Botched Investigations and Coached Witnesses: Why the Prosecution’s Attempt to Murder Case Under BNS 109 Collapsed

1. The Hook: New Codes, Same Old Investigative Rot

We can change the Indian Penal Code to the Bharatiya Nyaya Sanhita (BNS), and the CrPC to the Bharatiya Nagarik Suraksha Sanhita (BNSS), but a new coat of paint won’t fix a crumbling foundation. The recent judgment in State vs. Gaffar @ Bhagra, delivered by Additional Sessions Judge Shilpi Jain at Tis Hazari Courts, is a textbook example of everything wrong with grassroots police investigations in India.

This case is a stark reminder to criminal practitioners: when the police hit a dead end in a blind case, their default reflex is often to pin it on a local history-sheeter by manufacturing supplementary statements. But as this judgment highlights, a sharp defense counsel can demolish this house of cards during cross-examination. For junior lawyers and law students, Gaffar is a masterclass in why the initial FIR and the medical history are the most lethal weapons in a defense attorney's arsenal.

2. The Facts: A Midnight Shooting and a Sudden Epiphany

The facts, stripped of the prosecution’s embellishments, are straightforward. On the night of March 16, 2025, the complainant, Kasim, was shot in the right thigh while tending to his agricultural field in Burari.

When the Investigating Officer (IO) recorded Kasim’s initial statement at LNJP Hospital, Kasim was categorical: two unknown persons on a motorcycle shot him. It was dark, he didn't see their faces, he didn't know their names, and he didn't catch the bike's registration number. Based on this, the FIR was registered against unknown persons.

Then came the "miracle" of police investigation. During supplementary statements recorded under Section 180 BNSS (the equivalent of the old Section 161 CrPC), Kasim and his brother-in-law suddenly developed night vision and a perfect memory. They completely changed their story, claiming that Gaffar @ Bhagra—a local man with prior criminal antecedents—walked into the field, accused them of being police informers, and shot Kasim. Gaffar was subsequently arrested when he surrendered in an entirely different case.

3. The Arguments: Desperation vs. Destruction

At trial, the prosecution's case initially looked solid. During their examination-in-chief, the victim and the eyewitness fully supported the police narrative, pointing fingers at Gaffar in the courtroom.

But the defense counsel, Sh. S.A. Rajput, went to work during cross-examination. He secured fatal admissions from both witnesses. They admitted they never saw the assailant's face due to darkness. Even more damning, they confessed on record that they only named Gaffar because the police instructed them to do so.

Faced with this complete collapse, the Additional Public Prosecutor (APP) attempted a desperate Hail Mary during final arguments. The APP argued that the witnesses' hostility in cross-examination was obviously the result of an out-of-court settlement or intimidation by the accused, and urged the court to rely solely on their examination-in-chief to secure a conviction under Section 109(1) BNS (Attempt to murder).

4. The Judgment: A Predictable but Necessary Acquittal

ASJ Shilpi Jain rightly threw the prosecution’s case out of court, acquitting Gaffar of all charges under Section 109(1) BNS and Section 27 of the Arms Act.

The Court relied on the Supreme Court’s ruling in Khujji @ Surendra Tiwari v. State of M.P. (1991), noting that while a hostile witness's testimony isn't completely wiped from the record, a court cannot rely on it if the witness resiles on the most fundamental issue: the identity of the accused.

The judge noted that the prosecution had zero corroborative evidence to salvage the botched ocular testimony. Despite taking police remand twice, the IO failed to recover the country-made pistol. There were no spent cartridges recovered from the scene, no CCTV footage, and consequently, no ballistic evidence to link the bullet extracted from the victim's leg to the accused. Citing Mohinder Singh v. State (1953), the Court reiterated that in firearm cases, failing to connect the weapon to the injury creates a severe, often fatal, hiatus in the prosecution's proof.

5. The Critique: What Went Wrong and What Could Have Been Better

Do I agree with the judge’s decision to acquit? Absolutely. You cannot send a man to prison for up to ten years based on a coached supplementary statement. However, I have strong opinions on how both the prosecution and the bench handled this.

The Prosecution's Failure: The APP's argument that the witnesses were intimidated was legally hollow. If you, as a prosecutor, believe your witnesses have been won over by the defense, you cannot just complain about it during final arguments. You must lay the groundwork. The APP re-examined the witnesses, but merely asked them to confirm they didn't mention the police coaching in their chief. That is weak advocacy. A sharp prosecutor would have investigated the alleged intimidation, brought it on record, or at least tried to salvage the circumstantial evidence. But here, there was no circumstantial evidence to salvage.

The Bench's Missed Opportunity: While ASJ Jain’s application of the law was mechanically sound, her judgment lacks judicial teeth. Both prime witnesses admitted under oath that the police forced them to frame Gaffar. This is a blatant admission of fabricating false evidence by a public servant (the IO). A senior judge shouldn't just acquit the accused and close the file; she should have passed strictures against the Investigating Officer, ASI Ravinder, and directed the Commissioner of Police to initiate departmental proceedings. By letting the IO walk away without a scratch, the trial court essentially condones this lazy, malicious style of policing.

6. The Takeaway: Lessons for the Bar

For defense practitioners, State vs. Gaffar is a prime example of why you must meticulously compare the initial MLC/Tehrir with the supplementary statements.

• Pin down the timeline of knowledge: Always ask the witness when and how they came to know the accused's name. If the FIR is against unknown persons, the exact moment the "unknown" became "known" is your target in cross-examination.
• Capitalize on missing forensics: Never let the court forget what the police failed to do. No weapon means no ballistics; no ballistics means no scientific link. In the absence of a weapon, even a strong eyewitness testimony can wobble; with a hostile eyewitness, the case is dead on arrival.
• Don't fear the Examination-in-Chief: Witnesses often parrot the police line during their chief. Stay calm. The real trial begins when it is your turn to ask the questions. A well-prepared cross-examination will always break a coached witness.

Ultimately, the BNS and BNSS might have changed the section numbers we cite in court, but the burden of proof remains the same. Suspicion, no matter how strong, cannot take the place of legal proof—a principle the defense masterfully leveraged in this case.