New Delhi: Non-identification by eyewitnesses, and claims that one of the victims saw two of the accused in the Best Bakery Gujarat 2002 communal riots case as “saviours” and not “rioters” led a Mumbai court to acquit the duo Tuesday.
Additional sessions judge M.G. Deshpande acquitted Harshad, alias Munno Ravjibhai Solanki, and Mafat, alias Mahesh Manilal Gohil, and said that the prosecution “miserably failed to establish and prove beyond reasonable doubt that both these accused were a part of unlawful assembly, committed riot, set Best Bakery and adjoining premises on fire where 14 people died.”
Among other things, the court relied on the testimony of a witness, Lal Mohammad, who had submitted that “Munna” (Munno) had in fact helped him, his family and other Muslims by protecting them in his house.
“In this way, the role attributed by Lal Mohammad (PW36) [prosecution witness number 36] to Munna and Mafat is not of ‘rioters’ or ‘assailants’ but it is that of ‘protectors’, ‘saviours’ and ‘shelter givers’,” the court said.
Fourteen people were killed on 1 March 2002 in Vadodara’s Best Bakery after being attacked by a mob of allegedly over 1,000 people during the communal violence in Gujarat that was triggered by the Godhra train burning.
Of the 21 accused in the case, only four have been convicted, while 15 were acquitted and two died during the trial.
The Gujarat Police had booked all 21 people on various charges, including murder and rioting. Initially, the accused were tried by a fast-track court in Vadodara in Gujarat, which acquitted all the accused in June 2003.
According to Tuesday’s judgment, this was because all members of the Habibulla family, who owned the bakery, as well as several other witnesses, turned hostile.
The acquittal was confirmed by the Gujarat High Court. However, in April 2004, the Supreme Court directed a retrial in the sessions court in Mumbai, after Zahirabibi Habibulla Shaikh, daughter of the bakery owner, approached the court.
In Mumbai, in February 2006, the sessions court convicted nine accused and acquitted eight others. The Bombay High Court upheld the conviction of four of the nine accused, while acquitting five in 2012.
The high court confirmed the convictions of the four accused based on evidence and their identification by the injured witnesses. None of the convicts challenged their convictions in Supreme Court.
The retrial of Munno Ravjibhai Solanki and Mahesh Manilal Gohil was separated from the others after they were declared absconding. They were later arrested in 2013.
During the hearing in the Mumbai court, the two accused denied being present at the place of the incident. They have been in jail for about a decade following arrest in 2013, said Tuesday’s judgment.
ThePrint has copies of the Supreme Court judgment, the Bombay High Court judgment and Tuesday’s judgment, from where all details of the case have been sourced.
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‘Munna protected us, his mother gave milk’
The Best Bakery was owned by Habbibulla, who had passed away a few months before the 2002 incident. The FIR in this case was filed based on the facts stated by his daughter, Zahirabibi Habibulla Shaikh, immediately after the incident.
According to Tuesday’s judgment, on 1 March 2002 at 8 pm, a mob of 1,000- 1,200 people marched towards the Best Bakery from all directions, carrying torches (mashaals), swords, iron rods, sticks and other lethal weapons.
Members of this mob set the timber stalked in the basement of the bakery on fire. Several people were charred to death, while others took shelter on the terrace of the bakery, the judgment said.
The next morning, the people hiding out on the terrace of the bakery were asked to come down using a ladder. They were then assaulted with sticks, swords and other lethal weapons. It was also alleged that several women were threatened with rape, it added.
The prosecution over the years examined 10 witnesses in the retrial against the two accused — Harshad and Mafat.
The court noted that the injured eyewitnesses, on whose evidence the high court had confirmed the conviction of the other accused, had not attributed any role to Harshad or Mafat in their statements. It added that the injured eyewitnesses also couldn’t identify the two accused in the court.
Another witness, Lal Mohd. Khuda Baksh Shaikh, whose godown was burnt in the same incident, submitted in court that he and his family managed to escape the assault by escaping through the rear door of their house at 12.30 midnight.
He then claimed that Munna and his mother took them to their house and protected them. He also told the court that Munna’s mother gave milk to his grandchildren.
“It is material to note that he is the witness who referred [to] a person as Mafat in his evidence, but deposed that neither Jayanti nor his son – Rinku – nor his nephew Mafat nor Munna attacked him or the persons with him,” the court noted.
While one of the eyewitnesses, Taufel recognised “Marfatio” or Mafat in court during a video conferencing hearing, he couldn’t recall his name or any specific acts done by him during the incident.
Rise and fall of Zahirabibi
During the first trial before the court in Vadodara, Zahirabibi had turned hostile. However, she later filed the appeal in the Supreme Court along with an NGO, Citizens for Justice and Peace, which has Teesta Setalvad as a member.
Zahirabibi had alleged that she had turned hostile before the sessions court because she was pressured by certain people in Gujarat. However, during the retrial, she again turned hostile before the Mumbai sessions court.
Setalvad had then filed an application before the Supreme Court, demanding that Zahirabibi be convicted of contempt for giving false evidence in the apex court. The Supreme Court had then convicted Zahirabibi for contempt and sentenced her to a one-year jail term in March 2006. She had undergone that sentence.
In this case, the prosecution argued that the FIR mentioned Mafat as “Marfatio”, and therefore, his identity and participation in the mob were established.
However, Judge Deshpande took note of Zahirabibi’s conviction for contempt, and observed, “Considering the hostility of Zahirabibi (PW41) and the observations of the Hon’ble High Court referred above much emphasis and importance cannot be given to her testimony and statement Exh.139 (FIR) made by her about ‘Marfatio’ therein.”
One of the other witnesses, Yasmin, also informed the Mumbai court that she was threatened with rape by four men — Jitu, Jagdish, Mafat and Munno. However, the Bombay High Court had not considered her a credible witness, and so the Mumbai court also refused to rely on her testimony now.
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A sword and an iron pipe
Another witness, Kamlesh Darji was examined as a witness to prove the recovery of weapons — a sword and an iron pipe — allegedly after the two accused led the police to the weapons.
The court noted that Darji had only submitted that he was taken to a place called Hanuman Tekdi by the police and one “other person”, and the weapons were recovered from the Tekdi. However, the court noted that Darji was not able to specify who the other person was or the exact weapon that was recovered.
The court said that to make those panchanamas and recovery of weapons relevant according to Section 27 of The Indian Evidence Act, it had to be proved that one of the two accused gave a statement about a place of the weapons that he had special knowledge of and that on the basis of the statement, the place was located and the weapons were recovered from there.
But the court felt that evidence of Kamlesh Darji recalling the “other person” was vague and did not prove this.
According to Section 27 of the Indian Evidence Act, confessions made to police officers are inadmissible as evidence. However, Section 27 of the Indian Evidence Act allows limited use of the information, which an accused may have disclosed to the police while in custody. It says that when an unknown fact is actually discovered, consequent to the information given by an accused, then that information may be used as evidence.
The court was of the opinion that there was “absolutely no substantive evidence against these two accused persons (A3, A4) [accused 3 & 4] that they were armed with sword and iron pipe at the time of both incidents i.e. night as well as morning.”
It said that even though the sword and iron pipe were recovered at their instance, there was no evidence that they were possessing the sword and iron pipe at the time of the incident and that they injured anybody with it.
(Edited by Richa Mishra)
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