Allahabad High Court
Raiyyan vs State Of U.P. on 31 March, 2026
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:67476
Reserved On :- 16.02.2026 Delivered On :- 31.03.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
CAPITAL CASE No. - 12 of 2022
Raiyyan
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Somya Chaturvedi, Sr. Advocate
Counsel for Respondent(s)
:
G.A., Sayyed Kashif Abbas Rizvi
HON'BLE SIDDHARTH, J.
1. Heard Sri G.S. Chaturvedi, learned Senior Counsel assisted by Ms. Somya Chaturvedi, learned counsel for appellant; Sri Sayyed Kashif Abbas Rizvi, learned counsel for informant; Sri A.N. Mulla, learned A.G.A for State and perused the judgment and record of the trial court.
2. The Reference No. 8 of 2022 has been made by the court of Additional District and Sessions Judge, Court No. 5, Bijnor for confirmation of capital punishment awarded to the appellant, Raiyyan, in Sessions Trial No 121 of 2017 (State Vs. Raiyyan and Others).
3. The Criminal Appeal, being Capital Case No. 12 of 2022, has been filed by the appellant, Raiyyan, challenging the judgment and order of conviction dated 21.05.2022 passed by Additional District and Sessions Judge, Court No. 5, Bijnor, holding the appellant guilty of committing the offence under Section 302/34 IPC and awarding him the capital punishment and a fine of Rs. 1,00,000/-. In default of payment of fine, to further undergo additional imprisonment of one year.
4. The Reference and Capital Appeal were admitted and the paper book has been prepared and the matter was heard at length by a coordinate Division Bench (Hon'ble Rajeev Gupta & Hon'ble Harvir Singh, J.J.) of this court but on account of difference in opinion between the Hon'ble Judges and dissenting judgments passed by them, the matter has been nominated to this Bench of third Judge by Hon'ble The Chief Justice.
5. During the pendency of this appeal before this Court, co-appellant Munir, who had also been convicted alongwith present appellant, Raiyyan and had filed a separate Criminal Appeal, being Capital Case No. 13 of 2022, has died, as such, his appeal was abated by this Court vide order dated 12.01.2023.
6. As per the prosecution case, FIR in the instant case has been lodged by Mohd. Raghib Masood, brother of the deceased, Mohd. Tanzil, vide written report dated 03.04.2016 (Exhibit Ka-1), which was registered as Case Crime No. 166 of 2016, under Section 307 IPC, Police Station Seohara, District Bijnor at 01:20 AM, carbon copy whereof has been drawn vide G.D. Report No. 2 at 01:20 Hours, which has been proved and marked as Exhibit Ka-4 by Head Constable Munna Babu (PW-4), as he then was at the relevant date and time.
7. The prosecution story as per FIR is that in the intervening night between 02/03-04-2016, the marriage of niece of the first informant was being solemnized in Kasba Seohara at Bandhan Banquet Hall; that his brother Mohd. Tanzil alongwith his wife Smt. Farzana and niece Zimnish and nephew Shahbaz had also reached there in order to participate in the marriage ceremony; that after attending the marriage ceremony, his brother Mohd. Tanzil, riding in a WagonR Car bearing Registration No.DL3CAZ2301, alongwith his wife, daughter and son, had left the marriage premises; that he was followed by the first informant Mohd. Raghib in another Wagon Car, bearing Registration No. DL3CAZ6838, alongwith his wife, Rukhsana Pravin, son Arish and daughter Ambarish and both were heading towards Sahaspur at about 01:00 AM in the night; When they entered in the Nagar Palika Gate from Sahaspur and reached near the Tal Katora culvert, two persons driving a motorcycle reached there and halted the motorcycle near the car and with an intention to kill his brother, Mohd. Tanzil and sister-in-law Farzana, started making indiscriminate firing from their respective weapons, consequent to which, his brother and sister-in-law received serious injuries; informant alongwith his wife, Rukhsana, son and daughter raised alarm alongwith his nephew and niece sitting in the following car, then the two assailants driving their motorcycle left the place of incident, the said persons were seen in the flash of the head light of the car and can be identified on being produced.
8. After registration of the said FIR, the police had taken the two victims to District Hospital, Seohara, from where, they were referred for advanced treatment and management to Bijnor, however, injureds were taken to Cosmos Hospital, Moradabad, where attending Doctors declared one of the injured, Mohd. Tanzil to be dead, whereas other injured, Farzana, was medically examined by the attending Dr. Sunil Kumar (PW-8) and her medico legal report was also prepared. The same is part of record and shall be referred to, if required.
9. The information of death of Mohd. Tanzil was received over telephone at the Police Station Seohara on 03.04.2016 at 03:05 a.m, which was recorded vide G.D. Report No.4 and the case was converted under Section 302 IPC, which has been proved and marked as Exhibit Ka-5. After getting the information of death of Mohd. Tanzil, the police party reached the place of incident and PW-5 Manoj Kumar conducted the inquest on the person of the deceased Mohd. Tanzil and prepared the inquest report and thereafter, prepared the relevant document, namely, letter to R.I., letter to C.M.O., photo nash, challan lash, sealed samples and other relevant documents, which have been proved and marked as Exhibit Ka-8 to Exhibit Ka-13.
10. Thereafter, dead body was sealed and sent for post-mortem. An autopsy was conducted on the person of the deceased Mohd. Tanzil by PW-7 Dr. Rajendra Singh on 03.04.2016 at 11:10 AM. The Medical Officer conducting the post-mortem has noted as many as 33 injuries, which has been proved and marked as Exhibit Ka-14. The injuries, if required, shall be considered hereinafter.
11. After the death of another injured, Farzana, on 13.04.2016 at 03:05 a.m the police conducted the inquest and prepared relevant documents, namely, letter to R.I., letter to C.M.O., photo lash, challan lash, sealed samples and other relevant documents. Thereafter, dead body was sealed and sent for post-mortem and an autopsy was conducted on the person of deceased Farzana on 13.04.2016 at 02:15 PM. The Doctor has noted as many as eleven injuries on her person, which has been proved and marked as Exhibit Ka-43 by PW-13, Dr. Adesh Kumar. The injuries shall be considered hereinafter, if needed.
12. After registration of the FIR on 03.04.2016, Investigating Officer (PW-14) reached the place of the incident and inspected the car bearing Registration No.DL3CAZ2301 and recovered four pellets/bullets, broken glass and blood-stained earth and took them into his possession and prepared its recovery memo, which has been proved and marked as Exhibit Ka-46.
13. On the same day, he with the help of the team headed by Shri Ajay Kumar Sharma of Vidhi Vigyan Prayogshala, Bareilly, recovered five cartridges of 9 m.m. and took them in his possession and prepared its recovery memo, which has been proved and marked as Exhibit Ka-47. He also took the blood-stained clothes worn by the deceased Mohd. Tanzil alongwith his mobile phone Gionee M5 in his possession and prepared its recovery memo, which has been proved and marked as Exhibit Ka-62.
14. On 02.08.2016, the police recovered a country-made pistol of 32 bore from the possession of co-appellant Munir, son of Mahtab and prepared its recovery memo, which has been proved and marked as Exhibit Ka-67.
15. During the course of investigation, Investigating Officer Raj Kumar Sharma (PW-14) recorded the statement of Inamul Haq (PW-3) and one Bobby @ Fazal (not produced) on 04.04.2016, who, for the first time, disclosed the name of appellant Raiyyan and Munir as accused. The Investigating Officer thereafter sent the recovered cartridges to the Vidhi Vigyan Praoygshala, Bareilly to submit its report. On 11.04.2016 and 14.04.2016, the Investigating Officer get recorded the statement of Inamul Haq and Bobby @ Fazal Ahmad under Section 164 Cr.P.C and thereafter, got recorded the statement of one Mohd. Azam (PW-12) under Section 164 CrPC also on 14.04.2016.
16. After collecting the relevant material and documentary evidence and concluding the investigation, the Investigating Officer submitted the Charge-Sheet No.130 of 2016 against the appellant, Raiyyan, Jaini, Tanjim and Rizwan under Sections 302, 120-B/34 IPC, while charge-sheet was submitted against the co-accused, Munir vide Charge-Sheet No. 130-A of 2016, under Sections 302, 120-B/34 IPC on 20.08.2016.
17. On the basis of the material collected during the course of investigation, the trial court framed the charge on 15.10.2019 under Section 302 read with Section 34 IPC against the appellant Raiyyan and further, under Section 302 read with Section 120-B IPC against the co-accused, Rizwan, Tanjim and Jaini. However, as against co-accused Munir, charges under Section 302 IPC read with Section 34 IPC and Section 302 IPC read with Section 120-B IPC were framed and an additional charge under Section 25 of the Arms Act was also framed.
18. The said charges were read out and explained to the accused persons, who did not plead guilty and claimed to be tried. The prosecution in order to prove its case, has produced as many as 19 prosecution witnesses and number of relevant documents have also been produced and are brought on record, which have been proved and marked as Exhibit Ka-1 to Exhibit Ka-67.
19. PW-1, Raghib Masood, is the first informant of the instant case and brother of the deceased, Mohd. Tanzil. He stated that on 01.04.2016, he alongwith his wife and two children in a WagonR Car bearing Registration No. DL3CAZ6838 and his brother alongwith his wife and two children in a WagonR Car bearing Registration No. DL3CAZ2301 had visited Seohara to attend the marriage of his cousin sister and thereafter, after taking their meals, had reached Sahaspur and again on the next day in the morning, reached Seohara and again returned back to Sahaspur. Thereafter, in order to attend the marriage of their cousin, they alongwith family members reached Bandhan Banquet Hall, Seohara and attended the marriage. At about 12:30 AM in the intervening night between 02/03-04.2016, his brother alongwith his wife and two children seated in a car, left for Sahaspur. He also alongwith his wife and two children seated in a car followed them and while they were entering Sahaspur and reached near the under construction culvert, then Tanzil's car slowed down while his car was at some distance, when a black colour pulsar motorcycle came there and took a "U" turn and the said motorcycle was ridden by two persons and both started firing upon his brother by their respective weapons. The shots fired by the accused persons hit his brother Mohd. Tanzil and his wife Farzana. His car was behind them and in the flash of the head light of the car, he saw the entire incident and identified the shooters and raised alarm. Tanzil's daughter Zimnish and son Shahbaz also raised alarm and saw the incident and identified the shooters Munir and Raiyyan, who were known to them. At the time of the incident, Hasib also reached there and saw the incident in the flash of the head light of the car. The said incident is said to have taken place at about 12:45 AM. Munir and Raiyyan, after resorting to shooting, fled away riding the motorcycle. He alongwith Hasib carried the two victims to Police Station Seohara on their vehicles and reached the Police Station Seohara, where a written information in respect of the said incident was given and copy of the said written report has been proved and marked as Exhibit Ka-1. After registration of the FIR, the police took them to Government Hospital, Seohara, from where, they were referred to Bijnor, however, since District Moradabad was nearby, as such, they were taken to Cosmos Hospital, Moradabad, where Doctors declared Tanzil to be dead. The victim Farzana was thereafter referred to Fortis Hospital. The police also reached Cosmos Hospital, Moradabad and an inquest was conducted on the person of the deceased Tanzil and thereafter, his dead body was sent for post-mortem. The victim Farzana was treated at Fortis Hospital and thereafter, referred to A.I.I.M.S., Delhi, where she died on 13.04.2016. The death of his brother Tanzil and sister-in-law Farzana has been committed by Munir and Raiyyan by opening fire.
20. During cross-examination, the said witness stated that all the persons, who are the accused in the instant case, are the residents of his own Mohalla and he is well acquainted with all the accused persons. In further cross-examination, he stated that PW-12 Mohd. Azam is his real cousin and is also witness in the said case, however, he is not known to any other witness. He further denied the suggestion that on the relevant date and time of the incident, he was not present there. He further stated that PW-2 Hasib is son of his real uncle and after the death of the deceased Tanzil, he purchased his residential house. Hasib accompanied him at the Police Station after the incident. He further denied the suggestion that his vehicle had not accompanied Tanzil's vehicle. Accused Munir and Raiyyan both are residents of his own Mohalla Sahaspur and he is well acquainted with them. Deceased Tanzil was posted as Deputy Superintendent of Police in National Investigating Agency and was investigating several cases against the terrorists. He further stated that after the incident, his injured sister-in-law Farzana, wife Rukhsana and Hasib were present at the Police Station. The two accused persons, who fired upon the deceased, if produced, can be identified by him. He further candidly stated that he did not named the accused persons to the Investigating Officer, however, he disclosed to the Investigating Officer that he had over heard some persons that Munir and Raiyyan of Sahaspur were seen there. Before his examination-in-chief in court, he had not disclosed to anyone that Munir and Raiyyan were seen there and he had witnessed them committing the incident. He then stated that after arrest of Munir and Raiyyan, he had disclosed this fact to the police. In another case registered under the Gangsters Act, he had deposed before the court that for the first time in court, he had disclosed their name. He further stated that he had not given any affidavit either to the police authority or to any other authority, then corrected himself and stated that he made a statement but did not gave any affidavit. He further admitted that in various T.V. interviews given by him, he had not disclosed the name of the assailants as by then, they were not arrested. He further denied the suggestion that he is disclosing the name of the accused persons under the influence of the police. He also denied the suggestion that he was not present at the place of the incident and had not witnessed the incident. He further stated that he had deposed in court that Munir and Raiyyan had opened fire, who were known to him, however, he further stated that because of fear, he did not earlier named them. He does not remember, if the factum of Hasib witnessing the incident, was mentioned in the FIR, however, on his attention being drawn to the contents of the FIR, he stated that in the FIR, Hasib has not been mentioned as a witness, however, he had disclosed this fact to the Investigating Officer and if he has not recorded it in his statement, then he cannot give any explanation for the same. It is true that FIR was registered against unknown persons and as long as, Munir and Raiyyan were not arrested, the FIR continued to be against the unknown persons and only after the arrest of Munir and Raiyyan, police informed that the assailants have been arrested. He further stated that he did not witnessed as to from which direction, the assailants appeared, however, when he reached there, he saw two persons were firing, who were Raiyyan and Munir. He had not seen as to who stopped the car. Two miscreants came from the front and stopped the car. The said statement was given by him on the saying of his children. The shot was fired from the distance of one feet. He further denied the suggestion that under the pressure of the police, he is falsely deposing. At the time of the incident, his brother was not having any weapon nor any security and he had seen Raiyyan and Munir in the marriage. He is not aware of the fact that there was any enmity between his brother and the assailants. His wife Rukhsana stayed with his sister-in-law Farzana for about ten days and during this period, Farzana was conscious but she could not speak. The presence of two assailants in the marriage was disclosed for the first time in court, though he was not questioned for the same.
21. PW-2, Hasib Ahmad, is another witness of the incident and he, in his testimony, has stated that on 02.04.2016, marriage of his niece was to be solemnized, wherein Raghib Masood and Tanzil Ahmad had also to participate. On 02.04.2016 at about 8:00 PM, he alongwith his wife Gulnaz and Tanzil reached at Bandhan Banquet Hall, Seohara. At about 11:00 PM in the night, he returned back to his house, where his wife informed him that her purse, in which, some golden jewellery was kept, has been left out in the Banquet Hall. Thereafter, at about 12:45 PM in the intervening night between 02/03-04-2016, he riding a motorcycle, set out from Sahaspur for Banquet Hall, Seohara to retrieve her purse, however, en-route to the way to Seohara, he, in the flash of the head light of the car, saw Raiyyan and Munir, who are his neighbours, were making indiscriminate firing upon Tanzil Ahmad and sister-in-law Farzana, when he proceeded further, Munir and Raiyyan fled away on their motorcycle. At the relevant time, Raghib Masood alighting from his car, also reached there. Both the children of Tanzil Ahmad, who were sitting on the rear seat of the car, started raising alarm. The clothes worn by Tanzil Ahmad and Smt. Farzana were soaked in blood. Raghib Masood took his sister-in-law Farzana to Police Station Seohara in his car, whereas he and his nephew Aarish took Tanzil Ahmad to Police Station Seohara and from the Police Station, both were taken to C.H.C., Seohara and thereafter, to Cosmos Hospital, Moradabad, where Tanzil Ahmad died and Farzana was admitted in a precarious condition in Noida Hospital but after 3-4 days, she also succumbed to her injuries. His brother and sister-in-law has been done to death by the firing made by Raiyyan and Munir. Munir later had also threatened him.
22. During cross-examination, P.W.-2 stated that Raghib Masood is the first informant of the instant case, who lives in Mohalla Molviyan, Sahaspur. Accused, Munir and Raiyyan, are well known to him. The information in respect of the present incident was disclosed by him to the Investigating Officer after 17-18 days of the incident and prior to this, he has not moved any application or complaint to any authority. After the incident, he had gone at the Police Station alongwith deceased Tanzil and hardly stayed there for 10-15 minutes. The FIR was drawn by Raghib Masood in his presence and at the relevant time, he had disclosed the name of the accused persons to Raghib Masood; on being further confronted, he stated that it is wrong to state that he had not disclosed the name of accused-appellants to Raghib Masood; that the night, on which, the incident had taken place, his wife coincidentally had left her purse in the Mandap, as such, he was returning back to collect his wife's purse, but after the incident, he had not visited the Mandap nor sent any person to collect the purse nor any missing report of the purse has been lodged by him; he candidly stated that it is true that for the first time in court, he stated that "Raiyyan and Munir", who are his neighbours, had made indiscriminate firing (20-25 shots) upon his brother Tanzil Ahmad and sister-in-law Farzana, then corrected himself and stated that he had disclosed the said fact at the Police Station; that it is wrong to state that aforesaid fact was not disclosed by him to any other person. It is also wrong to state that said fact was not disclosed to the Investigating Officer. He further denied the suggestion that on account of being an eye-witness in the instant case, he has been given the house of deceased Tanzil; he failed to state the date, time and month when he was threatened on phone by co-accused, Munir. He admitting of not making any report in this regard.
23. P.W.-2 further denied the suggestion that police was suspecting him for committing the murder of Tanzil. He also denied the suggestion that there is some dispute between him and Tanzil regarding transfer of money and Tanzil had transferred a huge sum of money to him. He further denied the suggestion that the factum of opening fire upon Tanzil Ahmad and his wife was not witnessed by him.
24. PW-3, Inamul Haq, is another witness of the incident. He, in his examination-in-chief, stated that the accused, Raiyyan, Munir, Tanzim, Jaini and Rizwan are well known to him, all of whom are the residents of Mohalla Molviyan. On 03.04.2016 at 6:00 AM in the morning, his mother had informed him that Tanzil had passed away. He thereafter left for Sahaspur in order to participate in an event and returned back after two days. On his return, he was called by the police for interrogation and was questioned about Munir. He categorically disclosed to the police that he is not friendly with Munir. The interrogation was in progress at the Guest House, where others were also being interrogated. Twice his statement was recorded and then, his statement was got recorded before the Magistrate. The police got the same statement recorded before the Magistrate, which they had recorded in writing and threatened him that if he wants to go back to his home, then he will have to get the similar statement recorded. At this stage, the said witness was declared hostile and put to cross-examination.
25. During cross-examination, he denied to have gone near the house of Tanzil Ahmad on 03.04.2016. He further denied the suggestion that on 03.04.2016 at about 10:00 PM, when he was returning from the shop of Aamir, Munir's father met him. Munir did not disclose to him that he fired three shots upon Tanzil. No such statement was given by him to the Police that at about 7:00 AM in the morning, he was passing from the house of Tanzil, where near a grocery shop of Sabburi, Raiyyan and Jaini met him, who at the relevant time were perturbed. He further denied the suggestion that on 03.04.2016 at about 10:00 PM in the night, he went to the house of Munir to enquire about his health and sat with him. He also did not disclose to the police that Munir, Jaini and Raiyyan were sitting in a room. He also denied to have given any such statement to the police that last night, brother Tanzil has been done to death, which fact has also been reported in the news. He further denied to have given any statement to the police that "All the three started smiling and then started conversing between them and Munir stated that he made four rounds of firing upon Tanzil and thereafter, to ensure his death, he further made indiscriminate firing upon him". He further denied to have given any statement to the police that Munir stated that he took another Revolver from Raiyyan and fired shots upon him so he may not remain alive. On his attention been drawn to his statement shown to be recorded under Section 161 CrPC on 04.04.2016 and 01.05.2016, he candidly denied to have given any such statement to the police. He also denied the suggestion that since he had colluded with the accused persons, as such, he is not disclosing the correct facts. On his attention been drawn to the statement shown to be recorded under Section 164 Cr.P.C., he identified his signatures, however, stated that said statement was given by him before the Magistrate under the pressure and influence of the police. The said statement under Section 164 CrPC has been proved and marked as Exhibit Ka-2. He further stated that when police had called him to interrogate about Munir, he was kept in the Guest House, Sugar Mill, Seohara for 6-7 days, where senior police officers also stayed and Azam, Hasib and Fazal were also present, who were detained there and they have been pressurized to become a witness, otherwise they would be challaned and would not be spared. Under the pressure of the police, it was necessary to become a witness and only under the said pressure, he had appeared before the court of Magistrate to record his statement and only after recording his statement, he has been let of.
26. PW-4 Munna Babu is the Head Constable, who, on 03.04.2016, had drawn the chik FIR on the basis of the written report and had drawn the corresponding G.D. Report No. 2 at 1:20 PM. He further stated that on 03.04.2016 vide G.D. Report No. 4 at 3:05 Hours, on getting telephonic information, he had converted the case under Section 302 IPC.
27. During cross-examination, he stated that for registration of the FIR, Raghib Masood and Hasib alongwith others had reached there. The said report was lodged against two unknown persons. Both the injured also arrived at the Police Station, where he prepared the majroobi chitthi. He further stated that special report was not sent in this case, however, when it was sent, cannot be disclosed by him. He further denied the suggestion that FIR in the instant case is anti-timed. The said witness has also proved the recovery of clothes of the deceased Tanzil and the mobile phone Gionee M5 and recovered bullet were also sealed by him, which has been proved and exhibited. Regarding the recovery of articles, no G.D. report is before him. He further denied the suggestion that G.D. has not been produced since the fard recovery was made anti-time.
28. PW-5, S.I. Manoj Kumar, has conducted the inquest on the person of the deceased Tanzil at Cosmos Hospital and has drawn the inquest report in presence of the relatives of the deceased as well as the Investigating Officer Raj Kumar Sharma and other police personnels and after conducting the inquest, he prepared the relevant documents, namely, letter to R.I., letter to C.M.O., photo nash, challan lash, sample seal and other relevant documents, which have been proved and marked as Exhibit Ka-8 to Exhibit Ka-13 and thereafter, handed over the dead body to Constable and sent it to the Mortuary for post-mortem.
29. During cross-examination, he stated that on the basis of the memo received from the Cosmos Hospital, he had reached there and conducted the inquest on the person of the deceased. While conducting the inquest, he was informed by Investigating Officer Raj Kumar Sharma that in respect of the instant incident, a report has already been lodged vide Case Crime No. 166 of 2016, under Section 307 IPC.
30. PW-6, Zimnish Kadiba, is daughter of the deceased Tanzil and is another eye-witness of the incident and she, in her testimony has stated that in the intervening night between 02/03-04-2016 at about 12:45 PM, she was returning back alongwith her brother Shahbaz, mother Farzana and father Tanzil in a car from Bandhan Banquet Hall, who were proceeding towards her house. She was followed by her uncle Raghib Masood in a car, in which, he was also present alongwith his family members being wife and three children. As soon as they reached near Sahaspur, accused Raiyyan and Munir reached there, riding a motorcycle and took a "U" turn, Munir was sitting on the rear seat of the motorcycle, who started firing upon her father, consequent to which, side glass had broken down, however, he continued firing upon her father. Raiyyan after parking his motorcycle, also reached there and started firing upon her father. She identified both the accused in the flash of the head light of the car. When her mother tried to rescue her father, she was also shot at. Her uncle Raghib Masood had also reached there. The assailants extending threats ran away. We got quite frightened. She further stated that when they were alighting from the car alongwith her injured mother, she stated that "Raiyyan why you did so and instructed her not to nominate him.
31. During cross-examination, she candidly stated that prior to her statement before the court, she has not given any application or affidavit to any authority that Munir and Raiyyan committed the said incident as she had been frightened. She further candidly stated that for the first time, the said fact is being disclosed by her in court and the said fact was not earlier disclosed to any authority. She continued her studies in Delhi. After about 21/2 - 3 months of the incident, her statement was recorded by the Investigating Officer and due to fear, she had not disclosed the names of Munir and Raiyyan to the Investigating Officer. When her statement was recorded by the Investigating Officer, she was not aware that Munir and Raiyyan had already been arrested. She cannot state even by speculation as to when the two accused were arrested. Her mother had asked her not to nominate them. Even after their arrest, she had not given any application disclosing their names nor any application was given by her to any authority with regard to this fact. Her mother had asked her not to nominate Munir and Raiyyan while she was alighting from the car. It is wrong to state that her mother had not asked her not to disclose the names of Munir and Raiyyan and on the day of deposition, she is deposing the said fact just to give colour to the whole incident. She further admitted in her statement that while giving statement to the Investigating Officer, she had not disclosed that two boys, who had muffled their faces by a cloth, came on a motorcycle and started indiscriminate firing upon her father as well as her mother, who tried to rescue her father, causing injury to her. On her attention been drawn to her statement, she stated that how the Investigating Officer had recorded her such statement, cannot be explained by her. She further candidly stated that she had not disclose to the Investigating Officer that "she and her brother had hidden themselves behind the seat of the car nor gave any such statement to the Investigating Officer that the assailants were Munir and Raiyyan residing in her Mohalla. On her attention been drawn to her statement, she showed her ignorance and stated that "how such statement was recorded by the Investigating Officer, cannot be explained by her." She further admitted in her testimony that for the first time in court, she had disclosed that "she had seen the assailants Raiyyan and Munir coming on a motorcycle and seeing her father's car, they took "U" turn. Munir was on the pillion seat, who started firing upon her father. This factum was not disclosed by her to the Investigating Officer, then corrected herself and stated that she had not disclosed their names but had narrated about the incident, however, if the said factum has not been recorded, then she cannot assign any reason for the same". She had disclosed to the Investigating Officer that first shot was fired by Munir on the glass of the car, consequent to which, glass was broken.
32. On her attention been drawn to her statement shown to be recorded under Section 161 Cr.P.C., she stated that if the Investigating Officer has not recorded her aforesaid statement, she cannot assign any reason for the same. She further stated that she had disclosed to the Investigating Officer that Raiyyan after parking the motorcycle, came and started firing but had not named him and if the Investigating Officer has not recorded such statement, she cannot assign any reason for the same. The fact that her mother tried to rescue her father by raising alarm and she was also hit by firing, causing her injuries, was also disclosed to Investigating Officer, however, if the said factum has not been recorded, she cannot assign any reason for the same. She had also disclosed to the Investigating Officer that in the meanwhile, his uncle's car had also reached there and as such, the assailants fled away extending threats, however, if the Investigating Officer has not recorded such statement, she cannot assign any reason for the same. She further stated that she did not disclose to the Investigating Officer "that after firing, they fled away, then his uncle Raghib reached there," however, she again stated that as soon as her uncle Raghib reached there, accused ran away, else they would have fired more shots. She further disclosed in her statement that she had not pointed out to the Investigating Officer that she got frightened after the incident but today for the first time in court, has disclosed it. The factum of Hasib reaching at the place of incident was also disclosed to the Investigating Officer, however, if the said factum has not been noted by the Investigating Officer, then she cannot assign any reason for the same. She, in her cross-examination, further stated that it is true that his father was investigating some important cases and used to stay out. She further denied the suggestion that on the date of the incident, she had not come to Bijnor and assembled together after the incident. She did not heard any conversation after the incident as to who killed her father or anyone disclosing the names of the assailants. The factum that her mother stated as to "why Munir and Raiyyan assaulted was disclosed to his uncle prior to lodging the FIR." She had not disclosed to the Investigating Officer that subsequently, it was revealed that Raiyyan and Munir had fired shots. She never visited the place of the incident alongwith the Investigating Officer. She further stated that indiscriminate firing of 20-30 rounds were made. She further stated that blood oozed out from the body of her parents but does not remember, if it fell at different places in the car, however, blood had not fallen outside the car and her clothes were also blood-stained, however, she did not show her clothes to the police nor produced them in court. She did not find any spent cartridges lying at the place of the incident. In respect of the instant case, she had been interviewed by the Media after 2-3 days of the incident in Delhi, however, even in the said interview, she had not disclosed the names of the assailants. She cannot state that the car was also damaged. She had disclosed to the Investigating Officer about reaching of Munir and Raiyyan by a black colour pulsar bike, however, if the said factum has not been mentioned in her statement to the Investigating Officer, then she cannot assign any reason for the same. She had disclosed the factum of reaching of Munir and Raiyyan to the Investigating Officer but if the same is not recorded in her statement, she cannot assign any reason for the same. She further denied the suggestion that the manner, in which, she has described the incident in her examination-in-chief, the incident had not taken place in that manner. She further denied the suggestion that no incident took place at the alleged place and she had not seen any incident.
33. PW-7, Dr. Rajendra Singh, is the Medical Officer, who had conducted an autopsy on the dead body of the deceased Tanzil and also noted the injuries. Internal examination of the deceased, Tanzil, shows that brain membranes were pale, lungs were lacerated and two litres of blood was found collected in the pleura cavity. He further disclosed that he recovered a metallic bullet in the right upper arm of the deceased, three metallic bullets from the stomach, six metallic bullets from the chest, two metallic bullets from the left forearm and all such metallic bullets were sealed and handed over to the Police.
34. PW-8, Dr. Sunil Kumar, is the Medical Officer at Cosmos Hospital, Moradabad, who had examined the injured, Farzana Khatoon, on 03.04.2016 at the hospital and had noted the injuries and thereafter, referred her to higher centre for advance medical treatment and has proved the injury report, which has been marked as Exhibit Ka-15.
35. During cross-examination, PW-8, Dr. Sunil Kumar, stated that the victim suffered injuries on her right, left and back. The injured Farzana was brought by her brother-in-law and not by the police and the victim was in an unconscious state and her condition was critical.
36. PW-9, Dr. Samiksha Srotey Bhardwaj, is the Radiologist, who had performed the X-Ray on the person of the deceased Tanzil Ahmad and prepared the injury report and supplementary injury report, which have been proved and marked as Exhibit Ka-17 to Exhibit Ka-33. She had also x-rayed the injuries of the deceased Farzana and prepared the injury report, which has been proved and marked as Exhibit Ka-34.
37. PW-10, Dr. Sudhir Kumar Sharma, is another Medical Officer, who had medically treated the victim Farzana Khatoon at Fortis Hospital, Noida and had prepared the injury report on 03.04.2016, which has been proved and marked as Exhibit Ka-35. Medico Legal Certificate (M.L.C.) including injury report has been proved and marked as Exhibit Ka-36 and the operation notes has also been proved as Exhibit Ka-37.
38. During cross-examination, the said Medical Officer stated that Exhibit Ka-36 and Exhibit Ka-37 had not been prepared in his own hand writing nor signed by him but was prepared in his presence, for which, there is no written document. He further denied the suggestion that he did not operated upon the victim Farzana and he has been falsely deposing.
39. PW-11, S.I. Roop Singh, who stated that on 11.04.2016, victim Farzana Khatoon was admitted in A.I.I.M.S. and information in respect of which was given by him, which was noted in the G.D. and on 13.04.2016, after the death of the victim Farzana, the dead body was sent by him for post-mortem, which was identified by his relatives and he also prepared the inquest report of the deceased Farzana, and the same has been proved and marked as Exhibit Ka-41 and on the same inquest, case number etc. has not been mentioned.
40. PW-12, Mohd. Azam, is another witness, who stated that said incident had occurred on 02/03-04-2016, however, he had not witnessed the incident and at the relevant time, he was in Delhi with his brother, where information about the death of Tanzil was received over phone, however, the assailants were not nominated. He was called by the police, who had interrogated him about the said incident. All the five assailants are the residents of Mohalla Sahaspur, however, neither before or after the incident, accused-assailants had ever met him. The police had got his statement recorded under Section 164 CrPC. On the attention been drawn to his statement shown to be recorded under Section 164 CrPC, he identified his photo and signatures and proved it, which has been marked as Exhibit Ka-42 and admitted that he gave such statement under Section 164 CrPC.
41. In his cross-examination, he candidly stated that when on getting the information about the said incident, he reached the village, then he was arrested by the police. Witness Hasib was also under arrest. He, Hasib and many other persons were kept in custody. They were threatened by the police to state, what was stated to them, else they would be sent to jail and under such pressure, he had given such statement, which has been recorded and has been proved and marked as Exhibit Ka-42. Apart from it, if any statement has been recorded by the police, then it has been recorded on their own volition and not disclosed by him.
42. PW-13, Dr. Adesh Kumar, is the Medical Officer at A.I.I.M.S., New Delhi. He stated that on 11.04.2016, injured, Farzana Khatoon, was admitted in the said hospital and he had noted injuries on her person and thereafter, victim remain admitted there and she died on 13.04.2016 and thereafter, her dead body was sent for post-mortem, which has been conducted jointly by him and Dr. Munish, which has been proved and marked as Exhibit Ka-43.
43. During cross-examination, he stated that he had not examined the injured victim but had only conducted her post-mortem and had opined that injury nos. 2, 5, 8 & 11 are surgical wounds.
44. PW-14, Raj Kumar Sharma, is the Investigating Officer of the case and he stated that on 03.04.2016, Case Crime No. 166 of 2016, under Section 307 IPC at Police Station Seohara by PW-1 Raghib Masood was registered and he was entrusted with the investigation and on the same day, he recorded the statement of the first informant and prepared the relevant documents. On 04.04.2016, he recorded the statement of PW-3 Inamul Haq and one Bobby @ Fazal Haq, who disclosed the names of the assailants Raiyyan and Munir to be involved in the said case and thereafter, statement of Mohd. Azam was also recorded and relevant recoveries of broken glass pieces and spent cartridges were made and its recovery memo was prepared and thereafter, it was sent to the Vidhi Vigyan Prayogshala. He thereafter collected the relevant medical reports of both the victims Tanzil and Farzana. On 11.04.2016, he got recorded the statement of Inamul Haq before the Magistrate under Section 164 CrPC and apprehended the accused Raiyyan and Jaini on 12.04.2016 and thereafter, arrested the co-accused Rizwan and Tanzim. On 14.04.2016, he got recorded the statement of Mohd. Azam under Section 164 CrPC and thereafter, on 21.04.2016, he got recorded the statement of Hasib Ahmad and on 02.07.2016 recorded the statement of Zimnish and Shahbaz and Arish. After collecting the relevant material and documents, submitted the charge-sheet against the accused Raiyyan, Tanzim, Rizwan and Jaini vide Charge-Sheet No. 130 of 2016, under Sections 302/34, 120-B IPC, which has been proved and marked as Exhibit ka-44 and thereafter, submitted the charge-sheet against the co-accused Munir.
45. During cross-examination, he stated that instant case was registered against unknown persons in his presence at the Police Station by the first informant Raghib, who was accompanied with Tanzil, Farzana, Shahbaz and Zimnish and witness Hasib Ahmad. Thereafter, statement of the first informant was recorded under Section 161 CrPC, in which, he has not nominated any of the assailants and stated that he was following the car of Tanzil at a distance of 100 paces but did not state that "meanwhile a black colour pulsar motorcycle came and took a "U" turn, on which, two persons were riding "but has stated that on a motorcycle, two persons came and stopped the car of Tanzim". It is true that at the relevant time, the said witness has not nominated the assailants. It has been further stated that the first informant at the relevant time did not state that "shooters were Munir and Raiyyan, who were well acquainted with him." He further stated that Hasib Ahmad has not been nominated as a witness in the FIR but has accompanied them at the Police Station. He further denied that the first informant at the relevant time had stated that "Hasib had also reached the place of the incident." He further stated that Hasib was interrogated after 18 days of the incident and in the meanwhile, neither he tried to record his statement nor he came to get his statement recorded. It is wrong to state that his statement was not recorded. It is further wrong to state that he recorded the statement of Inamul Haq and Azam on his own volition. It is also wrong to state that these three persons were kept in the lock up and by threatening them, they have been made witnesses. The statement of the witness Zimnish was also recorded on her own volition, who, in her statement, stated that "two persons came riding a motorcycle, who had muffled up their faces and made indiscriminate firing upon her father. It is true that the said witness had not nominated the assailants nor she had identified them. Her statement was recorded after three months of the incident. The said witness in her statement had stated that she subsequently came to know that Munir and Raiyyan were the shooters. The said witness in her statement had disclosed that she and her brother had hidden themselves behind the seat. The said witness has also not stated that "when they were alighting their injured mother from the car, then her injured mother stated that Raiyyan why you did so and asked her not to nominate them. The said witness has also not stated that "first fire was made by Munir, which broke the glass." The said witness also did not state that "Raiyyan, after parking the motorcycle, came and started firing." She also did not state that after the incident, she got frightened" and then stated that because of fear, she had hidden herself behind the seat of the car. The said witness also did not state that "her uncle Hasib had also reached at the place of the incident." It is further stated that informant and the assailants were residing in the same Mohalla and were well acquainted with each other. The said case was registered san identification but no test identification parade was held. During the course of investigation, he did not find any photograph or electronic evidence, which may establish that in the marriage, first informant Raghib or Zimnish reached Seoraha to attend the marriage. It is true that the media repeatedly interviewed Raghib and Zimnish. The Investigating Officer further stated that he could not collect any evidence, which may show that Hasib's wife was also present in the marriage and was having a purse nor he has any information about the loss of her purse nor he has interrogated her regarding the purse. He further denied the suggestion that he has been falsely deposing and false evidence has been collected against the assailants and charge-sheet has been submitted against them.
46. PW-15, Inspector Satish Kumar, is the second Investigating Officer, who after the transfer of Raj Kumar Sharma (PW-14) took over the investigation and had arrested Munir and took him in police custody and got recovered the pistol and two cartridges and its recovery memo was prepared and a separate case being Case Crime No. 369 of 2016, under Section 25 of Arms Act was registered against him and after concluding the investigation, he submitted the Charge-Sheet No. 130-A of 2016 against co-accused Munir on 20.04.2016, under Sections 302, 120-B, 34 IPC and Section 25 of Arms Act.
47. In his cross-examination, he stated that the recoveries that were made during police custody, the same was not used in the said incident. He further stated that it is true that neither first informant Raghib nor witness Zimnish nominated any accused as the assailant of the instant case and why they did not named them, was not questioned by him. He further stated that no test identification of any of the accused was undertaken by him. It is false to state that frivolous charge-sheet was filed.
48. PW-16, Sandeep Raj Singh, is the Investigating Officer of Case Crime No. 207 of 2016, registered under Section 174 IPC against the co-accused Munir and after concluding the investigation, he submitted the charge-sheet against the co-accused Munir.
49. PW-17, Rohit Sharma, is the Constable Clerk, who had registered the FIR of Case Crime No. 207 of 2016, under Section 174-A of IPC against the co-appellant Munir, which has been proved and marked as Exhibit Ka-61.
50. PW-18, Ramesh Babu, is the Investigating Officer of the Case Crime No. 369 of 2016, which was registered under Section 25 of Arms Act against the co-accused Munir and after concluding the investigation, submitted the charge-sheet against the co-accused Munir.
51. PW-19, S.I., Kamlesh Singh, is the witness of recovery of 32 bore pistol and cartridges shown to be recovered at the pointing out of the co-accused Munir, while he was in police custody, for which, necessary recovery memos were drawn and has been proved and marked as Exhibit Ka-67.
52. After concluding the statement of the prosecution witnesses, the statement of the accused persons, namley, Munir, Jaini, Rizwan, Tanzim and Raiyyan has been recorded. The accused-appellant, Raiyyan, in his statement recorded under Section 313 CrPC claimed that the entire prosecution evidence of the witnesses to be false and fabricated and denied the prosecution story and further stated that he is innocent and under the pressure of the police, he has been falsely implicated in the present case, however, no defence evidence has been led by the appellant Raiyyan.
53. The trial court after appreciating the evidence and material available on record and by placing implicit reliance upon the testimony of PW-1 Raghib Masood, PW-2 Hasib Ahmad and PW-6 Zimnish Kadiba, has held that the prosecution has successfully proved the case against the accused-appellant and the explanation tendered by the appellant was found inadequate and false and as such, he alongwith co-accused, Munir, have been convicted for the offence charged with and awarded the death sentence, while acquitting the co-accused, namely, Tanzim, Rizwan and Jaini.
54. Being aggrieved and dissatisfied by the said judgment and order, the instant criminal appeal alongwith connected appeal being Capital Case No. 13 of 2022 has been filed by the accused-appellants, Raiyyan and Munir.
55. Learned Senior Counsel for the appellant has made the following submissions :-
(i) The prosecution story is not credible at all in view of the testimonies of P.W.-1, P.W.-2 and P.W.-6.
(ii) The presence of P.W.1 and P.W.-2 on the place of incident is doubtful.
(iii) In the F.I.R lodged by P.W.-1 the presence of P.W.-2 has not been mentioned.
(iv) P.W.-2 has cooked up a story of loss of purse of his wife at the mandapam and on the basis of the same he tried to establish his presence at the place of incident but the same does not inspires confidence.
(v) The story of missing purse of wife of P.W.-2 was not investigated by the Investigating Officer to ascertain the correctness of the statement of P.W.-2. It is most unbelievable that the appellants who are resident of the same mohalla as the deceased, could not be identified by P.W.-1 and P.W.-2 who have admitted knowing them very well.
(vi) It again remains an unexplained fact of the case that during investigation also P.W.-1, P.W.-2 and P.W.-6 did not named the appellants when it is on record that they were not named in the F.I.R.
(vii) The name of the appellants surfaced in the statements of the aforesaid witnesses in court only after about 6 years of the incident and only on this account. The prosecution case deserves to be thrown out.
(viii) To prove the prosecution case, Inamul Haq and Mohd. Azam, P.W.-3 and P.W.-12, respectively, were set up and produced before the trial court after recording of their statements under Section 164 Cr.P.C but P.W.-3 was declared hostile. He admitted that his statement under Section 164 Cr.P.C was forcibly got recorded by the police. Similar is the situation regarding P.W.-12.
(ix) If fear was cause of not disclosing the name of the appellants in the F.I.R and in the statements of P.W.-1, P.W.-2 and P.W.-6 why the names of appellants were disclosed before the court for the first time was not explained. Their statements in court amounts to improvement and cannot be accepted to be truthful.
56. Learned Senior counsel for the appellant has relied upon the following judgments in support of his submissions :-
(i) State of Madhya Pradesh vs. Ramjan Khan (Crl. Appeal No. 2129 / 2014 (Supreme Court) decided on 25.10.2024 omission in statement under Section 161 Cr.P.C and its effect;
(ii) Govind Mandavi vs. State of Chhattisgarh, Names of accused omitted in F.I.R No. T.I.A held SLP (Crl) No. 13533 / 2025 decided on 8th Dec. 2025 Live Law (SC) 1182;
(iii) Tukesh Singh and Others vs. State of Chhattisgarh, (Crl. Appeal No. 1157 / 2011 with Crl. Appeals 1608 /2011 and 1713/2012 decided on 14.05.2025; and
(iv) B.N. John vs. State of U.P and Anothers 2025 0 Supreme (SC) 20.
57. Learned counsel for the infromant and learned A.G.A have vehemently opposed the submissions made by learned counsel for the appellant. They have submitted that P.W.-1, P.W.-2 and P.W.-6 are the eye-witnesses of the incident and their testimonies stand on higher pedestal and the trial court has rightly believed their testimonies. They have pointed out to the heinous and ghastly crime committed by the appellant. They have submitted that keeping in view the nature and manner of commission of crime before the eye-witnesses, fear on their part in not nominating the appellants was not unnatural. The appellant, Raiyyan, was sentenced to 5 years with fine of Rs. 50,000/- in case under Section 3(1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act. The co-accused, Munir, had long criminal history of 32 cases and was a dreaded criminal. The appellant, Raiyyan, was member of the gang of Munir and therefore both were implicated in the aforesaid case under the Gangsters Act. Reliance has been placed by learned counsel for the informant on the judgments of Apex Court in the case of Ram Bihari Yadav vs. State of Bihar and Ors. 1998(4) Supreme 178 and Vijaya Singh and Anr. vs. State of Uttarakhand, Criminal Appeal No. 122 of 2013.
58. After hearing the rival submissions, this court is of the view that the first argument raised on behalf of appellant regarding the ommision of name of accused-appellant in the F.I.R., in the statements of the witnesses recorded under Section 161 Cr.P.C and naming of the accused-appellant for the first time before the court deserves consideration.
59. There is no dispute regarding the law that F.I.R is not an encyclopedia disclosing the entire prosecution case in its minute detail as held by the Apex Court in the case of Superintendent, C.B.I and others vs. Tapan Kumar Singh 2003(6) SCC 175; State of U.P. vs. Naresh and othesrs, 2011 (4) SCC 324; Lalitha Kumari Government of U.P. vs. Another 2014 (2) SCC 1 and Amish Devgan vs. Union of India and Others 2021 (2) SCC 1.
60. It also settled law that the F.I.R is not substantive piece of evidence, it can only be used for corroborating and contradicting its maker when he appears as witness in the court (See Dharma Rama Bhagare vs. State of Maharashtra 1973(1) SCC 537).
61. It is also settled position of law that the prime object of F.I.R is to set the crimial law in motion and enable the investigating authorities to gather information about the alleged incident and to apprehend the accused, hence, though not a substaintial piece of evidenc, F.I.R may be put before witness for the purpose of supporting or contradicting the maker of the F.I.R regarding his evidence.
62. Whether the omissions in the F.I.R would seriously impeach the credibility of witness would depend on the question whether it is important fact and whether that fact was within the knowledge of informant yet he did not disclosed the same, while lodging of the F.I.R.
63. The Apex Court in the case of State of M.P. vs. Ramzan Khan and Others decided by Hon'ble Supreme Court vide Criminal Appeal No. 2129 of 2014 found that trial court believed the testimony of the mother of deceased who deposed before the court that her dying son made oral dying declaration before her that the accused, Ramzan Khan, Mustab Khan and Haseeb Khan, caused his murder after beating him with sickle, axe and lathi. The trial court did not found this oral dying declaration in the police statement of the mother of deceased but the trial court convicted the accused only on the basis of such statement of the mother of deceased. The Apex Court held that the trial court has wrongly believed the oral evidence of mother of deceased, P.W.-8 and convicted and sentenced the appellant when neither in the F.I.R nor in the police statement of witness, she stated anything about the oral dying declaration made to her by the deceased. The Apex Court also noted that the prosecution failed to establish that when the deceased made oral dying declaration before his mother, he was in fit state of mind to speak or talk relevantly.
64. Coming back to the present case, this court finds that the statement of P.W.-6 that her injured mother asked her not to disclose the name of appellant, Raiyaan, to anyone when Raiyyan caused fatal injuries to her along with co-accused, Munir, is not supported by any recital in the F.I.R or in her police statement belatedly recorded by the investigating officer after 2-1/2 - 3 months (two and a half - three months) of the incident by the police. Therefore, the oral dying declaration made by the deceased, Farzana, to P.W.-6 does not inspires confidence of this court. The argument that she did not disclosed the name of the appellant due to fear of the appellants, being dreaded criminals, cannot be a justification for withholding the identity of the accused till P.W.-6 appeared before the court, after about 6 years of the incident.
65. The next point of consideration in this case is regarding the credibility of witnesses, P.W.-1 and P.W.-2. Learned Senior Counsel for the appellant has relied upon the judgment of the Apex Court in the case of Govind Mandavi vs. State of Chhattisgarh (Supra) and has submitted that it is admitted case of the prosecution witnesses, P.W.-1 and P.W.-2, that they knew the appellant well and they belonged to the same locality as the witnesses. Yet they could not name them in the F.I.R. The first informant P.W.-1 has given graphic account of the incident soon after the incident but has ommitted the name of accused in the F.I.R The subsequent explanation that because of fear the name of accused were not mentioned in the F.I.R has not been viewed by the Apex Court with favour in its judgment noted above. The Apex Court in the case of Govind Mandavi (Supra) has relied upon its another judgment in the case of Ram Kumar Pandey vs. State of M.P., AIR 1975 SC 1026 and has held that where the F.I.R was lodged by father of murdered boy and his daughters had seen the appellants inflicting blows on the deceaed, the father would have certainly mentioned it in the F.I.R. The Apex Court held that omission of such important fact affecting probability of case are relevant under Section 11 of the Evidence Act in judging the veracity of prosecution case. In the present case, P.W.-1, P.W.-2 and P.W.-6 all claimed to have seen the incident but there is not a whisper in the F.I.R and their police statement in this regard. Hence, the prosecution case appears to be clearly doubtful on this account.
66. The Court has considered the judgment of Ram Bihari Yadav (Supra) and finds that it is a case of two dying declarations and both were recorded in black and white, unlike the present case where there is only an oral dying declaration proved by P.W.-6 without any corroborative evidence on record. Hence, the case cited on behalf of learned counsel for the informant is distinguishable on facts.
67. Learned counsel for the informant has relied upon the judgment of the Apex Court in the case of Ram Bihari Yadav vs. State of Bihar and others reported in 1998 (0) Supreme (SC) 503 and has submitted that the Apex Court has held that sanctity of dying declaration, coming from mouth of a dying person cannot be questioned. It has been submitted that the dying declaration made by deceased, Farzana, to her daughter, P.W.-6, was most credible document and has been rightly relied upon by the trial court.
68. P.W.-1 is real brother of the deceased who lodged the F.I.R against unknown accused. P.W.-2 stated that he named the accused when P.W.-1 was lodging the F.I.R but there is no explanation why F.I.R was lodged against unknown accused, what were the reasons which prevented P.W.-1 to name the accused in the F.I.R. Even if we discount the F.I.R on the ground that it is not expected to be encyclopedia then there is again absence of name of any accused in the statements of P.W.-1 and P.W.-2 and also P.W.-6 recorded by the police under Section 161 Cr.P.C. P.W.-1 and P.W.-2, the witnesses aforesaid have admitted that the appellants were residents of their own mohalla and they were well acquainted with them. Yet, absence of the name of appellant in the F.I.R clearly proves that the witnesses were not aware of the identity of the accused at the time of lodging of F.I.R and at the time of recording of their police statements. For the first time before the court they named the appellants. It is also notable that before naming of the appellant in court, P.W.-1 admitted that he gave many interviews in television regarding the incident but never named the appellant. He gave the reason for all the lapses on his part that by that time the appellant was not arrested. The theory of co-accused, Munir, threatning P.W.-1 from jail as the reason for not disclosure of name of the appellant, does not sounds credible. Even the story of threat being extended by co-accused, Munir, to P.W.-1 saw the light of the day in his statement recorded before the trial court. In support of his statement before the court, P.W.-1 filed an application disclosing that he has received threat calls from two mobile numbers but we find that the mobile numbers wherefrom the threat calls were allegedly given to P.W.-1 were not disclosed by him in his testimony before the court.
69. It is also notable that the threat calls were made in December, 2019when the incident took place on 03.04.2016 and for more than 3-1/2 years no threats were extended to P.W.-1.
70. The statement of P.W.-2, Haseeb Ahmad, cousin of first informant, does not stands on better footing vis-a-vis P.W.-1. He claimed that he saw the incident and also accompanied the first informant to the police station. He justfied his presence at the place of incident on the basis of a flimsy story that he went to attend marriage of his niece at Bandhan Guest House, Shehora and thereafter returned back to his house at Sahaspur. After returning to his house, his wife discovered that she has left her purse with jewellery at the aforesaid banquet hall and while he was returning to the banquet hall on motorcycle to collect the purse, he witnessed the incident on the way. Thereafter he has not explained what happended to the purse of his wife and whether he send someone to bring back her purse with jewellery. He also did not proved whether he made complaint against banquet hall regarding the missing purse of his wife. P.W.-2 has disclosed the name of appellant and co-accused, Munir, for the first time in court. He admitted in his statement that before the court that he was interrogated by police for 15-16 days after the incident yet the absence of name of the appellant and co-accused in his statement, casts serious doubt about his testimony. He has also claimed before the court that because of threat from the accused, he did not named them during investigation. Like P.W.-1 he also stated that he was threatened by co-accused, Munir, on telephone from jail but this was done after more than 3-1/2 years in his case also.
71. The statement of P.W.-6 is again very important like P.W.-1 and P.W.-2. It also raises serious questions regarding credibility of her evidence. P.W.-6 is daughter of both the deceased, who was present along with her brother in their car, when her parents were fired upon by the assailants. In her statement also there is absence of name and any of the accused like the statement of P.W.-1 and P.W.-2 recorded under Section 161 Cr.P.C by the police. Her statement was recorded belatedly after 2-1/2 - 3 months of the incident and she also named the accused for the first time in the court. She has explained her conduct of not disclosing the name of accused, firstly, due to fear and secondly, due to direction of her injured mother not to disclose name of the appellant. This court has considered above, the veracity of oral dying declaration of the mother of P.W.-6 and its evidentiary value in detail and it does not needs reiteration.
72. There is another vital aspect of this case regarding identification of the accused. P.W.-1 has claimed that he knew the appellant well before the incident. He also admitted that he gave some interviews in television regarding the incident but he did not disclosed the name of accused-appellant there but before the court he named him after about six years of the incident. Even in court, the witnesses did not made docket identification of the accused. In this case, there was no need of test identification parade since it was admitted case of the prosecution that they knew the accused well since before the commission of alleged offence. Therefore, the docket identification of accused was required to have been conducted in the court to clearly the identity of the accused, which was not done.
73. The Apex Court in the case of Tukesh Singh and Another vs. State of Chhattisgarh (Supra) has held in paragraph 21 that during docket indentification of an accused in court the witness should clearly state the manner of commission of incident by particular accused :-
"21. In a case where there are eyewitnesses, one situation can be that the eyewitness knew the accused before the incident. The eyewitnesses must identify the accused sitting in the dock as the same accused whom they had seen committing the crime. Another situation can be that the eyewitness did not know the accused before the incident. In the normal course, in case of the second situation, it is necessary to hold a Test Identification Parade. If it is not held and if the evidence of the eyewitness is recorded after a few years, the identification of such an accused by the eyewitness in the Court becomes vulnerable. Identification of the accused sitting in the Court by the eyewitness is of utmost importance. For example, if an eyewitness states in his deposition that "he had seen A, B and C killing X and he knew A, B and C". Such a statement in the examination-in-chief is not sufficient to link the same to the accused. The eyewitness must identify the accused A, B and C in the Court. Unless this is done, the prosecution cannot establish that the accused are the same persons who are named by the eyewitness in his deposition. If an eyewitness states that "he had seen one accused assaulting the deceased with a sword, another accused assaulting the deceased with a stick and another accused holding the deceased to enable other accused to assault the deceased." In such a case, the eyewitness must identify the accused in the open Court who, according to him, had assaulted the accused with a stick, who had assaulted the deceased with a sword and who was holding the deceased. Unless the eyewitnesses identify the accused present in the Court, it cannot be said that, based on the testimony of the eyewitnesses, the guilt of the accused has been proved.
22. In the present case, in case of two eyewitnesses, in the cross-examination, it is brought on record that the accused persons named by them were sitting in the Court.
However, they did not identify a particular accused by ascribing him a role. None of the eyewitnesses has specifically identified any of the accused in the Court.
23. In this case, the failure of the eyewitnesses to identify the accused in the court as the accused they had seen committing the crime is fatal to the prosecution's case. There are material omissions brought on record in the cross-examination of the eyewitnesses. They are so relevant that the same constitute contradictions in view of the explanation to Section 162 of the Code of Criminal Procedure, 1973. The appellants/accused, before they were enlarged on bail, had undergone a minimum of nine to ten years of actual sentence. They have been on bail for about twelve years.
24. Considering the discussion made above, it is not possible to come to a conclusion that the guilt of the appellants/accused is proved beyond a reasonable doubt. As stated earlier, the versions of the eyewitnesses differ.
25. We are, therefore, of the considered opinion that guilt of the accused has not been proved beyond a reasonable doubt."
74. Learned counsel for the informant has relied upon the judgment of the Apex Court in the case of Vijaya Singh and Another (Supra) and has submitted that the statement of P.W.-3 and P.W-12 recorded under Section 164 Cr.P.C before the Magistrate ought to be considered by this court as credible, even though the witnesses have disowned their statements on the ground that their statements were recorded under pressure made by police. In the case of Vijaya Singh (Supra) the witnesses, P.W.-3 and P.W.-4 retracted from the material part of their statements recorded under Section 164 Cr.P.C. The Apex Court held that such a statement is not considered as substantive piece of evidence as substantive oral evidence is one before the court and subject to cross-examination. However, section 157 of the India Evidence Act makes it clear that the statement under Section 164 Cr.P.C could be used for corroboration and contradiction. The Apex Court further held that need of recording such a statement arises when the witness appears to be connected with the accused and is prone to changing his version at later stage due to influence. The Apex Court held as follows:-
"........ that the statement under Section 164 Cr.P.C has greater amounts of credibility and stands on better footing than the statement under Section 161 Cr.P.C and the vigor of Section 162 Cr.P.C does not applies to statement under Section 164 Cr.P.C. Therefore, the Apex Court held that weight to be attached to such a statement is to be determined by the court on a case to case basis and the same would depend to some extent upon whether the witness has remained true to his statement or has resiled therefrom but it would not be conclusive factor. The court is required to examine the circumstances in which such statement was recorded and the reasons why the victim has retracted from the statements. Such retraction could be result of manipulation and the court has to examine the circumstances in which statement was recorded, the reasons stated by the witness for retracting from the statement, etc., Ultimately, what counts is whether the court believes a statement to be true and the ultimate test of reliability happens during trial upon a calculated balancing of conflicting versions in the light of other evidence on record."
75. In the present case, it has come in the statement of P.W.-3, Inamul Haq, whose statement was recorded under Section 164 Cr.P.C., that the police has called him at Sheohore Sugarcane Mill Guest House and he was detained for 6 - 7 days. Many senior and supporting police officers were campaning there. Number of persons, namely, Azam, Haseeb, Fazal, etc., were detained there and they were being pressurized by the police that in case they do not become witness, they shall be challaned and not let off. It was difficult to save himself from police therefore he got his statement recorded before the Magistrate under Section 164 Cr.P.C because of pressure of the police and only thereafter he was set free by the police.
76. P.W.-12, Mohd. Azam, also stated that police called him for investigation, when he came to the village after coming to know of the incident. Witness, Haseeb, was also detained by the police along with many other persons for many days. He was threatened to get his statement recorded as directed by the police otherwise he would be sent to jail. Therefore, he got his statement recorded under Section 164 Cr.P.C under the pressure of police.
77. Therefore, keeping in view the judgment of the Apex Court in the case of Vijaya Singh (Supra) it cannot be held that the statement of P.W.-3 and P.W.-12 recorded under Section 164 Cr.P.C were their free and fair statements recorded correctly. Their credibility is clearly in doubt since P.W.-3 and P.W.-12 both have stated that they were detained by the police and compelled to give their statements as directed by the police otherwise they were threatened of dire consequences. Hence, in above factual background no weight can be attatched to the statements of P.W.-3 and P.W.-12 recorded under Section 164 Cr.P.C. The arguments of the learned counsel for the informant and learned counsel for the State in this regard deserve to be turned down.
78. After considering the entire facts and circumstances of this case, the court is of the view that prosecution case is full of doubts and unexplained questionable conduct of the prosecution witnesses, P.W.-1, P.W.-2 and P.W.-6. It is a case of murder of officer of National Investigating Agency (N.I.A.) and his wife. The officer was investigating number of high profile cases relating to national security, including cases of terrorism. The police party camped at the place of incident for months together to workout the case. It detained number of persons of places in and around the place of incident for number of days, as admitted by P.W.-2, P.W.-3 and P.W.-12, but could not found any reliable clue. The deceased-appellant, Munir, was local criminal and appellant, Raiyyan, was shown as member of his gang and police got them named first in the statements of P.W.-3 and P.W.-12 recorded under Section 164 Cr.P.C under duress to workout the case and thereafter, before the trial court appellant and co-accused, Munir, were named by witnesses of fact for the first time and they were convicted and sentenced by trial court.
79. Trial court has committed grave error in awarding capital punishment to the appellant which can be understood by the fact that trial court is at the lowest rug in the hierarchy of fear prevailing in our system. Therefore, this court is of the view that the judgment and order passed by the trial court deserves to be set aside and is set aside as such.
80. Accordingly, the appellant is acquitted of all the charges levelled against him. The reference made by the trial court stands answered in the aforesaid terms.
81. The appellant is in jail since 07.04.2016. He is directed to be released from jail forthwith, if not arrested in any other case.
82. Criminal Appeal is allowed.
83. Let the trial court record along with copy of this judgment be sent to the trial court for compliance within a week.
(Siddharth,J.) March 31, 2026 Rohit