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Published : February 20, 2011 | Author : yashvardhan
Category : Criminal law | Total Views : 25838 | Rating :

yashvardhan sharma

Best Bakery Case & Law of Evidence

Hearsay evidence in the Law of Evidence has been introduced in sec.60 which gives the direction that oral evidence should be direct. Any evidence coming from a second or third person is said to be hearsay. It is secondary evidence which is admissible in court only in certain circumstances.

Section .60 of the Indian Evidence Act lays down that the oral evidence must be direct, if it refers to a fact evidence must be direct. if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. The evidence before the court can be divided into original and unoriginal. The original is that which a witness reports himself to have seen or heard through the medium of his own senses. Unoriginal , also called derivative, transmitted, secondary or hearsay, is that which a witness is merely reporting and not himself heard or seen.

In this case it is important because except for two main witnesses all the persons provided hearsay evidence. Many of the witnesses turned hostile and the remaining were not found to be that credible. Also in the end when the main witness changed her statements many times the court amassed a fine on her in lieu of giving misleading statements many times .

Facts of the case:-
The given case also famously known as the BEST BAKERY CASE can be summarised in the following timeline:-

· March 1, 2002: Vadodra (erstwhile Barodra), Gujarat, the ignominious Best Bakery massacre took place as nearly 1000 rioters swooped on the bakery-cum-residence owned by late Habibullah Sheikh at 2100 hours IST and within a matter of hours eleven members of the Sheikh family and three bakery employees were either charred to death or hacked to pieces.

· The defence had argued that only the FIR of March 1, 2002 (of one Raizkhan Amin Mohammed Pathan) is admissible in the Best Bakery case, while the FIR of March 4, 2002 (of the “star witness” Zaheera Sheikh) was manipulated by the police.

· April 2002: The National Human Rights Commission (NHRC) in its report of April 2002 had recommended that the case be handed over to the CBI.

· May 19, 2003: Zaheera, her mother Sehrunissa and her brothers Nafitullah and Nabiullah retracted their statements in court. Zaheera said that she was on the terrace while the incident took place and couldn’t identify the accused.

· June 27, 2003: All the 21 accused in the Best Bakery carnage were acquitted by a local court for lack of evidence. Additional Sessions Judge H U Mahida feared the police may have implicated innocents.

· This was the first verdict in a case relating to the post-Godhra communal violence. The judgement accepts the argument without even considering the fact that statements similar in import to the March 4th FIR were made by witnesses before several agencies and/or organizations well after March 4, 2002, and affirmed, according to media reports, as recently as February 2003.

· The trial in the case began on May 9, 2003 in a fast track court. Delivering his 24-page judgment, Mahida said, "It was proved beyond doubt that a violent mob had attacked the bakery and killed 12 persons. However, there was no legally acceptable evidence to prove that any of the accused presented before the court had committed the crime." Nobody from the complainants' side was present in the court premises when the judgment was pronounced.

· July 5, 2003: Zaheera along with her mother told The Sunday Express that she lied in court because she feared for her life.

· July 7, 2003: Zaheera said that Bhartiya Janta Party (BJP) MLA Madhu Srivastava and his cousin, Congress councilor Chandrakant Srivastava were behind the threats and sought re-trail outside Gujarat.

· July 8, 2003: National Human Rights Commission visited Vadodra to check papers in the Best Bakery case.

· July 31, 2003: NHRC moves Special Leave Petition in Supreme Court asking for a retrial outside Gujarat.

· April 12, 2004: Supreme Court orders the retrial to be held outside Gujarat in Maharashtra. The orders were passed by Justice Aoraiswamy Rajin and Justice Arijit Pasayat.

· September 24, 2004: Charges were framed by Judge Abhay Thipsay.

· October 4, 2004: The re-trial begins. Following the examination of formal prosecution witnesses in the first weeks, independent eyewitnesses to the Best Bakery massacre had begun testifying on October 27, 2004.

· Among these were Tufel Ahmed, Raees Khan Pathan and Shehzad Khan, all workers in the Best Bakery who were eyewitnesses to the night-long attack.

· November 3, 2004: In an affidavit to the High Court, “If we don’t lie as instructed by Teesta, then these people will get me and my family members killed,” Zaheera said with regard to Teesta Setalvad.

· She said that after the fast track court had acquitted the 21 accused, two Muslims had barged into her house and told her that she would have to change her statement in the interest of the community and thereafter she along with brother were taken to Mumbai to Teesta Setalvad.

· She however did not divulge the exact date when she was able to flee from Mumbai but said that Teesta has had her held captive and it was she who had made her sign legal papers and the matter was taken to Supreme Court against her wishes.

· Since November 9, 2004: Zaheera went into hiding and even skipped the November 17, 2004 hearing at Mumbai court despite summons being issued to her and her brothers. The silver lining however has come in the form of Zaheera’s cousin-Yasmin Sheikh who appeared as a witness on the same date and identified 11 of the 21 accused in the Best Bakery case.

· November 29, 2004: Zaheera Sheikh, prime witness in the Best Bakery case, appeared before the trial court in Mumbai amidst tight police security to give her testimony but did not depose as the prosecution chose not to examine her.

· Prosecutor Manjula Rao told the designated Judge Abhay Thipsay that she would examine Zaheera at the end of the trial and not at this stage. Thereafter, Zaheera left with her police escort and her lawyer Harshad Ponda assured that she would depose as and when the court summoned her.

· Nov 18,2004: Zaheera’s brother Nasibullah Sheikh appeared in court only to retract his earlier statement. He confirmed to the designated judge Abhay Thipsay that someone had hit him in the head, and he had gone unconscious. And by the time he could regain his senses the bakery had been burnt and so he does not recognise the accused. Something which he had once refuted.

· Jun 17, 2005: The cross-examination of investigating officer P P Kanani. Mr. Kanani, who took over as investigating officer from Himmatsinh Baria of Panigate Police Station on March 10, 2002, gave details of the case in a chronological order.

· August 29, 2005: A Supreme Court appointed Committee indicted Zaheera Sheikh, key witness in the Best Bakery case, as a “liar”. The Committee did not mince any words in criticizing Zaheera, who has given a series of flip-flop statements.

· The Committee, headed by the Supreme Court Registrar General said in its report, “She has developed an image of self-condemned liar whose statements alone cannot safely be accepted.”

Case comments:-
The Supreme Court of India, on 8th of March, 2006 sentenced Zaheera Sheikh, a witness, cum complainant cum aggrieved, cum turned hostile, for giving, a flip flop and contrary, evidence on different occasions, to a one year simple imprisonment term. She was also fined Rs 50,000 on charges of perjury. It was done on the basis of a report, submitted by a high powered committee headed by Registrar-General of the Supreme Court. The Supreme Court had on January 10,2005 ordered the committee to inquire into the whole issue The committee in its report called Zahira Sheikh a “self-condemned liar”. The Court also observed that “ this is a classic example of a case where evidences were tampered with and witnesses won over.” The Bench also added that; ‘ We find, that people have started feeling criminal trials are like cobweb where small flies are getting caught and big people are dashing through”.
In a severe indictment of Zaheera, whose conduct was disapproved by the court, the Bench also directed, the income tax authorities, to forthwith; attach her property and bank accounts. In the event Zaheera fails, to deposit the fine, the court directed a one year prison term in default.

The case above presents a classic example of hearsay evidence and whether the statements given outside the court can be taken in consideration or not. In this case the court having taken in account the statements by Zaheera Seikh outside the statements has taken a decisive action. Well now, this stands as in direct contradiction in the rule of the courts to consider anything which is said in the court by a witness as evidence and nothing beyond it. It also takes in view hearsay evidence and its impact on the trial.

Hearsay evidence can be primarily be understood as
A statement made out of court that is offered in court as evidence to prove the truth of the matter asserted.

It is the job of the judge or jury in a court proceeding to determine whether evidence offered as proof is credible. Three evidentiary rules help the judge or jury make this determination:

(1) Before being allowed to testify, a witness generally must swear or affirm that his or her testimony will be truthful.

(2) The witness must be personally present at the trial or proceeding in order to allow the judge or jury to observe the testimony firsthand.

(3) The witness is subject to cross-examination at the option of any party who did not call the witness to testify.

Thus in this case there were also charges of perjury on Zaheera Seikh. The case became controversial when Zaheera Sheikh and her family admitted publicly that they had lied in the Vadodara Sessions Court. They said that they were intimidated by Bharatiya Janata Party MLA Madhu Shrivastav and his brother Chandu. The family appealed to the Supreme Court for a re-trial outside Gujarat so that they would be safe to testify. But in the Mumbai hearing too, they turned hostile.

This turning hostile of the witnesses on the same charges in two different high courts of the country is a mockery of the judicial independence of a person and shows how one can easily befool it and that the voice of a person does not hold any value. The influence of power on the statement of the witness of a heinous crime can be seen largely. And this was written all over the case. Even the H’onble High court felt powerless and unprepared to deal with such a phenomenon. The high court still to the best of its ability and knowledge delivered a landmark judgement. The High court gave some reasons for the judgement which can be cited here.

Reasons and comments of the High court:-
· Mr. Sushil Kumar. Learned Senior Advocate then submitted that NHRC had directlyapproached the Supreme Court against the impugned judgement and order passed by theTrial Court in this case only because of media hype, though the impugned judgement andorder of acquittal passed by the Trial Court is just, legal and proper. He had gone to thatextent by submitting that media and some, without any basic knowledge and concept ofCriminal Law, have almost found the accused guilty much before the state appeal filed against the impugned judgement and order of acquittal passed by the Trial Court under Sections 386 of the Criminal Procedure Code was even heard and decided by this High Court, which is highly improper.

Mr. Sushil Kumar had vahemently submitted that it was unfortunate that none else but the Chairman of NHRC who is former Chief Justice of the Supreme Court of India, severely criticized the impugned judgement and order of acquittal passed by the learned Trial Judge. In this case immediately after the judgement was pronounced by the learned Trial Judge, without even looking at it he has called it miscarriage of justice. He submitted that inspired by this, one and sundry, started to even looking at it or applying their mind and understanding the correct position of law. He had also submitted that it was highly improper on the part of the Chairman of the NHRC to call the judgement as miscarriage of justice, which may even amount to contempt of the court. He had also

submitted that when the Chairman of Court. He had also submitted that when the Chairman of the NHRC realized his mistake after going through the judgement and order of acquittal, then, only with a view to save the situation, under the compelling circumstances, he decided to approach the Supreme Court and accordingly matter was filed by NHRC before the Supreme Court and the impugned judgement and order of

acquittal passed by the learned Trial Judge has been challenged by bypassing this High Court. He also submitted that after the Chairman of the NHRC made the statement that the judgement and order of the learned Trial Judge amounts to miscarriage of justice, then there was a tremendous pressure on him from media, therefore, though the

judgement and order of the learned Trial Judge was absolutely just, legal and proper and there was no miscarriage of justice, NHRC had to approach the Supreme Court directly against the judgement and order of acquittal passed by the Trial Court. He, therefore, submitted that this Court may straightway dismiss the appeal and the applications filed in it as there is no substance in any of it.

Learned Advocate General Mr. Shelat has submitted that one after other witnesses turned hostile before the court, that was sufficient to raise a reasonable suspicion that under threat or coercion, they had turned hostile. This submission of learned Advocate General cannot be accepted for the simple reason that there may be more than one reasons for the witnesses from resiling from their so called statements made before the police. It is known to everyone that no signature of the witness is obtained below his / her statement recorded by the police under Section 161 of the Code. Signature is obtained only on the complaint. First of all, there is nothing to show that these witnesses had ever made their so called statements before the police and possibility of this case cannot be ruled out. If they had not made any statement before the Police, than, there was no question of resiling from their so called statements either under threat or coercion. It may also be stated that in all 37 witnesses were declared hostile, out of them seven were none else but victims and eye witnesses, three of them had received injuries during the incident. All these 7 witnesses were from Uttar Pradesh and not knowing Gujarati, still their so called statements are recorded by the Police in Gujarati. It is not the case that the said statements of the witnesses recorded in Gujarati were read over and explained to them in Hindi. The possibility of these seven witnesses telling the truth before the Court in their evidence also cannot be ruled out because they were not only the victims but some of them were injured and lost their near and dear ones in the incident. It was the best opportunity for them to depose against the accused, if at all they had seen the respondents accused taking active part in the incident with other persons of the mob of more than 1000 to 1500 then they would have definitely identified the accused persons,who were very much present in the court, and deposed against them because in the court there was no threat or coercion. We are also not prepared to believe that other four eye witnesses escaped unhurt without any injury on their persons when Police claimed that they were also tied and beaten during the incident. It raises serious doubt about the investigation carried out by the Police in this case.

We failed to appreciate the submission of learned Advocate General that neither the Prosecutor nor the learned Judge had put any questions to the witnesses, who were not supporting the prosecution and tried to know from them that why they were not supporting the prosecution case. The Prosecutor is the guaroian of the society, who is concerned with punishing the guilty and saving the innocent. He has to protect the interest of the society and has to see that wrong doers must be punished, but at the same time, innocent persons should not be punished wrongly. Similarly, neither the Public Prosecutor nor the learned Trial Judge can put any leading questions to the witnesses.

Neither the prosecutor nor the learned Judge can cross their limits and become prosecutor.

Learned Advocate General then made a serious grievance that neither the Public
Prosecutor not the learned Judge had taken any care to protect witness Zahirabibi, who was to be examined on 17.5.2003, especially when on 9.5.2003, as many as four witnesses, out of them 7 injured persons, turned hostile. This submission has no substance. On 17.5.2003, in all three witnesses including Zahirabibi were examined. Out of three witnesses, one was injured. It may be stated that if they were really threatened by any one prior to the recording of their evidence, then, they would have definitely complained about it at least to someone, but that is not the case. As stated earlier, it was very much doubtful whether the witnesses had ever made their statements before the Police or not? Zahirabibi’s statement recorded on 2.3.2002 is in Gujarati and the same

was treated as FIR by the Police, therefore, her signature was obtained below the same without reading it over and explaining the same to her in Gujarati. Zahirabibi has simply admitted her signature below her so called complaint, but she has clearly denied the contents of it. We are also not prepared to believe that she was threatened, therefore, she turned hostile because she deposed before the court on 17.5.2003. Trial continued thereafter and the learned Trial Judge pronounced the judgment only on 27.6.2003 after

more than a period of one month. It is to be noted that immediately on the next day of the pronouncement of judgement, this witness Zahirabibi had made the statement that she was threatened, therefore, she had turned hostile before the court. We have serious doubt about it. If she can make such statement on the next day after the judgment was pronounced, then the question is, why she had not stated so till 27.6.2003 till the judgement was pronounced? When she turned hostile on 17.5.2003. There seems to be a definite design and conspiracy to malign the people by misusing this witness Zahirabibi, who is hardly 19 years old. She can easily fall in pray of anyone and play in the dirty hands of antisocial and anti-national elements.
This judgement is one of the landmark judgements of the Indian judiciary. Not only it had a heinous crime of genocide with it but also it had many issues which are always present in a case but rarely surface like the impact of media , hearsay evidence, witnesses turning away from their statements etc. The judiciary has tackled all the issues in an intelligible way and paved way for future legislations. But still many questions remain unanswered like what can be done to stop witnesses from perjury, is there always influence of police in every case and how can this influence be curbed, what is the role of media in this context do they have the right to judge any person without the knowledge of law and system and do they always ride high on the wave of public opinion and keep on giving their decisions , do the courts give their independent judgement or do they buckle under the pressure of popular vote and sympathy ?

Many questions have been answered and many more have come up. But this case stands as the torch bearer of the one of its kind and will help in understanding these newer planes better as the Indian Judicary progresses on and these questions will be answered.

# Law on Oral and Documentary Evidence
# Article from http://www.cjponline.org/best/hcjudgement.pdf

Authors contact info - articles The  author can be reached at: yash@legalserviceindia.com

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