Hostile Witnesses (Victims) from the Family of Habibulla Shaikh

512. Hostility is not uncommon in criminal courts. In fact, jurists have recognised that there exists a problem of hostility of witnesses which problem has assumed great proportion in recent years posing a threat to administration of justice. However, I may observe that the hostility of these witnesses 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. Zahira’s evidence gives a clear impression that she was keen on disputing one factor – viz. that she had made any complaint to any authority, or publicly, about the improper conduct of previous trial, or had asked for a retrial at any time.

513. Much discussion on the evidence of these witnesses is not necessary for adjudication of the guilt or otherwise of the accused persons. However, as these witnesses have attempted to make a mockery of the whole system of administration of justice, the matter cannot be ignored altogether and the discussion should not be curtailed. These witnesses 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 when the issues in question have been put forth for consideration by this Court.

515. It is not in dispute that Nasibulla himself was injured in the incident. On examination, Dr. Smt. Meena Robin [P.W.46] found patient Nasibulla to be unconscious. He had a head injury. Three I.Ws. on left occipital parietal region were noticed, as follows:

i) Size – 15cm X 2cm X scalp deep,

ii) Size – 10cm X 2cm X scalp deep,

iii) Size – 8cm X 2cm X scalp deep,

Nasibulla had burn injuries on both lower limbs.

516. Nasibulla does speak about the riots and also admits that he sustained an injury on his head and also burn injuries on his leg. He also states that the head injury and the burn injuries were suffered by him on one and the same day; and that he was taken to S.S.G. Hospital. He also states that the whereabouts of his maternal uncle Kausarali, who was looking after the bakery business after the death of Habibulla, could not be ascertained after the riots.

517. Interestingly, though Nasibulla speaks of the riots having started at about 9.00 p.m., he states that he does not know till what time they continued; and the reason which he gives for the same, is that, after sustaining an injury on the head at about 11.00 p.m., he had lost consciousness and what happened thereafter, he does not know. Thus, according to him, he sustained the head injury while he was on terrace. As shall be discussed later at an appropriate place, this part of his evidence – viz. that he had sustained an injury on the head in the night while he was on terrace and had lost consciousness thereafter, which he regained only in the hospital – is false and cannot be accepted at all. At this stage, it may only be noticed that this is a feeble attempt to suppress the morning incident.

518. Though the witness has exhibited a reluctance to give the information regarding the incident, Smt. Manjula Rao, the learned Spl. P.P. has been able to get sufficient material on record through him which confirms the happening of the incident in the night. Nasibulla does speak of rioters setting fire to Lal Mohammad’s wakhar, then to Aslam’s room and to the Best Bakery building. The Spl. P.P. has been able to wrest evidence supporting the story of the rioters coming in big number, they occupying the entire area surrounding their house, setting fire, throwing stones and burning glass bottles over the terrace, etc., from him.

519. He claims not to know whether any persons known to him were among the mob of rioters and the absence of this knowledge, he attributes to smoke and darkness. He has volunteered to state, after having spoken about stone throwing, that they [he and others] pulled the mattresses over their heads so that the stones would not hit them. It is interesting, however, that he still sustained an injury on head. He also volunteered that it was dark and there was smoke. He was keen on expressing at the earliest opportunity, the impossibility to see anything and at any rate, to make it clear that he had not seen anything.

… … …

523. The cross-examination of Nasibulla shows that he had been completely won over and was quick to admit everything that would destroy the prosecution case. The attempt in the cross-examination was to make him stick to the evidence which he gave in the Court at Vadodara, which was obviously in favour of the accused. To the contention advanced on behalf of the accused that the witnesses Taufel [P.W.26], Raees [P.W.27], Shehzad [P.W.28] and Sailun [P.W.32] were actually not sitting on the cot when the mob of rioters came, support was attempted to be derived from Nasibulla but it has not been very successful. Nasibulla was asked in the cross-examination whether it was correct that the servants were, from the beginning only, on the terrace. Nasibulla replied that the servants used to sleep on the terrace and further told to the Court that they were not on the terrace from the beginning. Naturally, on further questioning, Nasibulla realised what answer is required by the defence and agreed to the suggestion that on that day also, they were on the terrace, but added that they were ‘sleeping’ on the terrace. Ultimately, the following precise question was required to be put to him, which was precisely answered by him.

This entire questioning and answering on this topic clearly shows that Nasibulla changed his version on being aware of what is required or expected of him by the cross-examiner and duly obliged him by giving the required answer.

524. The collusion between the defence and Nasibulla is obvious and can be pointed out inter alia from the following. A question was asked to him in the cross-examination ‘whether he stated in his evidence before the Court at Vadodara that the police had obtained his signature on his statement’. Nasibulla stated that he did not state so. The purpose of this question was not realised and therefore it was thought rather curious. The object behind that is revealed to be, to come out of what Nasibulla had stated before the Court at Vadodara. The record of Nasibulla’s deposition in that Court shows that Nasibulla had stated that ‘he had not stated who were in the incident with which weapons and instruments they were armed and what they had done; and that police had just obtained his signature.’ Though not much turns on this, it exhibits clear collusion between the defence and this witness. Ironically, Shri Adhik Shirodkar, the learned Senior Advocate, who was very vehement in suggesting the witness to be audacious, in addition to be a liar, whenever any witness supporting the prosecution tried to deviate even a little from the record of the previous trial [and though was willing to explain or speak about supposed inconsistency or contradiction,] does not mind such a drastically opposite statement made by Nasibulla. Rather, he invites such a statement, leaving aside his views about the sternness with which such a witness – who implies the Court record to be false – should be dealt with, as expressed by him during the cross-examination of some other witnesses, and emphatically put forth during arguments.

525. After the video cassette [Ex.283] was introduced in evidence, Nasibulla was recalled and further examined by the learned Spl. P.P. The C.D. [Ex.283/3] equivalent to the relevant part of the cassette [Ex.283] was played over to him. Nasibulla has admitted the shooting to be of his house at Hanuman Tekdi; and that it being in respect of the fire that had been caught to their bakery. He has also admitted the shooting to be of 2nd March.

526. His further examination by the learned Spl. P.P. reveals that certain amounts have been credited to his and Zahira’s account in Syndicate Bank. There seems to be no proper explanation of how and from where these amounts were got deposited in the relevant bank accounts.

527. Nasibulla’s evidence shows that he is hostile, that he has been tutored and is obviously lying on several material aspects.

528. Nafitulla [P.W.31], though hostile, undoubtedly and admittedly sustained injuries in the incident and was required to be admitted into hospital. The injuries sustained by him have already been mentioned earlier.

529. Nafitulla does speak about the riots that took place on 01/03/2002, and also states that the riots took place in the entire State of Gujarat; and that they took place because of the incident of train burning at Godhra. He speaks of the bakery of his father and their house situated at Hanuman Tekdi. He also gives the details of the persons working in the bakery as Sailun, Shehzad, Taufel, Raees, Prakash, Baliram, and Rajesh, etc. He speaks of the house of Aslam being situated by the side of his house. Nafitulla also states that Kausarmama was also living in their house when the riots started. What he disputes is the presence of Yasmin.

530. Nafitulla states that the bakery was burnt on 01/03/2002, by a mob of about 1,000 people. He also states that while he and other members of his family, together with the servants, were on the terrace, one of his sisters – Sabira – was on the first floor in one of the rooms along with members of Aslam’s family.

531. The hostility of Nafitulla is manifest and visible from the fact that though he says that Sabira died in riots, he is not ready to say that she was burnt to death. To a question, ‘how did she die’ he gives an evasive answer to the effect that ‘those people had closed the door from the inside; and that therefore he did not know what had happened thereafter’.

532. Nafitulla states that they all were hiding on the terrace. Nafitulla states that he was admitted into the hospital, but it is remarkable that without any questioning, he volunteers ‘"but how I went there, I do not know." [Pages 587-588 of Notes of Evidence]. This anxiety seems to be for the purpose of avoiding disclosure of the incident that took place in the morning, or avoid questions which would be put regarding that.

533. Nafitulla states that he was admitted in the hospital on the next day – i.e. on 02/03/2002 – and that he was admitted therein for about 8 days. Nafitulla admits having sustained injuries on his head and neck. He also claimed to be not aware of the whereabouts of Kausarmama.

534. Interestingly, after answering in reply to a question, that they had gone to the terrace at 9.00 p.m. Nafitulla volunteers "there was no light and there was much smoke". This shows that Nafitulla, like Nasibulla, had been tutored to say certain things which were expected to come up, in the examination-in-chief, but probably having been aware of the hostility of the witnesses, the learned Spl. P.P. adopted a different line of questioning whereby such straight questions were not forthcoming. It is apparent that therefore, Nafitulla decided to volunteer to state as was tutored or as, at any rate, had been already decided by him to state.

535. Nafitulla also adopts the theory of losing consciousness on the terrace itself, on being hurt by the stones and bottles that were being thrown. As discussed earlier while discussing with evidence of Nasibulla, there exists an anxiety on the part of these witnesses to claim that they lost consciousness in the night itself and therefore, did not know what happened thereafter, as they regained consciousness only in the hospital. This is obviously because of the desire to avoid speaking about or being questioned, regarding morning incident. Both Nafitulla and Nasibulla are undoubtedly lying about their having lost consciousness in the night on the terrace itself and about the injuries that were sustained by them being caused to them in the night itself. It is clear that, in that case, they could not have got down from the terrace on their own…

536. Nafitulla has given the reason for his going to Vadodara after the commencement of the retrial as the threats given to them by Teesta’s Raees Khan and other ‘Gundas’. The theory of the threats given by Smt. Teesta Setalvad and ‘her Gundas’ shall be discussed later, to show how improper and unbelievable the story of these witnesses is. At this stage, what needs to be observed is that Nafitulla is anxious to disclose what were the threats and therefore without asking, volunteers to say ‘that the threats were to the effect that false statement will have to be made; and that it was a matter of the community’.

537. The evidence of Nafitulla and Zahira reveals that these witnesses are assisted by one ‘Jan Adhikar Samiti’ which is said to be consisting of only one person – viz. Tushar Vyas – who is an Advocate. At any rate, nobody else from such Samiti is known to either Nafitulla or Zahira. Nafitulla states that the expenses of the Press Conference which was held by Zahira after secretly going to Vadodara from Mira Road-Bhayander [which was after the commencement of this trial] were born by ‘Jan Adhikar Samiti’. The services of Advocate Atul Mistry also were provided by ‘Jan Adhikar Samiti’ only. The role of ‘Jan Adhikar Samiti’ and Advocate Atul Mistry can be discussed more conveniently while discussing Zahira’s evidence.

538. Nafitulla had appeared before the Court after the commencement of the retrial. He was lodged at the ‘Visava Guest House’ where arrangements had been made for the stay of the witnesses in this case. However, he disappeared from the ‘Visava Guest House’ without informing anyone and with Zahira and others went to Vadodara. He left his second wife – Heena @ Kailash – and his child at the Guest House itself. Thereafter, a press conference came to be held by Zahira at Vadodara which, as aforesaid, was financed by ‘Jan Adhikar Samiti’. In the Press Conference, Zahira made statements contrary to what she had or supposed to have stated in the Supreme Court of India. Nafitulla has admitted that he was aware of the fact that a retrial of the ‘Best Bakery Case’ to be held in Maharashtra, was ordered by the Hon’ble Supreme Court of India; and that he had come to know before going to Vadodara that the retrial had been started. The learned Spl. P.P. has specifically questioned Nafitulla as to what he stated before the television could have been stated by him before the Court, and Nafitulla has agreed that he could do so.

539. Nafitulla was unable to explain the injury on his neck and has stated that it must have been suffered by him, on account of bottles, which were being thrown on the terrace from below on 01/03/2002. He claims that the said injury was caused to him after he had lost consciousness; and that therefore, he could not say in what manner and by which weapon or object the injury on his neck was caused.

540. Nafitulla, however, admits that a mob of about 1,000 to 1,200 persons had come to the ‘Best Bakery building on 01/03/2002 at about 9.00 p.m.; and that the persons in the mob were shouting ‘jalao’, ‘jalao’ and ‘bakery jalao’.

541. Nafitulla further admits that the mob surrounded their house; and that they burnt the house and bakery. Interestingly, when asked as to whether the mob consisted of certain persons named in the question, Nafitulla answered in the negative. It is worth reproducing the question and answer here:

542. Now, this negative answer, suggests two things – first that these persons were known to him and second, that he could see the persons in the mob. A question as to whether he knew those persons was therefore asked to Nafitulla by the Court when Nafitulla replied that ‘he did not know any of these persons whose names were mentioned in the question’ and on further questioning replied that what he wanted to say was that ‘he did not know any of those persons and not that they were not in the mob’.

544. … Unfortunately, even if the Court comes to the conclusion that the version of Nafitulla and Nasibulla as appearing in the statements recorded during investigation is true, and their version before the Court is false, no use of the version as appearing in the statements recorded during investigation can be made by way of evidence. Apart from the prohibition imposed by Section 162 of the Code, it is elementary that pre-trial statements cannot constitute evidence, save and except those made admissible by some provisions in the Evidence Act. It is only the statements made by the witnesses before the Court that are evidence and the previous version of a witness, even if duly proved, can be used only for the purpose of corroborating or contradicting a witness with regard to his testimony in the Court. Since these statements have been recorded during investigation, keeping in mind the prohibition imposed by Section 162 of the Code, they can be used only for contradicting him which has been done. The version of Nafitulla as found in those statements even though duly proved, cannot be made use of as evidence. Ironically, had Nafitulla died on account of injuries sustained by him, the statements of Nafitulla would have been admissible in evidence as his dying declaration. The same would be true with respect to the contradictory version of Nasibulla also. Both of them had sustained injuries which endangered their life and in the event of their death, certain statements made by them before the police would have been substantive evidence and could be acted upon. Though the Court is empowered and competent to come to the conclusion that version of Nafitulla and Nasibulla as given by them before the police represents a rather accurate, though not full picture of the happenings, no use of those statements as and by way of evidence can be made, because Nafitulla and Nasibulla both survived to turn hostile and disown their own statements.

545. That Nafitulla had been fully won over and was out to destroy the prosecution case, is clear from many facets of his testimony, one of which can be given here by way of an example. Nafitulla stated during his examination-in-chief that in this case F.I.R. was lodged by Zahira. He further stated that he learnt about it after about one and half months from the date on which she had lodged it, though he did not come to know what was written in the F.I.R. Nafitulla further confirmed these aspects. In further questioning he states that he had a talk with Zahira in which she told him that she had lodged the F.I.R., in this case. As shall be discussed later, it has been attempted to project that no F.I.R. had been lodged at all by Zahira and no report had been made at all, by her. In order to show that the order for retrial was fraudulently secured, it was essential to make a claim that Zahira had not lodged any ‘F.I.R.’ at all; and that the whole case was a creation of some interested elements. When this requirement of the defence was realised by Nafitulla, he tried to do what could be done maximum, to resile from the statement to the effect Zahira having lodged the F.I.R. In the cross-examination, he stated that he did not know what is ‘F.I.R’; and that he did not know the meaning of this term. This cannot, at all, be believed in view of his previous evidence. If he did not know what is ‘F.I.R.’, he would have never said that in this case ‘F.I.R.’ was lodged by Zahira, that he did not know what was written in the ‘F.I.R.’, that he learnt about Zahira having lodged it after one and half months, etc.

546. Though Nafitulla was fully hostile, he was, still, cross-examined at length, by the Advocates for the accused, in an attempt to discredit the testimony of the supporting witnesses on certain points such as place where the supporting eyewitnesses were sitting, when the rioters came, etc. The reliable testimony of the supporting witnesses cannot be discredited by answers obtained from a hostile witness who is utterly unworthy of credit and a positive liar; and that too, by putting him leading questions. As shall be discussed later, the claim of there being an ‘improvement’ as to the place of sitting, as made, has failed.

547. It has been elicited from Nafitulla by putting leading questions to him in the cross-examination that when he and others were hiding themselves on terrace there was thick smoke, no light and nothing could be seen. It is further got confirmed from him that due to smoke and darkness, who were setting fire to the bakery below, could not be seen by him; and that it was so stated by him before the Court at Vadodara. No importance to such statements of a patently hostile witness can be given and certainly not to discredit the evidence of other witnesses who are found to be trustworthy. Even otherwise, the theory itself is absurd and in the zeal to get admissions from Nafitulla, it has been lost sight of that the question of smoke would arise after fire and therefore, who were setting fire to the bakery would not be impossible to see on account of the smoke which would not be there at that time.

548. Several false admissions from Nafitulla such as he did not know how the injury on his neck below left ear was caused; and that he had not seen the persons who set the fire and did other acts; and that he had not seen anyone taking away the articles in their bakery; and that he had not seen anyone setting fire to the vehicles have been obtained on behalf of the accused. All these statements are sought to be confirmed and corroborated by his admission of having stated so in the previous trial also. These admissions are contrary to be probabilities of the case, apart from being totally in conflict with the weight of evidence on record. It is one thing to say that he had not seen any person known to him or that he could not identify any of the persons who set fire or took away the articles, etc., but it is quite another to say that he had not seen anybody at all, in spite of having seen the mob.

549. Nafitulla has filed a complaint against Madhu Shrivastav on 27/09/2003. According to him, he was falsely made to make that complaint by Mohammad Vora, Munna Malik and Arif Malik. That complaint has nothing to do with the involvement or otherwise of the accused in the present case or more particularly with the offences in question. Nafitulla not having supported the prosecution in this case, whether the complaint lodged by him against Madhu Shrivastav was false or not would not be relevant and the aspects, whether it was likely to be true or not, whether it had not been written by him, would not be relevant at all. The relevancy thereof would have arisen, had Nafitulla supported the prosecution case here. In that case, he would have been challenged with reference to his claim in the nature of explanation of why he gave false evidence in the previous trial.

550. The subject of the organisation of Smt. Teesta Setalvad spending money on Nafitulla and his family members – i.e. towards their ration, etc. – was taken in the cross-examination and it was got clarified from the Nafitulla that Teesta Setalvad and Raees Khan and other ‘Gundas’ used to say that false statements will have to be made in the Court at Mumbai.

551. The following questions and answers are worth reproducing before they are commented upon.

Ans.: They said that they would show the photographs of the accused persons to me.

552. A story offering an elaborate explanation as to how and in what manner false allegations of previous trial having been unfair were made, how the Supreme Court of India was misled, how Zahira was deceived or forced to make false statements, how, after a retrial was ordered, she was being threatened to make false statements and how all this was the act of the N.G.O. – Citizens for Justice and Peace – and Smt. Teesta Setalvad, the Secretary of the said organisation; was attempted to be developed and emphasised by the defence as a possible and plausible explanation of the unbelievable happenings. It was emphasised that the evidence needs to be appreciated in the context of these facts. These aspects can be conveniently and more effectively dealt with after discussing Zahira’s evidence. At this stage, and in the light of the questions and answers reproduced above, it may only be observed that Nafitulla has been completely won over, not only with the object that the charge against the accused should not be proved, but with the object of suggesting a great conspiracy of a particular community to falsely use the machinery for administration of justice. Interestingly, the answers do not reveal that any tutoring was actually done as to what false statement Nafitulla was supposed to make. The answer to the first question reproduced above shows that actually nothing was tutored to Nafitulla and the stage of tutoring was yet to come. The next question reproduced above is rather interesting and one cannot help observing that it has been a marked feature of the cross-examination to confront only a favourable witness with the aspects desired to be brought on record. In order to offer an explanation which was apparently thought necessary by the learned Advocates for the accused as to how supporting witnesses who had been earlier examined had identified the accused persons in the Court, the story of Smt. Teesta Setalvad and others telling Nafitulla that they would show the photographs of the accused persons to him, has been introduced. There is no wonder that Nafitulla who was too ready to oblige the defence has accepted this suggestion, but what is curious is that the witnesses who have identified the accused persons – though have been cross-examined with respect to the question of tutoring – have not been suggested of being told that they would be shown photographs of the accused persons or being actually shown the photographs, etc. It is indeed ironical that Nafitulla who does not identify anyone has been asked to ‘expose’ the attempts made to make him identify the accused persons falsely, but those who have identified the accused persons actually, have not been asked about the photographs of the accused persons shown to them. The powerful weapon for discovery of truth – the cross examination – is used against those whose evidence was not adverse to the accused at all, but no use of this weapon was made to elicit from the supporting witnesses, the alleged fact of photographs of the accused having been shown to them. No value therefore, to such statement of Nafitulla can be given. Moreover, even according to Nafitulla, no photographs of the accused persons were actually shown to him. All that he says is that Smt. Teesta Setalvad and others had all said that the photographs ‘would be shown’ to him.

553. The cross-examination of Nafitulla by Shri Jambaulikar is rather interesting and all that the defence wanted was systematically put to him one by one and Nafitulla went on admitting all that was so put, as correct. Thus, he admitted that the lights in the house were switched off, the door of the room on the first floor was closed from inside, that no outsider was in a position to enter inside, that on the road in front of bakery there was no electricity, no lights; and that there was complete darkness, etc. He accepted as correct the suggestions that there was no light either on the left side or rear side of the Best Bakery or that there is no electricity pole in that area, that there was total darkness in that area, that it was not possible due to the darkness to see who was or were there, etc. etc. It was put to him that when the mob of rioters came the servants were not sitting on a cot outside the bakery, which Nafitulla readily accepted. No reliance can be placed on these admissions of Nafitulla as they are patently false, as can be judged from the other evidence on record. That Nafitulla is totally unworthy of credit, has lied on several material points and has been clearly won over to depose against the prosecution is well established. These statements of Nafitulla intended to discredit the version of the supporting witnesses have no value whatsoever, in my opinion.

554. What is remarkable is that in the cross-examination, minute details – not based on any information disclosed from the record or not supposed to be known to the accused – have been put to Nafitulla. 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 hand.

555. Mohammed Vora, Munna Malik and Arif Malik are named by Nafitulla as the ‘persons from his community’ who used to visit him in the hospital and tell him that in order to get compensation, he should do what they would be telling him to do. By this statement Nafitulla has paved a way for explaining his future conduct in making allegations against the accused.

556. Nafitulla was recalled for further examination by the learned Spl. P.P. after the cassette [Ex.389/A] containing the record of statements made by Nafitulla during his interview taken on 18/04/2002, by Pankaj Shankar [P.W.73], was tendered in evidence. Nafitulla was confronted with the relevant part of the interview. I shall consider the contentions and objections raised with respect to the testimony of Pankaj Shankar and as to the date on which the Nafitulla is said to have made the statements separately. It is however, a fact that when confronted with the record of his interview Nafitulla does admit that this is a record of his interview; and does admit having said, what is heard as being said by him. The only explanation of his is that he was saying what was tutored to him. He also agrees that the statements that were made by him in the said interview related to the Best Bakery incident. He admits having made various statements implicating the accused during the interview, but states that it is because Teesta had tutored him, to say so. Each and every statement that was put to him he admits having been made by him, but only states that it was said by him as tutored by Teesta and others. All this cannot be accepted if the date of the said interview as ’18/04/2002', as given by Pankaj Shankar, is accepted. I wish to discuss this aspect separately while dealing with the evidence of Pankaj Shankar, as it is relevant from the point of view of and in the context of the evidence of other hostile witnesses – including Zahira – also.

557. The next hostile witness is Smt. Saherabanu Habibulla Shaikh [P.W.35], sister of Zahira Shaikh [P.W.41]. She is also an occurrence witness and she is also extremely hostile. Without wasting much time on the discussion of her evidence, the extent of her hostility may be illustrated by giving a few examples.

A] That Sabira – Saherabanu’s and Zahira’s sister – died in the riots; and that she was burnt in the fire that was set by the rioters to the Best Bakery house, is not in dispute at all. In fact, such an admission does not even remotely implicate the accused or connect any of them with the alleged offences. In spite of this, what is the attitude of Sahera [P.W.35] on this can be best illustrated by the following questions and answers, from the notes of her evidence.

Ans.: I do not know. [Pg.799 of Notes of Evidence].

This speaks for itself.

558. After some further questioning, Sahera was further questioned on this subject and the notes of her evidence that are being reproduced below make interesting reading.

Ques.: How do you know that Sabira has died?

[Court Note: Witness takes some time and then states, "I do not remember." She is explained as to what is the question and the question is repeated again].

Ans.: When my father was alive, we all were staying together.

[The same question is repeated again ].

[The same question is repeated again].

B] The witness displayed such an attitude that to bring her to the point, questions were, on certain occasions, required to be put to her by the Court itself. The evidence reproduced above clearly indicates that the witness was avoiding, as far as possible, to say even that Sabira’s death occurred in the riots. It is only after repeated efforts and after cornering her in that regard, she had to admit that Sabira’s death occurred in the riots that had taken place. Though Sahera has denied it when asked by the Court, it is obvious that she did not even want to refer to the riots to say that Sabira died in the riots and this speaks volumes of the frame of mind of this witness.

559. Instead of saying that the wakhar opposite their house was set on fire, when questioned as to what happened after the shouts and noise were heard, Sahera used the expression as ‘wakhar opposite their house was burning’. Further, instead of saying that fire was set to the wood that had been kept at the ground floor of their building, she says ‘the wood was burnt’.

C] When Sahera stated that she had come for telling the truth in connection with the ‘bakery case’, she was asked a question by the Court as to ‘what was the bakery case about?’ The answer given by her is very interesting and worth reproducing below.

‘Regarding the damage caused; the wood was burnt, other articles were burnt, vehicles were burnt.’

Now, there is no dispute that in the incident of Best Bakery, which the witness is referring to as ‘bakery case’, several persons died, but Sahera has scrupulously avoided saying this. She poses as if the whole case is about the damage to the property and not about the loss of several lives.

560. Interestingly, Sahera had admitted many more things in the previous trial than in the present trial. Here, she said that she did not know the names of any of the workers working in the bakery and whether any relative of her was working therein. When questioned, after being declared as hostile, she denied having given names of any servants in the Court at Vadodara. She also denied having given names of neighbours in the Court during the first trial, when she was questioned in that regard in view of her statement before this Court that she did not know their names. She was confronted with the relevant portions – i.e. portions marked ‘JJJ’, ‘KKK’ and ‘MMM’ – appearing in her original deposition [X-36 for identification] in the Court at Vadodara but in spite of such confrontation, she denied having said so. The denial of Sahera in that regard cannot be accepted, firstly, because the record of the Court cannot be lightly disbelieved and secondly, because the facts which she denies as having stated before that Court, are such that ordinarily, she was expected to know those facts. Not to know the names of the persons working in their bakery, or not to know the names of the neighbours, would be rather extraordinary and cannot be believed.

561. The witness is so discrepant and inconsistent that that she is telling lies, or at any rate not telling the truth, is apparent. In fact, there are discrepancies on every aspect about which she has spoken, or was made to speak. A number of questions were put to her by Smt. Manjula Rao, the learned Spl. P.P., to show that her claim of not having made any grievance about the previous trial, or for that matter, of not having said to the police about the relevant incident at all, was false. Much examination of this witness was directed towards establishing that her claims of not having sought any retrial were false. These aspects are collateral aspects and as such, I do not propose to discuss the evidence in that regard in depth. What needs to be observed in brief, as in the case of other hostile witnesses, is that there is a reluctance to state about the incident itself, and not merely regarding the involvement or otherwise of the accused persons. There is an express and clear desire not to let the details of the incident made known, to project it as an incident in which damage to the property was caused, rather than an incident in which several lives were lost. Unfortunately for this witness, and also for the other hostile witnesses, they had taken several steps after the previous trial had ended in acquittal, by approaching various authorities and by making grievances at various levels. Obviously, Sahera, as also the others, required explanation of their actions when they made a claim before this Court as if nothing had happened and out of a blue moon, they are suddenly again called to give evidence in this Court. The stories advanced by Sahera, similar to the stories advanced by the other hostile witnesses, are inherently improbable, weak and contrary to reason. They are to be rejected forthwith.

562. Sahera [P.W.35] has tried to avoid stating about the injuries sustained by her brothers also supposedly while they were on the terrace. Nafitulla and Nasibulla have stated that both of them lost consciousness in the night itself while they were on the terrace and at that time, they had sustained injuries by the objects that were thrown on the terrace by the rioters. Sahera however does not know whether any of them had sustained any injury. She has found out a convenient way of avoiding any answer on several material aspects by saying that she was frightened; and that she was ‘bebhaan’, or in some cases, that she does not remember…

… … …

564. The next hostile witness Smt. Saherunnisa Habibulla Shaikh [P.W.40], it may be recalled, is the mother of Zahira [P.W.41]. During the investigation, her three statements were recorded – first on 04/03/2002 [X-45 for identification], second on 10/03/2002 [X-54 for identification] and the third on 12/03/2002 [X-59 for identification]. While the first two statements were recorded by PI Baria [P.W.72], the third one was recorded by PI Kanani [P.W.74].

565. ... Saherunnisa, like other hostile witnesses, has proved to be a liar of the highest degree. She also exhibits an anxiety to suppress, or at least reduce, the severity of the incident. She also is unwilling to speak about the incident itself. It has taken a great deal of trouble for Smt. Manjula Rao, the learned Spl. P.P., to get elicited from this witness primary and undisputed facts such as the riots having taken place, the rioters setting on fire the Best Bakery building and other buildings, several persons dying in the fire, etc. She pretended not to know how her house had caught fire. She refuses to admit that the others, apart from Sabira, died because of burns in her house and claims that they died in their house which was adjacent to Saherunnisa’s house – i.e. Best Bakery building. She denies the presence of her mother at the time of the incident. She, however, does speak of rioters giving and shouting as ‘jalao, maro, kato’, etc. Though Saherunnisa is hostile and determined not to support the prosecution, she has disclosed certain facts during her evidence which support the prosecution case in certain respects. The signs of tutoring were however very apparent. She exhibited hatred and bias for Smt. Teesta Setalvad.

566. In spite of happening of such a serious communal incident in which her house and bakery were burnt, the witness volunteered to state during her evidence as ‘we would now carry on our business from there’. The learned Spl. P.P. is right in contending, in my opinion, that this showed that already there had been some sort of an understanding between her and the persons at whose instance she and other witnesses have turned hostile. The learned Spl. P.P.’s contention that apparently the witness had received some assurance in that regard is quite acceptable. That she was tutored and asked to say all sorts of bad things about Smt. Teesta Setalvad and her conduct with Zahira, is apparent. She has volunteered to state in her deposition, suggesting that Smt. Teesta Setalvad had kept Zahira in captivity; and that she escaped from her place and came to Saherunnisa crying; and that she had been badly treated by Smt. Teesta Setalvad, etc. This is falsified by the evidence of Zahira who has said about Smt. Teesta Setalvad having looked after her well.

567. Saherunnisa’s evidence also reveals several shocking things about the role of ‘Jan Adhikar Samiti’ in the matter, the nature of the financial assistance given by them to Saherunnisa and others, the role played by Advocate Atul Mistry and his conduct, which shall be discussed later.

568. Smt. Rao, the learned Spl. P.P., had drawn my attention to some part of the evidence of this witness and contended that this has brought out the truth of the matter. It is contended by Smt. Rao that why the witnesses were turning hostile and what were the facts could easily be grasped if this evidence of Saherunnisa [P.W.40] is studied. It is also pointed out by Smt. Rao that this particular evidence has not been challenged at all on behalf of the accused. I find great force in the submissions of Smt. Rao in this regard. The relevant evidence therefore needs to be dealt with and discussed in a somewhat detailed manner.

569. Saherunnisa, as is the feature of her evidence, criticised one Mohammad Vora and stated about his having forced (her) to say what was tutored by him before a representative of channel ‘Aaj Tak’. Apparently, all these witnesses have found no other way of explaining the statements made by them previously of which electronic record was available in visual and electronic form. Since some of the ‘tutored statements’ were made by them before they had met Smt. Teesta Setalvad, the original zeal and enthusiasm for putting the entire blame of the so called ‘conspiracy’ on Smt. Teesta Setalvad was given up, but keeping that aside, what is important is what Saherunnisa said on this topic. According to her, Mohammad Vora started teaching her as to what was to be said before the representative of the channel; and that he made a gesture which she showed to the Court and which was as indicative of ‘cutting the neck’. Thereafter, Saherunnisa volunteered to make a statement as follows:

"zabaan palte na, uske baare mein bol raha tha." (the changed testimony, that’s what I was talking about) [Pg.1063 of Notes of Evidence].

Saherunnisa then told him that she had no strength for fighting:

[Pg.1063 of Notes of Evidence].

Her grievance is that Mohammad Vora still insisted that she would have to fight; and that she would have to fight for the community. When she was questioned by Smt. Rao, Saherunnissa has admitted that her family had changed the testimony. She also very clearly admitted that she was talking about ‘changing the testimony’ in the Court at Vadodara. A question was asked, thereafter, to Saherunnisa by the Court and it would be most appropriate to reproduce the question and answer here.

Ques.: That means you have changed your testimony in the Vadodara Court [Matlab Vadodara Court mein aapne apni zabaani palti thi]?

Ans.: What else could be done [Mere aage peechhe koi nahin tha. Mera aadmi nahin tha, ladki nahin thi. Jab kamaanewala nahin tha, to kya case karen, kis par case Karen]?

Saherunnisa, of course, did not accept the suggestion of the learned Spl. P.P. which followed this question and answer, to the effect that she changed her testimony out of ‘fear’. However, she voluntarily addressed to the Court as follows.

"Judgesahab, jab wahin rahena tha to dushmani kya leni kisi se?"

It was got verified by the learned Spl. P.P. as to with whom she did not want enmity, to which a remarkable answer, as follows, was given by Saherunnissa.

570. This is significant. It is clear that Saherunnisa admits as ‘zabaan palte’. Since she speaks about ‘changing the testimony’ in the Court at Vadodara, it can only mean that earlier what was intended to be stated, was changed. There is no doubt about the meaning of this phrase ‘zabaan palte’. This throws light on all the relevant aspects of the matter. Not only that she maintains that she did change the testimony, but also gives a plausible explanation for the same which is reflected in the question and answer reproduced above. It is also significant, as reflected from the last answer reproduced above, as to how the matter is perceived by Saherunnissa. It is not perceived as an ordinary criminal case where the State is interested in prosecuting and proving the guilt of the accused and the accused are interested in showing that there is no evidence to support the allegation levelled against them. Saherunnisa views the case as a fight between two groups. Obviously, she is referring to those who are interested in showing that nothing had happened, that there was nothing wrong with the previous trial; and that some mischievous elements are making a false claim of an unfair trial, improper investigation, witnesses being threatened, etc., as one group and to those who are interested in showing how unfair the trial was, how insecure the minorities were, how the investigating agency had been partial and had displayed partisan attitude, etc, as the other. Saherunnisa also admits that after the riots, she and her family members were running ‘here and there’ out of fear; and that the fear was caused on account of the riots that had taken place and because what had happened during the riots.

571. In my opinion, this reflects the truth of the matter. This throws light on the attitude of these hostile witnesses. It nevertheless makes it clear that they did initially complain about the incident; and that there is no substance in their claim that they had not made any complaint. It is clear that their claim that whatever allegations were made by them, were so made on being tutored, etc., is false.

572. After the video cassette [Ex.283] was tendered in evidence, Saherunnisa was recalled at the instance of Smt. Manjula Rao, the learned Spl. P.P., for further examination. After being confronted with the relevant part of the video cassette [Ex.283], as contained in the C.D. [Ex.283/3], Saherunnisa was most evasive but it could no more be suppressed by her that the video cassette [Ex.283] did relate to the shooting of the place of offences, done on the next day morning when the police came there.

573. Saherunnisa [P.W.40] had earlier stated that on the next day and after the arrival of the police, she had got down from the terrace by the cement staircase inside the building. After having seen the relevant part of the video cassette [Ex.283], she said that she got down from the ladder which was behind; and that she and others were made to get down from there. Undoubtedly, she does add that the ladder had been brought by the police, which cannot at all be accepted. The police had no reason to falsely suppress the fact of having brought a ladder. In any case, this is because viewing the relevant part of the video cassette [Ex.283] made Saherunnisa realise that when so much fire had been caught, it was not possible to come down by the cement staircase inside the building.

574. The last and most important among the hostile witnesses is Zahira Shaikh [P.W.41] – the first informant. It is she, on the basis of whose grievances, or at least supposed grievances, that the retrial was ordered. That Zahira should turn hostile again during this retrial is indeed shocking in as much as Zahira had given several press statements, had approached various authorities, had filed a petition in the Supreme Court of India, filed certain affidavits before the statutory authorities after the incident and even after the trial ended in acquittal, raising several grievances against investigation and the machinery for administration of justice. In spite of that, she did show the courage of turning hostile. Naturally, she was confronted with the records of her previous statements contrary to what she deposed before this Court, and had therefore to give certain explanations regarding having made those statements, as shall be discussed at an appropriate place.

575. Zahira [P.W.41], when caught in such an awkward situation, initially attempted to deny having made the previous conflicting and contradictory statements, but when confronted with some record of that and when it would be thought of as impossible to deny having made the statements, attempted to attribute it to the tutoring and threats given by Smt. Teesta Setalvad and others. Unfortunately, even this has not helped always, as some of the statements related to the period prior to Zahira coming in contact with Smt. Teesta Setalvad. Zahira, in such situations, had to find out different names of different persons as the persons who had tutored her to say those previous conflicting statements.

576. Though the evidential value of Zahira’s evidence in the matter of adjudication of the guilt or innocence of the accused would be very limited in this case, her evidence, nevertheless, is required to be discussed in some depth. It is because the situation that has been created by Zahira amounts to making a mockery of the system of the administration of justice. It is my opinion, after going through the entire evidence of Zahira [P.W.41], Saherunnisa [P.W.40] 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. Repeated and emphatic claims were made by Shri Shirodkar, the learned Senior Advocate, that the accused would prove that a blunder had been committed by the Supreme Court of India, in ordering the retrial.

577. Before proceeding to discuss the evidence of Zahira further, it may be noticed that in spite of such a tremendous hostility, ultimately, Zahira has been made to admit the happenings of the incident almost in the same manner in which the prosecution has alleged it having taken place. Barring the connection of the accused with the alleged offences, Zahira has admitted almost every part of the prosecution case.

578. … Zahira also admits that the riots took place on 01/03/2002; and that stone throwing and bottle throwing was going on throughout the night. Zahira does state about the stones being thrown on the terrace from all four sides, about the ‘wakhar’ in front of their house being burnt, the wood kept in the downstairs portion in their house having caught fire, etc. She also admits that she got down from the terrace in the morning; and that it was after the police and fire brigade had come, who, according to her, made her – and others also – to get down.

579. It can at once be seen that there is not much distinction between Zahira’s version of the incident and of the supporting witnesses or the prosecution case as revealed by the police report and accompanying documents. The incident of riots did take place. Stone throwing, bottle throwing, fire taking place, Best Bakery building being set on fire, the inmates and victims of the incident being rescued in the morning, indicative of the fact that the riots went on till then and till the arrival of the police, are facts which have not been – or rather could not be – disputed by Zahira and even by other hostile witnesses for that matter. What is significant is that there is a methodical insistence to stick to the version of the injured having been brought down on the next day morning by the fire brigade. As already observed, while discussing the evidence of other witnesses there is a concerted effort, obviously as a result of tutoring, to hide or suppress the morning incident.

580. According to Zahira, her brothers were injured in the night itself, because of throwing of the bottles, etc., and even the servants had been injured in the night itself. This is consistent with the stand that all of them came down from the terrace only after the police and fire brigade came. Fortunately, no story of an attack by some persons after the police had already arrived on the scene and had rescued these persons is devised. The injuries sustained by Nafitulla [P.W.31] and Nasibulla [P.W.30] and the other injured witnesses however, cannot, at all, be accepted to have been caused by throwing of bottles. That this is a lie is already clear from the earlier discussion and also from the evidence of the supporting witnesses, but what should be emphasised in this context is the anxiety felt by the hostile witnesses to avoid speaking anything about the morning incident. This is remarkable in as much as it is a clear indication of they having been tutored in that regard. The persons tutoring them are obviously those at whose instance they have turned hostile. The difficulty that would be created for the accused, if the morning incident were to be admitted, has been rightly realised by those persons. The factors creating the alleged impossibility or difficulty in observing – viz. smoke, darkness, distance, etc. – could not be brought in aid for the morning incident when the assailants and victims had faced each other.

… … …

582. It is indeed a sad commentary on human nature that Zahira even does not wish to admit clearly that Sabira had died in the riots and due to the fire that was set to the Best Bakery building. Zahira stated about Sabira being in one of the rooms on the first floor and when questioned as to what had happened to her, stated that she did not know what had happened to her. Zahira claims to have learnt only in the hospital that Sabira had died. Like other hostile witnesses Zahira also uses very mild expressions as ‘due to heat’ and ‘as there was smoke’ as the reasons for the death of Sabira, instead of saying that she died due to the burn injuries suffered on account of the fire. Again, while describing the condition of the dead body of Sabira, Zahira said that her face ‘had become dark because of the smoke’. It is remarkable that the use of the word ‘fire’ or ‘burn’ is very methodically avoided by this witness, obviously in an anxiety and in the false hope to make things appear less gruesome. There is no conceivable reason, otherwise, for not using expressions such as ‘fire’, ‘burns’, ‘burnt’ etc. when speaking of a person who had died due to fire and burn injuries and using the expression ‘smoke’, instead, frequently.

583. The most shocking aspect of the matter is that Zahira refuses having lodged the F.I.R. itself. To the question whether police made inquiries with her at any time, Zahira replied that when she was in the hospital, after two days a policeman had come; and that he took her signature on a paper and went away. Looking to the question and the manner in which the above answer came, it becomes clear that Zahira had been tutored, or was at least aware that she would have to pass through the hurdle of the F.I.R. signed by her being in existence.

584. According to Zahira, after coming down from the terrace she was immediately taken to the hospital; and that she did not wait on the spot after getting down for any time; and that no inquiries were made with her, at any time. This is obviously false, in view of the record contained in the cassette [Ex.283]. An interesting aspect can be noticed properly by first reproducing the following question and answer from Zahira’s evidence:

Ans.: When I went to the hospital, after 2-3 days, a policeman had come and he took my signature on the paper brought by him. [Pg.1141 of Notes of Evidence].

585. This is remarkable. This shows that not only Zahira is aware of there being an F.I.R containing her signature but is also aware of what it contains. There was no reference in the question to any statement and there was no occasion to connect the question of information given by Zahira to the incident of a policeman taking her signature on a paper, unless Zahira would know that in that particular paper, the information referred to in the question was available.

586. Zahira admits that the F.I.R. [Ex.136] is the document on which her signature was obtained by the policeman in the hospital; and that her signature had been obtained by a policeman only on one paper. The question and answer reproduced above clearly indicates that Zahira does know what is written in the document [Ex.136].

587. Curiously, the record of the deposition of Zahira as given by her during the previous trial does show that Zahira did state before that Court that she had talked to the police about the incident. Zahira was confronted with the portion [Ex.137 and Ex.137/A] in her original deposition [X-60 for identification] before that Court which reads as ‘I had talked to the police about this incident’ and the ‘police had obtained my signature on my statement’, but still denied having made the statement. Zahira was also confronted with the other portion [Ex.137/B] in her original deposition, which shows that Zahira admitted in that Court that the F.I.R. bore her signature; and that it was recorded in Sayaji Hospital, but Zahira denied even having said so. This denial cannot, at all, be accepted. There is nothing to show that this particular record of the Court is not accurate. The facts stated in those portions are natural and probable and the denial of the fact that she lodged an F.I.R. is what is actually unbelievable and unnatural.

588. Why Zahira is hostile to such an extent and what are the reasons for her making statements which are obviously false and which one is ordinarily expected to realise as would not be believed, is a matter difficult to understand and requires deep probe. Though ultimately Zahira does not dispute the incident, it has taken a great deal of effort to get the facts from her…

589. … It is not that the witness only wants to refuse to say anything about the connection of the accused with the alleged offences. Whether the accused are the culprits or offenders or not and what Zahira says in that regard would be a different matter, but even after admitting that riots had taken place and also admitting in what manner they had taken place and how serious the incident was, she is not ready to say that there was a danger to their lives. This makes it clear that the interests of those, at whose instance she is speaking lies, are totally different and much larger than merely protecting the accused. This, as contended by the learned Spl. P.P, might be a sign of the pressure that is in the mind of the witness, apart from the possibility, which clearly exists, that she has secured monetary benefit from the interested persons to depose in the manner in which she has. It is further remarkable that even after admitting that there was danger outside, to the very next question as to ‘from whom was the danger’, Zahira was not ready to say that it was from the rioters. The Court Note in that regard [on pg.1164 of the Notes of Evidence] records that Zahira gave irrelevant answers to the effect that throwing of stones and bottles was going on, curfew was there and after much time was spent, Zahira stated that she did not know from whom the danger was. Obviously, the idea is again to emphasise that she did not know who were the rioters, but this is rather unusual. At that stage, nobody expected her to say who were the rioters and a person who would not be determined to tell lies at all costs and to shake the basic version of the prosecution case on the basis of his or her own statements only, would have certainly said that the danger was from the rioters. In fact, the previous answer given by her does say so; and that outside there was danger, had been said by Zahira with respect to the rioting going on outside only, but still she is not ready to utter the simple words that ‘there was danger from rioters’. That she does not know the rioters is eagerly, and before waiting for that subject to be touched, said by her. Anyway, Zahira did admit, after persistent questioning, that it is due to the fact that the riots were going on outside, she and her family did not come outside her house for saving their lives. In spite of her refusing to clearly admit that there was danger to their lives from the rioters, or at least they felt so, this is clearly established because, though there was danger to their lives by remaining in the house, still they did not come out of the house. The only conclusion therefrom is that the danger that was – or was so perceived by them – outside, was more than the danger in remaining inside the house. Even thereafter, Zahira was not ready to admit the simple undisputed and already spoken fact by her that, because of the riots, they were in danger till the police arrived in the morning. The questions and answers in that regard are worth reproducing to give a correct idea of the attitude of this witness.

[Court Note: The question is again repeated].

Ans.: At that time, even the servants were injured and also my brothers were injured and therefore, we were unable to understand. [Pg.1166 of Notes of Evidence].

The object of reproducing this is to highlight how serious the matter is from the point of view of administration of justice. The witness, it seems, is determined to make a mockery of the whole system of administration of justice.

590. As to why Zahira and the others went to Vadodara from Mumbai after the retrial had started, Zahira has given the reason that ‘gundas’ started coming to their house and threatening them that they would have to give evidence as the ‘gundas’ would say; and that they would have to do as the ‘gundas’ would tell. According to Zahira, she and others refused by telling them that they would tell the truth. The ‘gundas’ then said that they would shoot them dead. Thereafter, Zahira and others decided to go to Vadodara. This story was revealed when the question, as to when the decision to go to Vadodara was taken, was asked. This story did not provide an answer to what was asked – viz. ‘when’. The question was repeated and the opportunity to speak further and give the names of certain persons as ‘gundas’ – i.e. Raees Khan, Mohammad Vora – was seized by Zahira. Zahira mentioned about Smt. Teesta Setalvad also coming to their house and telling them that they would have to do as she would say. It is obvious that this all is a tutored version of the original stand of the persons who had tutored Zahira and other hostile witnesses. Obviously, this tutoring was thought by them as necessary to explain the happenings leading up to the retrial. Considering the background in which the retrial came to be ordered, considering the various statements made by Zahira and others – not only before media but before statutory authorities as well – before and after the first trial, turning hostile and disowning everything that had transpired before the retrial was not easy. The only story could be of being abducted to Mumbai, kept in confinement, tutored and threatened and then, when the retrial was about to start, ultimately escaping from the clutches, going to Vadodara, feeling secure thereafter and telling the truth. As discussed at various places and as shall be dealt with more specifically later, this story cannot be accepted at all. It is so incredible, so improper, so contrary to reason and logic that it must have taken a great deal of courage to put forth such an improbable story. What is further surprising is the estimate of Zahira, and those who tutored her, about the degree of credulity that the Court may possess.

591. A tendency on the part of Zahira not to give straight answers to the questions put by the learned Spl. P.P., to introduce certain matters which apparently were already decided as to be said, was noticed and therefore she was allowed to narrate her version. Zahira then narrated all the events from the riots till she, along with others, went to Vadodara after the retrial had started, contacted Advocate Atul Mistry and demanded help from ‘Jan Adhikar Samiti’. This narration [from page nos.1170 to 1178 of Notes of Evidence] is what Zahira’s initial version before this Court is. Smt. Manjula Rao, the learned Spl. P.P., has immediately, after the said narration was recorded, got it confirmed from Zahira that it has been accurately recorded…

The salient features of the initial version of Zahira before this Court are as follows:

a) That the riots indeed took place. Their building and some other premises had caught fire. Rioters were throwing stones and bottles due to which her brother and the servants were injured.

b) In the morning, police, ambulance and fire brigade came and made Zahira and others get down and took them to the hospital.

c) Two to three days after going to the hospital, one policeman came and took her signature.

d) Zahira was shown dead bodies of Sabira and their servants in the hospital.

e) Her evidence was recorded in the Court of Vadodara, which she gave on oath, and spoke the truth.

f) After the verdict was given by the Court, she went to her native place.

g) When she came back, Mohammad Vora, Arif Malik and Munna Malik came to her house and forcibly took Zahira and Nafitulla to Mumbai.

h) At Mumbai, Zahira met Teesta Madam who explained that she would see to it that Zahira and her family were compensated for the loss caused to them, that she would restore their bakery and house; and that they would have to do as she would say.

i) Smt. Teesta Setalvad held a press conference thereafter and kept Zahira initially with her for a month and then with one Ishaq, her relative.

j) Papers, blank papers, stamp papers, computer papers were being brought to Zahira. Zahira was told that the bakery was to be transferred in the name of her mother and her signatures on several papers were obtained. This way, four months passed.

k) At one point thereafter, Zahira asked Teesta Madam why her signatures were being taken on so many papers. Smt. Teesta Setalvad gave an answer suggesting that they were required for some proceedings in the Court. Zahira refused to make any more signatures.

l) Earlier, Zahira had been taken to Delhi by Smt. Teesta Setalvad.

m) After Zahira’s refusal to make more signatures, Smt. Teesta Setalvad and Raees Khan started pressurising her.

n) Zahira then came to her mother’s house, but there also Raees Khan came and troubled Zahira and others.

o) Raees Khan said that Zahira would have to do everything for the community.

p) A few days before Zahira went to Vadodara, Smt. Teesta Setalvad and Raees Khan came to Zahira’s mother’s house and quarrelled with her mother. They wanted to have Zahira with them for making her give false evidence in the Court.

q) Zahira and others refused to do such a false thing.

r) Thereafter, Nasibulla was caught by the ‘gundas’ of Raees Khan and was being forcibly taken somewhere in a vehicle.

s) Zahira’s mother rescued Nasibulla but when she went to lodge a ‘fariyad’ at the police station, Raees Khan reached there also. The police did not record any complaint and therefore Zahira and others were forced to go to Vadodara.

t) Even after they went to Vadodara, Mohammad Vora and others were searching for them.

u) Zahira and Nafitulla met ‘Vakilsaab’ Atul Mistry in the Court and narrated the things to him. Advocate Atul Mistry wrote it down and prepared an affidavit.

v) Zahira then demanded help from ‘Jan Adhikar Samiti’ [which is frequently referred to by the hostile witnesses as ‘Jan Adhikari’ and stated to be a person by name Tushar Vyas].

592. The story would be put to the test during the discussion on Zahira’s evidence, but what is significant and must be noted at this stage is that as per this version, which is the basic version sought to be advanced by Zahira, she never made any statements about this case or did not make mention to anybody about this case either before or after the previous trial. At the most, the suggestion is that after the previous trial some written complaints purporting to be of Zahira might have been made by Smt. Teesta Setalvad on the basis of Zahira’s signatures obtained by her on various papers. This is to be kept in mind because the later examination of Zahira reveals that almost everything that led to the retrial was stated by Zahira to various authorities and on various occasions and this included even the names of the accused persons in this case and it is after she was forced to admit having made the statements, a theory of she having made the statements as tutored has been advanced. In this original narration, there is no mention of her being made to say certain things. Apart from there being no express mention, the story is consistent enough to indicate the absence of any such mentioning on the part of Zahira. From this, Zahira appears to be a very truthful person and the moment she suspects some foul play, she refused to make signatures and the moment she was told that she will have to speak lies, she refused and escaped from that place and went to Vadodara. Interestingly, even when forced to admit having made some statements concerning this case contrary to what she is now telling the Court, the initial attempt was to attribute those statements to the tutoring of Smt. Teesta Setalvad only. However, when caught in a situation where the period of having made those statements was indicated as prior to Zahira’s meeting Smt. Teesta Setalvad, the tutoring came to be attributed to various others – i.e. local people from Vadodara. Why this has been dealt with in depth, by reproducing the entire version, is because it is necessary to expose the conspiracy behind advancing such version and by highlighting improbabilities contained therein. This is necessary to be done because this is an attempt to show that retrial has been wrongly ordered and, in fact, such arguments were advanced on behalf of the accused.

593. Shri Adhik Shirodkar, the learned Senior Advocate, repeatedly contended that Zahira is telling the truth; and that it would be revealed to the Court at the end of the trial that it was ‘blunder’ to order a retrial. Much was spoken about the conspiracy behind getting a retrial ordered but, after going through the entire evidence and considering all the relevant matters, it appears to me that there was perhaps a conspiracy to make a fiasco of the retrial by whatsoever means.

594. Zahira went to the extent of denying that she lodged the F.I.R. This is clearly falsified by the evidence of PI Baria [P.W.72]. First of all, that the F.I.R. bears the signature of Zahira is not in dispute at all. There are various entries in the station house diary showing that the F.I.R. was lodged at 15.15 hours on 02/03/2002; and that it was lodged by Zahira. The time of making these entries could not be manipulated beyond a particular limit. Moreover, PI Baria had no conceivable reason to make a false claim of Zahira having lodged the F.I.R. Apart from this, there is a clear indication that Zahira’s denial in that regard is false, by what has been elicited from her by Smt. Manjula Rao, the learned Spl. P.P.

… … …

596. PI Baria’s evidence clearly shows that a copy of the F.I.R. was also given to Zahira and her acknowledgement in that regard was obtained.

597. Zahira admits that she knows what was the result of the case in the Vadodara Court and what was the decision of that Court. It is remarkable that when asked as to what was the decision, which she claimed to have heard from somebody, she states that she heard about the decision as ‘whatever was true had happened’. She is however unable to explain what was the so called truth. This indicates that she is merely saying something that is tutored. She claimed that she did not know, till the date she was giving evidence, as to what had happened to the case after it was over in the Court at Vadodara; and that she did not know why the case is now being tried in Mumbai. Thus, what she wants to claim is total unawareness of the grievances about the previous trial, the proceedings before the Gujarat High Court and the Supreme Court and the order for retrial made by the Supreme Court. However, this stand, which is consistent with what was the original tutoring to Zahira, does not stand up to scrutiny. Zahira was forced to admit, as a result of further questioning, that she knew what was going on; and that she had made certain statements, though on being tutored by Smt. Teesta Setalvad and others. Thus, expressing total ignorance as to what had happened in the Court at Vadodara and thereafter leading to the present retrial is absolutely false.

598. Document marked [X-51 for identification] was produced by the prosecution through Smt. Teesta Setalvad. This document purports to be a letter written by Zahira in her own handwriting. Zahira, when confronted with this document, denied it to be written by her. She denied that it was in her handwriting. However, she did admit signature thereon as hers. Zahira tried to explain this by saying that her signatures were obtained on several blank papers. I am not inclined to believe Zahira on this at all. Ordinarily, when a person admits his signature on a document it would be rather difficult for him or her to dispute the authorship or the contents thereof. The document has been produced by Smt. Teesta Setalvad, to whom it purports to have been addressed. Now, when the signature is admitted by Zahira and the document is produced by Smt. Teesta Setalvad there are only two reasonable possibilities in that regard. The first is that the letter is indeed written by Zahira and the other is that it is forged by Smt. Teesta Setalvad. I have considered this aspect. Zahira was made to write certain matter while in the witness box itself in accordance with the provisions of Section 73 of the Evidence Act, in order to enable the Court to compare her handwriting with the handwriting of the document [X-51 for identification]. These writings obtained from Zahira under Section 73 have been marked as Ex.140, Ex.141 and Ex.142. Upon a careful consideration of all the handwriting in Ex.140, Ex.141 and Ex.142, with the handwritings in X-51, together with the fact that the signature thereon is admitted to have been made by Zahira, I have no doubt whatsoever that the letter [X-51 for identification] has been written by Zahira only. Though, ordinarily, a Court would not undertake upon itself to get decided the authorship of disputed handwriting and would ordinarily depend on opinion of experts on it, nothing prevents the Court from forming any opinion on its own in that regard.

599. The observations made by the Supreme Court of India in Murarilal Versus State of M.P. AIR 1980 Supreme Court 531, leave no manner of doubt in respect of this position. The Supreme Court observed that:

"The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert, is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary" [para-12] [emphasis supplied].

600. The Supreme Court of India went on to observe that it becomes the plain duty of the Court to compare the writings and come to its own conclusion whether or not experts have been called and examined. It was observed as follows:

"The duty cannot be avoided by recourse to the statement that the Court is no expert" [para-12].

601. Further, here the opinion is not being based only on the comparison of handwriting, but upon considering the entire facts including the one that the signature on the letter is admittedly of Zahira.

602. Moreover, the other possibility would only be the possibility of forgery having been committed by Smt. Teesta Setalvad [or somebody on her behalf] after obtaining signature of Zahira on a blank paper. Now, every forgery has some motive. It is done with some object. In order to ascertain the authorship of the document, contents thereof can certainly be looked into, though not as evidence of the facts stated therein or as to the truth of the contents. Thus, the document [X-51 for identification] only speaks of Zahira’s intention to fight her case from the beginning and explaining how she had changed her statement in the Court due to threats. Now, if Smt. Teesta Setalvad wanted to forge a letter by taking advantage of the signature of Zahira on a blank paper, she could have written much more damaging matter in this letter. It may be recalled that the motive attributed to Smt. Teesta Setalvad is to malign the Government of Gujarat for ulterior motives. It is not alleged that she has any personal enmity or ill will against the accused. What is alleged is that she wanted to show that the previous trial was tainted, that it was designed to ensure the acquittal of the accused, that the investigation had been faulty, that the State did not take any interest in punishing the culprits and protect the minority. If at all forgery was to be committed, in the circumstances, many more damaging things could have been written instead of a plain letter merely expressing desire to fight the matter all over again and attributing the previous testimony to the threats.

603. In the circumstances, I have no manner of doubt that the document [X-51 for identification] has been written by Zahira only and her denial in that regard is false.

… … …

605. There is much to be discussed about Zahira’s evidence if that what she speaks are total lies is to be emphasised. Almost everything that she states is contradictory, inconsistent and incredible. It is easy to understand that this is happening because the story which she wants to advance and which she narrated as referred to earlier is itself absurd and improbable. To resile from the statements, after going much ahead and to explain the allegations and assertions made before various competent and statutory authorities, before the media, would indeed be a difficult task; and in an attempt to do so by reason of fear felt or on account of having been offered monetary inducement, or by both, it is no wonder that Zahira’s evidence has rendered itself visibly unreliable and false. … … …

606. Zahira has admitted that she had been before the Manav Adhikar Ayog when she was residing in the house of Iqbal Ansari i.e. immediately after the incident and within a period of one month thereafter. She states that she was taken there by Mohammad Vora and Munna Malik and was tutored to say certain things, which she did. This, she states, was done by her on 2-3 occasions. She wants to suppress the fact that she had made a grievance before Manav Adhikar Ayog and therefore states that she does not remember what she told them but that whatever was told was as was tutored to her. It may, incidentally, be observed that this any way demolishes the theory of Zahira being tutored by Smt. Teesta Setalvad as, admittedly, Smt. Teesta Setalvad was not in the picture at all before the previous trial had ended.

607. When an attempt was being made to confront Zahira with a certain document purporting to contain a record of statement previously made by her, all sorts of objections were raised by the Advocates for the accused, which objections were without any substance.

608. As discussed earlier, the persons at whose instance Zahira and others from her family had turned hostile obviously appear to have a desire to attribute all the allegations made by Zahira about the improper conduct of the previous trial, regarding her demand for retrial, etc., to the fraud played upon her by Smt. Teesta Setalvad. The narration of Zahira reproduced earlier indicates what was the initial attempt – as if Zahira knows nothing. This has not succeeded, as discussed aforesaid, in as much as there is ample evidence on record – even of Zahira herself – that she did, in fact, make certain statements and that was before she had met Smt. Teesta Setalvad. It is after realising that she could not implicate Smt. Teesta Setalvad in the matter of having made those supposedly false statements that Zahira started saying about the tutoring and pressurising by Mohammad Vora, Munna Malik and Arif Malik, etc., from Vadodara.

609. Thus, 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 was questioned as to how were her and her family’s relations with Smt. Teesta Setalvad when she was residing at Yari Road and Zahira said that at that time her relations and also of her mother, her brothers and her sister with Smt. Teesta Setalvad and her children were good. 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, though has added that Smt. Teesta Setalvad might be getting help. But there has been no denial of the fact that Zahira was being looked after properly by Smt. Teesta Setalvad, in the words of Zahira, ‘achhe se rakhti thi’ [pages 1278-1279 of the Notes of Evidence]. This has been repeated by her during her evidence. [Pages 1508-1509 of the Notes of Evidence].

610. It is contended by Smt. Manjula Rao, the learned Spl. P.P., that Zahira has claimed as having approached Advocate Atul Mistry for help because of the threats that were being given to her, but she has not been able to give any proper answer for not going to the Gujarat Police before that. … … …

It is only thereafter, and when the question was again repeated, Zahira said that she thought it necessary to take the opinion of an Advocate. However, she had to admit that even after taking the opinion of the Advocate she did not lodge any complaint at any police station. Mrs. Rao is certainly right in contending that this shows that Zahira was unable to explain her conduct. However, what is significant, in my opinion, is quite different. A more pertinent aspect of the matter is why did she not go to the police, or to any Advocate, earlier – i.e. when the first trial was to be held. It is because, according to Zahira, persons from her community were pressurising and threatening her at that time. The question is how and why she did not bother about the threats from the people at that time? Would the Gujarat Police have not given her protection from the threats that were being given by Mohammed Vora, Arif Malik and Munna Malik to tell lies in the Court? Why Zahira did not consult any Advocate at that time, even assuming that she did not want to go to the police for some reason at that time, is not capable of being explained. Moreover, interestingly, she did not pay any heed to the threats and was not scared of the same persons at that time. She proceeded to speak ‘the truth’ during the first trial without bothering about the threats by the persons from her community. Thus, by pressure, she used to make the ‘tutored statements’ before media, various authorities, etc.; but when the trial took place, the pressure disappeared. She spoke the truth. When the trial was over, again pressure mounted to speak the lies. She succumbed to that but when the retrial started, again the pressure disappeared. Thus, the pressure works on all occasions except when the stage of trial comes. This may be left at that only without making any further comments.

… … …

612. Mrs. Rao contended during the course of arguments that the collusion between the hostile witnesses and the accused was apparent; and that the Advocates for the accused have resorted, deliberately, to making frivolous and baseless objections at such times when they apprehended that an answer favourable to the prosecution could be elicited from the witness. It is contended by Smt. Rao that rather than the own Advocates of the witnesses, the Advocates for the accused have been zealous in guarding the rights of those witnesses under the garb of protecting the rights of the accused.

613. In the facts and circumstances, I do not wish to go deeper into this matter, the same not being necessary. It is however a fact that many of the objections raised by the defence during the recording of evidence seem to be utterly baseless, as elaborately held in the relevant Court Notes.

614. Ultimately, Zahira has admitted that in a press conference held previously she had stated before the media that due to fear Zahira and her family members did not speak the truth before the Court at Vadodara. She certainly qualifies it by saying that she had stated so on being tutored by Smt. Teesta Setalvad, but does not deny having stated so.

615. Zahira has said about Smt. Teesta Setalvad tutoring her and also about Smt. Teesta telling her that she would call for photographs from Gujarat and Zahira would have to identify the photographs. However, according to Zahira, she did not actually see the photographs. She refused to see them. Though Zahira wanted to offer an explanation of her previous statements and to attribute the same to tutoring, one fact has been clearly revealed from whatever she stated, that she does admit that she gave the names of the prisoners in the ‘Best Bakery Case’. Though initially she denied this, later on she admitted having given the names, though – of course – on being tutored by ‘persons from her community’. She has also admitted that she had given the names of the prisoners in the ‘Best Bakery Case’ before giving evidence in the Court at Vadodara. Zahira has admitted having given the names of the prisoners in the Best Bakery Case to National Human Rights Commission, Election Commission [though, of course, on being tutored]. This completely destroys the contention, which is emphatically put by the defence, that a false case has been cooked up at the instance of Smt. Teesta Setalvad. What emerges from Zahira’s evidence is that she had undoubtedly given the names of certain prisoners as the culprits in this case, though she says that she does not remember those names now and though the names were given on being tutored by ‘persons from her community’. It also emerges that these names were given by her even before the previous trial. It is however remarkable that in spite of admitting this Zahira was categorical in maintaining that she had not given the names of anyone to the police. Her denial of not having given the names to the police cannot be accepted. If she had gone to so many authorities, there was no reason for her not giving the names to the police. If the persons from her community were tutoring her to name certain persons as culprits before statutory authorities, there was no reason for them not to make Zahira give those names to the police. In fact, giving the names to the police would have been more important and would have fetched the desired results. Zahira’s explanation in that regard [pg.1535 of the Notes of Evidence], that the names were not given to the police as the police did not come to her, cannot be accepted.

616. Zahira also admits having stated before the media that she had not spoken the truth in the Vadodara Court due to fear.

617. Smt. Rao, the learned Spl. P.P., has rightly, in my opinion, got it confirmed again from Zahira that she did state before this Court that she had given the names of the prisoners in the ‘Best Bakery Case’ to various authorities [although on persons from her community having tutored her to that effect].

618. Zahira has admitted that neither Mohammed Vora, nor Munna Malik nor Arif Malik, were residing in Hanuman Tekdi locality. I agree with the contention advanced by the Special Public Prosecutor in this regard that this is important from the point of view as to the likelihood of the witness having been tutored the names by persons residing outside the locality. The contention of the learned Spl. P.P. is that the accused are undoubtedly from the locality [which aspect shall be discussed and dealt with later] and since Mohammed Vora, Munna Malik and Arif Malik are not residents of the same locality it was highly unlikely that they knew the names of the persons residing in Zahira’s locality.

619. In my opinion, that Zahira might have forgotten to state the fact of tutoring cannot be accepted. It is crystal clear that had the fact been true, it being such an important aspect, Zahira would never have forgotten to mention it. It is clear that community people approaching her, her going to various authorities, making allegations, giving statements, would have been an aspect ultimately leading to the stage when a retrial came to be ordered and in narrating the happenings till then, no one would omit this most important aspect. It is clear from Zahira’s evidence that the initial trend was towards denying the happenings itself. There was a definite claim of not having stated or alleged anything at all. The trend was towards indicating that no culprits or offenders were seen at all, no complaint had been made at all and that there was no question of having any grievance about the previous trial at all, there was no question of having demanded a retrial at all, etc., etc. However, the steps taken by Zahira were so many and as the record of many of them was available in some form or the other, it could no longer be denied by her, as the examination by the learned Spl. P.P. progressed, that she had made certain statements. In this regard also, the admissions have developed slowly; firstly about having complained about the incident, then gradually developing and finally coming up to a stage where even the admission of having given the names of the ‘prisoners of the Best Bakery case’ has been made. It is when the admissions regarding the previous statements, contrary to what is now being stated by her, became unavoidable, a theory of tutoring was simultaneously introduced.

620. Zahira claimed that in the papers filed before the Supreme Court of India, whatever had not happened was wrongly written by Smt. Teesta Setalvad. Zahira claimed that no photographer or videographer had come to the place of the Best Bakery along with the police in the morning of 02/03/2002, which is obviously wrong and incorrect in view of the clear evidence of not only Gautam Chauhan [P.W.69], but also of PI Baria [P.W.72] and the video cassette [Ex.283] itself.

… … …

635. When Zahira [P.W.41] was confronted with the C.D. [Ex.283/3 equivalent to the relevant part of the video cassette (Ex.283)], she admitted that the shooting was relating to their house and of the morning of 02/03/2002. In spite of previously denying the presence of Yasmin and after having seen Yasmin present on the scene recorded in the C.D., Zahira did not express any surprise. Ultimately, in the process of questioning and answering, Zahira has admitted that at the time of the incident she had seen that Yasmin was sitting. Thus, ultimately, Zahira has admitted the presence of Yasmin. Further, Zahira has again confirmed the presence of Yasmin by saying that when the police and the fire brigade came they – i.e. she, her mother and her sister-in-law – were on the terrace, though that they were on the terrace at that time is obviously false as disclosed earlier. It is pertinent to note that Yasmin’s presence on that day along with Zahira and others has not been denied by Zahira and the previous denials in that regard were given up when confronted with the relevant part of the cassette.

… … …

637. Thus, the following aspects are admitted even by them [or such of them as are concerned with respect to a particular aspect].

i) The incident of a mob of rioters setting fire to Best Bakery building and other premises such as Lal Mohammad’s ‘wakhar’ and Aslam’s house indeed took place.

ii) The mob was of Hindu persons and was giving slogans to the effect ‘maro’ ‘kato’ ‘bakery jalao’ ‘har har mahadeo’ etc. That in the fire that was set, immovable and movable property of a considerably huge amount was damaged and destroyed.

iii) That seven persons died as a result of burn injuries sustained by them due to the fire that had been set to the Best Bakery building.

iv) That Nafitulla and Nasibulla were injured in the riots.

v) That the rioting was going on throughout the night; and that the mob was throwing stones, bricks, soda water bottles and bulbs filled with kerosene on the terrace of the Best Bakery building.

vi) After the police and fire brigade came, the injured, including Nafitulla, Nasibulla and also Zahira, Saherunnisa, Sahera and Yasmin were taken to S.S.G. Hospital.

vii) Zahira appeared before the various authorities, such as Human Rights Commission, Election Commission, etc., and narrated the incident. She also named certain persons as the culprits.

viii) Zahira did give the names of the prisoners of the Best Bakery Case as the culprits before certain authorities, though not to the police.

ix) In the hospital, the police had come and obtained Zahira’s signature on a paper, which paper is admitted to be the document [Ex.136 (F.I.R.)].

638. Thus, almost everything relating to the prosecution case has been admitted by Zahira and the other hostile witnesses. What is not admitted is the connection of the accused, though even the fact that some names – and that too of the prisoners of the ‘Best Bakery Case’ – were being given by Zahira from time to time to various authorities is admitted. The dispute is only about having given names to the police. In the ultimate analysis, the claim is not that the names of some persons as the culprits were not given at all by Zahira at any time to any authorities, but the claim is that they were given on being tutored; and that presently she does not know or remember what were those names. The alleged tutoring also has been done not only by Smt. Teesta Setalvad, as originally suggested, but by various different persons at different periods of time.

639. There is a conscious effort, as already observed, to avoid disclosing the morning incident as deposed to by the supporting witnesses. There is, therefore, an assertion on the part of these witnesses that those who were injured, including Nafitulla and Nasibulla, were injured in the night itself and had lost consciousness. These hostile witnesses claim that they and even the others came down, or were brought down, from the terrace only after the police had arrived. Therefore, if this is true, Sailun, Baliram, Prakash, Rajesh, Raees and Taufel all sustained injuries in the night itself. Apart from the fact that the injuries sustained by them, including those by Nafitulla and Nasibulla, are not such which can be caused by throwing of stones, bottles or bulbs, etc., the absurdity of this claim is exposed by the fact that none of the women who were on the terrace were injured on account of the stone throwing and bottle throwing etc. In the random stone throwing and bottle throwing which was going on throughout the night only the men would sustain so severe injuries, without even one of the women sustaining any serious injuries, cannot be believed by any sensible person. The story of the hostile witnesses, of the police coming and rescuing them therefore leaves this aspect – viz. how the men were so badly injured and how the women were not injured – unanswered. This theory is explained only if the morning incident as deposed to by the witnesses is true.

640. In the ultimate analysis, therefore, the evidence of the hostile witnesses supports the prosecution case to a large extent and in spite of the initial extreme stand taken by them they ultimately admitted a substantially large part of the prosecution case, except the part relating to establishing the connection of the accused persons with the alleged offences.

641. The examination of the hostile witnesses has revealed certain disturbing aspects. These witnesses who are hostile and who are obviously speaking lies, as amply demonstrated by a discussion of their evidence, have been actively assisted and supported by some person or persons from Vadodara, by looking after all their financial needs and by providing for the expenses of their Advocate. It emerges from their evidence that Advocate Atul Mistry used to come along with these witnesses and used to remain present in the Court during their examination. Nasibulla states that he did not know Advocate Atul Mistry at all; and that he was introduced to him by his brother. All his fees are paid not by any one of these hostile witnesses but by ‘Jan Adhikar Samiti’. According to Nafitulla, ‘Jan Adhikar Samiti’ provided the services of Advocate Atul Mistry to him and others. According to Nafitulla, he and Zahira met Advocate Atul Mistry only on the day on which the press conference was held by Zahira after going to Vadodara. It was after the retrial had started.

642. Sahera [P.W.35], though knows Atul Mistry to be her Advocate, claims that she has never met him. What is interesting is that Sahera was not able to state what was the necessity for her to engage an Advocate. In spite of repeated questions, she was unable to give an answer as to what was the requirement for an Advocate. Advocate Atul Mistry is the one who told Sahera to appear before this Court – at least Sahera states so. The evidence of Sahera [P.W.35] shows that Advocate Atul Mistry had given a vehicle to her by which she and 3 policemen travelled up to Mumbai. Sahera did not pay any money for the petrol, which was already filled in, in the vehicle. She also did not pay any money to the driver.

643. Saherunnisa [P.W.40] speaks of Atul Mistry being her Advocate. Her evidence shows that when she came for giving evidence, she came by the police vehicle and that 3 policemen, one woman police constable and her Advocate also travelled by the same police vehicle.

644. When Sahera was being examined, it was noticed that she had been given police protection. A number of irregularities which were shocking and surprising were noticed in the matter of giving police protection. Curiously, Sahera and these witnesses did not want protection from the Mumbai Police.

645. Sahera was not accompanied by any woman constable. Male police constables had been sent with her, supposedly for her protection, in an irregular manner. No order requiring them to accompany her to Mumbai was produced. Sahera, however, had no complaint or grievance and there was nothing to indicate that she was under any threat or fear, etc.

646. The evidence of Saherunnisa [P.W.40] shows that Advocate Atul Mistry used to do reservations in the lodge, reservation of vehicles and also used to take decisions as to where the witness would be staying, etc. The Government of Maharashtra had made available accommodation to the witnesses in the government guest house but the hostile witnesses preferred to stay at different places with their Advocate. ‘Jan Adhikari’, though helping these witnesses financially, was not giving any money directly to them. The money was being given to Advocate Atul Mistry and the details of the payment were not being disclosed to these witnesses. Saherunnisa was unable to explain what help was being given to them by the ‘Jan Adhikari’. … … …

647. How Zahira met Advocate Atul Mistry is an interesting story. When Zahira and others went to Vadodara by car after the commencement of the retrial, she and Nafitulla met Atul Mistry in the Court. When she went to the Court of Vadodara and told one Advocate that she wanted to engage an Advocate, that Advocate pointed out to Advocate Atul Mistry and said that they [Zahira and Nafitulla] should talk to him. Zahira had never met Advocate Atul Mistry at any time prior to that and she asked the first mentioned Advocate whether he would take up her case. According to Zahira, the Advocate previously contacted by her in the Court told her by pointing out towards Advocate Atul Mistry ‘woh wale vakil ke paas jao’. According to Zahira, she herself found out Advocate Atul Mistry by going to the Court and nobody recommended or introduced him to her. This is the cock and bull story, which the Court is expected to believe. According to Zahira, they narrated things to Advocate Atul Mistry and he wrote them down and prepared an affidavit. That then Zahira demanded help from ‘Jan Adhikari’. Interestingly, Nafitulla [P.W.31] says that he met Advocate Atul Mistry at the time of the press conference and not in the Court as spoken by Zahira. Nafitulla categorically states that he had met him only on the day on which the press conference was held. Zahira’s evidence, on the contrary, says that she first met Atul Mistry and then she approached ‘Jan Adhikari’, and it is thereafter that a press conference was held. According to Zahira, it was about 5 to 6 days prior to the holding of the press conference. According to Zahira also, ‘Jan Adhikari’ is a person by name ‘Tushar Vyas’. Coming to the payment of fees, Zahira states that she has not paid any fees to any of her Advocates, including Atul Mistry. Advocate Atul Mistry had even gone along with Zahira to Gandhinagar. The booking of the room where Zahira stayed at Gandhinagar was done by Atul Mistry. Zahira apparently had gone for meeting ‘Mahila Ayog’. There was no occasion to bring ‘Mahila Ayog’ in the picture in this case, as Zahira’s grievances, if any, in respect of this case were not connected with she being a woman and it is difficult to understand what was expected to be done by the ‘Mahila Ayog’. The reason given by Zahira in that regard is that ‘only a woman could understand the difficulties of a woman’; but it is obvious that this statement does not make any sense and has been said by Zahira as tutored. There were no problems of women in this case, requiring cognisance to be taken by ‘Mahila Ayog’.

648. Interestingly, during the evidence, when the question of production of her passbook arose, Zahira said that she would make inquiries with her mother who was in Vadodara at that time, regarding it. When she appeared before the Court on the next day, she did produce the relevant passbook. She said that she had contacted her mother on the telephone. She said that the telephone call was made by her from the mobile telephone of Advocate Atul Mistry. However, on which telephone that call was made, could not be told by her. Zahira was asked as to who gave her the telephone number on which she spoke to her mother, to which she replied that she did not know and she even did not know whether Advocate Atul Mistry knew the telephone number of her mother. Advocate Atul Mistry apparently knew the telephone number on which Zahira’s mother Saherunnisa could be contacted, but who gave him that number, Zahira does not know. Though, according to Zahira, the appointment of Advocate Atul Mistry has nothing to do with the ‘Jan Adhikar Samiti’, she says that she would talk to the persons from ‘Jan Adhikar Samiti’, if required, through Advocate Atul Mistry. However, by people from ‘Jan Adhikari’ she was meaning Tushar Vyas. Apparently, ‘Jan Adhikari’ or ‘Jan Adhikar Samiti’ is treated and understood as one person – Shri Tushar Vyas – by Zahira and other witnesses and it is only when the Special Public Prosecutor would refer to it as ‘Jan Adhikar Samiti’ they would speak of ‘Jan Adhikar Samiti’, otherwise it would be referred to as ‘Jan Adhikari’. Thus, 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 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’.

649. 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. The expenses of travelling not only to Mumbai, but also to Delhi, the expenses of Advocates, are all paid by ‘Jan Adhikari’ or ‘Jan Adhikar Samiti’. The arrangements for the stay of these witnesses in the hotels, not only when they visited the Court but even otherwise have been made by this ‘samiti’ through Advocate Atul Mistry and the entire financial burden is taken by this committee. Why the rent or expenses of the place where these witnesses were staying were being borne by ‘Jan Adhikar Samiti’ cannot be understood as all that Zahira speaks is that she wanted financial assistance from them only for coming to the Court and going back. 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.

650. Since ‘Jan Adhikari’ is not before the Court, I do not wish to make any further observations on this. The version which Zahira is now advancing before the Court has been proved to be false in several respects and barring that the accused are the offenders almost everything has been wrested from her by the learned Spl. P.P.

651. The hostility of Zahira and others is a condition difficult to understand and/or explain. There can be no doubt that they are the victims of the offences in question. There can also be no doubt that Zahira had lodged a report with the police on the basis of which the crime came to be registered. There is also no doubt that Zahira and the others turned hostile during the first trial, but after the acquittal of the accused, complained that they had been forced to speak lies due to threats and pressure. After a retrial was ordered, they again turned hostile. To suppress that they had made allegations in respect of the previous trial, they tried to attribute to Smt. Teesta Setalvad and her organisation several wrongs. They suggested that the persons from their community – i.e. Muslims – were attempting to force them to speak lies during the trial, supposedly for the benefit of their community. In other words, they wanted to show that persons from the Muslim community are interested in causing harm to the accused in the supposed interest of the Muslim community. Their evidence, elaborately discussed above, leaves no manner of doubt that they are lying in several respects and have been tutored. It also appears that they have been given monetary inducement.

652. Saherunnisa’s [P.W.40] evidence discussed above gives me an impression that somehow these witnesses have not felt assured of their safety and security. Having no trust in the society and the system of administration of justice, they probably thought that their interests lie in avoiding confrontation. Apparently, the best bargain, under the circumstances, as thought by them, was to make some monetary gains to make their future life somewhat better. The hostility of these witnesses is a matter which may be of interest to psychologists and sociologists.

653. 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.

_________________________________

656. PI Baria [P.W.72] is the person who has recorded the initial statements of the occurrence witnesses and as such, his evidence is material and relevant in the context of the alleged omissions and contradictions in the statements of the occurrence witnesses. It cannot be helped observing that much of the cross-examination of PI Baria has been rendered rather unnecessary in as much as the points that were intended to be made out from such cross-examination have ultimately been given up during the arguments.

657. A number of shortcomings in the investigation that was carried out by PI Baria have been brought on record. I indeed find that the investigation carried out by PI Baria was unsatisfactory. Baria has not taken charge of the clothes of the injured. Baria has also not taken charge of the coir ropes with which the injured had been tied. According to Smt. Rao, the learned Spl. P.P., these lapses in the investigation have occurred because of the difficult law and order situation. It is submitted by Smt. Rao that considering the law and order situation, as also the number of crimes that were being reported to Panigate Police Station, it was not possible for Baria to coolly and methodically investigate into the matter as he would have done under ordinary circumstances. I have considered the matter. Even after giving due allowance for the difficulties faced by Baria, it is not possible to hold that he carried out the investigation properly. It appears that 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.

658. The learned Advocates for the accused were probably more comfortable in questioning PI Baria in the cross-examination, than PI Kanani, as otherwise, the aspects which actually Kanani was competent to deal with, would not have been put to Baria. For instance, the Accused No. 2 has been arrested on the basis that he is ‘Mahendra Langdo’ [who was believed to be involved in the incident]. According to the Advocates for the accused, he is not lame – i.e. Langdo –and that there is another ‘Mahendra Langdo’ in that locality. Baria was questioned in the cross-examination as to whether the Accused No. 2 was Langdo and Baria readily admitted that he did not consider the Accused No. 2 as Langdo. Interestingly, it is not Baria who has arrested Accused No. 2 as ‘Mahendra Langdo’. It is PI Kanani [P.W.74] who has arrested him as ‘Mahendra Langdo’. Since a ‘Mahendra Langdo’ was to be arrested and since PI Kanani arrested Accused No. 2 as Mahendra Langdo, it would have been more appropriate to make the demonstration that was made before Baria making Accused No. 2 walk, hop, jump, etc., before PI Kanani and to invite Kanani’s comments on that. The procedure, as adopted by Shri Adhik Shirodkar, the learned Senior Advocate, has led to this result – viz. Baria who never claimed that Accused No. 2 is Langdo, is made to admit that he is not Langdo, but Kanani who arrested him on the basis that he is Mahendra Langdo, is not asked whether the Accused No. 2 was Langdo.

659. The evidence of PI Kanani [P.W.74] in the context of the details of investigation, have already been discussed. Further, his evidence would need discussion in the context of specific contentions urged by the learned Advocates for the accused. I shall, therefore, make only a general comment on the evidence of PI Kanani here. PI Kanani’s evidence has been much criticised by the learned Advocates for the accused. PI Kanani has been termed as ‘dishonest’, ‘liar’, ‘an arrogant liar’ and ‘deceitful’. It is urged that comments on Kanani’s evidence should be made by the Court while recording the Judgement and it would be essential to pass strictures against him. In my opinion, the criticism of PI Kanani’s evidence is absolutely unjustified, unwarranted and uncalled for. On the contrary, the lengthy cross-examination of PI Kanani [the notes of which run into more than 450 typewritten pages] does not seem to be very fair. Several improper questions were put to PI Kanani and he was unnecessarily grilled over matters which are basically in nature of the arguments. PI Kanani was, during his cross-examination, frequently asked questions, inviting his opinion about the effect of the evidence given by the witnesses and in some cases also regarding the effect of the evidence given by himself. Questions were frequently asked to him, so as to initiate a discussion on the merits of the case and the legal issues involved, obviously with the idea of benefiting by such discussion between him and the cross-examiner. The grievance about the arrogance of PI Kanani also does not seem to be justified. It is the form of the questions put to him that has sometimes forced him to volunteer certain matter and to show how the question is misleading, or how the basic supposition therein is wrong. Kanani has refused to meekly submit to the propositions canvassed by cross-examining counsel. It appears to me that it is the feeling of frustration that has resulted in uncalled for criticism of so called attitude of PI Kanani.

660. The cross-examination is full of improper and unfair questioning, but I propose to give only a few illustrations thereof here.

661. Because Kanani stated in his examination-in-chief that he was called in the Court at Vadodara during the previous trial only on 20/06/2003 – i.e. the date on which his evidence was recorded – thinking that this would show that in the previous trial, his assistance was not available to the Public Prosecutor in charge of that trial, and disliking it, Kanani has been questioned in the cross-examination as to ‘whether he was told by anyone not to come to the Court at Vadodara during the trial’. This question is absolutely improper. That nobody had given information of the trial to Kanani; and that he had not received any summons; and that he attended the Court only on the date on which his evidence was recorded is not challenged, but the suggestion is that he could have very well attended the Court earlier, ‘because he was not told by anyone not to come to the Court’. Such a suggestion is absurd. It cannot be expected that a police officer posted in Ahmedabad would or should simply leave his duties and come to Vadodara during the trial because ‘he was not told by anyone not to come to the Court’. The question of his going would arise if he is told by his superiors or connected officers with the trial to go to the Court. An official witness cannot be expected to attend the Court simply because nobody had told him not to come. This has been discussed as it shows an improper attitude in the cross-examination.

662. Kanani has been questioned during the cross-examination as to whether he knew why the case was transferred and what directions were given by the Supreme Court of India while ordering retrial. Kanani has replied that he had not read the judgement of the Supreme Court and as such, he did not have detailed information regarding it, but that he had some knowledge about it. Interestingly, what knowledge he had, has not been asked and the matter has been dropped there itself by the cross-examiner.

663. PI Kanani has been extensively questioned in the cross-examination regarding his action or reaction pursuant to the retrial ordered by the Supreme Court. The questioning is done on the basis that the cases are ordered to be retried because of some lacuna or mistake in the investigation. There is no basis for such assumption; but by assuming this, a number of questions have been put. Kanani was asked whether he asked his superior officers or the Legal Department of the State as to what went wrong and what was lacking in the investigation that was carried out by him, so as to require a retrial. This type of questioning, which is based on the assumption that retrials are ordered because of defects in investigation and the orders of acquittal are passed on the basis of investigation, is not proper. Cases are not decided on the investigation or supposed lacuna in investigation, but on the basis of sufficiency or otherwise of the evidence. The supposition or expectation of Shri Shirodkar, as implicit in the questions, that Kanani should go on inquiring and seeking opinion from his superior officers and the Legal Department, as to ‘what had been lacking in the investigation’ is ridiculous. When Kanani said that he did not do so, he was then again grilled as to why he did not do it; but in all this questioning, 3 things are presumed.

i] Acquittals take place [only] because of defect in investigation.

ii] Retrials are ordered [only] if the investigation is faulty.

iii] That Kanani had formed and should have formed an opinion that the retrial had been ordered because of some lacuna in investigation.

664. All this is so absurd that it does not require any further comment. In any case, Kanani has stated, when specifically questioned about the reason for not asking the Special Public Prosecutors as to what was the defect in the investigation, that there was no defect at all in the investigation. Even thereafter, Kanani was questioned as follows:

Did you, on your own, ask the Spl. P.P. that the investigation was proper; and that there was no defect in it; and that still, why the case had been transferred?

Here, again, it is assumed that the case could be transferred only if the investigation was not proper and defective. Kanani has answered that he had some knowledge as to why the case had been transferred. Now, instead of asking what was the knowledge, the subject is given up and no reasons, as known to Kanani regarding the transfer of the case, have been sought from him.

665. Kanani was wrongly asked a question as to whether he carried out further investigation after said judgement was delivered to the Supreme Court. When he said ‘no’, it was put to him that it was because he believed that whatever investigation had been carried out, was proper and sufficient; and that there was no necessity of any further investigation and he was asked to state whether it was correct or not. Kanani has given a simple explanation of the fact – viz. that he had been transferred to Vadodara on 01/12; and that therefore, the investigation of the case was not with him at all when retrial was ordered. Kanani has also rightly pointed out that in such matters, a decision would be taken by the superior officers and not by the Investigating Officer. The matter had gone to the Supreme Court of India where the State of Gujarat was a party and highest police officers of the State had appeared before the Supreme Court before it passed the order of retrial outside the State of Gujarat. It was impossible under the circumstances that PI Kanani would abruptly start investigation again, as soon as he would hear about the Supreme Court of India verdict, though he was not posted at the concerned Police Station, had no case papers with him and though he had not been told to do so, but questions based on such supposition have indeed been asked.

666. The questioning of PI Kanani in the cross-examination with respect to the F.I.R. is a model of improper and unfair questioning. Many of the questions could have been disallowed, but in view of the claim that the Court would be satisfied about the relevancy and the propriety of the questions which could not be disclosed at that stage to avoid arguments, many doubtful questions were permitted. Moreover, PI Kanani was an experienced Investigating Officer and as such, an experienced witness who appeared to be capable of giving proper replies to such questions, which factor was also weighed in favour of permitting the questions. PI Kanani was asked as to whether the FIR is the information, in respect of the commission of a cognisable offence, which is first in point of time, to which he agreed. Now, this being a legal question, need not have been asked, particularly when the position is not correctly put. All the legal aspects to make it F.I.R. were not included in the question. Questions touching the rules of evidence regarding burden of proof were asked to him. He was asked that the burden of establishing that a particular information was first in point of time, was on the prosecution only. Since Kanani had earlier stated in reply to the question as to why he did not investigate into the aspect of ‘establishing the date and time of the lodging of the FIR’, that he did not imagine that Zahira would turn hostile again, he was asked whether he agreed that ‘that it was the ‘first information’, was required to be established by the prosecution only; and that it would be immaterial whether the first informant would turn hostile or not’. Kanani has accepted this as correct. All this is shocking, wrong and improper. That it is required to be established by the prosecution, does not mean that it is not required to be established through any witnesses. In fact, there is no other way for the prosecution, than to establish a fact relied upon by them, through their witnesses. Kanani has properly answered that had Zahira not turned hostile, the prosecution could have established the date and time of the lodging of the FIR, through her evidence. In spite of such clear answer, the matter is not given up and it was put to PI Kanani that he wanted to claim that the burden of establishing the date and time of the lodging of the FIR, which was on the prosecution, was thrown upon Zahira by him. Kanani has naturally denied the suggestion, but the suggestion is absurd. It is difficult to understand what is the concept on the part of the cross-examiner as to how the prosecution is to discharge its burden. The concept of the cross-examiner as apparent from this type of questioning seems to be that the prosecution has to discharge the burden on it without the evidence of any witnesses; and that discharging the burden on it, does not include discharging the same by examining a witness for the prosecution. All this is so absurd that it does not deserve any further comment from the Court.

… … …

670. It is submitted by Shri Shirodkar that the reasons why the Supreme Court of India transferred the case here while ordering a retrial, are entirely irrelevant so far as proving the charges against the accused is concerned. There can be no doubt about the correctness of this proposition. However, a number of contentions have been vehemently advanced during the course of arguments, which involve comparison of the evidence of the witnesses in the previous trial and the present one. The explanation of the concerned witnesses in that regard are also required to be taken into consideration. Contentions have been advanced that a fraud was played upon the Supreme Court of India in securing an order of retrial. It has been contended that everybody is acting under fear of the persons at whose instance the retrial came to be ordered; and that it is due to fear of those persons and of the Supreme Court of India, witnesses are deposing in favour of the prosecution. If it is expected of the Court that the evidence should be appreciated in the ‘background’ of certain alleged facts, then a scrutiny of whether the ‘background’ projected and alleged facts really exist, cannot be avoided. Why a retrial was ordered is certainly not, per se, relevant. Relevancy is governed by the provisions of the Evidence Act. If some issues become relevant in this case, then they cannot be overlooked only because they touch some aspects of the previous trial, order of retrial, reasons for the hostility of the witnesses, etc.

671. The questions posed by Shri Shirodkar, the learned Senior Advocate, as to ‘whether the exercise of examining the hostile witnesses at length was undertaken to prove the guilt of the accused, or whether it was undertaken to salvage the image of Smt. Teesta Setalvad and her organisation’, or ‘whether it was an attempt to convince the Supreme Court of India that it was not misled by Smt. Teesta Setalvad in transferring the trial from Gujarat to Maharashtra’, etc., etc., are not very proper. In particular, the supposition – implicit in the question posed – that the Supreme Court of India had started doubting the correctness of its order and was therefore required to be convinced about the correctness of the same, is objectionable. Even in the arguments, it is mentioned that the accused are made sacrificial pawns in a game of ‘one-upmanship’ undertaken by Smt. Teesta Setalvad [page 5 of the written arguments (Ex.521/A)]. Therefore, examination of the correctness of these contentions cannot be avoided. At any rate, the relevancy thereof has been projected by the defence only.

672. It is contended that though there have been consistent improvements in the evidence of the witnesses who have supported the prosecution, ‘no one has cared to ask even one question about the source of their ‘enlightened’ evidence’. It is contended that the failure of the prosecution has thus ‘subverted and perverted the fairness of trial’. This contention is strange. What was expected of the prosecution, according to the Advocates for the accused is difficult to understand. These witnesses have been extensively cross-examined. All possible latitude was given to the learned Advocates in the matter of cross-examination and no attempt was made to curtail the length of the same at any time.

… … …

689. The entire contention of the defence is devoid of any merit whatsoever. First of all, there is absolutely no basis in stating that the witnesses could not have seen the mob, or the persons in the mob, from the terrace. How the view or the vision will be affected by being on the terrace is not indicated. There is also no basis whatsoever even for holding that sitting on the cot or ‘charpaee’ in front of the bakery would afford a better view of the mob of rioters than the view that could be obtained by sitting or being on the terrace of the said building. This very supposition, which is the basis of the argument, is unfounded. In fact, the witnesses would be able to see more from the terrace rather than by sitting on a cot/’charpaee’ in front of the bakery. The visibility would be certainly more from the terrace, as due to increased height there would be less obstructions and a bigger area would be within view.

… … …

701. I shall now consider one contention emphatically put forward by Shri Shirodkar. According to him, Zahira Shaikh [P.W.41] is not the first informant in the matter at all; and that her statement [Ex.136] is not the ‘first information report’ at all. It is contended that the real ‘first information report’ is the statement [Ex.264] of Raees Khan [P.W.27] recorded by A.S.I. Abhaysinh Patel [P.W.66].

702. It is well settled that the F.I.R. is not a piece of substantive evidence. It is to be used only for corroborating the evidence given by the first informant. Since in this case Zahira Shaikh [P.W.41] has turned hostile, the first information report [Ex.136] cannot be made any use of for corroborating her. According to Shri Shirodkar, the prosecution is "not willing to accept Raees Khan [P.W.27], as the ‘First Informant’, with oblique intention." It is contended that the object of the prosecution is to keep back the statement [Ex.264] of Raees Khan, as that statement affects the case of prosecution adversely. Shri Shirodkar also submitted that showing that Zahira’s statement [Ex.136] is not the real ‘first information report’; and that actually, it is the statement [Ex.264] of Raees Khan that is the F.I.R., is important from the point of view of establishing that the prosecution, from the beginning, has been dishonest; and that the investigation is tainted, which would be relevant for the purpose of appreciating the evidence of the Investigating Officers and even of the other witnesses.

703. The argument advanced by Shri Shirodkar on the issue ‘which is the real F.I.R.’, is two-fold. The first is that the statement [Ex.264] of Raees Khan was recorded prior to the recording of Zahira’s statement, and the other is that the said statement of Raees Khan had all the necessary ingredients to characterise the same as the ‘First Information Report’, as contemplated under Section 154 of the Code.

704. The contention of Shri Shirodkar is that Zahira’s statement [Ex.136] treated as F.I.R. was actually recorded on 04/03/2002 and falsely shown as having been recorded on 02/03/2002. However, according to him, even by assuming that it was indeed recorded and registered as F.I.R. on 02/03/2002 at 15.15 hours, it would still, not be prior to the recording of the statement [Ex.264] of Raees Khan recorded by A.S.I. Abhaysinh Patel [P.W.66].

705. In view of the contentions, it would be appropriate to first consider as to when the statement [Ex.264] of Raees was recorded. The evidence that needs to be examined in this regard is of Raees himself, Abhaysinh [P.W.66] and Dr. Judal [P.W.70].

706. The statement [Ex.264] itself does not show at what time it was recorded.

707. Raees Khan [P.W.27] does not admit having made the statement at all. According to him, on 02/03/2002, police had come to meet him in the hospital; and that the police asked him his name, address, etc., obtained his thumb impression and left. In the cross-examination, Raees Khan has stated that his thumb impression was taken after something was written on that paper by the police. However, when the said document [X-19 for identification, and later on marked as Ex.264] was shown to him and he was questioned about the thumb impression on it, Raees stated that the thumb impression could be his [‘may be mine’]. When questioned specifically, Raees Khan stated that he could not say whether it was the same document on which his thumb impression was taken. Thus, the evidence of Raees Khan neither establishes the identity of the thumb impression on the document [Ex.264], nor the fact that it is a statement made by Raees Khan. According to Raees Khan, at that time, he did not say anything about the incident to the police. Raees has specifically stated that at that time, he was not fully conscious.

708. According to Raees, it took about 1 to 1.1/2 hour for the police coming to him, putting questions to him, writing down on the paper and taking his thumb impression on that paper; and that all this was over by 12.00 noon. This time, as given by Raees Khan, is obviously wrong in my opinion. The evidence shows that till 11.50 a.m., Panigate Police Station had not received any information about Raees Khan and two others being admitted in the S.S.G. Hospital. Anyway, since the evidence of Raees Khan does not indicate that any statement of his, about the incident, was recorded by the police on 02/03/2002, his evidence about obtaining of his thumb impression before 12.00 noon cannot be brought in aid to show the time of recording of the statement [Ex.264] as at 12.00 noon. The evidence of Raees Khan does not lend any support to the theory that the statement [Ex.264] was recorded before Zahira’s statement [Ex.136] was recorded. The evidence of Raees Khan, on the contrary, creates a doubt whether his statement was at all recorded on 02/03/2002.

709. The sequence of events – together with their respective timings – leading to the recording of the statement [Ex.264] of Raees Khan and the respective timings, is either undisputed, or is sufficiently proved. Raees and others were admitted in Hospital. Vardi in that regard was received at Panigate Police Station at 11.50 a.m. Then a memo/note [Ex.263] was written by PSO Manharbhai [P.W.68] and given to Abhaysinh [P.W.66] requiring him to go to the hospital and investigate. Abhaysinh then went to S.S.G. Hospital. He wrote a communication [Ex.262] addressed to the Medical Officer on duty seeking to know whether any of the injured was, or were, in a condition to make a statement. Abhaysinh gave the communication [Ex.262] to the doctor at about 1.00 p.m. to 1.30 p.m. Thereafter, Dr. Judal [P.W.71] made an endorsement [Ex.262/1] on the communication [Ex.262]. In view of the endorsement that patient was not fit, Abhaysinh waited there for some time. After about 35 to 40 minutes, Raees became somewhat conscious when Abhaysinh recorded his statement.

710. After considering all the relevant evidence, it cannot be doubted that the statement of Raees Khan, if at all indeed recorded, could not have been before 3.15 p.m. Dr. Judal [P.W.71] is specific about having made the endorsement [Ex.262/1] at 2.00 p.m. The document [Ex.262] shows the time of making the endorsement as 2.00 o’clock. Dr. Judal has been very specific that whenever such endorsements are made, the doctors always put the correct time and date of making such endorsement; and that they had specific instructions from their Head of the Department to that effect. Dr. Judal had categorically stated that in this case also, the same procedure and same instructions were followed by him. This is quite acceptable.

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714. Why then, the Advocates for the accused feel so positive and certain about this aspect – viz. that the statement of Raees Khan was recorded before Zahira’s statement – particularly when this fact is neither borne out from the charge-sheet, nor is attributable to the personal knowledge of any of the accused? It is interesting to note that this contention has been taken up on the basis of the evidence recorded in the previous trial. That this is so is not in dispute.

715. In the trial held at Vadodara, the statement [Ex.264] of Raees Khan was, by consent, marked and exhibited [as Ex.180], curiously, without examining Raees Khan as a witness. In order to establish that the statement [Ex.264] was recorded before 3.15 p.m., the deposition of Abhaysinh Patel [P.W.66], as recorded during the earlier trial, has been tendered in evidence and has been marked as Ex.265. The following statements made by Abhaysinh Patel in his deposition recorded in the previous trial have been brought on record:

"It is true that till I returned to the police station with the statement marked exhibit 180, Police Inspector Shri Baria had not come to S.S.G. Hospital." [Portion marked as A/131]. When I went to the police station with the statement marked Ex.180, I learnt from P.S.O. that no offence is yet registered in this respect." [Portion marked as A/127].

Thus, the claim of the statement of Raees Khan having been recorded prior to Zahira’s, has been made only on the basis of the above statements of Abhaysinh, as found in his deposition before the Sessions Court at Vadodara, in the previous trial. Abhaysinh has denied having made these statements. When confronted with the statement in portion marked A/131 [reproduced earlier], he stated that this portion was not correctly recorded. As regards the portion A/127 also, Abhaysinh has stated that he never stated so. Abhaysinh also stated that his deposition recorded in the Court at Vadodara was not read over to him. Abhaysinh was then contradicted on that aspect also by pointing out the endorsement made by the Court [portion A/125] on the record of his deposition in the said trial which reads as under:

Abhaysinh disputed the correctness of this endorsement also. A question, much to the embarrassment of Abhaysinh, was put in his cross-examination as to ‘whether he meant that the Judge had falsely recorded the portion marked A/127’, to which Abhaysinh replied as ‘that I cannot say’.

716. Thus, Abhaysinh has denied the fact of having made these statements [portions marked A/131 and A/125] and also truth of the facts conveyed by these statements. There is a presumption that all judicial acts are regularly performed. Since the authenticity of the record of the trial held at Vadodara is not in dispute, the fact that Abhaysinh did not state so before the Court of Vadodara, cannot be accepted. Though the bare denial of Abhaysinh cannot be accepted and it is to be held that Abhaysinh did make the said statements before the Court at Vadodara, the crucial aspect of the matter is ‘whether the said statements are true’.

717. The evidential value of these statements should be considered here. In my opinion, the legal position that these statements being previous inconsistent statements made by Abhaysinh, only constitute a ground for disbelieving his present testimony; and that they are certainly not the evidence of the facts which are stated therein, cannot be doubted. It is one thing to hold that Abhaysinh is not to be believed or trusted as regards the time of recoding the statement of Raees Khan, as given by him in his testimony before this Court, in view of the said statements made by him during the previous trial, but it is quite another to treat those statements, which he now repudiates, as a substitute for his present testimony. In view of this legal position, the only question that remains is whether Abhaysinh could be trusted as regards the time of recording the statement of Raees Khan so as to hold his testimony before the Court as true, in spite of the said previous statements made by him.

718. The aforesaid discussion and the record of various entries contemporaneously made, leaves no manner of doubt that the statement [Ex.264] of Raees could not have been recorded before 2.45 p.m., by which time, Zahira’s statement [Ex.136] was already recorded, according to PI Baria. Assuming Abhaysinh had given evidence in the Court at Vadodara suggesting that the statement of Raees was recorded much prior to 3.15 p.m., then all that can be said is that it is proved to be factually wrong and incorrect. As such, this does not establish the contention of the learned Advocates for the accused.

719. In view of all this, I only briefly mention a flaw in the contention that the statement of Raees is the F.I.R. It would not have been F.I.R. even if it would have been recorded prior to the statement [Ex.136] of Zahira. It is because one of the requirements for any information to be the F.I.R. is that such information should be given to the Officer In-Charge of the police station. Abhaysinh was not the ‘Officer In-Charge’ of the police station. This is mentioned just by the way because in any case, I am of the opinion that the statement [Ex.264] of Raees, if at all recorded, was certainly not recorded before recording Zahira’s statement [Ex.136].

720. However, it has also been contended by Shri Shirodkar that Zahira’s statement [Ex.136] was not recorded at all on 02/03/2002; and that actually, it was recorded on 04/03/2002.

721. The basis for such a claim is only that a copy of the F.I.R. was received by the Magistrate on 05/03/2002. Interestingly, the fact that a copy of the F.I.R. received by the Magistrate only on 05/03/2002, is not borne out from any record or evidence adduced in this case, but it was based on an admission made by PI Kanani [P.W.74] in the previous trial. Even the said admission was based not on Kanani’s personal knowledge, but on the basis of a document shown to him while in witness box. What was that document, cannot be ascertained from the record. Anyway, it is on the basis of the admission of PI Kanani, obtained in this manner in the previous trial, PI Kanani was made to admit this fact in the present trial also. This admission is the only evidence to show that a copy of the FIR was received by the Magistrate on 05/03/2002.

722. It may be observed that the question of time and date of recording of the F.I.R. assumes importance in many cases for the purpose of appreciating the evidence. If it is established that the F.I.R. had been lodged immediately after the occurrence, it strengthens the case of the prosecution showing that the information contained in it was available immediately and thereby reduces the possibility of concoction, fabrication, etc. When the time of lodging of the First Information Report would be in dispute, the issue as to when a copy of the same was received by the Magistrate under Section 157 of the Code assumes importance. Under Section 157 of the Code, an Inspector In-Charge of a police station is required to forward a report [commonly called as ‘occurrence report’] to the concerned Magistrate forthwith. It is common knowledge that usually the report is sent in the form of a copy of the F.I.R. as it gives all the necessary details to the Magistrate. The delay in sending a report to the Magistrate is relevant for ascertaining whether the F.I.R. had indeed been lodged at the time when it is claimed to have been lodged.

723. A number of authoritative pronouncements of the Supreme Court of India and of the High Court have been cited on the effect of delay in sending the F.I.R. to the Magistrate, by the learned Spl. P.P., as also by the learned Advocates for the accused. It is not necessary to make any reference to the authorities as the legal position is well settled. The delay in sending the F.I.R. to the Magistrate may create a doubt in the mind of the Court whether the time of lodging the F.I.R. as claimed is indeed correct. In such cases, the possibility of the F.I.R. having been lodged subsequently or having been tampered with is required to be kept in mind. However, it cannot even remotely be suggested that the time of lodging the F.I.R. has to be proved only from the fact of the time of its receipt by the Magistrate, though being an external check of an authentic nature, it would assume importance. All that can be said is that receipt of the copy of the F.I.R. by a Magistrate is a surer way of establishing that by that time, the F.I.R. had already been lodged.

724. In the instant case, it is not in dispute at all that the police had come to the scene of offence itself and in fact, that is how the incident ended. The victims – including Zahira – were with the police on the spot itself and even thereafter in the hospital. The suggestion that no F.I.R. was lodged at that time is too ridiculous to be taken seriously. It is a different matter to contend that the previous document had been fraudulently altered or suppressed, but it is quite another to say that no F.I.R. had been lodged at all till 05/03/2002. In this case, the evidence of PI Baria [P.W.72] and Head Constable Jagdishbhai Choudhary [P.W.70] is fully corroborated by the entries [Ex.278] made in the station house diary. In the circumstances of the case, when the victims were with the police and the police had taken cognisance of the happening of such an incident that they would omit to record the F.I.R. is something which is unacceptable. The entries in the station house diary do have continuity and even if one would want to manipulate the same, the manipulation that would be possible can only be limited. A statement recorded on 04/03/2002 cannot be certainly shown as having recorded on 02/03/2002.

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727. Coming to the point, so far as the present case is concerned, the delay in receipt of the F.I.R. by the Magistrate is satisfactorily explained. I avoid discussion on the lengthy cross-examination of PI Kanani on this aspect, which is proved to be irrelevant. It may only be observed that PI Kanani has given fitting replies to various uncalled for questions and his cross-examination on that point has failed to establish that the delay in receipt of F.I.R. by the Magistrate was due to the fact that it had been sent late; and that late sending was because, earlier, it was not in existence at all. The evidence of PI Baria [P.W.72] clearly establishes that the duty Constable had gone to the Magistrate on 03/03/2002 and at that time, he had taken the copy of the F.I.R. to the Magistrate. PI Baria has said that due to the riots that were going on in Vadodara, Curfew was in force, the Courts were closed and all the arrested accused in Vadodara city were being produced before a single Magistrate who was by being at the circuit house, receiving all the correspondence addressed to all the Magistrates. In the situation that was prevailing at the material time, the normal working of the Court or Magistrate was certainly affected as clearly stated by PI Baria and therefore, if the acknowledgement shows date 05/03/2002 as date of receipt of the F.I.R., it does not necessarily follow therefrom that it had been sent to the Magistrate on the same day. In any case, there is much other evidence to show that the F.I.R. had been lodged on 02/03/2002 itself and the copies of the same were sent to superior police officers.

728. I have no hesitation to conclude that the contention that the F.I.R. [EX.136] was recorded only on 04/03/2002 has no substance at all. The evidence about its time and date is convincing and reliable. It cannot be overlooked that the police having visited the scene of the offence and having come in contact with the victims, having admitted the injured in the hospital, having drawn inquest panchanamas in respect of dead bodies, could not have afforded not to record the F.I.R. Further, that the statement of Raees is the actual F.I.R. and that it was being suppressed, is also without any substance. It may be observed that if the entire thing was to be manipulated, as suggested by the learned Advocates for the accused, the information in Ex.136 could have been incorporated in the statement of Raees also. It is not as if only by lending the name of Zahira to a concocted and manufactured statement that the investigating agency could succeed in their alleged wicked design of implicating the accused. It could be done by projecting somebody else – Raees also – as the first informant. The whole contention based on the alleged attempt of the prosecution to suppress the statement of Raees is unsound. The question is, if it was to be suppressed, why was it included in the charge-sheet? In fact, it appears to me that the statement of Raees is probably not a genuine record at all. I shall now discuss the reasons for holding this view, one by one.

a] After going to S.S.G. Hospital, Abhaysinh [P.W.66] gave the communication [Ex.262] in order to let him know whether the injured were in a position to give statement or not [the discrepancy in the name of Raees who has been referred to as ‘Rafiq’ in this communication is immaterial and the identity is established from the E.P.R. number. In fact, no dispute on this has been raised.]. Dr. Judal [P.W.71] made endorsement [Ex.262/a] to the effect that ‘patient is not fit to give DD at present’. This endorsement was made at 2.00 p.m. According to Abhaysinh, after having waited in the hospital for sometime, he recorded the statement of Raees as by that time, he had become ‘somewhat’ conscious. The plausibility of this version needs to be examined. It does not seem likely that Abhaysinh would record a statement of Raees without again consulting the doctor. He had an endorsement with him to the effect that the patient was not fit and if in spite of such endorsement, he would record the statement of the same person without again referring the matter back to the doctor, the value of the statement would be open to challenge. This Abhaysinh would be expected to know.

b] This is particularly so because the document [Ex.262] itself shows that the Medical Officer was requested ‘to kindly inform the police station on telephone as and when the patients would be in a condition to give statement’. Thus, the intention of Abhaysinh is clear. He wants to record the statement of the patient only after he would be certified to be fit for that purpose. He wants the doctor to inform the police station as soon as the concerned persons would be in a condition to give the statements. This portion [A/128] in Ex.262 was specifically put to Abhaysinh in the cross-examination and he admitted that as per the said portion, his expectation was that the doctor should inform when any of the said persons injured would be in a position to make a statement, by telephoning to the Panigate Police Station. When this was the position, it is difficult to accept that Abhaysinh would thereafter record the statement on his own, without waiting for the medical opinion. In fact, the portion A/128 is indicative of Abhaysinh’s intention not to wait any longer at the Hospital.

c] A further doubt is felt because of the failure of Abhaysinh to obtain an endorsement from the doctor even after recording the statement [Ex.264]. It was possible for him to contact Dr. Judal or any other doctor after he had recorded the statement [Ex.264] of Raees and get confirmation from the doctor of his being conscious and fit to make the statement at that point of time.

d] The contents of the statement [Ex.264] also make me doubt the authenticity and genuineness thereof.

The statement shows that Raees told Abhaysinh that ‘they were brought to government hospital turn by turn’. He is supposed to have further stated, "presently, I am in D/4 ward and Cot No. 12 for medical treatment and presently, I am under medical treatment and I am in fully conscious state’. In the condition in which Raees was at that time, it is difficult to believe that he would know and give the details of the ward number, cot number, etc. Raees, admittedly, has not been able to give the names of his colleagues. The other two persons who are mentioned in the relevant vardi are Sailun [E.P.R.No.1717] and Ramesh @ Raju [E.P.R.No.1718]. The vardi that was received by Rameshbhai [P.W.16] from Dr. Meena Robin [P.W.46] shows that only the name of Raees was ascertained [though wrongly described as ‘Rafiq’] and the other two whose names were not revealed at that time. They were described as ‘unknown’. In other words, Raees had not been able to give their names. That the person who could not give the names of his colleagues would be able to give the ward number and cot number is difficult to believe.

e] According to Abhaysinh [P.W.66], the statement [Ex.264] of Raees and the communication [Ex.262] to the Medical Officer was handed over by him to PI Baria on 10/03/2002 along with the hospital vardi [Ex.263]. In the cross-examination, it has been brought on record that the endorsement [Ex.263/1] which is in respect of handing over the documents, does not speak of the statement [Ex.264] of Raees and the communication [Ex.262] to the Medical Officer also being returned along with the document [Ex.263]. What the endorsement shows is that only the document [Ex.263] was being returned. According to Abhaysinh, he handed over all the papers together but while writing, a mention of the other documents remained to be made. Thus, the entry does now show that the statement of Raees and the communication to Medical Officer containing his endorsement was also returned to the police station on 10/03/2002. This has been brought on record by the defence. However, what they expect to be inferred from this is not the same that I think to be the proper inference. According to Mr. Shirodkar, since the endorsement [Ex.263/1], which is dated 10/03/2002, does not show the statement of Raees and the communication of doctor also being returned along with the document [Ex.263] the documents [Ex.262 and Ex.264] must have already been handed over to the police station on 02/03/2002. I am unable to come to such a conclusion. If the endorsement [Ex.263/1] does not show that the statement [Ex.264] of Raees and the communication [Ex.262] to doctor were being returned on 10/03/2002, the inference may be that they were not being returned along with the document [Ex.263]; but the inference will not be that they had been returned on 02/03/2002 itself. It does not seem likely that Abhaysinh would preserve the document [Ex.263] which contained a direction to him to go and investigate, but would not preserve the documents which came in existence pursuant to the said direction given to him. It is on the basis of direction contained in Ex.263 that he goes to the hospital, communicates with the doctor, obtains endorsement of the doctor, records statement of Raees and then hands over simply the statement of Raees and the communication of doctor to the P.S.O. on 02/03/2002 while preserving with him the document containing direction to him, is difficult to accept. As a matter of fact, without the document Ex.263 it would be difficult to understand what the documents Ex.262 and Ex.263 are. In what connection, the statement Ex.264 had been recorded could not be understood at all without the document [Ex.263] and therefore, he would only hand over Ex.262 and Ex.264 to the P.S.O., on 02/03/2002 and would retain with him Ex.263, cannot be accepted. In my opinion, in all probability, the statement of Raees was not in existence at all and all that Abhaysinh had done was to secure his thumb impression so that in case of his death, it could be used as a dying declaration. This is clear from his evidence whereby he expected to record a dying declaration. Thus, I do agree that the statement of Raees was probably not returned to PI Baria on 10/03/2002, but I refuse to draw an inference therefrom that it had already been returned on 02/03/2002.

This view is strengthened by the fact that the condition of Raees does not appear to be such that his statement could be recorded. At 2 o’clock, Dr. Judal had declared him to be unfit. In his evidence, PI Baria [P.W.72] has also stated that on 02/03/2002, he could not record the statements of any of the injured as none of them were in a position to make a statement. PI Baria had categorically stated that he went to D/4 ward but none of the injured was in a condition to make any statement [page 2244 of the N.O.E.]. This is consistent with the evidence of Dr. Judal. Under these circumstances, for a short while, Raees became alright so that Abhaysinh could record his statement, is difficult to believe.

729. My conclusions, as a result of a careful consideration of the contentions and analysis of the evidence in that regard, are as follows:

i] There is no substance in the contention that the statement [Ex.264] of Raees was recorded before recording the statement [Ex.136] of Zahira.

ii] The statement of Zahira had been recorded on 02/03/2002 itself and there is no substance in the contention that the statement of Zahira had been recorded on 04/03/2002. The basis for this contention is only the receipt of the occurrence report by the Magistrate on 05/03/2002, and the evidence regarding the date of receipt is only Kanani’s admission to that effect, which again is based on his admission made during previous trial. The admission during the previous trial was based not on Kanani’s knowledge of the fact admitted, but on the basis of some document [not marked] shown to him while in the witness box.

iii] The contention that the prosecution was deliberately not bringing forward the statement of Raees as the F.I.R. is also without any substance.

iv] On the contrary, the statement [Ex.264] of Raees appears to be not a true or genuine record at all. It had probably not been recorded at all on 02/03/2002 and in any case, Raees was not in a condition to make a proper statement on 02/03/2002.

v] There was no intention on the part of the investigating agency to ‘suppress’ the statement of Raees in as much as they have included the same in the charge-sheet.

vi] Zahira having turned hostile, there was not much to be bothered for the learned Advocates for the accused whether her statement was made first or statement of Raees was made first. This contention appears to have been taken and stretched to an extraordinary length because of the need felt to support the theory of Zahira not having complained at all, Zahira not having expressed any grievance about the trial at all and Zahira not having sought any retrial at all.

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732. What cannot be lost sight of is the fact that it was not necessary for the investigating agency to have falsely projected Zahira as the first informant. The contention is that the FIR which gives the names of some of the accused as the offenders is concocted and is a creation of PI Baria. This contention is one of those, which, when tested by ordinary experience and intelligence appear so improbable that they are to be forthwith rejected. If PI Baria wanted to do all this manipulation, why could he not insert the same matter in the statement [Ex.264] of Raees, is something about which no comments are offered by the learned Advocates for the accused. An examination of the evidence has revealed how the contention about Raees being the first informant and the prosecution dishonestly suppressing the real F.I.R. to make Zahira the first informant, is imaginary and baseless. In fact, the truth appears to be that a concocted and bogus statement of Raees was inserted in the charge-sheet, which was definitely not done for falsely implicating the accused.

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733. It is submitted that the identity of the unlawful assembly as the same that was in the night and in the morning, is not established. According to him (Shri Jambaulikar, Advocate for Accused Nos. 1 to 5, 10, 11 and 12), since when the police came in the night the mob fled away and gathered again after the police went, there were two separate unlawful assemblies. It is submitted that the ‘object’ of the unlawful assembly has to be determined with respect to each such assembly that was formed during the period from the night to morning.

734. The contention of there being different assemblies in the night and in the morning is advanced on the basis that ‘there is no evidence to show that every member of the unlawful assembly was continuously present therein from night till morning’. I am not impressed by this contention. Unlawful assembly is defined in Section 141 of the I.P.C. An assembly of five or more persons actuated by and entertaining one or more of the common objects specified by the five clauses of the said section is an unlawful assembly. If the relevant provisions are studied and the object behind the same is grasped, it is clear that the possibility of the composition of the unlawful assembly changing during the period its members commit offences, always exists. It cannot be assumed, while speaking of an unlawful assembly, that at no point of time, its composition would change; and that all the members forming it, would remain the same till it is finally dissolved. It cannot be suggested that even if a single person from an assembly of – say 1,000 to 1,200 persons – changes, there comes into existence another unlawful assembly. The composition of the unlawful assembly might change, but still, the unlawful assembly would be the same, capable of being identified as such. It is the continuity and identity of common object that would determine whether the unlawful assembly is the same or not, and not whether each and every person constituting it was same all the time. In any case, this is rather academic. Every member of an unlawful assembly would be guilty of offences committed in prosecution of the common object of the assembly only if at the time of committing of those offences he would be a member of the same. Thus, I fail to see how the change in the composition of the assembly would make any difference in the penal liability to be fastened on an individual accused, because, for fastening such liability on him, it must be shown that he was a member of the unlawful assembly at the time when the offence in question was committed.

735. In the instant case, there is evidence not only of the supporting witnesses but even of the hostile witnesses, including Smt. Jyotsnaben Bhatt [P.W.43] and Kanchan Mali [P.W.44] – that the mob that assembled in the night never went away. That, it continued to remain there throughout the night till the incident itself terminated by the arrival of the police in the morning. In this case, the common object of the unlawful assembly is not in doubt or dispute at all. The object is made clear by the slogans which they were giving and the acts which they committed. It is also clear from the motive that is behind the offences in question. There is an identity of the object of the unlawful assembly right from the night till the morning. It is not possible to hold that there were different assemblies in the night and in the morning, though it is perfectly possible that the composition of the assembly was not exactly the same and identical throughout the period. In my opinion, even if there would be a number of changes in the composition, still, it is to be treated as a single unlawful assembly by reason of the continuity of its activities and identity of the object. Further, there might be temporary absence of some of its members and in some cases a particular member of the assembly might not be present at all in the morning. As aforesaid, it, however, is immaterial in as much as if an accused is to be held guilty for the offences that were committed in the morning, that he was present in the unlawful assembly at that time, is required to be established. If this is not established, then that accused who was present only in the night and had left the unlawful assembly in the night itself would not be punishable for the offences committed by the members of the unlawful assembly in the morning. The moment a member disassociates from the membership of the unlawful assembly, his responsibility or liability for the acts committed by the unlawful assembly thereafter comes to an end; and therefore, the anxiety or apprehension that an accused would be wrongly held liable for the acts done by the unlawful assembly in the morning, though he himself had left the unlawful assembly in the night itself is uncalled for. Whether a particular accused had left the membership of the unlawful assembly at a particular point, is however a question of fact to be decided, like any other matter, on the basis of evidence in that regard.

736. Interestingly, in this case, the members of the unlawful assembly have committed capital offences, both in the night as well as in the morning. Apart from the fact that Kausarali and Lulla appear to have been murdered in the night, the act of setting on fire a dwelling house occupied by several persons is indicative of an intention – or at least the knowledge – necessary to constitute the offence of murder, in case of death being caused, on account of the fire so set.

737. Another argument – somewhat connected with the earlier argument – is that the object of the unlawful assembly in the night might be only to set fire to the building and not to kill anyone. In support of this, a contention is advanced as ‘why the members of unlawful assembly did not go up and kill the inmates’. The argument is that if the object of the unlawful assembly was to kill, then nothing would have prevented them from going up and killing the inmates, to achieve or accomplish the object. This argument is without any force. An unlawful assembly, though does possess a common and unlawful object, is not necessarily governed by any fixed and planned programme. It does not necessarily have one Commander who takes the decisions, as in the case of a legal force such as police force. The object is common and it is to be accomplished, but the methods are, to a large extent, left to the members concerned, to be decided on the basis of what would happen on the spot. It is in evidence that it was not easy for a large number of persons to enter inside the Best Bakery building at one time. The passage for making entry, which was by the side of the main gate, was, admittedly, narrow. Though the rioters were in a big number, those who would enter from that passage, or any other door or window, certainly ran the risk of being attacked by the inmates. It would be therefore much easier for them to set the entire building on fire for the purpose of achieving the object. Again, it must be remembered that there was no specific object to kill any specific person or specific number of persons; and setting the house on fire was the easiest and most convenient way of causing danger to the inmates with minimum danger to the rioters themselves. It would also additionally cause damage to the property itself and create more terrible impact or fear in the minds of all concerned. The argument that, ‘that they only set the whole building on fire but did not go inside and kill the inmates, shows that the object of the unlawful assembly was not to kill’, is ridiculous. It was a dwelling house and as the evidence shows, the members of the unlawful assembly were clearly aware that a number of persons had been trapped in the house. It is, in spite of this that the whole house was set on fire. Keeping in mind the ingredients of the offence of murder, it cannot be said that the object of the unlawful assembly was not to take away the lives of any persons, but merely to set on fire the building. The weapons possessed by them are also indicative of the object.

738. It also cannot be ignored that communal riots started as a reaction caused by the belief that kaar-sevaks had been burnt to death by Muslims. The riots are said to be a retaliatory action and therefore, there is nothing surprising if method of burning is adopted for killing people.

739. Psychologists have indicated that to burn anyone to death is an easy form of murder. It does not need a weapon and there is no evidence left behind. This is the easiest way to inflict pain and there is no physical contact between the assailant and the victim. The argument advanced by Shri Jambaulikar, is therefore, without any merit.

740. It is next contended the object was not, ‘to kill Muslims’ and that, this is clear from the evidence of Lal Mohammad [P.W.36]. It is contended that the evidence of Lal Mohammad [P.W.36] should be accepted in its entirety, the same being absolutely truthful. It is contended, that if the object was to kill Muslims, how Lal Mohammad [P.W.36] was spared? I am not impressed by this argument either. It is clear from Lal Mohammad’s [P.W.36] own evidence that he did not come in contact with the members of the unlawful assembly, at any rate, while the assembly was committing acts to accomplish its objects. It is not that any individual member of the assembly would instantly kill any Muslim as soon as such Muslim would come in contact with him. It is only when the collective action of the assembly is taking place and where he is supported by numerous other persons, that he would be instigated to commit such acts. It is well recognised that when an individual is a part of the mob he loses his identity and takes on the identity of the mob. This is termed as de-individualisation by psychologists and once this sets in, any person, however mild or aggressive he may be, does what the mob does. This is often witnessed during riots. An individual comes up with the strongest possible expression on such occasions only while in the mob of rioters. As such, nothing turns on the fact that Dinesh, though came in contact with Lal Mohammad and others, did not kill them. Even otherwise, this would be relevant only for determination whether Dinesh – Accused No. 15 – was indeed a member of the unlawful assembly and this aspect will be considered at an appropriate place; but Lal Mohammad’s [P.W.36] evidence cannot be interpreted in a manner so as to suggest that the object of the unlawful assembly was not ‘to kill Muslims’. The absurdity of this contention can be made more clear by addressing the question as to why were the Muslims, then, attacked?