AEJAZ AHMAD SHEIKHversusSTATE OF UTTAR PRADESH & ANR.

                 [2025] 4 S.C.R. 1507 : 2025 INSC 529

                         Aejaz Ahmad Sheikh
                                    v.
                     State of Uttar Pradesh & Anr.
                     (Criminal Appeal No. 2142 of 2017)
                                 22 April 2025
                  [Abhay S Oka,* Pankaj Mithal and
                    Ahsanuddin Amanullah, JJ.]


                            Issue for Consideration
       Issue arose as regards the correctness of the order passed by
       the High Court by which the accused was acquitted of the offence
       punishable u/s.302 IPC.

                                   Headnotes†
       Code of Criminal Procedure, 1973 – s.313 – Penal Code, 1860 –
       s.302 – Murder – Examination of accused – Murder of women
       and her three daughters by setting them on fire – FIR by
       complainant-brother of deceased lady against accused-
       husband and co-accused, that they poured kerosene on the
       wife and three daughters and set them on fire – Co-accused
       later succumbed to burn injuries – On basis of the testimony
       of the minor son and dying declarations of the wife and one
       of the daughter, trial court convicted accused for offence
       punishable u/s.302 and awarded capital punishment –
       However, the High Court acquitted the accused – Interference
       with:
       Held: Material contradictions in the evidence of the minor son
       of the deceased and trial judge did not satisfy himself about the
       capacity of the minor to understand and answer questions, make
       his testimony vulnerable, and unsafe to rely upon – Evidence
       of prosecution witness-Tahsildar on duty regarding the dying
       declaration made by the two victims not put to the accused in his
       statement u/s.313 – Deceased made a dying declaration even to
       the complainant, even the testimony of complainant to that effect
       not been put to the accused in his statement u/s.313 – As this
       evidence was not put to the accused in his statement u/s.313, he
       was denied an opportunity to explain the same, causing prejudice to
       him – Evidence of dying declaration to be kept out of consideration –
* Author
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    At this stage it would be unjust to pass an order of remand for
    recording further statements u/s.313, it would cause prejudice to
    the accused – Furthermore, no explanation offered by prosecution
    of how accused and co-accused suffered burn injuries which raises
    suspicions about the prosecution’s case – After re-appreciation of
    evidence, the view taken by the High Court that the guilt of the
    accused was not proved beyond a reasonable doubt is a possible
    view – Even assuming that another view is possible, is no ground
    to overturn the order of acquittal – Though the incident is very
    shocking, however, in the absence of evidence on record to prove
    the guilt of the accused beyond reasonable doubt, interference with
    the impugned judgment not called for. [Paras 13-27]

    Code of Criminal Procedure, 1973 – s.313 – Examination of
    accused – Vital prosecution evidence not put to the accused
    in statement u/s.313 – Suggestions by Supreme Court:
    Held: When an appeal against conviction is preferred before
    High Court, at the earliest stage, the High Court must examine
    whether there is a proper statement of the accused recorded
    u/s.313 CrPC/s.351 of the Bharatiya Nagarik Suraksha Sanhita,
    2023 – If any defect is found, at that stage, the same can be
    cured either by High Court recording further statement or by
    directing the trial court to record – If this approach is adopted,
    the argument of delay and prejudice will not be available to the
    accused. [Para 28]

                            Case Law Cited
    Raju Devade v. State of Maharashtra [2016] 3 SCR 818 : (2016)
    11 SCC 673; J. Ramulu & Anr. v. State of Andhra Pradesh [2008]
    3 SCR 413 : (2009) 16 SCC 432; Balbir Singh & Anr. v. State of
    Punjab [2006] Supp. 6 SCR 636 : (2006) 12 SCC 283; Baleshwar
    Mahto and Anr. v. State of Bihar and Anr. (2017) 3 SCC 152; Raj
    Kumar v. State (NCT of Delhi) [2023] 5 SCR 754 : (2023) 17 SCC
    95; P. Ramesh v. State [2019] 10 SCR 875 : (2019) 20 SCC 593;
    Pradeep v. State of Haryana [2024] 1 SCR 306 : 2023 SCC Online
    SC 777 – referred to.

                               List of Acts
    Code of Criminal Procedure, 1973; Evidence Act, 1872; Penal
    Code, 1860.
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            Aejaz Ahmad Sheikh v. State of Uttar Pradesh & Anr.


                             List of Keywords
     Murder; Murder by setting on fire; Pouring of kerosene; Burn
     injuries; Capital punishment; Rarest of rare case; Dying declaration;
     Testimony of minor; Preliminary questions not put to minor witness;
     Competent to depose; Material contradictions; Capacity of minor
     witness; Prejudice to accused; Curable defect; Remand; Beyond
     reasonable doubt; Proper statement of the accused; Argument
     of delay and prejudice; Examination of accused; Suggestions by
     Supreme Court; Appeal against conviction; Appeal against acquittal;
     s.351 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     2142 of 2017
     From the Judgment and Order dated 13.03.2015 of the High Court
     of Judicature at Allahabad in CNN No. 1895 of 2014
     With
     Criminal Appeal No(s). 2143-2144 of 2017

                         Appearances for Parties
     Shubhranshu Padhi, Amicus Curiae.
     Advs. for the Appellant:
     Jay Nirupam, D. Girish Kumar, Pranav Giri, Ekansh Sisodia, Ms. A.M.
     Harsavardhini, Anuvrat Sharma, Ms. Alka Sinha.
     Advs. for the Respondents:
     Anuvrat Sharma, Ms. Alka Sinha, Anjani Kumar Mishra, Mrs. Hardeep
     Kaur Mishra, Praveen Mishra, Dr. Ravi Abhilash, Javed Lateef.

                 Judgment / Order of the Supreme Court

                                 Judgment

     Abhay S. Oka, J.

     FACTUAL ASPECTS
1.   These appeals arise from the same impugned judgment of the High
     Court by which one Hasim Sheikh (the accused) was acquitted of
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     the offence punishable under Section 302 of the Indian Penal Code
     (for short ‘the IPC’). The incident is very gruesome. It is the death
     of Amina (wife of the accused) and her three daughters, namely,
     Najma, Fatima and Salma, due to burn injuries. Even Aslam (cousin
     of the accused) died due to the burn injuries sustained in the same
     incident.
2.   The accused and Amina had three daughters Najma, Fatima and
     Salma and two sons Kamar Hasim and Kadam. The complainant is
     PW-1 Aejaz Ahmad Sheikh. He is the real brother of the deceased
     Amina. As the accused used to abuse and beat his deceased wife
     and deceased daughters, PW-1 visited the house of the accused
     on 26th December 2008. He made an attempt to resolve the issue.
     He was not successful. He was told to leave the house. While he
     was leaving the house, the deceased Amina told him not to go as
     the accused and his family members were intending to kill her. A
     few hours after PW-1 reached his home, he received a call that the
     accused, out of anger, along with his cousin Aslam, poured kerosene
     on Amina and the three daughters and set them on fire. Daughter
     Najma died on the spot, and the other three were admitted to the
     District Hospital. PW-1 rushed to the hospital and met his sister
     Amina, who disclosed that after his departure, the accused, along
     with Aslam, poured kerosene on her and three daughters and set
     them on fire. On the very same day, Aslam was also admitted to
     the hospital due to burn injuries. On 26th December 2008, the dying
     declaration of daughter Fatima was recorded by Tahsildar, Deoria,
     Harish Chandra Singh (PW-11). Fatima stated that her father and the
     village people poured kerosene oil and set it on fire. She blamed her
     paternal grandparents for being the root cause of the burning. On
     the same day, a dying declaration of the wife, Amina, was recorded
     by PW-11, in which she stated that the accused locked her and her
     three daughters and poured kerosene on her and her daughters and
     set them on fire. She stated that Najma died, and she, along with
     her two daughters, sustained burn injuries.
3.   On 26th December 2008, on the complaint of PW-1, a first information
     report was registered for the offences punishable under Sections
     302,307 and 120B of the IPC. On the next day, the recovery of
     burnt clothes and a plastic can containing 100 gms. of kerosene
     was recovered from the site of the incident. On 1st January 2009,
     Salma died. On 2nd January 2009, co-accused Aslam died. On the
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          Aejaz Ahmad Sheikh v. State of Uttar Pradesh & Anr.


     same day, Fatima succumbed to burn injuries. On 6th January 2009,
     Amina died. All of them died due to burn injuries. A charge sheet
     was filed against the accused for the offences punishable under
     Section 302 of the IPC.
4.   The learned Addl. District and Sessions Judge, by judgment dated
     19th April 2014, convicted the accused. The learned Judge accepted
     the testimony of PW-5 Kamar Hasim, the minor son of the accused.
     The learned Judge also accepted the dying declarations of Amina
     and Fatima recorded by PW-11, Tahsildar. He held the accused
     guilty of the offence punishable under Section 302 of the IPC. The
     learned Judge held that this case was falling under the category of
     rarest of the rare cases and proceeded to award capital punishment.
5.   By the impugned judgment, the High Court not only declined to
     confirm the capital punishment but proceeded to acquit the accused.
6.   Criminal Appeal nos.2143-44 of 2017 has been preferred by the
     State, and Criminal Appeal no.2142 of 2017 has been preferred
     by PW-1 complainant. As no one represented PW-1, this Court
     appointed learned counsel Shri Shubhranshu Padhi as Amicus to
     espouse the cause of PW-1. He and the counsel for the State made
     detailed submissions.

     SUBMISSIONS
7.   Learned counsel appointed as amicus curiae to espouse the
     cause of the PW-1 (Appellant in Criminal Appeal No.2142 of 2017)
     has taken us through the depositions of the material prosecution
     witnesses and dying declarations. He submitted that the dying
     declarations of Amina and Fatima were properly recorded by PW-
     11, Tahsildar, after obtaining a fitness certificate from PW-14, Dr.
     KC Rai. He submitted that the evidence of both witnesses has not
     been shaken in the cross-examination. He submitted that the dying
     declarations were substantive pieces of evidence based on which
     the conviction of the accused could be based. He submitted that
     the dying declarations inspire confidence. He submitted that PW-1
     complainant, PW-2 Rayajul Haq, PW-3 Sadaqat Ali and PW-4 Sajjad
     Ahmad have deposed that deceased Amina was in a condition to
     speak and point out the role of the accused. He invited our attention
     to the testimony of the PW-5, a child witness. He submitted that
     there are bound to be some minor omissions and contradictions
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      in the evidence of a 15 years old boy who had seen his mother
      and three sisters being burnt by his father. His evidence cannot be
      discarded for that reason. Moreover, in the examination-in-chief, he
      deposed that he was threatened not to make any statement before
      the police authorities. He pointed out that though the High Court
      had held that there was no explanation for the severe burn injuries
      sustained by Aslam, PW-5 deposed that he was holding the victims
      at the time of the incident, which caused the burn injuries to him.
      Learned counsel submitted that the High Court had misread the
      medical evidence and came to the erroneous conclusion that Najma
      committed suicide and others were injured in the process of saving
      her. He would, therefore, submit that the guilt of the accused was
      proved beyond a reasonable doubt and, on reappreciation of the
      evidence, any court will come to a conclusion that the only possible
      finding was that the guilt of the accused was proved beyond a
      reasonable doubt.
8.    Learned counsel appearing for the first informant relied upon the
      following decisions:
      i.     Raju Devade v. State of Maharashtra;1
      ii.    J. Ramulu & Anr. v. State of Andhra Pradesh;2 and
      iii.   Balbir Singh & Anr. v. State of Punjab3
      He also relied upon a decision of this Court in the case of Baleshwar
      Mahto and Anr. v. State of Bihar and Anr.4. Relying upon the
      decision, he submitted that primacy must always be given to the
      ocular evidence and not to medical evidence.
9.    Learned counsel appearing for the accused pointed out that the
      evidence of dying declarations was not put to the accused in his
      statement recorded under Section 313 of the CrPC. He relied upon
      a decision of this Court in the case of Raj Kumar v. State (NCT
      of Delhi).5



1    (2016) 11 SCC 673
2    (2009) 16 SCC 432
3    (2006) 12 SCC 283
4    (2017) 3 SCC 152
5    (2023) 17 SCC 95
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           Aejaz Ahmad Sheikh v. State of Uttar Pradesh & Anr.


     CONSIDERATION OF SUBMISSIONS
10. We will deal with evidence of eye-witness PW-5 Kamar Hasim, who
    was 15 years old at the time of recording his evidence. It is well
    settled that a minor is also a competent witness. This Court in the
    case of P.Ramesh v. State6 has dealt with this issue. Under Section
    118 of the Indian Evidence Act, 1872 (the ‘Evidence Act’), a minor
    is a competent witness. In paragraph 16 of the said decision in the
    case of P. Ramesh, this Court held thus:
            “16. In order to determine the competency of a child
            witness, the Judge has to form her or his opinion.
            The Judge is at liberty to test the capacity of a
            child witness and no precise rule can be laid down
            regarding the degree of intelligence and knowledge
            which will render the child a competent witness. The
            competency of a child witness can be ascertained
            by questioning her/him to find out the capability to
            understand the occurrence witnessed and to speak
            the truth before the court. In criminal proceedings, a
            person of any age is competent to give evidence if
            she/he is able to (i) understand questions put as a
            witness; and (ii) give such answers to the questions
            that can be understood. A child of tender age can be
            allowed to testify if she/he has the intellectual capacity
            to understand questions and give rational answers
            thereto. [Ratansinh Dalsukhbhai Nayak v. State of
            Gujarat, (2004) 1 SCC 64 : 2004 SCC (Cri) 7] A child
            becomes incompetent only in case the court considers
            that the child was unable to understand the questions and
            answer them in a coherent and comprehensible manner.
            [ Sarkar, Law of Evidence, 19th Edn., Vol. 2, Lexis Nexis,
            p. 2678 citing Director of Public Prosecutions v. M, 1998
            QB 913 : (1998) 2 WLR 604 : (1997) 2 All ER 749 (QBD)]
            If the child understands the questions put to her/him and
            gives rational answers to those questions, it can be taken
            that she/he is a competent witness to be examined.”
                                                   (emphasis added)


6   (2019) 20 SCC 593
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     In the case of Pradeep v. State of Haryana7 in paragraphs 9 and
     10, this Court held thus:
            “9. It is a well settled principle that corroboration of the
            testimony of a child witness is not a rule but a measure of
            caution and prudence. A child witness of tender age is easily
            susceptible to tutoring. However, that by itself is no ground
            to reject the evidence of a child witness. The Court must
            make careful scrutiny of the evidence of a child witness.
            The Court must apply its mind to the question whether
            there is a possibility of the child witness being tutored.
            Therefore, scrutiny of the evidence of a child witness is
            required to be made by the Court with care and caution.
            10. Before recording evidence of a minor, it is the duty
            of a Judicial Officer to ask preliminary questions to
            him with a view to ascertain whether the minor can
            understand the questions put to him and is in a position
            to give rational answers. The Judge must be satisfied
            that the minor is able to understand the questions and
            respond to them and understands the importance of
            speaking the truth. Therefore, the role of the Judge
            who records the evidence is very crucial. He has to
            make a proper preliminary examination of the minor
            by putting appropriate questions to ascertain whether
            the minor is capable of understanding the questions
            put to him and is able to give rational answers. It is
            advisable to record the preliminary questions and
            answers so that the Appellate Court can go into the
            correctness of the opinion of the Trial Court.”
                                                     (emphasis added)

11. We may note here that before administering oath to PW-5, even
    preliminary questions were not put to him by the learned Trial Judge
    for ascertaining whether he is able to understand the questions put
    to him and is in a position to answer the same. The learned Judge
    should have asked preliminary questions to him to ascertain whether
    he understood the importance of the oath. The learned Judge


7   2023 SCC Online SC 777
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          Aejaz Ahmad Sheikh v. State of Uttar Pradesh & Anr.


     ought to have recorded satisfaction that the minor was competent
     to depose. However, this was not done by the learned Judge. He
     straightaway administered oath to the minor witness. In the deposition,
     it is not even mentioned that certain preliminary questions were put
     to the witnesses. Thus, it is apparent that the learned Trial Judge
     administered oath to PW-5 and recorded his deposition without
     satisfying himself about the competence of the minor to depose.
     This raises a question mark on the testimony of PW-5 especially
     when a minor witness can be easily tutored.
12. PW-5 deposed that PW-1 came around 4 o’clock to their house on
    the day of the incident. One Sajjad Jaif and one more uncle had
    come with him. All of them arrived in a jeep. Before he arrived, the
    accused Aslam and other family members were verbally abusing his
    mother, three sisters and his younger brother. The witness further
    deposed that the accused (his father) had assaulted him. When PW-1
    arrived, the accused, Aslam and family members started verbally
    abusing him. His father held PW-1’s collar and Aslam and Saiyyad
    were threatening to slap him. PW-1 told his mother that he would
    come on the next day with his maternal grandfather. He described
    the main incident as under:
           “……Suddenly after that, Hasim, Saiyyad, Hamid, Aslam,
           Ayesha, Sahdun, Shama Parvez aka Gudiya, all of them
           came and started dragging my mother and three sisters
           towards the kitchen. After that I and my younger brother
           Kadim started pulling our mother and sisters towards us.
           Sahidun and Shama Parvez pushed me and my brother
           away. After that my younger brother sat and started crying
           in the doorway of the outside room but I continued trying
           to pull them towards myself. Then I saw Hasim, Saiyyad,
           Hamid, Aslam, Ayesha, Sahidun, Shama Parvez aka
           Gudiya, they started pushing my mother and sisters, and
           after that Saiyyad, Hasim, took a huge gallon and started
           pouring kerosene oil on them. And Aslam was holding my
           mother and sisters. After Saiyyad took a match and gave it
           to Hasim and told him to set them on fire and get rid of the
           trouble. As soon as Hasim lit the match and threw it on my
           mother and sisters, the fire went out of control. I got very
           scared after seeing all this. After that I thought of saving
           my own life. When I went out from the kitchen, I came
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           across my younger brother sitting and crying. I opened
           the door and I and my younger brother Kadim ran out.”
     The witness further deposed that after he ran out of the house, he
     met Imran and requested Imran to save everyone. In the cross-
     examination, PW-5 stated that he was 12 years old when the incident
     happened and he was in 5th class.
13. We find that material contradictions have been brought on record in
    the evidence of PW-5 which have been proved through evidence of
    investigating officer PW-10, Shri Rajiv Singh. PW-5 was confronted
    with the following statements made by him in his statement recorded
    under Section 161 of CrPC:
        a. On seeing the smoke during the argument and fight inside,
           Aslam (co-accused), Shah Alam and other people went in to
           save his sisters Najma, Fatima and Salma and his mother who
           were burning;
        b. While trying to put out the fire, Aslam also caught on fire and
           Sayyed and Shah Alam also suffered some burns. His father’s
           hand and body were also burnt; and
        c. He did not know how the fire started.
     In the evidence of PW-10, the prior statements by which PW-5 was
     confronted, have been duly proved. These are major contradictions
     brought on record. These contradictions, apart from the fact that
     the learned Trial Judge did not satisfy himself about the capacity of
     PW-5 to understand and answer questions, make the testimony of
     PW-5 vulnerable.
14. In the cross-examination, PW-5 stated that after the incident, the
    village Pradhan took him to police station. When the inspector asked
    him, he stated that he did not know anything. He admitted that he did
    not tell anything about the incident to his paternal grandparents. In
    the cross-examination, he stated that the Inspector did not take his
    statement. He stated that he was giving testimony about the incident
    for the first time three years after the incident. In view of what we
    have discussed above, it is unsafe to rely upon his evidence.
15. Now, we come to the dying declarations of deceased Fatima and
    Amina allegedly recorded by PW-11, who was the Tahsildar on duty.
    PW-11 in the cross-examination has accepted that after recording the
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          Aejaz Ahmad Sheikh v. State of Uttar Pradesh & Anr.


     statements of both the victims, he did not read over the same to the
     victims. He admitted that there is no such endorsement made on the
     statements. He also accepted that the doctor had simply mentioned
     on the dying declarations that both of them were “fit” and had not
     stated that they were in a condition to make a statement.
16. The most unfortunate part is that the evidence of PW-11 about the
    dying declarations made by these two victims has not been put to
    the accused in his examination under Section 313 of CrPC. Not
    only that what is stated in the evidence by PW-11 is not put to the
    accused in his statement under Section 313 of CrPC, but even the
    fact that the dying declarations were made by Fatima and Amina to
    PW-11 was not put to the accused.
17. According to the prosecution, the deceased Amina made a dying
    declaration even to PW-1. Even the testimony of PW-1 to that effect
    has not been put to the accused in his statement under Section 313
    of CrPC.
18. The case of the prosecution is that Amina also made a dying
    declaration before PW-2. He stated in his deposition that “we found
    Amina Khatun in the hospital and she told us everything in relation
    to the incident.” He has not deposed what exactly deceased Amina
    told him. Therefore, it cannot be said that Amina made a dying
    declaration before PW-2 implicating the accused.
19. Now, coming to the evidence of PW-3, he stated that in hospital
    Amina told PW-1 that the accused and Aslam poured kerosene oil
    and set her and her daughters on fire. In the cross-examination,
    he admitted that he gave a statement to the investigating officer
    according to whatever PW-1 told him. When he was confronted
    with his statement under Section 161 of CrPC, he admitted that
    his statement regarding the accused pouring kerosene and setting
    the deceased and her daughters on fire was made by him as per
    the narration of PW-1. Therefore, it is very difficult to believe the
    testimony of PW-3.
20. Now, we come to the testimony of PW-4. He deposed that while
    he was in hospital, Amina informed PW-1 that the accused and
    Aslam dragged her and her daughters towards the room, sprinkled
    kerosene on them and set them on fire. It is pertinent to note that
    even this part of the testimony regarding dying declaration of Amina
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     has not been put to the accused in the statement under Section 313
     of the CrPC. In the cross-examination, he stated that he visited the
     hospital regularly from the time Amina and her two daughters were
     admitted to the hospital. He admitted that though he attempted to
     talk to Amina in the hospital, she was not able to talk, and she just
     asked for water.
21. Thus, the evidence of prosecution regarding the dying declaration was
    not put to the accused in his statement under Section 313 of CrPC.
    The law on this aspect is well-settled. In the case of Raj Kumar v.
    State (NCT of Delhi)5, this Court has summarised the law on his
    aspect. Paragraph 22 of the said decision reads thus:
          “22. The law consistently laid down by this Court can be
          summarised as under:
          22.1. It is the duty of the trial court to put each material
          circumstance appearing in the evidence against the
          accused specifically, distinctively and separately. The
          material circumstance means the circumstance or
          the material on the basis of which the prosecution is
          seeking his conviction.
          22.2. The object of examination of the accused under
          Section 313 is to enable the accused to explain any
          circumstance appearing against him in the evidence.
          22.3. The Court must ordinarily eschew material
          circumstances not put to the accused from consideration
          while dealing with the case of the particular accused.
          22.4. The failure to put material circumstances to the
          accused amounts to a serious irregularity. It will vitiate
          the trial if it is shown to have prejudiced the accused.
          22.5. If any irregularity in putting the material circumstance
          to the accused does not result in failure of justice, it
          becomes a curable defect. However, while deciding
          whether the defect can be cured, one of the considerations
          will be the passage of time from the date of the incident.
          22.6. In case such irregularity is curable, even the
          appellate court can question the accused on the material
          circumstance which is not put to him.
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          Aejaz Ahmad Sheikh v. State of Uttar Pradesh & Anr.


           22.7. In a given case, the case can be remanded to the
           trial court from the stage of recording the supplementary
           statement of the accused concerned under Section
           313CrPC.
           22.8. While deciding the question whether prejudice has
           been caused to the accused because of the omission, the
           delay in raising the contention is only one of the several
           factors to be considered.”
                                                  (emphasis added)

22. The prosecution has heavily relied upon the dying declarations
    of the two victims. As this evidence was not put to the accused
    in his statement under Section 313 of the CrPC, he was denied
    an opportunity to explain the same. Hence, this omission causes
    prejudice to him. Therefore, the evidence of dying declaration will
    have to be kept out of consideration.
23. The incident occurred on 26th December 2008. Even assuming that
    omission in recording the statement of the accused is curable, the
    question is whether, after a lapse of more than 14 years, the case
    can be remanded to the Trial Court for further examination of the
    accused under Section 313 of the CrPC. After such a long gap of
    14 years, it will be unjust to compel the accused to face such an
    examination. The accused has undergone incarceration for more
    than 6 years. From the date of the Trial Court judgment till the date
    of the impugned judgment, there was a hanging sword over him of
    the capital punishment. Therefore, we are of the view that it will be
    unjust now at this stage to pass an order of remand for recording
    further statements under Section 313 of the CrPC. The remand at
    this stage will cause prejudice to the accused. Though we do not
    agree with some of the findings recorded by the High Court, it is
    not possible to find fault with the ultimate conclusion drawn by it.
24. There are two other important aspects of the case. Co-accused Aslam,
    a cousin of the accused, also suffered burn injuries in the incident.
    He died on 2nd January 2009 with septicaemia. He suffered 40% burn
    injuries. The prosecution also suppressed the fact that the accused
    also suffered superficial to deep burn injuries on the face and both
    forearms to the extent of 20%. This fact was brought to the record
    by the accused by examining Dr. K.C. Rai as a defence witness.
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25. According to the prosecution’s case, after pouring kerosene oil on
    the victims, the accused and Aslam were standing outside the room
    and were not allowing anybody to enter the room. Co-accused Aslam
    is himself a victim of the fire. There is no explanation offered by the
    prosecution of how the accused and Aslam suffered burn injuries. The
    burn injuries to Aslam proved to be fatal. This also raises suspicion
    about the prosecution’s case.
26. We are dealing with an appeal against acquittal. After reappreciation
    of evidence, we find that the view taken by the High Court that the
    guilt of the accused was not proved beyond a reasonable doubt is
    a possible view which could have been taken on the basis of the
    evidence on record. Even assuming that another view is possible,
    that is no ground to overturn the order of acquittal.
27. It is true that the incident is very shocking in which a woman and
    her three daughters were burnt, and one of them died on the spot,
    the other three died after a few days. However, in the absence of
    legal evidence on record to prove the guilt of the accused beyond a
    reasonable doubt, we cannot interfere with the impugned judgment
    of the High Court.
28. Before we part with this judgment, we have a suggestion to make.
    There are several criminal appeals which come to this Court where
    we find that vital prosecution evidence is not put to the accused
    in statement under Section 313 of the CrPC. The Court becomes
    helpless, as due to the long lapse of time, the defect cannot be cured
    by passing an order of remand. In the case of Raj Kumar v. State
    (NCT of Delhi)5, this Court dealt with this issue. In paragraphs 29
    and 30, this Court held thus:
          “29. In many criminal trials, a large number of witnesses
          are examined, and evidence is voluminous. It is true that
          the Judicial Officers have to understand the importance
          of Section 313. But now the court is empowered to take
          the help of the prosecutor and the defence counsel in
          preparing relevant questions. Therefore, when the trial
          Judge prepares questions to be put to the accused under
          Section 313, before putting the questions to the accused,
          the Judge can always provide copies of the said questions
          to the learned Public Prosecutor as well as the learned
          defence counsel and seek their assistance for ensuring
[2025] 4 S.C.R.                                                             1521

             Aejaz Ahmad Sheikh v. State of Uttar Pradesh & Anr.


             that every relevant material circumstance appearing against
             the accused is put to him. When the Judge seeks the
             assistance of the prosecutor and the defence lawyer, the
             lawyers must act as the officers of the court and not as
             mouthpieces of their respective clients. While recording
             the statement under Section 313CrPC in cases involving a
             large number of prosecution witnesses, the Judicial Officers
             will be well advised to take benefit of sub-section (5) of
             Section 313CrPC, which will ensure that the chances of
             committing errors and omissions are minimised.
             30. In 1951, while delivering the verdict in Tara Singh [Tara
             Singh v. State, 1951 SCC 903 : 1951 SCC OnLine SC 49],
             this Court lamented that in many cases, scant attention is
             paid to the salutary provision of Section 342CrPC, 1898.
             We are sorry to note that the situation continues to be
             the same after 72 years as we see such defaults in large
             number of cases. The National and the State Judicial
             Academies must take a note of this situation. The Registry
             shall forward a copy of this decision to the National and
             all the State Judicial Academies.”
     We want to supplement what is reproduced above. When an appeal
     against conviction is preferred before the High Court, at the earliest
     stage, the High Court must examine whether there is a proper
     statement of the accused recorded under Section 313 of CrPC
     (Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023).
     If any defect is found, at that stage, the same can be cured either
     by High Court recording further statement or by directing the Trial
     Court to record. If this approach is adopted, the argument of delay
     and prejudice will not be available to the accused.
29. We must record our appreciation for the very valuable assistance
    rendered by Mr. Shubhranshu Padhi, appointed as amicus curiae.
30. The appeals are, accordingly, dismissed.

     Result of the case: Appeals dismissed.




     †
         Headnotes prepared by: Nidhi Jain