Allahabad HC Acquits Murder Convict, Rules FIR by Dead Informant Cannot Be Proved by Scribe Alone
A Division Bench acquitted Khalid of murder after finding the prosecution's eyewitness account physically improbable and the FIR unproved because its author died before trial.
A Division Bench of the Allahabad High Court comprising Justice J.J. Munir and Justice Saurabh Srivastava has acquitted Khalid, who had been convicted of murder under Section 302 read with Section 34 of the Indian Penal Code and sentenced to life imprisonment by the Additional District and Sessions Judge, Fast Track Court No. 2, Ghaziabad, by a judgment dated 25 January 2005. The High Court found two independent, interlocking reasons to doubt the prosecution: the FIR lodged by the first informant could not be proved in his absence because his death bore no nexus to the crime, and the physical account given by the eyewitnesses was inherently improbable. The judgment, delivered by Justice J.J. Munir on behalf of the Bench, also consolidates the law on the evidentiary value of an FIR where the informant dies before trial.
The Murder of Sarafraz and How the Case Reached the High Court
On 7 January 1990 at around 3.00 p.m., Sarafraz alias Pappu was shot and killed at the barn of his cousin Khalid in Village Nahli, Police Station Bhojpur, District Ghaziabad. The first informant, Wahiuddin — Sarafraz's father — lodged a written report the same evening at 10.25 p.m., which was transcribed by a scribe, Jalis Ahmad. On the basis of that report, Crime No. 2 of 1990 under Section 302 IPC was registered at P.S. Bhojpur.
Wahiuddin's account, as captured in the FIR, was that Khalid had summoned Sarafraz through his servant Nannu to discuss the use of Sarafraz's tractor-trolley. When Sarafraz declined to lend the trolley, Khalid abused him. An altercation followed. Khalid then asked Nannu to restrain Sarafraz while he picked up a double-barrel gun and aimed it at Sarafraz. Wahiuddin intervened and deflected the barrel, causing the pellets to hit Nannu in his lower limbs instead. Khalid then drew a pistol from his waistband and shot Sarafraz in the head. Sarafraz was rushed to Pyare Lal Sharma Hospital, Meerut, where he was declared dead. The post-mortem conducted on 8 January 1990 recorded a gunshot entry wound on the left side of the head, 2.5 cm above the left ear.
After investigation, a charge-sheet was filed on 9 February 1990 against both Khalid and Nannu. The case was committed to the Sessions Court in 1994 and charges were framed in 2003. The trial court convicted both appellants in January 2005 and sentenced each to life imprisonment and a fine of Rs. 10,000. Both appealed. Nannu died on 30 April 2021 and the appeal abated on his behalf by an order of the High Court dated 21 January 2022. The appeal therefore proceeded only on behalf of Khalid.
Whether the FIR Could Be Proved Through the Scribe
Wahiuddin, the first informant, was dead before the case went to trial and never entered the witness-box. The prosecution sought to prove the FIR through PW-1, Jalis Ahmad, the scribe who had reduced Wahiuddin's oral dictation to writing on 7 January 1990.
The Bench addressed squarely whether a scribe can prove the contents of an FIR when the informant is dead. It drew on its own earlier Division Bench ruling in Pradeep v. State of U.P., 2022 SCC OnLine All 1139 — to which Justice J.J. Munir had been a party — and on the Supreme Court's subsequent endorsement of the same position in Lalita v. Vishwanath and others, 2025 SCC OnLine SC 370.
The principle settled across these authorities is that an FIR is not, by itself, substantive evidence. It can qualify as a dying declaration under Section 32 of the Indian Evidence Act, 1872, and thus become substantive evidence, only if the informant's death has a nexus with the facts reported in the FIR — that is, only if the FIR relates to the cause of the informant's death or the circumstances of the transaction that resulted in it. Where the informant dies a natural death unconnected to the reported occurrence, Section 32 is not attracted and the FIR's contents remain unproved.
The Bench further held that where the informant has not been examined, the FIR cannot be used even to corroborate or contradict the eyewitnesses who testified at trial. The scribe's evidence is competent only to establish that the written information was dictated by the informant and faithfully transcribed, and that it bears the signatures of the informant and the scribe. The registration of the FIR at the police station on the recorded date and time is also proved. Nothing beyond that.
Applied to the facts: Wahiuddin died before trial, and his death had no connection to the 7 January 1990 shooting. The FIR, therefore, could not be read as substantive evidence and its contents were not proved. PW-1 Jalis Ahmad's testimony was accordingly limited to proving the factum of dictation, transcription, and registration.
The Bench was careful to note, consistent with Pradeep, that the non-proof of the FIR does not by itself defeat the prosecution. The State remained free to prove its case through the witnesses it examined. The FIR's absence does, however, remove from the prosecution's armoury the earliest and ordinarily most reliable account of the occurrence.
Why the Eyewitness Account Was Found Inherently Improbable
The prosecution examined two eyewitnesses: PW-2, Sartaj alias Babli, the deceased's brother, and PW-3, Iqbal, the deceased's cousin. Their examination-in-chief was consistent with the FIR's account of events. The Bench, however, found multiple features of their testimony that it described as inherently improbable.
The first oddity concerned why Wahiuddin, PW-2, and PW-3 had all followed Sarafraz to Khalid's barn when Khalid had only called Sarafraz. The families had adjoining farmhouses at Village Nahli and the evidence disclosed no hostility or tension between them. The two families were on reasonably amiable terms; Khalid and Sarafraz regularly interacted. There was no reason, the Bench held, for three family members to trail Sarafraz to his cousin's barn in response to a routine call. PW-3's only explanation was that because Wahiuddin went, PW-2 and PW-3 followed. The Bench found this “absolutely meaningless” and said it cast a grave cloud of doubt on the prosecution.
The second, and more forensically grounded, improbability concerned the mechanics of the assault. The prosecution's case was that Nannu caught hold of Sarafraz from behind while Khalid aimed a double-barrel gun at him. Wahiuddin pushed the gun barrel down, causing the pellets to hit Nannu in his left lower limb. Khalid then drew a pistol and shot Sarafraz in the head.
The Bench identified two physical impossibilities in this account. If Nannu was holding Sarafraz from behind and Khalid fired the double-barrel gun — even with the barrel deflected downward — the spread of pellets from a shotgun would inevitably have also struck Sarafraz in his lower limbs or feet. Sarafraz sustained no such injury; his only wound was the fatal gunshot to the head. The Bench observed that it was “almost fantastic” to suppose the pellets could have travelled around Sarafraz's lower body and worked their way to hit Nannu while leaving Sarafraz unscathed below the waist.
Nannu's injury report, Ex. Ka-3, confirmed that his wounds were pellet injuries consistent with a double-barrel shotgun, making the spread-of-pellets objection all the more acute. Additionally, the Bench noted that a person catching hold of a victim who is being shot from the front always risks being shot himself — making the prosecution's account of Nannu's role “highly improbable; almost unbelievable.”
The Cross-Version and the Defence
Khalid's co-accused Nannu had lodged a cross-FIR on 10 February 1990 at 3.45 p.m., giving rise to Crime No. 2-A of 1990 under Section 307 IPC at P.S. Bhojpur. In that version, Wahiuddin arrived at Khalid's barn carrying a gun, accompanied by Sarafraz, Sartaj (PW-2), and Iqbal (PW-3) who were armed with country-made pistols. Wahiuddin opened fire at Khalid. Nannu stepped between them and received the pellet injuries. Khalid caught hold of Sarafraz to shield himself. Iqbal then fired, and that shot struck Sarafraz instead of Khalid.
In his statement under Section 313 Cr.P.C., Khalid adopted the same version and stated that the deceased and others had come to his barn armed and that the false case had been lodged against him to escape the consequences of their own actions.
The police put in a final report in the cross-case and did not file a charge-sheet. The trial court had discounted the cross-version on these grounds, observing that the cross-FIR was lodged over a month after the occurrence and that 14 years had passed without the final report being challenged. The High Court did not rest its decision on the cross-version. Rather, it held independently that the prosecution had failed to prove its case beyond reasonable doubt because of the infirmities in the eyewitness account and the physical improbabilities identified above. The cross-version provided additional context but was not the basis of the acquittal.
The Standard of Proof and the Benefit of Doubt
The Bench restated the requirement that the prosecution must prove its case to the criminal standard — beyond reasonable doubt — whether the evidence is direct or circumstantial. It referred to several Supreme Court decisions including Vijayee Singh v. State of U.P., (1990) 3 SCC 190; Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422; Anand Ramachandra Chougule v. Sidarai Laxman Chougala, (2019) 8 SCC 50; Vasudev v. State of M.P., (2022) 4 SCC 735; and Pawan Kumar Sharma v. Manoj Kumar, 2026 SCC OnLine SC 934.
The Bench concluded that despite the formal consistency between PW-2 and PW-3 in examination-in-chief, the prosecution evidence was inherently unreliable and untrustworthy for the reasons it had set out in detail. Khalid was, accordingly, entitled to the benefit of doubt.
Order
The High Court allowed the criminal appeal and set aside the judgment and order of the Additional District and Sessions Judge, Fast Track Court No. 2, Ghaziabad, dated 25 January 2005. Khalid was acquitted of the charge under Section 302 read with Section 34 IPC. The Bench directed that he be set at liberty forthwith unless wanted in any other case.
The Bench further directed Khalid to execute a personal bond of Rs. 25,000 under Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — corresponding to Section 437-A Cr.P.C. — for his appearance in the event an appeal is preferred against his acquittal. The judgment was directed to be communicated to the Chief Judicial Magistrate, Ghaziabad, and through him to the Jail Superintendent, for prompt compliance. The lower court records were ordered to be returned.