# Najeeruddin v. State of U.P

- **Citation:** (2022) 1 ILRA 910
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-21
- **Case number:** Capital Case No. 11 of 2021
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/najeeruddin-v-state-of-u-p-48080
- **Pages:** 22

## Headnote

Code of Criminal Procedure, 1973 -
Section 386(b) (i) - Retrial- Section 313-
The trial court had placed reliance on
forensic report in respect of the DNA
match between the incriminating articles
(i.e. hair, blood-stained frock, clothes, etc)
recovered from the scene of crime as well
as at the instance of the appellant and the
blood
sample
of
the
appellant.
Importantly, the said forensic report has
not been put to the appellant under
section 313 CrPC inasmuch as it was
obtained
after
the
statement
under
section 313 CrPC was recorded. It is well
settled
that
all
incriminating
circumstances
appearing
in
the
prosecution evidence must be put to the
1 All. Najeeruddin Vs. State of U.P.
911
accused while recording his statement
under section 313 CrPC. According to
section 313 (1) (b) CrPC, the stage of
examination of the accused under section
313 (1) (b) comes when the witnesses of
the prosecution have been examined and
before the accused is called on for his
defence. This implies that after the
incriminating material is put to the
accused, he gets a right to lead evidence
in defence.

Even if incriminating material against the
accused is received subsequent to the stage of
recording the statement of the accused u/s 313
CrPC and the same is not being put to him, then
the said lapse will vitiate the trial.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 293 -Section
313 (1) (b)- No doubt, under section 293
CrPC, a forensic report from a Government
scientific expert can be accepted in
evidence without the requirement of
formal proof, but, the accused, if he so
chooses, has a right to challenge the
report and lead evidence in rebuttal. The
accused may also challenge the very
foundation of the report by questioning
the collection or recovery or seizure of the
material in respect of which the report is
obtained. To ensure that the accused gets
opportunity to avail that right, section 313
(1) (b) CrPC exists in the Code. Not
putting
the
forensic
report
to
the
appellant for sure has caused prejudice to
the appellant as he could neither tender
his explanation to it nor could get
opportunity to lead evidence in rebuttal.
The seized/ recovered material in respect
of which report has been obtained have
not been produced before the court and
got marked as material exhibit. None such
articles were produced before the court
and identified by any of the prosecution
witnesses as the articles recovered or
seized from the scene of crime by the field
unit
team
or
by
the
police
i.e.
investigating officer at the instance of the
accused of which seizure memorandum
(Ex. Ka-25) was prepared. Importantly,
the collection report prepared by the
field unit team is not even exhibited. Once
neither the seized/ recovered article, nor
a portion of it, was produced in court, and
the seizure having not been admitted, the
forensic
report
in
respect
thereto,
remained a waste pape

## Text

_Characters 0–39,936 of 74,786. This is a partial read: ask again with offset=39936 for what follows._

910 INDIAN LAW REPORTS ALLAHABAD SERIES
scope of a revision under section 115, C.P.C.
in the light of the decision in the case of
Kesardeo Chhamaria (supra) it cannot be
said that the court below has committed any
jurisdictional error attracting clause (a) to (c)
of section 115, C.P.C. nor that the order if it
was made in favour of the revisionist would
not have disposed off the proceedings for
impleadment nor that the order, impugned
herein, if allowed to stand, would occasion a
failure of justice or cause irreparable injury
to the party against whom it is made. As
already noticed, in the facts of the case, the
presence of the transferee pendent lite is
necessary
for
complete
and
effective
adjudication of the suit and issues involved
therein and the court below has exercised its
discretion in the matter, which does not
require any interference under Article 115,
C.P.C.

45. The fact that the sale-deed was
executed on 23.11.2016 whereas the
application for impleadment was filed on
5.7.2019 is not of much relevance in the
facts of the case, in view of the discussion
made hereinabove, especially as, suit
proceedings have remained stalled for two
years during pendency of the revision.

46. However, the order of the learned
trial court is clarified to the extent that the
defendant nos. 3 and 4 shall not be
permitted to raise any defence inconsistent
with the defence of defendant nos. 1 and 2
and only such defence would be available
to them as are and would be available to the
defendant nos. 1 and 2 from whom they
have derived title and as is permissible
under section 19(b) of the Act 1963.
Subject to this clarification of the order
impugned, no interference is called for in
exercise of powers under section 115,
C.P.C.
The
revision
is
accordingly
dismissed.

47. Any observation made in this
judgment is only for the purposes of
impleadment proceedings and shall not
have any bearing on the merits of the issues
involved before the Trial Court including
the claim of the respondent nos. 3 and 4
that they are bona fide purchasers.
----------
(2022)01ILR A910
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Capital Case No. 11 of 2021
With
Reference No. 08 of 2021

Najeeruddin ...Appellant
Versus
State of U.P. ...Respondents

Counsel for the Appellant:
From Jail, Sri Nazrul Islam Jafri (Senior Adv.),
A.C., Ms. Nasira Adil, Sri Mohd. Zubair

Counsel for the Respondents:
A.G.A., Sri Ashutosh Gupta, Sri Gyan Prakash
Verma

Code of Criminal Procedure, 1973 -
Section 386(b) (i) - Retrial- Section 313-
The trial court had placed reliance on
forensic report in respect of the DNA
match between the incriminating articles
(i.e. hair, blood-stained frock, clothes, etc)
recovered from the scene of crime as well
as at the instance of the appellant and the
blood
sample
of
the
appellant.
Importantly, the said forensic report has
not been put to the appellant under
section 313 CrPC inasmuch as it was
obtained
after
the
statement
under
section 313 CrPC was recorded. It is well
settled
that
all
incriminating
circumstances
appearing
in
the
prosecution evidence must be put to the
1 All. Najeeruddin Vs. State of U.P.
911
accused while recording his statement
under section 313 CrPC. According to
section 313 (1) (b) CrPC, the stage of
examination of the accused under section
313 (1) (b) comes when the witnesses of
the prosecution have been examined and
before the accused is called on for his
defence. This implies that after the
incriminating material is put to the
accused, he gets a right to lead evidence
in defence.

Even if incriminating material against the
accused is received subsequent to the stage of
recording the statement of the accused u/s 313
CrPC and the same is not being put to him, then
the said lapse will vitiate the trial.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 293 -Section
313 (1) (b)- No doubt, under section 293
CrPC, a forensic report from a Government
scientific expert can be accepted in
evidence without the requirement of
formal proof, but, the accused, if he so
chooses, has a right to challenge the
report and lead evidence in rebuttal. The
accused may also challenge the very
foundation of the report by questioning
the collection or recovery or seizure of the
material in respect of which the report is
obtained. To ensure that the accused gets
opportunity to avail that right, section 313
(1) (b) CrPC exists in the Code. Not
putting
the
forensic
report
to
the
appellant for sure has caused prejudice to
the appellant as he could neither tender
his explanation to it nor could get
opportunity to lead evidence in rebuttal.
The seized/ recovered material in respect
of which report has been obtained have
not been produced before the court and
got marked as material exhibit. None such
articles were produced before the court
and identified by any of the prosecution
witnesses as the articles recovered or
seized from the scene of crime by the field
unit
team
or
by
the
police
i.e.
investigating officer at the instance of the
accused of which seizure memorandum
(Ex. Ka-25) was prepared. Importantly,
the collection report prepared by the
field unit team is not even exhibited. Once
neither the seized/ recovered article, nor
a portion of it, was produced in court, and
the seizure having not been admitted, the
forensic
report
in
respect
thereto,
remained a waste paper.

Even though no formal proof of the report of a
Govt. Scientific expert is required but the
accused cannot be deprived of his right to
question or challenge the said report at the
stage of Section 313 CrPc as the said lapse will
result in causing prejudice to the accused and a
serious miscarriage of justice.

Constitution of India, 1950- Article 21-
Article- 39-A- Code of Criminal Procedure,
1973- Section 273- Section 303- The
prosecution as well as the defence should
get an even chance to lead evidence to
ensure that complete justice is done and
truth prevails more so, when not much
time has elapsed since the commission of
the crime. A very serious charge was
levelled by the accused-appellant in his
application 37 Kha that he had not
engaged any counsel and that all those
witnesses were examined when he was
unrepresented, the court ought to have
enquired from those counsels in the
presence of the accused whether they
were
engaged
by
the
accused
and
whether they had sufficient opportunity to
consult the accused to effectively prepare
for cross-examination.

For a fair trial and delivery of justice the court
has to ensure that not only the accused is
represented by the pleader of his choice but
also all evidence is taken in the presence of
the accused or in the presence of his pleader
and the same is put to him at the stage of
Section 313 CrPc for effective rebuttal and
preparation of his defence. (Para 17, 19, 20,
22, 25, 26)

Accordingly, Criminal Appeal allowed with
direction of retrial. (E-3)

Judgements/ Case law relied upon:-
912 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Nar Singh Vs. St. of Har. (2015) 1 SCC 496

2. Jitendra & anr. Vs. St. of M.P., (2004) 10 SCC
562

3. St. of Raj. Vs. Sahi Ram, (2019) 10 SCC 649

4. Zahira Habibulla H. Sheikh Vs. St. of Guj.,
(2004) 4 SCC 158

5. Anokhilal Vs. St. of M.P, (2019) 20 SCC 196

(Delivered by Hon'ble Manoj Misra, J.)

1. Najeeruddin (the appellant) has
been convicted under Sections 302, 307,
376, 376-A, 376-AB, 377, 201 I.P.C. and
Sections 5/6 of Protection of Children from
Sexual Offences Act (for short Pocso Act),
vide judgment and order dated 26th March,
2021 passed by Special Judge (Pocso Act),
Azamgarh in Special Sessions Trial No.229
of 2019, and has been awarded following
punishment:

(i) Under Section 302 I.P.C., death
penalty with fine of Rs. 2 lacs;

(ii) Under Section 307 I.P.C., ten years
R.I. with fine of Rs. 1 lac and a default
sentence of additional six months R.I.;

(iii)
Under
Section
376
I.P.C.,
imprisonment for life with fine of Rs. 1 lac
and a default sentence of additional six
months;

(iv) Under Section 376-A I.P.C.,
imprisonment for life with fine of Rs. 1 lac
and a default sentence of additional six
months R.I.;

(v) Under Section 376-AB I.P.C.,
imprisonment for life with fine of Rs. 2 lacs
and a default sentence of additional six
months R.I.;

(vi) Under Section 377 I.P.C., ten
years R.I. with fine of Rs. 1 lac and a
default sentence of additional six months
R.I.; and

(vii) Under Section 201 I.P.C., seven
years R.I. with fine of Rs. 1 lac and a
default sentence of additional three months
R.I.

All sentences to run concurrently.

2. As for offence punishable under
Section 302 I.P.C., capital sentence has
been awarded, the court below has sent a
reference for confirmation of death penalty.

3. The appellant has submitted his
appeal from jail against the aforesaid
judgment and order of conviction and
sentence. The said appeal has been
forwarded by the Superintendent (Jail),
Azamgarh, vide letter dated July 5, 2021,
which has been registered as Capital Cases
No. 11 of 2021. The appellant has prayed
that the judgment and order of conviction
and sentence recorded by the trial court be
set aside and that he be acquitted of the
charges.

4. To represent the appellant, who
could not engage a private counsel, by
order dated 27.07.2021, Sri N.I. Jafri,
learned senior counsel, was appointed as
Amicus Curiae.

INTRODUCTORY FACTS IN A
CHRONOLOGICAL ORDER

5. To have a clear understanding of
the case, it would be useful to have a
chronological narration of the facts giving
rise to this appeal.

(i) On 25.11.2019 at 10:14 hours, the
police station concerned receives
an
information that some untoward incident
has occurred in the house of Deceased No.
1 (for short D-1) (identity of various
victims including deceased is not being
disclosed because they are victim of sexual
1 All. Najeeruddin Vs. State of U.P.
913
crime). The police team visits the spot and
discovers D-1, his wife (Deceased No.2 -
for short D-2) and infant son (Deceased
No.3 - for short D-3), aged about 4 months,
lying dead; and D-1's daughter (victim
no.1- for short V-1 - PW2), aged about 8
years, and D-1's minor son (victim no.2 -
for short V-2), aged about 6 years, lying
injured. On the same day, Inquest in respect
of D-1 is completed by 11:45 hours and
inquest report (Exb. Ka-10), witnessed by
five persons including the informant (PW1), is prepared. Likewise, inquest in respect
of D-2 and D-3 is also completed on the
same day and inquest reports (Exb. Ka-15
and Exb. Ka-20, respectively) are prepared.
PW-1 is one of the five witnesses to all the
three inquest proceedings.

(ii) In the meantime, V-1 is taken to
Primary Health Centre, Azamgarh where
she is medically examined at 12:15 PM
by PW-6, who prepares an injury report
(Exb. Ka-4) noticing following external
injuries:

(a) Lacerated wound 4 cm x 0.4 cm x
bone deep on left side of head, 6 cm above
left eyebrow;

(b) Lacerated wound 3 cm x 0.3 cm x
bone deep on left side of forehead, 3 cm
above lateral end of left eyebrow;

(c) Lacerated wound 2 cm x 0.3 cm x
muscle deep, just below left eyebrow;
and

(d) Lacerated wound 1 cm x 0.2 cm x
muscle deep which is below left eye.

All injuries fresh in duration, caused
by hard and blunt object and kept under
observation. Patient was referred to District
Hospital, Azamgarh for X-ray and expert
opinion /management and needful.

(iii) V-2 was also examined by PW-6
on 25.11.2019 at 11:40 am of which injury
report (Exb. Ka-3) is prepared noticing
following injuries:

(a) Lacerated wound 5 cm x 1.2 cm
x bone deep on the median plain and left
side of (sic) of left forehead and left side of
head, 3 cm above left eyebrow;

(b) Lacerated wound 1.5 cm x 0.3 cm
x bone deep on right side of head, 5 cm
above top of right pinna;

(c) Lacerated wound 1 cm x 0.2 cm x
bone deep on right side of forehead, 1 cm
above lateral end of right eyebrow; and

(d) Lacerated wound 1.5 cm x 0.2 cm
x cartilage deep on left side of nose.

All injuries fresh in duration, caused
by hard and blunt object and kept under
observation. Patient was referred to District
Hospital, Azamgarh for X-ray and expert
opinion/needful
treatment
and
management.

(iv) A Field Unit Team, at the request
of
Station
House
Officer
(SHO),
Mubarakpur
and
on
the
order
of
Superintendent
of
Police,
Azamgarh,
headed by Vijay Kumar (not examined),
visited the spot, collected articles and
prepared
an
inspection
report,
dated
25.11.2019 i.e. Paper No. 10 Ka (at page 39
of the paper book - not exhibited) and
collected from the spot following articles:-

(a) Blood swab from the body of D-2;

(b) Blood swab from the body of D-1;

(c) Blood soaked piece of Pual (a mat
made from grass straw) from front of the
house;

(d) Blood soaked bra found on the
spot;

(e) Blood soaked piece of blanket
found on the spot;

(f) Blood stained vest (Baniyan) with
seam found on the spot;

(g) Delux Nirodh (Condom wrapper)
and scissor found on the spot;

(h) Finger prints lifted from the bed
found on the spot; and
914 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) Hair found in the hand of D-2.

(v) At 17:33 hours, on 25.11.2019,
PW-1 submitted a written report (Exb.
Ka-1)
at
PS
Mubarakpur,
District
Azamgarh, which was registered as first
information report (FIR) No. 0267 of
2019 under Section 302/307 I.P.C. In the
FIR, it is alleged: that on 25.11.2019 at
9:30 am, the informant received an
information
that
some
incident has
occurred at the house of his brother (D1); that on getting the information, the
informant went to the house of D-1,
found the door of the house open, D-1,
his wife (D-2) and D-1's infant son (D-3)
lying dead and D-1's daughter (V-1) and
D-1's elder son (V-2) seriously injured;
that immediately he took the victims to
the Government Hospital, Mubarakpur
from where they were referred to Sadar
Hospital, Azamgarh and from Sadar
Hospital they were referred to Life Line
Hospital, Azamgarh where both victims
are under treatment. The FIR alleges that
V-1 told the informant that Imtiyaz Nut, a
resident of the village, has committed the
crime.

(vi) In the evening of 25.11.2019,
autopsy of the three bodies is carried out by
PW-8.

(vi a) Autopsy report of D-3 (Exb. Ka9), which was completed at about 9.00 pm,
reveals a solitary ante-mortem injury of the
following description:-

"Contusion 15 cm x 8 cm over right
side of scalp, 5 cm posterior to right ear
with
underlying
right
parietal
bone
fracture."

Rigor Mortis was present in lower
extremities.

Stomach content found empty; small
intestine filled with gases; large intestine
had faecal matter.

According to the opinion of the
Doctor, death was caused about a day
before due to coma as a result of antemortem head injury.

(vi b) Autopsy report of D-2 (Exb. Ka8), which was completed by 8.20 pm,
reveals following ante-mortem injuries:

(a) Lacerated wound 17 cm x 1 cm x
bone deep over left side of scalp, 5 cm
posterior to left ear pinna;

(b) Lacerated wound 1 cm x 0.5 cm x
bone deep over right eyebrow on lateral
aspect 7 cm interior to left tragus;

Underlying fracture of left temporal
bone.

Rigor
Mortis
Present
Both
Extremities.

Stomach content found empty; small
intestine filled with gases; large intestine
had faecal matter.

Genital Organs: NAD; Vaginal wash
for spermatozoa test in 50 ml vial and
blood sample sealed.

According to the opinion of the doctor,
death was caused about a day before due to
coma as a result of ante-mortem head
injury.

(vi c) Autopsy of D-1 (Exb. Ka-7),
which was completed by 7.40 pm, reveals
following ante-mortem injuries:

(a) Multiple lacerated wound over
right side scalp in area 18 cm x 10 cm of
lacerated wound are bone deep with
underlying bone fracture, 5 cm posterior to
left ear pinna, five in number;

(b) Multiple lacerated wound over left
side of face in area of 16 cm x 14 cm with
depressed bone fracture;

The skull disclosed left parietal bone
fracture and fracture of left maxillary bone
fracture.

Stomach had 100 gm semi-digested
food; small intestine filled with gases; large
intestine had faecal matter.
1 All. Najeeruddin Vs. State of U.P.
915

According to the opinion of the doctor,
death could have occurred about a day
before due to coma as a result of antemortem head injury.

(vii) On 26.11.2019, vide CD Parcha
No. 2, the statement of suspect Imtiyaz Nut
is recorded, who states that on the date and
time of the incident he was in his own
house with his family and that he knows
nothing about the incident. The police in
CD Parcha No.2, dated 26.11.2019, makes
an entry that upon enquiry it was found that
Imtiyaz Nut was in his house on the date
and time of the incident. On this day
i.e.26.11.2019, the police also prepares site
plan (Exb. Ka-32) of the place of incident.

(viii) On 29.11.2019, vide CD Parcha
No. 5, information is received by the police
from
an
informer
with
regard
to
involvement of a person who weeps at the
grave of all the three deceased (D-1, D-2
and D-3) in the night at Ibrahimpur road
Kabristan and does not come out during
day time.

(ix) On 30.11.2019, vide CD Parcha
No. 6, the name of that person, who weeps
at the grave of all the three deceased, is
noted and put on record as that of
Najeeruddin son Abdul Aziz Ansari (the
appellant herein).

(x) On 01.12.2019, vide CD Parcha
No. 7, the statement of V-1 is recorded
under Section 161 Cr.P.C. She stated
therein that in the night of 24.11.2019
when, after dinner, she and her family had
slept. On hearing noise, she woke up and,
in the light of a bulb lit in the room, she
saw a bearded man, a resident of her
village, whose name is Najeeruddin, who is
also known as 'AOU PAU". She stated that
that person killed her father with a brick
and also killed her mother with the same
brick and that after removing the clothes of
his mother, raped her and when V-1
shouted and protested, he also hit her
with brick and also hit her brother with
brick and then he raped V-1. After doing
that, he lifted V-1's mother's body and put
her naked on the floor and again raped her.
Thereafter, he started searching the Almirah
where he found a photograph. Upon
noticing the photograph, he asked V-1 to
identify one of the persons in the
photograph and when V-1 stated that the
person in the photograph is her maternal
uncle then he put a cloth on V-1's mother's
body and scolded V-1 not to shout
otherwise she would also be killed. After
that V-1 sat there.

(xi) On 01.12.2019, statement of
Salauddin (PW-5) was recorded under
Section 161 Cr.P.C. He informed the police
that on 01.12.2019, he was informed by
Rehana (PW-3) and her son Hanzala (PW4) that they were shown a video clip by
Najeeruddin in which bodies of D-1 and D2 were visible and their children were
shown in an injured condition and someone
was moving his hand over the breast of D2.

(xii) On 01.12.2019, another statement
of one Abu Sad (not examined) was
recorded, who also confirmed what was
stated by Rehana and her son to Salauddin
(PW-5). On the basis of the aforesaid
statement, on 01.12.2019, vide CD Parcha
No. 7, the nomination of Imtiyaz Nut in the
FIR was found incorrect and sections 376,
376-A I.P.C. and section 5/6 of Pocso Act
were added; and Najeeruddin's name was
recorded as a suspect.

(xiii) On 02.12.2019, vide CD Parcha
No. 8, the police arrested Najeeruddin and
on the basis of his confessional statement,
recovery of blood stained shirt, lungi, vest,
wrapped in a polythene was made of which
site plan (Exb. Ka-31) was prepared; and a
blood stained brick, salwar, duppatta,
916 INDIAN LAW REPORTS ALLAHABAD SERIES
chemise and a cut piece of frock is
recovered from another place of which site
plan (Ex. Ka-30) is prepared and a common
recovery memo of both the recoveries
(Exb. Ka-25) is prepared by Investigating
Officer (I.O.) Akhilesh Kumar Mishra
(PW-11), which is witnessed by PW-5
amongst
others.
This
recovery
memorandum (Ex. Ka-25) also records the
confessional statement of the appellant to
the effect that in the night of the incident,
the appellant had urge to have sex. He
purchased
a
potency
(sex
drive)
enhancement pill and condom from a shop
keeper (PW-9). Thereafter he forcibly
gained entry into the house of the deceased
and committed various crime. He confessed
to have video-graphed the incident but
stated that he had thrown the mobile in the
river.

(xiv) On 02.12.2019 and 03.12.2019,
search for the mobile was made but the
same could not be found. Memorandums in
respect of search made on 02.12.2019 and
03.12.2019 were prepared and produced as
Exb. Ka-27 and Exb. Ka-28, respectively,
and a site plan (Ex. Ka-29) where search
was made was also prepared.

(xv) On 02.12.2019, internal medical
examination of V-1 is carried out. Her
hymen is found fresh torn with redness and
tenderness. Redness and swelling was also
noticed in the anus. For determination of
age she is referred to CMO, Azamgarh. The
internal examination report (Exb. Ka-5)
was prepared by doctor Rashmi Sinha (PW7).

(xvi) On 03.12.2019, statement of V-1
is recorded under Section 164 Cr.P.C.
where she repeats what she stated under
section 161 CrPC.

(xvii) On 03.12.2019, by radiological
procedure, the age of V-1 is determined as
8 years old of which report (Ex Ka-35) is
prepared on 5.12.2019.

(xviii) On 04.12.2019, PW-7 prepares
supplementary report (Ex. Ka 6) that no
spermatozoa is noticed in the vaginal smear
obtained from V-1.

(xix) On 09.12.2019, vide CD Parcha
No. 14, charge sheet is submitted against
the appellant with a note that DNA and
other forensic reports are awaited.

(xx) On 10.12.2019, the Court of
Additional
District
and
Sessions
Judge/Special Judge (Pocso), Azamgarh
takes cognisance on the charge-sheet dated
09.12.2019 for offences punishable under
Sections 302, 307, 376, 376-A, 376-AB,
377, 201 I.P.C. and section 5/6 Pocso Act.

(xxi) On 11.12.2019, following order
is passed by the Special Judge:

**fnuk¡d% 11-12-2019

iqdkj ij vfHk;qDr uth:Ìhu tsy ls mifLFkrA
mlds fo}ku vf/koDrk mifLFkrA lgk;d ftyk
'kkldh; vf/koDrk QkStnkjh o vfHk;qDr ds fo}ku
vf/koDrk dks lqukA

lgk;d ftyk 'kkldh; vf/koDrk QkStnkjh }kjk
U;k;ky; ds le{k vkjksi ds leFkZu esa izLrqr fd;s
tkus okys lk{;ksa dk fooj.k izLrqr fd;k x;kA

mHk; i{k dks lquus rFkk i=koyh ij miyC/k
izi=ksa ds voyksdu ls vfHk;qDr ds fo:) izFke n`"V;k
/kkjk& 302] 307] 376] 376,] 376 , ch] 377] 201
Hkk0na0la0 ,oa /kkjk& 5@6 ikDlks vf/kfu;e dk vkjksi
curk gSA

vr% vfHk;qDr ds fo:) mDr /kkjkvksa ds
vUrxZr vkjksi fojfpr fd;k x;kA vfHk;qDr dks
vkjksi i<+ dj lquk;k o le>k;k x;kA vfHk;qDr us
vkjksi ls budkj fd;k ,oa fopkj.k dh ;kpuk dhA
i=koyh okLrs lk{; yap ckn is'k gksA

fnuk¡d% 11-12-2019

g0 viBuh;

1⁄4ik:y v=h1⁄2

fo'ks"k U;k;k/kh'k 1⁄4ikDlks ,DV1⁄2@

vij l= U;k;k/kh'k] dksVZ ua0&5] vktex<+A**

(xxii) On the basis of the above order,
against the appellant charges are framed as
follows: under Section 302 I.P.C. for the
murder of D-1, D-2 and D-3; under Section
307 for attempt of murder of V-1 and V-2;
1 All. Najeeruddin Vs. State of U.P.
917
under Section 376 I.P.C. for committing
rape of D-2; under Section 376-AB I.P.C.
for committing rape of V-1; under Section
376-A I.P.C. for committing rape and
murder of D-2, under Section 377 for
committing unnatural offence on V-1, under
Section 201 I.P.C. for destroying the
evidence available in the mobile of the
entire incident; and under Section 5/6
Pocso Act for penetrative sexual assault on
V-1. The appellant denied the charges and
claimed for trial.

(xxiii) On 12.12.2019, statement of
five witnesses, namely, PW-1, V-1 (PW-2),
Rehana (PW-3), Hanzala Tauhir (PW-4),
and Sallauddin (PW-5), were recorded.
Thereafter, on 13.12.2019, the crossexamination of PW-5 was concluded and
statement of doctor Abdul Aziz Ansari
(PW-6), doctor Rashmi Sinha (PW-7),
doctor Santosh Kumar (PW-8), Ramji (PW9), Devendra Kumar Singh (PW-10); and
Akhilesh Kumar Mishra (PW-11) were
recorded.
On
16.12.2019,
the
crossexamination of PW-11 was concluded and
statement of doctor Manish Kumar Shah
(the radiologist who conducted radiological
tests to determine the age of V-1) was
recorded.
On
16.12.2019
itself,
the
statement of the appellant under Section
313 Cr.P.C. was recorded.

(xxiv) On 19.12.2019, the appellant
filed an application 37 Kha for recall of
witnesses PW-1 to PW-7 for fresh crossexamination. In this application 37 Kha, it
was stated by the appellant that on the date
when statement of PW-1 to PW-7 was
being recorded, he had not engaged any
counsel to represent him; that the police
had obtained his signature on blank paper
and vakalatnama and under fear of the
police he signed as desired by the police
and that he was not even aware that any
advocate
was
representing.
In
the
application, it was also stated that on
13.12.2019, he had engaged two advocates,
namely, Haribansh Yadav and Sri Sarvajeet
Yadav, to put forth his defence and that
earlier the police got all the witnesses
examined as per their own sweet will
therefore, for proper cross-examination of
those witnesses by the counsels engaged by
him, those witnesses be recalled. On
application 37 Kha, written objection was
filed by the informant. In the written
objection (paper no. 38 Kha), it was stated
that the defence had engaged Sri Rabindra
Nath Tiwari and Deepak Gupta, Advocates,
who
extensively
cross-examined
the
witnesses and, thereafter, the statement of
the accused, under Section 313 Cr.P.C., was
also recorded therefore, the defence stand
that no advocate was appointed is incorrect
and baseless and that the application for
recall of the witnesses is mala fide.

(xxv) On 04.01.2020, the trial court
rejected the application 37 Kha and fixed a
date for the defence evidence, if any. While
rejecting the application 37 Kha, the trial
court observed that there existed a
vakalatnama, dated 11.12.2019, in favour
of Rabindra Nath Tiwari and Deepak Gupta
to represent the accused - appellant and that
though the accused had submitted a fresh
vakalatnama in favour of Haribansh Yadav
and Sarvajeet Yadav but he had not
withdrawn the earlier vakalatnama in
favour of Rabindra Nath Tiwari and
Deepak Gupta. The court also observed that
the statement of PW-1 to PW-7 were
recorded in the presence of the accused and
the order-sheet also bears the signature of
the accused; and further, the statement of
PW-8, 9, 10, 11 and 12 were recorded in
the presence of Haribansh Yadav, Sarvajeet
Yadav, Rabindra Nath Tiwari and Deepak
Gupta,
Advocates
and
the
accused
Najeeruddin, then, had raised no objection
918 INDIAN LAW REPORTS ALLAHABAD SERIES
in respect of their appearance therefore, the
application 37 Kha is liable to be rejected.

(xxvi) On 07.01.2020, the court gave
last opportunity to the accused to lead
defence evidence and fixed 16.01.2020. In
between, on 10.01.2020, finger print expert
report, as entered in the CD, was received,
which was taken on record. On 16.01.2020,
the matter was adjourned and, thereafter, it
was adjourned for one reason or the other
including COVID-19 pandemic.

(xxvi) The order sheet of the court
below reflects that on 21.10.2020, an order
was passed by the trial court. In that order
it is mentioned that though the accused is
present through video conferencing but no
person in his defence is present and since
report from the forensic laboratory has not
yet been received, next date i.e. 02.11.2020
is being fixed. On 02.11.2020, the matter
was again adjourned to 09.11.2020. On
09.11.2020, forensic report (Paper No.48
Ka) was obtained from U.P. Forensic
Laboratory, Lucknow. The court gave last
opportunity to the accused to lead defence
evidence. While giving last opportunity,
vide order dated 09.11.2020, the court fixed
10.11.2020 as the next date. Thereafter, the
matter was adjourned from one date to the
other for various reasons including absence
of the Presiding Officer. Finally, on
12.03.2020, arguments on behalf of the
prosecution were heard and 17.03.2021 was
fixed
for
remaining
arguments.
On
17.03.2021, the arguments on behalf of
prosecution were completed. On behalf of
the accused adjournment was sought.
Consequently, on 17.03.2021, 18.03.2021
was fixed for arguments on behalf of the
accused. On 18.03.2021, the following
order was passed:

^^18-3-21

i=koyh is'k gqbZA vfHk;qDr tsy ls mifLFkrA
i=koyh okLrs cgl fu;r pyh vk jgh gSA vfHk;qDr
dh vksj ls dksbZ LFkxu izk0i= Hkh ughA vfHk;kstu
i{k }kjk viuh cgl dh tk pqdh gSA ,slh fLFkfr es
i=koyh fu.kZ; gsrq fu;r fd;k tkuk mfpr gksxkA

vkns'k

i=koyh okLrs fu.kZ; fnukad 24-3-21 dks fu;r
dh tkrh gSA vfHk;qDr dh vksj ls fu.kZ; ds ,d fnu
iwoZ rd fdlh Hkh dk;Z fnol es viuh fyf[kr vFkok
ekSf[kd cgl izLrqr djus ds volj iznku fd;k tkrk
gSA

g0 viBuh;

18-3-21**

(xxvii) On 23.03.2021, counsel for the
defence appeared and argued in part. For
the remaining arguments, 25.03.201 was
fixed. On 25.03.2021, the remaining
arguments on behalf of defence were
advanced and 26.03.2021 was fixed for
orders. On 26.03.2021, the impugned
judgment was delivered.

6. We have heard Sri N.I. Jafri,
learned senior counsel, as an Amicus
Curiae, assisted by Ms. Nasira Adil and
Mohd. Zubair, Advocates, for the appellant;
Sri J.K. Upadhyay, learned A.G.A., for the
State; and Sri Ashutosh Gupta and Sri Gyan
Prakash Verma, for the informant.

PROSECUTION EVIDENCE

7. Before we proceed to appreciate
the rival submissions, we must have a
glimpse of the prosecution evidence. The
prosecution evidence can be divided into
following parts:-

(a) Eye-witnesses account rendered
by V-1 (PW-2);

(b)
Recovery
of
incriminating
material, which can be classified into two
categories:

(i) Recovery at the instance of the
accused of which seizure memorandum Ex.
Ka-25 was prepared by PW11. This related
to:- (i) recovery of blood stained clothes,
1 All. Najeeruddin Vs. State of U.P.
919
etc of the accused wrapped in a polythene
made from near a Neem tree near the place
of residence of the accused; and (ii)
recovery of brick (used for assault) and
frock, etc of the deceased made from
bushes in an Eucalyptus grove of some
third party.

(ii) Recovery from the scene of crime,
which again can be divided into two
categories. One made by the I.O. and the
other by the Field Unit Team. The I.O.
recovered blood stained and plain earth
from the scene of the crime of which
recovery memo was prepared and exhibited
as Exb. Ka-26. Whereas, the Field Unit
Team collected blood swab from D-2's
body, blood swab from D-1's body, blood
soaked Pual (mat) from front of the
deceaseds' house; blood soaked bra, cutting
of blood soaked blanket, blood soaked vest,
wrapper of condom and a scissor as also
lifted finger prints from the bed and hair
from the hand of D-2.

The recovery memo prepared by Field
Unit Team dated 25.11.2019 has neither
been proved nor has been exhibited.

(c) Forensic evidence. This can be
divided into three categories: (i) Medical
reports; (ii) Chemical analysis reports; and
(iii) Finger print expert report

(i) Medical reports include autopsy
reports of the three deceased which was
marked as exhibits Ka-7, Ka-8 and Ka-9,
proved by PW-8; External injury report of
V-2 and V-1 marked as exhibits Ka-3 and
Ka-4, respectively, proved by PW-6;
Internal medical examination report of V-1,
which was marked as Exb. Ka-5, proved by
PW-7; Supplementary report in respect of
non presence of spermatozoa in the vaginal
smear of V-1, which was marked as Exb.
Ka-6, proved by PW-7; and Age report of
V-1, marked as Exb. Ka-35, submitted by
the Chief Medical Officer, Azamgarh,
which has been proved by PW-12;

(ii) Chemical Analysis Report dated
07.11.2020 (Paper No.48 Ka) submitted by
Scientific
Officer,
Forensic
Science
Laboratory, Lucknow in respect of DNA
matching of the blood found on various
articles recovered either by the I.O. or by
the Field Unit Team as aforesaid. But this
forensic report dated 07.11.2020 was
obtained after recording of the statement of
the accused under Section 313 Cr.P.C. and
was not put to the accused for seeking his
explanation under Section 313 Cr.P.C.

(iii) Finger print expert report of the
Director,
Finger
Print
Bureau,
U.P.,
Lucknow, dated 03.01.2020, Paper No.40
Ka/6 to 40 Ka/ 13. But this finger print
report was obtained after recording the
statement of the accused under Section 313
CrPC and was not put to the accused for
seeking his explanation under section 313
CrPC.

(d) Evidence of conduct of the
accused- The evidence relating to the
conduct of the accused post commission of
crime can broadly be classified into two
categories: (a) pre-crime and (b) post
crime. Pre-crime conduct of the accused
with regard to purchase of sex drive
enhancement pill and condom is sought to
be proved by PW-9. Post crime conduct is
in respect of: (i) showing video-clip of the
incident to PW-3 and PW-4 and telling
them that he knows the truth about the
incident and that the police has yet not been
able to know about the real criminal and
that PW-3 and PW-4 should not behave like
cowards; (ii) hiding during day-time and
crying at the grave of the three deceased
during night hours; and (iii) leading to
recovery
of
incriminating
articles
mentioned above.
920 INDIAN LAW REPORTS ALLAHABAD SERIES

(e) Formal Evidence - Such as lodging
of FIR; proof of various stages of
investigation, etc.

SUBMISSIONS ON BEHALF OF
THE APPELLANT

8. (A) Learned counsel for the
appellant, at the outset, submitted that this
is a case where a re-trial would be required
for the following reasons:-

(i) The appellant got no time to engage
and consult his lawyers to enable an
effective
cross-examination
of
the
prosecution witnesses as also for recording
of his statement under section 313 CrPC,
which has vitiated the trial. In support
whereof, he highlighted the following
circumstances:

(a) On 13.12.2019, the appellant
engaged lawyers of his choice, whereas
before that, on 11.12.2019, charges were
framed and, on 12.12.2019, five witnesses
were examined. Thereafter, on 13.12.2019,
Haribansh Yadav and Sarvajeet Yadav
appeared for the appellant. On the same
day i.e. 13.12.2019 cross-examination of
PW-5 is undertaken and, thereafter, on the
same day i.e. 13.12.2019, statement of six
other prosecution witnesses, namely, PW-6,
PW-7, PW-8, PW-9, PW-10 and PW-11 is
recorded. Thereafter, on 16.12.2019 crossexamination of PW-11 is completed and
statement of PW-12 is recorded. Such
speed with which the trial proceeded gave
no
opportunity
to
the
appellant
to
effectively consult his lawyer and brief
them for an effective cross-examination.

(b) Similarly, on 16.12.2019 itself,
when recording of statement of prosecution
witnesses got over, no date was fixed to
enable the appellant to effectively consult
his lawyer and prepare for his examination
under Section 313 Cr.P.C. and straight
away the court proceeded to record
statement under section 313 CrPC.

(c) On 19.12.2019, highlighting the
above, the appellant submitted application
37 Kha for recall of witnesses PW-1 to PW7, which was rejected by overlooking the
following circumstances:-

(c
1)
That
vakalatnama
dated
11.12.2019 allegedly executed by the
appellant in favour of advocates Rabindra
Nath Tripathi and Deepak Gupta was not
accepted
by
Rabindra
Nath
Tripathi
whereas the vakalatnama in favour of
advocates Haribansh Yadav and Sarvajeet
Yadav bears signature of both the said
advocates as a token of acceptance of the
power.

(c 2) There appears over writing on the
date of acceptance of the Vakalatnama
dated 11.12.2019 executed in favour of
Rabindra Nath Tripathi and Deepak Gupta
Advocate.

(c 3) No objection to the application
37 Kha was taken by the State against
whom allegations were made whereas
objection was taken only by the informant.

(c-4) When Rabindra Nath Tripathi
had not accepted the vakalatnama then, in
what capacity he represented the appellant
is a serious issue.

(c-5) It is quite strange that statement
of so many witnesses could be recorded at
one go, on a single day, and the counsel
made no request for a date to prepare for
cross-examination because, ordinarily, a
counsel needs to consult his client to
prepare for cross-examination. Here, the
allegations were so serious that if charges
were proved, death penalty was one of the
alternative punishments, hence, normal
prudence would suggest that the counsel
would like to consult his client to
effectively cross-examine the witness and
for such purpose seek a date. Such tearing
hurry in getting the examination of
1 All. Najeeruddin Vs. State of U.P.
921
witnesses
over;
and,
thereafter,
examination, under section 313 CrPC,
undertaken on the day when testimony of
last two witnesses is recorded; and the
counsel for defence not seeking a date for
preparation, would suggest that there was
something wrong and, therefore, the
application
37
Kha
required
deeper
scrutiny.

(ii) The prosecution produced no
material object recovered either from the
scene of the crime or at the instance of the
applicant before the court and no link
evidence was led to demonstrate that it was
the seized object that was sent for forensic
examination for obtaining reports in respect
of finger prints or DNA profiling. Hence,
the forensic reports (i.e. relating to finger
prints and DNA matching) though, later,
brought on record were not admissible and,
otherwise also, those forensic reports were
not put to the accused under section 313
CrPC hence would have to be eschewed
from consideration. Yet, the trial court in its
judgment placed reliance on those forensic
reports as would be clear from paragraph
61 of its judgment, which vitiates the trial
as well as the judgment. On this count also,
a retrial would be necessary.

(B) On merits of the prosecution case,
the learned counsel for the appellant
submitted as follows:-

(i) The eye-witness account rendered
by V-1 (PW-2) is not reliable. Sri Jafri
urged that PW-2 is a child, who could
easily be tutored, and, therefore, it would
not be safe to base conviction on her
testimony alone. More so, when the FIR
lodged
by
PW-1, on
the
basis
of
information received from PW-2, was
against one Imtiyaz Nut, who is an existing
person, and it appears that the police tried
to save him. Further, from the statement of
PW-2 it appears that she recognised the
perpetrator of the crime on the basis of his
beard (nk<+h) and by referring him as "nk<+h
okys
vady"
though,
during
crossexamination, she, stated "nk<+h okys vady esa
ftudk uke ckn es irk pyk fd mudk uke
uth:Ìhu gS]" which means that she was not
aware of appellant's name. But, if that was
so, how could it be possible that she could
disclose the name of the appellant in her
statement recorded under Section 161
Cr.P.C. when, by that time, the appellant
was not even arrested. This suggests that
even before the appellant was arrested and
identified
by
PW-2,
or
anything
incriminating
recovered
from
him,
appellant's name was disclosed to the
victim-PW-2. Thus, her testimony could be
considered tutored. Further, PW-2 does not
speak of preparing a video-clip. Hence, the
testimony of PW-3 and PW-4 that they
were shown video-clip falls to the ground.

(ii) In respect of recovery and the
forensic evidence, it was submitted that the
material object recovered has not been
produced in court and there exists no link
evidence to demonstrate as to which article
was submitted for forensic examination
hence the forensic reports are a waste
paper.
Moreover,
the
collection
of
incriminating material from the spot has
not been proved by any member of the field
unit team and even the I.O.