A three-Judge Bench of the Supreme Court comprising of Justice L. Nageswara Rao, Justice B.R. Gavai, and Justice B.V. Nagarathna has made strong remarks against the trial court while allowing appeals filed challenging convection and death sentence awarded to the accused involved in a case of murder of 6 members of a family. "It is really surprising, as to how the Additional Sessions Judge could have dealt with the present case in such a casual manner when he was considering the question of life and death of four accused.", the Bench observed.

The set of criminal appeals filed before the Supreme Court was directed against a common judgement rendered by a Division Bench of the High Court of Judicature at Allahabad. The High Court had confirmed the judgement and order of conviction as also the order of death sentence awarded to accused nos. 1, 3 and 4 by the Additional Sessions Judge. The High Court, however, allowed the appeal of accused no. 2 and set aside the conviction under Section 302/34 IPC as also the death penalty awarded to her.

Ms. Nitya Ramakrishnan, Senior Advocate appeared on behalf of appellant no. 1 as well as acquitted accused no. 2 while Mr. Dama Seshadri Naidu advanced submissions on behalf of appellant no. 3 and 4. Mr. Anant Agarwal appeared for PW1 while Mr. Vinod Diwakar, AAG made submissions on behalf of the State of Uttar Pradesh.

Factual Matrix:

The case set up by the prosecution was that the deceased Shaukeen Khan and PW1 Ali Sher Khan were not in good terms with one, Momin Khan and his wife, Nazra. Hence, deceased Mausam Khan [who was the father] had separated all the brothers and allotted respective share of properties to them. Mausam owned a brick-kiln; the houses of everyone being in the same compound. Momin used to run the brick-kiln in the beginning, however, he did not give the earnings to Mausam and Shaukeen.

Mausam, thereafter, dispossessed Momin from the brick-kiln and started running the same with Ali coupled with the help rendered by Shaukeen. One, Jaikam and Sajid were jealous of the growing business which culminated in a case being lodged for laying the bricks over the disputed land. Animosity grew and Momin joined the company of Jaikam and Sajid.

On the date when the incident in question occurred, Ali and his brother-in-law Jaan Mohammad were present. Momin and Nazra along with Jaikam and Sajid came armed with knives and allegedly assaulted Mausam, Asgari (mother), Shaukeen, Shanno (sister-in-law, Samad (nephew) and Muskan (niece) and eventually killed them brutally. As per the prosecution, Ali and Jaan somehow managed to save their lives. After hearing the cries of the deceased and others, villagers got into the scene and all 4 accused fled through the backdoor. An FIR came to be registered under Section 302/34 IPC.

Analysis of the Court: -

The Court noted that Ali and Jaan (being witnesses) were both closely related to the deceased as well as Momin. The Court noted that while there is no doubt that merely because the witnesses are interested and related – it can be a ground to disbelieve their testimony, however, that testimony must be scrutinized with due care and caution. Only when the Court is satisfied that evidence is creditworthy, then, there is no bar on relying on such evidence.

The Court then proceeded to analyze the testimony of Ali and Jaan. The Court concluded that the two witnesses could not be considered to be wholly reliable to base the order of conviction solely on their testimonies. The Court held that the witnesses would fall in the category of neither wholly reliable nor wholly unreliable and that a greater degree of care and caution would be required coupled with corroboration in material particulars by reliable testimony, direct or circumstantial, to pass an order of conviction.

The Court noted that since no public witness has been examined, the statement made in the memo would have to be scrutinized with greater caution and circumspection. The Court noted that only such information that distinctly relates to discovery of facts would be admissible under Section 27 of the Evidence Act.

The Court noted that in case of direct evidence and ocular testimony of eyewitness, which is found to be reliable, it would not be necessary for prosecution to prove motive, however, in the instant case, testimony of eye witnesses could not be said to be wholly reliable and hence, motive would be a relevant factor.

The Court held that only after the prosecution discharges its burden of proving the case beyond reasonable doubt, the burden would shift on the accused. The Court noted that it was at pain to observe the manner in which the case was dealt with by the Trial Court as also by the High Court, particularly, when death penalty was awarded, which was confirmed.

The Apex Court noted that Trial Court and High Court were expected to exercise a greater degree of scrutiny, care and circumspection while directing that the accused to be hanged till death.

The Court ultimately, found that the prosecution failed to prove the case beyond reasonable doubt and hence held that conviction and death sentence was totally unsustainable in law.

Hence, appeals filed by Momin, Jaikam and Sajid were allowed. They were directed to be released forthwith. The appeal filed by Ali (PW1) was dismissed.

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