Trial Court & High Court were expected to exercise greater degree of caution while directing accused to be hanged till death, says SC while acquitting three accused upon failure of prosecution to prove motive for crime

Read Judgment: Jaikam Khan vs. State of Uttar Pradesh

PankaJ Bajpai

New Delhi, December 17, 2021: The Supreme Court has  opined that the Trial court and the High Court are expected to exercise a greater degree of scrutiny, care and circumspection while directing the accused to be hanged till death. 

A Larger Bench of Justice L. Nageswara Rao, Justice B.V Nagarathna and Justice B.R. Gavai observed that in case of direct evidence and the ocular testimony of the eyewitness being found to be trustworthy, reliable and cogent, it will not be necessary for the prosecution to prove the motive for the crime.

However, the testimony of the eyewitnesses could not be said to be wholly reliable, the motive aspect would be a relevant factor, added the Bench.  

The background of the case is that, Jaikam Khan (Appellant – third accused) is a cousin of Momin Khan (first accused), whereas Sajid Khan (third accused) is his son. Owing to a property dispute between them, Momin Khan was accused of murdering his parents, brother and other relatives, and accordingly, all the three accused were sentenced to death by the Trial Court. On appeal, the High Court confirmed the death sentence. However, the death sentence awarded to the wife of Momin Khan was removed by the High Court. 

Challenging the conviction and death sentence, the counsel for the appellant urged that the entire case is based on the ocular testimony of interested witnesses. It was further contended that the recovery of clothes and weapon is totally farcical and the evidence of related witnesses will have to be scrutinized with greater care and circumspection. It was also pleaded that order of conviction on sole testimony in absence of any corroboration, is not justified. 

After considering the submissions and evidences, the Larger Bench opined that 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 scrutinized 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, added the Bench. 

“As per the testimonies of P.W.1Ali Sher Khan and P.W.2Jaan Mohammad, 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. According to these witnesses, Shanno Begam was assaulted upstairs. If the version of these two witnesses is compared with the siteplans, then the position that emerges would reveal that P.W.1Ali Sher Khan, at the most, could have witnessed the assault on deceased Shaukeen Khan, whereas P.W.2Jaan Mohammad could have witnessed the assault on deceased Mausam Khan and deceased Shaukeen Khan. However, since from the perusal of the first siteplan (Exhibit Ka51), it could be seen that the deadbodies of deceased Muskan, Samad, and Asgari were inside the house, and the deadbody 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.9Brahmesh Kumar Yadav in his cross examination has admitted that P.W.1Ali Sher Khan and P.W.2Jaan Mohammad had not told him about their hideouts and that is why it was not mentioned in the site plan”, observed the Bench. 

The Larger Bench is therefore of the view that these two witnesses cannot be considered to be wholly reliable to base an order of conviction solely on their testimonies. 

The Top Court found that according to the prosecution witnesses, a large number of villagers 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, added the Court. 

Speaking for the Bench, Justice Gavai is at pain to observe the manner in which the present case has been dealt with by the trial court as well as by the High Court, particularly, when the trial court awarded death penalty to the accused and the High Court confirmed it. 

Hence, the Apex Court allowed the appeal and directed Momin Khan, Jaikam Khan and Sajid Khan to be released forthwith, if not required in any other offence.