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SUPREME COURT OF INDIA
L. NAGESWARA RAO, B.R. GAVAI, B.V. NAGARATHNA, JJ.
Jaikam Khan – Appellant
Versus
The State of Uttar Pradesh – Respondent
Criminal Appeal Nos. 434-436, 437-439, 440-441, 442 of 2020
Decided On : 15-12-2021
(A) Criminal Law – Appreciation of evidence – Merely because witnesses are interested and related witnesses, it cannot be a ground to disbelieve their testimony – However, testimony of such witnesses has to be scrutinised with due care and caution – Upon scrutiny of evidence of such witnesses, if Court is satisfied that evidence is creditworthy, then there is no bar on court in relying on such evidence. (Para 28)
(B) Indian Penal Code, 1860 – Sections 302/34 – Arms Act, 1959 – Sections 25/4 – Multiple murders – Common intention – Death sentence – Though memo shows that recoveries were made in presence of public witnesses, no public witness has been examined to support the same – Since no public witness has been examined to support memo, statement made therein will have to be scrutinised with greater caution and circumspection – All statements made therein with regard to confession of committing crime would not be admissible in evidence – Only such information which distinctly relates to discovery of facts will be admissible under Section 27 of Indian Evidence Act, 1872 – In case of direct evidence and ocular testimony of eyewitness being found to be trustworthy, reliable and cogent, it will not be necessary for prosecution to prove motive for crime – However, in present case, testimony of eyewitnesses could not be said to be wholly reliable, motive aspect would be a relevant factor – None of independent witnesses have been examined by prosecution – Since witnesses examined on behalf of prosecution are interested witnesses, non-examination of independent witnesses, though available, would make prosecution version doubtful – Fingerprint expert’s report is not placed on record – Report of dog squad is also not placed on record – It also casts a doubt with regard to genuineness of prosecution case – Only after prosecution discharges its burden of proving case beyond reasonable doubt, burden would shift on accused – Prosecution has utterly failed to prove case beyond reasonable doubt – Conviction and death sentence imposed on accused is totally unsustainable in law – Criminal Appeals allowed and acquittal appeal dismissed.(Paras 55, 56, 59, 67, 68, 71, 81, 83 and 84)
Facts of the case:
Present appeals arise out of the common judgment and order passed by the Division Bench of the High Court of Judicature at Allahabad dated 18th May, 2018, in Reference No.01 of 2016 and, Capital Case No.602 of 2016 and Capital Case No.844 of 2016, thereby confirming the judgment and order of conviction dated 2nd January, 2016 and the order of death sentence dated 11th January, 2016 awarded to original accused Nos. 1, 3 and 4 by Additional Sessions Judge, Bulandshahr. Vide said impugned judgment dated 18th May, 2018, High Court has, however, allowed the appeal of original accused No.2 Nazra and set aside conviction under Sections 302/34 of the Indian Penal Code, 1860 and the death penalty awarded to her.
Findings of Court:
While coming to the conclusion that prosecution has failed to bring home the guilt of accused beyond reasonable doubt, we are at pains to observe the manner in which the present case has been dealt with by the trial court as well as by the High Court, particularly, when the trial court awarded death penalty to accused and the High Court confirmed it. The trial court and the High Court were expected to exercise a greater degree of scrutiny, care and circumspection while directing accused to be hanged till death.
Result : Appeals Partly allowed.
JUDGMENT :
B.R. GAVAI, J.
1. The present appeals arise out of the common judgment and order passed by the Division Bench of the High Court of Judicature at Allahabad dated 18th May, 2018, in Reference No. 01 of 2016 and Capital Case No. 602 of 2016 and Capital Case No. 844 of 2016, thereby confirming the judgment and order of conviction dated 2nd January, 2016 and the order of death sentence dated 11th January, 2016 awarded to original accused Nos. 1, 3 and 4 by the Additional Sessions Judge, Bulandshahr. Vide the said impugned judgment dated 18th May, 2018, the High Court has, however, allowed the appeal of the original accused No. 2-Nazra and set aside the conviction under Section 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”) and the death penalty awarded to her.
2. Being aggrieved, Criminal Appeal Nos. 434-436 of 2020 are filed by Jaikam Khan (Accused No. 3); Criminal Appeal Nos. 437-439 of 2020 are filed by Sajid (Accused No. 4); and Criminal Appeal Nos. 440-441 of 2020 are filed by Momin Khan (Accused No. 1); whereas Criminal Appeal No. 442 of 2020 is filed by Ali Sher Khan, the first informant (PW-1 ) (hereinafter referred to as “PW-1 Ali Sher Khan”) being aggrieved by the order of acquittal of original accused No. 2-Nazra.
3. Appellant-Momin Khan (A-1), deceased Shaukeen Khan, PW-1 Ali Sher Khan and Kallu Khan are the four sons of deceased Mausam Khan (father, aged about 85 years) and deceased Asgari (mother, aged about 80 years). Deceased Shanno (Aged about 30 years) is the wife of deceased Shaukeen Khan, whereas deceased Samad (Aged about 8 years) is the son of deceased Shaukeen Khan and deceased Muskan (Aged about 15 years) is the niece of PW-1 Ali Sher Khan.
4. Appellant-Jaikam Khan (A-3) is the first cousin of deceased Shaukeen Khan, appellant-Momin Khan (A-1) and PW-1 Ali Sher Khan. Appellant-Sajid (A-4) is the son of appellant-Jaikam Khan (A-3). Original Accused No. 2-Nazra, who was convicted by the trial Court and acquitted by the High Court, is the wife of appellant-Momin Khan (A-1).
5. It is the prosecution case that deceased Shaukeen Khan and PW-1 Ali Sher Khan were not in good terms with Momin Khan (A-1) and his wife Nazra (A-2). Therefore, deceased Mausam Khan (father) had separated all the brothers and allotted their respective share of properties. The houses of each one of them were in one compound. Deceased Mausam Khan (father) owned a brick-kiln. In the beginning, appellant-Momin Khan (A-1) used to run the brick-kiln, but he did not give the money earned by him from the brick-kiln to deceased Mausam Khan (father) and his elder brother, deceased Shaukeen Khan. Therefore, deceased Mausam Khan (father) had dispossessed Momin Khan (A-1) from the brick-kiln. Thereafter, deceased Mausam Khan and PW-1 Ali Sher Khan were running the brick-kiln with the help of his brother deceased Shaukeen Khan. Jaikam Khan (A-3) and Sajid (A-4) were jealous with their growing business and so a case was also lodged for laying bricks over the disputed land. Thereafter enmity arose between them, and the younger brother Momin Khan (A-1) joined the company of his uncle’s son i.e. Jaikam Khan (A-3) and Jaikam Khan (A-3)’s son Sajid (A-4).
6. On the fateful day of the incident, i.e. 23rd January, 2014, at around 8.30 p.m. PW-1 Ali Sher Khan and his brother-in-law, PW-2 Jaan Mohammad, were present at home i.e. the place of incident. At that time, Momin Khan (A-1) with his wife Nazra (A-2) along with Jaikam Khan (A-3) and Sajid (A-4) came armed with knives and assaulted Mausam Khan (father), Asgari (mother), Shaukeen Khan (brother), Shanno (sister-in-law), Samad (nephew) and Muskan (niece) and killed them brutally. PW-1 Ali Sher Khan and his brother-in-law, PW-2 Jaan Mohammad, somehow managed to save their lives. On hearing the cries of the deceased and others, many villagers gathered and all four accused fled from the spot through the back-door.
7. Immediately after the incident, PW-1 Ali Sher Khan and PW-2 Jaan
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