the affidavits, it was the duty of the Investigating Officer to record supplementary statements of these three eyewitnesses about the affidavits and the contents of the affidavits. He has come out with a lame excuse that he did not controvert the said affidavit by filing a counter-affidavit, as the witnesses could not be traced. If the presence of the witness is required during the investigation, there are elaborate provisions in the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) for procuring the presence of the witnesses. PW-10 has not explained what efforts he has made to call PW-5 to PW-7 to record their further statements.
21. Thus, the scenario which emerges is that three out of four eyewitnesses had admittedly filed the affidavits during the bail hearing of the accused, stating that the accused were not involved. For whatever reason, the investigating officer did not controvert the affidavits, though time was granted to him. In fact, the stand taken by the affidavit of PW-7 is that PW-4 and Akbar are the assailants who killed the deceased and who injured her.
Prosecution tried to suppress the affidavits
22. Thus, by failing to carry out further investigation on the basis of the said affidavits, the prosecution has failed to carry out a fair investigation. Moreover, the prosecution tried to suppress the affidavits.
Failure to recover the weapons of offence
23. Therefore, there is a serious doubt created about the truthfulness of the versions of PW-5 to PW-7 before the Court. It is pertinent to note that PW-5 was detained at the police station for 24 hours before his statement was recorded. A serious doubt is created whether these witnesses are telling the truth. Then, what survives is the evidence of PW-4. PW-7 in the affidavit has stated that, in fact, PW-4 was the assailant. As the prosecution has not conducted a fair investigation and has suppressed important material in the form of affidavits of PW-5 to PW-7, it is unsafe to convict the appellants only on the basis of the testimony of PW-4. The failure to conduct further investigation based on the affidavits goes to the root of the matter. The failure to recover the weapons of offence also becomes relevant in the background of these circumstances.
Trial court should not be mentioned as lower court
25. Before we part with the judgment, we reiterate the direction issued in the order dated 8th February 2024, that the record of the Trial Court should not be referred to as “Lower Court Record”. Describing any Court as a “Lower Court” is against the ethos of our Constitution. The Registry has issued a Circular dated 28th February 2024 for giving effect to the order. The High Courts must take note of the above direction and act upon the same.
Conclusion
Appeal allowed conviction set aside
26. Therefore, the appeal succeeds. The impugned judgments and orders insofar as the appellants are concerned are hereby set aside, and the appellants are acquitted of the offences alleged against them. Their bail bonds stand cancelled.
Acts and Sections involved
Indian Penal Code, 1860 (IPC)
– Section 302 (Murder)
– Section 307 (Attempt to murder)
– Section 34 (Acts done by several persons in furtherance of common intention)
Party
Sakhawat and Another versus State of Uttar Pradesh – Criminal Appeal No. 4571 of 2024 – 2025 INSC 777 – May 23, 2025 – Hon’ble Mr Justice Abhay S. Oka and Hon’ble Mr Justice Augustine George Masih.
Author’s note
How to cross examine a document that is/are denied by the witness?
The Hon’ble Supreme Court has clearly outlined in this judgment on how to confront the document (affidavit) even after the witness has denied executing it.
If the defense counsel confronts a witness with a document that appears to have been executed or drafted by the said witness, the defense counsel must bring the document to the witness’s attention. If the witness answers in positive regarding the execution of the document, then there will not be any difficulty in contradicting the witness by drawing the witness’s attention to the specific portion of the document. But, if the witness completely or partially denies having executed or drafted the document in question which is liable to be confronted, then the defence counsel must bring the document to the attention of the witness and suggest that the said witness did execute or draft the document in question and further contradict the particular portions favourable to accused. Only then the defence counsel can take advantage of the portions favourable to him.
Observation of the Hon’ble Supreme court in paragraph. 10:
“He reiterated that he did not submit any affidavit. However, he has not been confronted with the specific parts of the affidavit during his cross-examination”.
In the present case, the counsel for the accused submitted affidavits (claiming the eye-witnesses executed them) along with the bail applications. The favourable portion in the affidavit is that appellant did not shoot the deceased. But, in cross-examination eye-witnesses have resiled from the execution of the said affidavits.
Now, in the aforesaid scenario, the defence counsel must put the following questions to them to gain advantage from the portions of the affidavit:
(after witnesses denied the execution of the said affidavits)
“You have executed the affidavits being shown to you (not correct)”
(now, bring the attention of the witnesses to the particular portion)
“(read the portions contradicting the eye witness’s chief) you have stated this portions in your affidavit (Ex.P) in front of an advocate and now you are denying it since the police asked to you depose against the accused (not correct)”
“The accused is innocent, and you, along with the police, have presented false case against him.”
Thereafter, when I.O comes ask him about his investigation on the affidavit. In the present case I.O has admitted the affidavits were executed by the eye-witnesses and hence there is no need to call the advocate (in whose presence the affidavits are executed).
Hence, the contradiction is proved and the defence counsel is successfully created the doubts in the mind of the court regarding the execution of affidavit and its portions.
