Role of the Police
"It is a feature of this trial that the version of most
of the witnesses and reliability of evidence is sought to be challenged
mainly by showing it to be in variance with the statements recorded during
investigation and/or the statements made during the previous trial. The
reliability of the police record of the statement of witnesses is entirely
doubtful in this case."
"Kumar Swami (Inspector General of Police, State
Intelligence Bureau, State of Gujarat) who was Joint Commissioner of
Police, Vadodara, at the material time is proved to be an unreliable
witness… Kumar Swami was not interested in actually finding out the truth…
Like Kumar Swami, Ramjibhai Jagjibhai Pargi, Assistant Commissioner of
Police, Vadodara City – also seems to be interested in getting some matter
on record, which is extraneous to the investigation which he was doing."
"It appears that Police Inspector H.G. Baria was not
serious about the investigation and did not try to do his best to collect
evidence. However, the shortcomings in the investigation have not
prejudiced the accused in any manner. The perfunctory manner in which PI
Baria carried out the investigation does not appear to have been done with
the object of implicating the accused."
No weakness in evidence of
eyewitnesses
"The evidence of witnesses who have supported the
prosecution (Taufel, Raees, Shehzad, Sailun, Yasmin (sister-in-law of
Zahira Shaikh) does not suffer from any weaknesses… The evidence of all
these witnesses is consistent and fits in properly with the other evidence
in this case, and/or with the facts which are undisputed... The evidence
of the police witnesses – viz. PSI B.U. Rathod, DCP Piyush Patel and PI
H.G. Baria – also corroborates the version of the supporting occurrence
witnesses… It may be kept in mind that none of these witnesses, who are
obviously very important witnesses, were examined during the previous
trial (in the Vadodara court)."
Unique hostile witnesses
"Hostility is not uncommon in criminal courts… However,
I may observe that the hostility of these witnesses (Zahira, her mother,
sister and two brothers) in this case is rather unique. An analysis of
their evidence leaves no manner of doubt that they are interested not only
in denying the connection of the accused persons with the alleged
offences, but have tried their best to deny the happening of the incident
itself; and where it became impossible, to try to reduce the enormity of
the offences."
Clear collusion between accused
and Zahira’s family
"There is a clear indication of collusion between the
accused or somebody interested in affecting the prosecution case on one
hand and Nafitulla and the other hostile witnesses on the other."
Hidden hands and motives at
work
"These witnesses (Zahira and family) appear to have
turned hostile at the instance of some persons and tutored not with the
limited object of ensuring the acquittal of the accused, but for much
broader objects. There was an attempt to show through these witnesses that
there was a conspiracy of a particular community or of a group of people
to make false allegations for getting an order of retrial. All this is
required to be exposed… It is my opinion, after going through the entire
evidence of Zahira, Saherunnisa and other hostile witnesses that they have
fallen in the hands of such people who have made them speak lies, not only
with respect to the involvement or otherwise of the accused persons, but
with the object of indicating that there was nothing wrong in previous
trial; that they never thought of making any prayer for retrial; and that
the order of retrial had been falsely obtained by Smt. Teesta Setalvad and
her organisation."
No tutoring by Teesta Setalvad
"The initial theory was that Zahira had not made any
statements at all. Then the theory – when having made statements could no
more be denied – was changed to the effect that statements were made, but
on being tutored or pressurised by Smt. Teesta Setalvad. Thereafter, the
theory is further changed – because of the realisation that at that point
of time Smt. Teesta Setalvad could not be brought into the picture – and
the tutoring is attributed to the persons from her community."
"The theory of pressure by Smt. Teesta Setalvad, which
was thought to be a solution to all the questions that would crop up in
any reasonable mind after Zahira would turn hostile again in the retrial,
has, any way, miserably failed. This needs to be further highlighted by
pointing out from Zahira’s evidence itself that the claim of Smt. Teesta
Setalvad having abducted Zahira, kept her in confinement, etc. is false…
Zahira has admitted that Smt. Teesta Setalvad used to treat her very well
and behave very well with her. Zahira has categorically stated that she
used to maintain and look after Zahira properly."
Role of Atul Mistry and Jan Adhikar Samiti
According to Zahira, she herself found out Advocate Atul
Mistry by going to the Court (in Vadodara) and nobody recommended or
introduced him to her. This is the cock and bull story which the Court is
expected to believe. Advocate Atul Mistry apparently was accompanying
Zahira and others everywhere. He used to sit in the Court while the
evidence was being recorded and though what legal services he was
rendering to them is not clear, the fact that he was doing all other
chores for them is clear. He was looking after their comforts in booking
vehicles, arranging for lodging, even dialling telephone numbers for them,
etc. ‘Jan Adhikar Samiti’ had put so much trust in him that though
he was (claimed to have been) introduced to them by Zahira, instead of
giving any money to Zahira and others, they used to hand over the money to
Advocate Atul Mistry only, who would not be required to give any accounts
thereof to Zahira and others. It is also remarkable that no receipts are
taken from Zahira or the others regarding the financial assistance given
to them by the ‘Jan Adhikari’."
"The role played by ‘Jan Adhikar Samiti’ in the
whole matter is also very interesting. What are the aims and objects of
this ‘samiti’, if at all it is a ‘samiti’, has not been
brought on record except that they help the weak and needy. Why they have
chosen Zahira and others as ‘needy persons’ and what is the understanding
between them is not clear. Why Zahira requires facilities for attending
the Court and requiring payment of her Advocate’s fees etc. is difficult
to understand, when all that she has to say is that she did not lodge any
report, she did not make any complaint, that she did not make any
complaint about improper trial held in the Vadodara Court, she never asked
for retrial, she never approached the Hon’ble Supreme Court of India; and
she does not know who are the culprits. ‘Jan Adhikari’ Shri Tushar
Vyas appears to have done a lot for Zahira and her family."
"It is a matter of record that Zahira was earlier
bitterly complaining about injustice done to her, about improper
investigation, about the threats having been received by her, etc. At that
time, ‘Jan Adhikar Samiti’ did not assist her. Undoubtedly, it can
be said that Zahira did not approach them at that time, but what is
significant is that Zahira approached them at a time when she decided to
resile from what she had stated before several authorities, as admitted by
herself (though on being tutored). Thus, the help of ‘Jan Adhikari’
was sought only when Zahira decided to advance a particular version of the
incident. Even ignoring whether the version Zahira intended to advance was
true or not, it is a fact that it is only when that version was to be
advanced ‘Jan Adhikari’ was approached and assistance was sought
and obtained. Since ‘Jan Adhikari’ is not before the Court, I do
not wish to make any further observations on this."
Zahira and family’s conduct
unpardonable
"In my opinion, whatever may be the mental condition of
these witnesses and the cause behind their attitude, the wrongs committed
by them cannot be overlooked. Whether those at whose instance these
witnesses have lied with impunity would ever be brought to book, or would
be made to pay for their misdeeds, is doubtful; but the conduct of Zahira,
Nafitulla, Nasibulla, Saherabanu and Saherunnisa cannot be condoned. If,
in spite of speaking lies persistently, no action is taken against them,
an impression would be created that the system of administration of
justice takes the lies spoken on oath before a Court of law lightly. In my
opinion, Zahira, Nafitulla, Nasibulla, Saherabanu and Saherunnisa have
knowingly given false evidence. It is necessary and expedient in the
interest of justice that they should be tried summarily for giving false
evidence."
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