During the November 11 hearing of the Special Leave Petition (SLP) filed by Zakia Jafri and CJP concerning the wider conspiracy behind the Gujarat riots of 2002, the petitioners presented before the Supreme Court substantial evidence to point out how the Special Investigation Team (SIT) ignored crucial evidence and elements that could have established conspiracy by state actors.
Senior Counsel, Mr Kapil Sibal, appearing for the petitioners has been arguing on the basis of a rather voluminous petition that includes the closure report filed by the SIT exonerating all State actors behind the alleged conspiracy, the Protest Petition that was filed before the Magistrate to oppose the closure report and the several evidences that were at the disposal of the SIT but which were readily ignored by them in reaching their conclusion.
Tehelka sting tapes ignored
Tapes of interviews with right-wing leaders, that were part of the sting operation carried out by Tehelka called ‘Operation Kalank’, contained substantial evidence against the accused. In these tapes, leaders like Babu Bajrangi, who was later convicted in the Naroda Patiya massacre case, boasted about their role in the conspiracy to target and kill Muslims. But as Sibal pointed out, the SIT ignored them, deeming them to be ‘extra-judicial confessions’ and did not consider them at all in their investigation.
While the SIT disregarded these, the Sessions Court had vouched for the same in the Naroda Patiya massacre case in convicting the accused in the case. While the accused had claimed that their statements that what was recorded in the tapes were part of a script, these submissions were rejected by the court. The court analysed the body language of speakers, circumstances and location of how these videos were shot, especially how the videos were recorded in a clandestine manner, and that the accused seemed comfortable answering all kinds of questions. The court had also confirmed that the CD on which the tapes were transferred was certified by the Forensic Science Laboratory (FSL), thereby proving that the evidence was genuine and un-tampered.
Despite these findings, the SIT shockingly accepted at face value the submissions of the few accused that they examined, when they claimed that the statements were a part of a script.
Sibal pointed to the confessions of Dhawal Jayantilal Patel, then Vishwa Hindu Parishad (VHP) District Convener of Sabarkantha, who said on tape that he along with some other persons has been trained to make bombs and that they were supplied to various areas of Ahmedabad including Juhapura and Kalupur. He also claimed to have killed four Muslims in Vadodara. Despite these leads given in the sting operation, SIT deliberately chose to ignore this evidence and in fact raised questions about the authenticity of the sting operation. The SIT did not investigate the matter of arms and ammunitions being manufactured and distributed by VHP any further.
At this point, Sibal also made a reference to Section 17 of the Indian Evidence Act which says, “An admission is a statement, 1[oral or documentary or contained in electronic form], which suggests any inference as to any fact in issue or relevant fact…”
Even Ashish Khetan, the reporter who carried out the sting operation, gave his statement to the SIT in August 2009, where he stated that he met with Haresh Bhatt, then MLA of Godhra who told him that he had a cracker factory in Ahmedabad where he manufactured bombs and other weapons and distributed to VHP members. Khetan stated that he also met with Arvind Pandya, then Special Prosecutor for the Gujarat Government who stated that he had threatened RB Sreekumar, who was then Additional Director General of Police, to not speak against the government.
Khetan further also met with Babu Bajrangi, Bajrang Dal activist, who stated that if the police wanted, they could have stopped them (mob) from entering the Naroda Patiya locality, since it had only one entrance and there were 50 police personnel present, but they didn’t. He also claimed that when he called Gordhan Zadaphia, then Minister of State for Home in Gujarat, Zadaphia advised him to leave Gujarat and go into hiding.
In the transcript of Anil Patel, Vibhag Pramukh of VHP, he made some explosive confessions about killing Muslims in various areas, demolition of mosques, supply of bombs to Ahmedabad as well as complicity of ND Solanki, who was a Deputy Superintendent of Police (DySP) at the time.
Sibal pointed out that even if the SIT considered these to be ‘extra judicial confessions’, the same have been validated by the Supreme Court in Gura Singh vs The State Of Rajasthan (2001 2 SCC 205). Here, the court held, “It is settled position of law that extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement.”
Even the Gujarat High Court was apprised of the matter of quashing of FIR against Bureau Chief of TV Today (Aaj Tak) which had aired parts of the Tehelka sting tapes, including Arvind Pandya. Pandya had claimed before the court that he was enacting a script. The court however refused to believe this version and held, “On a perusal of the C.D., this court is of the opinion that it is difficult for one to believe the say of the first informant that he was acting a role as per the script. The entire interview appears to be natural and seems to have been taken in the office of the first informant… From the contents of the transcript, it is evident that the same is not part of a written script. Assuming for a moment that it was a written script, no reasonable person would be prompted to believe that a person of the standing of the first informant, who is a seasoned lawyer representing the Government in important matters, would enact such a script.”
Apart from this, even the National Human Rights Commission (NHRC) had directed the CBI to authenticate the Tehelka Tapes in March 2008, which was eventually done.
Despite a Sessions Court and the High Court rejecting claims of the accused of “enacting a script”, the SIT accepted these flimsy claims and refused to further investigate upon the confessions of murder, supply of bombs, complicity of state actors which could have led them to establish a conspiracy.
The petitioners had urged the SIT in 2010 to investigate the Tehelka Tapes which were provided to the SIT in form of transcripts.
Intelligence reports ignored
In the SLP, the petitioners highlighted how messages from the State Intelligence Bureau (SIB) were coming in since February 7, 2002 warning of Kar Sevaks visiting Ayodhya for Maha Yagna and carrying trishuls (tridents) on the Sabarmati Express train. These messages, in Gujarati, that were translated in English by the petitioners for the court, have been enclosed with the petition and a chronological reading of the same gives an indication that there was enough time for the police to act upon them and be prepared in case of untoward incidents, which they eventually failed to prevent.
A statement of Ashok Narayan, then Additional Chief Secretary (Home), Gujarat, who stated that the SIB consistently informed the police about the developments of the movement of kar sevaks in detail.
There is also a news report that mentions that in Sabarmati Express which was on its way from Lucknow to Ahmedabad, about two thousand Bajrang Dal activists, armed with trishul allegedly injured several Muslim passengers on the train, stabbed them and forced many to chant ‘Jai Shree Ram’. These claims were also not looked into or traced by the SIT to get to the truth of the matter.
CJP’s letter to SIT
Sibal also pointed towards the letter written by CJP to the SIT in April 2010 (and again in 2011), consistently explaining to them what documents they further need to examine, which included police log books, communication between DGP’s control room in Gandhinagar with Commissionerates, and official records of preventive detention. It also advised examining the failure of Gujarat government to act against print media like Sandesh and Gujarat Samachar, which were publishing communally inciting reports. It is noteworthy that advice to this effect was given by field officers and the SIB. The point being that the Petitioners were in constant communication with the Investigating Agency (SIT), pointing out areas that needed to be probed, but their appeals fell on deaf ears.
The matter was adjourned till November 16.
Related:
No court with a conscience would ignore such evidence: Kapil Sibal argues in Zakia Jafri SLP