LexZAHIRA HABIBULLA H SHEIKH AND ANR. versus STATE OF GUJARAT AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A ZAH!RA HABIBULLA H SHEIKH AND ANR. ~__, v. STATE OF GUJARAT AND ORS. APRIL 12, 2004 B [DORAISWAMY RAJU AND AR!llT PASAYAT, 11.] Code of Criminal Procedure, 1973-Seclion 311, 391, 386 and 173: t Evidence Act, 1872-Section 165: c Criminal trial-Tainted investigation-Trial in perjimctory manner- On account of threat from politicians witnesses turned hostile-Acquilla/ of accused-Application for adducing additional evidence and examination of witnesses rejected and acquiltal confirmed by High Court-On appeal, held: D The case liable lo be retried-Trial was no/ fair as hearing of material witness was denied-In a case of defective investigation the Court in evaluating the evidence may adopt an active and analytical role to ensure finding of truth ,, having recourse to Sections 311 Cr.P.C. and 165 Evidence Act at later stage • resorting to Section 391 Cr.P.C.-Retrial by a Court under jurisdiction of another High Court-Appointment of some other Public Prosecutor-Further E investigation-Directions issued Sections 386 and 391-Adducing additional evidence at appellate stage- Permissibility-Held: Such course is permissible-Section 391 is an exception lo Section 386-These Sections have to be harmoniously considered-Recourse F to either of the Sections in disposing of the appeal would depend on the facts of the case. ~ Criminal trial-Role of Court in evidence-collecting process-Held: Courts should take a participa/OJy role in trial and should not act as a mere tape recorder. G Practice and Procedure: Order of High Court-Order passed indicating that reasons to follow f" subsequently-Permissibility of-Held: Such course is not permissible by High Court because its order is subject to appellate jurisdiction of Supreme Court. H 1050 .. • Z.H.H. SHEIKH v. STATE OF GUJARAT 1051 Words and Phrases: A "Criminal trial", "Fair. tria/"-Meaning of Respondents-Accused were alleged to be part of unruly mob who burnt down a business concern. The incident resulted in death of 14 persons. Appellant and many other persons were eye-witnesses to the B incident. During trial, the purported eye-witnesses resiled from their statements made during investigation. Trial Court acquitted the accused persons. Thereafter appellant-witness filed affidavits and made statements before Human Rights Commission alleging that during trial she was forced by politicians to depose falsely and she turned hostile on account of threats C by them. State filed appeal before High Court against the acquittal order. Sister of appellant-witness filed revision petition before High Court against the acquittal order. State filed an application before High Court for permission to adduce additional evidence u/s 391 Cr.P.C. and for examination of witnesses u/s 311 Cr.P.C. They also filed application for bringing on record a document and to treat it as corroborative evidence. D High Court dismissed the appeal, revision petition and the applications . High Court observed that the consideration of the appeal, has to be limited to the records sent up u/s 385 (2) Cr.P.C. for disposal of the appeal u/s 386 Cr.P.C. Refusing to take the affidavits on record, High Court analysed the same and termed them as untruthful and false. It held that recording E evidence of some witnesses u/s 161 Cr.P.C. did not arise as those witnesses did not know Gujarati and the evidence was recorded in Gujarati. Human Rights Commission filed Special Leave Petition which was treated as writ petition u/s 32 of the Constitution. Appellant-witness, an Organisation and the State filed appeals before this Court requesting for F fresh trial of the case. Appellants contended that prosecution did not take any steps to protect the star witness despite her having stated on affidavit that threat was given to her, that trial Court should have exercised power under Section 311 Cr.P.C. and Section 165 Evidence Act to arrive at the truth G 11nd just decision in the case; that High Court did not keep in view the true scope and ambit of Section 391 Cr.P.C.; that many injured eye- witnesses were not examined without disclosing any reason for non- examination; that the relatives of the accused were examined as witnesses for the prosecution with a view that their evidence could be used to help H 1052 SUPREME COURT REPORTS [2004] 3 S.C.R. A the accused persons; that one of the witnesses was examined before the stipulated date; that witnesses were threate
Excerpt shown. Read the full judgment & AI analysis in Lexace.