Abdul Wahid vs The State Of Rajasthan

2025 INSC 295 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 722 OF 2012

ABDUL WAHID & ANR. APPELLANT(S)

VERSUS

STATE OF RAJASTHAN RESPONDENT(S)

WITH

CRIMINAL APPEAL NO.1266 OF 2012

ABDUL SHAKUR APPELLANT(S)

VERSUS

STATE OF RAJASTHAN RESPONDENT(S)

JUDGMENT

UJJAL BHUYAN, J.

Signature Not Verified This judgment and order will dispose of Criminal Digitally signed by ANITA MALHOTRA

Appeal Nos. 722 and 1266 of 2012.

Date: 2025.02.28 19:08:27 IST Reason:

2

2. Criminal Appeal No. 722 of 2012 arises out of

SLP(Crl.) No. 1764 of 2012 filed by Abdul Wahid and Babu

(appellants herein). In this appeal, challenge has been made to

the judgment and order dated 26.08.2011 passed by the High

Court of Judicature for Rajasthan at Jaipur Bench (for short

‘High Court’ hereinafter) in D.B. Criminal Appeal No. 639 of

2003 whereby the High Court has upheld the judgment and

order dated 10.03.2003 passed by the learned Additional

Sessions Judge No. 4, Kota (‘trial court’ for short) in Sessions

Case No. 13/1996 convicting the appellants under Sections

302/148 of the Indian Penal Code, 1860 (IPC). However, the

High Court modified the conviction by holding the accused

guilty of the offence punishable under Section 302 with the aid

of Section 149 IPC while maintaining the sentence of life

imprisonment.

2.1. Criminal Appeal No. 1266 of 2012 has been filed

by Abdul Shakur (appellant herein) against the aforesaid

judgment and order of the High Court dated 26.08.2011

affirming the judgment and order of the trial court and

convicting the appellant under Sections 302/149 IPC and

sentencing him to undergo imprisonment for life. 3

2.2. So the 3 appellants are Abdul Wahid, Babu and

Abdul Shakur.

3. Since Criminal Appeal No. 722 of 2012 was argued

as the lead appeal, facts narrated therein are referred to

hereunder, though both the appeals arise out of the same

incident and the same judgment of the High Court.

4. Faeem Ahmed lodged first information before the

Maqbara police station, Kota, Rajasthan on 25.06.1988 at

about 12:35 AM. He stated therein that Ahsan Ali and himself

were on way to the residence of the in-laws of Ahsan Ali in

Nayapura around 10:40 PM. While Ahsan Ali was talking to his

relatives in the shop of his brother-in-law, he was seen by

accused Abdul Sattar and Abdul Wahid. This was noticed by

Faeem Ahmed who knew them and also about the strained

relationship between Ahsan Ali on the one hand and Abdul

Sattar and Abdul Wahid on the other hand. He suggested to

Ahsan Ali that while returning home, they should change the

route. However, Ahsan Ali insisted on going through the same

route by which they had come. While returning, when they

reached the place called Ghantaghar at around 12 midnight,

suddenly accused Babu, Abdul Wahid, Abdul Sattar, Aziz @ 4

Patti, Abdul Shakur, Bundu and Latur Ali accosted them and

attacked Ahsan Ali and himself with knives etc. The first knife

injury was inflicted by Babu on the stomach of Ahsan Ali

whereafter he fell down from the motorcycle; the second injury

was inflicted by Abdul Wahid on the chest of Ahsan Ali, also by

knife; Abdul Sattar inflicted injury by a katar (sword) on the

backside of Ahsan Ali. Abdul Shakur and Aziz @ Patti who were

also trying to inflict injuries on Ahsan Ali, chased the informant

Faeem Ahmed. He ran into the Gauri Hotel lane. When the said

two accused persons did not find Faeem Ahmed, they returned

back and started assaulting Ahsan Ali.

4.1. Informant somehow managed to escape and went

to the police station to lodge the first information. He stated

that Ahsan Ali was lying at the place of occurrence in an injured

condition. The incident was witnessed by Wahid (brother-in-

law of Ahsan Ali) and Jameel. He alleged that due to previous

enmity, the above named 7 accused persons i.e. Babu, Abdul

Sattar, Abdul Wahid, Abdul Shakur, Aziz @ Patti, Bundu and

Latur Ali alongwith Jaffar Mohammad formed an unlawful

assembly whereafter they assaulted Ahsan Ali with a

murderous intent.

5

4.2. On the basis of the first information, FIR No.

48/1988 was registered on 25.06.1988 under Sections

147/148/149/307 IPC. Injured Ahsan Ali was taken to the

hospital for treatment but he succumbed to his injuries

whereafter Section 302 IPC was added to the FIR.

4.3. Police carried out the investigation and on

completion of the same, filed chargesheet against the 8 accused

persons under Sections 147/148/149/302 IPC. Since it was

sessions triable, the case was committed to the Court of

Sessions whereafter charges were framed against the accused

persons to which they pleaded not guilty and claimed to be

tried.

4.4. Prosecution examined as many as 22 witnesses.

On completion of the prosecution evidence, the accused

persons were examined under Section 313 of the Code of

Criminal Procedure, 1973 (Cr.P.C.) who denied the charge and

alleged false implication. The defence also examined 3

witnesses. It may be mentioned that trial against 4 accused

persons viz. Abdul Sattar, Bundu, Latur Ali and Aziz @ Patti

abetted on account of their death. On conclusion of the trial,

trial court vide the judgment and order dated 10.03.2003 6

acquitted accused Jaffar Mohammed of all the charges. The

present 3 appellants Abdul Wahid, Babu and Abdul Shakur

were convicted for the offence under Sections 302/148 IPC and

sentenced accordingly.

5. Aggrieved by the aforesaid conviction and

sentence, the 3 appellants preferred appeal before the High

Court. The High Court vide the judgment and order dated

26.08.2011 (impugned judgment) affirmed the judgment and

order dated 10.03.2003 of the trial court with the modification

that the conviction was under Sections 302/149 IPC. The

sentence of life imprisonment imposed upon the appellants was

maintained. The appeal was accordingly dismissed.

6. In the first appeal, notice was issued by this Court

in the related SLP on 24.02.2012. Leave was granted on

30.04.2012 and the 2 appellants, Abdul Wahid and Babu, were

granted bail. In so far the second appeal is concerned, leave

was granted on 16.08.2012 and vide order dated 07.12.2012,

the appellant Abdul Shakur was granted bail.

7. Learned counsel for the appellants submits that

the courts below were not justified in convicting the appellants

on the testimony of the sole eyewitness PW-1. After disbelieving 7

the evidence of other witnesses presented as eyewitnesses by

the prosecution, evidence of PW-1 has to be taken with a pinch

of salt as he was a relative and an employee of the deceased.

He is an interested witness and his testimony is not

corroborated by any independent witness.

7.1. Learned counsel further submits that PW-1 is not

a reliable and trustworthy witness in as much as in his cross-

examination, he has admitted that he is a stock witness; police

had produced him as a witness in the Babar Mushtaq case to

depose falsely. Further, in his cross-examination he admitted

that there are 3/4 criminal cases pending against him. Thus,

he has got criminal antecedents. It is evident that PW-1 was

being used by the police to nail the accused and, therefore, a

great deal of suspicion hovers over his testimony. As such, it

would be wholly unsafe to rely on the testimony of PW-1 to

convict the appellants without any independent corroboration.

In this connection, he has placed reliance on the decision of

this Court in Anil Phukan Vs. State of Assam1.

7.2. Learned counsel for the appellant has also cast

aspersions on the FIR contending that though the same was

1 (1993) 3 SCC 282 8

registered on 25.06.1988 around midnight (12:30 PM), it was

forwarded to the concerned magistrate only two days thereafter

on 27.06.1988.

7.3. Referring to the testimony of the investigating

officer PW-17, learned counsel submits that the said witness

admitted in his cross-examination that the motorcycle on

which the deceased was travelling alongwith PW-1 when he was

allegedly attacked by the accused persons was never seized; the

blood soil sample from the place of incident was not collected

by the investigating officer and, therefore, could not be

subjected to forensic examination. He also submits that the

knives and katar allegedly used by the appellants to assault the

deceased and recovered pursuant to confessional statements of

the accused persons were never produced in court. As a matter

of fact, all the witnesses to the alleged recovery of weapons

turned hostile stating that they had put their signature on

being forced by the police.

7.4. Learned counsel also submits that PW-1 in his

evidence stated that appellant No. 2 had inflicted a stab wound

on the stomach of the deceased. But in the postmortem report,

no such injury was found either on the stomach or in the 9

abdominal region. PW-15, the doctor who had conducted the

postmortem examination, deposed in his cross-examination

that the weapons used in the offence i.e. knives and katar were

not shown to him. Further PW-15 stated in his cross-

examination that all the injuries from injury No. 1 to injury No.

8 could well be inflicted by only one weapon as the injuries were

of the same nature. In this connection, reliance has been placed

on the decision of this Court in Narendrasinh Keshubhai Zala

Vs. State of Gujarat2.

7.5. High Court had rightly rejected the evidence of PW-

2, PW-3, PW-4, PW-5 and PW-8 as their depositions did not

inspire the confidence of the court. The aforesaid witnesses

displayed unnatural conduct by not taking the deceased to the

hospital when he was in an injured condition even after the

assailants had left the place of occurrence. They did not rush

to the police station either, though it was so nearby. Such

conduct raises grave doubts about the presence of the aforesaid

witnesses at the time of the incident.

8. Per Contra, learned counsel representing the

respondent State submits that both the trial court as well as

2 2023 SCC OnLine SC 284 10

the High Court had carefully analysed the entire evidence on

record and thereafter convicted the appellants under Sections

302/149 IPC. The impugned conviction and sentence do not

suffer from any legal infirmity to warrant interference under

Article 136 of the Constitution of India.

8.1. Learned counsel submits that PW-1 Faeem is an

eyewitness to the incident. It is he who had lodged the FIR

where he named the appellants as accused. FIR was lodged very

promptly without the slightest delay.

8.2. There is complete consistency between the ocular

evidence of PW-1 and the medical evidence. The ocular evidence

of PW-1 clearly states that the appellants had given knife blows

in the chest and in other parts of the body which were also

indicated in the postmortem report. Such sharp injuries caused

the death of the deceased. The ocular evidence of PW-1 could

not be shaken. He clearly pointed out the role played by the

appellants in the murder of Ahsan Ali.

8.3. PW-15, the doctor who had conducted the

postmortem examination, stated that the postmortem was

conducted promptly. 8 incised wounds were found on the

person of the deceased. The first 3 injuries were found on the 11

abdomen, chest and lungs of the deceased. It has come on

record that the said injuries were caused by sharp edged

weapons.

8.4. In the circumstances, learned counsel for the State

submits that there is no merit in the appeals and accordingly

those are liable to be dismissed.

9. Submissions made by learned counsel for the

parties have received the due consideration of the Court.

10. At the outset, it would be apposite to advert to the

depositions of the material prosecution witnesses.

11. PW-1 is Faeem Ahmed. In his evidence in chief, he

stated that on 25.06.1988 (sic), he and Ahsan had left Bhatghat

at about 10:45 PM and reached the residence of the in-laws of

Ahsan at Nayapura by motorcycle. There Ahsan talked with his

brother-in-law Wahid. Ahsan had parked his motorcycle in

front of the shop of his brother-in-law and was chatting with

his friends who had come over there to meet him. At that time,

the motorcycle of Sattar came there from the direction of the

hospital. He knew the two persons who were sitting on it. They

were Sattar and Wahid who were known to him. The two

persons saw Ahsan and went away in the motorcycle. At that 12

stage, PW-1 told Ahsan that they should go home now by a

different route. However, Ahsan brushed aside such suggestion

and went back through the same route. When they reached

Ghantaghar at about 12:30 AM, Babu, Wahid, Sattar, Shakur,

Aziz @ Patti, Bundu and Latur confronted them. They were

armed with knives and katar. They attacked Ahsan. First blow

by knife was given by Babu in the abdomen of Ahsan; second

blow by knife was inflicted on the left side chest of Ahsan by

Wahid; the third blow was given by Sattar with his katar hitting

the back of Ahsan. Aziz and Shakur chased PW-1 with a knife.

PW-1 ran into the street of Gauri Hotel. After sometime, Aziz

and Shakur stopped looking for PW-1 and went back to the

place of incident where Ahsan was being assaulted.

11.1. According to PW-1, he came running to the police

station and submitted a written report. He knew all the accused

persons and identified them in court.

11.2. In his cross-examination, he stated that he was the

brother-in-law of Ahsan’s elder brother. PW-1 also stated that

he used to work as jeep driver of Ahsan. Besides, he used to

manage all the labour employed by Ahsan in his contract works

since Ahsan was a contractor. PW-1 and Ahsan had stayed in 13

Ahsan’s in-laws’ place for about 20-25 minutes. He denied the

suggestion that the motorcycle in which he and the deceased

were travelling had lost balance and after colliding with a

roadside pole, Ahsan fell down as a result of which they

sustained injuries.

11.3. Elaborating further, he stated that the attack on

him and the deceased started near the shops of Bisayeeti and

Hindu Band, east of Garib Nawaj Hotel. The motorcycle did not

fall over Ahsan because Ahsan was pulled down by the accused

persons. PW-1 stated that he also fell down from the motorcycle

and as he got up, he saw the accused assaulting Ahsan. When

two of the accused persons charged towards him, he ran away.

He saw Ahsan lying on the thade of Shakuntala Chemicals

shop.

11.4. PW-1 denied in his cross-examination that he had

any previous enmity with the accused persons. He went to the

site of the assault with the Assistant Sub Inspector (ASI) who

took the injured Ahsan to the hospital in an auto rikshaw while

asking PW-1 to take the motorcycle to the police station.

11.5. PW-1 stated that he did not raise any alarm while

the accused persons were assaulting Ahsan because they had 14

warned that if anybody raised their voice, they would be killed.

On further cross-examination, PW-1 stated that he knew Ahsan

since his childhood days. He also knew the accused persons for

about 8 to 10 years. The accused persons were having dispute

with Ahsan since 7 days prior to the incident. In fact, Ahsan

had told him that there could be a fight between the accused

persons and him. Therefore, when he saw Wahid on a

motorcycle, he apprehended about the possibility of assault

and accordingly had warned Ahsan. However, he admitted that

neither he nor Ahsan informed the police station about such a

threat.

11.6. On further cross-examination, PW-1 stated that

when the accused persons started assaulting Ahsan, there were

about 100 persons in and around the place. They were accosted

all of a sudden by the accused persons as a result of which

their motorcycle fell down. No one from amongst the crowd

came to rescue them. He defended his fleeing from the scene by

stating that if he had tried to rescue Ahsan, he could also have

been assaulted. He asserted that the first knife blow was given

by accused Babu; the second one by accused Wahid on the

chest; and the third blow by way of katar was given by Sattar.

He stated that he had seen the accused persons assaulting 15

Ahsan but he did not see which parts of the body of Ahsan had

suffered injuries but the three injuries he referred to were

inflicted by Babu, Wahid and Sattar immediately after Ahsan

fell down from the motorcycle. He denied the suggestion that

the public had brought Ahsan to the police station in a thela.

He stated that Ahsan was taken to the hospital in an injured

condition by the ASI. He admitted that he was presented as a

witness in a case against Aziz @ Patti where he deposed in

favour of the informant Babar Mushtaq. He denied the

suggestion that police used to present him as a false witness in

criminal cases. He admitted that there were 3/4 cases pending

against him.

11.7. PW-1 reiterated that Babu had injured Ahsan first

by knife injury which was followed by Wahid. Babu had stabbed

Ahsan in his abdomen due to which Ahsan fell on the ground

from the motorcycle.

12. PW-4 is Wahid who described himself as the

brother-in-law of Ahsan. In his evidence-in-chief, he stated that

Ahsan alongwith Faeem had come to his house in the night at

about 11:00 to 11:15 PM. He talked with his jijajee (Ahsan)

whereafter he (Ahsan) went back. Thereafter, he and his brother 16

Jameel went to Ghantaghar by a motorcycle to have tea and paan

masala. While at Ghantaghar, they heard the sound of an

approaching motorcycle which was being driven by Ahsan with

Faeem sitting behind. It was about 12:00 to 12:15 hours. All of

a sudden, he heard the voice of 8 to 9 persons shouting gher lo.

He mentioned their names as Babu, Wahid, Sattar, Jaffar, Latur,

Bundu and Aziz @ Patti. He also stated that there was one more

person whom he identified in court as Shakur. According to him,

first knife blow was given on the chest of Ahsan by Babu; second

one on the chest by Wahid; Sattar gave blow of katar on the back

of Ahsan whereafter they charged towards Faeem, who ran

towards the street of Gauri Hotel. After sometime, they

abandoned the chase, came back and started assaulting Ahsan

again. They shouted that if ‘anybody comes forward, he will be

killed’. PW-4 stated that it was for this reason, he hid himself.

Thereafter, he came home to inform other relatives. From there,

he came to the hospital but in the meanwhile, Ahsan had died.

12.1. In his cross-examination, PW-4 stated that Abdul

Jameel (PW-3) was the son of his uncle. Ahsan and Faeem were

at his house for about 2 to 5 minutes whereafter they went back.

They were discussing about domestic issues. PW-4 stated that

he had gone to Ghantaghar 10 to 15 minutes after Ahsan had 17

departed. Though he went by a bike, he stated that the bike was

not his but that of a customer whose name he did not remember.

PW-4 stated that Makbara Police Station was at a distance of

100-180 steps from the place of occurrence. He did not

accompany Faeem to the police station even when the accused

persons had left the place of occurrence. He stated that Ahsan’s

wife Masoom was his sister but could not tell since how long

before the incident she was staying in her sasural. However, he

stated that she was not in his house.

12.2. On further cross-examination, he stated that he had

gone to Makbara Police Station two to three days after the

incident to submit a written report to the Station House Officer

of the said police station. PW-4 stated that the first knife blow

was inflicted on Ahsan while he was still on the motorcycle.

Ahsan fell down wobbling and the motorcycle also fell down. At

that time, there was a big crowd. Though people were standing

nearby, none came near Ahsan when he fell down from the

motorcycle. Nobody tried to save him.

12.3. PW-4 further stated that he and Jameel (PW-3)

remained standing near the paan shop without raising any alarm

till the fight with Ahsan was over. Since he was nervous, he did 18

not go to see Ahsan as he was lying on the road. About 100 to

150 persons were present but none came to rescue Ahsan.

12.4. PW-4 deposed that after Ahsan and Faeem left his

residence, he went to the residence of Jameel who was playing

carom. On finishing the game of carom, Jameel and PW-4 came

back to the residence of PW-4 where the motorcycle was kept.

PW-4 and Jameel rode the said motorcycle to Ghantaghar. He

admitted that when he and Jameel reached Ghantaghar, they

saw a crowd of 100 to 150 persons saying that a man had been

killed. He and Jameel did not try to take Ahsan to the hospital.

12.5. On further cross-examination, PW-4 stated that he

had not seen any type of maarpeet. At that stage, PW-4 was

declared a hostile witness. He denied making any statement

before the police and denied seeing any incident.

13. That bring us to the deposition of PW-3 Abdul

Jameel. In his examination-in-chief, he stated that he had gone

by a motorcycle alongwith PW-4 to Ghantaghar to have tea and

paan. He also narrated the initial statement of PW-4 regarding

infliction of knife and katar injuries on the person of the

deceased by Babu, Wahid and Sattar. In cross-examination, he

stated that he neither rescued Ahsan nor went to the police

station to lodge report. He also did not go to the hospital. Later 19

on, he was declared as a hostile witness since he resiled from his

previous statement.

14. Though a number of other witnesses including

seizure witnesses testified before the court, many of them were

declared as hostile. Otherwise also nothing tangible is

discernible from their evidence. Therefore, it is not necessary to

advert to and make an analysis of the evidence of all the

witnesses. However it would be relevant to deal with the

evidence tendered by PW-15 Dr. C.M. Srivastava, the medical

officer who had conducted the post-mortem examination on the

dead body of the deceased, PW-17 Sh. Surendra Vyas, who was

the Station House Officer of the concerned police station at the

relevant time, and PW-20, Prem Prakash Tank, the

investigating officer.

15. PW-15 stated that he had conducted the post-

mortem examination on the person of the deceased on

25.06.1988 at about 09:30 AM. He opined that the deceased

had died within 24 hours before commencement of the post-

mortem examination. He found the following 8 injuries on the

dead body:

(i) Incised wound measuring 11/2 x 1/2 x 1/2 x transversely right chest lower aspect;

20

(ii) Incised wound 1 x 1/4 x 1/8 oblique 1/2 above mid sternum;

(iii) Stab wound left mid subclavicular size 2 x 1 x 2 x deep cavity;

(iv) Incised wound 3 x 2 ½ x ½ left subcostal region obliquely;

(v) Obliquely stab wound 2 x ½ x deep left mid (torn) mammry and nipple oblique;

(vi) Stab wound 3 x 1/2 x 1/2 oblique and injury region (torn);

(vii) Incised wound with abrasion of nasal bone; and

(viii) Incised wound 1/2 lateral to left angel of lip 1 x 1/2 (illegible) obliquely.

15.1. PW-15 stated that the cause of death was on

account of excessive bleeding. According to him, death was due

to haemorrhage shock as a result of multiple stab wounds over

the body. He proved the post-mortem examination report dated

25.06.1988 (Exhibit P-14).

15.2. In his cross-examination, PW-15 stated that he did

not know the deceased whose post-mortem he had conducted.

He also did not know the three persons who had identified the

deceased. He did not know how the deceased was brought to the 21

hospital and that he found the body in the mortuary. He stated

that if the weapons were shown to him, he could say whether

injury Nos. 1 to 8 were caused by those weapons or not. Injury

Nos. 1 to 8 were incised/cut wounds and were of the same

nature. Therefore, this could have been caused by the same

weapon.

15.3 In so far injury No. 1 is concerned, it was only half

inch deep but had damaged the cavity. Injury No. 2 was sternum

deep but had not damaged any organ. Injury No. 3 was inflicted

on the shoulder and had damaged the upper part of the left lung.

No damage was caused by injury No. 4. Injury No. 5 was above

the left nipple and had injured the left membrane (left cardium).

He could not say about the impact of injury No. 6 as that part of

the medical report in the file was torn. Injury No. 7 was described

as a superficial injury which could be caused with some sharp-

edged weapon if two persons armed with sharp-edged weapons

were fighting. Injury No. 8 was also described as a superficial

injury. On further query, PW-15 stated that nature of injury Nos.

1 to 3 were such that if a person received immediate medical

treatment then he could be saved.

22

16. PW-17 Sh. Surendra Vyas was the Station House

Officer of the police station at the relevant point of time. He

acknowledged that PW-1 had lodged written information

(Exhibit P-1) on the basis whereof FIR No. 48/98 was registered

under Sections 302/147/148/149 IPC. As the informant stated

that the injured Ahsan was lying at the site of the incident, he

had sent Ram Prasad, Assistant Sub Inspector(ASI) alongwith

a team of policemen to the place of occurrence. When he

received further information that Ahsan was lying injured, he

went to the spot himself and took the injured to the hospital

while leaving a constable to guard the crime scene. At about

01:30 AM, he received information from the hospital that the

injured Ahsan had died. He had prepared the panchnama and

had handed over the dead body to the family after the post-

mortem examination was conducted.

16.1. He stated that he had recorded the statements of

witnesses and thereafter had arrested Bundu, Latur and Abdul

Gafoor. On the basis of the information given by Bundu, he

recovered a knife vide the seizure memo (Exhibit P-28). In the

same manner, on the basis of information given by the accused

Latur, he had recovered a knife vide Exhibit P-9. Similarly, a

knife (Exhibit P-28) was recovered on the basis of information 23

furnished by accused Abdul Shakur. He also stated that as per

information furnished by accused Abdul Shakur before PW-20,

a team of policemen had gone to Bombay and recovered the

katar (sword) vide Exhibit P-29. Clothes of the deceased were

seized and thereafter sent for forensic examination alongwith

the seized weapons.

16.2. He stated that accused Abdul Sattar, Abdul

Wahid, Aziz, Babu, Raees alias Bundu, Latur and Abdul

Shakur were history-sheeters, being habitual offenders.

16.3. PW-17 stated that when he reached the MBS

Hospital in the morning at around 07:00 AM, the body of Ahsan

was already moved to the mortuary by the police. He inspected

the crime scene at around 11:00 AM on 25.06.1988 and drew up

the site map. During investigation, the arrested accused Bundu

voluntarily informed him that he had concealed the knife behind

a stone in his house. On the basis of such disclosure, PW-17

went to the house of Bundu alongwith the said accused. There,

accused Bundu produced a fish-shaped knife which was

thereafter seized. Similarly, the arrested accused Latur

voluntarily informed PW-17 that he had concealed a knife under

one of the beds in his house. As per his disclosure, PW-17 took 24

the said accused to the house where he produced a knife from

under one of the beds which was thereafter seized. Likewise, the

arrested accused Abdul Shakur had voluntarily informed PW-17

that he had kept a knife on the slope of the house of his father-

in-law Abdul Salam. As per his disclosure, PW-17 went to the

house of the father-in-law alongwith the said accused where he

produced a fish-shaped knife from the slope of the house which

was thereafter seized. No blood stains on the handle and edge of

the knife were found. Similar statements were made relating to

seizure of other knives and the katar.

16.4. In his cross-examination, he has stated that Prem

Prakash Tank (PW-20) had interrogated accused Abdul Sattar.

The recovery of the knife at the instance of Abdul Sattar was not

done in his presence. He stated that the Deputy Superintendent

of Police had ordered him and, therefore, he had gone to Bombay

for recovery of the katar. He did not take the witnesses of Bombay

while he went for recovery of the weapon. The same was

recovered from an open place where anybody could come and go.

16.5. In so far the house of Abdul Samad is concerned, he

stated that when he had reached his house, the same was open

though he did not find any person inside. He had entered the

house alongwith the accused and his staff. They were 25

accompanied by the witnesses also. The knife was kept on the

slab and did not have any blood stains. Likewise, he stated that

when he went to the house of Bundu for recovery, the house was

found open and inside family members were present. The knife

was recovered from an open space. Anyone could come and go

from that place. He did not find any blood stains on that knife

also. When he went to the house of Latur, it was found unlocked

and his family members were present. One knife was produced

after taking out the same from under the bedding. No blood

marks were visible on this knife either.

16.6. PW-17 stated that on the night of the incident when

he went to the scene of crime, Ahsan was lying on the ground

but he did not remember as to whether the motorcycle was lying

nearby. However, he clarified that he could tell about the

motorcycle only after seeing the site map. After seeing the site

map, he stated that no motorcycle was there. He also stated that

as per the version of PW-1, both he and Ahsan were coming on

a motorcycle which was being driven by Ahsan. When he was

given knife blows, Ahsan fell down with the motorcycle

whereafter PW-1 came to lodge the report. PW-17 admitted that

he did not seize the motorcycle as he did not consider it

appropriate to seize it. On an inspection of the motorcycle, he 26

stated that the front wheel, petrol tank and seat of the motorcycle

were not stained with blood. He also stated that the place of

incident remains crowded till 01:30 AM in the night. Walking

distance of Makbara Police Station from the place of incident was

five minutes being 300 to 400 steps. He denied the suggestion

that when he had reached the place of incident, a crowd of 200

to 300 people had surrounded Ahsan, clarifying that by the time

he had reached the spot, no was seen on the spot though there

were shops on both sides of the place of the incident. When he

reached the spot, Gauri Hotel and Apsara Hotel were closed and

there was pervading silence. He also admitted in cross-

examination that on the night of the incident except the

statement of the complainant, he did not record any other

statement which were recorded later on subsequent dates.

17. PW-20, the investigating officer Prem Prakash

Tank, stated in his evidence that he had arrested accused

Babu, Sattar and Wahid and recovered knives (Exhibits P-28

and P-29) on the basis of information given by accused Babu

and Wahid. According to him also the accused persons were all

history-sheeters and, therefore, were well-known to the police.

17.1. PW-20 Prem Prakash Tank stated that accused

Wahid had voluntarily given him information under Section 27 27

of the Indian Evidence Act, 1872 (‘Evidence Act’ hereinafter) that

he had concealed one knife in a hotel in Alot. Similarly, accused

Babu had given PW-20 information regarding concealment of one

knife amidst household goods under the fireplace inside the

room at the lower floor of his house. Likewise, accused Abdul

Sattar informed him that he had concealed one dagger under the

stones behind the Haji Ali Baba Mazar in Bombay.

17.2. In his cross-examination, PW-20 stated that the

FIR was lodged within ten minutes of the occurrence. When he

had reached the place of occurrence, he did not see anybody

present there.

17.3. PW-20 further stated that the knife which was

recovered from the house of Babu was not produced before the

court. He also admitted that except the claim of Babu that the

knife was hidden in the house belonging to him, he did not verify

about the ownership of the house. He also stated that the place

of incident was at a distance of about 200 metres from the

Makbara Police Station.

18. Let us now briefly analyse the evidence of the

prosecution witnesses as alluded to hereinabove. Coming first to

the evidence of PW-1, his conduct appears to be highly unusual.

When the police station was only 200 meters away from the place 28

of crime, instead of rushing to the police station to save himself

and also to inform the police about the assault on Ahsan, he goes

into the lane of Gauri Hotel and hid himself there. He did not

raise any alarm either. PW-1 contradicted himself by first saying

that Ahsan was injured by the knife blows before he fell down

from the motorcycle but in the same breath, he goes on to say

that Ahsan was stabbed after he fell down. He also deposed that

there were about 100 people in and around the crime scene but

none came to the rescue of Ahsan which is also quite unusual.

Besides being entangled in several criminal cases, it has also

come on record that he is a stock witness of the police to depose

in favour of the police in other cases including in a case where

one of the present accused persons Aziz @ Patti was an accused.

Evidence of such a witness without further corroboration cannot

form the basis to convict an accused.

19. Insofar PW-4 is concerned, his evidence is mired in

inconsistencies. He says that he and his brother Jameel came by

a motorcycle to Ghantaghar to have tea and paan masala after

Ahsan and Faeem had left. It is, therefore, not at all believable

when he says that while he and Jameel were at Ghantaghar they

heard the sound of an approaching motorcycle being driven by

Ahsan with Faeem sitting behind. If PW-4 and Jameel (PW-3) had 29

left for Ghantaghar after Ahsan had departed, it is inconceivable

that PW-4 and Jameel (PW-3) would reach Ghantaghar before

Ahsan. Infact he stated that after Ahsan had left, he went to the

house of Jameel to pick him up, then came back home

whereafter they both came by motorcycle. In the process they left

for Ghantaghar 10 to 15 minutes after Ahsan had left. While he

identified the accused with the blows, he stated that he hid

himself out of fear though in front of his eyes his brother-in-law

was being brutally assaulted. In his cross-examination, he stated

that he went to the police station two to three days after the

incident to submit a written report. Conduct of PW-4 is

surprising to say the least. Firstly, he does not make any attempt

either to raise an alarm or to rescue his brother-in-law while he

was being assaulted. Secondly, even after the assailants had left

the place, he did not go to the police station or carry his injured

brother-in-law to the hospital. Instead, he goes home saying that

he wanted to inform the other family members. It has also come

on record that his sister Masoom was the wife of Ahsan and that

she was staying in her sasural but for how long she was staying,

he could not remember. Though he stated that he and Ahsan

had discussed domestic issues, he did not elaborate what

domestic issues they discussed. In his further cross-examination 30

he completely contradicted himself by saying that when he and

Jameel (PW-3) had reached Ghantaghar, they saw a crowd of 100

to 150 people saying that a man (Ahsan) had been killed.

20. Insofar the investigation is concerned, the same is

marred by glaring inadequacies striking at the root of the

prosecution case. Firstly, from the evidence of PW-17 and PW-

20, it is evident that the motorcycle which was being driven by

Ahsan when he was assaulted was not seized. PW-17 has stated

in his evidence that he did not see any bloodstain on the front

wheel, petrol tank and seat of the motorcycle. PW-15, the doctor

who had conducted the post-mortem examination on the dead

body of the deceased, deposed that Ahsan died because of

profuse bleeding. If that be so, certainly there would have been

blood stains on the said motorcycle. To make matters worse, PW-

17 in his cross-examination stated after looking at the site map

that there was no motorcycle at the place where Ahsan was lying

injured. Besides, the investigating officer ought to have collected

sample of blood soil and sent the same for forensic examination

which would have proved whether the said blood matched the

blood of the deceased. But this was not done.

21. Though PW-17 and PW-20 stated about the recovery

of the weapons on the basis of information given by the accused 31

persons, the manner in which the recoveries were made and the

circumstances surrounding the recoveries made the recoveries

highly suspect. That apart, the alleged recoveries were made

after several days of the incident and no bloodstains etc. were

found on the weapons. PW-15, the doctor who had conducted

the post-mortem examination, deposed in his evidence that the

seized weapons were not shown to him. As a matter of fact, the

knives etc. were also not produced in court. Besides, all the

seizure witnesses turned hostile. Therefore, Section 27 of the

Evidence Act cannot come to the aid of the prosecution.

Moreover, the clothes of the accused were not seized and sent for

forensic examination to find out whether there were any

bloodstains. Such examination would have revealed whether

there were any bloodstains on the clothes; whether those

bloodstains were of human blood; and whether those matched

the blood of the deceased.

22. It has also come on record that while according to

PW Nos.1, 3 and 4 there were about 100 to 150 people at the

crime scene, when PW-17 went to the place of occurrence

immediately after lodging of FIR, he did not find anyone there.

That apart it is quite unnatural that the policemen in the police

station did not hear any noise when such a gruesome assault 32

had taken place only about 300 to 400 steps away from the police

station. Certainly, Ahsan would have screamed on being so

brutally assaulted. In fact, it has come on record that the

accused persons had yelled warning the crowd not to interfere.

It is therefore quite inconceivable that the inmates of the police

station would not have heard the commotion from so near a

place. If there were indeed 100 to 150 people present, they would

not have remained a mute spectator to such a gruesome assault.

But this narrative of there being a crowd at the crime scene has

been proved false through the evidence of PW-17 and PW-20 who

deposed that when they reached the crime scene minutes after

the incident after lodging of FIR, they did not find anybody there

and that there was all pervading silence.

23. Another significant material inconsistency has

come to light from an analysis of the evidence of PW-1 and PW-

17. According to PW-1, it was the ASI who had taken the

injured Ahsan to the hospital in an auto rikshaw. It is very

unusual that PW-1 did not accompany the injured Ahsan to the

hospital. Instead, he said that he was asked by the ASI to take

the motorcycle to the police station. This is also not at all

believable because if at all the motorcycle was required to be

taken to the police station for investigation, it would have been 33

taken by policemen and not by PW-1. On the other hand, PW-

17 in his evidence stated that he had sent ASI Ram Prasad

alongwith a team of policemen to the place of occurrence on

receipt of the FIR. When he received further information that

Ahsan was lying injured, he went to the spot himself and took

the injured to the hospital leaving a constable behind to guard

the crime scene. Where did PW-1 go? PW-17 did not say that

PW-1 accompanied him to the hospital; neither did PW-1 say

so. Such glaring inconsistency clearly impeached the very

credibility of PW-1 and has cast a deep shadow over the

prosecution case.

24. There is no doubt that the death of Ahsan is

homicidal. Medical evidence has also confirmed multiple stab

injuries on his body leading to profuse bleeding and death.

According to the prosecution, it is the accused who had

committed murder of Ahsan. Therefore, it is for the prosecution

to connect the accused to the murder of the deceased by

producing credible and legally admissible evidence. However, as

we have seen, there is no credible evidence at all to connect the

accused persons with the homicidal death of Ahsan. In such

circumstances, the appellants are entitled to the benefit of

doubt.

34

25. Consequently, we allow the two appeals by setting

aside the impugned judgment of the High Court dated

26.08.2011 and of the trial court dated 10.03.2003. Conviction

and sentence of the appellants are accordingly set aside.

26. Since the appellants are on bail, their bail bonds are

discharged.

……………………………J. [PANKAJ MITHAL]

……………………………J. [UJJAL BHUYAN]

NEW DELHI;

FEBRUARY 28, 2025.