SAKHAWAT AND ANR.versusSTATE OF UTTAR PRADESH

                  [2025] 7 S.C.R. 139 : 2025 INSC 777

                            Sakhawat and Anr.
                                      v.
                           State of Uttar Pradesh
                     (Criminal Appeal No. 4571 of 2024)
                                   23 May 2025
           [Abhay S. Oka* and Augustine George Masih, JJ.]


                             Issue for Consideration
       Matter pertains to the correctness of the order passed by the High
       Court upholding the conviction of the appellants under various
       sections of Penal Code, 1860, when the prosecution failed to
       conduct fair investigation and had suppressed affidavits of the
       eyewitnesses.

                                    Headnotes†
       Penal Code, 1860 – ss.34, 302, 307 – Murder – Failure to carry
       fair investigation – Appellants-accused convicted for murder
       of deceased and sentenced to life imprisonment whereas
       acquittal of accused no.1 – Bail applications by appellants –
       Sessions court relied on the affidavits of two eye-witnesses
       and granted bail – High Court upheld the order of the trial
       court – Correctness:
       Held: Three out of four eyewitnesses admittedly filed the affidavits
       during the bail hearing of the accused, stating that the accused not
       involved – Investigating Officer did not controvert the affidavits by
       filing a counter-affidavit, though time was granted to him – Thus,
       by failing to carry out further investigation on the basis of affidavits,
       the prosecution failed to carry out a fair investigation – Moreover,
       prosecution tried to suppress the affidavits – Serious doubt
       created about the truthfulness of the versions of three prosecution
       witnesses-eye witnesses before the Court – As the prosecution
       did not conduct a fair investigation and suppressed important
       material in the form of affidavits of the prosecution witnesses-eye
       witnesses, unsafe to convict the appellants only on the basis of the
       testimony of the informant – Failure to conduct further investigation



* Author
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       based on the affidavits goes to the root of the matter – Failure
       to recover the weapons of offence also relevant – Failure on the
       part of the High Court and the Session Court to consider the
       cross-examination of Investigating Officer and the suppression of
       the affidavits by the prosecution – High Court overlooked these
       highly relevant aspects – Thus, the impugned judgment set aside
       and the appellants acquitted of the offences alleged against them.
       [Paras 20-24, 26]
       Practice and procedure – Record of trial court not to be referred
       as “lower court record” – Reiteration of the direction issued
       by this Court – Describing any Court as a “Lower Court”
       against the ethos of our Constitution – High Courts to take
       note of the said direction and act upon the same. [Para 25]

                                  List of Acts
       Constitution of India; Penal Code, 1860.

                               List of Keywords
       Murder; Life imprisonment; Injured witness; Material prosecution
       witnesses; Fair trial; Affidavits in favour of accused; Supplementary
       statements of witnesses; Counter-affidavit; Failure to carry out
       fair investigation; Suppression of important material; Failure to
       recover weapons; Lower court; Lower court record; Ethos of
       Constitution.

                              Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       4571 of 2024
       From the Judgment and Order dated 09.10.2018 of the High Court
       of Judicature at Allahabad in CRLA No. 2670 of 1982

                           Appearances for Parties
       Advs. for the Appellant:
       Manoj Prasad, Sr. Adv., Vikrant Singh Bais.
       Advs. for the Respondents:
       K Parameshwar, Sr. A.A.G., Sudeep Kumar, Ms. Kanti,
       Ms. Manisha, Ms. Rupali.
[2025] 7 S.C.R.                                                           141

               Sakhawat and Anr. v. State of Uttar Pradesh


                Judgment / Order of the Supreme Court

                                 Judgment

     Abhay S. Oka, J.

     FACTUAL BACKGROUND

1.   This appeal has been filed against the judgment dated 9th October,
     2018 of the High Court of Allahabad. The impugned judgment
     upheld the conviction of the appellant nos. 1 and 2 for the offences
     punishable under Section 302 and Section 307 read with Section 34
     of the Indian Penal Code, 1860 (for short, ‘the IPC’). Both of them
     were sentenced to suffer life imprisonment.
2.   First Information Report (for short, ‘the FIR’) dated 5th May, 1981 was
     registered against the accused no. 1 (Abrar), appellant no. 1/accused
     no. 2 (Sakhawat) and appellant no. 2/accused no. 3 (Mehndi) for the
     aforementioned offences. The case of the prosecution is that PW-4
     (Amir Hussain) was sleeping under a Babool tree, and the deceased
     (Sukha) was sleeping in his hut. On the intervening night of 4th/5th
     May, 1981, PW-4 (Amir Hussain) woke up at 2 a.m. to the sound of
     a firearm being shot. PW-5 (Allah Baksh) and PW-6 (Mohd. Hanif)
     also arrived at the scene where they heard a voice from the hut of
     the deceased (Sukha) and a firearm shot. They saw appellant no. 1
     armed with a country-made pistol, appellant no. 2 armed with a knife,
     and accused no. 1 armed with a danda. The accused allegedly had
     a scuffle with the deceased and PW-7 (Nanhi), who were allegedly
     in an illicit relationship. Appellant no. 2 inflicted an injury to the neck
     of PW-7 using his knife. The accused fled and the deceased was
     found trembling on account of injuries near his hut, and eventually
     succumbed to the injuries.
3.   On 16th October 1982, the Trial Court convicted appellant no. 1
     and appellant no. 2 for the offences alleged against them, and a
     sentence of life imprisonment was imposed. The Trial Court acquitted
     the accused no. 1 as he had only held a danda and no injury marks
     were found on the deceased or PW-7 that were made using a danda.
4.   The present appellants are accused nos. 2 and 3. They had preferred
     an appeal before the High Court. By the impugned judgment, the
     High Court confirmed the judgment of the Trial Court.
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5.     The prosecution has examined 10 witnesses to prove their case.
       PW-1 (Dr. R. M. Bhardwaj) is the doctor who conducted the
       autopsy of the deceased, PW-2 (Dr. K. Chandra) is the doctor who
       examined the injuries of PW-7, and PW-3 (Dr. Pratibha Gupta) is
       the gynaecologist who examined PW-7. PW-4 (Amir Hussain) is the
       informant/complainant who has been examined as an eye witness to
       the offence. He was sleeping just a few steps away when he heard
       noises and rushed to the scene of the crime. PW-5 (Allah Baksh)
       and PW-6 (Mohd. Hanif) have been examined as eye-witnesses
       and arrived at the crime scene on hearing a gunshot. PW-7 is an
       injured witness who was allegedly in an illicit relationship with the
       deceased and was declared hostile when she claimed that PW-4
       and accused no. 1 shot the deceased and wounded her. PW-8 (Raj
       Bahadur Singh) is the constable who accompanied the dead body
       for autopsy. PW-9 (Noora) was acquainted with both the deceased
       and PW-7 and deposed on the existence of a relationship between
       the deceased and PW-7. PW-10 (Harpal Singh) is the Investigating
       Officer who initiated the inquest proceedings, drew a site map, made
       seizures and recorded statements of witnesses.

       SUBMISSIONS
6.     Learned senior counsel appearing for the appellants has taken us
       through the evidence of the prosecution witnesses. He submitted
       that both PW-5 (Allah Baksh) and PW-6 (Mohd. Hanif) had sworn
       affidavits at the time of consideration of bail applications of the
       appellants. Those affidavits were in favour of the accused. Though
       both the witnesses during their cross-examination have denied having
       filed such affidavits, the defence witnesses have proved the fact that
       such affidavits were filed. He pointed out that PW-5 stated that he
       had gone to the police station along with PW-4 and was detained
       at the police station. However, PW-6, son of PW-5, says that PW-5
       had not gone to the police station.
7.     Learned senior counsel submitted that there was no material on
       record to show that the deceased and PW-7 were maintaining an illicit
       relationship. He submitted that evidence of PW-7 shows that PW-4
       and one Abrar are the real culprits. They have falsely implicated the
       brothers of PW-7. He pointed out that although the incident occurred
       at 2:00 am on 5th May 1981, the FIR was lodged only at 6:30 am.
       Inquest of the dead body of deceased was done at 11:30 am. The
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               Sakhawat and Anr. v. State of Uttar Pradesh


     postmortem was conducted at 03:40 pm. He submitted that this
     delay creates a doubt about the veracity of the prosecution’s case.
     He submitted that the recovery of articles (weapons of offence) was
     not proved. Even the Forensic Science Laboratory Report (for short,
     the FSL Report) is not placed on record. He submitted that there
     are contradictions in the versions of PW-5 and PW-6, which make
     the evidence vulnerable.
8.   Learned senior counsel appearing for the State pointed out that the
     evidence of PW-5 and PW-6, which clearly ascribes roles to the
     appellants, has gone unchallenged as there was neither any material
     contradiction nor any omission brought on record. He submitted that
     even evidence of PW-4 is reliable and deserves acceptance. He
     pointed out that PW-7 turned hostile and therefore, her evidence
     will have to be kept out of consideration. He also pointed out that
     there are concurrent findings of fact by both the Trial Court and
     the High Court. By relying on the testimonies of PW-4, PW-5, and
     PW-6, and in the absence of any perversity in the findings of the
     Trial Court and the High Court, there is no reason to interfere with
     the impugned judgments.

     CONSIDERATION
9.   We have carefully perused the evidence of the material prosecution
     witnesses. PW-4 is the first informant. He stated that he knew the
     appellants. He stated that accused no. 1 and the appellants were
     present in the Court. He stated that accused no. 1 and appellant
     no. 1 were real brothers, and appellant no. 3 was their cousin. He
     pointed out that the appellant no. 1 and accused no. 1 were the
     brothers of the injured witness, PW-7. He stated that the deceased
     had an illicit relationship with PW-7. He stated that he was doing
     joint farming with the deceased. He described the incident that took
     place at 2:00 a.m. He stated that the deceased was sleeping in his
     hut, and he was sleeping under a Babool tree. When he heard the
     sound of a gunshot, he opened his eyes and found that PW-5 and
     PW-6 had come there. He heard a voice from inside the hut saying,
     “Brother, you have done this wrong”. Thereafter, another gunshot
     was heard. He stated that he switched on a torchlight and looked
     towards the hut. He saw appellant no.1 with a country-made pistol
     in his hand. Appellant no. 2 had a knife in his hand, and accused
     no. 1 had a danda in his hand. They were clinging to PW-7. When
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       the witness raised an alarm, all three accused ran away. He stated
       that PW-7 had a bullet wound on her stomach and a knife wound
       on her back. He stated that the deceased had already died. In
       the cross-examination, he stated that he did not see the illicit
       relationship between the deceased and PW-7. He stated that this
       was a common discussion in the village. On the second sound of
       firing, while answering the question in the cross-examination about
       who fired the gunshot and at whom, PW-4 stated that he had only
       heard the sound of the second gunshot. He denied the suggestion
       that the police came to the village between 10:00 am and 11:00 am
       and arrested him. He also denied the suggestion that the police had
       kept him in custody till the next day.
10. Now, we come to the evidence of PW-5. He identified the three
    accused before the Court. He stated that at 2:00 am, he was sleeping
    in his hut along with PW-6 (Mohd. Hanif). He was awakened by the
    sound of a firearm. He went near the hut of the deceased (Sukha)
    with a three-cell torch, when he saw that accused no. 1, appellant
    no. 1 and appellant no. 2 were clinging to PW-7, who was telling
    them, “Brother, you had done wrong”. Thereafter, the second sound
    of fire came. Then the three accused fled. He stated that appellant
    no. 1 was carrying a country-made pistol and appellant no. 2 was
    carrying a knife. In the cross-examination, he was confronted with
    the affidavit marked as ‘A’ by giving a suggestion that this affidavit
    was verified by him at the time when an application for bail of the
    appellants was considered. Witness denied having executed any
    such affidavit. He reiterated that he did not submit any affidavit.
    However, he has not been confronted with the specific parts of the
    affidavit during his cross-examination. He stated that he went to the
    police station at 8:00 am and was there until 8:00 am the next day.
    He stated that the Sub-Inspector left the police station after recording
    the report and directed that the witness should not be allowed to go.
    He stated that his son, PW-6 (Mohd. Hanif), did not visit the police
    station. The statement of PW-5 that the appellants were present with
    a country-made revolver and a knife, and were clinging to PW-7, has
    also not been challenged in the cross-examination at all.
11. Now, we come to the evidence of PW-6 (Mohd. Hanif). He stated that
    at 02:00 am on the date of the incident, he was sleeping at home
    with his father, PW-5. His eyes opened after hearing a sound of
    firing. Thereafter, he, along with PW-5 (Allah Baksh), went towards
[2025] 7 S.C.R.                                                         145

               Sakhawat and Anr. v. State of Uttar Pradesh


     the hut of the deceased (Sukha). He stated that PW-4, who was
     sleeping under a babool tree, also woke up. He heard a voice
     saying, “Brother, I am telling the truth and will tell everyone that you
     have done wrong”. Then they heard one more gunshot. He stated
     that PW-4 and PW-5 were carrying a torch, and in the light of the
     torch, they saw the three accused clinging to PW-7. He also stated
     that appellant no. 1 was having a country-made pistol in his hand
     and appellant no.2 had a knife in his hand. When they shouted and
     ran towards the accused, all three accused fled away. PW-6 was
     confronted, in cross-examination, by showing an affidavit marked as
     ‘B’. He denied having submitted any such affidavit. On the presence
     of appellants with a country-made gun and a knife, respectively, there
     was no serious cross-examination. Thus, his version about hearing
     two gunshots, the accused clinging to PW-7, and the accused carrying
     weapons has gone unchallenged.
12. As regards the injury to PW-7, PW-2 (Dr. K. Chandra), a Medical
    Officer who examined PW-7, stated that there were multiple gunshot
    wounds. There was an incise wound of 6cm X 2cm, which was muscle
    deep on the front and left side of the neck. Four abrasions were
    found. He stated that the incised wound could have been caused
    by a knife. There is hardly any cross-examination on this aspect.
13. PW-1 (Dr. R. M. Bhardwaj), a Senior Radiologist who had examined
    the body of the deceased, stated that a firearm wound having a size
    of 3cm x 2cm, which was in the chest cavity, deep in front of the left
    side chest, just below the left nipple, was seen. He stated that the
    firearm injury was sufficient in the ordinary course to cause death.
14. PW-7 was declared hostile. She tried to make out a case that it was
    PW-4 who shot her in the stomach, and that one, Abrar, stabbed
    her in her neck.
15. DW-1 is one Chhangu, who was the Pradhan of the village. He was
    examined to show that PW-4 was arrested and was kept in lockup for
    two days. He stated that affidavits of PW-5 and PW-6 were prepared
    in his presence in Rampur Kachehri. He stated that after the typist
    typed the affidavits, he read over them. DW-1 stated that the Oath
    Commissioner read over the affidavits to them. He stated that the
    deponents had put their thumb impressions below the statements.
    We find that in the examination-in-chief, he was not shown the
    affidavits marked as ‘A’ and ‘B’.
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16. DW-2 is Mumtaz Ali, who was working with an advocate in his office.
    He stated that PW-5 and PW-6 put their thumb impressions in his
    presence, and he had verified the same. DW-3 (Radhyeshyam,
    Advocate) was the Oath Commissioner who stated that PW-5 and
    PW-6 affirmed affidavits before him, which were marked as ‘A’ and ‘B’.
    DW-4 (Pradeep Kumar Gupta) is the clerk of the Oath Commissioner
    who claimed to have read over the affidavits to PW-5 and PW-6.
    DW-2 (Mumtaz Ali) identified his signatures as attesting witness on
    statements marked as ‘A’ and ‘B’.
17. We must record here that in the cross-examination of PWs-4, 5 and
    6, no material contradictions and omissions have been brought on
    record. The cross-examination, unfortunately, is very sketchy. But,
    there is something which goes to the root of the matter. Under
    Article 21 of the Constitution of India, the accused is entitled to a
    fair trial. Even the Police are under an obligation to carry out a fair
    investigation. This is a crucial aspect of fairness. The objective of
    the investigation is to ensure that the real culprits are brought to
    justice. The legal system must ensure that an innocent person is
    not punished.
18. We have perused the entire trial Court record. The appellant no.1
    made an application for bail before the Sessions Court. Appellant
    No. 2 and accused no.1 made another application. The order sheet
    of the bail application made by the appellant no.1 shows that the
    affidavits were produced in the bail application, and time was granted
    by the Session Court to file a counter-affidavit to the Investigating
    Officer. Bail was granted to the appellant no.1,by observing that all the
    eyewitnesses except PW-4 (complainant) have given their affidavits
    stating that the appellant no.1 was not the person who shot at the
    deceased. The order also refers to the affidavit of PW-7 (Nanhi),
    which is on record of the bail application. In the affidavit, she states
    that PW-4 (Amir Hussain) and one Akbar are the assailants of the
    deceased who injured her. Accused no.1 and appellant no.2 were
    granted bail by the Sessions Court by relying upon the affidavit of
    PW-7 (Nanhi).
19. There is something very crucial that the High Court and the Sessions
    Court have missed. In the cross-examination of PW-10 (Harpal Singh),
    Investigating Officer, the following questions were put:
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               Sakhawat and Anr. v. State of Uttar Pradesh


           “Que. Except complainant other eyewitnesses had
           submitted their affidavits on behalf of accused persons in
           this Court at the time of bail, you had not filed any counter
           affidavit to those affidavits?
           Ans. Witnesses were not found available to me as such
           I could not verify as to whether they had filed affidavits
           or not and on account of this reason I could not file any
           counter-affidavit also.
           Que. Whether you had gone in search of those witnesses
           in regard to counter affidavit yourself or you had sent
           someone?
           Ans. I had gone personally.
           Que. You have not recorded anything in case diary about
           searching witnesses for counter-affidavit?
           Ans. No, Sir, I had closed case diary after completing
           investigation.
           Que. Have you recorded any entry in C.D. about tracing
           witnesses for counter-affidavit?
           Ans. I do not recollect.
           Que. When you did not find witnesses available whether
           you moved any application before court that you could
           not find witnesses available as such time be extended?
           Ans. I had reported to Government counsel about not
           finding witnesses available.
           Que. From copy of affidavit of injured Nanhi you had come
           to know this fact that Amir Hussain has committed murder?
           Ans. Copy of the said affidavit had reached to me and
           such fact was lying mentioned in that affidavit.”
20. Thus, the fact that PW-5 and PW-6 had submitted the affidavits
    in the bail application in favour of the accused is admitted by the
    investigating officer. Even the affidavit of PW-7 (Nanhi) is admitted.
    Though there is a defence evidence adduced to prove the execution
    of the affidavits by PW-5 and PW-6, marked as Annexure ‘A’ and ‘B’,
    the police did not conduct an investigation by sending the affidavits
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       and admitted thumb impressions of the witnesses for examination
       by an expert. Thus, three major prosecution witnesses, who were
       the eyewitnesses, had admittedly filed the affidavits before the
       Session Court stating that the present appellants were not the
       culprits. The Session Court relied upon the affidavits for granting
       bail to the accused. After getting the knowledge of the affidavits, it
       was the duty of the Investigating Officer to record supplementary
       statements of these three eyewitnesses about the affidavits and the
       contents of the affidavits. He has come out with a lame excuse that
       he did not controvert the said affidavit by filing a counter-affidavit,
       as the witnesses could not be traced. If the presence of the witness
       is required during the investigation, there are elaborate provisions
       in the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) for
       procuring the presence of the witnesses. PW-10 has not explained
       what efforts he has made to call PW-5 to PW-7 to record their further
       statements.
21. Thus, the scenario which emerges is that three out of four
    eyewitnesses had admittedly filed the affidavits during the bail
    hearing of the accused, stating that the accused were not involved.
    For whatever reason, the investigating officer did not controvert the
    affidavits, though time was granted to him. In fact, the stand taken
    by the affidavit of PW-7 is that PW-4 and Akbar are the assailants
    who killed the deceased and who injured her.
22. Thus, by failing to carry out further investigation on the basis of the said
    affidavits, the prosecution has failed to carry out a fair investigation.
    Moreover, the prosecution tried to suppress the affidavits.
23. Therefore, there is a serious doubt created about the truthfulness of
    the versions of PW-5 to PW-7 before the Court. It is pertinent to note
    that PW-5 was detained at the police station for 24 hours before his
    statement was recorded. A serious doubt is created whether these
    witnesses are telling the truth. Then, what survives is the evidence
    of PW-4. PW-7 in the affidavit has stated that, in fact, PW-4 was the
    assailant. As the prosecution has not conducted a fair investigation
    and has suppressed important material in the form of affidavits of
    PW-5 to PW-7, it is unsafe to convict the appellants only on the basis
    of the testimony of PW-4. The failure to conduct further investigation
    based on the affidavits goes to the root of the matter. The failure
    to recover the weapons of offence also becomes relevant in the
    background of these circumstances.
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24. Therefore, this is a case where there is failure on the part of the
    High Court and the Session Court to consider the cross-examination
    of PW-10 and the suppression of the affidavits by the prosecution.
    These highly relevant aspects have been completely overlooked by
    the High Court.
25. Before we part with the judgment, we reiterate the direction issued in
    the order dated 8th February 2024, that the record of the Trial Court
    should not be referred to as “Lower Court Record”. Describing any
    Court as a “Lower Court” is against the ethos of our Constitution.
    The Registry has issued a Circular dated 28th February 2024 for
    giving effect to the order. The High Courts must take note of the
    above direction and act upon the same.
26. Therefore, the appeal succeeds. The impugned judgments and orders
    insofar as the appellants are concerned are hereby set aside, and
    the appellants are acquitted of the offences alleged against them.
    Their bail bonds stand cancelled.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Nidhi Jain