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Zaheera can play (into) dirty hands of anti- nationals and anti-socials: HC

Zaheera can play (into) dirty hands of anti- nationals and anti-socials: HC

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.''
 


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