The determination of criminal liability requires precise evaluation of testimonies and careful analysis of each piece of evidence.
To conclude the guilt of an accused, there must be concrete evidence “beyond reasonable doubt”.
But one can hardly accuse Judge Yagnik of sticking to this maxim.
In the first part of this analysis of the 2002 case against Maya Kodnani, I had questioned the one-sided approach of Judge Jyotsna Yagnik in handling her case, which ended in conviction and a 28-year jail sentence. In this part, I am providing a few salient instances of how Yagnik, during the course of the trial, drew adverse inferences against Kodnani that did not convince one of her neutrality.
One such case is that of Siddiqbhai Allabax Mansuri (Prosecution Witness-236), who testified before the court that Kodnani came in a Maruti car. This witness says that Kodnani arrived at the scene of crime at 8.30 am or 9 am. As per his testimony, the mob started reciting slogans of 'Jai Shri Ram' after seeing Kodnani. He further says that he saw Kodnani speaking to the mob, and instructed her PA to take out weapons from the jeep and distribute them among the mob (Pages 644-45).
Yagnik herself acknowledges that in the statement of the SIT (the Special Investigation Team) appointed by the Supreme Court to reinvestigate the 2002 crimes, there was no mention of slogans of ‘Jai Shri Ram' being chanted. But the same has been stated by the witness in his deposition before the court. In order to legitimise this testimony, which was critical for implicating Kodnani, Yagnik justified this contradiction in the testimony of the witness, claiming that the witness might not have mentioned this to the SIT, but that the slogans were likely to have been shouted since that was “the mental state or spirit of the day” (Para 7.13, Page 648).
At one point, she mentions that mere oral evidence of the witness cannot be treated as completely dependable evidence. Since the physical attributes and identity markers, etc, were not mentioned by witnesses in the statements given to the SIT, she gives the benefit of doubt to five accused persons. However, Kodnani’s PA was not even named in the statements of the same witnesses given to the SIT. But he is not given the benefit of the doubt on that ground. The reasoning given by Judge Yagnik is that he was described as PA to Kodnani. To quote her: “This description is a satisfying way to involve A-62 in the crime in the statement of the SIT.”
However, the witness is not even questioned as to how he knew that the person allegedly accompanying Kodnani on that fateful morning was her PA. The judge seemed to believe that anyone associated with her could be guilty by association. The formulation seemed to be simple: “When in doubt, hold it against Kodnani.”
In several instances in the judgment, Judge Yagnik has ensured that Kodnani did not get the benefit of any ambiguity or contradiction in the statements of witnesses. A case in point is the testimony of Abdul Majid Mohammad Usman Shaikh. Regarding his testimony as a whole, Yagnik takes a cautious approach in believing his statements and rejects most of his depositions with these remarks: “There is nothing to doubt the incidents but still as far as this witness is concerned, it is safe to believe the incidents only if the incidents get support from some another PW (prosecution witness)”. Yet, she seemed to accept all the allegations this witness made against Kodnani (Page 672).
The judge’s willingness to prima facie accept Kodnani’s guilt is evident in many pages of the judgment. For example, Zuberkhan Islamkhan Pathan claimed that he saw Kodnani in the mob outside Natraj Hotel. He further said that the men of that mob were told by Kodnani, “You go ahead, I am with you” (Page 674). But was he close enough to Kodnani so as to be able to hear her words to the mob when he does not claim that she spoke on a loudspeaker. It is hard to believe that a person belonging to the Muslim community would dare go right to the middle of a 15,000-strong volatile mob that had allegedly assembled with the specific purpose of killing Muslims.
The witness could easily have been tutored on two grounds: first, about the presence of Kodnani at the scene of the crime; second, on a statement to the effect that she was provoking the mob. Although, Judge Yagnik frequently resorts to the “principle of probability' and natural behaviour” whenever they are convenient to 'establish' the guilt of Kodnani, she fails to apply those very principles when dealing with the veracity of testimonies against Kodnani. All those statements that put a cloud of suspicion around the testimonies of witnesses against Kodnani are simply shoved under the carpet.
At several points during the trial, the witnesses provided enough evidence of being tutored to give doubtful testimonies to mislead the court and falsely implicate Kodnani. For instance, Judge Yagnik did question the veracity of the mobile phone call records of the various accused submitted by the prosecution. In this regard, the court noted the submission of the defence lawyer, Kikani: “…there are discrepancies and apparent contents which create reasonable doubts against the genuineness of the document. This creates a reasonable doubt about the genuineness of the document and this reasonable doubt is sufficient not to attach any value to the said documentary evidence...”.
Even after instances of possible fabrication were brought to the notice of the judge, she was not convinced that Kodnani was the target of a malicious prosecution. Although, she did not accept the prosecution’s version that the mobile records were not conclusive evidence of proving a conspiracy, Judge Yagnik made the following observation-“… it is notable that in the year 2002, mobile phone was quite popular and was freely used as mode of communication. A-37 (Maya Kodnani), A-18 (Babu Bajrangi), A-62 (Kirpalsing Jangbahadursing Chhabda, the PA of Mayaben Kodnani), A-44(Bipin Autowala) etc. have been alleged to be in contact on mobile phone. None of them have stated that they did not have mobile in 2002 and they had no telephonic contact with the co-accused. This fact is a circumstance which can certainly be considered when the hatching of criminal conspiracy stands proved against the accused. Their agreement to do illegal acts cannot be without any communication hence, it is inferred that they have communicated with one another since they belong to the same group, same organisation working for 'Hindutva'.” (Page 799) It is bizarre that the mere possession of mobile phones by all the accused is seen as firm proof of their conspiracy and guilt.
When doubts over Kodnani’s guilt remain strong, Judge Yagnik stretched the principle of probability in order to draw adverse inferences against Kodnani. It is not uncommon for judges to question the findings of the police because they are known to often act in a partisan manner. But judicial discipline requires that the judge does not do so in a selective manner. For example, when Judge Yagnik does not have real evidence of Kodnani having interfered with the police investigation, she lets her imagination fill in the blanks. To quote her, “This court is not sitting in an ivory tower and is conscious to the hard realities of the system. In the system, normally if the police officer knows the desire of the political leader the police would not leave a single stone unturned to give all colours to such desire.” (Page 530)
The judge, as we saw in part one of this story, ignored concrete material evidence in the form of video recordings which show Kodnani’s presence far away from the site of massacre at the relevant times.
Moreover, Judge Yagnik did not find the need to prove or seek evidence that Kodnani had a “desire” to set her own neighbourhood on fire and see her own clients/patients murdered in cold blood.
There is an unstated assumption that one can know the mind and heart of Kodnani simply because as a Bharatiya Janata Party (BJP) MLA she couldn’t be anything but a monster. Had Yagnik not been driven by own predilections, as a citizen of Ahmedabad she would have known that after Godhra train fire killed 60 karsevaks, people of her state forgot their political affiliations. Congressmen joined the murderous mobs with as much fury as did BJP workers, as did apolitical citizens. The mob fury unleashed during that period cut across party lines.
There is also no consideration of the fact that on that fateful day, the first one to get killed was a Hindu who was mowed down by a Muslim lorry driver. That is one reason why a mob got enraged in the first place.
On Page 725 of the judgment, Judge Yagnik presents a very strange tale of causation. She notes that “The police officer has very specifically stated that the active leaders were instigating the mobs.” She further states that the MLA of any area is bound to be an active leader. [Even this is not always true. Plenty of MLAs neglect their constituencies and some even act responsibly]. In the very next line, she says, “Now, if she cannot be termed to be an active leader of the BJP and that too in Naroda constituency, then who else can be called the leader of BJP in that area? It can therefore, be inferred that A-37 was present at the site.”
Even if she was present at the site, she could well have come to pacify the mob. But such questions and probabilities are irrelevant to Yagnik for the simple reason that Kodnani belongs to the BJP. (Yagnik comes from a Congress family. That by itself is no disqualification, but judicial responsibility needs you to set aside your inclinations.) So, she jumps to the next firm conclusion: “Therefore, it can be safely inferred that A-37 (Maya Kodnani) was instigating the mob that too in the morning hours at the site of the offence but, the police has made conscious efforts to screen her presence.”
Search elected leader to be actively involved in the lives of the people of her constituency does not offer conclusive proof that she would want mayhem and murderous mobs to run amok there. By this logic, every MLA, whether of BJP or Congress, should have been ipso facto declared guilty of instigating every incident of violence that took place in their respective constituencies. Why even bother to conduct a trial when the judge is so sure about what an MLA would have done in such circumstances?
Judge Yagnik repeatedly reiterates that Kodnani was a public figure known to everyone in the area and hence the witness' identification cannot be disputed. But the same inference and logic can be extended to question as to why a public figure would come out openly before an inflamed mob and openly distribute weapons at such an explosive time? If she were indeed inclined to encourage mayhem, would it not have been safer and saner for her to supply weapons from the safety of her own home in the vicinity of the killing fields?
The determination of criminal liability requires precise evaluation of testimonies and careful analysis of each piece of evidence. To conclude the guilt of an accused, there must be concrete evidence “beyond reasonable doubt.” But one can hardly accuse Judge Yagnik of sticking to this maxim.
To provide another instance among the many available in the 1,969-page judgement, on the one hand, Yagnik herself states that the mob was already in such a mood that if Kodnani had attempted to pacify them, she would have been attacked. Yet, she declares Kodnani to be the ‘kingpin of the riots’ and describes her role to be ‘provoking, instigating and boosting up the mob’. Even after accepting the fact that the mob was already enraged (Page 703), Judge Yagnik concludes that it was Kodnani who instigated the rioters. On page 1,813, Yagnik further contradicts herself by saying that the “mob did not have the courage” to start the riots until Kodnani arrived there even after having stated earlier that the mob was already enraged.
Another clear case of contradiction appears when Yagnik states: “...A-37 (Kodnani) being an MLA of the area, it does not sound to be probable that A-37 moved publicly possessing firearm, that too on such a day where media, cameraman, channels, etc, are bound to be present there...”. But this did not stop the judge from accepting the testimonies which suggested that the violence started only after Kodnani arrived at the crime scene and instigated the mobs.
Judge Yagnik’s predilections are again visible on page 703. She assumes that Kodnani had big political ‘ambitions’. Therefore, that must have been a sufficient motivating factor playing the role of a kingpin in the riots. She says: “...A-37 was the then current MLA, hence it can be inferred that she must have ambition to go ahead in politics and she cannot leave the temptation of taking political mileage by being kingpin in the series of events that took place on that day...”.
Due to this presumption against Kodnani, Judge Yagnik violated a cardinal principle of criminal jurisprudence which states that if there are two views possible while analysing circumstantial evidence, one pointing towards the guilt of the accused and the other to her innocence, the court should take the view which is favourable to the accused.
Several knowledgeable people have confirmed that many innocents were falsely implicated in the 2002 riots due to the mischief played by certain NGOs while the actual culprits, especially those related to the Congress party, have been allowed to go scot-free. Teesta Setalvad's right hand man, Rais Khan, who fell out with her, has said so in a recorded video interview with me as well as in his testimony before the court. This is a matter that deserves serious investigation.