‘Evidence unimpeached’: Supreme Court questions plea against conviction in Godhra case

Besides, at least five witnesses had also identified him in court, the bench, which began hearing appeals challenging the 2017 Gujarat High Court order upholding Dhantiya’s conviction, pointed out.

On its part, the prosecution said it had examined 50 eyewitnesses of the incident.

“How is it proved? There are eyewitnesses. Bonafide injured eyewitnesses we have examined. They are 10 in number… Then bonafide passengers having tickets. They are some 10 in number. So 10 plus 10, 20. Then persons who travelled without tickets and were injured in the incident. They are about 21… Then among non-injured persons, we have examined nine. So, in total we have examined 50 eyewitnesses who were travelling in the train,” the state submitted.

Hedge told the court that Dhantiya was at his home, which is some distance away from the railway track where the train was set on fire.

Relying on the testimony of the driver of a police vehicle, Hegde said the witness had not named Dhantiya even once though his statement was recorded twice.

The court then asked how was Dhantiya identified in court to which the counsel said, “I am a known person. I am a municipal councillor of that area.”

The bench, however, wondered why this was not asked to the witness during cross-examination. It added that the convict cannot raise such a defence now without having raised it during the cross-examination stage.

Hegde also cited a witness statement that Dhantiya gave water from his well to the fire brigade tanker and said that “far from me in any way attempting to stop aid to the train, or instigating”, was only assisting in the relief operations.

Justice Kumar, however, said, “Prosecution allegations against you are three — that you were present at the spot, you pelted stones, you instigated the mob.” He asked, “You want to say by virtue of you assisting the fire engine with water, your criminality if at all it may be perpetrated, should get wiped out?” Justice Kumar said,  adding that “that evidence remains unimpeached”.

The bench, meanwhile, rejected the argument that appeals challenging the Gujarat High Court judgment upholding their conviction should be heard by a three-judge bench.

Hegde said since the state was seeking death penalty for some of the convicts and the law laid down in a 2014 case — Mohammad Arif alias Ashfaq vs The Reg. Supreme Court of India & Ors — that cases involving the death penalty should be heard by a three-judge bench must be followed.

Rejecting the demand, the SC said the Mohd Arif judgment did not apply in the present case.

The court said, a three-judge bench has to hear appeals in cases in which the high courts have either confirmed death penalty or awarded it after hearing the appeals of parties, but the Gujarat High Court commuted the convicts’ death penalty to life imprisonment in the present case.

“In the present case, the situation is not as indicated in the judgment of Mohd Arif. In the case at hand, the 11 accused persons were convicted and directed to undergo capital sentence by the Court of Sessions and the said sentence was commuted (to life term) by the High Court. Therefore, the present case is by the state to restore the death sentence so far as the 11 petitioners and others are concerned.”

“We have perused Rule III (of SC Rules), which is specific whereby the appeal or other proceedings arising out of death sentence have been confirmed or awarded by the High Court shall be heard by a bench consisting of not less than three judges. In view of the said provisions and the rules, we are not inclined to entertain the objections as raised…The objections are repelled… We are inclined to hear the appeal of the state before us,” the court said. The hearing will continue Wednesday.