Already convicted in Naroda Patiya, a few got clean chit in Naroda Gam

Both courts held contrary views on evidence like sting tapes, call detail records (CDR) and test identification parades.

The Naroda Gam FIR had recorded the time of incidence from 12 noon to 2 pm while for Naroda Patiya, the time of offence was from 8 am to 10 pm. Among the court’s reasons for their acquittal was the impossibility of a person being present at two places at the same time. The court observed that the same SIT had proved the presence of some of the accused in Naroda Patiya but failed to in Naroda Gam, thus, leading the court to believe the accused persons’ alibis.

However, the Naroda Patiya’s trial verdict had noted, “Firstly, Naroda Gam and Patiya has a little distance hardly of half a km, which can easily be covered up and the span of two hours for commission of the offence suggest being at both the places is probable.”

In fact, the court that tried Naroda Patiya, while concluding the guilt of two common accused – Kishan Korani and Babu Bajrangi – had appreciated the prosecution, noting: “The possibility and probability of the accused to go there and to come back at Naroda Patiya is very brilliant.” Korani and Bajrangi had shown their presence at Naroda village (Gam) as an alibi to rule the probability of their presence at Naroda Patiya.

The trial court of Judge Shubhada Baxi also relied heavily on the Gujarat High Court judgment of 2018, acquitting Kodnani along with 13 others, upholding the conviction of 16 others. In the same year, the Supreme Court stopped monitoring the Gujarat riot cases of 2002.

At least six accused – Kodnani, former Bajrang Dal leader Babu Bajrangi, Kishan Korani, Rajkumar alias Raju Chaumal, Padmendrasinh Rajput, Haresh Parshuram Rohera (now dead), all active workers of the VHP and BJP – were common in both the Patiya and Gam incidents.

Rajput, Chaumal and Rohera were among those acquitted by the trial court in the Naroda Patiya case but when the Gujarat government challenged the acquittals, the HC upheld the convictions of Rajput and Chaumal.

In the Naroda Gam verdict, the court observed, “How can one person be present at two different places at the same time?” It held that if the presence of the same person is being shown at different places at the same time, the same should have been proved, “otherwise there is no reason to disbelieve the accused’s alibi and evidence provided in support thereof”.

On the five common accused, the court also observed that while Chaumal and Bajrangi were convicted in Naroda Patiya, in the second case, the complaint was the sole evidence brought on record to attest to their presence at Naroda Gam. The court found no other evidence against Bajrangi apart from the complaint and the sting operation, of which the sting operation has “not been proven”.

For Korani, Chaumal, P J Rajput and Rohera (who was abated from the Naroda Gam trial), only complaint and prosecution witness statements of their presence in a mob has been brought on record.

The sting tapes

Both trial courts also had opposite views on the sting tapes presented as evidence. The Naroda Patiya trial court verdict had noted: “In the opinion of this court, extrajudicial confession in this case possesses a high probative value as it emanates from the person who commits a crime, which is free from every doubt.”

Holding the extrajudicial confession to be admissible in law under Indian Evidence Act, and terming former Tehelka journalist Ashish Khetan as an “independent and disinterested witness”, the court held that “though extra judicial confession in the very nature of things a weak piece of evidence, but, in the instant case, in a very peculiar facts and circumstances, this extra judicial confession needs absolutely no corroboration”. Three of the accused, including Babu Bajrangi, had confessed in relation to their involvement in the crime in the sting operation.

The prosecution in the Patiya case had sent the three accused who featured in the sting operation to All India Radio Station to record their voice samples. These were then sent for analysis to Jaipur’s forensic science laboratory, which had then opined that the 15 DVDs recorded by prosecution witness Khetan and five CDs of ‘Operation Kalank’ “were all genuine and that no tampering whatsoever was done”.

The sting operation record, supported by 57 eyewitnesses, were taken into consideration to convict accused Suresh alias Richard alias Suresh Langdo. The HC also upheld this conviction.

While discussing the value of extrajudicial confessions as evidence, the HC had observed, “If the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. The requirement of corroboration is a matter of prudence and not an invariable rule of law.”

The HC had held prosecution witness Ashish Khetan to be “a reliable and trustworthy witness and his evidence can be given due weightage”.

In the Naroda Gam verdict, however, the trial court held that Bajrangi was arraigned as an accused only because of the sting operation and cited that the HC had held the sting operation to be extrajudicial confession and the same cannot hold as evidence unless supported by other evidence on record. The court also observed that part of the sting operation recording was deleted and there has been no explanation forthcoming from the prosecution in this regard.

The Naroda Gam trial also ultimately observed that since the HC upheld the conviction of Bajrangi in the Naroda Patiya case, and no special evidence has been put forth to implicate Bajrangi’s role in Naroda Gam, thus, it “will not be in the interest of justice” to hold Bajrangi guilty solely on the basis of sting operation.

Call Detail Records

In Naroda Gam, phone call details were obtained for the cellphone numbers used by Bajrangi, Kodnani, two other accused – Kodnani’s personal assistant Kirpalsinh Chhabda and Bipin Panchal. Landline records, too, were obtained by SIT for Korani, Chaumal and Chhabda.

Police witnesses in the case had submitted that “on the date of the occurrence, the phone was not with any of the accused”. The court had, however, ultimately ruled that “the mobile and landline phone call analysis do not prove anything to help the prosecution,” as on scrutiny, no incriminating material or probability stands revealed of hatching conspiracy as far as the communicating through the mentioned telephone numbers are concerned.

In the Naroda Gam case, officials from telecom companies – two from Vodafone and one from Idea Cellular – were examined as prosecution witnesses. Among them, the two from Vodafone – Dhiren Lariyani and Ashwinkumar Shah – were common witnesses to both the Naroda trials to attest to the call detail records (CDR) provided by then IPS officer Rahul Sharma, who was also a witness in both cases. Sharma had called for call records from Celforce and AT&T at the time as evidence.

The Naroda Gam trial court held that reliance cannot be placed on CDR as it has not been explained how such data was obtained by Sharma and neither had the phone companies attested to their veracity. The court ruled for Kodnani that on the day of the incident, none of her cell location towers had been near the site of the incident. The court also relied on defence witness statements of Kodnani’s husband and a doctor colleague who worked at her maternity hospital at the time.

Test Identification Parade

In both the cases, test identification (TI) parade was not conducted for all the accused. While the accused in the Naroda Patiya case had contested that they were falsely arraigned, as they were not identified in a TI parade, the trial court order had said, “When the witnesses and the accused are residing in the very area quite close to each other for so many years, it is very much probable and hence can safely be inferred though not asked by the learned public prosecutor, that the witnesses were knowing the accused so well that not holding the Test Identification Parade during the investigation cannot weaken the prosecution case, no chance of mistaken identity of the accused in the court and the identity was genuine. Moreover, every lacuna or defect of the investigation cannot fetch fruit for the defence is the settled position of law.”

The Naroda Gam verdict, however, held that since several of the accused had aliases, TI parade should have been conducted or physical description of the accused must have been disclosed, and thus other evidence provided will not be supported without the TI parade to hold the accused culpable of the offences.