ALLARAKHA HABIB MEMON ETC. versus STATE OF GUJARAT

Citation: [2024] 8 S.C.R. 345 · Decided: 08-08-2024 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

[2024] 8 S.C.R. 345 : 2024 INSC 590
Allarakha Habib Memon Etc. 
v. 
State of Gujarat
(Criminal Appeal Nos. 2828-2829 of 2023)
08 August 2024
[B.R. Gavai and Sandeep Mehta,* JJ.]
Issue for Consideration
As per the FIR (Exhibit-79) there were two eyewitnesses to the 
incident, PW-12-Police Constable and PW-11-the first informant 
who was deceased’s cousin brother. PW-12 claiming to be an 
eyewitness to the incident had reported at the police station with 
the crime weapons however, he did not lodge any complaint of the 
incident. FIR was registered on the basis of the oral statement of 
PW-11. Testimony of the aforesaid witnesses, if was trustworthy 
and reliable. In view of inconsistencies and contradictions in the 
evidences, whether the conviction of the accused-appellants under 
Section 302 read with Section 120B, Penal Code, 1860 and their 
sentence was justified.
Headnotes†
Penal Code, 1860 – ss.302 r/w s.120B – Concurrent conviction 
of the accused-appellants – Various inconsistencies and 
contradictions in evidences – Guilt of the accused appellants 
if proved beyond doubt:
Held: No – First informant-PW-11 was not present at the crime 
scene – Evidence of PW-12-an independent witness makes the 
very presence of PW-11 at the crime scene doubtful – Testimony 
of PW-11, the star witness of prosecution is thus, not trustworthy 
and reliable as the same was contradicted on material aspects 
by numerous material facts and circumstances – Testimony of 
the Police Constable-PW-12 also does not help the prosecution 
in linking the accused-appellant with the crime – It is improbable 
and totally unacceptable that a police constable had seen the 
incident and also brought the crime weapons to the police station 
and yet his statement would not be recorded and the factum of 
presentation of weapons would not be entered in the daily diary 
(roznamcha) of the police station – Non-production of the daily 
* Author
346
[2024] 8 S.C.R.
Digital Supreme Court Reports
diary is a serious omission on part of the prosecution – Further, 
on facts, identification of the accused by PW-12 for the first time 
in the dock is unbelievable and unacceptable – Also, on a careful 
perusal of the complaint (Exhibit P-79) filed by PW-11 which was 
subsequently registered as the FIR, it is manifest that no time of 
recording was mentioned thereupon – There was no endorsement 
as to the date and time on which the said FIR reached the Court 
concerned – Going by the testimony of PW-11, the actual complaint 
filed by him at the police station seems to have been withheld 
and the FIR was a post investigation document and seems to 
have been created at a later point of time – Furthermore, neither 
the disclosure statements made by the accused were proved as 
per law nor the same resulted into any discovery which could be 
accepted as incriminating inasmuch as the requisite link evidence 
was never presented by the prosecution so as to establish that 
the recovered articles remained in the self-safe condition from the 
date of the seizure till the same reached the FSL – Prosecution 
failed to lead convincing evidence establishing the guilt of the 
accused appellants beyond doubt so as to hold the appellants 
responsible for the crime – Impugned judgments quashed and set 
aside – Appellants acquitted by giving them the benefit of doubt. 
[Paras 19, 20, 22, 23, 25, 28, 31, 36-38, 46, 48]
Code of Criminal Procedure, 1973 – ss.161, 162 – Police 
Constable-PW-12 claiming to be an eyewitness to the incident 
reported at the police station with the crime weapons 
however, he did not submit any report/complaint of the 
incident – Complaint lodged by PW-11-first informant who 
was deceased’s cousin brother came to be registered as 
FIR – Impermissibility: 
Held: First version of the incident as narrated by the PW-12 would 
be required to be treated as the FIR and the complaint lodged by 
PW-11 would be relegated to the category of a statement u/s.161, 
CrPC and nothing beyond that – The same could not have been 
treated to be the FIR as it would be hit by s.162 CrPC – Prosecution 
is thus, guilty of concealing the initial version from the Court and 
hence, an adverse inference is drawn against the prosecution on 
this count. [Para 21]
Evidence Act, 1872 – ss.26, 21 – Confessions of the accused-
appellants recorded by PW-2-Medical Officer while preparing 
their injury reports of the accused – Admissibility:
[2024] 8 S.C.R. 
347
Allarakha Habib Memon Etc. v. Sta

Excerpt shown. Read the full judgment & AI analysis in Lexace.