Debating India


Appeal as eyewash

Sunday 12 October 2003, by VENKATESAN*V.

ON September 12, after going through the text of the appeal filed by the Gujarat government in the High Court against the trial court’s acquittals in the Best Bakery case, the Supreme Court asked the Additional Solicitor-General appearing for Gujarat, Mukul Rohtagi: "Is this an appeal? Even counsel with one year’s experience will not draft such an appeal. It appears to us that it is eyewash. It is just eyewash and nothing else. We will not be silent spectators. We will act if the State keeps silent before the High Court."

The appeal, which angered the Bench (Criminal Appeal No.956 of 2003 in The State of Gujarat vs Rajubhai Dhamirbhai Bariya and others) mentions 20 "grounds" to show why the order of acquittal should be set aside. But none of them seeks a retrial of the case or further investigation, as if these grounds mentioned in the National Human Rights Comission’s (NHRC) special leave petition (SLP) in the Supreme Court were not relevant in the appeal. The appeal suggested as though the State government wanted the High Court to direct the trial court to examine the evidence submitted by the prosecution afresh, even though the trial court had concluded that there was not an iota of evidence, which could be legally accepted and which even remotely connected the accused with the charges levelled against them. The Judge had also held that totally false evidence had been created against the accused. The appeal did not seek to rebut any of these conclusions.

Among the specific grounds, it mentioned that the trial court erred in admitting in evidence the statement of Raiskhan, recorded by the investigating officer during the course of investigation and treating it as the first information report (FIR) in the case though the same was not duly proved by the prosecution by examining Raiskhan in the court. The appeal petition argued that the trial court ought to have treated the statement of the witness Zahira Sheikh as the FIR, which was recorded prior to that of Raiskhan and which disclosed the names of the accused.

However, this claim seemed to be contrary to the finding of the trial court. Raiskhan, one of the injured in the attack on Best Bakery, had given a statement to the police, soon after the incident on March 1, 2002. This statement, which did not carry names of any accused, was accepted by the trial court as the FIR as it was recorded by the police prior to recording the statement of Zahira.

The Judge noted that under Section 157 of the Code of Criminal Procedure (CrPC), the FIR in respect of any cognisable offence is required to be sent to the Magistrate concerned immediately. "If there is a delay beyond 24 hours in sending FIR to the Magistrate, it is not condonable as held by the apex court in various rulings. The so-called FIR of Zahirabibi was sent to the Magistrate after four to five days and, therefore, there is reason to believe that in fact the police had deliberately concocted the FIR subsequently so as to suit their purpose." The appeal did not explain the delay in sending Zahira’s statement to the Magistrate.

THE appeal petition appears to endorse the belief that the trial court ought to have gone after the truth, rather than simply relying on the statements of the witnesses, who turned hostile. However, it is a settled legal position that when witnesses turn hostile, their statements to the police can be relied upon by the trial court only to corroborate any piece of circumstantial evidence, which is of a substantive nature. The appeal petition did not cite any such piece of evidence ignored by the trial court.

The August 7 appeal seemed to emphasise the loss of property suffered by the victims, rather than loss of lives. The killings were mentioned towards the end of the petition, which identified only 11 of those killed (rather than 14).

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