Clean chit to Teesta, Zahira ‘a liar’

In May 2003, a special trial court in Vadodara acquitted all 21 accused in the Best Bakery massacre
after prime eye-witness Zahira Sheikh and others had resiled from the statements earlier made before the Vadodara police, the National Human Rights Commission, the Chief Election Commissioner of India, the Gujarat government- appointed Shah-Nanavati Commission, the Concerned Citizens Tribunal set up by Citizens for Justice and Peace (CJP), other independent human rights groups and the print and electronic media.

In July 2003, Zahira and her family members held a press conference in Mumbai to say that they had lied in the Vadodara court under serious threats but had now decided to appeal before the Supreme Court with the help of CJP for a retrial of the case outside Gujarat.

On April 12, 2004 the Supreme Court passed a historic order directing the transfer and retrial of the Best Bakery case outside Gujarat and under the jurisdiction of the Bombay high court (See Communalism Combat, April-May 2004). Accordingly, the Bombay high court appointed additional sessions judge Abhay Thipsay to conduct the retrial of the Best Bakery case on a day-to-day basis.

On November 3, 2004 a day before she was to appear before the special trial court of Judge Abhay Thipsay, eye-witness Zahira Sheikh held a press conference under police protection in Vadodara. She charged that she had been kidnapped from Vadodara and forcibly taken to Mumbai where CJP’s secretary Teesta Setalvad kept her under illegal confinement. She claimed that she was being forced by Teesta Setalvad and her colleagues to lie before the court of Judge Thipsay.

Two days later Teesta filed a petition before the Supreme Court praying therein to direct an inquiry to be held into the allegations made by Zahira, the circumstances which led her into making the statement, the persons who assisted her in the process, the role of the Vadodara police who were present during the press conference at Vadodara by an independent investigating agency, the CBI.

On January 10, 2005 the Supreme Court directed the Court’s Registrar General to conduct an inquiry with the help of an inspector general of police, Delhi, and report back to the Court:

"(a) if Zahira Habibullah Sheikh was in any manner threatened, coerced, induced and/or in any manner pressurised to depose/make statement(s) in any particular way, by any person or persons, and

(b) if the answer to (a) is in the affirmation, who the person/persons is (or) are."

On February 21, 2005 the apex court issued a further order to the inquiry committee, asking it "to direct Zahira to file an affidavit indicating details of her bank accounts, advances, other deposits, amounts invested in movable or immovable properties and advances or security deposits, if any for the aforesaid purpose, along with the affidavit to be filed before the Registrar General of this Court. She will also indicate the sources of the aforesaid deposits, advances and investments, as the case may be. She shall also indicate the details of such deposits, advances and investments, if any, in respect of her family members and the source thereof".

On August 29, 2005 the Supreme Court released the report submitted by the inquiry committee. Reproduced below are excerpts from the committee’s report.

Ø On Zahira’s claim that the several statements/FIR lodged with the inspector Baria and senior inspector KPP Kanani, Vadodara police in March and April 2002, were not her statements but those of "Teesta’s agents" even though they carry her signature:

"Sh. Baria appears to be an independent and believable witness. Nothing is there on record which can suggest any interest of this officer in writing such a statement/complaint on behalf of Ms. Zahira without stating by her. All the five witnesses denied the allegations of Ms. Zahira and against it only the statement of Ms. Zahira cannot be accepted. Thus, no inducement by tutoring, as alleged is proved’".

Ø On Zahira’s two-page memorandum submitted to the National Human Rights Commission (on March 21, 2002) and the Chief Election Commissioner of India:

"Memorandum is deemed to be admitted by Ms. Zahira… At this final stage, she appears to take this stand by first time that at that time her signatures were obtained on a large number of papers and it may be treated as afterthought. This is also a vague explanation as she has not clarified as to who obtained these signatures of hers and why without any verification she signed this Ex. 37, when such document was to be submitted to very highly placed authorities i.e. Hon’ble Chairperson of NHRC and Chief (Election) Commissioner. She does not say that whether there was inducement, coercion, threat or pressure of any kind so far as this document is concerned. In this view, it cannot be said that there was any inducement, coercion, threat or pressure behind this document".

Ø On Zahira’s statement before the Concerned Citizens’ Tribunal on May 12, 2002:

"The allegations of Ms. Zahira that there was inducement by tutoring by Ms. Teesta and her so-called agents Sh. Mohd. Vora, Sh. Arif Malik and Sh. Munna Malik does not establish so far as this document is concerned".

Ø On Zahira’s affidavit filed before Nanavati Commission on May 20, 2002:

"Ms. Zahira admits the existence of this affidavit dated 20th May, 2002 filed before the Nanavati Commission. Now it is for Ms. Zahira to explain the existence and truthfulness or otherwise of the same. According to the statements made by her in her affidavits and during Inquiry Proceedings, she only puts aforementioned allegations against aforementioned persons and all these persons are examined and they have denied the allegation. Weighing the testimonies put forward by both the parties including the witnesses, the stand taken by Ms. Zahira with regard to this affidavit also is not established or appears not to be true and hence it cannot be accepted that there was any threat/inducement/coercion and pressure in the root of these four documents.

"Ms Zahira in her final statement recorded during Inquiry Proceedings on 6th August, 2005 has admitted that she came into contact with Ms. Teesta for the first time in the first week of July 2003 and before that "there was no influence of Teesta on me or on my family prior to the period I was taken to Mumbai’’… When this fact is admitted by her at this last stage, it cannot be thought even that an unknown person (Ms. Teesta) having no influence during the time when all these four statements came into existence, alleging that Ms. Teesta and her agents – Sh. Mohd. Vora, Sh. Arif Malik and Sh. Munna Malik are responsible for tutoring to give such statements become false".

Ø "As per affidavits dated 3rd November, 2004 and 20th March, 2005 of Ms. Zahira, she stated that she was forcefully taken from Vadodara to Mumbai by Shri Rais Khan, agent of Ms. Teesta, and kept in confinement... (But) in Trial Court, Mumbai, she admitted that she was kept very well by Ms. Teesta and the fact of her being taken forcefully does not find place in the statement before the Trial Court, Mumbai".

Ø "By putting… serious allegations against a very highly placed constitutional authority like NHRC that the statement recorded by the Hon’ble Chairperson himself along with two Hon’ble members of NHRC was substituted with an already prepared statement in Ms. Teesta’s office can not be relied upon and for such a decision I feel no necessity of any corroboration of any kind. However, as one affidavit dated 15th April, 2005 of Sh. Ajit Bharioke, Registrar, NHRC finds place on record and only because of this reason relevant extracts have been inserted in this report. Sh. Ajit Bharioke deposed that he was present there and that the statement was read over in Hindi to Ms. Zahira by him and after that Ms. Zahira signed the statement. At the same time Sh. Ajit Bharioke has categorically denied all the allegations including the allegation of changing the statement, nothing more is required to be discussed on this part.

The second challenge to this statement is that it was tutored by Ms. Teesta and that whatever was tutored Ms. Zahira stated in the same words. The tutoring, pressurising cannot be held as established looking into all the circumstances.

Third allegation of putting the words by Ms. Teesta in the mouth of Ms. Zahira can also not be accepted as the statement was recorded before the Hon’ble members of NHRC, and when the statement itself was translated and dictated by the Hon’ble Chairperson himself. In view of all this, such allegations cannot be accepted".

"(A) Whatever the conversation among the persons is shown in the (Tehelka) VCD is established and it is the true picture of the affairs recorded at the relevant time.

"(B) On perusal of the same it can be said that before Sh. Nisarbapu and Sh. Ashish Khaitan it was said by Sh. Madhoo Srivastava, Sh. Chandrakant Bathu Srivastava and Sh. Shailesh Patel that Rs 18 lacs were given by Sh. Madhoo Srivastava to Ms Zahira for giving statement in Trial Court, Vadodara in a particular manner of their choice and that was against the prosecution and in favour of the accused. The result is known that she refused to identify the accused at the spot of occurrence due to smoke.

"(C) This was also the part of the conversation that for the same purpose, she was paid Rs 2-3 lacs in Sh. Shailesh Patel’s Chamber.

"(D) There was some compromise between the parties.

"(E) The net result of all this is that this conversation between the above named persons can be treated as established".

Ø "It appears… that before and after recording of the statement of Ms. Zahira in Trial Court, Vadodara, at one time on 9th May, 2003 one telephone call was made through the cell phone of Sh. Madhu Srivastava which was received by the cell phone of Sh. Nafitullah and after that at least 10 times calls were made from the telephone of Sh. Nafitullah to the telephone of Sh. Madhu Srivastava and this continued till 2nd July, 2003. It is important on the ground that the statements of Ms. Zahira in the Trial Court, Vadodara were recorded on 17th May, 2003.

"…It can be believed that these telephonic contacts were made during the relevant and material period when the statement of the material witnesses including Zahira’s statement were being recorded by the Trial Court, Vadodara. As per the information received from the various mobile companies as quotes above, the following facts are treated to be proved:

1. that there was some conversation between the person having mobile number 9824326505 and 2653122052 and 9825060542, on the dates and time mentioned in the tables.

2. that cell number 9824326505 was allotted to Sh. Nafitullah and mobile number 2653122052 was allotted to Sh. Bharat Thakkar and mobile 9825060542 was allotted to Sh. Madhu Srivastava. Sh. Madhu Srivastava and Sh. Bharat Thakkar both have admitted their cell phone numbers in their respective statements recorded during the inquiry".

"The fact that threats were given by Sh. Madhu Srivastava and Sh. Bharat Thakkar to Sh. Nafitullah was denied by all the three, in their statements recorded here during the inquiry proceedings. The facts as noted and established in the above para shows that some contacts were made at the time and the dates as mentioned in the above quoted two tables and when this established fact was denied by all the three persons, in such circumstances it can only be presumed that the fact of giving and receiving threats was alleged to be expressed by Ms. Zahira and Sh. K. Kumaraswami was true and their subsequent denial of these two statements is not correct".

"In all these circumstances, it can firmly be said that (there) appears a high probability of money changing hands and that (there) was allurement by which Ms. Zahira was induced for giving a particular statement in Trial Court, Vadodara which was supportive to the defence/accused and against the case of the prosecution".

"Threat is one of the two factors appearing on record which can also be held responsible for material change of stand of Ms. Zahira… In view of the all, as discussed above, the fact which can be accepted, as highly probable, that money has exchanged hands and that was the main inducement responsible which made Ms. Zahira to state in a particular way in Trial Court, Vadodara although threat could have also played a role in reaching at an agreement. However, the element of threat cannot be altogether ruled out. One cannot lose sight of the fact that first contact over cell phone was made by Sh. Madhu Srivastava and Sh. Bharat Thakkar and not by Sh. Nafitullah. The evidence of Sh. Abhishek Kapoor about presence of Sh. Madhu Srivastava, MLA, in the Court at the time of testimony of Ms. Zahira can also be treated as an indication of this factor".

Ø "S.N. Sinha, the (Police) Commissioner of Vadodara at the time of (Zahira Sheikh’s) Press conference dated 3rd November, 2004, was found attending the hearing of this Inquiry on 29th April 2005… Evidence of Ms. Teesta Setalvad was recorded on that date and there was no good reason for his presence during the inquiry proceedings or for him to be officially deputed by the Home department (of Gujarat government) for this hearing".

Ø  "I feel no hesitation to mention that Ms. Zahira is not such a lady who speaks the truth; she has developed an image of a self-condemned liar whose statements alone cannot safely be accepted".

Ø "It can undisputedly be said that the phrase, "To have fruits of heaven out of hell", has now been established synonymous to Ms. Zahira who once earned public sympathy… (She) has made concerted efforts and has engaged herself in having cash/comforts from every possible corner".

Ø "With regard to the fact whether she appeared before Nanavati Commission on 20th March, 2002 to submit her affidavit or not, … earlier to 6th August, 2005, her stand was that she appeared before Nanavati Commission on 20th March, 2002. But all of a sudden on 6th August, 2005 in her statement, she resiled from the earlier stand".

Zahira family "appears rich" after incident

Ø "(T)he receipts and the investments of (Ms. Zahira’s family), part goes very high on a comparative study of the accounts. After the incident it appears that the accounts of the family are rich".

"The balance sheet of investments and receipts (of Ms. Zahira’s family) doesn’t include the daily expenditure, for which it can be presumed that a considerable amount must have been spent in comparison to the regular source of income".