Matters came to a head in January 2010 after eye-witnesses
supported by CJP’s legal team asked that the accused with powerful
connections be arraigned in the Gulberg massacre case. During arguments in
the matter Judge BU Joshi appeared more biased than ever. In any case, his
earlier demeanour altered markedly soon after November 2, 2009 when
eyewitnesses deposed without fear. They not only identified the accused
but also pointed to complicity at the very highest level of the police and
the political establishment.
Special public prosecutor RK Shah’s letter indicates that
the entire SIT team headed by Ashish Bhatia (joint commissioner of police,
Ahmedabad, chief of the city’s Crime Branch) started blaming the PP for
agreeing with eyewitnesses on the conduct of the judge. Shah had offered
to resign on February 19, 2010. He finally did so on February 25, 2010,
submitting a strong letter along with his resignation. The Supreme Court
has taken note of the contents of this communication and adjourned the
trial until it has considered CJP’s applications for a reconstitution of
the SIT. The next hearing is scheduled for April 2010.
Excerpts from Shah’s letters:
“The attitude of the learned judge towards the witnesses,
particularly victims-eyewitnesses, has by and large remained hostile and
unsympathetic. He browbeats them or threatens them or taunts them. He does
not allow witnesses to go to the dock for the purpose of identification
and insists [on] identification from the witness box as if he is holding
test identification parade and the most material evidence regarding
identification of the accused gets affected.
“The recording of evidence is also not satisfactory. He
generally does not record the explanation given by a witness. Particularly
while recording cross-examination, in the name of non-interference in
cross-examination he does not allow us to object to a question. The
contradictions with the police statements are correctly recorded as per
Section 145 of the Evidence Act. The witnesses are not properly confronted
with the previous statements and their explanation not sought and a
witness, if voluntarily, explains, it is not recorded and thus the whole
object of Section 145 of the Evidence Act is marred.
“Though the statements before police during investigation
are not admissible, the learned judge records them in breach of Section
162 of the CrPC. In one such order, he has observed that the special
public prosecutor does not refresh the memory of the witness by using such
statement. He even records hearsay evidence. There is a general feeling
that he is hostile to the prosecution.
“He does not read out the evidence to the witnesses as
provided in Section 278 [of the] CrPC, even after the written application
by the learned advocates for the victim-eyewitnesses, and the precious
right of the witnesses is lost.
“The learned judge sometimes puts questions to the
witnesses which also reflect the bias.”
But it is what the special PP says about the SIT
investigation that points to an open-and-shut collusion between the SIT
and officials of the state of Gujarat who have been indicted. Incomplete
charge sheets have been given to the special PP in an all-out bid to
weaken the prosecution’s case.
The PP alleges that when “I [RK Shah] was examining the
important witness like Mr MK Tandon, the then joint police commissioner,
his further statement before police and a copy of his affidavit before
Nanavati Commission were put in my hand; when Mr PB Gondia, the then DCP,
Zone IV, was in the witness box, his two previous statements before police
and a copy of his affidavit before Nanavati Commission were given to me.
On February 17, 2010, when more than 250 witnesses were already examined
and six months had elapsed after the trial began, a bunch of papers,
including many statements of witnesses recorded as far back as April 1,
2009, were given to me at the time when I was examining a witness in the
courtroom. This is something which no investigation officer would do.”
Worse was to follow. The SIT has placed on record two sets
of statements of key eyewitnesses (one set recorded in May-June 2008 and
the second ostensibly in September 2008). Witnesses have denied ever
recording statements a second time. The second set of statements
completely weakens the case made by the eyewitnesses in the first
statements before the SIT.
Here is what Ashish Bhatia says to Shah about these:
“All the while Mr Bhatia insisted upon to see that the
victim-eyewitnesses should depose according to their statements before
SIT…”
The special PP points out that he fails to “understand why
such further statements were required to be recorded, which no witness
would admit, particularly when they have engaged a private lawyer”.
The moot question today is that within Gujarat, a state
controlled by a vindictive political and police establishment, what will
prevent the SIT from engaging in similar conduct in all other trials?
