Wilayat Khan and Ors. vs The State of U.P.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 25 May, 1951

Coram: Chandrasekhara Aiyar

In this case the matter was styled Wilayat Khan and Others versus the State of Uttar Pradesh and was decided by the Supreme Court of India on 25 May 1951. The judgment was delivered by Justice Chandrasekhara Aiyar, who also formed the bench that heard the appeal. The three appellants, together with another accused named Abdul Hai Khan, had been tried before the Sessions Judge of Ghazipur on a charge of murdering a person called Sikandar Khan. The trial court acquitted all of them. The State of Uttar Pradesh challenged that acquittal by filing an appeal, and the High Court set aside the trial court’s decision. The High Court convicted the appellants under sections 147 and 302 read with section 149 of the Indian Penal Code, sentenced each of them to two years’ rigorous imprisonment for the rioting allegation and ordered a life term of transportation for the murder, with both punishments to run concurrently. The appellants sought special leave to appeal to this Court. It is noted that the fourth accused, Abdul Hai Khan, died while in custody before this appeal could be heard.

The prosecution’s case was summarised as follows: on 21 December 1947, at about 10.45 a.m., Sikandar Khan, his son Amanat Ullah Khan (who was later identified as the first prosecution witness), and a police constable named Muneshwar Chamar (the seventh prosecution witness) left their home village of Mania to travel to Dildarnagar in order to catch a train for Ghazipur. Their purpose was to attend a criminal proceeding related to the murder of Munir Khan. While proceeding, they were joined by two other villagers, Sitar Khan and Altaf Khan, who were traveling to Usia on their own business. Sikandar Khan was riding a horse. At approximately midday, when the party reached a location marked “I” on the site plan, five men suddenly emerged from a thorny hedge known as a dubiki. Four of those men, namely Wilayat Khan, Usman Khan, Abdul Hai Khan and Quddus Khan, were armed with two spears and two lathis and they attacked Sikandar Khan. A fifth individual, Jannat Khan, was also present with a firearm but he was not tried because he was reported to have absconded. The assault resulted in several deep lacerations on Sikandar Khan’s head, and he died on the spot. Amanat Ullah Khan promptly rode about three-quarters of a mile eastward to Bhadaura Railway Station and sent a telegram to the police sub-inspector of Gahmar. He then returned to the scene of the crime and proceeded to Dildarnagar, roughly three to four miles to the west, where he lodged the first information report (exhibit P-2) prepared by a schoolmaster who later testified as the second prosecution witness. The report recorded the time of the incident as 3 p.m., although a later correction changed the hour from 1 p.m. to 3 p.m. Subsequent investigation led to charges being framed against the four accused under sections 147, 149 and 302 of the Penal Code. The Sessions Judge, after a careful examination of the evidence, concluded that it was unlikely that the alleged eyewitnesses had actually observed the incident and held that the prosecution had failed to prove the case beyond reasonable doubt. Consequently, the trial court acquitted the accused, agreeing with two of the three assessors.

In this matter the State filed an appeal against the acquittal that had been ordered by the Sessions Judge. The learned Judges of the High Court examined the evidence in great detail and concluded that the four eye-witnesses were describing facts that they had actually seen, and that there was no reason to distrust their testimony. Consequently, the High Court set aside the acquittal, found the accused guilty of rioting with deadly weapons and of the murder of Sikandar Khan, and imposed on them the sentences that had been mentioned earlier. The third accused, Abdul Hai Khan, did not lodge any appeal for reasons that were not explained. The Court then observed that, even in appeals against acquittals, the High Court possessed powers as wide as those in appeals from conviction, but two important principles must be kept in mind. First, in an appeal from an acquittal the presumption of innocence continues to operate until the final judgment; second, great weight should be attached to the view of the Sessions Judge who had conducted the trial and who had the opportunity to see and hear the witnesses. The High Court did not disregard this consideration; at the outset it stated that, because the accused had been acquitted by the learned Sessions Judge, the presumption of innocence in their favour had not been weakened, and that interference with that order would be unjustified unless the balance of evidence was clearly against the accused. After observing this caution, the High Court proceeded to discuss and weigh the evidence meticulously. In doing so it set aside several circumstances that the Sessions Judge had regarded as improbabilities in the prosecution’s case, and became convinced of the prosecution’s version of events, even though it also expressed the view that the testimony of the prosecution witnesses required close scrutiny because of acknowledged party feelings and enmity between the accused and the eye-witnesses. The Court noted that the village of Mania was torn by two rival factions, one led by Sikandar Khan and the other by Munir Khan. Munir Khan had been murdered in June 1947, and P. W. 1 Amanat Ullah Khan had been prosecuted for that murder. After the death of Sikandar Khan, Amanat Ullah Khan became the leader of his party, and Sitare Khan and Altaf Khan were members of that same party. The accused belonged to the opposite party and were related to each other; the first three accused were sons of sisters, while the absent accused, Jannat Khan, was the nephew of the first accused. Earlier criminal proceedings had implicated three of the present appellants for causing injuries to Sikandar Khan. The Court recognized that the open hostility between the two parties provided a motive for the murder.

In this case, the Court observed that the prosecution appeared to have fabricated a false case against the accused parties, and that this background framed the manner in which the evidence had to be examined. A number of facts stood out as circumstances that could tilt the balance in favour of the accused. First, the telegram sent by the first prosecution witness to the signaler at Bhadaura Railway Station immediately after the murder did not identify the assailants, even if the singular use of the word “mulzin” was overlooked. The evidence of the Assistant Station Master, Sheobans Singh (document D.W. 3), indicated that a man named Ram Singh had accompanied Amanat Ullah and that Ram Singh reported the murder of Sikandar Khan and claimed that Amanat Ullah told him Ram Singh had actually seen the dead body. This suggested that Amanat Ullah was not an eye-witness. Although the High Court rejected his testimony for reasons that were not wholly conclusive, the fact remained that Amanat Ullah did not disclose to D.W. 3 the identities of the men who had killed his father.

The second important fact concerned the nature of the attack. If two men armed with spears and two men armed with lathis simultaneously struck Sikandar Khan, felled him from his horse and continued beating him after he lay prostrate, it was difficult to accept that the spears would have caused only mild scratches or very minor incised wounds that were neither deep nor long nor wide. The third consideration involved the four witnesses identified as P.W. 1, 4, 5 and 7. They would not have been permitted to remain two or three paces from Sikandar Khan and watch the incident from beginning to end because Jannat Khan, who was armed with a gun, chased them away, pointed the gun at them, and warned that he would shoot if they proceeded further. While fear of the gun might have restrained them, it was hard to believe that Jannat Khan would have allowed them to stay and obtain a full view of the murder. Moreover, the Sessions Judge found it implausible that Sitare Khan and Altaf Khan left the scene as soon as some people arrived from Mania and were then unavailable for police examination at about five p.m. Although men from the village could have come, there was no clear reason why these two individuals made themselves scarce. Their absence appeared to be a weak explanation that required time to devise, and although their names were listed in the first information report, no further details were provided, suggesting that the information had been thought out only later.

In the record, the first information report was noted, but it contained no particulars that might have been expected to be elaborated later. The Sessions Judge inferred from the surrounding circumstances that the witnesses probably did not observe the incident directly; rather, they arrived at the scene after the murder had taken place and consequently constructed a narrative that implicated their adversaries. This inference was judged by the Court to be neither exaggerated nor unreasonable. The Court found the Sessions Judge’s conclusion to be more persuasive than that of the High Court, which had lessened the significance of the deficiencies by employing reasoning that the Court considered rather strained. For example, Amanat Ullah Khan testified that the route from his village of Mania to Dildarnagar passed through Bhadaura and Usia. The learned Judges, however, observed that Bhadaura is not precisely situated on the direct road to Dildarnagar. Bhadaura is a relatively bustling centre where a market convenes twice weekly, and there is nothing unusual or implausible about Amanat Ullah Khan leaving his father’s company—his father was travelling on horseback along a foot-path—while he himself proceeded to Bhadaura. The journey was not, by any stretch, an excessively indirect one. In the normal course of events, the telegram identified as Exhibit P-1 would ordinarily have been handed to the Assistant Station Master only a few minutes before its dispatch at two thirty p.m. Yet the learned Judges expressed reluctance to accept the Assistant Station Master’s testimony that Amanat Ullah Khan had approached him at two fifteen p.m. The singular use of the term “mulzin” was explained by the Court on the basis that Amanat Ullah Khan is a semi-literate individual who finds writing difficult. A critical point of importance, however, is that the names of the accused were omitted from the telegram (Exhibit P-1). The High Court addressed this omission only by suggesting that a person might reasonably hesitate to disclose names in a telegram that could be read by anyone. The Court noted that one would have expected a person such as Amanat Ullah Khan—who had just witnessed five armed men fatally assault his father—to furnish the assailants’ names immediately, had he actually seen them. The betel-seller, Baij Nath, claimed that Amanat Ullah Khan was chewing betel in his shop at about two p.m. and that it was there he learned from Ram Singh that his father had been killed. While the High Court found reasons to doubt this statement, the Court observed that there is nothing in the Assistant Station Master’s evidence indicating that he was a vested witness or that he was presenting false facts. The High Court perceived no abnormality in Sitare Khan and Altaf Khan departing the scene merely because individuals from Mania arrived shortly before sunset. The Court, however, found it rather odd that they chose to absent themselves without any satisfactory explanation, especially given that police presence was anticipated imminently. The Court concluded that there is nothing improbable in the surrounding facts as presented.

In this case, the Court observed that Amanat Ullah Khan had mentioned the names of certain individuals in his report, and it is relevant that those individuals belonged to his own party, were co-accused with him in proceedings under Section 107 of the Criminal Procedure Code, and were evidently his associates or henchmen who would be prepared only to say what was expected of them. The Court held that little attention should be given to the testimony of the syce Muneshar Chamar. Concerning the injuries found on Sikandar Khan, the learned Judges stated, “We dot think that the evidence of witnesses is of such a character as to be inconsistent with the medical evidence”. The Court explained that the correct test is whether the witness evidence is inconsistent with the medical evidence; if it is not, the accused should not be denied the benefit of that consistency. The Court further noted that interference with an order of acquittal made by a Judge who had the advantage of hearing the witnesses and observing their demeanour may be entertained only for compelling reasons, not on a simple balancing of probabilities and improbabilities, and certainly not merely because a different view of the evidence or the facts could be taken. The Court reiterated that the grounds relied upon by the High Court for setting aside the acquittal did not show that the Sessions Judge’s conclusion was improper. Consequently, the appeal was allowed and the order of the Sessions Judge was restored, meaning that the appellants will stand acquitted of the charges against them and will be set at liberty.