Full Judgment Text
2025 INSC 777
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.4571 of 2024
Sakhawat and Anr. … Appellants
versus
State of Uttar Pradesh … Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL BACKGROUND
1. This appeal has been filed against the judgment
th
dated 9 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.
2. First Information Report (for short, ‘the FIR’) dated
th
5 May, 1981 was registered against the accused no. 1
(Abrar), appellant no. 1/accused no. 2 (Sakhawat) and
Signature Not Verified
appellant no. 2/accused no. 3 (Mehndi) for the
Digitally signed by
ANITA MALHOTRA
Date: 2025.05.23
17:42:44 IST
Reason:
Criminal Appeal No.4571 of 2024 Page 1 of 17
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.
th th
On the intervening night of 4 /5 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.
th
3. On 16 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 .
Criminal Appeal No.4571 of 2024 Page 2 of 17
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.
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 PW-
7, 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
Criminal Appeal No.4571 of 2024 Page 3 of 17
proceedings, drew a site map, made seizures and
recorded statements of witnesses.
SUBMISSIONS
6. Learned senior counsel appearing for the appellants
has taken us through the evidence of the prosecution
witnesses. He submitted that both PW-5 (Allah Baksh)
and PW-6 (Mohd. Hanif) had sworn affidavits at the time
of consideration of bail applications of the appellants.
Those affidavits were in favour of the accused. Though
both the witnesses during their cross-examination have
denied having filed such affidavits, the defence witnesses
have proved the fact that such affidavits were filed. He
pointed out that PW-5 stated that he had gone to the
police station along with PW-4 and was detained at the
police station. However, PW-6, son of PW-5, says that PW-
5 had not gone to the police station.
7. Learned senior counsel submitted that there was no
material on record to show that the deceased and PW-7
were maintaining an illicit relationship. He submitted
that evidence of PW-7 shows that PW-4 and one Abrar
are the real culprits. They have falsely implicated the
brothers of PW-7. He pointed out that although the
incident occurred at 2:00 am on 5th May 1981, the FIR
Criminal Appeal No.4571 of 2024 Page 4 of 17
was lodged only at 6:30 am. Inquest of the dead body of
deceased was done at 11:30 am. The postmortem was
conducted at 03:40 pm. He submitted that this delay
creates a doubt about the veracity of the prosecution’s
case. He submitted that the recovery of articles (weapons
of offence) was not proved. Even the Forensic Science
Laboratory Report (for short, the FSL Report) is not
placed on record. He submitted that there are
contradictions in the versions of PW-5 and PW-6, which
make the evidence vulnerable.
8. Learned senior counsel appearing for the State
pointed out that the evidence of PW-5 and PW-6, which
clearly ascribes roles to the appellants, has gone
unchallenged as there was neither any material
contradiction nor any omission brought on record. He
submitted that even evidence of PW-4 is reliable and
deserves acceptance. He pointed out that PW-7 turned
hostile and therefore, her evidence will have to be kept
out of consideration. He also pointed out that there are
concurrent findings of fact by both the Trial Court and
the High Court. By relying on the testimonies of PW-4,
PW-5, and PW-6, and in the absence of any perversity in
the findings of the Trial Court and the High Court, there
is no reason to interfere with the impugned judgments.
Criminal Appeal No.4571 of 2024 Page 5 of 17
CONSIDERATION
We have carefully perused the evidence of the
9.
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
Criminal Appeal No.4571 of 2024 Page 6 of 17
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.
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
Criminal Appeal No.4571 of 2024 Page 7 of 17
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.
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
Criminal Appeal No.4571 of 2024 Page 8 of 17
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.
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.
13. PW-1 (Dr. R. M. Bhardwaj), a Senior Radiologist who
had examined the body of the deceased, stated that a
firearm wound having a size of 3cm x 2cm, which was in
Criminal Appeal No.4571 of 2024 Page 9 of 17
the chest cavity, deep in front of the left side chest, just
below the left nipple, was seen. He stated that the firearm
injury was sufficient in the ordinary course to cause
death.
PW-7 was declared hostile. She tried to make out a
14.
case that it was PW-4 who shot her in the stomach, and
that one, Abrar, stabbed her in her neck.
15. DW-1 is one Chhangu, who was the Pradhan of the
village. He was examined to show that PW-4 was arrested
and was kept in lockup for two days. He stated that
affidavits of PW-5 and PW-6 were prepared in his
presence in Rampur Kachehri. He stated that after the
typist typed the affidavits, he read over them. DW-1
stated that the Oath Commissioner read over the
affidavits to them. He stated that the deponents had put
their thumb impressions below the statements. We find
that in the examination-in-chief, he was not shown the
affidavits marked as 'A' and 'B'.
16. DW-2 is Mumtaz Ali, who was working with an
advocate in his office. He stated that PW-5 and PW-6 put
their thumb impressions in his presence, and he had
verified the same. DW-3 (Radhyeshyam, Advocate) was
the Oath Commissioner who stated that PW-5 and PW-6
affirmed affidavits before him, which were marked as 'A'
Criminal Appeal No.4571 of 2024 Page 10 of 17
and 'B'. DW-4 (Pradeep Kumar Gupta) is the clerk of the
Oath Commissioner who claimed to have read over the
affidavits to PW-5 and PW-6. DW-2 (Mumtaz Ali)
identified his signatures as attesting witness on
statements marked as 'A' and 'B'.
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.
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-
Criminal Appeal No.4571 of 2024 Page 11 of 17
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).
19. There is something very crucial that the High Court
and the Sessions Court have missed. In the cross-
examination of PW-10 (Harpal Singh), Investigating
Officer, the following questions were put:
“Que. Except complainant other
eyewitnesses had submitted their
affidavits on behalf of accused persons
in this Court at the time of bail, you
had not filed any counter affidavit to
those affidavits?
Ans. Witnesses were not found
available to me as such I could not
verify as to whether they had filed
affidavits or not and on account of this
reason I could not file any counter-
affidavit also.
Criminal Appeal No.4571 of 2024 Page 12 of 17
Que. Whether you had gone in search
of those witnesses in regard to counter
affidavit yourself or you had sent
someone?
Ans. I had gone personally.
Que. You have not recorded anything
in case diary about searching
witnesses for counter-affidavit?
No, Sir, I had closed case diary
Ans.
after completing investigation.
Que. Have you recorded any entry in
C.D. about tracing witnesses for
counter-affidavit?
Ans. I do not recollect.
Que. When you did not find witnesses
available whether you moved any
application before court that you could
not find witnesses available as such
time be extended?
Ans. I had reported to Government
counsel about not finding witnesses
available.
Que. From copy of affidavit of injured
Nanhi you had come to know this fact
that Amir Hussain has committed
murder?
Ans. Copy of the said affidavit had
reached to me and such fact was lying
mentioned in that affidavit. ”
Criminal Appeal No.4571 of 2024 Page 13 of 17
Thus, the fact that PW-5 and PW-6 had submitted
20.
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 a
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
Criminal Appeal No.4571 of 2024 Page 14 of 17
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.
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.
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
Criminal Appeal No.4571 of 2024 Page 15 of 17
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.
24. Therefore, this is a case where there is failure on the
part of the High Court and the Session Court to consider
the cross-examination of PW-10 and the suppression of
the affidavits by the prosecution. These highly relevant
aspects have been completely overlooked by the High
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.
th
The Registry has issued a Circular dated 28 February
2024 for giving effect to the order. The High Courts must
take note of the above direction and act upon the same.
Criminal Appeal No.4571 of 2024 Page 16 of 17
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.
.…………………………….J.
(Abhay S Oka)
.…………………………….J.
(Augustine George Masih)
New Delhi;
May 23, 2025.
Criminal Appeal No.4571 of 2024 Page 17 of 17
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.4571 of 2024
Sakhawat and Anr. … Appellants
versus
State of Uttar Pradesh … Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL BACKGROUND
1. This appeal has been filed against the judgment
th
dated 9 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.
2. First Information Report (for short, ‘the FIR’) dated
th
5 May, 1981 was registered against the accused no. 1
(Abrar), appellant no. 1/accused no. 2 (Sakhawat) and
Signature Not Verified
appellant no. 2/accused no. 3 (Mehndi) for the
Digitally signed by
ANITA MALHOTRA
Date: 2025.05.23
17:42:44 IST
Reason:
Criminal Appeal No.4571 of 2024 Page 1 of 17
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.
th th
On the intervening night of 4 /5 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.
th
3. On 16 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 .
Criminal Appeal No.4571 of 2024 Page 2 of 17
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.
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 PW-
7, 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
Criminal Appeal No.4571 of 2024 Page 3 of 17
proceedings, drew a site map, made seizures and
recorded statements of witnesses.
SUBMISSIONS
6. Learned senior counsel appearing for the appellants
has taken us through the evidence of the prosecution
witnesses. He submitted that both PW-5 (Allah Baksh)
and PW-6 (Mohd. Hanif) had sworn affidavits at the time
of consideration of bail applications of the appellants.
Those affidavits were in favour of the accused. Though
both the witnesses during their cross-examination have
denied having filed such affidavits, the defence witnesses
have proved the fact that such affidavits were filed. He
pointed out that PW-5 stated that he had gone to the
police station along with PW-4 and was detained at the
police station. However, PW-6, son of PW-5, says that PW-
5 had not gone to the police station.
7. Learned senior counsel submitted that there was no
material on record to show that the deceased and PW-7
were maintaining an illicit relationship. He submitted
that evidence of PW-7 shows that PW-4 and one Abrar
are the real culprits. They have falsely implicated the
brothers of PW-7. He pointed out that although the
incident occurred at 2:00 am on 5th May 1981, the FIR
Criminal Appeal No.4571 of 2024 Page 4 of 17
was lodged only at 6:30 am. Inquest of the dead body of
deceased was done at 11:30 am. The postmortem was
conducted at 03:40 pm. He submitted that this delay
creates a doubt about the veracity of the prosecution’s
case. He submitted that the recovery of articles (weapons
of offence) was not proved. Even the Forensic Science
Laboratory Report (for short, the FSL Report) is not
placed on record. He submitted that there are
contradictions in the versions of PW-5 and PW-6, which
make the evidence vulnerable.
8. Learned senior counsel appearing for the State
pointed out that the evidence of PW-5 and PW-6, which
clearly ascribes roles to the appellants, has gone
unchallenged as there was neither any material
contradiction nor any omission brought on record. He
submitted that even evidence of PW-4 is reliable and
deserves acceptance. He pointed out that PW-7 turned
hostile and therefore, her evidence will have to be kept
out of consideration. He also pointed out that there are
concurrent findings of fact by both the Trial Court and
the High Court. By relying on the testimonies of PW-4,
PW-5, and PW-6, and in the absence of any perversity in
the findings of the Trial Court and the High Court, there
is no reason to interfere with the impugned judgments.
Criminal Appeal No.4571 of 2024 Page 5 of 17
CONSIDERATION
We have carefully perused the evidence of the
9.
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
Criminal Appeal No.4571 of 2024 Page 6 of 17
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.
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
Criminal Appeal No.4571 of 2024 Page 7 of 17
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.
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
Criminal Appeal No.4571 of 2024 Page 8 of 17
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.
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.
13. PW-1 (Dr. R. M. Bhardwaj), a Senior Radiologist who
had examined the body of the deceased, stated that a
firearm wound having a size of 3cm x 2cm, which was in
Criminal Appeal No.4571 of 2024 Page 9 of 17
the chest cavity, deep in front of the left side chest, just
below the left nipple, was seen. He stated that the firearm
injury was sufficient in the ordinary course to cause
death.
PW-7 was declared hostile. She tried to make out a
14.
case that it was PW-4 who shot her in the stomach, and
that one, Abrar, stabbed her in her neck.
15. DW-1 is one Chhangu, who was the Pradhan of the
village. He was examined to show that PW-4 was arrested
and was kept in lockup for two days. He stated that
affidavits of PW-5 and PW-6 were prepared in his
presence in Rampur Kachehri. He stated that after the
typist typed the affidavits, he read over them. DW-1
stated that the Oath Commissioner read over the
affidavits to them. He stated that the deponents had put
their thumb impressions below the statements. We find
that in the examination-in-chief, he was not shown the
affidavits marked as 'A' and 'B'.
16. DW-2 is Mumtaz Ali, who was working with an
advocate in his office. He stated that PW-5 and PW-6 put
their thumb impressions in his presence, and he had
verified the same. DW-3 (Radhyeshyam, Advocate) was
the Oath Commissioner who stated that PW-5 and PW-6
affirmed affidavits before him, which were marked as 'A'
Criminal Appeal No.4571 of 2024 Page 10 of 17
and 'B'. DW-4 (Pradeep Kumar Gupta) is the clerk of the
Oath Commissioner who claimed to have read over the
affidavits to PW-5 and PW-6. DW-2 (Mumtaz Ali)
identified his signatures as attesting witness on
statements marked as 'A' and 'B'.
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.
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-
Criminal Appeal No.4571 of 2024 Page 11 of 17
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).
19. There is something very crucial that the High Court
and the Sessions Court have missed. In the cross-
examination of PW-10 (Harpal Singh), Investigating
Officer, the following questions were put:
“Que. Except complainant other
eyewitnesses had submitted their
affidavits on behalf of accused persons
in this Court at the time of bail, you
had not filed any counter affidavit to
those affidavits?
Ans. Witnesses were not found
available to me as such I could not
verify as to whether they had filed
affidavits or not and on account of this
reason I could not file any counter-
affidavit also.
Criminal Appeal No.4571 of 2024 Page 12 of 17
Que. Whether you had gone in search
of those witnesses in regard to counter
affidavit yourself or you had sent
someone?
Ans. I had gone personally.
Que. You have not recorded anything
in case diary about searching
witnesses for counter-affidavit?
No, Sir, I had closed case diary
Ans.
after completing investigation.
Que. Have you recorded any entry in
C.D. about tracing witnesses for
counter-affidavit?
Ans. I do not recollect.
Que. When you did not find witnesses
available whether you moved any
application before court that you could
not find witnesses available as such
time be extended?
Ans. I had reported to Government
counsel about not finding witnesses
available.
Que. From copy of affidavit of injured
Nanhi you had come to know this fact
that Amir Hussain has committed
murder?
Ans. Copy of the said affidavit had
reached to me and such fact was lying
mentioned in that affidavit. ”
Criminal Appeal No.4571 of 2024 Page 13 of 17
Thus, the fact that PW-5 and PW-6 had submitted
20.
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 a
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
Criminal Appeal No.4571 of 2024 Page 14 of 17
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.
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.
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
Criminal Appeal No.4571 of 2024 Page 15 of 17
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.
24. Therefore, this is a case where there is failure on the
part of the High Court and the Session Court to consider
the cross-examination of PW-10 and the suppression of
the affidavits by the prosecution. These highly relevant
aspects have been completely overlooked by the High
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.
th
The Registry has issued a Circular dated 28 February
2024 for giving effect to the order. The High Courts must
take note of the above direction and act upon the same.
Criminal Appeal No.4571 of 2024 Page 16 of 17
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.
.…………………………….J.
(Abhay S Oka)
.…………………………….J.
(Augustine George Masih)
New Delhi;
May 23, 2025.
Criminal Appeal No.4571 of 2024 Page 17 of 17