Anil Yadram Patel was the only eye witness produced by the Central Bureau of Investigation in the sensational trial of the murder of former Gujarat home minister Haren Pandya, who was shot dead on March 26, 2003 at Ahmedabad while he was out on a morning walk.
It was his sole testimony which mostly formed the foundation of the Supreme Court judgment restoring the conviction and sentence of twelve accused persons in the case.
The bench of Justices Arun Mishra and Vineet Saran also endorsed the version of the CBI that the murder was part of an "international conspiracy" executed to "spread terror amongst Hindus" to avenge the anti-Muslim Gujarat riots of 2002.
These findings of the Court were largely based on confessions made by the accused in police custody, which would not have been admissible in evidence but for the provisions of since repealed Prevention of Terrorism Act 2002(POTA).
The case was jointly investigated and tried along with a case of attempt to murder of Jagdish Tiwari, a leader of Vishwa Hindu Parishad in Ahmedabad, which occurred two weeks ago the murder of Pandya. The trial court had found the twelve accused guilty in both the cases. The Gujarat High Court however set aside their conviction in the Pandya murder-conspiracy case, though the conviction in the attempt to murder case was sustained.
One of the major facts which weighed with the High Court in reversing the conviction was that no blood was found in the seat of the Maruti car, where Pandya was stated to have been seated at the time of attack. Anil Yadram, a handcart vendor, claimed that he saw Mohmed Ashgar Ali, the first accused in the case, firing five rounds at Pandya through the car window when he was at the driver's seat . He added that Ashgar Ali escaped in the bike of Mohammad Yunus Sareshwala, the sixth accused, after the attack.
The High Court observed that five rounds of fire will cause profuse bleeding and therefore the seat ought to have been soaked in blood.
Refuting this, the Supreme Court said on the basis of a doctor's statement that the amount of blood will depend on if the hemorrhage was internal or external. Out of 7 bullet injuries, 6 were internal wounds, and it was external only at the forearm where minimum or less blood is possible, the SC opined.
"As already discussed, it would depend upon the injury whether it was internal bleeding and how a person is lying, it can also spill on the clothes and fact remains blood has also been recovered from the Maruti car. It is not necessary for how much quantity it should have been recovered", observed the Court.
The apex court did not find any infirmity in the identification of Ashgar Ali by Yadram in a test identification parade held twenty days after the arrest. It held that there was no undue delay in holding the TI parade, given the "intricate nature of investigation".
Low gap in the car window
The HC deduced from Yadram's account that the glass window of the car was mostly rolled up, and hence it would not have been possible to fire at Pandya through the car window. Based on this, the HC had doubted Yadram's credibility.
But the SC preferred to ignore the description given by Yadram regarding the position of glass window at the time of attack on the reasoning that it cannot be precisely recalled by a person.
"It is too much to expect a person to state how much rolling of the glass of windows had been done at the time of firing. Even if the witness had stated so, that would be merely his guesswork", it observed in the judgment delivered on July 5.
Five bullets, seven wounds
There were seven gunshot wounds in Pandya's body, though only five bullets were recovered. This led the HC to doubt the prosecution version.
The SC however found an explanation for the two additional wounds. Based on the medical records in the case, and also referring to forensic authorities, the SC explained that the two additional wounds were "communicating wounds". In the context of firearm injuries, they are not exit or entry wounds, but are wounds caused when the bullet traces the body on its path.
"The High Court as well confused as to the number of injuries on the basis of 7 wounds and 5 number of bullets fired. In case of such communicating injuries, it is not necessary that the bullet should enter any part of the body while reaching to the last injury, it may cause scratch or touched the small part of the body or soft tissue as has been done in the instant case. It has happened in the instant case", the SC said.
The HC had further held that it was impossible that Pandya could have been shot through the scrotum — one of the seven gunshot injuries — while he sat in the car with only a three-inch opening in the window.
Regarding this, the top court noted that the eye witness had said that when he was shot, he fell down and his leg came up. It was not possible to explain how the body would react in such a situation, added the bench headed by Justice Mishra.
In choosing to believe the account of Yadram, the top court applied the principle of evidence that in case of inconsistency between ocular evidence and scientific evidence, the former will prevail. The High Court had followed the opposite approach, discarding the witness's statement in the light of inconsistencies with forensic evidence.
Omission of other witnesses
The High Court also found it hard to believe that only Yadram, an illiterate street vendor, could identify Pandya, who was then Gujarat Home Minister, in the Law Gardens of Ahmedabad, where the elites of the city gathered in large groups for regular morning walks.
Although there were several persons along with Yadram, none of them were examined in the trial.
At the time of the incident, Yadram was with his vendor colleague Kanaiya. Sweeper Ramesh was also nearby. But they were not examined. He had immediately told about the incident to one Shukla Chacha. They then went to meet Nanubhai, the owner of Chitty Bang amusement park where Yadram did his business.
The SC took the view that non-examination of these witnesses "did not cause any dent in the prosecution version".
"Merely on the ground of non-examination of the witness Kanhaiya, the deposition of PW55 cannot be discarded.
It does not make any difference whether Nanubhai CW1 was examined as a court witness or as a prosecution witness. Once a witness has been examined, his evidentiary value has to be considered in accordance with the law", said Justice Arun Mishra in the judgment.
With respect to no one else being able to identify Pandya, the Court said "As the glasses were dark, obviously it was not possible for others to take note of the fact that Haren Pandya was lying killed in the vehicle". (Yadram had stated that Pandya was rolling up the glasses when he was being shot at).
The SC also found no infirmity in CBI dropping Jagruti Ben, the widow of Pandya, from the witness list. Except for stating the time when Pandya left the home, she did not bring anything substantive in the case, and her omission was inconsequential, said the SC.
Jagruti Ben and Vittalbhai Pandya, Haren Pandya's father, had filed petitions seeking court monitored investigation, alleging that the murder was part of a political conspiracy. The petitions were however not entertained.
Non-examination of Pandya's phone
It was urged by the lawyers for the accused that the mobile phone of Pandya, which was with him at the time of death, was not investigated. Such an inquiry would have revealed who all had contacted him shortly before the murder, they argued.
The SC opined that "it was not necessary at all" .
"It is not disputed that he had left the house in the morning to walk.It was urged that no fingerprints were lifted from the car or from the weapon recovered afterward and shoes were not recovered. In our opinion, it was not a case of a cold¬blooded murder where there was no eye witness", said the Court in the 234 pages judgment.
The link to the other accused through the conspiracy angle was brought essentially through confessional statements of the accused given under custody.
According to the prosecution, the mastermind was Mufti Sufian, a local cleric who incited Muslim youth to carry out attacks. Some of the accused in this case were convicted in the tiffin box bomb attacks on city buses on May 29, 2002. Mufti Sufian allegedly took the accused persons to Pakistan where they were trained in the use of firearms. Sufian and three others absconded and did not face trial.
Section 32 of the POTA makes custodial confessions admissible in evidence, making a departure from the normal rule.
The team of lawyers for the accused, including Senior Advocate Raju Ramachandran, Advocates Nitya Ramakrishnan, Shadan Farasat etc., argued that the confessional statements were forcibly extracted after long periods of custody. The Court however held that the confessions were recorded after fulfilling the conditions under Section 32. The SC said that the accused were wanted in other cases, and hence their long period of police custody was justifiable.
The lawyers also highlighted that the confessional statement of Ashgar contained highly Sanskritised words such as "suraksha", "prabandh", "poorva" 'netritva' 'anusar' 'hatya' "sampark", etc., which he, a Hyderabad-based Muslim, was not likely to use in normal course. Hence the confessions were concocted, they argued.
The Court rejected this line of argument by saying :
"Merely by the fact that A¬1 happens to be a Muslim, it cannot be said that he would not know these words, particularly when it would depend upon his own education and the family background in which he has been brought up. There are highly cultured and literary families found in Muslims also who know several languages not only Urdu and are known for their Tehzeeb. Thus the criticism made of the confessional statement due to use of the aforesaid words that they could not have been employed by A-1 or by other accused persons is not only unwarranted but also unacceptable and the same is liable to be and is hereby rejected".
The Court also said that the confessional statements were corroborated by call detail records, records of journey and hotel stay of the accused.
Different opinions about investigation
It is curious to note that the High Court and the Supreme Court had formed extremely divergent opinions about the CBI investigation from the same set of materials .
The HC bench of Justices D S Waghela and Upadhyaya had termed the investigation headed by the present NIA chief Y C Modi totally "botched up".
"…The investigating officers concerned ought to be held accountable for their ineptitude 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 in the 2011 judgment.
Totally overturning this view, the SC said :
"There is voluminous evidence discussed in criminal appeals decided today…with respect to the complicity of the accused persons in the offence…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."
Along with this, the Court also dismissed a plea by CPIL for further probe into the case. CPIL was imposed costs of Rs.50,000/- for the petition, which the Court found to be lacking in bona fides.
The CPIL plea referred to a statement given by one Azam Khan during the trial of Sohrabuddin case. Azam Khan had given a statement last November during the trial of Sohrabuddin case that Sohrabuddin Sheikh had confided to him that Haren Pandya was murdered as part of a "contract" given by former IPS officer DG Vanzara.
The Supreme Court said that Azam Khan's statements cannot be given any value. He made the statements nearly fifteen years after the incident, and had not revealed it to the CBI at any of the earlier stages of investigation of Sohrabuddin case, said the apex court.
The petition also referred to claims by Rana Ayyub in her book "Gujarat Files" that YA Shaik, a CBI officer who handled the case, revealed to Ayyub that the CBI had not done any investigation of its own and merely repeated what was told to them by the Gujarat Police.
But the Court discarded Ayyub's book by saying:
"The Book by Rana Ayyub is of no utility. It is based upon surmises, conjectures, and suppositions and has no evidentiary value. The opinion of a person is not in the realm of the evidence. There is a likelihood of the same being politically motivated, cannot be ruled out".
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