The Gujarat government on Monday pointed out the lapses by the police in 'registering and recording of FIR' and on the part of the prosecution in 'recording of evidence' of witnesses in the Best Bakery case, in which all 21 accused were acquitted by a fast-track court this year.
Making his submissions on the 'amended' appeal challenging the acquittal and seeking retrial in the case, Advocate General S N Shelat pointed out these lapses before the division bench of Justice B J Sethna and Justice J R Vora.
He referred to the case of a witness, Rahish Khan Pathan. Doctors at the SSG Hospital in Vadodara had stated that he had serious head injuries and 'his mental state did not permit him to give any statement'. However, his statement was recorded on March 2, 2002 and 'treated as an FIR'.
Shelat said it was an obvious attempt by the police to 'help the accused, as no names of the accused were mentioned in this statement'.
Khan's statement was again recorded on March 4, 2002 wherein he had named five persons as accused, but he was not examined during the trial.
Moreover, police inspector Himmatsinh Baria recorded key witness Zaheera Sheikh's statement at 11:15 am on March 2, 2002, while that of Rahish Khan's was recorded at 12:00 noon. However, it was Khan's statement that was treated as an FIR.
The bench also sought to know why the police registered Zaheera's statement as late as 3:15 pm even though it had been recorded at 11:15 am.
The name of another witness, Shahjad Khan Hassan Khan, was dropped from among those being examined because he was 'mentally sick'. "Shahjad Khan was lying unconscious in the hospital from March 2 to March 6, 2002. On March 6, he disclosed the names of four accused, when police recorded his statement," the Advocate General said.
However, it was the duty of the prosecution to find out whether he was really mentally unsound, about his treatment and defer recording of his evidence, Shelat said adding the trial court too accepted the prosecution's contention without question.
Pointing out to the prosecution's failure to examine injured witnesses, he submitted that no reason had been given as to why the name of one such witness, Shailun Hassan Khan, was dropped despite his naming three persons as accused in his police statement.
On March 1, 2002, rioting mobs had burnt to death 12 persons in the Best Bakery in Vadodara when Gujarat was engulfed in a communal frenzy following the train-burning incident in Godhra.
On June 27, 2003, a fast-track court had acquitted all 21 persons accused in the Best Bakery case for lack of evidence after 37 out of 73 witnesses, including key witness Zaheera Sheikh, turned hostile.On September 29, the Gujarat government filed an 'amended' appeal challenging the acquittal and seeking a retrial after being chastised by the Supreme Court.