Author: Express News Service
Publication: The Indian Express
Date: January 14, 2004
URL: http://www.indianexpress.com/full_story.php?content_id=39133
Introduction: Judges ask: why didn't
she complain of threat before verdict
Justifying its decision to dismiss
the state government's appeal and prayer for a retrial in the Best Bakery
case-prodded by the Supreme Court-the Gujarat High Court has observed that
''there seems to be a definite design and conspiracy to malign people by
misusing...witness Zaheera (Sheikh), who is hardly 19.'' And that Zaheera
''can easily fall prey to anyone and play in the dirty hands of anti-socials
and anti-national elements.''
A division bench of Justice B J
Shethna and Justice J R Vora, delivering a 90- page judgment dismissing
the appeal against the acquittal of all accused by the fast-track court,
observed, ''We are fully convinced that there is no substance in the appeal.''
On December 26 last year, the bench
had given an oral judgement and deferred passing a detailed order. It took
the bench six days to dismiss the appeal and two applications that sought
to produce additional evidence.
On Advocate General S N Shelat's
submission that when witnesses were turning hostile, that should have raised
a resonable suspicion in the court's mind that they were doing so under
coercion or threat, the court observed, ''This submission cannot be accepted
for the reason that there may be more than one reason for the witnessess
for resiling from their statements.''
While the bench said that Deputy
Commissioner of Police Piyush Patel failed to discharge his duties by not
recording Zaheera's FIR at the massacre site, it did not buy the argument
that Zaheera turned hostile because she was threatened. Her mother had
told The Sunday Express that she had lied in court ''trembling with fear.''
The court said, ''We have serious
doubts about it. If she (Zaheera) can make such a statement that she turned
hostile after being threatened, then the question is why she did not say
so till June 26, 2003, the day when the Vadodara fast track court passed
its judgement. There seems to be a definite design and conspiracy to malign
people by misusing this witness...she can easily fall prey to anyone and
play in the dirty hands of anti-socials and anti- national elements.''
Rejecting the state's application
seeking to take on record the statements of four victims, who filed an
SLP in the apex court, the High Court said, ''It is nothing but an indirect
method of bringing those four affidavits on record of the appeal, which
were not part of the record of the trial court. If such an application
is allowed, then it amounts to capricious exercise of power of this court
in favour of the prosecution to fill the lacunae.'' The High Court also
rejected the state's prayer for a retrial saying, ''Retrial cannot be ordered
on the ground that the prosecution did not produce proper evidence and
did not know how to prove their case.''
The court also criticised the role
of NGOs in the case saying: ''It appears that attempt is being made by
journalist/human right activist and advocates Teesta Setalvad and Mihir
Desai to have a parallel investigation. We do not know how far it is proper
but we can state that it is not permissible under law.''
The court observed that ''out of
37 witnesses who turned hostile, only seven were eye-witnesses whereas
20 were panch witnesses and it is known to everyone that in most of the
cases in the country panchas turn hostile.''
''It can never be said that the
trial was not fair and it was heavily loaded in favour of the accused and
the witnesses had not deposed fearlessly,'' the bench observed.
Drawing a parallel with a legal
matter on the Narmada Dam being dismissed by the apex court, the division
bench said: ''Once again almost a similar attempt is made not only to cause
indirect financial loss to the state but create a rift between two communities
and spread hatred among the people of the state.''
Pointing towards the role of NGOs
in such a case, the bench said: ''This time, the target is none else but
the judiciary of the state and the system as a whole, which is a matter
of grave concern.''