RAJIV GANDHI NATIONAL

UNIVERSITY OF LAW

Subject: Criminal Law (Procedural) - II

Topic: Zahira Habibullah Sheikh v. State of
Gujarat, (2004) 4 S.C.C. 158
Group No.: 4

Submitted To: Submitted By:

Dr. Shruti Goyal Pariekh Pandey
Assistant Professor of Law Roll No. 15080
RGNUL, Punjab VIIIth Semester
 ACKNOWLEDGEMENT

On the successful completion of this project, I would like to thank my respected

mentor, my Criminal Law (Procedural) professor, Dr. Shruti Goyal, who despite all
of her pre-occupations, provided me the assistance I needed for the accomplishment
of this project and guided me while I tread on the tenebrous boulevard of ignorance.
Had it not been for her support, I would not be able to grasp the cognisance of
something as enthralling as this. I thank her profusely for providing me this
engrossing topic to work on which helped me to learn and relearn, to explore and re-
explore our knowledge of the social literature.

I also thank our Hon’ble Vice Chancellor, Dr. Paramjit S. Jaswal, and our esteemed
Registrar, Dr. Naresh Kumar Vats, for their inexplicable greatness to find time to
educate us whenever they find the opportunity.

I would also like to extend my gratitude to my friends and batch mates, who have
rendered their valuable time and without whose help this project would not have been
in its present shape and form.
 TABLE OF CONTENTS

1. INTRODUCTION ................................................................................................ 1

1.1. Provisions relating to powers of Appellate Court ....................................... 2

1.2. Power of Appellate Court to adduce further evidence ................................ 3

2. CASE BACKGROUND AND FACTS ................................................................ 4

2.1. Background – The 2002 Gujarat riots ......................................................... 4

2.2. Facts of the case .......................................................................................... 5

3. JUDGMENT AND OBSERVATIONS ............................................................... 7

3.1. Regarding Section 391 of the Criminal Procedure Code ............................ 7

3.2. Regarding the High Court upholding the Trial Court judgment without
specific reasons ....................................................................................................... 8

4. ANALYSIS AND CONCLUSION .................................................................... 10

4.1. Recognition in subsequent judgments and further developments ............. 10

4.2. Concluding observations ........................................................................... 11

1. INTRODUCTION

As per Black’s Law Dictionary, evidence is defined as “any species of proof, or

probative matter, legally presented at the trial of an issue, by the act of the parties and
through the medium of witnesses, records, documents, exhibits, concrete objects, etc.
for the purpose of inducing belief in the minds of the court or jury as to their
contention.”1 “Evidence” under Indian law has been divided into two broad categories
– oral evidence, which refers to all the statements of witnesses relating to the issues in
the concerned inquiry which are permissible in Court; and documentary evidence,
which includes all the documents produced for the purpose of inspection by the
Court.2

On the other hand, the term “appeal” occupies a very important position in the
common legal terminology, defined by Black’s Law Dictionary as “the complaint to a
superior court of an injustice done or error committed by an inferior one, whose
judgment or decision the court above is called upon to correct or reverse”, or “the
removal of a cause from a court of inferior to one of superior jurisdiction, for the
purpose of obtaining a review and retrial”.3 It is directed towards a legal power
higher than the power making the challenged determination.4

The Code of Criminal Procedure, 1973 contains comprehensive provisions when it

comes to dealing with appeals in criminal cases, contained under Chapter XXXIX of
the Code i.e. Sections 372-394. The Code provides that when an appeal can be filed
and specifically prohibits that no appeal can be filed against any judgment or order of
a Criminal Court, except as provided under the Code or any other law. 5 An aggrieved
person can file an appeal against the decision of the Magistrate to the High Court of
the State, he or she can file an appeal against the decision of a High Court to the Court

1
Henry Campbell Black, Black’s Law Dictionary, West Publishing Company, 1910.
2
The Indian Evidence Act, 1872, s. 3.
3
Black, supra note 1.
4
“Appeal”, Cornell Law School – Wex Dictionary, at https://www.law.cornell.edu/wex/appeal (last
accessed 23 April 2019).
5

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of Appeal, and likewise to the Supreme Court. The decision of the Supreme Court is
final and binding as under Article 141 of the Constitution of India, and there is no
further appeal.6

1.1. Provisions relating to powers of Appellate Court

Section 386 of the Criminal Procedure Code enlists the powers of the appellate court
to pass certain orders pertaining to various aspects in different types of cases. The
Appellate Court is empowered to either dismiss the concerned appeal, or make any
amendment to an existing order, or pass any consequential or incidental order which
is just and proper in the circumstances, or can even pass any of the following orders
depending on the nature of the impugned order:

 If the appeal is against an acquittal order –

o Reverse the order and direct further inquiry.

o Give direction for a re-trial.

o Convict the accused as per law, if found guilty.

 If the appeal is from a conviction –

o Reverse the order, and pass order for acquittal or discharge of the
accused or re-trial of the accused.

o Alter the finding while maintaining the sentence.

o Alter the nature of the sentence without enhancing it.

 If the appeal is for enhancement of the sentence –

o Reverse the order, and pass order for acquittal or discharge of the
accused or re-trial of the accused.

o Alter the finding while maintaining the sentence.

o Alter the nature of the sentence, enhancing or reducing the sentence.

 If the appeal is against any other kind of order, alter the findings in the order
or reverse the order itself.

6
“Appeal, Reference, and Revision Under The Criminal Procedure Code”, Lawnn, 12 November 2018,
at https://lawnn.com/appeal/ (last accessed 23 April 2019).

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1.2. Power of Appellate Court to adduce further evidence

Section 391 of the Code confers an additional power on the appellate court, apart
from the existing powers under Section 386, to adduce further evidence while
entertaining appeals in criminal cases. According to the provisions of the Code, “…
the Appellate Court, if it thinks additional evidence to be necessary, shall record its
reasons and may either take such evidence itself, or direct it to be taken by a
Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a
Magistrate.”7

Also, “[when] the additional evidence is taken by the Court of Session or the
Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court
shall thereupon proceed to dispose of the appeal.”8 In this regard, the Code permits
the accused or his pleader to be present when the additional evidence is to be taken.9
The taking of evidence shall be subject to the provisions of Chapter XXIII, since the
additional evidence is to be treated same as the evidence obtained during inquiries and
trials.10

On the same lines, Section 311 states the power of any Criminal Court to summon
witnesses or examine persons in attendance, or recall and re-examine the persons
already examined, at any stage of the inquiry, trial or other proceedings. However,
this is to be done only if the evidence appears to the Court as “essential to the just
decision of the case”. It must also be read with Section 165 of the Indian Evidence
Act, which states that, “[the] Judge may, in order to discover or to obtain proper
proof of relevant facts, ask any question he pleases, in any form, at any time, of any
witness, or of the parties about any fact relevant or irrelevant; and may order the
production of any document or thing…” In other words, the power of the Appellate
Court to adduce additional evidence finds confirmation within the language of other
provisions of the Code as well as other laws.

7
The Code of Criminal Procedure, 1973, s. 391(1).
8
Id, s. 391(2).
9
Id, s. 391(3).
10
Id, s. 391(4).

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2. CASE BACKGROUND AND FACTS

2.1. Background – The 2002 Gujarat riots

The 2002 Gujarat riots are considered as one of the most gruesome incidents in the
country pertaining to communal tension and hatred flaring from rumours and
unreported incidents. They are even adjudged as India’s worst inter-faith clashes since
the country attained independence in 1947, at par with the riots under Partition of
India in 1947 and the 1984 Sikh riots.11 The riots began from the burning of the
Sabarmati Express on February 27, 2002, which resulted in the death of 59 Hindu
pilgrims or kar sevaks.12 Since the Muslims were considered as the brain behind the
attack, furious Hindu mobs started rampaging through Muslim neighbourhoods in
several cities of Gujarat, resulting into one of the most condemned incidents till
date.13

The Hindu mob, in retaliation to the Sabarmati Express incident, took to the streets
with swords, guns and petrol bombs to be used against the Muslim populace. Women
and children were also targeted, leading to gang rapes and brutal murders and
violence. Sporadic examples of violence continued for two months after the train fire,
leading to 2000 deaths and displacement of 1.5 lakh people.14 One of these incidents
also included the burning down of the “Best Bakery”, relevant in the given case.

Of the nine cases relating to the Gujarat riots, pending before different courts all over
India, six cases saw culmination through judgments being delivered till April 2018,
including the infamous Naroda Patiya massacre, resulting in the death of 97 people. In
this regard, the Bilkis Bano gang rape case was re-opened, after the Supreme Court

11
“Gujarat riots: 24 convicted for massacre of Muslims”, Al Jazeera, 03 June 2016, at
https://www.aljazeera.com/news/2016/06/gujarat-riots-24-convicted-massacre-muslims-
160602070332313.html (last accessed 23 April 2019).
12
Sruthi Radhakrishnan, “The 2002 Gujarat riot cases and their statuses so far”, The Hindu, 20 April
2018, at https://www.thehindu.com/news/national/the-2002-gujarat-riots-cases-and-their-statuses-so-
far/article23617950.ece (last accessed 23 April 2019).
13
“How India’s 2002 Gujarat riots unfolded”, The Dawn, 17 June 2016, at
https://www.dawn.com/news/1265474 (last accessed 23 April 2019).
14
“2002 Gujarat Riots: A Summary”, WTD News, 02 June 2016, at http://wtdnews.com/2002-gujarat-
riots-summary/ (last accessed 23 April 2019).

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ordered a CBI probe into the case, and transferred the case to Maharashtra for
conducting a trial again.15

2.2. Facts of the case

The given case is known as the “Best Bakery Case”, due to the restaurant involved in
the ghastly incident as per the case. The business concern “Best Bakery” was burnt to
the ground by an unruly mob of a large number of people, stated to be in retaliation or
vengeance to the burning of 56 persons to death on the Sabarmati Express. The 14
persons who lost their lives in the incident also included the appellant in the present
case, Zahira who was the prime eyewitness of the gruesome incident.

After investigation and filing of the chargesheet in June 2002, the trial commenced
against the alleged perpetrators, during which the witnesses resiled from their
statements made during investigation. Faulty and biased investigation, as well as the
perfunctory nature of the trial was alleged to have “marred the sanctity of the entire
exercise undertaken to bring the culprits to book”. Based on the statements, the Trial
Court directed the acquittal of the accused persons.

Zahira appeared before the National Human Rights Commission (NHRC), claiming
information regarding the threats made to her by prominent and powerful politicians
for deposing against the accused. In lieu of this development, a number of petitions
were filed against the acquittal, apart from applications filed before the Gujarat High
Court for adducing further evidence under Sections 311 and 391 of the Criminal
Procedure Code, 1973. However, the High Court dismissed and rejected the appeal,
revision as well as the applications filed before it.

Zahira along with the State of Gujarat pressed for a re-trial or fresh trial based on the
fact of reasonable suspicion created of witnesses being coerced or threatened, when a
large number of witnesses had turned hostile. The Public Prosecutor was alleged to
have played no role in protecting the star witness of the case and did not even

15
Sruthi, supra note

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examine the major witnesses of the case, apart from not even requesting for holding
the trial as in camera proceedings, in light of so many witnesses turning hostile.

Thus, the Supreme Court entertained the appeal against the order of dismissal by the
High Court, and framed the following issues:

 The protection of witnesses to particular high-profile cases, to prevent their

turning hostile at later stages of the trial.

 The quality and credibility of the evidence additionally produced before the
Appellate Court, and its power to entertain the same.

 The improper conduct of trial and lack of effort by the Public Prosecutor.

 The role of the investigating agency being “tainted, biased and not fair”.

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3. JUDGMENT AND OBSERVATIONS

The Supreme Court in the given case gave a highly detailed judgment regarding the
operation and interpretation of Section 391 of the Criminal Procedure Code, and how
the High Court failed to give effect to the aforementioned provision while dispensing
with its duties. The opinion given by the Court is discussed in the following
paragraphs in relation to different aspects addressed under the judgment.

3.1. Regarding Section 391 of the Criminal Procedure Code

The provision under Section 391 of the Code was held by the Court as “intended to
subserve the ends of justice by arriving at the truth”, relying on a previous
judgment.16 In the words of the Court, “Though Section 386 [of the Criminal
Procedure Code] is envisages the normal and ordinary manner and method of
disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate
the modes by which alone the Court can deal with an appeal. Section 391 is one such
exception to the ordinary rule and if the appellate Court considers additional
evidence to be necessary, the provisions in Section 386 and Section 391 have to be
harmoniously considered to enable the appeal to be considered and disposed of also
in the light of the additional evidence as well.”

The Court stipulated that the legislative intent behind the inclusion of Section 391
appears to be the empowerment of the appellate court to ensure that the ends of justice
are met substantially and adequately between the prosecutor and the persons
prosecuted. Also, the Court observed the primary object behind the provision as “the
prevention of a guilty man’s escape through some careless or ignorant proceedings
before a court or vindication of an innocent person wrongfully accused”. The exercise
of powers under Section 391 is desirable only where “the court through some
carelessness or ignorance has omitted to record the circumstances essential to the
elucidation of truth”.

16
Rambhau v. State of Maharashtra, (2001) 4 S.C.C. 759.

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With regard to the usage of the provision by the Appellate Court, the Supreme Court
observed that the discretion to be exercised by the Appellate Court must not be
restricted or subjected to constraints. In the words of the Court, “If the appellate court
thinks that it is necessary in the interest of justice to take additional evidence, it shall
do so. There is nothing in the provision limiting it to cases where there has been
merely some formal defect. The matter is one of discretion of the appellate Court.”
The choice of conducting a re-trial under Section 386 or inviting additional evidence
under Section 391 would depend on the facts and circumstances of each case.

3.2. Regarding the High Court upholding the Trial Court judgment without
specific reasons

The mere dismissal of the appeal filed before the High Court, without entering into
the merits of the judgment passed by the Trial Court, was condemned by the Supreme
Court as “a travesty of truth, fraud on the legal process and the resultant decisions of
courts – coram non judis and non est”. According to the Court, “It is no doubt true
that the accused persons have been acquitted by the Trial Court and the acquittal has
been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored
investigation, unprincipled prosecutor and perfunctory trial and evidence of
threatened/terrorised witnesses, it is no acquittal in the eye of the law and no sanctity
or credibility can be attached and given to the so-called findings.”

While the Supreme Court appreciated the decision taken by the High Court regarding
a re-trial of the case based on the investigation being declared as dishonest and faulty,
the decision of the High Court to arrive at the conclusion of “false implication”
without any concrete basis or reasoning was condemned and called out. It pointed out
the possibility of the investigation being conducted in a manner so as to shield the
accused persons. It even condemned the remark of the High Court, declaring the FIR
as manipulated based on an arbitrary finding.

Another aspect of the impugned High Court judgment, which was addressed by the
Supreme Court, was the analysis of the information as well as evidence additionally
presented before the Court, inspite of having rejected the application to entertain or

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adduce further evidence. The Court observed in this regard that, “The question
whether they [the additional evidence] were worthy of credence, and whether the
subsequent stand of the witnesses was correctly needed to be assessed, and adjudged
judiciously on objective standards which are the hallmark of a judicial
pronouncement. Such observations, if at all, could have been only made after
accepting the prayer for additional evidence… Whether the witnesses had told the
truth before the trial court or as stated in the affidavit, were matters for assessment of
evidence when admitted and tendered and when the affidavit itself was not tendered
as evidence, the question of analysing it to find fault was not the proper course to be
adopted.”

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4. ANALYSIS AND CONCLUSION

4.1. Recognition in subsequent judgments and further developments

The given judgment by the Supreme Court, considered as one of the leading
judgments on the protection of witnesses, was followed by an appeal by the State of
Gujarat as well as an accused by the name of Tulsibhai Bhikhabhai Tadvi.17 It not
only addressed the legislative scope of Section 406 of the Criminal Procedure Code,
pertaining to transfer of appeals by the High Court, but also touched upon the aspect
of a fair trial in criminal cases. After a string of appeals, in the appeals entertained for
the same case, the Supreme Court in 2006 entertained another case against Zahira for
contempt of court, apart from postulating on the concept of fair trial as well as
interpretation of Section 311 of the Criminal Procedure Code.18

In considering the impact of the judgment with respect to the protection of witnesses
as well as the power of the appellate court to adduce further evidence, the courts have
not expressly affirmed the principles under the given 2004 case, but have relied on it
nevertheless to reach at a fair decision, such as the Kerala High Court.19 However, the
2006 judgment has found resonance in highly important cases of the Supreme Court,
including the Jayalalithaa disproportionate assets case20 and the Nirbhaya gang rape
case.21

With respect to the protection of witnesses from coercion to turn hostile in criminal
cases, after more than a decade of judgments in the criminal sphere including various
high profile cases such as the Jessica Lall murder case, the problem has found a
solution in the Witness Protection Scheme, 2018, put into force by the Supreme Court
in a recent case22 until the enactment of the requisite legislation. The Court noted that

17
Zahira Habibullah Sheikh (2) v. State of Gujarat, (2004) 5 S.C.C. 353.
18
Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 S.C.C. 374.
19
Marialusi v. State of Kerala, CRA(V.) No. 245/2012.
20
J. Jayalalithaa v. State of Karnataka, (2014) 2 S.C.C. 401.
21
Mukesh v. State of N.C.T., (2013) 2 S.C.C. 587.
22
Mahender Chawla v. Union of India, W.P.(Cri.) No. 156/2016.

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the Scheme was in accordance with the need of security being granted to witnesses by
the State.23

4.2. Concluding observations

From the above discussion, it can be safely inferred that the Court has dealt with the
issue of hostile witnesses in detail, while elaborating on the way out for courts to
rectify the mistakes and the damage caused due to the diversion of the witnesses from
their statements given during investigation. The Court has recognised the wide power
of discretion available to appellate courts all over the country, when it comes to
entertaining the additional evidence under Section 391 of the Criminal Procedure
Code, for ensuring the proper administration of justice. Although the judgment does
not enjoy as much popularity as expected, it is necessary to recognise the principles
laid down by the Court, as well as the views and opinions given on the burning issues
relating to the examination of witnesses in the Court.

23
Soibam Rocky Singh, “India gets first witness protection scheme”, The Hindu, 05 December 2015, at
https://www.thehindu.com/news/national/sc-approves-centres-draft-witness-protection-
scheme/article25669784.ece (last accessed 23 April 2019).

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