Zahira’s Conviction
By Maxwell Pereira
mfjpkamath@gmail.com

The notable story of the time is Zahira Sheik’s conviction and jail sentence. Not only because she got her just comeuppance and is punished, but because with this verdict the Supreme Court sent down an unequivocal message to the country and its would be detractors and ‘hostile witnesses’ that committing perjury – telling lies on oath – will no longer be ignored or taken lightly.

Not amused with the flip-flops of conflicting statements made by her before it in the Best Bakery case of the post Godhra-Gujarat carnage, the apex court in a path-breaking order sentenced Zahira to a jail term of one year with fine of Rs.50,000. “….the criminal justice system is likely to be affected if persons like Zahira are to be left unpunished,” the court observed.

It is another matter that the criminal justice system is already affected – the rot and decay already set in – many would say, beyond redemption. Going by common perception, telling lies in court to suit individual need or circumstance is an accepted norm today – if at all one is constrained to testify as a witness in court. More so, in a criminal case where evidence tampering and witness-inducement through money-power, influence, allurement or blackmail, cajoling, bullying, intimidation or threat is the order of the day.

Noteworthy is that the punishment imposed by SC is not for perjury, but for contempt of court. This, because superior courts invested with inherent powers to try the accused themselves and impose punishment on a charge of contempt, often resort to this quicker route to dispense their own justice. It is not clear though under what provision or Act the sentence of 1 year has been imposed, since the maximum punishment provided under the Contempt of Courts Act, 1971 is only six months. For perjury, the notice to Zahira (and four others) to show cause why she should not be tried for giving false evidence and punished under section 193 IPC – issued by sessions judge Abhay M.Thipsey of the Mumbai trial court, is coming up on March 20.

Most in the legal fraternity have welcomed the verdict, but opinion is divided on quantum of punishment – for some the sentence of one year is too harsh, while others feel she got off lightly. But if ultimately convicted for perjury in Mumbai, her misadventure is likely to cost Zahira rather dearly – for the maximum sentence provided under 193 is seven years.

To recapitulate the sequence of events – in a fire that engulfed compartment S-6 of the Sabarmati Express on February 27, 2002 at Godhra in Gujarat, 59 passengers – mostly kar-sevaks returning from Ayodhya – were killed. This sparked off riots across Gujarat, believed throughout the world to be due to chief minister Narendra Modi led state sponsored revenge on minority Muslims, at whom fingers were pointed for setting the bogies aflame. Violence of unprecedented brutality targeting the Muslim community spread in the state and continued in the weeks that followed, leaving more than 2000 dead. The state government, administration and police took insufficient action to protect civilians and widespread reports at the time implicated police officers and members of Hindu nationalist groups, including the ruling BJP, in violence against Muslims. In most instances police recorded complaints in a highly defective manner, witnesses’ statements as well as corroborative evidence was not thoroughly collected and responsibilities of eminent suspects left not investigated. Charge-sheets framed invariably began with the assumption that a faceless mob of unknown people rioted and killed several Muslims as a reaction to the burning of the Sabarmati Express – to an extent thus facilitating acquittal. Victims of the carnage and observers elsewhere have blamed Hindu nationalists with full connivance of state machinery for sabotaging efforts to prosecute Hindus involved in the riots.

While the Nanavati Commission appointed by the then NDA government to enquire into these riots is yet to report its findings, the Banerjee Commission later appointed by the UPA government has in its findings declared the cause of fire in the train as due to accident.

Among these is the Best Bakery case of Vadodara, in which 14 persons – 11 of them members of Zahira’s family, met their gory end on March 1, 2002. Despite being an eye-witness to the killing of own family members, that Zahira turned hostile only made the trying judge’s task easy – to acquit the accused on June 27, 2003.

On July 7, Zahira and her mother disclosed they were forced to turn hostile by Gujarat BJP MLA Madhu Srivastava. On this the NGO: Citizens for Justice and Peace (CJP) moved the NHRC, which in turn petitioned the Supreme Court on July 31 seeking re-trial. In a pre-empting move the Gujarat government on August 7 filed an appeal in the local High Court against the sessions verdict, and followed it up with another fresh appeal on Sept 29 seeking re-trial. An outcry and allegations of this being just an eye-wash and apprehensions over a fair trial, prompted SC on April 12, 2004 to order retrial in neighbouring Maharashtra’s capital Mumbai, where retrial commenced on June 21.

In the re-trial Zahira turned around again to tells the court on November 3 that CJP’s Teesta Setalvad coerced her to name innocents as accused in the case. In the meantime the Supreme Court Committee headed by its deputy Registrar concluded that Zahira is a lier. The Bombay court completed proceedings in January 2005, and on February 24 convicted nine of the 21 accused, acquitting eight others. Zahira is declared hostile, and notice is issued to her for perjury. The Supreme Court sentence follows on March 8.

While the verdict is a strong message to would be perjurers, many also feel that it has made Zahira a victim twice over. In the absence of action against those who made her change her testimony – be it through allurement, threat or intimidation, the ends of justice will not really be met.

Mar 13, 2006: 950 words: Copy Right © Maxwell Pereira: 3725 Sec-23, Gurgaon-122002. You can interact with the author at http:// www.maxwellperira.com and maxpk@vsnl.com

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