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 acc