New Delhi: The Supreme Court Friday restored the conviction and sentence of twelve accused in the 2003 murder of former Gujarat Home Minister Haren Pandya. It is a case of how the same probe and evidence produced diametrically opposite outcomes by the trial court, high court and the apex court.
The Supreme Court’s 234-page judgment overturned the acquittal by the Gujarat High Court and restored the conviction of the 12 accused by a trial court without ordering a fresh probe and with the same material as the other courts did.
The judgment was passed by a bench comprising Justices Arun Misra and Vineet Saran, which also endorsed the CBI’s version that the murder was “a part of an international conspiracy” to “spread terror amongst Hindus”.
Pandya was a minister in the then Narendra Modi-led state government in Gujarat. He was shot dead on 26 March 2003 in Ahmedabad near Law Garden when he was out on a morning walk.
The 12 accused were convicted by a Special Court in June 2007. However, on appeal, the Gujarat High Court overturned the verdict and acquitted all the 12 accused on 29 August 2011.
Same investigation, but different outcomes
The Gujarat high court had come down heavily on the CBI, calling the investigation “botched up” and “misdirected”.
The HC had observed, “What clearly stands out from the record of the present case is that the investigation in the case of murder of Shri Haren Pandya has all throughout been botched up and blinkered and has left a lot to be desired.”
“The investigating officers concerned ought to be held accountable for their inaptitude resulting into injustice, huge harassment of many persons concerned and enormous waste of public resources and public time of the Courts,” the HC had said.
However, the Supreme Court said the CBI had investigated the case “thoroughly and minutely” and “the conspiracy between accused persons has been found established…”
“It cannot be said that investigation was unfair, lopsided, botched up or misdirected in any manner whatsoever, as had been observed by the High Court in the judgment which we have set aside,” the SC stated in its judgment.
The Supreme Court also thoroughly looked into the evidence examined by the trial court.
For instance, the high court had deduced from the sole eyewitness Anil Yadram Patel’s testimony that the glass of the car in which Pandya was sitting was rolled up considerably high for the accused to have been not been able to fire at him via the car window.
But, the Supreme Court was of the view that Patel could not have been expected to state accurately as to how far the windows were rolled up at the time of firing. “Even if the witness had stated so, that would be merely his guesswork,” the SC said.
The Supreme Court also refuted the high court’s rejection of the prosecution version on the basis of the fact that there were seven gunshot wounds on Pandya’s body, while only five bullets were recovered.
The SC explained that the two extra wounds were actually “communicating wounds” that were caused when the bullet razes the body without entering it.
The high court had also held that Pandya could not have been shot through the scrotum via the barely open car window. The Supreme Court, however, relied on the eyewitness account, which stated that when Pandya was shot, he fell in the car and his legs went up, explaining the injury.
In doing so, the apex court relied on the principle of evidence that in case of inconsistency between eyewitness account and scientific evidence, the former should be relied on. But, the high court had done the opposite.
The apex court also discarded the importance allotted by the high court to the fact that there was no blood found in Pandya’s car. The high court had asserted that this had “deepened” the mystery surrounding the murder.
However, relying on medical evidence, the Supreme Court observed that the amount of blood would depend on several factors such as the position of the person and whether the injury was internal.
High Court didn’t examine the case properly: SC
The Supreme Court has time and again held that an appellate should interfere with an order of acquittal only when there are “compelling and substantial reasons to do so”. Therefore, in order to reverse the acquittal, the court, in the case at hand, examined whether the high court’s approach was valid while setting aside the convictions.
The Supreme Court questioned the high court’s approach in dealing with the appeals as the HC had chosen to not deal with every argument of the counsel for both sides in view of the “concession granted by the counsel for the appellants, voluminous records and number of controversies about each piece of evidence”.
The concession referred to by the high court was the assurance given by the accused persons’ counsel that they would not insist on acquittals if they were absolved of the murder charge.
The apex court also noted that the high court did not deal with the case elaborately.
The SC observed, “It could not be said to be the proper approach of the High Court. The High Court ought to have examined the entire background as to what facts and circumstances prevailed and whether the chain was complete to make out the case of conspiracy.”
“It was absolutely necessary so as to find out the conspiracy. The acquittal recorded by the High Court was wholly uncalled for and is based on basically a wrong approach.”
The SC bench also said that the high court’s observations were “not only uncalled for but based on incorrect appreciation of medical/forensic evidence and ignoring material evidence on record”.
Confessions by the accused were upheld
In this case, all the accused had confessed to the crime in police custody, which formed the basis for the conspiracy charge. These confessions would not have been admissible as evidence, but were taken into consideration under the provisions of the Prevention of Terrorism Act 2002 (POTA), which has since been repealed.
The confessions were, therefore, recorded under Section 32 of POTA. However, all of them had retracted later, citing different reasons, ranging from force to torture and fear of encounter.
The high court had accepted the doubts raised on the confessions, noting several factors such as these being recorded at odd hours as well as the absence of legal aid during the period of confinement while the confessions were being recorded.
The Supreme Court, however, upheld the confessions, opining that they were voluntary and supported by other evidence available on record. It was of the view that there was no breach of any of the constitutional rights flowing from Articles 21 (right to life and personal liberty) and 20(3) (protection against self incrimination) of the Constitution, as they had been informed of their rights, were given time to reflect on their decision and had spoken to their lawyers after they were arrested.
No new material for fresh probe
The SC also turned down a plea filed by NGO Centre for Public Interest Litigation (CPIL), seeking a court-monitored probe into the case. The court’s reasons for dismissing the plea were two-fold.
Firstly, it pointed out that the matter had attained finality through dismissal of appeals and petitions filed by Pandya’s family members demanding re-investigation. The PIL was filed when criminal appeals registered in the Supreme Court were being heard.
A petition filed by Pandya’s father, seeking re-investigation, was dismissed by the Gujarat High Court way back in 2008 and a special leave petition challenging this order had also been rejected by the Supreme Court. Pandya’s wife had filed a similar petition in 2012 in the high court, which was also dismissed.
Secondly, even on the merits, it said that the material on record did not call for a re-investigation.
The SC examined the new material placed before it and noted that the plea majorly relied on newspaper articles as well as journalist Rana Ayyub’s book ‘Gujarat Files – Anatomy of a Cover Up’.
In her book, Ayyub had stated that Pandya’s case was like a volcano.
The court, however, chose not to rely on it, asserting that the book was “based upon surmises, conjectures, and suppositions and has no evidentiary value”, and there was a likelihood of it being “politically motivated”.
The top court also took note of the allegations made by Pandya’s family and asserted that fresh investigation could not be ordered against political figures merely on the basis of a “vague statement” by Pandya’s father. His father had expressed his doubts about these accused being the actual killers in an article published by Outlook magazine.
“The applicant has no material to substantiate the material of political rivalry. In the absence of material, there cannot be an order for further investigation or reinvestigation. On merit, the applicant has failed to make out a case for further investigation or reinvestigation,” the SC observed.
The Sohrabuddin connection
The plea for a fresh probe had also relied on statements made by Mohd Azam Khan, who was produced as a prosecution witness in the Sohrabuddin Sheikh fake encounter case.
Khan had claimed to have been told by Sohrabuddin that D.G. Vanzara, a former IPS officer, had given him and two others a contract to kill Pandya.
The apex court, however, did not find the statement to be reliable, opining that it was an afterthought.
“Even otherwise the statement made after more than 15 years is wholly unreliable and an afterthought and was not connected with the matter in question in which it was made,” the SC said.
“Thus, it appears to be clearly a motivated one and bundle of falsehood as he could not give any reason for omission in the previous statement in which also this issue was not involved,” it observed.
While dismissing the CPIL plea for a fresh probe, the top court came down heavily on the NGO, asserting that the petition was not “bona fide”.
The bench observed that the PIL raised the same questions, which had been dealt with in the appeal filed by the family members, and which had already been dismissed by the court.
“…raking up of the matter, again and again, is not permissible and was wholly unwarranted in the facts and circumstances of the case. The same amounts to political vendetta,” it added.
The court also took objection to advocate Prashant Bhushan representing the CPIL, in light of the Rules of Conduct framed by Bar Council of India, which forbids an advocate from representing an organisation if he is a member of its executive committee.
The court further took objection to the fact that the CPIL’s plea was based on several documents that the accused had relied on, inferring that the documents had been supplied to CPIL by the accused persons’ lawyers.
“It is shocking and surprising that the accused have resorted to the aforesaid method of getting filed the petition in guise of the PIL by supplying the documents to CPIL in their self interest and virtually attacking the case of the prosecution on the same grounds…” it observed.
The PIL was, therefore, dismissed and a fine of Rs 50,000 imposed on it.