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This article has been written by Srijana Agrawal and Neha Bhardwaj, from the University of Petroleum and Energy Studies, Dehradun.

Introduction

The Judgment of the Vadodara Court of Sessions

At the trial, in June 2003, the Vadodara Court of Sessions identified the following issues to be decided: 

  1. Whether it was proved that, on the night of 1-2 March, 2002, an armed mob, gathered unlawfully, in furtherance of common intention, to cause damage to the life and property of the Muslim community, burning the Best Bakery building and committing murder and causing injury? 
  2. Whether the charges against all or any of the accused, of having taken part in the Best Bakery incident, were proved?
  3. What order should be made?  

Regarding issue (i), the Court held that: “the motive of the mob was to cause damage to life and property of persons of the Muslim community, as a reaction to the Godhra train carnage”. It further added that it was proved, beyond doubt, from the evidence, that the mob had resorted to destruction, loot and arson and that fourteen persons lost their lives in the disputed incident.  

As to issue (ii), the Court held that: “there was not even an iota of evidence produced on record of the case linking the accused persons or any of the accused to the crime”. Furthermore, the Court emphasised that “the judicial scrutiny of the evidence” produced in the case showed that “false evidence had been got up against falsely accused persons.” 

 As to issue (iii), the Court ordered acquittal of the accused on the basis that the case against them was not proved and further ordered cancellation of their surety and their release from jail.

In its judgment, the Sessions Court also emphasised following points

  • The Court stressed that it was not within its purview to identify the true offender(s) if not the accused, but rather, to decide, on the basis of the evidence, whether the accused persons produced by the police, were the true offenders.  
  • The Court held that there were reasons to believe that the police had fabricated the evidence of the “star witness” Zahira Sheikh and on these grounds, held that ‘no importance could be given to her statement’.  
  • The Court held the disputed incident to be “the reaction of Godhra carnage”. 
  • It also expressed an expectation that incidents of communal violence such as the Best Bakery incident, which it described as a “shameful thoughtless incident”, should be avoided in future.

On 7 August, 2003, the State of Gujarat filed:

  1. An appeal against the judgment and the acquittal order,
  2. Two applications for permission, to adduce additional evidence, in the form of witness affidavits and documentary evidence, 
  3. An order for retrial and quashing of the entire proceedings. 

The Judgement of the Gujarat High Court

Judgment was given on 26 December, 2003 and reasons on 12 January, 2004.

In regards to points (ii) and (iii), the Court dismissed the State’s applications for permission to bring further evidence on record and for an order for retrial:

  • The Gujarat High Court presented the accused as victims of a tainted process.  
  • The Court was critical of the investigating agency and the police.
  • The Court repeated the trial court’s criticisms of the prosecution case and its findings, stating that ‘retrial cannot be ordered on the ground that the prosecution did not produce the proper evidence and did not know how to prove their case’.
  • The Court, asserted its powers, as an appellate court, under the Criminal Procedure Code and specifically rejected the submissions of the learned Advocate General, that retrial should be ordered on the grounds that the original trial was not satisfactory, it was not a full and fair trial, and the witnesses had not deposed fearlessly before the Court as the court was of the view that there was nothing on record to show that the witnesses had not deposed fearlessly and that the trial was not fair.
  • The Court stated its reasonable apprehension that Zahira had been misused by “anti-national and anti-social elements”, and the intent was to wrongly defame the State of Gujarat, for unspecified ulterior motives. 
  • The Court further stated that any order of retrial would cause serious prejudice to the accused who have suffered so far economically as well as mentally and whose personal liberty is at stake.
  • Furthermore, on the question of submitting further evidence, the Court stated that the appeal stood to be decided on the basis of the evidence at trial and that it would be a misuse of the Court’s appellate powers under the Code of Criminal Procedure, 1973, to take additional evidence into consideration in deciding the appeal.
  • The Court also dismissed the plea of the National Human Rights Commission on stay of proceeding that plea is pending with the Supreme Court.

The Judgment of the Supreme Court: 12 April, 2004

In its judgment, the Supreme Court ordered reinvestigation, retrial and transfer of the Best Bakery case to Bombay High Court. 

Allowing the National Human Rights Commission’s appeals, the Supreme Court directed:

  • Re-trial by a court of competent jurisdiction under the jurisdiction of Bombay High Court, nominated by the Chief Justice of Bombay High Court.
  • The appointment of another public prosecutor by the State of Gujarat emphasising that the victims and witnesses have a say in the appointment, in view of the unusual factors in the case.
  • The State of Gujarat to ensure the transfer of all documents and records to the court, nominated by the Chief Justice of the Bombay High Court.
  • The State of Gujarat to ensure the production of the witnesses before the said court whenever required, and to provide necessary protection so that they can depose freely without any apprehension of threat or coercion.
  • All trial expenses to be borne initially by the State of Maharashtra, to be reimbursed by the State of Gujarat.
  • The Director General of Police, Gujarat to monitor the reinvestigation, if any, to be taken up with urgency and utmost sincerity.
  • The Supreme Court further identified significant flaws in the conduct and management of both the trial and the appeal hearing, and made a number of important general comments on the functions of the criminal justice system, the duties of courts, the right to fair trial and the treatment of witnesses. Commenting on the justice system and the right to fair trial, the Supreme Court observed that “the main purpose of the judicial system is the “discovery, vindication and establishment of truth. Since, the object of a criminal trial is to mete out justice, convict the guilty and protect the innocent, the trial should be a ‘search for truth’ and not a bout over technicalities. Furthermore, a trial which is primarily aimed at ascertaining truth has to be fair to all concerned.” 
  • The Court was highly critical of the original police investigation into the Best Bakery incident, describing it as, “perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime.” 
  • Overturning the findings of the High Court, the Supreme Court held that a faulty investigation is not the fault of the victims or witnesses; where the investigation is defective, the court would not be right in acquitting an accused person solely on account of the defect. The innocence or guilt of the accused persons in the Best Bakery case could have been established, the Court said, by a fair and impartial trial.  
  • As to the location of trial, the Court reaffirmed the principle that justice should be done but should also be seen to be done. Thus, where the Court is fully satisfied that a fair and impartial trial is impossible in a given case and there is a reasonable apprehension that justice will not be done, an out of state trial may be directed.

Final Judgement of Bombay High Court

In February 2006, Session Court in Mumbai sentenced life imprisonment to nine accused. However, after appeal, Bombay High Court has given life imprisonment to four accused and five accused have been acquitted by court.

Analysis of dominating concepts involved in respect to Indian Evidence Act, 1872

The scope of hearsay evidence, oral evidence, perjury and the concept of hostile witness, under the ambit of the Indian Evidence Act, 1872, is categorically discussed in the instant case. 

The Indian Evidence Act, 1872, does not contain a specific section dedicated to ‘Hearsay Evidence’, however, the act does clarify what kind of evidences fall under the category of Hearsay evidence and also unravels whether, in the advent of a proceeding, such hearsay evidences be considered relevant and whether they would be admissible in a Court of Law. In laymen terms, hearsay evidence is a term that defines a testimony which is based on ‘what a witness may have heard, over an out-of-court conversation’. Hearsay evidence is not received as relevant evidence due to the following reasons;

  • The person giving such evidence doesn’t hold any sense of responsibility, 
  • There’s also the possibility of dilution of the truth with each repetition, and
  • There’s ample scope for playing fraud under the cover of being heard from another person.

Since there is a definite probability of inaccuracies, misinformation and fabrication present in the testimony provided by the person, therefore, the common rule in regards to this form of evidence is that, it is not admissible, in proof of a fact, which has been stated by a third person. 

In the instant case, the only first-hand evidence was acquired from the two FIRs, lodged by Raizkhan Amin Mohammed Pathan and by Zaheera Sheikh, while, most of the evidence presented, was indirect or hearsay, provided by many prosecution witnesses. In addition to this, the police failed to carry out a proper investigation. The suspects were not responsibly investigated. 

Despite being a clear case of mob violence, the police failed to collect evidence that would have proven to be helpful during the trial in implicating the accused. The case depended on witness testimonies which were ever-changing. Had there been ample corroborative evidence this situation wouldn’t have presented itself and it would have not resulted in the acquittal of all 21 accused. 

Section 3 of the Indian Evidence Act defines ‘oral evidence’ which explains that all statements which the court permits or requires to be made before by it by witnesses, in relation to matters of fact under inquiry, such statements are called as oral evidence. Section 59 and Section 60 of the Indian Evidence Act, deal with ‘proof of facts by oral evidence’ and ‘oral evidence must be direct’ respectively.  As per Section 59 of this act, all facts except the contents of documents may be proved by oral evidence. According to Section 60, if it is a fact that could be heard, it must be the evidence of a witness who is said to have heard it. 

In this case, except for two main witnesses, all other people have provided unoriginal evidence. Many witnesses turned against and the remaining witnesses were not found to be that reliable. When the main witness, Zaheera Sheikh, changed her statements multiple times, the court imposed a fine on her for giving wrong statements many times and misleading the case.

Conclusion

On analysing the case, its facts, the evidence presented and the judgements, it can be concluded that there were loopholes present in almost all angles and perspectives of the case; including the preliminary investigation conducted by the police, witness testimonies, collection and demonstration of evidences and the reasoning of judgements. This case is an example of one of the most controversial and contorted nature. There was much influence and pressure from media and other organisations. 

As stated above and acknowledged by the Courts, the police work was not impervious. The complaints were recorded in a defective manner as the witness statements were not recorded efficiently. Moreover, the police failed to collect corroborative evidence. 

Furthermore, the key witness Zaheera Sheikh also mocked the judicial process by committing perjury and giving hearsay evidence to the Court which not only resulted in a defected acquittal but also misled the course of the proceedings. 

Zaheera had first claimed that she witnessed the whole incident with her eyes, but later, she changed her stance and stated that as soon as she heard people chanting communal slogans, she ran upstairs to the terrace with her family and locked herself in a room. Neither the notable witness nor other witnesses stood their ground during proceedings, which is an ample indication of poor quality of investigation and incompetence of the prosecution to present absolute evidence. Although there could have been several reasons as to why the majority of witnesses turned hostile, yet, it was the duty of the police to protect the witnesses and apprehend real culprits, only after eliminating all possibilities of doubts. 

In addition to this, it can also be deduced that there are some discrepancies regarding the reasoning provided for particular parts of the judgement, delivered by the Vadodara Session Court and Gujarat High Court respectively. 

For instance, the Vadodara Session Court blamed the communal situation, for this heinous act of violence and called for greater patriotism and national loyalty among India’s citizens. It also emphasised greatly, on agriculture in development programmes and reconsideration of the reservations policy. 

In our opinion, a whole incident cannot be a basis of argumentative presumption, for an act committed under its perpetration. It was just a presumption of the Session Judge that the act was committed in response to the attack happened near Godhra railway station, in the State of Gujarat, and basing a major part of the decision on such presumption, can be severely fatal and unfair. 

Though it is a valid point that the police were negligent and reckless in its work, yet, the inclination of Gujarat High Court, on proving the police’s incompetency and alleging that the defendants had been falsely accused and the false evidence was concocted against them by the police, in our opinion, is highly vague

This inclination was highly indicative of the fact that the Gujarat High Court was simply distracted and was rash in taking action. In our opinion, the function of a court is the administration of criminal justice and not to count errors committed by the parties or to find out who among the parties performed better, so, if proper evidence was not brought on record due to any inadvertence, the court should have been inquisitive and adamant in permitting administration of rectification to eliminate such mistakes.

Furthermore, the High Court of Gujarat, upheld the ruling of the Vadodara Session Court and acquitted the accused and dismissed the order for retrial. The High Court came to a definite conclusion that the investigation carried out by the police was dishonest and faulty. In our opinion, that was and should have been, per se, sufficient justification to direct a re-trial of the case. Furthermore, “if the acquittal is unmerited and based on tainted evidence, tailored investigation, perfunctory trial and evidence of threatened or terrorised witnesses, it is no acquittal in the eyes of the law and no credibility can be attached to it”, in view of the Supreme Court. 

In our opinion, the High Court had erred in concluding that the appeal could only be decided on the basis of the evidence previously presented before it. This was a matter for assessment of evidence when admitted, under Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. The courts exercise wide discretionary powers in cases where fresh evidence is revealed, while formulating a just decision of the case and takes action accordingly. However, these powers were not exercised by the High Court. 

Another ground for dismissal of application for adducing additional evidence by the Gujarat High Court was that “it would be a misuse of the Court’s appellate powers under the Code of Criminal Procedure, 1973, to take additional evidence into consideration in deciding the appeal”. However, in our opinion, appellate courts also have power to accept additional evidence, if the court thinks it necessary, in the interests of justice to do so. Seeing the loopholes and discrepancies in view of the perfunctory manner of the trial, in the instant case, an order for a retrial was a must and essentially called for, in order to save and preserve the justice delivery system.

In the instant case, the reasons given by the High Court for the non-examination of eye-witnesses and injured relatives at trial, were untenable. The trial court should have recalled and re-examined the hostile witnesses, availing its powers under Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872. In addition to this, the High Court’s conclusion that Zahira Sheikh had been used by persons with ulterior motives, and that witnesses who filed affidavits were of unsound mind, untruthful and capable of being manipulated, was unsupported by any material or reasonable and concrete basis.

According to Bentham, “witnesses are the eyes and ears of justice” and where the witnesses are unable to act in this manner, there can be no possibility of a trial which is fair and just. In our view, it is not only the accused who must be fairly dealt with, but victims, their family members and relatives, all have an inherent right, to be dealt with fairly, in a criminal trial, and denial of a fair trial is as much injustice to the accused as is to the victim. Threatening witnesses, forcing them to give false evidence and failure to hear material witnesses, will all result in an unfair trial. 

Furthermore, in our opinion, the public prosecutor appeared to have acted more as a defence counsel, rather than one, whose job was to present the truth before the Court. 

The Session Court, in our opinion, played the role of just a silent spectator, that was mute to the manipulations offered and preferred to be indifferent to sacrilege imparted to revered concepts of “justice”.


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