Wednesday, January 29, 2014

We rest our Case Part Two

We rest our Case                                         Part Two
Teesta Setalvad
As I said in these columns last week, scant respect for the rule of law governs the motives of the man who would be PM and the malevolent forces that he represents. Last Friday for the fifth time I had to seek bail against arrest, since 2002.

Allegations made by agents of the Gujarat government were not confined to the Sardarpura cases. Similar allegations of tutoring were made by defence counsel in the Naroda Patiya case. In the judgement delivered on 29.8.2012, 32 persons were convicted in the Naroda Patiya case by a detailed judgement. The Learned Judge in the said judgement also dealt with the issue of the affidavits which were filed by the victims in this Hon‟ble Court and allegation of tutoring of the witnesses, the Learned Judge has given a finding as below:
Exceprts from Naroda Patiya Judgement Point 14, Pages 305, 306 “The affidavits filed in the Hon‟ble Supreme Court are also another point of cross-examination and arguments. Firstly, it has not been proved that whether this affidavit was produced in the Supreme Court or not. The most important aspect is, it is not elicited from the I.O. as to whether these affidavits were really filed at Hon'ble the Apex Court or not. No certified copy has been secured from Hon'ble the Apex Court. When defence wants to rely upon it, it should highlight reasonable probability of its filing, if not proof. No investigation was carried out admittedly on that and secondly the purpose for filing such affidavit is different from the purpose of giving the testimony and even giving statement before SIT. Hence, two unequals cannot be compared. (2) Even if it is accepted that such affidavits were in fact filed then also the reason for which the affidavits were filed before Hon'ble the Supreme Court of India that too, in a transfer petition, is absolutely different than giving statement before the Investigating Officer. Hence it cannot be treated as earlier statement of the PW in the sense that it is not the same thing. In the humble opinion of this Court these affidavits cannot be used to challenge credibility of the witnesses as submitted.
(3) It is possible that after six years, when the PW gave statement for the first time in free and fearless atmosphere after getting the security which the PW did not have during previous investigation, the PW could muster courage to state many more true facts. But at times, after coming home from the SIT, one remembers many other things which one has missed while telling it to the SIT. It can happen that the witness would like to tell those left out things in his testimony. Hence, if something was not told to the SIT and if told only to the Court, then, in such case, it is not proper to believe that the witness is speaking lie only on that count. It is different that the deadline has to be drawn somewhere. In the facts and circumstances of this case, what is not told before SIT and if it is material contradiction or omission in the eyes of the Court then that part has been kept out of consideration as interest of fair trial demands that. Except the uniform, mechanical sentence and such other aspects and such other parts which has not inspired the confidence of the Court even in the investigation of SIT by and large the investigation of SIT is the base of the case. (4) Even if it is accepted that these affidavits were filed, then it was obviously to support the transfer petition and not to prove or investigate the prosecution case, therefore also, the purpose being different, this cannot be held to be earlier statement made during the investigation. (5) Who drafts the affidavits, for what, when, who translated the contents of instruction of the P.W. are also all the issues needs to be answered before giving importance to this part of the cross but no such material is on record. It is therefore just and proper not to blow it out of proportion.”
Point 32, Page 332 “32. TUTORING OF NGO, SOCIAL WORKERS, ETC. : It is notable that it is not alleged that the NGO leaders or lawyers or the social workers have any personal enmity or ill-will against the accused. Hence the suggestion in the cross-examination of PW that they have been speaking as was taught to them, is found very irrelevant. What would be the benefit of such NGO is nowhere suggested except suggesting that it was to defame State of Gujarat. But then, the State of Gujarat is not an accused but is the prosecuting agency which was forgotten it seems. No substance is found in this submission.”

We would like to emphasise that in the ten long years repeated attempts by the state of Gujarat and its agents to induce witnesses and turn them hostile have not borne fruit. In 2004 the star witness in the Best Bakery case turned hostile for a second time while she was due to give evidence in re-trial in Mumbai and on November 3, 2004 made malafide allegations against me and my organisation. I moved the Hon‟ble Supreme Court praying for an independent inquiry into the allegations. An Inquiry conducted by Registrar General Supreme Court BM Gupta was ordered that completely exonerated me and my organisation. (July 2005).  The Supreme Court of India (March 2006) convicted Ms Shaikh to one year simple imprisonment for contempt of court and the Trial Court for perjury. The BJP MLA Madhu Srivastavawho’s voice in a sting operation claimed that he has offered Rs 18 lakhs to the family to turn them hostile, refused to allow voice samples of his voice to be taken. Scant respect for the rule of law?

Yet powerful lawyers associated with the ruling dispensation PN Lekhi, Ram Jethmalani, Mahesh Jethmalani and VHP advocates like Ankur Oza for Raiskhan Pathan and Meenakshi Lekhi continue to make shameless allegations unproven in the public domain.
Registrar General’s report Pg 45: The allegations of confinement put by her (Zahira) is not believable as not supported by the circumstances as mentioned hereinafter nor by any other witness. Thus, in view of the above, no inducement, threat, coercion or pressure whatsoever has been established in this part”. Pg 49: “As discussed above, no coercion through tutoring and putting the words by Ms. Teesta into her mouth and also substitution of statement by another already prepared document do not establish”. Pg 101: “It may undisputably 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 out of her desertion through the condemned tragedy has made concerted efforts and has engaged herself in having cash/comforts from every possible corners... Ms Zahira changed her stand three times as already mentioned in parts A to D and that changing of these stands are well known”. [pages of Vol. II] shows that there was no influence by tutoring of Ms. Teesta on her or on her family till she went to Bombay and, as such, there is no truth in the said allegation: “Question” Whether influence, fear or pressure of Ms. Teesta started on you in July 2003 after you went to Mumbai? Answer: There was no influence of Teesta on me or on my family prior to the period I was taken to Mumbai.” Difference appears in both the statement.
Pg: 105: “Looking at the aforementioned status in full including all other circumstances of the case, I feel no hesitation to mention that Ms Zahira is not such a lady who speaks the truth and has developed an image of a self-condemned liar whose statements alone cannot be safely accepted”.
Manipulation of poor victim survivors is obviously the game best played by the Gujarat government and its paid agents. Crores of public money are spent on legal fees. But for the vigilance of the Supreme Court of India, the tenacious legal services provided by the CJP team and the inherent courage of Victim Survivors 117 persons, including Maya Kodnani and Babu Bajrangi would not have been convicted in Gujarat. That is the greatest sore for the Man who would be PM. He had promised completely impunity to the marauding mob. But the rule of law had better ideas.

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