And Justice for All

It is rare that legal proceedings in a single trial expose the vagaries and rot in the criminal justice system as a whole and offer a glimpse into the magnitude of reality beyond the individual incidents being judicially examined.

The records of the first trial and the acquittal in the fast track court. The radical measure of appealing to the apex court for retrial and transfer by the prime witness and a supporting organisation. The commencement of the retrial and its conclusion with a judgement delivered on February 24, 2006. In parallel, the proceedings in the Supreme Court that arose out of the prime witness Zahira Shaikh denying that she ever approached the apex court for corrective measures against the injustice of summary acquittal by a Vadodara fast track court. And finally, the apex court holding her guilty of contempt on March 8, 2006.

The entire proceedings in the Best Bakery case will go down in the annals of Indian judicial history for doing just that.

Sharp and corrective pointers to the criminal justice system as a whole, in which the role of the police as investigating agency, the prosecutor as officer of the court and not least, lawyers and their role as defence advocates, and even the judge himself, have been showcased squarely. The worth of time-bound trials has also been underlined.

Besides offering insights into this general state of affairs, the full judgement by Judge Thipsay reaches far beyond to examine the murky realities that surrounded this retrial: direct collusion between the hostile witnesses and the defence advocates and a hostile state reluctant to be prosecution a second time round. At the end of a long and winding road, the outcome of the retrial is an answer of sorts to all victims of mass crimes struggling for justice – that justice can and must be obtained for mass massacres.

The retrial in the Best Bakery carnage that occurred on March 1, 2002 and in which 14 innocent persons were brutally targeted in an act of premeditated venom against members of the Muslim minority in Gujarat has come to symbolise not just a vindication of the justice process against the state sponsored genocide in Gujarat but has become a test case for our criminal justice system – can it ever deliver justice to victims of brutal mass crimes?

The outcome of the retrial, the verdict of February 24, 2006 that convicted nine of the 21 accused (of whom 17 were on trial as four are still absconding) shows that it can. The 693-page full judgement delivered by Judge Abhay Thipsay, Additional Sessions Judge, Mazgaon, is a meticulous and thorough examination of the entire circumstances surrounding this historic retrial.

Minutely scrutinising the 3,000-odd pages of evidence – 75 prosecution witnesses and five defence witnesses were produced before the court in proceedings that began on October 4, 2004 and continued till late 2005 – the judge has authored a judicial verdict that is a unique blend of judicial acumen laced with humaneness and humility, qualities that pepper his judgement from start to finish. A tacit reiteration that the law and justice are not simply lofty ideals to be delivered or meted out by Judge Thipsay from a pedestal where he puts himself, above the ordinary mortal. This is a necessary and enduring reality that must become part of the social fabric of any civilised society.

It is not as if, once retrial was ordered, things proceeded smoothly. Ever since the historic and unprecedented order of retrial by the Supreme Court on April 12, 2004 (see Communalism Combat, A Temple of Justice, April-May 2004), the appointment of the special court and the commencement of the retrial, its proceedings were tinged with drama and suspense. From October 27, 2004, when the first eyewitness, Taufel Ahmed began recording his testimony and identified some of the accused, until November 3, 2004, when the testimonies of the eyewitnesses continued, there was a sense of suspended disbelief that such evidence was being brought before the court at all.

Every effort was made at all points during the trial by advocates for the accused, especially Adhik Shirodkar, to disrupt it; to malign the Supreme Court and the National Human Rights Commission, to bully and abuse the supporting prosecution eyewitnesses in court, to use innuendo against the public prosecutor and her team and last but not the least, to spew venom against me, and Citizens for Justice and Peace (CJP), the organisation of which I am secretary. Behind this obvious bluster was a sinister design – to use these tactics to divert from the trial issue and prevent the necessary evidence from being recorded in court. In a wider sense, subvert the retrial itself.

Through the day-to-day proceedings that lasted over a year, the court remained unmoved by this onslaught. The prosecution team was conscientious. As a result, of the 75 prosecution witnesses who were produced only eight (including five members of the Habibulla Shaikh family) turned hostile. In sharp contrast, during the first trial in Vadodara 68 of the 73 witnesses had been declared hostile. The prosecutor assisting the fast track court had been severely criticised in the Supreme Court verdict of April 12, 2004, where the court commented that he had functioned like an advocate for the defence!

No eyewitness or victim survivors from the Best Bakery incident, minus the well known Habibulla Shaikh family, had been produced before the Vadodara fast track court at all. Of the two who had, Shehzad and Mohammad Ashraf (one an eyewitness and the other a victim who lost his brother, sister-in-law and two nieces), the former was declared mentally unfit and the latter – terrorised by the atmosphere in the court at Vadodara packed by hordes belonging to the Bajrang Dal and the VHP – had relapsed into a choked silence. All these witnesses had a chance to depose during the retrial and the evidence of each one has been found to be reliable and authentic. Though Zahira Shaikh may have become the face of this trial, it is the exemplary and brave evidence given by Taufel, Raees, Shehzad, Sailun and Yasmin that provided the solid ground that could lead to convictions of nine of the accused in the Best Bakery case.

At the start of the judgement itself, the judge examines in detail this evidence that laid the basis of the prosecution case. From paras 171 to 356 the judge examines the evidence of Taufel, Raees, Shehzad, Sailun and Yasmin (the last is examined at greater length). All five of these are prosecution witnesses who supported the case and identified the accused. Their role was pivotal given the fact that the Habibulla Shaikh family were turned hostile for the second time. The criticality of the witnesses’ role led to a veritable onslaught against them by the defence who made all out efforts to discredit their evidence. The defence’s case was that they had been tutored by me, with the sinister motive of wrongly implicating the accused. All of them except Yasmin had suffered severe injuries during the attack on the Best Bakery.

Judge Thipsay finds their evidence to be completely reliable. The judge also observes when analysing the evidence that different theories were advanced by the defence as the trial progressed. For example, the presence of Yasmin Shaikh, the daughter-in-law of Habibulla Shaikh and estranged wife of Nafitulla, Zahira’s brother, was never questioned by the defence when the first four eyewitnesses were deposing. Though both Raees and Shehzad depose about her presence, they are not challenged in cross-examination on this aspect of their evidence (paras 254, 320). Strangely, however, when Yasmin was cross-examined before the hostile witnesses entered the box, the theory was advanced that Yasmin was never present (paras 302, 307, 317, 321-323, 333). This theory was obviously relied upon after the version of the hostile witnesses was made available to the defence! Yasmin Shaikh was submitted to gruelling cross-examination which she withstood with fortitude. Despite all efforts to discredit her testimony, the defence was unsuccessful (paras 342, 345-347, 356, 363, 365, 413, 417).

The single offensive that the defence counsel used against the supporting prosecution witnesses to discredit their evidence and taint their reliability was by advancing the argument that they had been tutored by me. In a detailed examination of these allegations in paras 849-854, Judge Thipsay demolishes this claim with a reasoned argument distinguishing between ‘guiding’ a witness and ‘tutoring’. These findings are significant not simply as vindication of the role played by the CJP through the trial but in future, for rights groups and human rights defenders who play a role in criminal trials.

In para 849 of the judgement, the judge observes, "…I have considered the matter. Mere discussion about the case would not necessarily indicate ‘tutoring’. It is not an accepted proposition that the witnesses are never to be contacted by anyone, or spoken to about the matter regarding which they are to depose. A number of things can be told to the witnesses, such as, not to be nervous, carefully listen to the questions put to them, state the facts before the Court without fear; and I do not think that this can be considered as objectionable, morally or legally. Tutoring a witness is quite different from guiding him as to his behaviour, as it should be in the witness box. In this case, the injured witnesses were obviously in such a state of mind that without the active support of someone, they might not have come before this Court to give evidence at all. If such support, encouragement and even advice is provided to them, it cannot be called as ‘tutoring’" (emphasis added).

The evidence extracted by the prosecution from the hostile witnesses over gruelling months provided a record that exposed the reasons behind their hostility. The judge observes that these hostile witnesses from the Habibulla Shaikh family were motivated not simply by a desire to see the accused acquitted, but the hostility of the witnesses in collusion with advocates for the defence extended to discredit the process that led to the retrial through malicious allegations. The judge has observed in para 524 of the judgement that these hostile witnesses have been turned hostile in collusion with the advocates for the defence by some persons not with the limited object of ensuring acquittal but to (falsely) show that there was a conspiracy of a certain community or a group of persons in getting the order for retrial.

In the words of Judge Thipsay, the hostile witnesses displayed a greater hostility during the Mumbai retrial than they did while deposing in Vadodara. This puts an end to the theory advanced by hostile witnesses at one time that it was fear that dictated their actions – with little to fear after they had turned hostile a second time and been given commando protection, why did they turn hostile and deny even those facts that they had stated in Vadodara?

Unfortunately, it was not within the scope of the retrial to inquire into who these some persons were. However, the judgement provides stark pointers. The judge observes in paras 523-524, 576, 592 and 593 and in other parts of the judgement that the collusion between the hostile witnesses and the defence counsel was stark. He also mentions that bitter and consistent innuendo was used by senior defence counsel, Adhik Shirodkar, against the Supreme Court, calling the act of transferring the trial ‘a blunder’. Similarly, Shirodkar kept protecting the hostile witnesses, hurled allegations of tutoring against the five critical prosecution witnesses who supported the case and advanced vicious abuse against me in a crude attempt to advance a conspiracy theory behind a community and an organisation in ‘managing the retrial’.

The role of Jan Adhikar Samiti, a Vadodara based organisation that assisted Zahira Shaikh and her family, to the extent of hiring the 24-hour services of Advocate Atul Mistry, has come in for severe criticism in the judgement. That this organisation with its representative Tushar Vyas played a key role in supporting the witnesses only after they turned hostile and not before, attempting to discredit the retrial process itself, and going to the extent of hiring advocates and bearing all expenses, raises questions about the organisation’s motive. In paras 649 and 650 the judge remarks on their role. "…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".

One aspect that may be forgotten when the dust settles on this historic retrial is that during her appearances in the Mumbai retrial court, Zahira and her family members were represented by one of the highest paid criminal lawyers in Mumbai, Arshad Ponda. The strange and unusual circumstances behind these witnesses being represented by a top-notch lawyer, including who advanced fees for such a highly paid counsel, are mysterious to say the least.

Detailed evaluation of the evidence results in a scathing commentary on senior echelons of the Gujarat police. Barring the evidence of police officers who visited the spot after the Best Bakery incident on March 2, 2002 and thereafter, once the process of retrial had begun and even while giving evidence in the retrial court, the police, as investigating agency, has come in for sharp criticism.

Only the officers who visited the spot i.e. DCP Piyush Patel and PSI BU Rathod, and PI Kanani, who took over investigations after March 10, 2002, displayed professional conduct. The evidence of Rathod and Patel corroborates the evidence of the five independent supporting prosecution witnesses. In para 430 the judge observes that "The evidence of PSI B.U. Rathod and D.C.P. Piyush Patel not only corroborates the evidence of the supporting occurrence witnesses, but it is of independent weight and value in itself".

However, PI HG Baria has been criticised for lacklustre investigation, particularly with relation to the recording of statements under Section 161 of the Evidence Act. The police record is slipshod hence the versions found are not consistent with other evidence. In paras 656 and 657 the judge clearly observes that the initial investigation by Baria left much to be desired. Apart from lacklustre statements recorded in which he did little to extract the real facts, the fact that he did not take charge of the clothes of the injured victims and the fact that he also did not take charge of the coir ropes used to tie the victims on a wooden pyre before they were slashed with swords and set on fire on the morning of March 2, 2002, also comes in for sharp comment.

Besides these officers, the present Commissioner of Police, Vadodara, Deepak Swaroop, the then Joint Commissioner of Police, Vadodara, Kumar Swami and then ACP Pargi were also examined by the defence. Interestingly, they were brought in by counsel for the accused as defence witnesses. These defence witnesses were brought in to depose not about the non-involvement of the accused in the incident but again, to discredit the process initiated in 2003 towards a retrial. The judge remarks on this, making observations against these high ranking officers whom he states are keen to give official stamp to Yasmin Shaikh’s then espoused version that the statements of Zahira and Saherunissa Shaikh about threats and fear are false. In para 375 the judge observes that "Shri Kumar Swami [D.W.1], though a Senior Police Officer working as Joint Commissioner of Police, Vadodara, at the material time is proved to be an unreliable witness". In para 380 the judge observes that the conduct of this police officer in relying on the motivated evidence of an interview recorded by Khyati Pandya of TNN, a TV channel owned by Ajay Patel, "clearly shows that Kumar Swami was not interested in actually finding out the truth, but only in giving an official sanction to the statements made by Yasmin during an interview given to T.N.N. Channel". Similarly, there is a motivated desire by R. Pargi, then ACP Vadodara, to collect statements and give official sanction to issues extraneous to the investigation. Both witnesses are held to have been unreliable.

What is significant is the collusion between these police officers and interviewers of TNN and News Plus. Two other defence witnesses, Khyati Pandya and Ajay Patel, are held by the judge to be highly interested witnesses. In para 409 he observes that "It appears to me that the interviews of Yasmin both by ‘T.N.N. Channel’ and by ‘News Plus Channel’ were taken somehow to create some evidence to show that the allegations that were being made by Zahira at that time, against the State of Gujarat and the Police Machinery in the State, were false. Zahira was, at that time, making allegations against the entire State Machinery, saying that the rioters were being protected by the State machinery, that investigation had not been carried out properly; and that due to fear she and other witnesses could not depose against the accused during the trial. Zahira was demanding retrial and was being helped by the N.G.O. – Citizens for Justice and Peace. It is quite apparent that to counter Zahira, aid of Yasmin was taken by persons who were very much upset with the allegations of the State not having been diligent in getting the matter investigated and ensuring a fair trial. The interview taken by ‘T.N.N. Channel’ may not be that objectionable, but certainly the attempt of ‘News Plus Channel’ is a heinous attempt to make Yasmin speak something which could be used to counter the allegations made by Zahira. Interestingly, a number of local channels rushed for taking Yasmin’s interview at the material time, though Yasmin was not examined at all during the first trial (emphasis added). The script [of the news item] written by Khyati Pandya shows her anxiety to contradict Zahira and her mother. Yasmin is made use of to get certain things, said in a somewhat different context. Things said by Yasmin are then highlighted from a totally different context".

There are findings against the medical evidence given by two doctors who, it appears, were keen to show the injuries of victim survivors as less serious than they were. In paras 490 to 496, the judge observes that while other medical evidence is satisfactory the medical evidence recorded by Dr Meena Robin and Dr Dilip Choksi was unsatisfactory and that especially with relation to Raees and Nafitulla’s injuries they were projected as ‘simple’ rather than ‘grievous’. In para 491 he states, "I have got a definite feeling that both these doctors have tried to project the injuries as less serious than they actually were. I have been quite slow in coming to this conclusion but after carefully considering their evidence, I do conclude that way".

A peculiar twist was given to the retrial when Yasmin Shaikh, a prosecution eyewitness who was never produced in the Vadodara court, stated towards the end of her testimony that the police had recorded the scene of devastation at Best Bakery after it arrived at the spot on March 2, 2002. The subsequent production of the CD as evidence by the prosecution, its verification and admissibility as reliable and authentic evidence, will also provide a useful judicial precedent for the future. Though sharply contested by the defence, this video CD recorded by the Vadodara police shows the scene of the crime, the presence of some of the victim survivors, especially Zahira Shaikh and her mother talking to the police, etc. The presence of Yasmin Shaikh is corroborated through the CD. In paras 324 to 331 and later in the judgement, the judge goes through this aspect in detail.

Judge Thipsay’s judgement will remain significant for the studied manner in which he deals with the specifics of this unique case as also the wider, sound conclusions he reaches about the foundations of criminal law and trial, be it on the perennially debated question of the validity of police investigations and statements recorded under Sections 161 and 162 of the Evidence Act, the registration of the FIR and evaluation of this document in evidence, or identification of the accused. Given the high stakes in this trial, the accused will no doubt appeal this sentence, but the thoroughness of the judgement will make their task difficult.

There were many features unique to the Best Bakery retrial. The state of Gujarat, which had been the prosecution during the fast track court proceedings in Gujarat, remained the prosecution after the trial was transferred. That is, though the apex court upheld Zahira Shaikh and the Citizens for Justice and Peace’s demand for a retrial and transfer, the charge of the prosecution remained with the state, the same state whose government had been severely reprimanded for callous disregard bordering on complicity when murder and mayhem stalked the streets of Gujarat in 2002. Witness survivors were given a say in the choice of prosecutors, a healthy and dynamic precedent, and the retrial was directed to be completed in a time-bound manner. Within weeks of the trial’s commencement, the prime witness who had become the face of the trial, Zahira Shaikh turned hostile for the second time just the day before her evidence was to be recorded in court. She appeared in Vadodara under state police’s commando protection, and hurled venomous allegations against us. The state of Gujarat remained a mute if not gleeful spectator.

Unperturbed by the threat to its own prosecution by this witness turning hostile, the then Commissioner of Police, Vadodara, Sudhir Sinha oversaw the press conference where Zahira and her family declared themselves hostile and the state gave the hostile witnesses top level police protection. It was left to us to approach the Supreme Court for an investigation into the allegations and while the Supreme Court has upheld the Registrar General’s report that exonerated us completely, the repeated pleas that we had made – requesting a thorough inquiry into the forces that had turned Zahira hostile and an investigation into the role of the state of Gujarat into the entire matter – were left unattended. Today Zahira faces a one year simple jail sentence for contempt of the Supreme Court and an Income Tax investigation into sources of income. The trial court has served her and her family with perjury notices for which the proceedings have begun but real justice will only be done the day those responsible for influencing and motivating Zahira and her family to lie are exposed.

The real irony lies in the fact that the conclusion of the retrial and the onset of perjury proceedings launched against the hostile witnesses under Sections 340 and 344 of the Code of Criminal Procedure are as yet an imperfect conclusion. It is only when the culprits involved in turning Zahira and family hostile a second time round are brought to book and the forces who were at work behind the scenes to disrupt the retrial itself are exposed that true justice will be seen to have been done.

A sitting MLA of the ruling party in Gujarat has been found responsible for offering inducement to the witnesses who turned hostile. Then Police Commissioner of Vadodara, Sudhir Sinha, along with his IAS counterpart, the Collector of Vadodara, Bhagyesh Jha, played an active part in allowing Zahira to organise and hold the press conference where she declared herself hostile on November 3, 2004. She was whisked away under Gujarat police commando protection to a private location and for 10 days no information was available as to who visited Zahira and her family there – Strange and inexplicable behaviour from a state that is the prosecution in the retrial.

The wheels of justice, it is said, turn slowly, but eventually deliver. As round three comes to a conclusion in the Best Bakery case, we hope we will finally have explanations to the many questions left unanswered.