02, May 2011

May 2
, 2011

Response to Alleged accusations by Smt Yasmin Shaikh

In
the nine years since the Gujarat genocidal carnage, that consisted
of a series of well orchestrated violent attacks on Gujarat and
IndiaÂ’s religious minorities following the ghastly arson in the
Coach S-6 of the Sabarmati Express at Godhra, systematic attempts to
malign efforts of human rights defender Teesta Setalvad and the
legal rights group that she is Secretary of, Citizens for Justice
and Peace have been made. Details of the malicious and intimidatory
campaign can be sourced at our website

www.cjponline.org along with the systematic rebuttals. Details
of the evidence of highest levels of state complicity in the
orchestrated attacks can be also accessed at

www.gujarat-riots.com

The
latest such attempt has been through the selective coverage in
The Pioneer of Yasmin ShaikhÂ’s affidavit allegedly filed before
the Bombay High Court in June 2010. The Pioneer edited by Chandan
Mitra –a BJP MP– carried the story without contacting us on April
19-20 2010. Other newspapers have since carried the PTI version
after trying to contact us. Hence we are now issuing this detailed
clarification.

The
CJP firmly denies the baseless allegations being made after the
conclusion of the Best Bakery trial and asserts that it has always
functioned within the law, assisting victims to access justice and
punish powerful perpetrators in a system that is loaded heavily in
favour of the accused.

We
wish to point out that as the paras excerpted below from the
judgement reveal, the false and defamatory narrative of tutoring
witnesses has been consistently and repeatedly made since 2004. The
allegations have remained the same, those making them have changed.

In
Mumbai, during the course of the retrial it was powerful defence
counsel, headed by Shiv Sena Member of Parliament Adhik Shirodkar
who made these allegations every day before the Court. During the
hearing of the trial, Ms Zahira Shaikh prime witness turned hostile
for the second time. It was Teesta Setalvad that asked for a SC
inquiry into the baseless allegations. The Registrar General of the
Supreme Court of IndiaÂ’s Report dated 29.7.2005 exonerated uys
completely. The full text of the report can be accessed at

http://www.cjponline.org/SCreport.pdf.The report indicted
Ms Shaiukh for accepting inducement, possibly to the tune of Rs 18
lakhs form BJP Member of the Legislative Assembly Madhu Srivastava.
A subsequent Income Tax Inquiry against Srivastava directed by the
Supreme Court of India has found a large sum of several given to
“undisclosed sources.” It is a tragedy of our system of the
administration of criminal justice that while Ms Shaikh served a one
year term of simple imprisonment for committing perjury –that is
lying on oath — the powerful MLA from the ruling party who
committed the criminal act of turning a witness hostile has not
suffered any punishment. Srivastava is also named as one of the
accused in the Zakia Ahsan Jafri complaint that has named Narendra
Modi, chief minister of Gujarat as accused number 1 for the crime of
planning a conspiracy to commit mass murder of his own people as
also subvert evidence and destroy documents and records .

Yasmin Shaikh was one of the many occurrence witnesses
(eye-witnesses) who testified in Mumbai between August 2004 and
February 2006 when the trial was transferred to Mumbai and the
re-trial ordered by the Supreme Court of India. (The judgement of
the Supreme Court dated April 12, 2004
http://www.cjponline.org/best/bakeryjudgement.pdf and the
Trial Court Final Judgement dated at are available at
http://www.cjponline.org/best/Best%20Bakery%20Judgement.pdf).
Specifically we would request all readers of this response to go
through Paras 848-861 of Jude TipsayÂ’s Judgement where he concludes,
after detailed examination of the evidence that there has been no
turtoring by Teesta Setalvad or her organization. We also
request that you read carefully Paras 305-364 of the judgement that
deals specifically with the evidence of Prosecution Witness 29,
Yasmin Shaikh.

She
and several other eye-witnesses had not testified in the Vadodara
fast track court that had ordered acquittal of all the accused in
June 2003.Both she and four other eye-witnesses deposed in the
Bombay trial court though they had not been produced by the Gujarat
police during the Vadodara fast track trial that was over within a
few weeks!

The
Citizens for Justice and Peace (CJP) and its Secretary, Teesta
Setalvad have, since 2004 when the highly contested Best Bakery case
was transferred out of Gujarat, and re-trial ordered been the target
of a serious campaign of malice and vendetta aimed at a) affecting
our role in assisting the dispensation of public justice; b)
defaming us in the public realm in a crude bit to influence the
Courts hearing the trials and other cases; c) de-railing the cases
against the mighty and powerful in Gujarat that are close to
conclusion and d) intimidating and influencing poor and hapless
witnesses and victim survivors who still live within the shadow of a
vindictive government in Gujarat.

We
believe that these crude attempts are nothing short of machinations
of powerful functionaries within the Gujarat government to
selectively target an individual and her organization (CJP) who has
stood by firmly in the struggle for justice in the tenth year of
IndiaÂ’s worst state sponsored communal massacre. We believe further
that the aim is to intimidate us away from our legal and
Constitutional objective of providing legal aid to victims and
eye-witnesses of mass crimes to ensure that the perpetrators are
punished and the guilty do not go scot free. We hope and believe
that our struggle within the Courts for justice will vindicate our
stand.

Fourteen persons were burnt alive at the Best Bakery killings on
March 1, 2002, 110 raped and massacred in broad daylight at Naroda
Patia and Gamm on February 28, 2002, 69 persons raped and butchered
at the Gulberg Society on February 28, 2002, Ahmedabad; 33 innocent
Muslims burnt alive in a house at Sardarpura village, mehsana and 27
more at Odh in Anand district (these are bot a glimpse of the major
massacres that were orchestrated by the powerful within the state).
In most if not all these mass massacres spread over 19 of GujaratÂ’s
25 districts the police abdicated their Constitutional obliogations
save a few brave officers. Those policemen who swam against the tide
were and are being persecuted by a vindictive administration. The
CJP has been responsible for aiding the justice process in Gujarat
and the perpetrators are the masterminds behind targeting
eye-witnesses, survivors and victims. We believe that the
targeted attacks against us through our Secretary. Teesta Setalvad,
this time through this affidavit of Yasmin Shaikh is nothing short
of a sustained and prolonged, malicious attack on our credibility.
CJP refutes each and all the allegations.

IM Kadri (President)
Nandan Maluste (Vice President), Teesta Setalvad (Secretary)

Other Trustees: Arvind
Krishnaswamy (Treasurer) Alyque Padamsee, Cyrus Guzder, Javed Akhtar,
Javed Anand, Rahul Bose, Cedric Prakash, Ghulam Pesh Imam, Anil
Dharker

 Excerpts
from the Trial Court Judgement:

Following Paragraphs from the 26.2.2006 Judgement in the Best Bakery
Re-Trial

“….851.
First of all, from the testimony of the occurrence witnesses, they
do not appear to have been tutored. The signs of having been tutored
were not found while analysing their evidence. While discussing the
evidence of these witnesses, it has been noted that they appeared to
be truthful. They have avoided attributing false overt acts to the
accused identified by them which would have been quite easy for
them. A number of instances are found in the evidence of these
witnesses where they could have implicated more accused than
identified by them or where they could have attributed more serious
acts to the accused, identified by them, which has not been done.
Secondly, they could be tutored only by a person who knew the facts.
It is difficult for a person who was not present at the time of the
incident to tutor an occurrence witness and if at all this can be
done, it would be based on the records of the case, which does not
seem to have happened in the instant case. Even some grave
incriminating matters, though found in the police record of the
statements of these witnesses, have not been stated by them in their
evidence, sometimes even after confronting them with such record.
Thirdly, in this case, the happenings of the incident and the manner
in which it took place, is not in dispute at all. So the aspect of
tutoring would be confined to the identification. It seems quite
unlikely that Smt. Teesta Setalvad would be able to tutor to
identify a particular person as the culprit. It is not easy to tutor
one to identify another not previously known to the one or even to
the person tutoring. Tutoring of this type would require the person
tutoring the concerned accused and the concerned witnesses to be
together for a reasonable time or on one or more occasions.
Moreover, the tutoring in such cases would be in consonance with the
police record or the prosecution case, which has not happened in
this case. ‘Painter’ and ‘Pratap’ whose names figured in the F.I.R.,
and who according to the prosecution case are Accused No. 5 and
Accused No. 10 respectively, have not been identified by any of
these witnesses. Probably being aware of this weakness in the
contention of the defence, a feeble attempt was made to show how it
would be possible by suggesting to PI Kanani that he had shown
enlarged photographs of the accused persons to the supporting
occurrence witnesses with the help of Smt. Teesta Setalvad and one
Raees Khan, which has been denied by him. The witnesses
themselves were not suggested that they were shown any photographs
of the accused persons and were tutored to identify them. That
this is clearly an afterthought of the defence is also clear from
the fact that when Taufel and Raees were examined, the learned
Advocates for the accused had made a request that after
identification of a particular accused by pointing out the name of
such an accused may not be uttered loudly. It is obvious that this
precaution, which the learned Advocates for the accused wanted to be
taken in the process of recording of evidence, was not consistent
with the theory of the witnesses having been shown enlarged
photographs of the accused. Further, the witnesses have not
identified the same accused. There has been not even one wrong
identification where the accused were identified by naming and
pointing out. While appreciating the evidence, the manner in which
it is given, the manner in which the varying suggestions are given
in the cross-examination, are often of significance. It was put to
PI Kanani that he had done the tutoring with the help of Smt. Teesta
Setalvad, which has been not only denied, but ridiculed by PI Kanani,
by stating that he was not even on talking terms with Smt. Teesta
Setalvad. PI Kanani stated that it was because she had made
allegations against the investigating agency. This statement of PI
Kanani has to be accepted as true. Even Zahira does not say that any
photographs of the accused were actually shown to her by Smt. Teesta
Setalvad. All that she says is that Smt. Teesta Setalvad was to
procure the photographs. Thus, till Zahira left for Vadodara, no
photographs of the accused are shown to be available to Smt. Teesta
Setalvad. Under the circumstances, it cannot be accepted that any
photographs of the accused were shown to the occurrence witnesses by
Smt. Teesta Setalvad, or by PI Kanani, who was not in touch at all,
with any of them. It may be recalled that the accused were never
made to sit in the Court hall according to the serial numbers given
to them in the charge-sheet, or in any other fixed order. Their
names were never loudly being called out in the Court. It is, under
these circumstances, that the identification in the Court has taken
place. In some cases, while identifying a few out of the 17 accused,
the names have also been given by the identifying witnesses. There
has been no wrong identification by any of the identifying witness
in such cases. The identification has taken place under the
observation of the Court enabling the Court to view the actions of
the identifying witnesses. It does not seem to me that there is any
substance in the contention of tutoring.

“….852.
In the context of witnesses having been tutored, an argument
advanced by Shri V.D. Bichu, the learned Advocate for the accused
needs to be dealt with. [pages 19-20 of the arguments filed by him
at Ex.522/A]. It is contended that since the order for holding a
retrial and that too, out of State of Gujarat was secured from the
Supreme Court of India by the N.G.O. – Citizens for Justice and
Peace – for obvious reasons, it become a matter of prestige for
them. It is contended that it was therefore ‘only human to expect
that efforts would be made towards their further success, which
could be achieved by securing conviction of at least a few of the
accused personsÂ’; and that therefore, the witnesses were bound to be
tutored. It is dangerous to accept such propositions. On the
basis of the same arguments, it can be said that it also became a
matter of prestige for those by making allegations against whom and
because of whose blameworthy conduct, a retrial was ordered out of
State of Gujarat, to show that there was nothing wrong whatsoever,
in the previous trial. The said N.G.O. had made allegations
against the State machinery itself, which were believed to be true
at least substantially by the Supreme Court of India while ordering
a retrial out of the State. Can it, on the same logic, be said that
it was only human to expect that efforts would be made for the
failure of the N.G.O., which could be achieved by making the
witnesses turn hostile again? This, if accepted, would change the
entire perspective in which the evidence is required to be
appreciated. The manifest antipathy shown by the hostile witnesses
to the entire prosecution case cannot be the result of a mere desire
to ensure the acquittal of the accused. In this context, the
contention advanced by Shri Shirodkar to the effect that the accused
have not influenced the hostile witnesses, and that the accused are
poor persons having no influence, needs to be taken into
consideration. While this appears to be true, judging by the social
and financial status of the accused persons, the fact remains that
there are others who are powerful enough to extend great financial
support and legal services to the hostile witnesses. However, the
evidence can neither be appreciated on the basis that the said N.G.O.
is likely to have a motive which would induce them to tutor the
witnesses, nor on the basis that the State authorities or the State
Government have a motive to show that there was nothing wrong in the
previous trial, or that the witnesses had not turned hostile due to
any lapses on the part of the State machinery which would induce
them to make the witnesses turn hostile again. Even if the alleged
bad motives of the N.G.O. as attempted to be attributed to it by the
Advocates for the accused are accepted for the sake of arguments,
there would be no interest for them to secure conviction of the
accused. Rather their interest would be to show that Zahira and
others are being manipulated. Though it might have become a matter
of prestige for the said N.G.O. to show that they had fought for
truth, or, at any rate, what was believed by them to be the truth,
it would not mean that they would tutor witnesses to falsely
identify a few accused for securing a few convictions. “

 —

Teesta Setalvad
Secretary, CJP