# Hafeez Khan v. State of U.P

- **Citation:** (2024) 9 ILRA 160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-13
- **Case number:** Criminal Appeal No. 878 of 2019
- **Bench:** Attau Rahman Masoodi, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hafeez-khan-v-state-of-u-p-52575
- **Pages:** 15

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 374(2) - Appeal
- Indian Penal Code, 1860 - Sections 302,
201, 498-A, 323, 304-B, 504 & 506 -
Dowry Prohibition Act, 1961- Sections 3⁄4 -
Burden of proof lies on prosecution -
Admissibility
of
evidence
-
Indian
Evidence Act, 1872 - Section 63, 106 -
Secondary evidence - Burden of proving
fact
especially
within
knowledge
-
Principles of hostile witness testimony -
Basic principle of dispensation of criminal
justice - In a criminal trial, it is the
prosecution which has to prove the guilt
of the accused person and that too,
beyond any reasonable doubt - Accused is
not required to prove his innocence -
Failure of the accused to provide evidence
cannot solely result in conviction.(Para -
45)

Appellant was convicted for murdering his
alleged wife - identity and marriage to the
appellant were not conclusively established -
trial court relied on hostile witnesses, unproven
secondary evidence, and speculation about
marriage and guilt - Identity of the body was
not
scientifically
or
conclusively
established.(Para 3-22 ,40)

HELD: - There was no incriminating material
against the appellant. Prosecution has failed to
produce any evidence to prove the guilt of the
accused - appellant. Appellant acquitted of all
charges. Judgment and conviction set aside.
Court directed the release of the appellant and
awarded
compensation
of
₹1,00,000
for
wrongful incarceration of over 7.5 years. (Para
57,59,60-63)

Appeal allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,762 of 50,728. This is a partial read: ask again with offset=39762 for what follows._

160 INDIAN LAW REPORTS ALLAHABAD SERIES

72. Accordingly, while upholding the
judgment
of
conviction
of
accused-
appellants, namely, Ahsan, Asif Thakur,
Bhoora, Kafeel and Wakeel, we partly
allowed the appeal and convert the death
penalty to life imprisonment for a fixed
period of 20 years. They are in custody and
will
continue
to
serve
remaining
punishment. The finding recorded by the
Trial Court regarding the imposition of fine
is also upheld.

73. Record and proceedings be sent
back to the Trial Court forthwith.
----------
(2024) 9 ILRA 160
APPELLATE JURISDICTION
CRIMINAL APPEAL
DATED: LUCKNOW 13.09.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Appeal No. 878 of 2019

Hafeez Khan ...Appellant
Versus
State of U.P. ...Respondents

Counsel for the Appellant:
Manoj Kumar Singh, Arvind Kumar, Indu
Prakash Singh, Rakesh Kumar Tripathi,
Vishwa Nath Singh

Counsel for the Respondents:
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 374(2) - Appeal
- Indian Penal Code, 1860 - Sections 302,
201, 498-A, 323, 304-B, 504 & 506 -
Dowry Prohibition Act, 1961- Sections 3⁄4 -
Burden of proof lies on prosecution -
Admissibility
of
evidence
-
Indian
Evidence Act, 1872 - Section 63, 106 -
Secondary evidence - Burden of proving
fact
especially
within
knowledge
-
Principles of hostile witness testimony -
Basic principle of dispensation of criminal
justice - In a criminal trial, it is the
prosecution which has to prove the guilt
of the accused person and that too,
beyond any reasonable doubt - Accused is
not required to prove his innocence -
Failure of the accused to provide evidence
cannot solely result in conviction.(Para -
45)

Appellant was convicted for murdering his
alleged wife - identity and marriage to the
appellant were not conclusively established -
trial court relied on hostile witnesses, unproven
secondary evidence, and speculation about
marriage and guilt - Identity of the body was
not
scientifically
or
conclusively
established.(Para 3-22 ,40)

HELD: - There was no incriminating material
against the appellant. Prosecution has failed to
produce any evidence to prove the guilt of the
accused - appellant. Appellant acquitted of all
charges. Judgment and conviction set aside.
Court directed the release of the appellant and
awarded
compensation
of
₹1,00,000
for
wrongful incarceration of over 7.5 years. (Para
57,59,60-63)

Appeal allowed. (E-7)

List of Cases cited:
1. Ramnaresh Vs St. of Chandigarh, AIR 2012
SC 1357 = (2012) 4 SCC 257
2. Phula Singh Vs St. of H.P., (2014) 4 SCC 09
3. Ramesh Vs St. of Har., AIR 2016 SC 5554 =
(2017) 1 SCC 529,
4. Khachar Dipu @ Dilipbhai Nakubhai Vs St. of
Guj., 2014 AIR SCW 466 = (2013) 4 SCC 322,
5. Koli Lakshmanbhai @ Chana Bhai Vs St. of
Guj, AIR 2000 SC 210 = (1999) 8 SCC 624
6. S.C. Goyal Vs St. of Har., 2017 CRLJ SC 536
= (2016) 13 SCC 258
7. Ramesh Vs St. of Har., (2017) 1 SCC 529
9 All. Hafeez Khan Vs. State of U.P.
161
8. Khachar Dipu Vs St. of Guj., (2013) 4 SCC
322
9. Koli Lakhmanbhai Chanabhai Vs St. of Guj.,
(1999) 8 SCC 624
10. S.C. Goel Vs St., (2016) 13 SCC 258
11. Ramnaresh Vs St. of Chhattisgarh, (2012) 4
SCC 257
12. Phula Singh Vs St. of H.P., (2014) 4 SCC 9
13. Parasa Raja Manikyala Rao Vs St. of A.P.,
(2003) 12 SCC 306 : 2003 SCC OnLine SC 1142

(Delivered by Hon'ble Subhash Vidyarthi J.)

1. Heard Shri Indu Prakash Singh, the
learned counsel for the appellant and Shri
R.S. Dwivedi, the learned Additional
Government Advocate for the State.

2. By means of the instant appeal filed
under Section 374 (2) of Cr.P.C., the
appellant has challenged validity of the
judgment and order dated 27.03.2019
passed by Sri Nand Pratap Ojha, the
learned V Additional Sessionss Judge,
Bahraich in Sessions Trial No.110 of 2017,
arising out of Case Crime No.215 of 2017
under Sections 498-A, 323, 304-B, 201,
504, 506, 302 I.P.C. and 3/4 Dowry
Prohibition Act registered at Police Station-
Risiya, District Bahraich, to the extent that
it holds the appellant guilty of committing
offences under Sections 302, 201 I.P.C. and
sentences
him
to
undergo
simple
imprisonment for life and pay Rs.50,000/-
as fine and on failure to pay fine, to
undergo simple imprisonment for a further
period of 3 years for the offence under
Section 302 I.P.C. The appellant has been
sentenced to undergo simple imprisonment
for 5 years and pay Rs.10,000/- fine and in
case of failure to pay fine, to undergo
simple imprisonment for a further period of
one year for the offence under Section 201
I.P.C.

3. Briefly stated, facts of the case are
that on 15.01.2017, the informant Shabana,
daughter of Azmat Khan, had given a
written complaint to the Station House
Officer, Risiya stating that her sister Sayra
Bano had got married to the appellant -
Hafeez Khan on 11.05.2016. Merely a few
days after marriage, her sister informed her
telephonically that the appellant, his mother
- Zakrun Nisa, her maternal aunt Shahjahan
and his grand-father Buddhu used to beat
her for demanding dowry. Thereafter, the
informant took her sister to her home. After
some days, the appellant visited the
informant's home, apologized for his fault
and assured that such things would not
recur. The informant sent her sister with the
appellant on 12.12.2016. After a few days,
the
informant's
sister
informed
her
telephonically that all the aforesaid four
persons had again started beating and
harassing her for demanding dowry. The
informant tried to contact her sister through
phone, but her phone was switched off. On
15.01.2017, she went to her sister's home
at Makoliya where all the aforesaid four
accused persons abused and threatened her
and they turned her out of their home. The
informant expressed a suspicion that the
aforesaid four persons had made her sister
disappear for demanding dowry.

4. The Investigating Officer claims
that some informer told him that the
appellant had killed his wife and had buried
the dead body in the grave of one Kennoo,
whereupon the appellant was taken into
custody. The grave of Kennoo was dug out
and a dead body was exhumed after
digging upto a depth of merely about two
feet. The inquest proceedings conducted at
162 INDIAN LAW REPORTS ALLAHABAD SERIES
the spot of recovery of the dead body was
witnessed by (1) the informant Smt.
Shabana, (2) the informant's sister Smt.
Parveen, (3) Achhan son of Kennoo, (4)
Abdul Naushad and (5) Pappu. It mentions
that a red colour Kurta and salwar was
there on the dead body and a Duppatta like
sheet was wrapped around its neck. It
mentions that the informant Smt. Shabana
and her sister Smt. Parveen had identified
the dead body as belonging to Sayra.

5. The postmortem examination of the
dead body was conducted on 19.01.2017
itself and the postmortem report also makes
a mention of the clothes and a black thread
with Tabeez present on the dead body. The
report mentions that the face of the body
was not recognizable. Skin had peeled off
with grayish dis-colouration, ligaments
were loosened, nails, hairs easily pulled
out, teeth loosened from their sockets and
soft parts were changing into black mass.
Eyeballs were missing and eye-tor orbit
was filled with mud. The postmortem
examination
report
mentioned
some
injuries on the dead body, including an
incised wound of 8x2 cm, cervical vertebra
deep over front of neck, trachea and
cervical vertebra out, hyoid bone and
trachea partially missing. The cause of
death was opined to be shock and
hemorrhage due to anti-mortem injury. The
time of death was opined to be about 8
weeks ago.

6. The police claim to have recovered a
knife wrapped in an old cloth kept on a loft in
the appellant's house on his voluntary
pointing out. The recovery is said to have
been witnessed by the informant Shabana,
her sister Parveen and the appellant, besides
some police personnel. The test report given
by the Forensic Science Laboratory, U.P.,
Lucknow, mentions presence of blood on
major parts of the knife, but the blood had
been disintegrated and its group could not be
ascertained.

7. On 10.04.2017, a charge-sheet was
submitted against the applicant for offences
under Sections 498-A, 323, 304-B, 201, 504,
506, 302 I.P.C. and 3/4 Dowry Prohibition
Act and the Chief Judicial Magistrate took
cognizance of the offences on 15.04.2017 and
committed the matter to the Sessions Judge
on the same date. The case was registered as
Sessions Trial No.110 of 2017 and it was
transferred to the Court of the learned
Additional Sessions Judge/Fast track Court-I,
Bahraich.

8. The record reveals that the appellant
had filed an application for his release on
bail, which was rejected by the trial Court by
means of an order dated 02.05.2017 and he
continued to remain in custody through the
entire trial and he is in custody even at
present.

9. The trial Court framed charges by
means of an order dated 03.07.2017
regarding offences under Sections 498-A,
323, 304-B, 201, 504, 506 IPC and Sections
3/4 Dowry Prohibition Act and an alternative
charge for commission of offence under
Section 302 I.P.C. was also framed.

10. The prosecution examined nine
witnesses.

11. PW-1 Smt. Shabana, who was the
informant, reiterated the F.I.R. version. She
further stated that she had got the complaint
scribed by some unnamed person and had put
her thumb impression thereon. This complaint
was proved by PW-1 as exhibit-A1.

12. In her cross-examination, PW-1
stated that her sister Sayra Bano had got
9 All. Hafeez Khan Vs. State of U.P.
163
married about 3 - 31⁄2 years ago to a person
named Munna, who was resident of
Bahraich City. Sayra stayed with him for
about two years and thereafter one day
Munna informed that Sayra had gone
missing from her home. Munna had also
told her that Hafeez Khan son of Subrati
Khan resident of Makoliya (the appellant)
was his friend and he used to visit Munna's
place. Munna had expressed a suspicion
that Hafeez was involved in Sayra Bano
having gone missing. Thereafter, the
informant had gone to the appellant's house
along with Munna but the appellant had
abused them and turned them away from
his home stating that he did not know about
the informant's sister. Thereafter, the
informant's brother-in-law Munna had
taken her to the police station and got the
complaint scribed by a person by dictating
it himself. He got the informant's thumb
impression on the complaint and handed it
over to the police.

13. PW-1 categorically stated that all
the things written in the complaint were
wrong and the same were got scribed by
her brother-in-law Munna to save himself
by getting a case registered against the
appellant whereas the truth is that her sister
never got married to the appellant and the
appellant never harassed her sister or
demanded dowry. The Investigating Officer
had detained the appellant at the police
station since the day the FIR was lodged.
The appellant had expressed ignorance
about Sayra Bano. The Investigating
Officer had asked Munna to search for
Sayra Bano and after 3-4 days, Munna had
given information about dead body of her
sister having been found in the grave yard.
Upon this, the informant, her elder sister
Parveen, her younger sister Saher Bano,
Pappu and Dilawar, who are also residents
of the informant's village, had gone to
Bahraich and thereafter, all of them went to
Makoliya along with Munna. A dead body
of a lady was lying in the Makoliya grave
yard. The informant and her sisters saw the
dead body and told that it did not belong to
their sister Sayra Bano but her brother-inlaw Munna said that the dead body was of
Sayra Bano and believing his statement, the
informant and her sister had put their
thumb impressions on the inquest report.
PW-1 categorically stated that the dead
body was not of her sister; that the
appellant had not confessed about killing
Sayra Bano or hiding her dead body in the
grave and that no dead body was recovered
from the pointing out of the appellant. An
unidentified dead body of a woman had
been exhumed from a grave and was lying
in the grave yard. She believed that her
brother-in-law Munna had made her sister
disappear and he had falsely implicated the
appellant.

14. PW-2 Saher Bano was a cousin of
the deceased and she stated that the
deceased Sayra Bano had got married to
Munna @ Hafeez. Sayra Bano used to live
in her matrimonial home happily and she
did not make any complaint regarding
demand of dowry. She denied having given
any statement given under Section 161
Cr.P.C. to the police. She was declared to
be hostile. In her cross-examination, she
stated that Sayra Bano had got married
about 4-5 years ago to Munna resident of
Bahraich and she did not ever get married
to the appellant.

15. PW-3 Pappu stated that the
informant was related to him. He had come
to the matrimonial home of the deceased
upon information given by Munna. When
he reached there, the dead body was lying
there in the grave yard. In his crossexamination,
PW-2
stated
that
the
164 INDIAN LAW REPORTS ALLAHABAD SERIES
informant did not ever get married to the
appellant and she was married to Munna,
resident of Bahraich. He further stated that
he and the other persons had reached the
grave yard on an information given by
Munna and after seeing the dead body, all
of them had stated that the dead body was
not of Sayra Bano but Munna had insisted
that the dead body was of the Sayra Bano
and the police acted as per the statement
given by Munna and prepared the inquest
report accordingly.

16. PW-4 Smt. Parveen was the elder
sister of the deceased. She also stated in her
cross-examination that the deceased had
got married to Munna and she never got
married to the appellant. Munna had told
them about the dead body having been
found in the grave yard and she and the
other persons had stated that the dead body
was not of her sister Sayra Bano but Munna
insisted that the dead body was of Sayra
Bano. She stated that she did not know
whether her sister Sayra Bano was alive or
not but the dead body recovered was not of
her sister Sayra Bano.

17. PW-5 Dilawar was father-in-law
of Parveen - sister of the informant
Shabana and deceased Sayra Bano and he
was also declared to be hostile.

18. PW-6 Constable Umesh Kumar
Yadav proved some signatures of some
police officers.

19. The statement of a Doctor has
been recorded as PW-6. Apparently he has
erroneously been marked as PW-6 when
Constable Umesh Kumar was also marked
as PW-6. The doctor stated that he was
present
at
the
time
of
postmortem
examination of the deceased and he had
signed the postmortem examination report
of the deceased along with other Doctor,
who
had
conducted
the
postmortem
examination.

20. PW-7 was the Doctor who had
conducted the postmortem examination of
the dead body and he stated that the face of
the dead body was not recognizable and the
deceased had died about eight weeks ago
due to shock and hemorrhage.

21. PW-8 was the Station House
Officer, who stated that during the
investigation of the case, information had
been received from a Mukhbir that dead
body of Sayra Bano had been hidden in an
old grave of Kennoo Khan. He proved the
memo of recovery of knife from the house
of the appellant.

22. In his statement recorded under
Section 313 Cr.P.C., the appellant denied
that he ever got married to Sayra Bano. He
denied that the dead body of Sayra Bano
was recovered on 19.10.2017 from a grave
yard in Village Makoliya and that a knife
was recovered from his house on his
pointing out. He denied that the deceased
died in his home. He further stated that
Sayra Bano had got married to Munna
resident of Bahraich, she ran away from the
house of Munna and he was falsely
implicated at the behest of Munna. The
dead body which was recovered, could not
be recognized.

23. The trial Court proceeded on an
assumption that the appellant was present
with the deceased at the time of her death,
which took place inside the appellant's
house and, therefore, the burden to prove
the circumstances in which Sayra Bano
died, lied on the appellant. The trial Court
has observed that the appellant had relied
on prosecution witnesses, who stated that
9 All. Hafeez Khan Vs. State of U.P.
165
the deceased had got married to some
person
named
Munna,
on
whose
information the prosecution witnesses had
come to Makoliya Village but the accused
did not get this person Munna examined as
a defense witness and he did not establish
the existence of any person named Munna
from any other oral or documentary
evidence.

24. Relying on the decisions of the
Hon'ble Supreme Court in the cases of
Ramnaresh v. State of Chandigarh; AIR
2012 SC 1357 = (2012) 4 SCC 257 and
Phula Singh v. State of Himachal
Pradesh; (2014) 4 SCC 09, the trial Court
held that the failure of the appellant in
giving a clarification in his statement
recorded
under
Section
313
Cr.P.C.
regarding marriage of Sayra Bano with
Munna and offence having been given
effect to by Munna or any other person
gives rise to a basis for drawing an adverse
inference against an accused. The trial
Court further held that as per the provisions
contained in Section 106 of the Evidence
Act, the burden to prove the circumstances
in which Sayra Bano died, lied on the
appellant. Although the appellant had
stated in his statement under Section 313
Cr.P.C. that Sayra Bano had got married to
Munna resident of Bahraich and she ran
away from the house of Munna and
thereafter he was falsely implicated at the
behest of Munna, the appellant did not
adduce any evidence to establish the reason
of animosity between him and Munna and
he did not disclose the parentage and
address of Munna.

25. Relying on the decisions of the
Hon'ble Supreme Court in the case of
Ramesh v. State of Haryana; AIR 2016
SC 5554 = (2017) 1 SCC 529, Khachar
Dipu @ Dilipbhai Nakubhai v. State of
Gujrat; 2014 AIR SCW 466 = (2013) 4
SCC 322, Koli Lakshmanbhai @ Chana
Bhai v. State of Gujrat; AIR 2000 SC 210
= (1999) 8 SCC 624 and S.C. Goyal v.
State of Haryana; 2017 CRLJ SC 536 =
(2016) 13 SCC 258, the trial Court held
that the prosecution witnesses had turned
hostile because of a 'hostile culture' to save
the accused person and their testimony
cannot be discarded entirely. Portion of
their
statements
which
support
the
prosecution case, can be read against the
accused.

26. The trial Court concluded that the
following facts were established by the
prosecution evidence:-

i. The appellant got married to
Sayra Bano regarding which a contract was
executed on 11.05.2016,

ii. On the date and time of the
incident, the deceased was present in the
house of the appellant in village Makoliya,

iii. The appellant killed Sayra
Bano by assaulting her on her neck with
knife and he had hidden the dead body in
the grave of Kennoo Khan,

iv. The dead body was recovered
after digging a grave up to a depth of 2 feet,

v.
The
weapon
used
in
commission of the offence was recovered
from the appellant's house on his pointing
out and,

vi. The appellant had stated that
the deceased had got married to one Munna
but he did not produce Munna in defense
evidence and he did not disclose the
father's name and address of Munna. He
could not establish the existence of Munna
from any oral or documentary evidence.

27. As per the trial Court, the
aforesaid facts establish that the appellant
had killed Sayra Bano and had hidden the
166 INDIAN LAW REPORTS ALLAHABAD SERIES
dead body in the grave of Kennoo Khan.
The other accused persons Zakrun Nisa and
Shahjahan were acquitted and the appellant
was convicted for offences under Sections
302 and 201 IPC while acquitting him for
the offences under Sections 498-A, 323,
304-B, 504 & 506 I.P.C. and 3/4 Dowry
Prohibition Act.

28. Now we proceed to examine the
correctness of all the aforesaid conclusions
drawn by the trial Court. The first point
decided by the trial Court that the appellant
got married to Sayra Bano regarding which
a contract was executed on 11.05.2016, is
based on a photocopy of a notarized
marriage agreement dated 11.05.2016, the
original whereof was not brought on
record. Photocopy of the document being a
secondary evidence, was not admissible in
evidence unless any of the circumstances
mentioned in Section 63 of the Evidence
Act, 1872 justifying admissibility of
secondary
evidence
were
established,
which has not been done in the present
case. The photocopy of the marriage
agreement dated 11.05.2016 was not
admissible in evidence. No witness has
made any statement to prove the marriage
agreement dated 11.05.2016. No question
was put to the appellant regarding this
document in his examination under Section
313 Cr.P.C. Therefore, we are of the
considered view that the photocopy of the
marriage agreement dated 11.05.2016 was
not admissible in evidence and the trial
Court has committed a patent error in
relying upon the photocopy of the marriage
agreement dated 11.05.2016.

29. PW-1 had stated that her sister
Sayra Bano had got married to Munna and
she did not get married to the appellant.
The learned A.G.A. has drawn attention of
the Court towards the examination-in-chief
of PW-2 Saher Bano, who was a cousin of
the
deceased.
PW-2
stated
in
her
examination-in-chief that the deceased
Sayra Bano had got married to Munna @
Hafeez.
However,
in
her
crossexamination, PW-2 stated that Sayra Bano
had got married about 4-5 years ago to
Munna resident of Bahraich City and she
did not ever get married to the appellant.

30. PW-3 Pappu also categorically
stated that Sayra Bano did not ever get
married to the appellant. PW-4 Smt.
Parveen was the elder sister of the
deceased. She also stated that the deceased
had got married to Munna and she never
got married to the appellant. There was no
evidence to prove that the deceased had got
married to the appellant. Therefore, the first
finding of the learned trial Court that the
appellant got married to Sayra Bano
regarding which a contract was executed on
11.05.2016, is perverse.

31. The trial Court has concluded that
on the date and time of the incident, the
deceased was present in the house of the
appellant in village Makoliya. In this regard
it is relevant to take note of the facts that
PW-1 had stated that her sister Sayra Bano
had got married to Munna, who was a
resident of Bahraich City. She stayed with
him for about two years and thereafter one
day Munna informed that Sayra had gone
missing from her home. Munna had also
told her that the appellant was his friend
and he used to visit Munna's place. Munna
had expressed a suspicion that Hafeez was
involved in Sayra Bano having gone
missing. Munna had given information
about dead body of her sister having been
found in the grave yard but she and the
other witnesses had not identified the dead
body as being of Sayra Bano. As per the
post mortem examination, the dead body
9 All. Hafeez Khan Vs. State of U.P.
167
was not recognizable and the victim had
died about 8 weeks ago.

32. There is absolutely no evidence to
prove that the informant's sister Sayra
Bano has been killed, nor has any date,
time and place of the alleged killing been
established. Except for the suspicion
allegedly expressed by Munna, there is no
evidence to prove that Sayra Bano was
living with the appellant. Therefore, the
conclusion drawn by the trial Court that on
the date and time of the incident, the
deceased was present in the house of the
appellant in village Makoliya, is perverse.

33. Now we proceed to examine the
correctness of the third conclusion drawn
by the trial Court that the appellant killed
Sayra Bano by assaulting her on her neck
with a knife and he had hidden the dead
body in the grave of Kennoo Khan. The
informant - PW-1 stated that her sister
Sayra Bano had got married to Munna, who
was resident of Bahraich City. Sayra stayed
with him for about two years and thereafter
one day Munna informed that Sayra had
gone missing from her home. Munna had
also told her that the appellant was his
friend and he used to visit Munna's place.
Munna had expressed a suspicion that the
appellant was involved in Sayra Bano
having gone missing. The informant's
brother-in-law Munna had taken her to the
police station and got the complaint scribed
by a person by dictating it himself. He had
got the informant's thumb impression on
the complaint and had handed it over to the
police.

34. PW-1 categorically stated that all
the things written in the complaint were
wrong and the same were got scribed by her
brother-in-law Munna to save himself by
getting a case registered against the appellant
whereas the truth is that her sister never got
married to the appellant. The Investigating
Officer had detained the appellant at the
police station since the day the FIR was
lodged and he had asked Munna to search for
Sayra Bano. After 3-4 days, Munna had
given information about dead body of her
sister having been found in the grave yard.
When PW-1 and other persons had reached
the grave-yard, a dead body of a lady was
lying there. The informant and her sisters had
told that it did not belong to their sister Sayra
Bano but her brother-in-law Munna said that
the dead body was of Sayra Bano and
believing his statement, the informant and her
sister had put their thumb impressions on the
inquest report.

35. PW-1 further categorically stated
that the dead body was not of her sister; that
the appellant had not confessed about killing
Sayra Bano or hiding her dead body in the
grave and that no dead body was recovered
from the pointing out of the appellant. An
unidentified dead body of a woman had been
exhumed from a grave and was lying in the
grave yard. She believed that her brother-inlaw Munna had made her sister disappear and
he had falsely implicated the appellant.

36. PW-3 Pappu stated that he had gone
to Makoliya grave-yard upon information
given by Munna. When he reached there, a
dead body was lying there in the grave yard.
After seeing the dead body, all the persons
had stated that the dead body was not of
Sayra Bano but Munna had insisted that the
dead body was of the Sayra Bano and the
police acted as per the statement given by
Munna and prepared the inquest report
accordingly.

37. PW-4 Smt. Parveen was the elder
sister of the deceased. She also stated that
the deceased had got married to Munna and
168 INDIAN LAW REPORTS ALLAHABAD SERIES
she never got married to the appellant.
Munna had told them about the dead body
having been found in the grave yard and
she and the other persons had stated that
the dead body was not of her sister Sayra
Bano but Munna insisted that the dead
body was of Sayra Bano. She stated that
she did not know whether her sister Sayra
Bano was alive or not but the dead body
recovered was not of her sister Sayra Bano.

38. The post mortem examination
report states that the face of the dead body
was not recognizable, skin had peeled off
with grayish dis-colouration, ligaments
were loosened, nails, hairs easily pulled
out, teeth loosened from their sockets, soft
parts were changing into black mass,
eyeballs were missing and eye-tor orbit was
filled with mud. PW-7, the Doctor who had
conducted the postmortem examination,
stated that the face of the dead body was
not recognizable and the deceased had died
about eight weeks ago.

39. The book titled "Modi - A
Textbook of Medical Jurisprudence and
Toxicology" is widely considered to be an
authority on the subject. Chapter 14 of the
27th edition of the book deals with
Exhumation. It is written therein that "In
case
of
bodies,
which
have
been
underground for a sufficiently long time
and undergone putrefaction, an attempt
should be made to determine the sex,
stature and marks of identification. A
photograph of the exhumed body may also
help in identification. If necessary, an Xray examination of the cadaver should be
undertaken. Hair found on the body should
be preserved in a dry, clean glass bottle for
subsequent identification and chemical
analysis. .... All these bottles or jars should
then be closed with well-fitted glass
stoppers and forwarded, duly labeled and
sealed,
to
the
Forensic
Science
Laboratory."

40.
In
the present
case,
the
prosecution did not take any of the
aforesaid steps to ascertain the identity of
the dead body by any scientific evidence.

41. It is significant to note that as per
the inquest report and also as per the post
mortem examination report, some clothes, a
thread and a tabeez were present on the
dead-body, but the prosecution remained
silent about those articles and no question
was put to any witness about those articles
so as to connect the same with the
informant's sister Sayra Bano so as to
identify the dead body.

42. Thus there was no evidence to
prove that Sayra Bano had been killed and
the dead body was of Sayra Bano. In these
circumstances,
the
only
irresistible
conclusion that we can draw is that the trial
Court has concluded that the appellant
killed Sayra Bano by assaulting her on her
neck with knife and he had hidden the dead
body in the grave of Kennoo Khan, without
there being any evidence to support this
conclusion and, therefore, this conclusion is
perverse.

43. The fourth conclusion drawn by
the trial Court that the dead body was
recovered after digging a grave up to a
depth of 2 feet, whereas the prosecution
witnesses have merely stated that when
they had reached the grave-yard, a dead
body was lying there and no witness has
stated that the dead body was exhumed
from any grave in her or his presence. The
dead-body is said to have been recovered
from the grave of Kennoo and the recovery
memo mentions that the recovery had been
witnessed by Achchhan son of Kennoo
9 All. Hafeez Khan Vs. State of U.P.
169
also, but Achchhan son of Kennoo has not
been produced as a prosecution witness.
Therefore, the finding that the dead body
was recovered after digging a grave up to a
depth of 2 feet, is also perverse.

44. Regarding the fifth conclusion of
the trial Court, that the weapon used in
commission of the offence was recovered
from the appellant's house on his pointing
out, suffice it to say that the alleged
recovery is said to have been witnessed by
the informant Shabana and her sister
Parveen, besides some police personnel.
Except for the S.H.O. - PW-8, no witness
has given any evidence to prove the
recovery of knife. The test report given by
the Forensic Science Laboratory, U.P.,
Lucknow mentions presence of blood on
major parts of the knife, but the blood had
been disintegrated and its group could not
be ascertained. In these circumstances, it
cannot be said that the blood found on the
knife was of Sayra Bano. The appellant had
denied the alleged recovery of knife in his
statement recorded under Section 313
Cr.P.C. Therefore, there was no evidence to
prove that any knife had been recovered
from the appellant's house on his pointing
out and that the knife had been used in
commission of the offence and this
conclusion drawn by the trial Court is also
perverse.

45. Lastly, the trial Court has held that
the appellant had stated that the deceased had
got married to Munna but he did not produce
Munna in defense evidence and he did not
disclose the father's name and address of
Munna. He could not establish the existence
of Munna from any oral or documentary
evidence. While recording the aforesaid
statement, the trial Court has acted against the
basic principle of dispensation of criminal
justice that in a criminal trial, it is the
prosecution which has to prove the guilt of
the accused person and that too, beyond any
reasonable doubt. The accused is not required
to prove his innocence. In case the
prosecution fails to discharge its burden to
prove beyond any reasonable doubt that the
accused is guilty, the accused has to be
acquitted and he cannot be held guilty merely
because he has not adduced any evidence to
prove his innocence. It appears that the trial
Court has proceeded to hold the appellant
guilty under a patent misconception about the
aforesaid
basic
principles
of
justice
dispensation.

46. On the basis of the aforesaid
conclusions, the trial Court has held that the
appellant had killed Sayra Bano and had
hidden the dead body in the grave of Kennoo
Khan and has convicted the appellant for
offences under Sections 302 and 201 IPC. As
all the aforesaid conclusions have already
been held to be perverse, the consequential
finding of guilt of the appellant is also
perverse.

47. As the trial Court has placed
reliance on some judgments to hold that the
accused can be held guilty even where the
prosecution witnesses turn hostile, it is
necessary to examine whether the principles
laid down in those judgments warrant
conviction of the appellant.

48. In Ramesh v. State of Haryana,
(2017) 1 SCC 529, a dying declaration had
been recorded in which the deceased had
categorically stated that her husband had
set her ablaze but the trial Court had
acquitted the accused as the deceased's
brother had stated that the accused was not
involved in killing the deceased. The High
Court had reversed the judgment of
acquittal. In appeal, the Hon'ble Supreme
Court held that: -
170 INDIAN LAW REPORTS ALLAHABAD SERIES

"20. The High Court, in the
impugned judgment, has found fault with
the aforesaid analysis, approach and the
manner in which the dying declaration has
been dealt with by the trial court.
According to the High Court, the veracity
of the dying declaration could not be
examined with reference to the other
evidence. It has held that the approach of
the trial court was blemished. According to
the High Court, the trial court was
required to appreciate as to whether the
statement of the deceased was given in a fit
state of mind; and whether it was
voluntarily given without being influenced
by any extraneous circumstances and
without any tutory. If that was so and the
dying declaration of the deceased passed
the muster of the aforesaid test and was to
be believed, the conviction could be based
solely on such a dying declaration. The
High Court then examined the dying
declaration in the aforesaid perspective
and found that the doctor had declared her
fit to make a statement on the basis of
which the Judicial Magistrate recorded the
statement and even after recording of the
statement,
the
doctor
again
gave
endorsement that the deceased remained fit
during the period her statement was
recorded. In such circumstances, statement
of the Judicial Magistrate (PW 11) in the
Court that he could not say whether the
deceased was semi-conscious when her
statement was recorded, was of no
consequence as he had acted on the basis
of the medical opinion.
* * *

30. We have already noticed
above, the reasons recorded by the trial
court
while
discarding
the
dying
declaration. Admittedly, no weightage is
given by the trial court to the opinion of the
doctor certifying that the deceased was in a
fit state of mind. Likewise, no reasons were
given by the trial court as to why the
testimony of the Judicial Magistrate, who
recorded the statement, be disbelieved."

49. Thus it is clear that in Ramesh
(Supra) there was sufficient evidence in the
shape of dying declaration and statement of
the doctor to establish the guilt of the
accused, which is not the case here.

50. In Khachar Dipu v. State of
Gujarat, (2013) 4 SCC 322, the Hon'ble
Supreme
Court
relied
upon
some
precedents which hold that "It is well
settled in law that the evidence of the
hostile witness can be relied upon by the
prosecution as well as by the defence".
After examining the facts of that case, the
Hon'ble Supreme Court found that: -

18. On a careful scrutiny of the
testimonies of the said two witnesses PWs
20 and 21, it is seen that both of them have
categorically deposed that the motor
vehicle involved in the accident had dashed
against the cycle of the deceased as a result
of which he had fallen down. It is
interesting
to
note
that
in
crossexamination by the accused, they have
not paved the path of variance in this
regard. In our opinion, their evidence
supports the prosecution version that the
motor vehicle had dashed against the
cycle. We may note with profit that one of
the witnesses has not identified the
accused in the court but the other
witness, PW 20 Shantibhai Lakhmanbhai
has identified him. That apart, as far as
the identification of the accused is
concerned, there is ample evidence on
record to support the same. The singular
purpose of referring to the testimonies of
these two witnesses is that the incident
did occur and the accused had dashed the
vehicle against the cycle."
9 All. Hafeez Khan Vs. State of U.P.
171

51. Thus in Khachar Dipu (Supra)
the accused was convicted because there
was ample evidence to prove his guilt.

52.

In
Koli
Lakhmanbhai
Chanabhai v. State of Gujarat, (1999) 8
SCC 624, the High Court had relied upon
some part of the evidence of a hostile
witness, PW 7 who had not supported the
prosecution story in its entirety, but his
evidence established the prosecution case
with regard to the time, place and weapon
of offence being the knife and also that the
person having the knife was Accused 2.
Some part of his evidence was corroborated
by PWs 11 and 12. It has come on record
that PW 7 had immediately informed PW
11 and PW 12 about the incident. PW 12
had also stated that PW 7 had informed that
Laxman Chana had inflicted knife-blow.
This witness was cross-examined in detail
with regard to this aspect but nothing could
be found out from the cross-examination.
Extensively bloodstained bush shirt, banian
and other clothes were seized from the
accused. Bush shirt and banian contained
human blood of 'A' group, which was the
blood group of the deceased. The High
Court had relied upon the discovery of a
knife at the instance of the appellant, which
was hidden beneath the ashes of the
fireplace in the kitchen of the appellant.
The said knife also contained blood having
'A' group. For that purpose the High Court
had relied upon the panch witness PW 20.
In
the
aforesaid
peculiar
factual
background of the case, the Hon'ble
Supreme Court held that: -

"5. From the aforesaid evidence
on record, in our view, it cannot be said
that the High Court erred in relying upon
some portion of the evidence of PW 7 who
was cross-examined by the prosecution. It
is settled law that evidence of a hostile
witness also can be relied upon to the
extent to which it supports the prosecution
version. Evidence of such witness cannot be
treated as washed off the record. It remains
admissible in the trial and there is no legal
bar to base his conviction upon his
testimony if corroborated by other reliable
evidence
(Bhagwan
Singh v. State
of
Haryana [(1976) 1 SCC 389] and Sat
Paul v. Delhi Admn. [(1976) 1 SCC 727].
In the present case, apart from the evidence
of PW 7, the prosecution version that he
saw that the appellant was having a knife
in his hand and was quarrelling with the
deceased gets corroboration from the
evidence of PWs 11 and 12 to whom he
disclosed the incident immediately. On the
basis of the said information, within one
hour, FIR was lodged disclosing the name
of the appellant as the person who had
inflicted the knife-blow. A number of
incised wounds are found as per the postmortem report. The prosecution version
gets further corroboration from discovery
of Muddamal knife containing human blood
Group 'A'.