Case: State of Andhra Pradesh Vs. Shaik Mazhar

scrutiny what the High Court did was to make a casual and sweeping approach in a cryptic manner. We deprecate the said practice of showering such uncharitable criticism on the trial Courts judgment, particularly when such judgments have been written with adequate care and necessary details. The short cut adopted by the Division Bench in disposing of the appeal against the conviction is reflected in the impugned judgment itself.Mr. N. Y. Hanumanthappa, J. who wrote the judgment for the Division Bench pointed out that Smt. P. Raj Kumari, Advocate was appointed as amicus curiae to argue for the accused and papers were handed over to her only on the morning of the date of judgment. The amicus curiae was heard only at 3.30 p.m. After narrating the facts and extracting portions of decisions cited before the Division Bench learned Judges, quite unfortunately, allotted only a brief paragraph for considering the merits of the case. That passage is reproduced hereunder :"Keeping in mind the principles laid down by the Supreme Court in the above referred cases, the finding reached by us is that prosecution failed to establish beyond reasonable doubt the involvement of the accused in the offence alleged. Having reached this conclusion, we have to say that the conviction and sentence passed against the accused is incorrect and the appeal deserves to be allowed. The appeal is disposed of accordingly." * It became a great task for us, in view of the short cut adopted by the High Court, to go through the relevant materials in the evidence for the prosecution. In the light of the detailed arguments addressed by Ms. T. Anamika, learned counsel for the State, the following circumstances are seen pitted against the accused :1. The extra-judicial confession spoken to by PW-1 (Syed Toufiq) which we discussed earlier;2. Accused (Saleem) and the deceased were seen together on the evening of the date of occurrence, proceeding to the side of the Dargah by PW-3 (Sabira Begum), PW-4 (Irfan Pasha) and PW-5 (Shareef Moizuddin);3. Accused was seen returning from the graveyard all alone and when he was asked why the child was not seen with him he did not give any answer, though he was seen perplexed at the query; and4. As already stated the child was murdered by somebody at the graveyard itself. We do not want to repeat the evidence relating to the extra-judicial confession. Ms. Sushma Manchanda, learned counsel for the accused made a bid to assail the said testimony on the ground that PW-1 was taken to the Magistrate for recording the statement under Section 164 of the Code of Criminal Procedure only after an interval of one month from the date of occurrence. Learned counsel contended that it would have been a belated version which came to the force. Ms. T. Anamika, learned counsel for the State of Andhra Pradesh pointed out that as a matter of fact that statement of PW-1 was recorded by the Magistrate on 11-11-1992 which is only 13 days after the incident. Be that as it may, the fact remains that PW-1 was interrogated by the Police on the next day of occurrence and he would have stated this fact then and there. PW-1 cannot be blamed for the delay in recording her statement under Section 164 of Criminal Procedure Code, if at all there was any delay in recording her statement under the said section. As pointed out earlier, the law is that an extra-judicial confession, if found reliable can be made the sole basis of conviction. Nonetheless as a proposition of practice and prudence it is advisable that Court may search for assuming circumstances, so that, there can be no room for doubt regarding the reliability of the extra-judicial confession. It is for the aforesaid purpose that we have perused the evidence of PW-3, PW-4 and PW-5. It is unnecessary to reproduce the entire testimony of those witnesses except saying that all of them said that they saw the accused with the girl child proceeding towards the Dargah on the evening of the day of occurrence. In fact PW-4 (Irfan Pasha), a child, who was playing with the deceased girl also wanted to accompany the girl as the offer of custard apple allured him also. PW-4 said that he was brushed aside by the accused and as he wanted to keep him away. PW-5 said that he wanted to take his child to a Unani Physician, PW-6 who was residing very close to the Dargah. It was on his way that Physician that he happened to see the accused with girl child. PW-6 when examined by the prosecution gave evidence which lends credence to the version of PW-5. It is pertinent in this context to point out that PW-5 had seen the accused returning from the graveyard when he was all alone. He asked accused why the child was not with him then.Ms. Sushma Manchanda, learned counsel used this opportunity to make an attack on the testimony of PW-5. She contended that if he did see the child with the accused the natural conduct should have been that he should have communicated this fact to others. Of course if such a conduct was exhibited by PW-5 that also could have been accepted as a natural conduct. But here, it is unnecessary for PW-5 to presume that some harm would have been inflicted on the child. It is possible for him to think that accused would have left the child at some place and he came back alone. Idea of homicide being inflicted on the child would not have occurred to PW-5 at that particular time.Having scrutinized the evidence of the above witnesses we have no manner of doubt that the learned Sessions Judge had reached the correct conclusion that the evidence was worthy of acceptance and the circumstances proved were quite sufficient to form the chain leading to the irrestible conclusion that the killer of the little girl was none other than respondent Saleem in this case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is for the aforesaid purpose that we have perused the evidence of5. It is unnecessary to reproduce the entire testimony of those witnesses except saying that all of them said that they saw the accused with the girl child proceeding towards the Dargah on the evening of the day of occurrence. In fact(Irfan Pasha), a child, who was playing with the deceased girl also wanted to accompany the girl as the offer of custard apple allured him also.said that he was brushed aside by the accused and as he wanted to keep him away.said that he wanted to take his child to a Unani Physician,who was residing very close to the Dargah. It was on his way that Physician that he happened to see the accused with girl child.when examined by the prosecution gave evidence which lends credence to the version ofIt is pertinent in this context to point out thathad seen the accused returning from the graveyard when he was all alone. He asked accused why the child was not with him then.Ms. Sushma Manchanda, learned counsel used this opportunity to make an attack on the testimony ofShe contended that if he did see the child with the accused the natural conduct should have been that he should have communicated this fact to others. Of course if such a conduct was exhibited bythat also could have been accepted as a natural conduct. But here, it is unnecessary forto presume that some harm would have been inflicted on the child. It is possible for him to think that accused would have left the child at some place and he came back alone. Idea of homicide being inflicted on the child would not have occurred toat that particular time.Having scrutinized the evidence of the above witnesses we have no manner of doubt that the learned Sessions Judge had reached the correct conclusion that the evidence was worthy of acceptance and the circumstances proved were quite sufficient to form the chain leading to the irrestible conclusion that the killer of the little girl was none other than respondent Saleem in this case.