In its over 3,500-page judgment on Naroda Patiya massacre case, the Gujarat High Court has observed that the trial court first “presumed” that former BJP minister Maya Kodnani was guilty and then sought to find reasons to support such belief to conclude that she was the “kingpin” of the riots. The High Court has held that Kodnani’s conviction was based on “inferences, conjectures and surmises, and not on substantive evidence led by the witnesses”.
The division bench, led by Justice Harsha Devani, acquitted Kodnani and 17 others on Friday from the case in which 96 people were burnt to death. Kodnani had been held guilty — and “kingpin” — in 2012 by special trial judge Jyotsna Yagnik.
The division bench overturned the trial court’s finding on Kodnani on several grounds. Judge Yagnik had opined that in their areas no one can be more active than the local MP or MLA to support the claim that Kodnani, being the sitting BJP MLA from Naroda, was on the scene of offence.
The trial court had held that “it is not only undisputed but even admitted fact that accused no. 37 (Kodnani) is the MLA of BJP, the then ruling party, from Naroda constituency. Hence, it is clear that she hails from and she is on the date of occurrence in BJP. Now, if she cannot be termed to be active leader of BJP, that too in Naroda constituency, then who else can be called the leader of BJP in that area? It can, therefore, be inferred that accused no. 37 was present at the site. The police officer has very specifically stated that the active leaders were instigating the mobs.”
The HC judgment reads, “The above findings recorded by the trial court are…shocking. The trial court has read into a complaint that has not been stated by the complainant…. If the trial court was under the impression that when the complainant says the active leaders of BJP in his complaint, it would also include accused No. 37 Mayaben Kodnani, nothing prevented it from putting such questions to the witness. One fails to understand as to how the trial court could stretch the matter to this extent by reading into the first information report, something which is not stated therein.”
The division concluded: “This clearly indicates the mindset of the trial court, which has first assumed the guilt of…Mayaben Kodnani and come to the conclusion that she is the kingpin, and has thereafter sought to find reasons to support such belief.”
The High Court has said on the question of picking some material from the statements of witnesses and ignoring others that “it is permissible for the court to accept part of the evidence that appears credible and discard the part that is not credible, by separating the grain from the chaff. However, where it is not possible to separate the grain from the chaff, the entire evidence cannot be taken into consideration.”
This was stated to elaborate how the court ignored certain aspects of deposition of witnesses. There were 11 witnesses who testified before the Supreme Court-appointed Special Investigation Team (SIT) that they saw Maya Kodnani on the scene of offence, instigating rioters. Their statements were recorded in 2008, the first time since the incident when Kodnani’s name was mentioned.
The trial court had held that “…having regard to the mood of the mob, this accused [Kodnani] could not have tried to pacify them. Therefore, it has to be inferred she was instigating them”.
On this, HC observed, “If this reasoning is taken to its logical end, every MLA of area where riots have erupted would be guilty of the charge even if no witness has implicated him as accused…”
The High Court concluded: “It is, therefore, not possible to agree with the view adopted by the trial court which is based merely upon inferences, conjectures and surmises, and not on substantive evidence led by the witnesses.”
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