Khalid And Another vs State Of U.P.

Reserved
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 400 of 2005
Khalid and another
…..Appellants
Versus
State of U.P.
…..Respondent(s)
Counsel for the Appellants : Bhavya Sahai, Mohd. Samiuzzaman
Khan, N.i. Jafri, Noor Mohammad,
R.p. Singh, S.p. Singh Raghav, Sunil
Kumar Yadav
Counsel for the Respondent : Govt. Advocate, Siddharth, Sunil
Singh
Court No. - 2
HON'BLE J.J. MUNIR, J.
HON'BLE SAURABH SRIVASTAVA, J.
(Delivered by Hon'ble J.J. Munir, J.)
1. This criminal is directed against the judgment and order of
Mr. Shri Prakash, the then Additional District and Sessions Judge,
Fast Track Court No.2, Ghaziabad, dated 25.01.2005 in Sessions
Trial No. 82 of 1994, under Section 302 read with Section 34 of
the Indian Penal Code, 1860 (for short, 'IPC'), convicting the
appellants Khalid and Nannu of the offence punishable under
Section 302 read with Section 34 IPC and passing a sentence of
life imprisonment upon each of them, besides imposing a fine in
the sum of Rs.10,000/- each, together with a direction that in the
event of failure to pay the fine, the appellant in default would
undergo one year rigorous imprisonment.

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2. Pending this appeal, appellant No.2, Nannu, died on
30.04.2021 and this appeal was ordered to abate on his behalf by
an order of this Court dated 21.01.2022. Therefore, this appeal
shall now proceed at the behest of appellant No.1, Khalid alone.
However, for the sake of convenience, while detailing the course
of proceedings and discussing evidence, necessary reference
would be made to appellant No.2, Nannu, as regards his role in
the crime at the relevant time by describing him as ‘appellant
No.2’ or ‘Nannu’.
3. A written information was given by the first informant,
Wahiuddin son of Abdul Majid, a resident of Bani Sarai, Meerut, to
the Station House Officer, Police Station Bhojpur, District
Ghaziabad on 07.01.1990 at 10.25 p.m. regarding an incident that
happened earlier in the day at 3.00 p.m., where his son Sarafraz
@ Pappu was murdered. The written information says that on
07.01.1990 at about 3.00 p.m., his son Sarafraz @ Pappu was
called over by his nephew Khalid (appellant No.1) through his
servant, Nannu (appellant No.2) to the latter's barn (gher). At that
time, the informant and his son were there in their barn. The
informant's son, in response to the message, set about for his
nephew's barn and the informant too followed him. When the
informant's son reached Khalid's barn, the latter told him that he
was sending his servant to pick up Sarafraz's tractor-trolley and
that Sarafraz should not refuse to oblige him, like he had done the
day before yesterday. In response, Sarafraz said that his trolley
was not currently free as they had to send a trolley full of chaff to
Meerut. Upon hearing this, Khalid uttered a vulgar abuse and said
that today the trolley would carry their consignment of paddy first
and that Sarafraz's chaff would be dispatched later. Upon hearing
these words, Sarafraz said that Khalid should not abuse and talk
politely and that, if the latter had so much of fascination for the
trolley, he should get his own repaired. To this Khalid reacted by
saying that Sarafraz would not relent like this and asked his

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servant Nannu to catch hold of Sarafraz. Nannu caught hold of
Sarafraz from the rear side, whereas Khalid picked up a double
barrel gun, that was at hand, and aiming it at his son, was about
to shoot, when the informant suddenly caught hold of the weapon.
In consequence, when Khalid opened fire, the deflected led hit
Khalid's servant Nannu in his lower limbs. In a quick manoeuvre,
Khalid drew out a pistol from the waist of his pant and shot the
informant's son in the head. Sarafraz collapsed and was rushed
by the informant on his Jeep car to Meerut, reaching the Pyare Lal
Sharma Hospital for medical aid. The doctors declared Sarafraz
dead. It is further reported by the informant that at the time of
occurrence, Iqbal son of Ibrahim and the informant's other son,
Sartaj @ Babli were also present.
4. On the basis of the aforesaid written report, which is marked
Ex. Ka-1, the Police registered a check First Information Report
(for short, 'FIR') on 07.01.1990 at 10.25 p.m., giving rise to Crime
No.2 of 1990, under Section 302 IPC, P.S. Bhojpur, District
Ghaziabad. The case was registered vide G.D. Entry No. 44
dated 07.01.1990. The check FIR is on record as Ex. Ka-5,
whereas G.D. Entry No.44 is marked as Ex. Ka-6.
5. The appellant Nannu was examined for his injuries by the
Medical Officer, Primary Health Centre, Bhojpur, Ghaziabad on
07.01.1990 at 7.30 p.m. brought by his father Ummed Ali. He had
a firearm would sustained to his left lower limb.
6. The Inquest was held on 07.01.1990, commencing 10.15
p.m. and ending 11.30 p.m. The inquest report is on record as Ex.
Ka-9.
7. The dead body of the deceased was subjected to autopsy
on 08.01.1990, where a gunshot wound of entry 0.5 x 0.5 cm
cranial cavity deep on the left side of head, 2.5 cm above the left

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CRLA No. - 400 of 2005
ear was noted. In addition, an abrasion was also noticed. The
autopsy report is on record and marked as Ex. Ka-2.
8. The Investigating Officer investigated the crime and drew up
a site-plan, which is on record as Ex. Ka-7. After completion of
investigation, he submitted a charge-sheet dated 09.02.1990
against both the appellants Khalid and Nannu, marked Ex. Ka-8.
9. The appellants were produced before the learned
Magistrate, who took cognizance and furnished them copies of
the relevant prosecution papers as provided under Section 207
Cr.P.C. Thereafter, the case against them was committed to the
Court of Sessions for trial on 31.01.1994.
10. After committal, the case came up before Mr. N.K. Garg, the
then Additional District and Sessions Judge, Fast Track Court
No.2, Ghaziabad on 08.09.2003 for framing of charges. The
learned Judge proceeded to frame a charge under Section 302
IPC against the appellant Khalid and another charge against
Nannu, the deceased appellant, under Section 302/34 IPC.
11. The prosecution examined the following witnesses in
support of their case:
1. PW-1 – Jalis Ahmad, who scribed the written information
on the dictation of the first informant,
2. PW-2 – Sartaj @ Babli, brother of the deceased,
3. PW-3 – Iqbal, cousin of the deceased,
4. PW-4 – Dr. V.K. Bajpayee, who conducted postmortem
of the deceased,
5. PW-5 – Dr. P.S. Agrawal, who examined the injuries of
the accused, Nannu,
6. PW-6 – HCP Rakesh Kumar Tyag, the then Head
Moharrir, who drew up the check FIR and made other G.D.
entries,

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7. PW-7 – Constable No. 629 Ravi Kiran Singh, in whose
presence inquest, challan lash, photo lash, letter to the
CMO, letter to the RI etc. were prepared.
12. The prosecution produced the following documentary
evidence:
Sr.
No.
Exhibit No. Exhibited documents with brief particulars
1 Ex. Ka-1 Written report dated 07.01.1990 lodged with Police
Station Bhojpur, District Ghaziabad, proved by PW-1,
Jalis Ahmad
2 Ex. Ka-2 Postmortem report dated 08.01.1990, proved by PW-4,
Dr. V.K. Vajpayee
3 Ex. Ka-3 Injury report of Nannu dated 07.01.1990, proved by
PW-5, Dr. P.S. Agrawal
4 Ex. Ka-4 Application for examination of the injuries of Nannu
given by him to the Medical Officer, PHC, Bhojpur,
dated 07.01.29, proved by PW-5, Dr. P.S. Agrawal
5 Ex. Ka-5 Check FIR dated 07.01.1990, proved by PW-6, HCP
Rakesh Kumar
6 Ex. Ka-6 Carbon Copy of GD Entry No.44 Time 22.25 hours
dated 07.01.1990, proved by PW-6, HCP Rakesh
Kumar
7 Ex. Ka-7 Site-plan of the place of occurrence dated 08.01.1990,
proved by PW-6, HCP Rakesh Kumar
8 Ex. Ka-8 Charge sheet dated 09.02.1990, proved by PW-6, HCP
Rakesh Kumar
9 Ex. Ka-9 Inquest report dated 07.01.1990, proved by PW-7,
Constable Ravi Kiran Singh
10 Ex. Ka-10 Challan Lash dated 08.01.1990, proved by PW-7,
Constable Ravi Kiran Singh
11 Ex. Ka-11 Letter to the C.M.O. dated 08.01.1990, proved by
PW-7, Constable Ravi Kiran Singh
12 Ex. Ka-12 Photo Lash dated 08.01.1990, proved by PW-7,
Constable Ravi Kiran Singh
13 Ex. Ka-13 Letter to the R.I. dated 08.01.1990, proved by PW-7,
Constable Ravi Kiran Singh
13. After the prosecution evidence was over, the statement of
the accused-appellant Khalid under Section 313 of the Code of
Criminal Procedure, 1973 (for short, 'Cr.P.C.') was recorded by the
learned Trial Judge on 24.09.2004 and that of the deceased
appellant Nannu on 17.08.2004. After trial, the learned Additional
District and Sessions Judge by his judgment and order impugned
held the appellants guilty of the offence punishable under Section
302 read with Section 34 IPC and passed sentences upon them
as hereinabove mentioned.

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CRLA No. - 400 of 2005
14. Aggrieved, this appeal has been preferred by both the
convicts Khalid and Nannu. Nannu being dead, as already pointed
out, this appeal has been heard at the behest of Khalid alone.
15. Heard Mr. Ayush Singh, learned Counsel for the appellant,
Mr. Sunil Singh, learned Counsel appearing on behalf of the
informant and Mr. Shashi Shekhar Tiwari, learned Additional
Government Advocate on behalf of the State.
The evidentiary value of the FIR
16. The first informant in this case, Wahiuddin, was admittedly
dead before the case went to trial, and, therefore, never entered
the witness-box to prove the FIR. The scribe of the FIR, Jalis
Ahmad, was examined as PW-1. The question is, could Jalis
Ahmad prove the contents of the FIR, and, if not, what could he
prove by his testimony in the dock and what would be the
evidentiary value of the FIR.
17. This question has engaged the attention of the Courts much
in the past as well and the issue has also been considered that if
the informant is dead, could the FIR be proved with the aid of
Section 32 of the Indian Evidence Act, 1872 (for short, ‘Evidence
Act’). The question fell for consideration before a Division Bench
of this Court in Pradeep v. State of U.P., 2022 SCC OnLine All
1139. In Pradeep (supra), to which one of us (J.J. Munir, J.) was
party, it was held:
“ 20. There is a distinctive feature about this case,
where the first informant, Satya Prakash has been
abducted some time in the year 2007, a fact that can be
reckoned about the time of its occurrence from the
testimony of PW-2, Ram Autar. Ram Autar, in his
examination-in-chief on 02.04.2008, has stated that
Satya Prakash was abducted 6-7 months ago. He does not
know, whether he is dead or alive. It has figured in
the judgment of the learned Trial Judge that a
photostat copy of the FIR is on record, where, relating
to the abduction of Satya Prakash, a crime was
registered against Pradeep and some other persons under
Section 364 IPC. Thus, Satya Prakash was no longer
available to testify in the dock. It is for this reason
that the FIR lodged by Satya Prakash has been proved by

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PW-2, Ram Autar, who is the scribe of the written first
information.
30. Learned Counsel for the appellants has urged that
until time when the trial was held, hardly two years
had passed by and apart from the FIR accusing Pradeep
of causing Satya Prakash to be abducted, there was no
proof that he was dead. He further argues that Satya
Prakash's death cannot be presumed until the lapse of
seven years without him being heard of by any one of
those, who would naturally have known of his
whereabouts. In short, Satya Prakash cannot be presumed
to have suffered a civil death by time the trial was
held.
31. We are of opinion that unless the case be one where
the first informant is dead and what he reports through
the FIR are facts related to the cause of his death,
the FIR is not admissible as substantive evidence under
Section 32 of the Indian Evidence Act, 18724. Their
Lordships of the Supreme Court in Munnu Raja v. The
State of Madhya Pradesh 5 decisions, do not doubt the
principle that an FIR can qualify as a dying
declaration, if the informant dies in consequence of
injuries that he reports through the FIR, or to put it
more in the form of principle, if the FIR has some
nexus with the informant's death. If the informant,
after lodging the FIR, were to die a natural death, the
FIR cannot be read as substantive evidence with the aid
of Section 32 of the Evidence Act. Here, the informant
has not reported anything that bears any nexus with his
death. Moreover, it is not established whether the
informant is dead or alive. What is true is that he is
untraceable and there is an allegation that he has been
abducted by the appellant, Pradeep, which now stands
vindicated with Pradeep's conviction for that offence.
The fact remains, however, that the first informant,
who is the author of the FIR, could not be produced at
the trial.
32. The moot question is whether the FIR, in the
absence of the informant being produced in the dock,
would be admissible for the purpose of corroborating or
contradicting the eye-witnesses who have testified at
the trial. In our opinion, that cannot be done. In
fact, the FIR is the earliest account of the occurrence
and it is only the author of the FIR, that is to say,
the first informant, who can prove its contents. It is
he alone who can be cross-examined to contradict or
corroborate him. Once he proves the FIR, the account
can be looked into to judge the probity of other
witnesses and their testimony also. But, in the absence
of the informant entering the witness-box to prove the
FIR, its contents cannot be held to be proved by
examining the scribe, who has written it, or the police
personnel, who have registered it. The scribe i.e. PW-2
has testified that the informant dictated the FIR to
him by word of mouth, which he reduced to writing. He
read over the contents to the first informant, who
signed the FIR after understanding the same. The
evidence of PW-2, Ram Autar, is competent to establish
that the written information is one that was narrated
to the scribe by the informant and is faithfully
transcribed. It proves that it was written by the

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CRLA No. - 400 of 2005
scribe, PW-2 and signed by the informant, but does not
prove the contents of the FIR.
33. An FIR is nevertheless the basis to set the process
of criminal law in motion and it is proved that the FIR
here was lodged by the first informant and registered
at the police station. On its basis, investigation
could and did commence, where material had to be
collected and was collected. It is on the basis of that
material that the appellants have been charge-sheeted
and tried. It is on the basis of evidence led at the
trial that the appellants have been found guilty beyond
reasonable doubt, a conclusion that they assail before
us. Admissibility and evidenciary value of an FIR, in
the context of a dead first informant, whose death was
not connected to the occurrence reported through the
FIR, was considered by the Gujarat High Court in
Bhavanbhai Premjibhai Vaghela v. State of Gujarat 6 in
an interlocutory challenge raised to the order of the
Trial Court. The order challenged before the High Court
had permitted the contents of the FIR to be proved by
the Investigating Officer entering the witness-box,
because pending trial, the first informant had suffered
a natural death. The accused had objected to it and
said that the Investigating Officer could not prove the
contents of the FIR. The Trial Court rejected the
objection and permitted the Investigating Officer to
prove the FIR. This order was challenged under Article
227 of the Constitution, where, after survey of
authority bearing on the issue, it was held in
Bhavanbhai Premjibhai Vaghela (supra):
“11. The basic purpose of filing a First Information
Report is to set the criminal law into motion. A
First Information Report is the initial step in a
criminal case recorded by the police and contains the
basic knowledge of the crime committed, place of
commission, time of commission, who was the victim,
etc. The term ‘’First Information Report’ has been
explained in the Code of Criminal Procedure, 1973 by
virtue of Section 154, which lays down that:
“Every information relating to the commission of a
cognizable offence, if given orally to an officer
in charge of a police station, shall be reduced to
writing by him or under his direction, and be read
over to the informant and every such information,
whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it,
and the substance thereof shall be entered in a
book to be kept by such officer in such form as the
State Government may prescribe in this behalf.
12. F.I.Rs. can be registered by a victim, a witness
or someone else with the knowledge of the crime. The
police can record three different kinds of
statements. The first kind of statement is one which
can be recorded as an F.I.R., the second kind of
statement is one which can be recorded by the police
during the investigation, and the third kind of
statement is any kind of statement which would not
fall under any of the two categories mentioned above.
Evidence is the matter of testimony manifesting the
fact on a particular precision or circumstances. The
First Information Report is not by itself a

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CRLA No. - 400 of 2005
substantial piece of evidence and the statement made
therein cannot be considered as evidence unless it
falls within the purview of Section 32 of the
Evidence Act. It is an admitted fact that the
original first informant because of the injuries
caused by the applicants. The relative importance of
a First Information Report is far greater than any
other statement recorded by the police during the
course of the investigation. It is the foremost
information the police gets about the commission of
an offence and which can be used to corroborate the
story put-forward by the first informant under
Section 157 of the Evidence Act or to contradict his
version by facts under Section 145 of the Act in case
he is summoned as a witness in the case by the Court.
It may happen that the informant is the accused
himself. In such cases, the First Information Report
lodged byjhim cannot be used as an evidence against
him because it is embodied in the basic structure of
our Constitution that a person cannot be compelled to
be a witness against himself.
13. × × ×
14. If the informant dies, the First Information
Report can be, unquestionably, used as a substantive
evidence. A prerequisite condition must be fulfilled
before the F.I.R. is taken as a substantive piece of
evidence i.e. the death of the informant must have
nexus with the F.I.R. filed or somehow having some
link with any evidence regarding the F.I.R. This is
what has been explained by the Supreme Court in the
case of Damodar Prasad v. State of U.P. , [(1975) 3
SCC 851 : (1975) 3 SCC 851 : AIR 1975 SC 757].
15. There are plethora of decisions taking the view
that an F.I.R. can be a dying declaration if the
informant dies of his injuries after lodging the
same. [See Munna Raja v. State of M.P. ((1976) 3 SCC
104 : (1976) 3 SCC 104 : AIR 1976 SC 2199)].
16. Another important thing is that for an F.I.R.
lodged by a deceased person to be treated as
substantial, its contents must be proved. It has to
be corroborated and proved for there to be any value
of the same in the case. The F.I.R. can be used by
the defence to impeach the credit of the person who
lodged the F.I.R. under Section 154(3) of the
evidence Act. In case the death of the informant has
no nexus with the complaint lodged i.e. he died a
natural death and did not succumb to the injuries
inflicted on him in relation to a matter, the
contents of the F.I.R. would not be admissible in
evidence. In such circumstances, the contents cannot
be proved through the Investigating Officer. The
Investigating Officer, in the course of his
deposition, should not be permitted to depose the
exact contents of the F.I.R. so as to make them
admissible in evidence. All that is permissible in
law is that the Investigating Officer can, in his
deposition, identify the sgnature of the first
informant and that of his own on the First
Information Report and he can depose about the factum
of the F.I.R. being registered by him on a particular
date on a particular police station.

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CRLA No. - 400 of 2005
17. It is absolutely incorrect on the part of the
Trial Court to say that in the absence of the first
informant, the police officer can prove the contents
of the F.I.R. as per Section 67 of the Evidence Act.
18. In the case of Harkirat Singh v. State of Punjab ,
[(1997) 11 SCC 215 : (1997) 11 SCC 215 : AIR 1997 SC
3231], the Supreme Court observed as under:
“In our considered view, the High Court was not
justified in treating the statement allegedly made
by Kharaiti Ram during inquest proceedings as
substantive evidence in view of the embargo of
Section 162, Cr. P.C. Equally unjustified was the
High Courts reliance upon the contents of the FIR
lodged by Walaiti Ram who, as stated earlier, could
not be examined during the trial as he had died in
the meantime. The contents of the FIR could have
been used for the purpose of corroborating or
contradicting Walaiti Ram if he had been examined
but under no circumstances as a substantive piece
of evidence.”
19. In the case of Hazarilal v. State (Delhi
Administration) , [(1980) 2 SCC 390 : (1980) 2 SCC 390
: AIR 1980 SC 873], the Supreme Court, in para 7,
observed as under:
“The learned counsel was right in his submission
about the free use made by the Courts below of
statements of witnesses recorded during the course
of investigation. Section 162 of the Code of
Criminal Procedure imposes a bar on the use of any
statement made by any person to a Police Officer in
the course of investigation at any enquiry or trial
in respect of any offence under investigation at
the time when such statement was made, except for
the purpose of contradicting the witness in the
manner provided by S. 145 of the Indian Evidence
Act. Where any part of such statement is so used
any part thereof may also be used in the re-
examination of the witness for the limited purpose
of explaining any matter referred to in his cross-
examination. The only other exception to this
embargo on the use of statements made in the course
of an investigation relates to the statements
falling within the provisions of S. 32 (1) of the
Indian Evidence Act or permitted to be proved under
Section 27 of the Indian Evidence Act. Section 145
of the Evidence Act provides that a witness may be
cross-examined as to previous statements made by
him in writing and reduced into writing and
relevant to matters in question, without such
writing being shown to him or being proved but,
that if it is intended to contradict him by the
writing, his attention must, before the writing can
be proved, be called to those parts of it which are
to be used for the purpose of contradicting him.
The Courts below were clearly wrong in using as
substantive evidence statements made by witnesses
in the course of investigation. Shri. H.S. Marwah,
learned counsel for the Delhi Administration amazed
us by advancing the argument that the earlier
statements with which witnesses were confronted for
the purpose of contradiction could be taken into

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CRLA No. - 400 of 2005
consideration by the Court in view of the
definition of “proved” in Section 3 of the Evidence
Act which is, “a fact is said to be proved when,
after considering the matters before it, the Court
either believes it to exist or considers its
existence so probable that a prudent man, ought, in
the circumstances of the particular case to act
upon the supposition that it exists”. We need say
no more on the submission of Shri. Marwah except
that the definition of proved does not enable a
Court to take into consideration matters, including
statements, whose use is statutorily barred.”
20. I have to my benefit a very lucid and erudite
judgment rendered by a learned Single Judge of the
Madhya Pradesh High Court in the case of Umrao Singh
v. State of M.P. [1961 Criminal L.J. 270]. In this
case, the petitioners Umrao Singh and Kunwarlal were
convicted of the offence punishable under Section 323
of the Penal Code and sentenced to two months
rigorous imprisonment. The case of the prosecution
was that on 27th August 1959, the petitioners named
above belaboured Barelal who had gone out to graze
his cattle, and who was blamed by the accused to have
caused damage to their crops. Barelal, however, died
a natural death after six months of the occurrence,
but before he could be examined as a witness. It was
contended that the F.I.R. lodged by Barelal could not
be considered by the Courts below and that the
evidence of the solitary witness, Pannala was
unreliable, as he was not mentioned in the list of
witnesses filed by the prosecution. In this set of
facts, the Court observed as under:
“4. It is true that the first information report is
not by itself a substantive piece of evidence and
the statement made therein cannot be considered as
evidence unless it falls within the purview of S.
32 of the Evidence Act. It is an admitted fact that
Barelal did not die because of the injuries caused
by the petitioners. Section 32 was inapplicable.
5. It is true that in the list of witnesses
Pannalal's name has been mis-spelt as ‘’Dhannalal’,
but this doubt is removed when the first
information report is looked into. There,
Pannalal's name is mentioned. Shri. Dey contends
that it is not permissible to look at the F.I. R.
at all. In my opinion this argument cannot be
accepted. It is proved by Ram Ratan P.W. 6 that he
recorded the report which was lodged by Barelal
There is a distinction between factum and truth of
a statement. It has been aptly pointed out by Lord
Parker C.J. in R. v. Willis , [1960] 1 WLR 55 that
evidence of a statement made to a witness by a
person who is not himself called as witness may or
may not be hearsay.
It is hearsay and inadmissible when the object of
the evidence is to establish what is contained in
the statement; it is not hearsay and is admissible
when it is proposed to establish by the evidence
not the truth of the statement but the fact that it
was made. According to Ram Ratan, Barelal mentioned
Pannalal's name to him. Applying the above dictum,

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CRLA No. - 400 of 2005
Ramratan's evidence is inadmissible to prove that
Pannalal was in fact present at the time of the
occurrence; but Ram Ratan's statement is admissible
to prove that Barelal had mentioned the name of
Pannalal to the witness.”
35. The first informant, for whatever reason not being
available or produced in the witness-box to prove the
contents of the FIR, we are of opinion that the FIR
cannot be looked into to corroborate or contradict the
prosecution witnesses. The contents of the FIR are not
proved. It is also held that the FIR is not one that
has any nexus with the death of the informant and,
therefore, not admissible as substantive evidence under
Section 32 of the Evidence Act. However, the fact that
the FIR was dictated by word of mouth by the informant
to PW-2, who has transcribed it and that it bears the
signatures of the first informant and the scribe, are
well proved. The registration of the FIR at the police
station on the date and the time specified is also
proved. This Court must also say that the fact that the
FIR is not proved for the informant's absence does not
impair the prosecution in establishing its case at the
trial on the basis of material collected during
investigation and proved by leading cogent evidence.”
18. We are fortified in the view that we have taken in Pradeep
and followed here by the Supreme Court in Lalita v. Vishwanath
and others, 2025 SCC OnLine SC 370, where it is observed:
“ 34. Another important thing is that for an F.I.R.
lodged by a deceased person to be treated as
substantial, its contents must be proved. It has to be
corroborated and proved for there to be any value of
the same in the case. The F.I.R. can be used by the
defence to impeach the credit of the person who lodged
the F.I.R. under Section 154(3) of the Evidence Act. In
case the death of the informant has no nexus with the
complaint lodged i.e. he died a natural death and did
not succumb to the injuries inflicted on him in
relation to a matter, the contents of the F.I.R. would
not be admissible in evidence. In such circumstances,
the contents cannot be proved through the Investigating
Officer. The Investigating Officer, in the course of
his deposition, should not be permitted to depose the
exact contents of the F.I.R. so as to make them
admissible in evidence. All that is permissible in law
is that the Investigating Officer can, in his
deposition, identify the signature of the first
informant and that of his own on the First Information
Report and he can depose about the factum of the F.I.R.
being registered by him on a particular date on a
particular police station.
35. It is absolutely incorrect on the part of the Trial
Court and the High Court to say that in the absence of
the first informant, the police officer can prove the
contents of the F.I.R. as per Section 67 of the
Evidence Act.

13
CRLA No. - 400 of 2005
36. In the case of Harkirat Singh v. State of Punjab
[(1997) 11 SCC 215 : AIR 1997 SC 3231], this Court
observed as under:—
“ In our considered view, the High Court was not
justified in treating the statement allegedly made by
Kharaiti Ram during inquest proceedings as
substantive evidence in view of the embargo of
Section 162, Cr. P.C. Equally unjustified was the
High Courts reliance upon the contents of the FIR
lodged by Walaiti Ram who, as stated earlier, could
not be examined during the trial as he had died in
the meantime. The contents of the FIR could have been
used for the purpose of corroborating or
contradicting Walaiti Ram if he had been examined but
under no circumstances as a substantive piece of
evidence.”
37. In the case of Hazarilal v. State (Delhi
Administration) [(1980) 2 SCC 390 : AIR 1980 SC 873],
this Court, in para 7, observed as under:—
“ The learned counsel was right in his submission
about the free use made by the Courts below of
statements of witnesses recorded during the course of
investigation. Section 162 of the Code of Criminal
Procedure imposes a bar on the use of any statement
made by any person to a Police Officer in the course
of investigation at any en- quiry or trial in respect
of any offence under investigation at the time when
such statement was made, except for the purpose of
contradicting the witness in the manner provided by
S. 145 of the Indian Evidence Act. Where any part of
such statement is so used any part thereof may also
be used in the re-examination of the witness for the
limited purpose of explaining any matter referred to
in his cross-examination. The only other exception to
this embargo on the use of statements made in the
course of an investigation relates to the statements
falling within the provisions of S. 32 (1) of the
Indian Evidence Act or permitted to be proved under
Section 27 of the Indian Evidence Act. Section 145 of
the Evidence Act provides that a witness may be
cross-examined as to previous statements made by him
in writing and reduced into writing and relevant to
matters in question, without such writing being shown
to him or being proved but, that if it is intended to
contradict him by the writing, his attention must,
before the writing can be proved, be called to those
parts of it which are to be used for the purpose of
contradicting him. The Courts below were clearly
wrong in using as substantive evidence statements
made by witnesses in the course of investigation.
Shri. H.S. Marwah, learned counsel for the Delhi
Administration amazed us by advancing the argument
that the earlier statements with which witnesses were
confronted for the purpose of contradiction could be
taken into consideration by the Court in view of the
definition of “proved” in Section 3 of the Evidence
Act which is, “a fact is said to be proved when,
after considering the matters before it, the Court
either believes it to exist or considers its
existence so probable that a prudent man, ought, in
the circumstances of the particular case to act upon
the supposition that it exists”. We need say no more

14
CRLA No. - 400 of 2005
on the submission of Shri. Marwah except that the
definition of proved does not enable a Court to take
into consideration matters, including statements,
whose use is statutorily barred.”
38. We have to our benefit a very lucid and erudite
judgment of the Madhya Pradesh High Court in the case
of Umrao Singh v. State of M.P. [1961 Cri LJ 270]. In
this case, the petitioners Umrao Singh and Kunwarlal
were convicted of the offence punishable under Section
323 of the Penal Code and sentenced to two months
rigorous imprisonment. The case of the prosecution was
that on 27th August 1959, the petitioners named above
belaboured Barelal who had gone out to graze his
cattle, and who was blamed by the accused to have
caused damage to their crops. Barelal , however, died a
natural death after six months of the occurrence, but
before he could be examined as a witness. It was
contended that the F.I.R. lodged by Bare-lal could not
be considered by the Courts below and that the evidence
of the solitary witness, Pannala was unreliable, as he
was not mentioned in the list of witnesses filed by the
prosecution. In this set of facts, the Court observed
as under:—
“ 4. It is true that the first information report is
not by itself a substantive piece of evidence and the
statement made therein cannot be considered as
evidence unless it falls within the purview of S. 32
of the Evidence Act. It is an admitted fact that
Barelal did not die because of the injuries caused by
the petitioners. Section 32 was inapplicable.
5. It is true that in the list of witnesses
Pannalal's name has been mis-spelt as ‘Dhannalal’,
but this doubt is removed when the first information
report is looked into. There, Pannalal's name is
mentioned. Shri. Dey contends that it is not
permissible to look at the F.I. R. at all. In my
opinion this argument cannot be accepted. It is
proved by Ram Ratan P.W. 6 that he recorded the
report which was lodged by Barelal There is a
distinction between factum and truth of a statement.
It has been aptly pointed out by Lord Parker C.J. in
R. v. Willis [1960] 1 WLR 55 that evidence of a
statement made to a witness by a person who is not
himself called as witness may or may not be hearsay.
It is hearsay and inadmissible when the object of the
evidence is to establish what is contained in the
statement; it is not hearsay and is admissible when
it is proposed to establish by the evidence not the
truth of the statement but the fact that it was made.
According to Ram Ratan, Barelal mentioned Pannalal's
name to him. Applying the above dictum, Ramratan's
evidence is inadmissible to prove that Pannalal was
in fact present at the time of the occurrence; but
Ram Ratan's statement is admissible to prove that
Barelal had mentioned the name of Pannalal to the
witness.”
19. In this case, as already remarked, the FIR was attempted to
be proven by PW-1, Jalis Ahmad son of Riazuddin, who is

15
CRLA No. - 400 of 2005
admittedly the scribe of the FIR. This witness in his testimony has
said that he had scribed the FIR on the dictation of Wahiuddin on
07.01.1990, reducing to writing whatever Wahiuddin dictated.
After the dictation was over, the contents were read over to
Wahiuddin and he signed the same in the presence of the scribe,
PW-1. It is further said that the witness’s name appears on the
written report as the scribe. This witness has clearly said that
Wahiuddin, PW-1, was already dead, that is to say, by time the
trial commenced. The written information was read over to the
witness, who verified the fact that this is the same written report
that he had transcribed. It was exhibited as Ex. Ka-1. Considering
the fact that Wahiuddin was dead by time the case went to trial
and the FIR does not relate to the cause of his death or as to any
circumstances of the transaction which resulted in his death, to
borrow the phraseology of Section 32(1), the contents of the FIR
cannot be held proved by the scribe. The evidence of PW-1, the
scribe of the FIR, would, therefore, be limited to proving the facts
that the FIR was dictated by word of mouth by the informant to
PW-1, who has transcribed it and that it bears signatures of the
first informant and the scribe as well. The registration of the FIR at
the police station on the date and time specified is also proved.
But, mere non-proof of the FIR, as held by us in Pradeep, does
not impair the prosecution from proving their case otherwise by
producing evidence in the dock. Of course, the prosecution would
have one disadvantage that the earliest account of the occurrence
is not available, of which an FIR, duly proved in accordance with
law, is a treasured and reliable repository unless impeached by
very cogent evidence about its veracity.
The date, time, place and manner of occurrence
20. On the basis of evidence available on record, there is little
quarrel about the date, time and place of occurrence. The date
was 07.01.1990, the time 3.00 p.m. and the place of occurrence

16
CRLA No. - 400 of 2005
was the appellant Khalid's barn, located on his farmhouse. The
farmhouses of the appellant Khalid and the deceased were
located close-by in Village Nahli. We accept these facts to be
established on the basis of the prosecution evidence. The
principal issue involved in this case is about the manner of
occurrence and who inflicted the fatal injury. The charge is upon
the appellant that he shot the victim Sarafraz @ Pappu to death.
21. Now, in this regard, the most dependable testimony is that
of Sartaj @ Babli son of the late Wahiuddin, a brother of the
deceased and the informant's son. According to the prosecution,
he is an eye-witness of the occurrence. According to this witness,
in his examination-in-chief, he has said that on 07.01.1990, his
brother Sarafraz @ Pappu was murdered. That day, he along with
his father Wahiuddin and younger brother, the deceased Sarafraz
and Iqbal, a cousin of the deceased were at the farmhouse of the
deceased's family, situate at Village Nahli, P.S. Bhojpur. They had
gone over there. As soon as they reached the farm, they received
a message from Khalid through his servant Nannu, the other co-
accused, that Khalid was calling Sarafraz over. The time was
about quarter to three in the afternoon. The deceased Sarafraz
started out in response to Khalid's call to meet him at the latter's
farmhouse. The witness's and the deceased's father, Wahiuddin,
and the witness himself along with Iqbal, trailed his brother to
Khalid's farmhouse. As soon as the party arrived there, Khalid
demanded of his brother, the deceased, lending of the latter's
tractor-trolley, a proposal which the witness's brother promptly
declined on the ground that their own chaff had to be carried to
destination.
22. Upon the deceased telling Khalid that the tractor-trolley was
not available, Khalid abused the deceased. Sarafraz, the
deceased, told him to mind his language. At the drop of these
words from Sarafraz, Khalid exhorted his servant Nannu to catch

17
CRLA No. - 400 of 2005
hold of the deceased, saying that he would not agree with ease.
Nannu caught hold of Sarafraz from his backside and Khalid,
picking up his gun, aimed it at Sarafraz. The witness's father, at
that time, intervened and forced the barrel downwards, in
consequence of which the projectiles from the gun, that was fired
to shoot Sarafraz, hit Nannu in his lower limbs. At this stage,
Khalid took out a pistol from the pocket of his pant and shot
Sarafraz, hitting him in the head. In consequence of the gunshot
wound, Sarafraz collapsed. Thereupon, Khalid and Nannu,
collecting their weapons, escaped. The witness put his brother in
the Jeep and rushed him to Pyare Lal Hospital, Meerut, where the
doctors declared him dead.
23. There are some oddities about the prosecution case that
appear from the testimony of PW-2, who is an eye-witness, and
also PW-3. Whereas PW-2 is the brother of the deceased, PW-3
is the latter's cousin, that is to say, he is the deceased's father's
sister's son. It would be important to note that Khalid too is a
cousin of the deceased and he is the deceased's father's brother's
son. The place of occurrence is not the deceased's farmhouse or
any part of it, but the appellant's farmhouse. The oddity that
creeps into the prosecution account is due to the fact that when
Khalid called the deceased over through his servant Nannu, the
deceased's father, PW-2 and PW-3, all trailed him to Khalid's
farmhouse and right into the gher, where Khalid and the deceased
met and had a verbal altercation to begin with. There is no
evidence to the effect that the relationship between the deceased
or his family and Khalid or his family was in any manner soured by
any dispute or otherwise. To the contrary, the two not only had
adjoining farmhouses, but it seems from the evidence that they
were on reasonably amiable terms. If the terms between parties
were good and it was commonplace for Khalid to call Sarafraz
and for him to go there, there was no reason why on occasion,
when Sarafraz went over to Khalid at the latter's call, his father,

18
CRLA No. - 400 of 2005
brother and cousin trooped behind him. The relevant part of
PW-2's cross-examination in this regard may be noticed the way it
has been recorded by the learned Trial Judge. It reads:
"
मैंने नन्नू से नहीं पूछा था कि क्यू बुलाया है। खालिद इससे पहले भी बुला लेता था और सरफराल चला
जाता था। मुझे भी बुला लेता था ओर मैं भी चला जाता था। घटना वाले दिन खालिद के बुलाने पर
सरफराज के साथ हम तीनों भी चले गये थे। इसकी कोई खास वजह नहीं है। हमसे सरफराज या अन्य
"
किसी ने खालिद के यहां चलने को नहीं कहा था यू ही चल दिये थे।
24. The alternative hypothesis why besides the deceased,
PW-2, PW-3 and their late father were at the place of occurrence
and how actually the deceased was shot and Nannu received
fatal injuries, also figures from PW-2's cross-examination, where it
is said:
"…..
यह कहना गलत है कि घटना से पहले खालिद ने हमारी ट्राली माँगी थी और वह खराब कर दी थी।
यह कहना गलत है कि हमने खालिद से अपनी ट्राली ठीक कराने को कहा हो और उसने कहा हो कि ऐसा
तो हो ही जाता है। यह कहना गलत है कि इस बात पर मेरे वालिद बन्दूक लेकर और हम तमंचे लेकर
खालिद के घेर पर पहुँचे ओर उस पर हमला किया। यह कहना भी गलत है कि हमारी चलाई गई गोली से
नन्नू जख्मी हुआ और खालिद ने अपनी जान बचाने के लिए सरफराज को कौली भरी हो और हमारे द्वारा
चलाई गई गोली सरफराज को लगी हो। यह कहना गलत है कि हमने पुलिस से मिलकर मुलजिमान के
"
विरूद्ध झूठा मुदकमा कायम कराया हो।
25. The suggestion is that there was a dispute that erupted
between the families of the two brothers and their children, who
are collaterals, over the use of the deceased’s tractor-trolley.
Tempers ran high about the issue of borrowing the tractor-trolley,
in consequence of which the deceased’s father entered Khalid’s
farmhouse with a gun and PW-2 and PW-3 with country-made
pistols. They opened fire injuring Nannu. Khalid, in order to save
his life, caught hold of Sarafraz, making a shield out of him. When
the witnesses and their party opened fire, Sarafraz sustained a
bullet injury, in consequence of which he died.
26. It must be noticed here that Nannu lodged a cross-version
under Section 307 IPC with P.S. Bhojpur, that was registered as
Crime No.2-A of 1990 on 10.02.1990 at 3.45 p.m. The accused in
the said FIR are Wahiuddin, Sarafraz (the deceased), Sartaj
(PW-2) and Iqbal (PW-3). In his statement under Section 313

19
CRLA No. - 400 of 2005
Cr.P.C., Khalid took the following defence in answer to the
question, if he had any other thing to say:
" , ( ) ,
जी सरफराज वगैरह मेरे घेर पर हथियारों से लैस होकर आये थे उनके द्वारा चलायी एक गोली
नन्नू को लगी तथा दूसरी गोली चलाते समय धक्कम धक्का होने के कारण इन्ही की गोली
सरफराज को लगी तथा उन लोगों ने इस अपराध से बचने के लिये ही हम पर झूठा मुकदमा कराया
"
है।
27. The appellant has also produced documents in defence and
one of these is the FIR in the cross-case, giving rise to Crime
No.2-A of 2005, under Section 307 IPC, which is on record as
paper No. 63-Kha / 3. This FIR was lodged by Nannu, Khalid’s
servant. It says that on 07.01.1990, Khalid was taking out moonji
(paddy crop), when at about 3.00 p.m., Khalid’s uncle Wahiuddin,
carrying a gun in his hand and his son Sarafraz @ Pappu and
Sartaj @ Babli armed with country-made pistols, besides Iqbal
son of Ibrahim also carrying a country-made pistol, entered their
barn, saying it with an abuse that they had ruined their trolley and
Khalid should get it repaired. In response, Khalid said that what is
there to turn abusive about it, because in farming work, such
things happen. He also said that you also use our trolley and that
he had not damaged the trolley. To this, Wahiuddin said with
another abuse that Khalid had the dare to argue with him and
saying so opened fire, aiming at Khalid. The informant (Nannu)
came between the assailant and Khalid, on account of which he
received gunshot injuries to his leg. Khalid, in order to save
himself, caught hold of Sarafraz, making a shield out of him. Iqbal
then opened fire at Khalid, which instead of hitting the desired
target, struck Sarafraz.
28. This is the cross-version that the appellant has come up
with. However, the Police did not accept the cross-version and put
in a final report, which was pending until judgment was passed in
this case. The Trial Judge discounted this defence on the ground
that apart from a final report being put in by the Police, though not
conclusive as proceedings were pending until then, the FIR, that
as lodged by Nanny, was after a delay of a little over one month. It

20
CRLA No. - 400 of 2005
is also remarked that against the first informant of the cross-case,
FIR had been registered on 08.01.1990, and, therefore, the cross-
version was a defence set up to escape the consequences. It is
also remarked by the learned Trial Judge that 14 years have
rolled by, but the final report is still pending and the appellants
have not secured any orders from the Court.
29. It is to be seen, therefore, if the prosecution, going by the
manner of occurrence, have established their case beyond
reasonable doubt. It is quite another matter that the cross-version
that Khalid’s servant and appellant No.2 (since deceased) came
up with, did not convince the Police into filing a charge-sheet.
Possibly, they could not have done that after putting in a charge-
sheet on the first informant’s version here. The oddities in the
prosecution case noticed so far, based as it is on the eye-witness
account of PW-2, do not end at Wahiuddin, Sartaj and Iqbal
following Sarafraz when the latter went over to Khalid’s barn upon
his call. We may remark here that this conduct of trailing Sarafraz
to Khalid’s barn could have been understood if there were any
evidence of a hostility between the two families. There is none.
30. The oddity about the prosecution story continues when one
looks to the manner of assault propounded by the prosecution:
firstly, it is an absolutely unbelievable story by the very nature of
things that Khalid would have asked Nannu to catch hold of
Sarafraz for the purpose of enabling him to shoot the victim. In the
standing position, a man, who catches hold of the victim, who is
shot from the opposite direction, always runs the risk of being shot
himself. Therefore, the story is highly improbable; almost
unbelievable. The next strong improbability about the manner of
occurrence is that if Nannu had caught hold of Sarafraz from the
backside to disable him as he was being shot by Khalid, the flying
led from the shot would certainly have hit Nannu, even if the
barrel was pushed down by Wahiuddin, but not without injuring

21
CRLA No. - 400 of 2005
Sarafraz in his legs or foot or the lower part of his body. Sarafraz
has sustained no injury referable to the gunshot that hit Nannu,
when Wahiuddin pushed the barrel of the gun down, according to
the prosecution, as Khalid opened fire from his gun. It is almost
fantastic to think that the led would have flown around Khalid’s
lower limbs, as if those were in bulletproof armour, and work their
way around to hit Nannu in his left lower limb.
31. This is all the more so because Nannu’s injury report, Ex.
Ka-3, shows that what he received were pellet injuries and the
weapon used was apparently a double barrel shotgun. This kind
of a firearm, where there is a spread of pellets, could never have
left Sarafraz unscathed in his lower limbs, if Nannu had received
injuries in the manner described by the prosecution. Both the
aforesaid infirmities casts a grave shadow of doubt about the
veracity of the prosecution case.
32. Turning to the testimony of PW-3, the fabric of the
prosecution story is no doubt consistent between both the eye-
witnesses and the examination-in-chief for this reason is
unremarkable. About this rather strange behaviour of Wahiuddin
following his son, when he went to Khalid and PW-2 and PW-3
following Wahiuddin, is testified to by PW-3 in the following words:
" 4-5
हमारे पहुंचने के थोडी देर के बाद यानि मिनट के बाद खालिद नौकर सरफराज को बुलाने आया
था। उसने कहा कि खालिद बुला रहा था। सरफराज ने नही पूछा कि मुझे क्यों बुला रहा है। हम तीनों में
से भी किसी ने नही पूछा कि खालिद क्यों बुला रहा हौ। उसके कहते ही सरफराज उसके साथ चल दिया
सरफराज ने हम से किसी से नही कहा कि मेरे साथ चलो। चूकि वहीदुद्दीन चल दिये इसलिए हम भी चल
1-2 "
दिये। सरफराज से हम कदम के फासले पर चल दिये।
33. There is, therefore, no earthly reason assigned by this
witness as well as to why three men followed Sarafraz to Khalid's
barn, located in his farmhouse when the latter called him over. As
already remarked, in the testimony of PW-3 as well, there is no
evidence about any such hostility between parties, which might
have made Wahiuddin or the two witnesses fear for Sarafraz, if he
went to Khalid alone. There is absolutely a meaningless

22
CRLA No. - 400 of 2005
explanation offered by PW-3 as well. All that he says is that
because Wahiuddin went after Sarafraz, PW-2 and PW-3 followed
suit. This explanation about the presence of the three men,
besides Sarafraz at Khalid's barn, is indeed very odd; something
that we have remarked about earlier in this judgment in greater
detail. This behaviour of the three eye-witnesses, one of whom is
dead, that is to say, the first informant Wahiuddin, by itself casts a
grave cloud of doubt on the prosecution.
The prosecution case if proved beyond reasonable doubt
34. It is too well settled a proposition that the prosecution have
to prove their case, whether it be direct or circumstantial evidence
by the exacting criminal standard, that is to say, proof beyond
reasonable doubt. Reference in this connection may be made to:
Vijayee Singh v. State of U.P., (1990) 3 SCC 190, Sunil Kundu v.
State of Jharkhand, (2013) 4 SCC 422, Anand Ramachandra
Chougule v. Sidarai Laxman Chougala, (2019) 8 SCC 50,
Vasudev v. State of M.P., (2022) 4 SCC 735, and Pawan Kumar
Sharma v. Manoj Kumar, 2026 SCC OnLine SC 934.
35. Here, we have found the evidence produced by the
prosecution despite the consistent account of witnesses to be
inherently unreliable and untrustworthy for the reasons indicated
above.
36. In our opinion, the appellant Khalid is entitled to the benefit
of doubt.
37. In the result, this appeal succeeds and is allowed. The
impugned and order dated 25.01.2005 passed by the Additional
District and Sessions Judge, Fast Track Court No.2, Ghaziabad,
is hereby set aside and the appellant acquitted of the charge. He
is in jail. He shall be set at liberty forthwith unless wanted in any
other case.

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CRLA No. - 400 of 2005
38. The appellant Khalid shall execute a personal bond in the
sum of Rs.25,000/- under Section 481 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (corresponding to Section 437-A of the
Code of Criminal Procedure, 1973) for his appearance, in the
event of an appeal being preferred against his acquittal.
39. Let this judgment and order be communicated to the Chief
Judicial Magistrate, Ghaziabad and through him to the Jail
Superintendent, wherever the appellant is serving, for prompt
compliance.
40. Let the lower court records be returned.
(Saurabh Srivastava, J.) (J.J. Munir, J.)
July 01, 2026
Anoop
Digitally signed by :-
ANOOP KUMAR SINGH
High Court of Judicature at Allahabad