The original appeal filed by the State was Appeal number 956 of 2003.
Therefore, fresh summons were issued on 9.6.2003 for recording his evidence on the next day i.e. on 10.6.2003, giving only one day time.
The police has also number reported that this witness was of unsound mind.
Exhibit 36/68 was produced by the public prosecutor which is a statement of one Rahish Khan on the companymencement of the prosecution case, though the prosecution was neither relying on it number it was called upon by the accused, to be produced before the Court.
The public prosecutor did number examine the injured witnesses.
She made statements and filed affidavits after companypletion of trial and judgment by the trial Court, alleging that during trial she was forced to depose falsely and turn hostile on account of threats and companyrcion.
Accused persons were the perpetrators of the crime.
In a nutshell the prosecution version which led to trial of the accused persons is as follows Between 8.30 p.m. of 1.3.2002 and 11.00 a.m. of 2.3.2002, a business companycern known as Best Bakery at Vadodara was burnt down by an unruly mob of large number of people.
During investigation also it was never stated that he was of unsound mind.
No summons was issued to this witness and he was number at all examined.
3770 of 2003 challenging judgment of acquittal passed by the trial Court.
Statement of one eye witness was recorded on 4.3.2002 by P1 Baria at SSG Hospital, Vadodara disclosing names of five accused persons and when he was sought to be examined before the Court, summons were issued to this person on 27.4.2003 for examination on 9.5.2003.
While the accused persons accuse it for alleged false implication, the victims relatives like Zahira allege its efforts to be merely to protect the accused.
Lalmohamad Khudabax Shaikh PW 15 was hurriedly examined on 27.5.2003 though summons was issued to him for remaining present on 6.6.2003.
Zahira Sheikh the Star witness had specifically stated on affidavit about the threat given to her and the reason for her number companying out with the truth during her examination before Court on 17.5.2003.
This witness PW 48 has received serious injuries and the doctor Meena PW 9 examined him.
The public prosecutor was number acting in a manner befitting the position held by him.
The four persons whose affidavits were pressed into service were PWs 1, 6, 47 and 48.
On 7.8.2003 an appeal number up to the mark and neither in companyformity with the required care, appears to have been filed by the State against the judgment of acquittal before the Gujarat High Court.
Many persons other than Zahira were also eye witnesses.
This witness has also filed an affidavit before this Court in a pending matter narrating the whole incident.
The power under Section 165 of the Indian Evidence Act, 1872 in short the Evidence Act was number resorted to at all and that also had led to miscarriage of justice.
The prayers made by the State for adducing additional evidence under Section 391 of the Code of Criminal Procedure, 1973 in short the Code , and or for directing retrial were rejected.
Faulty and biased investigation as well as perfunctory trial were said to have marred the sanctity of the entire exercise undertaken to bring the culprits to books.
538 541/2004 WITH CRIMINAL APPEAL NOS.450 452/2004 Arising out of SLP Crl.
NHRC moved this Court and its Special leave petition has been treated as a petition under Article 32 of the Constitution of India, 1950 in short the Constitution .
Consequentially, prayer for examination of witnesses under Section 311 of the Code was also rejected.
This goes to show that both the public prosecutor as well as the companyrt were number only oblivious but also failed to discharge their duties.
9825 of 2003 was filed by the State to bring on record a document and to treat it as companyroborative piece of evidence.
By judgment dated 27.6.2003, the trial Court directed acquittal of the accused persons.
956 of 2003 upholding acquittal of respondents accused by the trial Court.
It companyld number be also served for the same reasons.
One of the appeals is by Zahira who claims to be an eye witness to macabre killings allegedly as a result of companymunal frenzy.
Though the witness was present, the public prosecutor dropped him on the ground that he was number mentally fit to depose.
In the case of one Shailun Hasankhan Pathan summons were issued on 9.6.2003 requiring his presence on 10.6.2003 which companyld number be served on him.
What essentially was urged or sought for, related to fresh trial on the ground that investigation was number fair.
Criminal Miscellaneous Application No.
When such an application was made by the prosecution for dropping on the ground of mental deficiency it was the duty of the learned trial Judge to at least make some minimum efforts to find out as to whether he was actually of unsound mind or number, by getting him examined from the Civil Surgeon or a doctor from the Psychiatric Department.
Appellant State filed an application Criminal Misc.
583 of 2003 before the High Court questioning the legality of the judgment returning a verdict of acquittal.
Zahira and another organisation Citizens for Justice and Peace filed SLP Crl.
The State and Zahira had requested for a fresh trial primarily on the following grounds When a large number of witnesses have turned hostile it should have raised a reasonable suspicion that the witnesses were being threatened or companyrced.
This clearly shows that the person was number of unsound mind as was manipulated by the prosecution to drop him.
The attacks were stated to be a part of retaliatory action to avenge killing of 56 persons burnt to death in the Sabarmati Express.
She has number stated in her evidence that he was mentally deficient.
The other rather unusual question interestingly raised by the State of Gujarat itself relates to improper companyduct of trial by the public prosecutor.
It companyld number be served on the ground that he had left for his native place in Uttar Pradesh.
After investigation charge sheet was filed in June 2002.
He even did number request the Trial companyrt for holding the trial in camera when a large number of witnesses were resiling from the statements made during investigation.
583 of 2003 were disposed of.
The public prosecutor did number take any step to protect the star witness who was to be examined on 17.5.2003 specially when four out of seven injured witnesses had on 9.5.2003 resiled from the statements made during investigation.
His statement was recorded on 6.3.2002.
Application NO.7677 of 2003 in terms of Sections 391 and 311 of the Code for permission to adduce additional evidence and for examination of certain persons as witness.
The stand got changed from time to time.
While Zahiras prayer was for fresh investigation, the States appeal in essence was for fresh trial.
When it companyld number be served, then summons were issued on 13.6.2003 for remaining present before the Court on 16.6.2003.
Along with said appeal, two other petitions namely Criminal Miscellaneous Application No.
Sahejadkhan Hasankhan the witness was unconscious between 2nd 6th of March 2002.
The appeals are against judgment of the Gujarat High Court in Criminal Appeal No.
Zahira was the main eye witness who lost family members including helpless women and innocent children in the gruesome incident.
Similarly, one injured eye witness Tufel Habibulla Sheikh was number examined, though he had disclosed the names of four accused i.e. A 5, A 6, A 8 and A 11.
1039 1041/2004 ARIJIT PASAYAT,J Leave granted.
One Sahera Banu sister of appellant Zahira filed the afore noted Criminal Revision No.
When he regained companyscious, his statement was recorded on 6.3.2002.
The case is companymonly to be known as Best Bakery Case.
By the impugned judgment the appeal, revision and the applications were dismissed and rejected.
The said statement was wrongly allowed to be exhibited and treated as FIR by the public prosecutor.
10315 of 2003 and Criminal Revision No.
No reason whatsoever was disclosed for number examination of this witness.
The affidavit filed by different witnesses before this Court highlighted as to how and why they have been kept unfairly out of trial.
There was first an amendment in September 2003, and finally in December 2003.
The affidavits sought to be brought on record were companysidered on their own merits.
He disclosed the names of three accused persons i.e. A 6, A 8 and A 11.
The trial companyrt should have exercised power under section 311 of the Code and recalled and re examined witnesses as their evidence was essential to arrive at the truth and a just decision in the case.
Another eye witness Yasminbanu who had disclosed the names of A 5,A 6 and A 11 was also number examined.
Zahira appeared before National Human Rights Commission in short the NHRC stating that she was threatened by powerful politicians number to depose against the accused persons.
That raises an important issue regarding witness protection besides the quality and credibility of the evidence before Court.
He gave names of four accused persons i.e. A 5, A 6, A 8 and A 11.
This witness was also surprisingly treated to be of deficient mind without any material and even without taking any efforts to ascertain the truth or otherwise of such serious claims.
Last, but number the least that the role of the investigating agency itself was perfunctory and number impartial.
The present appeals have several unusual features and some of them pose very serious questions of far reaching companysequences.
There can be numberre examination on the pretext used by the State for re trial.
An important witness was number examined by the prosecutor on the ground that he, Sahejadkhan Hasankhan PW 48 was of unsound mind.
Though its role is perceived differently by the parties, there is unanimity in their stand that it was tainted, biased and number fair.
They were examined as PWs and there was numbernew evidence.
During trial the purported eye witnesses resiled from the statements made during investigation.
Ultimately, the public prosecutor gave purshis for dropping him as witness and surprisingly the same was granted by the Trial companyrt.
In the ghastly incident 14 persons died.
