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Monday, Nov 15, 2004

Opinion

Opinion - Leader Page Articles

Witness for the prosecution

By Rajeev Dhavan

There is something very sinister behind Zahira Sheikh changing a stance she has publicly held consistently for over two years.

ZAHIRA SHEIKH is a witness for the prosecution in the Best Bakery case. She has lived through the trauma of seeing her family and friends being roasted alive by criminals. She spoke out when others were silent. During the trial in the Vadodara fast track court in 2003, she retracted her statement. Then with extraordinary courage, she confessed she was coerced into the retraction and publicly campaigned all the way to the Supreme Court to secure a retrial of the case. At the second retrial, she now proposes to retract her statement again.

If we set out the facts, they will speak for themselves. The gruesome tragedy at the Best Bakery occurred on the late evening of March 1, 2002. Zahira was one of the main eyewitnesses. On March 2, 2002, she gave press statements identifying some local persons as responsible for the killings. She repeatedly affirmed her story. On March 21, 2002, she testified to the Peoples Union of Civil Liberties (PUCL)-Shanti Abhiyan team identifying those she believed to be the culprits. A few days later, on March 27, arrests were made after the National Human Rights Commission (NHRC) asked that the case be turned over to the Central Bureau of Investigation, which the Narendra Modi Government refused to do. In May 2002, Zahira again identified the culprits to the Concerned Citizens Tribunal. In June 2002, she publicly exhorted that one of the persons she had identified had not been charge-sheeted. She stood by her statements until the trial began in May 2003.

All of a sudden, her testimony changed. At first, her brother and sister retracted their stance. On May 17, 2003, in a dramatic turnaround, she changed her testimony in a packed court, where persons she later accused of coercing her were present. On June 27, 2003, Judge H.H. Mahida delivered an otherwise faulty judgment acquitting all the 21 accused. If the facts are to speak for themselves, Ms. Sheikh changed her stance because of panic, fear and intimidation and inducement by those who wanted an acquittal in a case in which social and political stakes were high.

The explanation as to what happened was provided by Zahira herself. On July 11, 2003, she made a public statement saying she was threatened and intimidated. On July 18, she appeared before the NHRC to confirm that she had been coerced. After the NHRC petition to the Supreme Court, Ms. Sheikh herself filed a Special Leave Petition (Criminal) No. 3770 of 2003 against the acquittal. At no point did she resist the support of the NHRC or the Citizens for Justice and Peace or Teesta Setalvad. The Supreme Court asked the Gujarat High Court to re-examine the issue, including hearing Zahira's revision.

In the High Court , she did not have to testify. But her explanation to the NHRC and Supreme Court were placed before the High Court without any protest from her. By December 26, 2003, the Gujarat High Court refused to order a re-trial causing the Supreme Court to examine the issue — no less at the instance of Ms. Sheikh.

In fact, the Supreme Court case is reported as Zahira Sheikh versus State of Gujarat (2004) 4 SCC 158. Eventually on April 12, 2004, the Supreme Court exposed the judgments of the lower courts to order a re-trial of the case in Maharashtra. All along, Zahira stood by her statement with clarity, tenacity and courage. The Supreme Court specifically absolved Ms. Setalvad of any accusation of intimidation against which she offered no protest.

The trial began on September 22, 2004 in Mumbai. On October 4, Ratilal Varia recorded evidence on the outlay of the bakery. The next day, Kallu Miyan supported the prosecution even though he had gone back on his statement in Vadodara. Other witnesses completed the scenario. On October 26, Toufel Sheikh, an eyewitness, identified seven witnesses but could not recall their names. On October 28, he gave the names of four witnesses. On November 1, 2004, Raees Khan, who worked in the bakery, identified three of the accused identified by Toufel and two others. Two days later, Shajjad Khan, whom the Vadodara court had found mentally unstable, identified 12 accused and named four of them.

Then, on November 4, when Zahira was due to testify, she disappeared to emerge in Vadodara. She publicly retracted her earlier statement including, impliedly, those to the NHRC and the Supreme Court. She pointedly accused Ms. Setalvad and the Citizens for Justice and Peace and other NGOs of coercive intimidation.

The sequence of events allows the facts to speak for themselves. Ms. Sheikh had consistently indicted the accused — starting with her statement to the police in March 2002. All this was before she met Ms. Setalvad. Clearly, she began to falter only when she had to testify. In such a high profile case, why did she lose her nerve? She was a young girl caught up in a huge controversy. In the flow of events, clearly someone with a vested interest to subvert the trial pressured Zahira when she was to testify.

Interfering with a witness is both contempt of court and a crime. It is unlikely that such interference could have come from Ms. Setalvad or her friends. It must have come only from those who had a stake in forcing another acquittal. The Supreme Court (which Ms. Setalvad has moved for a probe into Ms. Sheikh's turnaround) will, no doubt, consider all this.

But this question of pressuring a witness and subverting justice should not disturb the course of the trial. Nor should Ms. Sheikh becoming a hostile witness interfere with its flow. Witnesses such as Toufel Sheikh, Raees Khan and Shajjad Khan have already identified some of the accused in Mumbai where the trial is on. Yet others have to testify. The trial will, and should, go on with enough evidence for the Court to assemble the truth and arrive at a verdict by December 31 2004 — the deadline fixed by the Supreme Court for the completion of the trial.

In recent times, there have been many important cases where witnesses have turned hostile and gone back on the statement they have made to the police. In its 178th Report, the Law Commission suggested that in serious cases, admissible statements should be recorded before the magistrate, not the police. The Criminal Law (Amendment) Bill, 2003, tried to introduce such a provision. Such a proposal is not without complications and has to be subjected to the constitutional embargo against self-incrimination.

Eventually, all evidence has to be tested in a trial afresh in the interests of criminal justice. If witnesses can be intimidated at a trial, they can also be pressured before a magistrate. If magistrates cannot try serious cases, which are sent to session courts, to assign magistrates the role of assessing clinching preliminary statements seems risky. Once an extra premium is attached to the statement before a magistrate, such a process will become a trial within a trial without affording the accused a chance to test the evidence at that time. In fact, the Malimath Committee (2003) wants to go further and make the magistrate responsible for the investigation. Desperate efforts to quicken the justice system should not result in half-baked proposals to short change the due process.

More recently, in August 2004, the Law Commission issued a consultative paper on witness identity and protection programmes. Many of the suggestions about anonymous names and in camera trials are unexceptional. But witnesses cannot be kept in protective custody for long periods like common criminals. Protection must be given where it is sought or is necessary. But all witnesses cannot lose their future identity except in rare cases. They cannot be subjected to greater suffering than the criminals they indict. But all these solutions should not be mixed up with the Best Bakery case but considered after sober reflection.

There is something very sinister behind Zahira changing a stance she has publicly held consistently for over two years in every relevant public forum. Powerful forces interested in an acquittal in the Best Bakery case have strategically picked on a young girl, precisely at the time she was to give evidence, in order to sabotage the case. But the Best Bakery case must go on. Ms. Sheikh has still to testify. She may still stand by what she had said publicly or face the hostility of being a hostile witness. The other witnesses must remain undeterred to hold on to the courage of their conviction, which alone will bring justice to the Best Bakery case. Corrupt people have tried to corrupt the justice system, which will catch up with them eventually.

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