State v. Sazid @Menu

1. Wlaether the Reporters of local papers YES may be allowed to seethejudgment?

2. To be referred to Reporter or not" YES.1. Wliether the judgment should be YES reported in the Digest? MR.

JUSTICE S.RAVINDRA BHAT (OPEN COURT) % Crl. M.A.4751/2011 (U/S[5] of the Limitation Act) in Crl. Lr.189/2011 This is an application filed by the State seeking condonation ofdelay of76 days in filing the appeal. The delay is condoned for the reasons mentioned in the application. The application stands disposed of. CRL.L.P. 189/2011

1. The State has, by this Petition, sought leave to appeal against a judgment and order of the learned Additional Sessions Judge dated 09.03.2010 in S.C. No. 75/2008, by which the sole accused (hereafter refen-ed to as "the respondent") was acquitted of the CRL. M.A. 4751/2011 IN CRL. L.P. 189/2011 &CRL. L.P. 189/2011 Page 1 2011:DHC:16528-DB charge of having committed offences punishable under Section 302 IPG read with Sections 25/54/59 of the Arms Act.

2. The prosecution alleged that in the morning of17.08.2006, Nazakat Ali (hereafter referred to as "the deceased") was shot at close-range while he was asleep. Upon receiving the information at 03:58 AM, the police rushed to the spot and removed the deceased to the hospital. Upon examination, the deceased was declared as "brought dead" - a fact recorded in the MLC (Ex. PW-4/A). The police recorded the First Information Report (FIR) about the incident at 06:35 AM on the morning of 17.08.2006. The prosecution relied heavily upon the testnnony ofKhatiza, who deposed during the trial as PW-18. Her statement under Section 161 Cr.PC was recorded on 25.08.2006. Based on her statement, the respondent was arrested on 27.08.2006; upon conclusion of the investigation, he was charged with having committed,the offence; he entered the plea of not guilty and claimed trial.

3. The prosecution examined 24 witnesses and relied upon several exhibits. The Trial Court, after considering the same and after recording the statement of the respondent under Section 313 Cr.PC concluded that the prosecution was unable to bring home the guilt of the accused/respondent beyond reasonable doubt and, therefore, acquitted him of all the charges.

4. The Trial Com! disbelieved the testimony of the prosecution's star witness, i.e. PW-18. The impugned judgment noted that the testimony of this witness could not be relied upon since she did not record any statement with the police for neaiiy 10 days after the incident. Furthermore, the Trial Court was unconvinced that she had actually witnessed the incident as claimed by her on account of other discrepancies, which included vagueness of the description given by her and other promment features. The Court also disbelieved the prosecution theory about the use of a country made pistol {katta) as the murder weapon. The Trial Court noticed that the testimony ofPW-22, the Ballistic Expert, who had deposed about the improbability of a bullet (of the kind recovered from the deceased) deforming upon the impact of softtissue, as was apparently CRL. M.A. 4751/2011 IN CRL. L.P. 189/2011 &CRL L.P. 189/2011 Page 2 alleged in this case. On an overview of the evidence, the Court also held that the respondent's presence at the spotwas doubtful and hadnot beenproved.

5. Learned APP, Sh. Vikas Pahwa argued that the Trial Court, in S.C. No. 75/2008 vide its judgment dated 08.11.2010 completely overlooked the material evidence recorded earlier in thejudgment dated 09.03.2010, which hadbeensubsequently set-aside bythis Court in an Appeal (Crl. A. No. 377/2010 dated 22.04.2010). Learned APP relied upon the order of this Court, which he said, merely remitted the matter for farther examination of the Ballistic Expert, PW-22. It did not, according to the prosecution, set-aside the evidence recorded by the Trial Court in the earlier judgment, which resulted in the respondent's conviction. It was next argued that the Trial Court fell into an error in disbelieving the testimony of PW-18. It was argued tliat the reason which persuaded the Court - in the impugned judgment - to discard her testimony was the so-called undue delay in recording her statement under Section 161 Cr.PC. Learned APP emphasized that the witness haddeposed about living in fear because the accused respondent was around. Given the history which led to the crime, i.e. the unwarranted attention and the alleged sexual assault upon the witness by the respondent, there was nothing uimatural in her silence because of the prevailing atmosphere of fear. Learned counsel submitted that the witness was consistent and had clearly identified the respondent, who used to reside in the same premises, being a relative of the landlord. It was next argued that the Trial Court's surmise about the Ballistic Expert's opinion is also an error. Learned APP relied upon the Post Mortem Report and stated that the wound was caused by a bullet injury which entered from near the nasal bone and travelled right upto the cervical bone. Having f regard to these circumstances, how the bullet was deformed was not such a material factor as to result in the respondent's acquittal.

6. PW-18, in her deposition recorded on 25.08.2006 (i.e. 8 days after the event) stated that she got manied to the deceased 12 years prior to the crime. They were both living in a rented house. Thedeceased was apparently engaged in some tailoring work for about 5 years before his death. PW-18 deposed that the respondent was her landlord's younger brother and used to address her as "bhabhi". She also testified that the •CRL. M.A. 4751/2011 IN CRL L.P. 189/2011 &CRL. L.P. 189/2011 Page 3 respondent had become firiendly with her and on certain occasions, used to tease her and further forced hunself upon her, later threatening that in the event ofher disclosing to the deceased, she would be killed. He apparently also threatened her, stating that he had links with big criminals and would eliminate PW-18 and her husband. She further deposed that the deceased got annoyed with her apparent proximit with the respondent; the respondent threatened that he would kill him. The material portion ofher evidence reads as follows: xmxz xmxz There was no window in our rented room, for which reason, we had kept our air cooler inside the room andfor cross ventilation, we used to keep the rear door slightly open with the help ofscrew driver. The inner door M'hich opens towards courtyard was also left ajar after keeping some Chappals etc. beneath it so that it would not open atonce. On 16/17.8.06 my husband Nazakat AH returned after his work at 9p.m., we had our dinner together and went to sleep atabout 11 or 11.30p.m. after keeping both the door slightly ajar: 1was sleeping at a cot and my husband was sleeping on some cloth spread on the floor ofthe room. His head was towards the door, which opens towards rear side ofthe house. At about 4 a.m., there was a loud bang, on hearing it, 1got up andsaw both doors halfopen. Light came to the roomfrom outside as well asfrom inside of the room and I saw a man, who had worn blue coloured T-Shirt leaving jrom the rear side door. 1recognized that man from behind and he was Sazid @Menu. 1saw my husband, who was drenched in blood and was trying to get up. 1kneeled over my husband but he could not utter a word. 1 immediately knocked the door of landlord Zaliuddin while weeping thereafter I knocked open the door ofhis mother also. J.K. and hisfamily people got up and on seeing the condition ofmy husband, J.K. rang up at telephone no. 100, PCR came and J.K. with the help ofPCR personnels removed my husband to DDU Hospital, where my husband was declared brought dead. Being afraid ofSazid Ali, 1did not narrate this incident to anybody asIfear that ifI told this to anybody, Sazid Ali would kill me. 1 narrated the whole incident to you as you have encouraged me to do so and assured me ofprotection. My husband has been murdered by Sazid Ali @ Menu, who is the younger brother of my landlord. Appropriate action asper law be taken against him and1may be given protection.

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1. In the impugned judgment, the Trial Court expressed doubt about PW-12 actually having seenthe respondent. It observed that: CRL MA 4751/2011 IN CRL. L.P. 189/2011 &CRL. L.P. 189/2011 Page 4 xmxY xmxY

25. What is apparent from the aforesaid statement of Khatija is that she does not say that she saM' the accusedfiring upon her husband. She also does not say that she sa^^> theface ofaccused M'ith the weapon in his hand. Infact, she does not say anything about the weapon at all. She only says that she saw afat man wearing a blue coloured T-Shirt leaving the door of the room, whom she recognized from behind to be the accused Sazid @Menu. This statement has to be read in the light ofthe fact that the same M>as not made by her immediately or shortly after the incident, but after a gap offullseven days. The alibiputforward by the prosecution as well as Khatijafor not making a statement before 25.8.2006 is that she was in a state ofdepression andwas notfit to make a statement. HoM'ever, I do not find any opinion of the doctor on record to the effect that Smt. Khatija was not in a fit statement of mind to make a statement. I do understand that the situation, in which she wasput after gruesome death ofher husband, but in her aforesaid statement U/s. 161 Cr.PC, she states that she did not narrate the incident to anybody including the police till 25.8.06for thefear ofthe accused that he would kill her. Therefore, there are two contradictory versions regarding the delay in recording the statement ofKhatija and both the versions are unbelievable. It cannot be said that she M>as so depressed and not in complete senses to such extent that she was not in a position to make any statement in vieM> of the fact that she was got medically examined on 17.8.06 itself at night, during which her vaginal swab was also taken and preserved. PW15 Lady Constable Santosh gotKhatija medically examined by Dr. Mitra. There is nothing on record to suggest that Khatija did not cooperate during her aforesaid medical examination. Therefore, it is very difficult to believe that she couldnotgiveher statement to thepolice.

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8. ITie Trial Court also noticed significantly that PW-18, onthe one hand, explained that the reason for the delay inrecording the statement to be the state offear she was in, on the other hand, she contmued to reside in the same premises despite the deceased's brothers havmg visited her almost immediately after the incident. TWs raised serious credibility issues about her version.

9. We have carefully considered the submissions and have also gone through the Trial Court records which were summoned during the proceedings. It is by now far too well established that the High Courts, while considering a petition for leave to appeal, on behalf of the prosecuting State, would keep in mind the circumstance that an acquittal CRL. M.A. 4751/2011 IN CRL. L.P. 189/2011 &CRL. L.P. 189/2011 Page 5 recorded by a competent Criminal Court is an affirmation ofthe object of innocence which every citizen charged with acrime wears. The High Court has to be satisfied that the.judgment impugned before it contains errors which are substantial and compelling enough for it to grant leave to the State to appeal. These reasons would include grave misappreciation offacts, wrong or untenable application of law and an approach that has primafacie resulted inmiscarriage ofjustice.