# JAIKAM KHAN v. THE STATE OF UTTAR PRADESH

- **Citation:** [2021] 14 S.C.R. 767
- **Court:** Supreme Court of India
- **Decided:** 2021-12-15
- **Case number:** Criminal Appeal No. 434-436 of 2020
- **Bench:** L. Nageswara Rao, B.R. Gavai, B.V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jaikam-khan-v-the-state-of-uttar-pradesh-35369
- **Pages:** 42

## Headnote

Criminal Law - Murder - Interested and related witnesses -
Deceased had four sonsincluding the appellant--accused No.1 and
P.W.1--Six persons were murdered at different places in thehouse,
witnessed by P.W.1- and P.W.2- (P.W.1-'s brother-in-law) - One was
killed in angan, two in verandah, two inroom and one was killed in a
room upstairs -Appellants--accused Nos. 1, 3 and 4 convicted for
offence punishable u/ss.302/34 IPC and sentenced to death -
Accused No.2 was acquitted- On appeal, held: Both P.W.1- and
P.W.2- are witnesses, who are closely related to the deceased as
well as the accused No.1-These two witnesses cannot be considered
to be wholly reliable to base an order of conviction solely on their
testimonies -However, they cannot be said to be wholly unreliable
either - They would fall in the category of 'neither wholly reliable
nor wholly unreliable'- A greater degree of care and caution would
be required and a corroboration in material particulars by reliable
testimony, direct or circumstantial, would be necessary to pass an
order of conviction - Even if the evidence of P.W.1 and P.W.2- is
taken at its face value, the accused have murdered six deceased at
different places andif their version is compared with the site-plans,
it is difficult to believe that they could have also seen the accused
assaulting the deceased who were killed in the rooms which are in
the middle portion of the house or in the room upstairs -P.W-9 (IO)
admitted that P.W.1- and P.W.2- had not told him about their hideouts
and that is why it was not mentioned in the site- plan - Prosecution
failed to prove the case beyond reasonable doubt-Conviction and
death sentence imposed on the accused is unsustainable in law, to
be released- Appeal filed against acquittal of Accused No.2 is also
sans any merit -Penal Code, 1860 - ss.302/34 - Arms Act - s.25/4Evidence Act, 1872 - Code of Criminal Procedure, 1973 - s.313.
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[2021] 14 S.C.R.
Evidence - Murder - Related witnesses - Credit worthiness
of - Held: Merely because the witnesses are interested and related
witnesses, it cannot be a ground to disbelieve their testimony -
However, the testimony of such witnesses has to be scrutinised with
due care and caution - Upon scrutiny of the evidence of such
witnesses, if the Court is satisfied that the evidence is creditworthy,
then there is no bar on the court in relying on such evidence.
Evidence - Murder - Non-examination of independent
witnesses - Held: A large number of villagers had gathered at the
spot after the incident - However, none of the independent witnesses
were examined by the prosecution - Since the witnesses examined
on behalf of the prosecution are interested witnesses, non-
-examination of independent witnesses, though available, would
make the prosecution version doubtful.
Evidence - Other circumstances - Murder of six persons at
different places in the house - Eye-witnesses were related witnesses
and were found not wholly reliable - Other circumstances relied on
by the prosecution - Discussed.
Evidence Act, 1872 - s.27- Murder -Recovery of bloodstained
clothes allegedly worn by the accused while committing the crime -
Held: Said clothes were not recovered on the memorandum of the
accused u/s.27 and as such, the said circumstance could not have
been used against the accused.
Evidence Act, 1872 - s.27 - Held: Only such information,
which distinctly relates to the discovery of facts will be admissible
u/s.27 - In the present case, one of the alleged recoveries is from
the room where one of the deceased used to sleep -Other two
recoveries are from open field, just behind the house of other
deceased, i.e., the place of incident -The recoveries were made from
the places, which were accessible to one and all and as such, no
reliance could be placed on such recoveries.
Criminal Law - Motive - Proof of - Held: In case of direct
evidence and the ocular testimony of the eye-witness being found
to be reliable and cog

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[2021] 14 S.C.R. 767
767
JAIKAM KHAN
v.
THE STATE OF UTTAR PRADESH
(Criminal Appeal No. 434-436 of 2020)
DECEMBER 15, 2021
[L. NAGESWARA RAO, B.R. GAVAI AND
B.V. NAGARATHNA, JJ.]
Criminal Law - Murder - Interested and related witnesses -
Deceased had four sonsincluding the appellant--accused No.1 and
P.W.1--Six persons were murdered at different places in thehouse,
witnessed by P.W.1- and P.W.2- (P.W.1-'s brother-in-law) - One was
killed in angan, two in verandah, two inroom and one was killed in a
room upstairs -Appellants--accused Nos. 1, 3 and 4 convicted for
offence punishable u/ss.302/34 IPC and sentenced to death -
Accused No.2 was acquitted- On appeal, held: Both P.W.1- and
P.W.2- are witnesses, who are closely related to the deceased as
well as the accused No.1-These two witnesses cannot be considered
to be wholly reliable to base an order of conviction solely on their
testimonies -However, they cannot be said to be wholly unreliable
either - They would fall in the category of 'neither wholly reliable
nor wholly unreliable'- A greater degree of care and caution would
be required and a corroboration in material particulars by reliable
testimony, direct or circumstantial, would be necessary to pass an
order of conviction - Even if the evidence of P.W.1 and P.W.2- is
taken at its face value, the accused have murdered six deceased at
different places andif their version is compared with the site-plans,
it is difficult to believe that they could have also seen the accused
assaulting the deceased who were killed in the rooms which are in
the middle portion of the house or in the room upstairs -P.W-9 (IO)
admitted that P.W.1- and P.W.2- had not told him about their hideouts
and that is why it was not mentioned in the site- plan - Prosecution
failed to prove the case beyond reasonable doubt-Conviction and
death sentence imposed on the accused is unsustainable in law, to
be released- Appeal filed against acquittal of Accused No.2 is also
sans any merit -Penal Code, 1860 - ss.302/34 - Arms Act - s.25/4Evidence Act, 1872 - Code of Criminal Procedure, 1973 - s.313.
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Evidence - Murder - Related witnesses - Credit worthiness
of - Held: Merely because the witnesses are interested and related
witnesses, it cannot be a ground to disbelieve their testimony -
However, the testimony of such witnesses has to be scrutinised with
due care and caution - Upon scrutiny of the evidence of such
witnesses, if the Court is satisfied that the evidence is creditworthy,
then there is no bar on the court in relying on such evidence.
Evidence - Murder - Non-examination of independent
witnesses - Held: A large number of villagers had gathered at the
spot after the incident - However, none of the independent witnesses
were examined by the prosecution - Since the witnesses examined
on behalf of the prosecution are interested witnesses, non-
-examination of independent witnesses, though available, would
make the prosecution version doubtful.
Evidence - Other circumstances - Murder of six persons at
different places in the house - Eye-witnesses were related witnesses
and were found not wholly reliable - Other circumstances relied on
by the prosecution - Discussed.
Evidence Act, 1872 - s.27- Murder -Recovery of bloodstained
clothes allegedly worn by the accused while committing the crime -
Held: Said clothes were not recovered on the memorandum of the
accused u/s.27 and as such, the said circumstance could not have
been used against the accused.
Evidence Act, 1872 - s.27 - Held: Only such information,
which distinctly relates to the discovery of facts will be admissible
u/s.27 - In the present case, one of the alleged recoveries is from
the room where one of the deceased used to sleep -Other two
recoveries are from open field, just behind the house of other
deceased, i.e., the place of incident -The recoveries were made from
the places, which were accessible to one and all and as such, no
reliance could be placed on such recoveries.
Criminal Law - Motive - Proof of - Held: In case of direct
evidence and the ocular testimony of the eye-witness being found
to be reliable and cogent, it will not be necessary for the prosecution
to prove the motive for the crime - However, in the present case, the
testimony of the eye-witnesses could not be said to be wholly reliable,
thus the motive would be a relevant factor.
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Criminal Law - Criminal Jurisprudence -Prosecution failed
to prove guilt of accused beyond reasonable doubt - Death penalty
awarded by Trial Court, confirmed by High Court - Deprecation
by Supreme Court.
Allowing the appeals filed by accused persons while
dismissing that of the P.W-1, the Court
HELD: 1.1 Both P.W.1- and P.W.2 are witnesses, who are
closely related to the deceased as well as the accused No.1.
Merely because the witnesses are interested and related
witnesses, it cannot be a ground to disbelieve their testimony.
However, the testimony of such witnesses has to be scrutinised
with due care and caution. Upon scrutiny of the evidence of such
witnesses, if the Court is satisfied that the evidence is
creditworthy, then there is no bar on the court in relying on such
evidence. Both P.W.1- and P.W.2- are witnesses, who are closely
related to the deceased and the accused No.1-. Therefore, it will
be necessary to scrutinise their evidence with more care, caution
and circumspection. Even if the evidence of P.W.1 and P.W.2 is
taken at its face value, the accused have murdered six deceased
at different places. As per the admission given by P.W.1-, the
house of the accused No.1- is 15 steps away from the place where
he was hiding in the compound. According to him, there are a
total of 5 rooms in the house where the incident took place. He
has stated in his cross-examination that Shaukeen Khan (brother)
was murdered in the Angan of the house and his father Mausam
Khan was murdered in the veranda. His niece Muskan was also
murdered in the veranda. His mother-Asgari and nephew Samad
were murdered in the room which is 15 steps away from the
kitchen, whereas deceased Shanno (sister-in-law) was murdered
in a room upstairs. He has further admitted that the aforesaid
room cannot be seen from the kitchen and the door of the
aforesaid room opens towards south. [Paras 28, 31 and 32]
[785-A-B; 786-E, F-H; 787-A]
1.2 A perusal of the evidence of the P.W.1 and the evidence
of P.W.9- would reveal that the first site-plan (Exhibit Ka-51) was
prepared by P.W.9 on P.W.1-'s pointing out the details. All the
three site-plans (Exhibits Ka-51, Ka-52 and Ka-45) have been
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prepared by P.W.9-, the I.O. The first site-plan (Exhibit Ka-51)
shows the places where the dead bodies of the deceased were
found. Serial No.1 in the said site--plan is the place where the
dead body of deceased Shaukeen Khan was found. Serial No.2 is
the spot where the dead body of deceased Mausam Khan was
found. Serial No.3 is the spot where the dead body of deceased
Shanno Begam was found. Serial No.4 is the spot where the dead
body of deceased Muskan was found. Serial No.5 is the spot where
the dead body of deceased Asgari was found. Serial No.6 is the
spot where the dead body of deceased Samad was found. The
arrow marks in the said site-plan show the direction in which the
accused fled away from the rear gate. It is to be seen that in the
said site-plan, the room on the southern side is not shown. The
second site-plan (Exhibit Ka-52) is with regard to the recovery
of weapons made at the instance of the accused from the field of
the deceased Shaukeen Khan. The third site-plan (Exhibit
Ka-45), which is drawn in connection with Case Crime No.26 of
2014 under Section 25/4 of the Arms Act, also shows the places
from where the weapons alleged to have been used in the crime,
were recovered at the instance of the accused. In the last two
site-plans at Exhibit Ka--52 and Exhibit Ka-45, a room has been
shown on the southern side. According to the evidence of P.W.1,
the room in which he hid himself in the south, is the Kitchen. As
per his evidence, the door of the kitchen opens to the north,
whereas as per the third site-plan (Exhibit Ka-45), the gate of
the said room on southern side, opens towards west. As per the
version of P.W.2, he has witnessed the incident from the place
where the buffaloes are tethered, which is adjacent to the
bathroom. Though the bathroom is not shown in the site-plan,
believing it to be adjacent to the place where buffaloes are
tethered, it will be in the south-west corner. [Paras 35, 37-43]
[787-F-G; 791-A-H]
1.3 As per the testimonies of P.W.1 and P.W.2, firstly
Mausam Khan was assaulted and done away with in veranda,
whereas deceased Shaukeen Khan was done away with in the
court- yard. Deceased Muskan, Asgari and Samad were assaulted
in the rooms, which are in the middle portion of the house.
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According to these witnesses, Shanno Begam was assaulted
upstairs. If the version of these two witnesses is compared with
the site--plans, then the position that emerges would reveal that
P.W.1-, at the most, could have witnessed the assault on deceased
Shaukeen Khan, whereas P.W.2 could have witnessed the assault
on deceased Mausam Khan and deceased Shaukeen Khan.
However, since from the perusal of the first site -plan (Exhibit
Ka--51), it could be seen that the dead -bodies of deceased
Muskan, Samad, and Asgari were inside the house, and the dead
-body of deceased Shanno Begam was upstairs, it is difficult to
believe that these two witnesses could have also seen the accused
assaulting Shanno Begam, Muskan, Asgari and Samad. It is further
to be noted that P.W.9- in his cross- examination has admitted
that P.W.1 and P.W.2- had not told him about their hideouts and
that is why it was not mentioned in the site- plan. These two
witnesses cannot be considered to be wholly reliable to base an
order of conviction solely on their testimonies.As already
discussed, though P.W.1- could have witnessed the assault on
deceased Shaukeen Khan and P.W.2- could have witnessed the
assault on deceased Shaukeen Khan and deceased Mausam Khan,
it is difficult to believe that they could have witnessed the assault
on the other four deceased persons. The said witnesses cannot
be said to be wholly unreliable. They would fall in the category of
'neither wholly reliable nor wholly unreliable' and as such, a
greater degree of care and caution would be required and
acorroboration in material particulars by reliable testimony, direct
or circumstantial, would be necessary to pass an order of
conviction. [Paras 44,45 and 47][792-A-E; 793-C-D]
Vadivelu Thevar & another v. The State of Madras
(1957) SCR 981 - relied on.
2.1 The other circumstances relied on by the prosecutionArrest of the accused immediately after the incident:
It is difficult to believe that accused Nos. 1, 3 and 4 were
waiting at Rajghat square, which is at a distance of hardly half a
kilometre from the place of occurrence, waiting for the Police to
come and arrest them. The alleged informer has neither been
named nor has he been examined. It is further difficult to believe
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that accused No.2- was wandering in the village and coincidently
at 6.40 a.m., crossed paths with P.W.9-(I.O.), when he was
returning to the police station along with other accused. It is
clear admission of P.W.2 -that when he and P.W.1 had gone to the
police station to give the written report, (A-1), (A-2), (A-3) and
(A-4) were already present there in the police station. According
to the prosecution, the crime is registered on 23rd January, 2014
at 10.00 p.m. when both P.W.1 and P.W.2 were present. If the
version of P.W.2-, that all the four accused were present at the
police station when they had gone to lodge the FIR, is to be
believed, then the arrest of the accused Nos. 1, 3 and 4 at 2.00
a.m. on 24th January, 2014 and arrest of accused No.2 at 6.40 a.m.
on the same day is mysterious. [Paras 52, 53][794-G-H;
795-A-D]
2.2 Recovery of the weapons alleged to have been used in
the crime at the instance of the accused.
Insofar as the recovery of the weapons alleged to have been
used in the crime at the instance of the accused is concerned,
the prosecution has relied on the arrest-cum-recovery memo,
which is at Exhibit Ka-49. Though the memo shows that the said
recoveries were made in the presence of public witnesses, no
public witness has been examined to support the same. Since no
public witness has been examined to support the said memo, the
statement made therein will have to be scrutinised with greater
caution and circumspection. All the statements made therein with
regard to the confession of committing the crime would not be
admissible in evidence. Only such information, which distinctly
relates to the discovery of facts will be admissible under Section
27 of the Indian Evidence Act, 1872. One of the alleged recoveries
is from the room where deceased Asgari used to sleep. The other
two recoveries are from open field, just behind the house of
deceased Shaukeen Khan, i.e., the place of incident. It could thus
be seen that the recoveries were made from the places, which
were accessible to one and all and as such, no reliance could be
placed on such recoveries. [Paras 54-56][795-D-E; 796-E-F;
797-C-F]
2.3 Recovery of the bloodstained clothes alleged to have
been worn by the accused while committing the crime.
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As per the prosecution witnesses, the accused had run away
from the rear gate of the compound, which is towards north. As
per the evidence of P.W.1-, the house of (A-1) is at a distance of
10-15 steps away from the place of the incident. According to the
prosecution witnesses, immediately after the incident occurred,
many villagers had gathered at the spot. In these circumstances,
it is again a mystery as to how all the four accused fled from the
spot, came back at the said spot, changed their clothes and again
went away. It is also a mystery as to how the accused Nos. 3 and
4, who are not residing in A-1's house, had changed their clothes
and kept them at A-1's house. This coupled with the fact that the
F.S.L. reports are inconclusive, creates a great shadow of doubt
on the genuineness of the said recovery. In any case, the said
clothes are not recovered on the memorandum of the accused
under Section 27 of the Evidence Act and as such, the said
circumstance could not have been used against the accused.
[Para 58][798-C-E]
2.4 Motive
In case of direct evidence and the ocular testimony of the
eye-witness being found to be trustworthy, reliable and cogent, it
will not be necessary for the prosecution to prove the motive for
the crime. However, in the present case,the testimony of the
eye-witnesses could not be said to be wholly reliable, the motive
aspect would be a relevant factor.As per the prosecution version,
the main motive behind the crime was with regard to the dispute
over the management of the brick-kiln between the accused No.1on one hand and deceased Mausam Khan, deceased Shaukeen
Khan and P.W.1- on the other hand.In his cross-examination,
P.W.1has clearly admitted that it is A-1 and family who had dispute
with him over the property of brick-kiln. The said dispute was
over details of accounts. He has admitted that accused Nos. 3 and
4 had nothing to do with regard to brick-kiln of his father deceased
Mausam Khan. With regard to (A-3) and (A-4), the prosecution
has utterly failed to prove any motive and has also failed to prove
any strong motive insofar as (A-1) is concerned. There are various
other inconsistencies and lacunae in the prosecution
case. According to P.W.1 and P.W.2, a large number of villagers
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had gathered at the spot after the incident. However, none of the
independent witnesses have been examined by the prosecution.
Since the witnesses examined on behalf of the prosecution are
interested witnesses, non-examination of independent witnesses,
though available, would make the prosecution version doubtful.
The evidence of P.W.9 (I.O.) would show that though fingerprints
were taken at the spot, the fingerprint expert's report is not placed
on record. Similarly, his further evidence would reveal that though
he had come to the spot with the dog squad, report of the dog
squad is also not placed on record. This also casts a doubt with
regard to the genuineness of the prosecution case. Apart from
that, it could be seen that, though it is the assertion of P.W.1 and
P.W.2 that they together had gone to the police station to lodge
the report, the same has been contradicted by the evidence of
P.W.4-, who was the Constable Clerk at the police station. Coupled
with the fact that though P.W.1 and P.W.2, had mobile phones, they
had not informed the Police on phone, also casts a serious doubt
with regard to the genuineness of the prosecution case. The
prosecution has utterly failed to prove the case beyond reasonable
doubt. The conviction and death sentence imposed on the accused
is totally unsustainable in law. To be released forthwith, if not
required in any other offence.Theappeal filed by the P.W.1 with
regard to acquittal of accused No.2 is sans any merit. [Paras 59-61,
65-70, 83 and 84][800-E-G; 801-D-E, F-G; 808-B-E]
State of Rajasthan v. Teja Singh and others (2001) 3
SCC 147; Joydeb Patra and others v. State of West
Bengal (2014) 12 SCC 444 : [2013] (4) SCR 192; The
State of Punjab v. Jagir Singh, Baljit Singh and Karam
Singh (1974) 3 SCC 277 : [1974] (1) SCR 328; Anand
Ramachandra Chougule v. Sidarai Laxman Chougala
and others (2019) 8 SCC 50 : [2019] (11) SCR 14 -
relied on.
Piara Singh and others v. State of Punjab (1977) 4 SCC
452 : [1978] (1) SCR 597; Anil Phukan v. State of Assam
(1993) 3 SCC 282 : [1993] (2) SCR 389 - referred to.
Pulukuri Kottayya and others v. King Emperor AIR 1947
PC 67 - referred to.
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Case Law Reference
[1978] (1) SCR 597
referred to
Para 29
[1993] (2) SCR 389
referred to
Para 30
(1957) SCR 981
relied on
Para 46
(2001) 3 SCC 147
relied on
Para 67
[2013] (4) SCR 192
relied on
Para 71
[1974] (1) SCR 328
relied on
Para 75
[2019] (11) SCR 14
relied on
Para 82
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 434-436 of 2020.
From the Judgment and Order dated 18.05.2018 of the High Court
of Judicature of Uttar Pradesh at Allahabad in Reference (No.1 of 2016)
and Capital Cases No.602 and 844 of 2016.
With
Criminal Appeal Nos. 442, 437-439 and 440-441 of 2020.
Vinod Diwakar, AAG, Ms. Nitya Ramakrishnan, Sr. Adv., Dama
Seshadri Naidu, Ms. Shivali Chaudhary, Ananvay Anandvardhan,
Siddharth Chapalgaonkar, Ashish Virmani, Anant Agarwal, Ms. Sweta
Rani, Ms. Ritika Khanna, Vibhor Jain, Ms. Vinodthana Vinjam, Ms. Harini
Raghupathy, Ankit Kumar Lal, Sarvesh Singh Baghel, Rajan Kumar
Chourasia, Upendra Mishra, Rajendra Kumar Singh, Ms. Arpika Singhal,
B. N. Dubey, Prasanna S., Yuvraj Singh Rathore, Ms. Vinoothna V.,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. The present appeals arise out of the common judgment and
order passed by the Division Bench of the High Court of Judicature at
Allahabad dated 18th May, 2018, in Reference No.01 of 2016 and, Capital
Case No.602 of 2016 and Capital Case No.844 of 2016, thereby
confirming the judgment and order of conviction dated 2nd January, 2016
and the order of death sentence dated 11th January, 2016 awarded to
original accused Nos. 1, 3 and 4 by the Additional Sessions Judge,
Bulandshahr. Vide the said impugned judgment dated 18th May, 2018,
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the High Court has, however, allowed the appeal of the original accused
No.2-Nazra and set aside the conviction under Section 302/34 of the
Indian Penal Code, 1860 (hereinafter referred to as "the IPC") and the
death penalty awarded to her.
2. Being aggrieved, Criminal Appeal Nos. 434-436 of 2020 are
filed by Jaikam Khan (Accused No.3); Criminal Appeal Nos. 437-439
of 2020 are filed by Sajid (Accused No.4); and Criminal Appeal Nos.
440-441 of 2020 are filed by Momin Khan (Accused No.1); whereas
Criminal Appeal No. 442 of 2020 is filed by Ali Sher Khan, the first
informant (P.W.1) (hereinafter referred to as "P.W.1-Ali Sher Khan")
being aggrieved by the order of acquittal of original accused No.2-Nazra.
3. Appellant-Momin Khan (A-1), deceased Shaukeen Khan, P.W.1Ali Sher Khan and Kallu Khan are the four sons of deceased Mausam
Khan (father, aged about 85 years) and deceased Asgari (mother, aged
about 80 years). Deceased Shanno (aged about 30 years) is the wife of
deceased Shaukeen Khan, whereas deceased Samad (aged about 8
years) is the son of deceased Shaukeen Khan and deceased Muskan
(aged about 15 years) is the niece of P.W.1-Ali Sher Khan.
4. Appellant-Jaikam Khan (A-3) is the first cousin of deceased
Shaukeen Khan, appellant-Momin Khan (A-1) and P.W.1-Ali Sher Khan.
Appellant-Sajid (A-4) is the son of appellant-Jaikam Khan (A-3). Original
Accused No.2-Nazra, who was convicted by the trial Court and acquitted
by the High Court, is the wife of appellant-Momin Khan (A-1).
5. It is the prosecution case that deceased Shaukeen Khan and
P.W.1-Ali Sher Khan were not in good terms with Momin Khan (A-1)
and his wife Nazra (A-2). Therefore, deceased Mausam Khan (father)
had separated all the brothers and allotted their respective share of
properties. The houses of each one of them were in one compound.
Deceased Mausam Khan (father) owned a brick-kiln. In the beginning,
appellant-Momin Khan (A-1) used to run the brick-kiln, but he did not
give the money earned by him from the brick-kiln to deceased Mausam
Khan (father) and his elder brother, deceased Shaukeen Khan. Therefore,
deceased Mausam Khan (father) had dispossessed Momin Khan (A-1)
from the brick-kiln. Thereafter, deceased Mausam Khan and P.W.1-Ali
Sher Khan were running the brick-kiln with the help of his brother
deceased Shaukeen Khan. Jaikam Khan (A-3) and Sajid (A-4) were
jealous with their growing business and so a case was also lodged for
laying bricks over the disputed land. Thereafter enmity arose between
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them, and the younger brother Momin Khan (A-1) joined the company
of his uncle's son i.e. Jaikam Khan (A-3) and Jaikam Khan (A-3)'s son
Sajid (A-4).
6. On the fateful day of the incident, i.e., 23rd January, 2014, at
around 8.30 p.m., P.W.1-Ali Sher Khan and his brother-in-law, P.W.2Jaan Mohammad, were present at home i.e. the place of incident. At
that time, Momin Khan (A-1) with his wife Nazra (A-2) along with
Jaikam Khan (A-3) and Sajid (A-4) came armed with knives and
assaulted Mausam Khan (father), Asgari (mother), Shaukeen Khan
(brother), Shanno (sister-in-law), Samad (nephew) and Muskan (niece)
and killed them brutally. P.W.1-Ali Sher Khan and his brother-in-law,
P.W.2- Jaan Mohammad, somehow managed to save their lives. On
hearing the cries of the deceased and others, many villagers gathered
and all four accused fled from the spot through the back-door.
7. Immediately after the incident, P.W.1-Ali Sher Khan and P.W.2Jaan Mohammad went to Police Station Narora, District Bulandshahr. On
the basis of the report given by P.W.1-Ali Sher Khan, a First Information
Report (F.I.R.) came to be registered for the offence punishable under
Section 302 read with Section 34 of the IPC. Upon completion of the
investigation, a charge-sheet came to be filed before the concerned Judicial
Magistrate. The case was committed to the court of Sessions.
8. The trial Judge framed charges for the offences punishable
under Section 302/34 of the IPC and under Section 25/4 of the Indian
Arms Act, 1878 (hereinafter referred to as "the Arms Act"). The accused
pleaded not guilty and claimed to be tried. At the conclusion of the trial,
the trial judge vide judgment and order dated 2nd January, 2016 convicted
all the four accused for the offence punishable under Section 302/34 of
the IPC and sentenced them to death vide order dated 11th January,
2016. The appellants-accused Nos. 1, 3 and 4 were also convicted for
the offence punishable under Section 25/4 of the Arms Act and awarded
rigorous imprisonment for a term of three years with a fine of Rupees
Five Thousand and in case of default, they were to undergo additional
imprisonment for a term of three months.
9. The trial judge vide the said order dated 11th January, 2016 also
made a reference under Section 366(1) of the Code of Criminal
Procedure, 1973 (hereinafter referred to as "Cr.P.C.") to the High Court
vide Reference No.1 of 2016 for confirmation of the death sentence
awarded by it.
JAIKAM KHAN v. THE STATE OF UTTAR PRADESH
[B. R. GAVAI, J.]
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10. Being aggrieved thereby, all the four accused preferred appeals
before the Division Bench of the High Court. The Division Bench of the
High Court vide the impugned judgment, dismissed the appeals of
appellants- accused Nos. 1, 3 and 4 and confirmed the death sentence
awarded to them. However, the Division Bench of the High Court allowed
the appeal of the accused No.2-Nazra and acquitted her of the charges
under Section 302/34 of the IPC.
11. Being aggrieved thereby, Momin Khan (A-1), Jaikam Khan
(A-3), Sajid (A-4) and P.W.1-Ali Sher Khan are before this Court in the
present appeals.
12. We have heard Smt. Nitya Ramakrishnan, learned Senior
Counsel appearing on behalf of appellant- Momin Khan (A-1) as well as
acquitted original accused No.2-Nazra, Shri Dama Seshadri Naidu,
learned counsel for appellants-Jaikam Khan (A-3) and Sajid (A-4), Shri
Anant Agarwal, learned counsel for appellant- P.W.1-Ali Sher Khan
and Shri Vinod Diwakar, learned Additional Advocate General appearing
on behalf of the respondent-State of Uttar Pradesh.
13. Smt. Nitya Ramakrishnan, learned Senior Counsel appearing
on behalf of the appellant-Momin Khan (A-1) would submit that the
entire case rests on the ocular testimony of P.W.1-Ali Sher Khan and
P.W.2-Jaan Mohammad, who are said to have witnessed the incident
from the kitchen and the cattle-shed of the house respectively. She submits
that both of them are interested witnesses. It is submitted that the High
Court has disbelieved the evidence of these two witnesses insofar as
original accused No.2-Nazra is concerned. She submits that when the
ocular testimony of P.W.1-Ali Sher Khan and P.W.2-Jaan Mohammad
was found to be not trustworthy and reliable by the High Court with
respect to accused No.2-Nazra, the High Court fell in grave error in
convicting the other accused on the basis of the very same ocular evidence.
14. Learned Senior Counsel further submits that the prosecution
has placed on record three site-plans at Exhibits Ka-51, Ka-52 and Ka45. It is, however, submitted that in none of the site-plans, the location of
the kitchen and the bathroom (which is supposed to be adjacent to cattleshed) has been shown. She submits that as such, there is a serious doubt,
as to whether P.W.1-Ali Sher Khan and P.W.2- Jaan Mohammad have
really witnessed the incident. She further submits that even if the
prosecution case is to be believed, immediately after the occurrence of
the incident, many villagers had assembled at the spot, however, though
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the statements of such witnesses were recorded, the prosecution has
not examined a single witness. She, therefore, submits that an adverse
inference needs to be drawn on account of non-examination of
independent witnesses, though they were very much available.
15. Learned Senior Counsel further submits that both P.W.1-Ali
Sher Khan and P.W.2-Jaan Mohammad have admitted in their evidence
that they were possessing mobile phones. She submits that in normal
circumstances, after such a dastardly incident had occurred, P.W.1-Ali
Sher Khan and P.W.2-Jaan Mohammad would have informed the Police
about it on their mobile phones. She submits that, however, the same has
not been done by them. She further submits that though after recording
of the statement under Section 313 Cr.P.C., the wife of Jaikam Khan
(A-3) had filed an application for producing the Call Detail Records
(hereinafter referred to as "C.D.Rs.") of P.W.1-Ali Sher Khan and
P.W.2-Jaan Mohammad, the said application was rejected by the trial
judge. She submits that if the said C.D.Rs. would have been placed on
record, they would have established the genuineness of the prosecution's
case.
16. She further submits that the recovery of clothes as well as the
recovery of weapons are all farcical. She submits that from the materials
placed on record, it is clear that the prosecution has not come to the
Court with clean hands. It is submitted that as per the Arrest Memo/
Panchnama (Exhibit Ka-49), the Investigating Officer (I.O.) had received
an information that accused Nos. 1, 3 and 4 were standing at Rajghat
Square to go somewhere. On the basis of the said information, the I.O.
reached the said square and found the said accused at that spot. She
submits that according to the prosecution, at around 2.00 a.m. in the
morning on 24th January, 2014, the said three accused were arrested. It
is submitted that it is improbable that the accused, after committing such
a heinous crime, would remain in such a close vicinity of the place of
occurrence. She further submits that the arrest of the accused No.2Nazra, which is shown at around 6.40 a.m., is also farcical.
17. Learned Senior Counsel would further submit that the trial
court has grossly erred in convicting all the four accused and the High
Court has erred in maintaining and confirming the death sentence against
the accused Nos. 1, 3 and 4. She submits that in any case, neither the
High Court nor the trial Court has given any reasons justifying the award
of capital punishment. She submits that there is not even a whisper, as to
JAIKAM KHAN v. THE STATE OF UTTAR PRADESH
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why there is no possibility of the accused being reformed or rehabilitated
and as to why there is no other alternative than to award the capital
punishment.
18. Shri Dama Seshadri Naidu, learned counsel appearing on behalf
of Jaikam Khan (A-3) and Sajid (A-4), submits that insofar as the said
accused are concerned, the prosecution story is totally unbelievable. He
submits that deceased Mausam Khan and Zafar Khan are the sons of
Shakoor Khan. Jaikam Khan (A-3) is the son of Zafar Khan. He submits
that from the evidence of the prosecution witnesses, it is clear that there
was a partition amongst Zafar Khan and deceased Mausam Khan long
time ago. Not only that, but there was a further partition amongst the
two branches of the family. He submits that the testimonies of these two
witnesses, i.e., P.W.1-Ali Sher Khan and P.W.2-Jaan Mohammad, would
reveal that there is no enmity between deceased Mausam Khan, deceased
Shaukeen Khan and P.W.1-Ali Sher Khan on one side and Jaikam Khan
(A-3) and Sajid (A--4) on the other. The alleged enmity was with Momin
Khan (A-1), who belonged to the branch of deceased Mausam Khan.
He submits that, as such, the prosecution has utterly failed to prove any
motive insofar as accused Nos. 3 and 4 are concerned.
19. Learned counsel submits that even the evidence of P.W.2Jaan Mohammad was not trustworthy. Perusal of his evidence would
reveal that he does not know anything about the family holdings.
20. Shri Naidu further submitted that the recovery of clothes and
weapon is totally farcical. He submits that it is totally impossible that the
accused Nos. 3 and 4, who are not the members of the family of Momin
Khan (A-1), would keep their bloodstained clothes at the house of Momin
Khan (A-1) after committing the crime. Learned counsel further submits
that though fingerprints were taken from the recovered articles, the
fingerprint expert's report is not placed on record and, therefore, an
adverse inference needs to be drawn against the prosecution. Learned
counsel further submits that all Forensic Science Laboratory ("F.S.L."
for short) reports are marked during examination under Section 313 Cr.
P.C., which is not permissible. He submits that, in any case, the said
reports are inconclusive. Shri Naidu would further submit that since
P.W.1-Ali Sher Khan and P.W.2-Jaan Mohammad are related witnesses,
their evidence will have to be scrutinized with greater care and
circumspection and it will not be safe to pass an order of conviction on
their sole testimony without there being any corroboration.
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21. Shri Vinod Diwakar, learned Additional Advocate General
appearing on behalf of the respondent-State of Uttar Pradesh submitted
that both the trial court and the High Court have concurrently, on the
appreciation of the evidence, convicted the accused. He submits that no
error could be noticed in the concurrent findings. He submits that merely
because kitchen and bathroom are not shown in the site-plans, it cannot
be a ground to disbelieve the ocular testimony of P.W.1-Ali Sher Khan
and P.W.2-Jaan Mohammad. He submitted that the evidence of these
two witnesses is corroborated by the F.I.R.
22. Learned counsel submitted that merely because there are
certain discrepancies in the evidence of the witnesses, it cannot be a
ground to disbelieve the ocular testimonies of the witnesses, which are
otherwise cogent, reliable and trustworthy. He, therefore, submits that
no interference is warranted in the appeals preferred at the behest of
accused Nos. 1, 3 and 4 and the same deserve to be dismissed.
23. Shri Anant Agarwal, learned counsel appearing on behalf of
P.W.1-Ali Sher Khan, would submit that when the Additional Sessions
Judge on the basis of correct appreciation of evidence convicted accused
No.2-Nazra, there was no reason for the High Court to reverse the
same.
24. The learned counsel for respective parties, while supporting
their contentions, have placed reliance on various decisions of this Court.
25. With the assistance of the learned counsel for the appellants,
we have scrutinized the entire evidence in depth. Since the conviction of
the accused appellants is largely based on the ocular testimonies of P.W.1Ali Sher Khan and P.W.2-Jaan Mohammad, we find that it will be
appropriate to reproduce relevant part of their examination-in-chief:
Examination-in-chief of P.W.1-Ali Sher Khan
"My father had brick-klin and due to the same brick-klin, the
accused -persons present in court namely Jaikam Khan, Shajid,
Nazra too bore enmity. Nazra is wife of Mobin. Jaikam Khan is
Mobin's cousin and Sajid is Mobin's nephew from his taau family.
The incident is of 23th January, 2014 and it was about 8.30 pm. on
that day, my sister's husband namely Jaan Mohammad had come
at about 2 o' clock in afternoon and was present at the house
itself at the time of the incident. At the time of the incident, my
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father Mausam Khan, my mother Asgari, my brother Shaukeen
Khan, his wife Sanno and his elder brother Saukeen Khan' son
Samad and my niece Muskan, my brother-in-law Jaan Mohammad
and I were present at the house. Momin Khan, his wife Nazra,
Jaikam Khan and his son Shajid entered our compound at about
8.30 pm from the direction of the house of Momin Khan. When I
saw them, I was in the kitchen room. All these accused persons
were holding knives in their hands. These four attacked my father
with knife who was sleeping in veranda and when they attacked
my father then I was witnessing it from kitchen room. Hearing
hue and cry raised by father, my niece Muskan came running
then these four accused persons present in court ran behind her
and cut her also with knife holding in their hands. My mother and
nephew Samad were also there in the same veranda where
Muskan was attacked. These four accused persons cut these
two also with knives. Hearing this hue and cry, when my elder
brother Saukeen came downstairs from upstairs, the accused
persons killed him also near the gate. My sister-in-law Sanno,
who had come downstairs hearing hue & cry, was killed by them
going upstairs. My sister-in-law Sanno seeing the incident occurring
downwards (sic.) ran away. My brother-in-law Jaan Mohammad
was hiding anywhere in the house saving his life and he had also
witnessed the incident. The accused persons had fled away after
committing the incident. I due to fear could not save the dead
persons. After the incident, I alongwith my brother-in-law Jaan
Mohammad had gone to the police station and lodged the report
at the police station. The complaint which was given by me at the
police station is available on the file and the same is before me
today which I myself had written down and had given at the police
station. It was marked as Ext. ka-1. All six persons had died on
the spot. The accused persons present in court had committed all
murders before me which was witnessed by me while hiding."
Examination-in-chief of P.W.2-Jaan Mohammad
"1 - The incident took place on 23.01.2014. on the day of the
incident, I had come to the house of my father-in-law Mausam
Khan at Pilkhana village at 2 p.m. During the time of the incident,
I was present at the house of my father-in-law Mausam Khan.
The incident took place at around 8 pm. I know the accused persons
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who are present in the court namely Jaikam Khan, Sabid Khan,
Momeen Khan and Naazra. I had firstly seen the accused persons
at the house of my father-in-law Mausam Khan at the verandah.
That time I had come out of bathroom and first time I had seen
the accused persons from the place where the buffaloes are
tethered and is adjacent to bathroom. All these accused persons
were holding knife and chhuriyan (small knife) in their hands. It
would be a distance of 10-15 steps from where I had seen them
for the first time. During the time of the incident, inverter powered
light was on. I had seen the accused persons in the light of the
inverter.
2 - My father-in-law Mausam Khan was offering Namaz on the
cot at the verandah. All the accused persons who are present in
the court started inflicting blows of knives and chhuriyan (small
knife) on Mausam Khan and murdered him. When hearing the
voice of Mausam Khan, Muskan came out, then these four persons
ran behind her and these four accused persons killed her in the
verandah. After this they killed my mother-in-law Asgari and
Samad. Hearing their outcry, Shaukeen Khan came down from
the roof. These four persons caught Shaukeen Khan and killed
him too. When hearing the outcry of Shaukeen Khan, his wife
Shanno came down then these four accused persons ran behind
her on the roof and these four killed her too after going up on the
roof. I had seen all this incident under the shade of the place
where the buffaloes are tethered and is near the bathroom. After
committing the incident, these four accused persons had run away
from there. After these accused persons had run away I came
out from the place where I was hiding and my brother-in-law Ali
Sher and I had raised alarm after coming out of the house. People
of the village had arrived on the alarm raised by us. We went
inside the house and saw that all the people had died.
3 - There was a dispute over kiln between Momeen Khan and my
father-in-law Mausam Khan. Momeen wanted to run the kiln but
my father-in-law Mausam Khan was not willing to give kiln to
Momeen. 2-3 years before the incident, Momeen had run the kiln
and he had not given statement of accounts to Mausam Khan.
Mausam Khan had taken the charge of kiln from Momeen and
for the same reason he was angry.
JAIKAM KHAN v. THE STATE OF UTTAR PRADESH
[B. R.