The Hindu : A flawed appeal in the High Court

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Thursday, Aug 28, 2003

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A flawed appeal in the High Court

By V. Venkatesan

NEW DELHI AUG. 27. The Gujarat Government filed an appeal in the Gujarat High Court on August 7 against the controversial Vadodara fast track court judgment in the Best Bakery case acquitting all the 21 accused because there was "not an iota of evidence admissible under law produced on record suggesting the guilt of the accused."

The appeal was filed a day before the Supreme Court was to hear a special leave petition filed by the National Human Rights Commission (NHRC) against the trial court judgment, and this led to the Supreme Court's deferring its decision on the matter.

The copy of the State Government's appeal petition filed in the High Court (Criminal Appeal No.956 of 2003 in The State of Gujarat Versus Rajubhai Dhamirbhai Bariya and Others; now available with The Hindu, reveals that the Government has listed 20 grounds to show why the order of acquittal should be set aside. However, it refrained from seeking a retrial of the case on the basis of further investigation. The inference can be drawn from the appeal that the State Government wants the High Court to direct the trial court to examine the evidence before it afresh, even though it is the very quality of this evidence that has led to the collapse of the prosecution's case against the accused.

Many of the grounds mentioned in the appeal are general and baldly assert that the trial court erred in law, and "with material irregularities, in totally discarding the evidence" of certain witnesses, all of whom turned hostile during the trial and denied their statements given to police.

It is the tone and thrust of the appeal petition rather than the "grounds" that should be of interest to those looking at the State Government's seriousness in filing the appeal. Both the synopsis and the text of the appeal focus on quantifying the loss to property owned by the victims. The killing of 14 people is referred to in passing towards the end of the petition. While the trial court's judgment clearly identifies the 14 victims whom the rioters killed during the incident on March 1, 2002, the State Government's appeal identifies only 11 of them.

The State Government has taken the stand that the "trial court ignored the settled legal position" that merely because the witnesses turn hostile, their evidence could not be discarded entirely. The Government claimed that the Investigating Officer duly "proved" during his examination in the court the statements of witnesses recorded during the course of investigation, even though some of them had turned hostile later. When witnesses turn hostile, their statements to police can be relied upon by the trial court to corroborate any piece of circumstantial evidence, which is of a substantive nature.

In their appeal petition, however, the State Government does not cite any such piece of evidence ignored by the trial court.

The appeal petition shows that the State Government would have liked the Additional Sessions Judge, Justice H.U.Mahida of the trial court, who acquitted the accused, to ignore the statement of the key prosecution witness, Lal Mohammad. Mr. Mohammad first implicated the accused, when police recorded his statement within a few days of the attack. Three months later, he gave a supplementary statement to police claiming that some of the accused persons sheltered him and his family members during the attack by the rioters. Although he did not resile from this supplementary statement in the trial court, the State Government would have liked the trial court to use it to prove that the accused were present at the time of the incident, as "there was sufficient evidence on record to connect the accused with the alleged crime."

Normally, an appellate court does not reverse an order of acquittal, unless the appellant cites extraordinary grounds to do so. The State Government's appeal petition does not cite any such extraordinary ground.

Unlike the NHRC's special leave petition, the State Government's appeal in the High Court does not seek the issue of non-bailable warrants to each of the 21 accused. This is in the context of apprehensions expressed about the safety of the witnesses and about possible attempts to tamper with evidence.

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