Express news service : Ahmedabad, Tue Jan 08 2013, 02:45 hrs
Yagnik is the judge who convicted the three in another 2002 riots case, Naroda Patiya, and convicted them to life imprisonment.
The other two convicts have been identified as Babu Patel alias Bajrangi and Kishan Korani. After their convictions in Naroda Patiya massacre case, the three are facing criminal trial in Naroda Gam case also.
All the three convicts have challenged their convictions at the Gujarat High Court (HC). Meanwhile, the Naroda Gam case’s trial was being conducted in the special court of sessions judge, S H Vora. However, sometime back, Vora was elevated as the HC judge following which, Yagnik has been assigned the job of conducting trial of the Naroda Gam case by Chief Justice of the HC.
Now, the three have sought Yagnik’s recusal from the case while apprehending that since she convicted them in Naroda Patiya case she will be having predetermined mind on certain evidence which is identical in both the cases, Naroda Patiya and Naroda Gam.
Arguing on behalf of the three accused, senior counsel Nirupam Nanavati argued that though Patiya and Gam are technically different cases, both have certain common witnesses and evidence upon which judicial opinion was formed and they were held guilty.
“And on the basis of similar sets of witnesses and evidences if we would also be held guilty in this case it will be the travesty of justice,” he added.
Nanavati also argued that they have reasonable apprehensions that if the same judge would preside over the case, it will deprive the accused of their fundamental right of having fair and impartial trial as elements of pre-conceived notion, pre-determination and pre-disposition would be there.
He added that the accused have otherwise no distrust for Yagnik and that it was coincident that the same judge who conducted trial in Naroda Patiya was also holding trial of Naroda Gam case which made them to move the application.
The prosecution opposed the application while arguing that there was no provision under Criminal Procedure Code to allow such an application. Special public prosecutor Suresh Shah contended that the chief justice of the Gujarat HC has appointed Yagnik to conduct the trial of the case under the orders of the Supreme Court and that the trial court could not alter the decision.
Eleven persons were killed in the Naroda Gam massacre and around 82 accused are undergoing trial in the case.