Salamat Ali vs State
2010 Latest Caselaw 1705 Del

i.2
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision:26th March, 2010

+                            CRL.APPEAL NO.242/2010

        SALAMAT ALI                                 ..... Appellant
                 Through:           Mr.Ajay Verma, Advocate with
                                    Mr.Gaurav Bhattacharya and
                                    Ms.Swati Gupta, Advocates

                                    versus

        STATE                                       ..... Respondent
                         Through:   Mr.M.N.Dudeja, Advocate

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

      1. Whether the Reporters of local papers may be
         allowed to see the judgment?

      2. To be referred to the Reporter or not?

      3. Whether the judgment should be reported in the
         Digest?                                   Yes

PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated

10.8.2009 the appellant has been convicted for the offence

punishable under Section 302 IPC. The appellant has been

acquitted of the charge for the offence punishable under

Section 376 IPC and Section 201 IPC.

2. Briefly stated, the case of the prosecution is that

deceased Sabina Khatoon, aged about 8 years, left her house

at around 10:00 AM on 20.1.2006 and did not return home.

Her dead body was noted by somebody near Ganda Nala,

Madhav Setu on Naraina Road, information whereof was

passed on at the local police station where the same was

noted vide DD No.7 at around 12:30 noon on 23.1.2006.

Mohd.Mustafa, father of Sabina Khatoon, also received the

information of the dead body of a young girl being found and

accordingly he reached the spot. He made the statement

Ex.PW-2/C to the police officer who had reached the spot, as

per which Mohd.Mustafa told the investigating officer that his

daughter Angoori was married to the appellant and was having

a matrimonial dispute and therefore had returned to her

parental home. Her son was with the appellant. He i.e.

Mohd.Mustafa had sent Sabina Khatoon to the house of the

appellant at around 9-9:30 AM on 20.1.2006 to fetch her

nephew, but she never returned. Hence, he sent his son

Chand PW-3, to the residence of the appellant and Chand

returned and informed him that the appellant had told Chand

that after scolding Sabina he had sent her back. That Chand

further told him that the appellant did not permit Chand to

look or peep inside his house.

3. Needless to state, the FIR was registered for the

offence of murder. Since it was suspected that Sabina was

raped offence punishable under Section 376 IPC was also

included. Appellant was apprehended.

4. But before Mohd.Mustafa made the statement

Ex.PW-2/C, on 20.1.2006 he had lodged a missing person's

complaint Ex.PW-2/A, which reads as under:-

"DD No: 43 B dated 20.1.2006, PS Patel Nagar, Delhi.

Statement of Mohd.Mustafa S/o Mohd.Muslim, R/o A- 532, Katputli Colony, Delhi: Information missing girl: Time 7:30 PM.

Aforesaid person came to police station in person and stated that his daughter Sabina Khatoon D/o Mohd.Mustafa, R/o A-532, Katputli Colony, Delhi aged 8 years, colour fair, height about 3 feet, round face, thin built and wearing a red salwar and a pink coloured kurti left at about 10:00 AM from the house. I have no suspicion on anybody. Search may kindly be made. Statement has been read over and the same is correct."

5. After the appellant was apprehended, as claimed by

the prosecution, he made a confessional-cum-disclosure

statement admitting his guilt and got recovered a chappal

from his house which chappal was identified in Court by the

father of Sabina Khatoon as that of his daughter.

6. Needless to state, the evidence of the prosecution

was Sabina Khatoon visiting the house of the appellant and

going missing thereafter as also the recovery of the chappal of

Sabina Khatoon from the house of the appellant.

7. Holding in para 30 of the impugned decision that he

need not discuss the evidence of last seen for the reason the

accused has admitted said fact, learned Trial Judge has

proceeded to convict the appellant.

8. While admitting the appeal we had wondered as to

wherefrom the learned Trial Judge noted in para 30 of the

impugned decision that he need not discuss the evidence of

last seen inasmuch as the accused has admitted said fact. No

such admission was made by the appellant when he was

examined under Section 313 Cr.P.C. Accordingly, we had

directed that a letter of request be sent requiring the learned

Trial Judge to inform this Court as to wherefrom said finding of

fact has been noted by him.

9. A response has been received from the learned

Trial Judge informing that since witnesses of the prosecution

who deposed that Sabina Khatoon had gone to the house of

the appellant were not cross-examined on said point, in his

opinion, the appellant admitted said fact.

10. For the benefit of the learned Trial Judge we would

only like to pen down that an admission is something which is

expressly admitted in no uncertain language by the person

against whom the admission is pressed into aid. Not cross-

examining a witness with reference to a statement made by

the witness has not to be treated as an admission but as a

case of not controverting the testimony of a witness and

thereby justifying the acceptance of the statement by the

Court.

11. Be that as it may, reverting to the evidence led at

the trial, we note that the witnesses of the prosecution who

had deposed to the fact that Sabina Khatoon was sent to the

house of the appellant in the morning of 20.1.2006 and what

transpired there are Mohd.Mustafa PW-2, Chand PW-3, Angoori

PW-4 and Mohd.Kalamat PW-13.

12. Mohd.Mustafa PW-2 has deposed that his elder

daughter Angoori was married to the appellant and was

residing with the appellant at some distance from his house in

same colony. That Angoori came to her parental house about

15-20 days prior to the date of the incident because of some

altercation with her mother-in-law and had left behind her

elder son aged about one year with the appellant. On

20.1.2006 at about 9:00 or 9:30 AM he sent Sabina to the

house of the appellant. She did not return. He sent his son

Chand to the house of the appellant, who on returning back

told him that the appellant told Chand that after scolding

Sabina he had sent her back. He deposed that he lodged the

missing person's complaint Ex.PW-2/A and that on 23.1.2006

he learnt that the dead body of a female child was lying near

Ganda Nala, Naraina Road, Madhav Setu and on reaching the

spot he identified the dead body of his daughter. Police

reached there and recorded his statement Ex.PW-2/C. He

further deposed that the disclosure statement Ex.PW-2/H of

the accused was made in his presence and that the police

recovered the pair of chappal Ex.P-2 from the Tant of the

house belonging to the appellant, which was seized vide memo

Ex.PW-2/I.

13. The cross-examination of the witness is as under:-

"My brother Sabnam had gone to identify dead body of Sabina. I sent my daughter Sabina to bring back son of Angoori as Sabina used to frequently visit the in-law's house of Angoori. I did not sent Angoori because she had come to me after having altercation with her in laws. I did not approach the parents of accused as to why he had sent back Sabina after scolding. After I got information from my son Chand about Sabina, I started searching her in the neighbourhood. I also enquired from accused about Sabina who told me that she had already left, however, I did not enquire from the neighbours of accused."

14. Chand PW-3 deposed in harmony with his father

regarding his visit to the house of the appellant and being

informed that Sabina had been scolded and sent back when

she went to the house of the appellant.

15. The cross-examination of Chand reads as under:-

"I did not enquire from the neighbours of the accused about Sabina. I did not enquire from the parents of the accused about my sister Sabina."

16. Angoori PW-4 deposed same facts as were deposed

by her father. Her cross-examination reads as under:

"The question with regard to solemnization of marriage is disallowed as the couple is already having two kids.

I had no altercation with my father in law. The quarrel took place on petty matrimonial chore. I did not complain the matter to my father in law. Without telling anything to anybody I proceeded to my parent's house. During my stay with my father accused had come to me to take me back, but I did not go. I sent my sister Sabina to take back my son because she used to frequently visit my in-laws's house. My sister Sabina some time used my chappal, but on the day of incident, she was wearing her own chappal. I had also identified dead body of Sabina. I did not notice any finger marks of accused Salamat on the body of Sabina."

17. Mohd.Kalamat PW-13 simply deposed that about

2½ years ago at about 9/9:30 AM Sabina, the sister-in-law of

the appellant has come to his house to take back son of

Angoori and that the accused refused Sabina to take with her

the son of Angoori.

18. The cross-examination of Mohd.Kalamat PW-13 is as

under:-

"I am handicap. It is correct that since I am disabled I got terrified and made statement to the police. Sabina who had come to our house had gone away safely and that I had seen her going from our house. Sabina had not left behind any chappal. Accused Salamat was also pressurized by the police. It is wrong that Angoori was at home at that time. My brother had been falsely implicated in the present case."

19. Suffice would it be to state that learned counsel for

the appellant has just not cross-examined the father of the

deceased i.e. PW-2 with respect to his statement Ex.PW-2/A

which was made at 7:30 PM on 20.1.2006. No questions have

been put to the witness as to the facts recorded in his

statement that he did not suspect anybody. The witness has

not been cross-examined with reference to his subsequent

statements that his daughter had gone to the house of the

appellant at around 9:30 in the morning and after his scolding

was sent back. He has not been cross-examined with respect

to said fact not being told by him to the police at the first

instance. Similarly, Chand has not been cross-examined with

respect to what he has deposed against appellant in respect of

Sabina Khatoon, sister of Chand going to the house of the

appellant. Similarly, the other two witnesses have also not

been subjected to any meaningful cross-examination.

20. None can belittle the right of every accused to be

fairly and adequately represented in a criminal trial, especially

where capital sentence is involved. Counsels play an

important role in the resolution of issues in an adversarial

system. Every accused has a right to meet the case of the

prosecution on even terms.

21. In the decision reported as 1978 (3) SCC 544

Madhav Hayawadanrao Hoskot vs. State of Maharashtra, the

observations of the US Supreme Court in Ramindo Hamlin's

case were cited with approval, which epitomize the

quintessence of this processual facet:-

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate or those of feeble intellect.

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries but it is in ours. From the very beginning our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."

22. Needless to state, at a criminal trial involving a

serious offence, the counsel for the defence has a duty to

bring such skill and knowledge so as to make a trial a reliable

adversarial testing process. In Turner vs. Duncan, the US 9th

Circuit Court of Appeals held that where no discernible defence

strategy emerged at the trial, the trial could not be relied as

having produced a just result.

23. We need not note various decisions of the Supreme

Court save and except a few which have highlighted that it is

the duty of even the Court to ensure that an accused is

represented with diligence and competence by the defence

counsel and where the defence falls below the acceptable

standards at a criminal trial, it would amount to denial of

counsel's assistance. A few would do. 1981 (1) SCC 286

Kishore Chand Vs. State of H.P., 1983 (3) SCC 307 Ranjan

Dwivedi vs. Union of India and 1980 (1) SCC 108 Hussainara

Khatoon & Ors. vs. Home Secretary, State of Bihar.

24. No doubt, counsel's assistance and performance at

a trial has to be highly deferential but as observed by the US

Supreme Court in the decision reported as Strickland vs.

Washington 466 US 668 (1984), with regard to the required

showing of prejudice, the proper standard requires the

defendant to show that there is a reasonable probability that,

but for counsel's unprofessional efforts, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence

in the outcome. A Court hearing an ineffectiveness claim must

consider the totality of the evidence before the Jury or the

Judge.

25. Tested on the anvil of law aforesaid, a mere perusal

of the cross-examination conducted in the instant case brings

out the hopelessness of the trial and highlights the

ineffectiveness, inefficiency and low standards achieved by the

learned defence counsel. The witnesses of the prosecution

have just not been cross-examined with reference to their

testimony and the available material on record. The witnesses

of the prosecution have just not been cross-examined with

reference to Ex.PW-2/A.

26. We are left with no option but to declare that the

instant trial has not been a fair trial to the appellant and the

blame has to be principally on the shoulders of his counsel,

with the learned Trial Judge partly sharing the blame for the

reason he did not just bothered to ensure that the defence

raises the standard to meet the requirements of a fair

adversarial trial.

27. Accordingly, we dispose of the appeal by setting

aside the impugned judgment and order dated 10.8.2009

convicting the appellant for the offence punishable under

Section 302 IPC. Accordingly, we also set aside the order on

sentence dated 18.8.2009.

28. We restore the trial before the learned Trial Judge.

We direct that PW-2, PW-3, PW-4 and PW-13 alone would be

re-summoned for cross-examination.

29. The learned Trial Judge would ensure that an

effective counsel through Legal Aid is made available to the

appellant.

30. Needless to state, the appellant would be re-

examined under Section 313 Cr.P.C. with reference to the

incriminating circumstances brought out against him and

would be given another opportunity to produce defence

witnesses.

31. At the remanded stage the trial would be expedited

and would be completed within three months of the date of

receipt of the present decision.

32. TCR be returned forthwith.

33. Copy of this decision be given dasti to learned

counsel for the appellant as well as the State under the

signatures of the Court Master today itself.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

March 26, 2010 dk / mm