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SUPREME COURT OF INDIA
Abhay S. Oka, Pankaj Mithal, Ahsanuddin Amanullah, JJ.
Aejaz Ahmad Sheikh – Appellant
Versus
State of Uttar Pradesh & Anr. – Respondents
Criminal Appeal No. 2142 of 2017 with Criminal Appeal Nos. 2143-2144 of 2017
Decided On : 22-04-2025
(A) Indian Penal Code, 1860 – Section 302 – Indian Evidence Act, 1872 – Section 118 – Criminal Procedure Code, 1973 – Section 378 – Murder of wife and three daughters – Appeal against acquittal by High Court – Material contradictions have been brought on record in evidence of minor eye witness which have been proved through evidence of investigating officer – These are major contradictions brought on record – Prosecution has heavily relied upon dying declarations of two victims – As this evidence was not put to accused in his statement under Section 313 of Cr.P.C., he was denied opportunity to explain the same – This omission causes prejudice to him – Evidence of dying declaration will have to be kept out of consideration – After long gap of 14 years, it will be unjust to compel accused to face such examination – Accused has undergone incarceration for more than 6 years – In absence of legal evidence on record to prove guilt of accused beyond reasonable doubt, Supreme Court cannot interfere with impugned judgment of High Court – Appeals dismissed. (Paras 10, 13, 22, 23, 27 and 30)
(B) Criminal Procedure Code, 1973 – Section 313 [Section 351 of Bharatiya Nagarik Suraksha Sanhita, 2023] – Examination of accused – When appeal against conviction is preferred before High Court at earliest stage, High Court must examine whether there is proper statement of accused recorded under Section 313 of Cr.P.C. (Section 351 of Bharatiya Nagarik Suraksha Sanhita, 2023) – If any defect is found, at that stage, same can be cured either by High Court recording further statement or by directing Trial Court to record – If this approach is adopted, argument of delay and prejudice will not be available to accused. (Para 28)
Facts of the case:
Instant appeals arise from the same impugned judgment of the High Court by which one Hasim Sheikh (the accused) was acquitted of the offence punishable under Section 302 of the Indian Penal Code. The incident is very gruesome. It is the death of wife of accused and her three daughters due to burn injuries.
Findings of Court:
There are several criminal appeals which come to this Court where we find that vital prosecution evidence is not put to the accused in statement under Section 313 of the CrPC. The Court becomes helpless, as due to the long lapse of time, the defect cannot be cured by passing an order of remand.
Result : Appeals dismissed.
JUDGMENT :
(ABHAY S. OKA, J.)
FACTUAL ASPECTS
1. These appeals arise from the same impugned judgment of the High Court by which one Hasim Sheikh (the accused) was acquitted of the offence punishable under Section 302 of the Indian Penal Code (for short 'the IPC'). The incident is very gruesome. It is the death of Amina (wife of the accused) and her three daughters, namely, Najma, Fatima and Salma, due to burn injuries. Even Aslam (cousin of the accused) died due to the burn injuries sustained in the same incident.
2. The accused and Amina had three daughters Najma, Fatima and Salma and two sons Kamar Hasim and Kadam. The complainant is PW-1 Aejaz Ahmad Sheikh. He is the real brother of the deceased Amina. As the accused used to abuse and beat his deceased wife and deceased daughters, PW-1 visited the house of the accused on 26th December 2008. He made an attempt to resolve the issue. He was not successful. He was told to leave the house. While he was leaving the house, the deceased Amina told him not to go as the accused and his family members were intending to kill her. A few hours after PW-1 reached his home, he received a call that the accused, out of anger, along with his cousin Aslam, poured kerosene on Amina and the three daughters and set them on fire. Daughter Najma died on the spot, and the other three were admitted to the District Hospital. PW-1 rushed to the hospital and met his sister Amina, who disclosed that after his departure, the accused, along with Aslam, poured kerosene on her and three daughters and set them on fire. On the very same day, Aslam was also admitted to the hospital due to burn injuries. On 26th December 2008, the dying declaration of daughter Fatima was recorded by Tahsildar, Deoria, Harish Chandra Singh (PW-11). Fatima stated that her father and the village people poured kerosene oil and set it on fire. She blamed her paternal grandparents for being the root cause of the burning. On the same day, a dying declaration of the wife, Amina, was recorded by PW-11, in which she stated that the accused locked her and her three daughters and poured kerosene on her and her daughters and set them on fire. She stated that Najma died, and she, along with her two daughters, sustained burn injuries.
3. On 26th December 2008, on the complaint of PW-1, a first information report was registered for the offences punishable under Sections 302,307 and 120B of the IPC. On the next day, the recovery of burnt clothes and a plastic can containing 100 gms. of kerosene was recovered from the site of the incident. On 1st January 2009, Salma died. On 2nd January 2009, co-accused Aslam died. On the same day, Fatima succumbed to burn injuries. On 6th January 2009, Amina died. All of them died due to burn injuries. A charge sheet was filed against the accused for the offences punishable under Section 302 of the IPC.
4. The learned Addl. District and Sessions Judge, by judgment dated 19th April 2014, convicted the accused. The learned Judge accepted the testimony of PW-5 Kamar Hasim, the minor son of the accused. The learned Judge also accepted the dying declarations of Amina and Fatima recorded by PW-11, Tahsildar. He held the accused guilty of the offence punishable under Section 302 of the IPC. The learned Judge held that this case was falling under the category of rarest of the rare cases and proceeded to award capital punishment.
5. By the impugned judgment, the High Court not only declined to confirm the capital punishment but proceeded to acquit the accused.
6. Criminal Appeal nos.2143-44 of 2017 has been preferred by the State, and Criminal Appeal no.2142 of 2017 has been preferred by PW-1 complainant. As no one represented PW-1, this Court appointed learned counsel Shri Shubhranshu Padhi as Amicus to espouse the cause of PW-1. He and the counsel for the State made detailed submissions.
SUBMISSIONS
7. Learned counsel appointed as amicus curiae to espouse the cause of the PW-1 (Appellant in Criminal Appeal No.2142 of 2017) has t
(1) Child witness – Minor is also a competent witness.(2) Murder – In absence of legal evidence on record to prove guilt of accused beyond reasonable doubt, Court cannot interfere with Judgment of ac....
Inconsistent dying declarations cannot suffice for conviction without corroborating evidence, especially when procedural guidelines for a fair trial are not met.
The failure to put the contents of the dying declarations to the accused under Section 313 CrPC resulted in prejudice to the accused, and the dying declarations could not be used against him in the a....
Point of Law : oral dying declaration made the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination.
(1) Court must ordinarily eschew material circumstances not put to accused from consideration while dealing with case of particular accused.(2) Examination of accused – Court is empowered to take hel....
Point of Law : Section 3 of the Indian Evidence Act, 1872, wherein the word "Proved" is defined --A fact is said to be proved when, after considering the matters before it, the Court either believes ....
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