April-May 2006 
Year 12    No.115

Best Bakery Judgement


Role of the Police

"It is a feature of this trial that the version of most of the witnesses and reliability of evidence is sought to be challenged mainly by showing it to be in variance with the statements recorded during investigation and/or the statements made during the previous trial. The reliability of the police record of the statement of witnesses is entirely doubtful in this case."

"Kumar Swami (Inspector General of Police, State Intelligence Bureau, State of Gujarat) who was Joint Commissioner of Police, Vadodara, at the material time is proved to be an unreliable witness… Kumar Swami was not interested in actually finding out the truth… Like Kumar Swami, Ramjibhai Jagjibhai Pargi, Assistant Commissioner of Police, Vadodara City – also seems to be interested in getting some matter on record, which is extraneous to the investigation which he was doing."

"It appears that Police Inspector H.G. Baria was not serious about the investigation and did not try to do his best to collect evidence. However, the shortcomings in the investigation have not prejudiced the accused in any manner. The perfunctory manner in which PI Baria carried out the investigation does not appear to have been done with the object of implicating the accused."

No weakness in evidence of eyewitnesses

"The evidence of witnesses who have supported the prosecution (Taufel, Raees, Shehzad, Sailun, Yasmin (sister-in-law of Zahira Shaikh) does not suffer from any weaknesses… The evidence of all these witnesses is consistent and fits in properly with the other evidence in this case, and/or with the facts which are undisputed... The evidence of the police witnesses – viz. PSI B.U. Rathod, DCP Piyush Patel and PI H.G. Baria – also corroborates the version of the supporting occurrence witnesses… It may be kept in mind that none of these witnesses, who are obviously very important witnesses, were examined during the previous trial (in the Vadodara court)."

Unique hostile witnesses

"Hostility is not uncommon in criminal courts… However, I may observe that the hostility of these witnesses (Zahira, her mother, sister and two brothers) in this case is rather unique. An analysis of their evidence leaves no manner of doubt that they are interested not only in denying the connection of the accused persons with the alleged offences, but have tried their best to deny the happening of the incident itself; and where it became impossible, to try to reduce the enormity of the offences."

Clear collusion between accused and Zahira’s family

"There is a clear indication of collusion between the accused or somebody interested in affecting the prosecution case on one hand and Nafitulla and the other hostile witnesses on the other."

Hidden hands and motives at work

"These witnesses (Zahira and family) appear to have turned hostile at the instance of some persons and tutored not with the limited object of ensuring the acquittal of the accused, but for much broader objects. There was an attempt to show through these witnesses that there was a conspiracy of a particular community or of a group of people to make false allegations for getting an order of retrial. All this is required to be exposed… It is my opinion, after going through the entire evidence of Zahira, Saherunnisa and other hostile witnesses that they have fallen in the hands of such people who have made them speak lies, not only with respect to the involvement or otherwise of the accused persons, but with the object of indicating that there was nothing wrong in previous trial; that they never thought of making any prayer for retrial; and that the order of retrial had been falsely obtained by Smt. Teesta Setalvad and her organisation."

No tutoring by Teesta Setalvad

"The initial theory was that Zahira had not made any statements at all. Then the theory – when having made statements could no more be denied – was changed to the effect that statements were made, but on being tutored or pressurised by Smt. Teesta Setalvad. Thereafter, the theory is further changed – because of the realisation that at that point of time Smt. Teesta Setalvad could not be brought into the picture – and the tutoring is attributed to the persons from her community."

"The theory of pressure by Smt. Teesta Setalvad, which was thought to be a solution to all the questions that would crop up in any reasonable mind after Zahira would turn hostile again in the retrial, has, any way, miserably failed. This needs to be further highlighted by pointing out from Zahira’s evidence itself that the claim of Smt. Teesta Setalvad having abducted Zahira, kept her in confinement, etc. is false… Zahira has admitted that Smt. Teesta Setalvad used to treat her very well and behave very well with her. Zahira has categorically stated that she used to maintain and look after Zahira properly."

Role of Atul Mistry and Jan Adhikar Samiti

According to Zahira, she herself found out Advocate Atul Mistry by going to the Court (in Vadodara) and nobody recommended or introduced him to her. This is the cock and bull story which the Court is expected to believe. Advocate Atul Mistry apparently was accompanying Zahira and others everywhere. He used to sit in the Court while the evidence was being recorded and though what legal services he was rendering to them is not clear, the fact that he was doing all other chores for them is clear. He was looking after their comforts in booking vehicles, arranging for lodging, even dialling telephone numbers for them, etc. ‘Jan Adhikar Samiti’ had put so much trust in him that though he was (claimed to have been) introduced to them by Zahira, instead of giving any money to Zahira and others, they used to hand over the money to Advocate Atul Mistry only, who would not be required to give any accounts thereof to Zahira and others. It is also remarkable that no receipts are taken from Zahira or the others regarding the financial assistance given to them by the ‘Jan Adhikari’."

"The role played by ‘Jan Adhikar Samiti’ in the whole matter is also very interesting. What are the aims and objects of this ‘samiti’, if at all it is a ‘samiti’, has not been brought on record except that they help the weak and needy. Why they have chosen Zahira and others as ‘needy persons’ and what is the understanding between them is not clear. Why Zahira requires facilities for attending the Court and requiring payment of her Advocate’s fees etc. is difficult to understand, when all that she has to say is that she did not lodge any report, she did not make any complaint, that she did not make any complaint about improper trial held in the Vadodara Court, she never asked for retrial, she never approached the Hon’ble Supreme Court of India; and she does not know who are the culprits. ‘Jan Adhikari’ Shri Tushar Vyas appears to have done a lot for Zahira and her family."

"It is a matter of record that Zahira was earlier bitterly complaining about injustice done to her, about improper investigation, about the threats having been received by her, etc. At that time, ‘Jan Adhikar Samiti’ did not assist her. Undoubtedly, it can be said that Zahira did not approach them at that time, but what is significant is that Zahira approached them at a time when she decided to resile from what she had stated before several authorities, as admitted by herself (though on being tutored). Thus, the help of ‘Jan Adhikari’ was sought only when Zahira decided to advance a particular version of the incident. Even ignoring whether the version Zahira intended to advance was true or not, it is a fact that it is only when that version was to be advanced ‘Jan Adhikari’ was approached and assistance was sought and obtained. Since ‘Jan Adhikari’ is not before the Court, I do not wish to make any further observations on this."

Zahira and family’s conduct unpardonable

"In my opinion, whatever may be the mental condition of these witnesses and the cause behind their attitude, the wrongs committed by them cannot be overlooked. Whether those at whose instance these witnesses have lied with impunity would ever be brought to book, or would be made to pay for their misdeeds, is doubtful; but the conduct of Zahira, Nafitulla, Nasibulla, Saherabanu and Saherunnisa cannot be condoned. If, in spite of speaking lies persistently, no action is taken against them, an impression would be created that the system of administration of justice takes the lies spoken on oath before a Court of law lightly. In my opinion, Zahira, Nafitulla, Nasibulla, Saherabanu and Saherunnisa have knowingly given false evidence. It is necessary and expedient in the interest of justice that they should be tried summarily for giving false evidence."

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