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Guilty, until proven innocent - A note on Mayaben Kodnani's

conviction in Gujarat Riots

Yajur Sharma, Advocate

Summary

The Naroda Patiya riot case involved a matter of national importance and it
is a case that had been tremendously debated in media and amongst the
public across the nation. It is common observation that in cases where there
is a scope for political enmity, media hype and a media induced public
opinion against certain public figures, the judgment should be critically
analyzed to look for any prejudices or arbitrary reasoning to arrive at a
particular conclusion. I have analyzed the reasoning, evidence and
inferences drawn in respect of Smt. Mayaben Kodnani (MK) who had been
sentenced to 28 years imprisonment by the Hon'ble judge Smt. Yagnik. I
make the following observations:

The fundamental principle of criminal law states 'Innocent until proven
guilty'. But the principle applied in this case, in respect of MK, seems to
be 'Guilty, until proven innocent'. This is clear from the following
instances at various portions in the judgment:

1. MK's presence at the scene of crime

The court notes MK's presence at various places on the relevant date:

i.) At 8.40 am, MK at the morning session of the Gujarat Vidhan Sabha.
(Page 730)

ii.) PW-236 (...eye-witness 1) states that he saw MK at the scene of crime at
around 8.30 a.m. or 9 a.m. (Pg. 644, Para 7.1)

Comment: Inspite of the fact that MK was at the morning session of the
Gujarat Vidhan Sabha at least till 8.40 a.m., the court never raises any doubt
as to this witness's deposition and accepts his version describing MK's role
in provoking the riots.

iii.) Again PW-156 (...eye-witness 2) who was residing at Jawan Nagar
(colony next to muslim chawls opposite Nurani Masjid) from 1972: he says
that he saw MK at around 9 a.m. (Pg. 654, 655)

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iv.) The court acknowledges that 9 a.m. to 9.30 a.m. is the estimated time
around which MK was seen by the witnesses at the scene of crime (Page
728)

v.) Court opines that the depositions of the eleven witnesses proves that MK
was present at the site somewhere between 9.00 to 9.30 am and that she was
again seen at the site somewhere around 11 to 12 noon. (Page 729)

vi.) The court further opines that it is not clear that after the completion of
assembly at 8.40 a.m. where MK was? (Page 729)

vii.) The I.O. admits that one Amrish Govindbhai Patel has stated in his
statement before Mr. Mal (I.O. of Naroda Gam case) that A-37 was at
legislative assembly upto 9 am and upto 12.30 pm she was at Civil Hospital
and from 3.30 pm again also she was at civil hospital. The court opines that
the same is statement before the P.O. and is not testimony before this court.
(Page 730-731) The court rejects similar statements made by certain other
witnesses on the ground that statements before the police do not have
credibility, as the statements made on oath before the court where the
opposite sides has been given a chance to cross-examine the witness.

viii.) Two witnesses in a trial for another riot in Naroda Gam before another
judge stated that they saw MK at around 10 or 10.30 am and since the mob
has protested against her presence she has gone from that place (Page 733).
The court cites section 33 of the evidence act which states that only in cases
where the witness is dead, incapable of giving evidence or is kept out by
opposing party or his presence cannot be secured without delay or expenses,
can the evidence cited in one court be accepted in a subsequent proceeding
before another court (Page 733). So the court in absence of any such
circumstances rejects the evidence. The court later examines the statement
and states that none of the witness was sure when MK arrived and departed;
but it is clear that her presence was objected to by the persons present there
and had she not been escorted, she would have been attacked there. The
court opines that she could not have remained in the hospital for long and in
any case not more than '15 minutes'. It asserts that if read along with
testimonies of various PWs it can be inferred that she could not have
reached Sola hospital before 10.45 to 11 and she would have left from there
in maximum of 15 minutes (Page 734).

Comment: It appears that the Hon'ble Judge makes an effort to guess the
amount of time that MK could have spent at the hospital to fit the timing
with testimonies of various PW's that she was at scene of crime again at
around 11.15 or so. If carefully perused it appears that the Hon'ble Judge
developed a prejudice against the accused MK, and even this bit of
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information (which it earlier stated that it can't consider) is used to
somehow point towards the 'pre-conceived guilt' of MK.

ix.) To explain the speed at which MK is alleged to have reached the scene
of crime at around 9 a.m., which seems pretty unbelievable considering the
fact that she was in the morning session of the Gujarat Vidhan Sabha 'at
least' till 8.40 a.m., the Hon'ble Judge opines that MK, being V.I.P. must be
with her security and for her the traffic also would be cleared. Hence for
political personality and leading person like MK, it is not improbable to
reach from Gandhinagar to Naroda Patiya, Naroda Patiya to Sola Civil
Hospital and return from Sola Civil Hospital to Naroda Patiya. The Hon'ble
Judge further opines that Gandhinagar and Ahmedabad are twin cities and
that it is hardly at a distance of 30 km from Ahmedabad and therefore, if
MK was relieved at 8.40 a.m., it is not difficult for the accused to reach the
Naroda Patiya site at around 9 am (Page 742, 743). The court further adds
that the witnesses have stated that all the disturbances had started and in fact
reached its peak after arrival of MK. (Pg. 1813)

x.) At about 2 pm she had telephoned the fire brigade for fire call of some
petrol pump at Naroda Patiya, she has taken round at the site of the offense.
(Pg. 1889)

xi.) The court also relies on the revelation made by Babu Bajrangi in the
sting operation that "Mayaben had arrived at the Patiya at 4 pm". (Page
765)

xii.) The court also relies on revelation made by Suresh Chhara in the sting
operation that "..Mayaben was there at the site on the date of occurrence for
the whole day up to 8 p.m.." (Page 770)

Comment: The court relies on various witnesses who state that MK was
at the scene of crime in the morning and also relies on the revelation
made by Babu Bajrangi that MK arrived at 4 pm; and also on Chhara's
statement who states that MK was there at the site of occurrence for the
whole day upto 8 p.m. Bajrangi was leading the mob since morning and
the court has held him to be the prime conspirator. When he states that
Mayaben arrived at 4 pm, either the court should not rely on his
revelation or discard the evidence of the eyewitnesses who state that
MK was there since morning. Further the court has also not pointed out
the inconsistency in the revelations made by Bajrangi and Chhara both
of whom being the prime accused and leaders of the mob are expected
to give a consistent description of MK's alleged time of arrival at the
scene of crime. From the above points, it seems clear that there is no
concrete evidence to establish MK's presence at the scene of the crime at the
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relevant time except for the eye-witness's testimonies, the veracity of which
is itself doubtful as has been elaborated further in the next section.

2. Indications of Prejudice against MK in the judgment

a.) The Hon'ble Judge in paragraph 7.16 (Page 650), opines that merely oral
evidence of the witness alone shall not be treated as completely dependable
evidence; as their description, identity mark etc. were not mentioned in the
S.I.T statement; so the Hon'ble Judge gives 5 such accused the benefit of
doubt; but in the very next paragraph Accused-62 (MK's secretary) who has
also not been named in the SIT statement is not given such benefit of doubt.
The reasoning given by the Hon'ble Judge is that A-62 was described with
identity as P.A. to MK and states:

"..This description is a satisfying way to involve A-62 in the crime in the
statement of the S.I.T.."

It seems that there was a huge prejudice against MK and anyone associated
with her.

b.) "As A-37 was leader and it is only after she came on that day the
disturbances started she needs to be held as Kingpin" (Page 722)

In the background of the points made earlier, the phrase underlined above
seems to be indicative of the 'pre-concieved guilt' of MK as mentioned
earlier. Whose need is it?

c.) PW-236 (Rickshaw Driver) (...eyewitness 1) states that MK came in a
Maruti Frontie Car (It is surprising that he could identify the car exactly as
'Maruti Frontie'). This is the witness who has been earlier described as
stating 8.30 a.m. or 9 a.m. as the time at which MK arrived at the scene of
crime. He further states that the mob on seeing MK started reciting slogans
of 'Jay Shri Ram'. He states that he saw MK speaking to the Mob, and
instructing her P.A. He further alleges that post her instructions, the P.A.
took out weapons from the jeep and distributed them in the mob (Page 644-
45). The Hon'ble Judge herself acknowledges that in the statement of the
SIT, there is no mention of slogans having been recited of 'Jay Shree Ram'.
But the same has been stated by the witness in his deposition before the
court.

Comment: It can be observed across the course of the whole judgment:
wherever there is ambiguity as to the witness's deposition, the same has been
construed as against MK. Basically, the judgment is based on the formula
'ambiguity = has to be construed against MK'. The Hon'ble Judge in fact
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'justifies' this conduct of the witness, stating that in the statement of the SIT,
the witness might not have mentioned that there were slogans of 'Jay Shree
Ram' but that was just the 'mental state or spirit of the day' (Para 7.13, Page
648).

d.) In respect of PW-156 (...eye-witness 2), the Hon'ble Judge takes a
cautious approach in believing his testimony and rejects most of the
depositions made by the PW, but believes all the allegations this witness
makes vis--vis MK (Page 672). This witness also mentions that Smt. Sonia
Gandhi had come to visit him and his family in hospital (Page 658).

e.) In respect of the mobile phone call records of the various accused on the
day of the incident, the court observes "..The number shown against the
name of A-37 was subscribed by BJP and not by A-37 personally... No
further investigation has been done to find out as to the mobile numbers in
the name of BJP was in fact used by whom. Hence, in absence of any
evidence, it can be held that A-37 was using it on the date of occurrence.
Thus, out of the four mobile numbers, the mobile numbers shown against A-
18 and A-37 do not stand proved beyond reasonable doubt to have been
subscribed by the two accused in the year 2002 and were used on the date of
occurrence by the accused.." (Page 796) (The underlined portion above
seems to be a typo)

"...As has been submitted by the learned Advocate Mr. Kikani for A-37
[MK]... there are discrepancies and apparent contents which create
reasonable doubts against the genuineness of the document. This creates a
reasonable doubt about the genuineness of the document and this
reasonable doubt is sufficient not to attach any value to the said
documentary evidence..." (Pages 798, 799)

Comment: Fabricated mobile phone records. Is this not an indication that
MK is being implicated in this case? Why does the court not raise this
matter?

But seeing the following observation of the court (Pg. 799), the prejudice
against MK is again apparent:

"..It is true that as a matter of fact, while appreciating the evidences put up
before the Court, that of the phone call details, no aid is available to
prosecution as on scrutiny, no incriminating material or probability stands
revealed of hatching conspiracy as far as the communicating through the
mentioned telephone numbers are concerned. Hence, technically A-37, A-
18, A-44, A-62, A-24 and A-20 are able to secure benefit of doubt as far as
these phone call details are concerned. But, it is notable that in the year
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2002, mobile phone was quite popular and was freely used as mode of
communication. A-37, A-18, A-62, A-44 etc. have been alleged to be in
contact on mobile phone. None of them have stated that they did not have
mobile in 2002 and they had no telephonic contact with the co-accused. This
fact is a circumstance which can certainly be considered when the hatching
of criminal conspiracy stands proved against the accused. Their agreement
to do illegal acts cannot be without any communication hence, it is inferred
that they have communicated with one another since they belong to the same
group, same organization working for 'Hindutva'."

3. For the sake of argument, assuming that MK was present at the scene
of the crime, let us have a look at the description of her presence at the
scene of crime and of her role in the riots by the various eyewitnesses
whose versions have been accepted as being truthful by the court:

a.) PW-227 (...eyewitness 3) states that he saw MK in the mob of Natraj
Hotel. He further states that the men of that mob were told by MK that 'you
go ahead I am with you' (Page 674).

Comment: This description signifies as though the PW was standing pretty
close to the mob as he was able to hear MK's words. This applies even in
case of the other witnesses albeit they give a different description of what
she said or did. It is hard to believe that any person belonging to the muslim
community would come so desperately close to a mob of 15000-17000
persons who had assembled there to commit acts of violence against them.
The witnesses seem tutored to state two things: 1. Presence of MK at the
scene of crime; 2. Statement to the effect that she was provoking the mob.

There are further instances indicative of the 'pre conceived guilt' of MK:

The Hon'ble Judge first herself acknowledges that PW-227 had seen the
mob from a distance and yet thereafter believes that he went close to the
mob (inspite of the people in the mob wearing saffron headbands and khaki
halfs, and MK allegedly herself wearing a saffron scarf, as stated by the
Hon'ble Judge and the various witnesses as provided below and was
standing close to MK in the mob; just that the mob did not identify him as a
muslim; So he went in the mob and came back. At all places the Hon'ble
Judge has used 'principles of probability' and 'natural behavior' when
required to 'establish' the guilt of the accused and fails to apply those very
principles when the same may have the potential to create doubts and
suspicions as to the testimonies of the various witnesses against MK (Page
677, 678); as has been discussed in greater detail later.

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(The Hon'ble Judge stated that the people in the mob were wearing saffron
head bands at page 16, and various witnesses state the same at pages 598,
605, 611, 635, 654, 674, 702 etc.; It is even stated that MK was wearing a
saffron scarf at pages 592, 706 etc.)

b.) "..It is not probable when the time span of the occurrence was 9.30 a.m.
to at least 8.00 p.m. the MLA would not come to the constituency at all.
The common experience of life says that whenever such occurrences takes
place the political leader do take their stand.. In the instant case, A-37
[MK] being MLA of the area would either support the Hindus in which case
the Hindus viz the miscreants would be tremendously boost up which would
add to their confidence and courage in doing away muslims and ruining
their property.." (Page 528-529)

Generalization: "common experience of life says that whenever such
occurrences takes place the political leader do take their stand".. so MK
would have done the same.

Can the guilt of an accused in a criminal matter where the charges
levied and the punishment prescribed is of the highest order be
determined on the basis of such assumptions and generalizations? Is
this not an instance of 'guilty, until proven innocent' as described
earlier?

c.) In a criminal trial, however, intriguing may be the facts and
circumstances of the case, the charges made against the accused must
be proved beyond all reasonable doubts and the requirement of proof
cannot lie in the realm of surmises and conjectures.
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d.) "..If according to defense, she has not played the role of provoking
Hindus, then there is nothing on record to believe that she has played the
role of pacifying agent. She has not done anything to stop the massacre,
even she has not instructed the police officers to stop lawlessness at the
site.." (Page 529)

e.) In this context, let us look at the complaint I-C.R. No. 100-2002, which
states "..A mob of around 15,000 to 17,000 people had gathered at the
entrance of Hussain's Chali, near S.T. Workshop, opposite Nurani Masjid,
S.T. Patia...about 22 tear gas Shells were deployed.. but the mob had
become uncontrollable and the members of the mob were shouting attack
kill...It was found that it was impossible to control the mobs, hence, the
mobs were warned to disperse and if they do not disperse, firing would be
done. In spite of such repeated warnings, the members of mobs, becoming
uncontrollable, started to break shops and houses of the members of Muslim
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community residing near Nurani Masjid and its vicinity. Thereupon, I
had fired five rounds from my Service Revolver and two rounds from Musket
410, at the instructions of the Deputy Police Commissioner and you had
also fired eight rounds one after the other and other police personnels and
officers had also fired bullets and shells. But, there was no effect on the
members of mobs and by becoming more violent, the members of the mobs
divided themselves into small groups and started breaking Nurani Masjid
and set it to fire.." (Page 22)

Comment: The complaint itself acknowledges that the mob had become
uncontrollable and inspite of efforts, the police was unable to control it. But
even here the Hon'ble Judge chooses to blame MK, that it was she who did
not give any instructions to the police to act, without any affirmative
evidence to support this conclusion.

f.) The Hon'ble Judge further opines: "...If the fire call occurrence register
brought on record by the Chief Fire Officer is perused it is clear that at
about 2.15 pm she did telephone to the fire brigade for sending the fire
fighter at Sahyog Petrol Pump where occurrence of fire took place.
Secondly, she has her own hospital in Naroda where her visit is quite
natural. Considering the above it cannot be believed that she would not
come to her hospital at all and she has telephoned to fire brigade for the
petrol pump at Naroda without being at Naroda...."

The 'likelihood' of MK being in the hospital and 'probability' of her making
phone call to fire department in Naroda from Naroda is presented as if it is
some 'clinching' piece of evidence.

g.) The court further opines:

"..Considering the above discussion, in fact the principle of
probability would guide the court that the natural conduct of A-37
[MK] would always be to be at site which according to the prosecution
witnesses she was. In light of the appreciation of evidence, in considered
opinion of this court and according to counseling of the course of natural
event and the principle of probability it can safely be held that the presence
and participation of A-37 and her close aides in the riot on that day is the
truth which also stands corroborated by the sting operation wherein A-18,
21 & 22 have all stated about a fact that A-37 was present at the site and
was boosting up them all.." (Page 530)

h.) A conviction cannot be sustained even if the prosecution story
considered as a whole 'may be true' until it is found that it 'must be true'; but
between 'may be true' and 'must be true' truth is inevitably a long distance to
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travel and the whole of this distance must be covered by legal, reliable and
unimpeachable evidence
2
. There is a long mental distance between "may be
true" and 'must be true' and the same divides conjectures from sure
conclusions
3
.

i.) In the very next paragraph, the court opines "..normally if the police
officer knows the desire of the political leader the police would not leave a
single stone unturned to give colour to such desire.."

Comment: Generalisation of the Police machinery, police force and all
police officers as a whole (So it is not only MK who is the victim of
generalizations and assumptions). Although the reasoning is projected as
being in consideration of practicalities and realities, it smacks of a deep-
rooted prejudice against MK. Again, how can the facts necessary for
determining the criminal liability and that too of the highest order, be
ascertained on such blanket assumptions rather than on the basis of concrete
evidence which conclusively establishes the involvement of the accused
4
.
The point numbers (d) and (e) earlier stated under this section signify that
the mob had become uncontrollable and the police was unable to control it.
The Hon'ble Judge herself points out that the mob had become so aggressive
and uncontrollable that even if MK would have asked them to stop, then
they would have first attacked MK. The same has been discussed in greater
detail later.

j.) The Hon'ble Judge centers her conclusion that MK was present at the
scene of crime on the inconsistent depositions of the witnesses, as has
already been discussed earlier; and on the assumption that MK must have
been there as her hospital is very close by to the locality; she was the M.L.A
of the area then
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; and that as she was the M.L.A. of the area everyone would
know her
6
.

Comment: It is on the basis of prejudicial inferences that the case
against MK has been built. The Hon'ble Judge repeatedly raises the fact
that MK is a public figure known to everyone in the area and hence the
witness's identification of MK cannot be disputed. But the same
inference and logic can be used to assert that as MK was a public figure
known to everyone in the area, then why would such a public figure
come out in the open at such a sensitive time. (Again the formula, as
stated earlier - Ambiguity = has to be construed against MK has been
applied)

It is an established tenet of criminal jurisprudence that if two views are
possible on the evidence adduced in a case of circumstantial evidence, one
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pointing to the guilt of the accused and the other to her innocence, the court
should adopt the latter view favourable to the accused
7
.

k.) The Hon'ble Judge at one point opines that "after arrival of A-37 and
after her instruction only violence was committed by the mob" (Page 694).

l.) In respect of PW-52 (...eye-witness 4), who is an injured lady eyewitness;
who was working as security personnel in one company. She states that she
was searching for her younger son at the time of the incident. She further
states that her dress was similar to that of lady police. She states that MK's
car came from Natraj Hotel, halted near Nurani Mosque; MK got down and
spoke to persons in the mob. She states that her presence was not objected to
by the mob as they thought of her as lady police. She states that MK
instigated persons in the mob.

She then states that MK had something like a pistol in her hand and she also
did firing and told the mob to continue and she left.

In this respect, the Hon'ble Judge observes ".. that the words 'something like
pistol' is itself full of doubt. the court cannot act upon such doubtful version.
Moreover, it does not sound probable that MK being M.L.A would publicly
hold pistol or any firearm, hence this part of the testimony does not sound to
be a credible one may be the misperception of the PW
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".

Although the Hon'ble Judge did not accept the testimony but a few points
are worth mentioning here:

I. Does stating that 'MK had something like a pistol in her hand and
she also did firing' amount to merely 'misperception' or is it a material
discrepancy? Is it not a statement the only purpose of which seems to be
to implicate MK? At the very least, is it not the witness using her
imagination to somehow implicate MK in the crime? How can seeing
someone pull out a gun and shooting be a 'misperception'? After
listening to this, is any other portion of the witness's deposition worthy
of any consideration. The court concludes that there is '..no reason to
doubt her version about the incident. The witness sounds to be truthful
and credible except certain part of her version which may be her
misconception or exaggeration..'
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.

II. If it does not sound 'probable' that MK being an MLA would not
publicly hold firearm', then is it also not 'probable' that she would also
not publicly show her face; even assuming, for the sake of argument
that she wanted to provoke the mob. The Hon'ble Judge (at Page 685)
states "..A-37 [MK] being an MLA of the area, it does not sound to be
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probable that A-37 moved publicly possessing firearm that too on such a
day where Media, cameraman, channels etc are bound to be present
there...". For the very same reason, if she would not move publicly move
with a firearm, why would she publicly move at all at such a time. All
the alleged activities could have been done 'secretly, without exposing
herself publicly'. The Hon'ble Judge herself acknowledges the fact that
all of the alleged activities could have done secretly, without exposing
herself publicly (Page 720).

The Hon'ble Judge later, unbelievably, accepts this PW's identification
of MK. The Hon'ble Judge further accepts this PW's submission that
violence started only after MK's arrival and instigation. The PW also
states that MK came at around 9 am, but the Hon'ble Judge very
conveniently (Page 696) extends this to 9.30 or 10 am to 'tally' it with the
time stated by the other witnesses.

m.) In this context it is also pertinent to point out the observation of the
court with respect to the revelations made in the sting operation:

"..the 'Sting Operation' of A-21 is also interesting wherein he reveals that A-
18 is lion of Hindus and on his call, entire Chhara Nagar would come out.
He states that A-55 was there, A-22 was there, A-18 was there, A-37 has
instigated and has assured that, "she is with them", A-37 waited for half and
hour to 45 minutes.." (Page 784)

Now with the media, cameramen etc. and in midst of a public where she is
well known (as acknowledged by the court itself) and people around the
area, why would MK wait for half an hour to forty five minutes. But as the
statement is against MK and in accordance with the formula 'ambiguity =
has to be construed against MK', the same has been conveniently accepted
by the court without any reservations. The court seems to defy it's own logic
when it comes to cornering MK.

n.) It is hard to imagine that which of the 'assumptions', 'probabilities'
or 'natural behavior' described by the Hon'ble Judge is most
shocking. Here is another one (at page 703):

"..If A-37 [MK] would give any instruction, any direction, or guideline to
remain peaceful or not to do illegal acts or refrain from beating, killing,
cutting or burnings of Muslims as suggested by the defence to PW 104
then the tempo of the mob can apparently be inferred to be such wherein
they would first of all attack such adviser even if such adviser was none
other than the then present M.L.A. of the constituency, hence the talk of
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A-37 with the mob was bound to be provoking, instigating and of the mood
the mob had..." (similar assertions on page 737)

"...It is needless to say that Hindus being in majority they must have
certainly dominated and over powered the Muslims. It is therefore just,
proper, correct and suiting with the facts and circumstances of the case that
A-37 has instigated and inferred from the conduct of the members of the
mob, with provoked the Hindus to do illegal act and that it can also be
whom A-37 had talked, which mob after her arrival had committed
tremendous violent acts including taking lives of Muslims by burning them
alive..." (similar assertions on page 737)

If the mob was already so determined how could have MK's words have
made any difference, even if she was infact trying to pacify the mob (if
assuming for the sake of argument that she was present at the scene of
crime). Even for the sake of argument, we assume that MK was present at
the scene of crime: then, if such was the mood of the mob, how can one be
sure that MK's words of pacification would not be ignored by them.

On the one hand the Hon'ble Judge describes her as 'provoking,
instigating and boosting up the Mob' (page 738) and calls her
the 'kingpin of the riots' (page 249); on the other hand it asserts that the
mob was already in such a mood that if she would have sought to pacify
them, they would have attacked her first. Isn't this contradictory? Then
how can she be called as the kingpin and the instigator if the mob was
so confident that it would have killed the MLA of the area?

(See also pages 739-740, 1813 where the Hon'ble Judge asserts that
the 'mob did not have the courage' to start the rioting till she came and
that she was the prime instigator, the kingpin of the riots. But then how
did they have the courage to attack her. Contradictory, isn't it?)
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The Hon'ble Judge further asserts that it was only after MK talked to
them, the mob gathered there (Page 738 where the Hon'ble Judge refers
to her as the kingpin and states that it is but for her provocation, her
instigation, her encouragement and her support and abetment, the
entire massacre took place).

On the one hand the Hon'ble Judge uses this reasoning that because she
was the MLA the police and the crowd were bound to listen to her and
that she provoked and inspired the people to gather as a mob and start
rioting without fear; On the other had it asserts that they were already
so confident that they could have killed her if she had tried to pacify
them; Isn't this contradictory? The court, not being able to appreciate
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contradictions in it's own reasoning, was perhaps bent on establishing
the 'pre-conceived guilt' of MK as the Kingpin and the prime
conspirator of the riots.

The Hon'ble Judge (at Page 1849) observes that MK had made call to the
fire brigade with respect to the fire which took place on a petrol pump at
about 2 pm on that day as in the occurrence register of the fire brigade it has
been so recorded but has not been found to have made a single phone call
for the occurrences of torching numerous muslim chawls and houses where
muslims were residing. It further adds that none of the PO's in the area were
either requested or appealed by MK that strict action be initiated and stern
action be taken for resumption of law and order in the area.

Comment: The complaint itself acknowledges (as already described earlier)
that the mob had become uncontrollable and inspite of efforts, the police
was unable to control it. But even here the Hon'ble Judge chooses to blame
MK, that it was she who did not give any instructions to the police to act.

o.) The 'pre-concieved guilt' of MK and prejudice against MK is further
apparent in the following observation of the court::

"...A-37 was the then current M.L.A., hence it can be inferred that she must
have ambition to go ahead in politics and she cannot leave the temptation of
taking political mileage by being kingpin in the series of events that took
place on that day..." (Pg. 703)

(similar assertions on page 737, 738)

Comment: the whole sentence above is an assumption. The Hon'ble Judge
is opining as if being an M.L.A (politician) or having a hospital in the
area is itself a crime.

Why are all the assumptions only against her? The fact that she was a
politician or had a hospital in the area in a positive light as well, but the
Hon'ble Judge chooses to look at all of that as against her credentials. It is
one thing criticizing and penalizing her for failing to perform her duties as
an M.L.A of the area and it is completely a different thing saying that she
was the one who provoked the mob when by the Hon'ble Judge's own
acknowledgement even earlier the mob was so infuriated that MK could not
have done anything and that even if she had, the mob would have attacked
them first.

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The Hon'ble Judge could have very well rightly criticized MK for not
being able to perform her duties as an M.L.A of the area but that is not
the same as punishment for the crime of murder, conspiracy etc.

In case of the Senior Police Inspector Mysorewala, in context of a PW's
deposition that he saw the PI talking to MK; the Hon'ble Judge opines
that "..It is but natural that if the M.L.A of the area would come at the spot,
he would be talking to her but then it is not a crime.." (Page 721). Be it a PI
or an M.L.A, the court cannot hold a person as a criminal on the basis of
vague assertions. The Hon'ble Judge could see this in respect of the PI, but
maybe because of a deep-rooted prejudice against MK, it could not apply
the same logic in respect of MK.

p.) In respect of the deposition made by PW-143 (..Eyewitness 5), the
Hon'ble Judge concludes "...As A-37 [MK] was leader and it is only after
she came on that day the disturbances started she needs to be held as
Kingpin. A-37 and many other accused are held to have hatched the
conspiracy as mentioned in the charge." Interestingly the logic the Hon'ble
Judge uses to rely on the evidence of this witness is that "..By and large the
PW is truthful, but as seems is in a habit of exaggerating and disowning his
own version or statement. For this habit, his versions are appreciated
accordingly. However, this habit is not found to be sound reason to
disregard his most reliable part of his testimony.." (Page 721)

Comment: The Hon'ble Judge relies on a witness who is in a habit
of exaggerating and disowning his own version of the statement for holding
that MK 'needs to be held as Kingpin' (Page 722) of the riots.

The Hon'ble Judge further states that "..in any area, normally none can be
more active leader than the M.P. or M.L.A... A-37 is the M.L.A of B.J.P.
from the Naroda constituency, hence it is clear that she hails from and she is
on the date of occurrence in B.J.P.. Now, if she cannot be termed to be
active leader of B.J.P that too in Naroda Constituency, then who else can be
called the leader of B.J.P in that area. It can therefore be inferred that A-37
was present at the site.." (Page 725)

Comment: The above comment is a perfect blend of assumptions,
generalizations and a deep rooted prejudice against the accused MK. It is
surprising that such reasoning is resorted to for holding a person as
criminally liable and punishable with the highest punishment.

It seems that the reasoning used in the judgment seeks to corner MK
from all directions rather make an impartial assessment of the material
on record. On one hand it says that MK being the MLA was bound to
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be present in the area where riots took place at the time. Then it states
that the mob was so furious that it could have killed even her if she
would have tried to pacify them, and that is why the only possibility is
that she must have provoked them. Again, it states that she in all
probability she must have provoked them as being a political leader she
must have taken a stand to gain political mileage. The only crime that
comes out from such assumptions and generalizations by the court is
that of being an M.L.A or a public figure. At the cost of repetition, I
have to say that all of this indicates that there is a deep-rooted prejudice
against MK in the judgment.

q.) Summary of the important observations from this section are that:

i.) In most cases, it is not clear where the eye-witness's were standing so
as to be able to hear or 'guess' what MK was doing, or as to how they
were present in the midst of such an angry mob when 'natural behaviour'
would suggest a desperation to run away from such a mob. At such a time
would a person run to his or her home, take his or her family and children
and flee, or would the person stand and watch as to what MK is upto. It is
not that the witnesses were looking for their family members in the mob as
at that time (as per the court) the rioting had not even started. But the riots
were apprehended. At such a time, is the person expected to desperately
reach out to his or family members or stand and look at the mob.

ii.) There are various instances in the judgment where:

I. Inconsistencies and material discrepancies in the depositions have been
ignored.
II. Portions of testimony going against MK have been believed and the
ambiguities have been ignored.
III. Vague descriptions of MK's role in the testimonies of the Prosecution
Witnesses have been accepted as true on the principles of 'probability' and
'natural behaviour'.
IV. There are various instances in the judgment where the Hon'ble Judge has
made certain generalizations and baseless assertions.
V. Blanket assumptions have been resorted to, to 'drive home' the guilt of
MK.

4. Tehelka Sting Operation

a.) As far as MK and other accused who were not 'caught on tape' are
concerned, the court itself observes "...these conversation solely cannot be
the foundation to bring home their guilt, but it can be used as corroboration
after marshaling all the evidence against the accused, which is capable to
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provide corroboration to any kind of evidence against the accused..." (page
758)

Immediately after making the above observation the court states ".. In this
Sting Operation, it is stated that A- 37 has visited the site of the offence in
the morning as well as in the evening on the date...".

b.) Referring to the gist of revelations made by Babu Bajrangi, the court
states "..Mayaben (A-37) had arrived at the Patiya at 04:00 p.m..." (page
765).

Apparently, Bajrangi also had managed to get inside MK's mind as
'acknowledged' by the court itself:

"..Mayaben kept wondering throughout the day in a car. I was a leader that
day. We slaughtered Muslims, Patiya is half kilometer away from my house.
I and the local public were there to do the massacre at Patiya. If one would
go to Godhara, one would be provoked and would determine to kill all the
Muslims then and there. We retaliated at Patiya. In Patiya, we had secured
the highest death toll. Naroda village is at distance of half kilometer
only.." (Page 765)

c.) Referring to the gist of revelations made by Suresh Chhara, the court
states "..Mayaben (A-37) was there where the occurrence took place. She
said, Kill, them. I am and will be with you always. You will always have my
backing. Mayaben was there for 30-45 minutes.. (Page 768)

d.) Referring to the gist of revelations made by Suresh Richard, the court
states:

"..Kishan (A-20) and Manoj (A-41), are close aides of Mayaben (A-37).
They are left and right hands of Mayaben.." (Page 769-770)

"...Mayaben was there at the site on the date of occurrence for the whole
day up to 8 p.m., in her car taking round and on every round, she was
telling us "You are doing proper deed, go ahead." (Page 770)

"...Mayaben was taking round in her car for whole day. Mayaben was
telling "Continue, doing all these deeds, I am at your back". She wore white
saree and put on saffron belt. We were doing slogan shouting and had
saffron bend..." (Page 770)

"..Mayaben told police that, "do not do anything today.." (Page 772)

17

e.) The court in it's finding observes "..the 'Sting Operation' of A-21 is also
interesting wherein he reveals that A-18 is lion of Hindus and on his call,
entire Chhara Nagar would come out. He states that A-55 was there, A-22
was there, A-18 was there, A-37 has instigated and has assured that, "she is
with them", A-37 waited for half and hour to 45 minutes.." (Page 784) (also
refer point number (ix)(b) above).

f.) In respect of the sting operation the court very pertinently observes: "...if
from the evidence otherwise available against the co-accused, which can be
marshaled from the record of the case and then, from that if the co-accused
are found connected with the crime, then the extra judicial confession has
corroborative value... be it noted that if the evidence on record is found to
be capable enough to point their guilt, then only, the confession of the co-
accused viz. of A-18, A-21 and A-22 can be used to corroborate the finding
of this Court against the said co-accused.." (Page 791)

Comment: The court uses evidence from the sting operation to
corroborate the charges against MK. But the depositions by the
witnesses before the court have been made after the sting operation was
in public. How does the court rely on the statements made in the sting
operation to corroborate the depositions made by the various eye-
witnesses when it seems that certain that the prosecution or political
rivals of MK could have easily tutored the witnesses to be in conformity
with what has been stated in the sting operation?

References:

1. Jahed v. State, 1995 CrLJ 3451 (Cal); see also 'Law of Evidence', S.C.
Sarkar, LexisNexis (18th Edition) at pg.116
2. Sarwan v. S,A 1957 SC 637, 645; Jaharlal Das v. State of Orissa, 1991
CrLJ 1809, 1815 (SC)
3. Ram Singh v. Sonia, (2007) 3 SCC 1 (22). See also 'Law of Evidence',
S.C. Sarkar, LexisNexis (18th Edition) at pg.117
4. see also page 726 of the judgment
5. Page 679 of the judgment
6. Page 669 of the judgment
7. Harendra Narain Singh v. State of Bihar, A 1991 SC 1842, 1844. See also
'Law of Evidence', S.C. Sarkar, LexisNexis (18th Edition) at pg.147
8. Page 682 of the judgment
9. Page 699 of the judgment
10. Also see Pages 1584, 1809-10, 1813, 1888 and 1948 regarding assertion
that rioting started after MK came at the scene and that she was the kingpin
of the riots