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Sabrang

Struggle for Justice

Teesta Setalvad 01 Sep 2006

Various issues related to the state sponsored genocide in Gujarat in 2002 require urgent attention: the guilty must be punished and the state must provide fair and immediate reparation

 

The struggle for justice to the victims of the mass carnage in Gujarat 2002 has taken many twists and turns. The inordinate media attention on the famed Best Bakery case, which in a sense overtook all others, was justified given the prompt hearing and disposal of the issue by the apex court in its historic judgement dated April 12, 2004.

What somehow escapes public attention is the extraordinary scale and extent of state complicity in the carnage of citizens in 2002 and therefore the unrelenting efforts to shield its perpetrators. Various writ petitions, trials and civil suits have attempted to bring this out. Apart from the issue of punishing the guilty in the major massacres, the issue of fair reparation by the state is also pending before the Gujarat High Court (Citizens for Justice and Peace, CJP, are the petitioners).

Besides this, all the victim survivors of the Gulberg Society massacre have filed civil suits of compensation against Gujarat Chief Minister Narendra Modi, the BJP and the Vishwa Hindu Parishad (VHP). Zakia Jaffri, widow of the late former parliamentarian, Ahsan Jaffri, has filed an FIR (First Information Report) under Section 154 of the CrPC against Modi and 67 others (including present and former ministers and IPS and IAS officials) alleging criminal conspiracy at the highest level.

Over the next few issues of Communalism Combat we will refresh our readers’ memory on the various issues related to the state sponsored genocide that are pending decision before our courts. To begin with, in this issue we document the brazen attitude of the state of Gujarat in the mass carnage cases. (Apart from the Best Bakery case in which Additional Sessions Judge Abhay Thipsay of the Mazgaon court, Mumbai delivered his verdict in February this year.)

On September 1, 2003 when the National Human Rights Commission (NHRC) approached the Supreme Court demanding retrial and transfer in the Best Bakery case, the statutory body also filed a transfer petition asking for reinvestigation and transfer of major carnage cases, including the Godhra train torching case, the Gulberg Society and the Naroda Patiya incidents. NHRC’s transfer petition was a logical corollary to its own fact-finding report on the Gujarat killings (May-July 2002). The report had strongly recommended transfer of investigation and setting up of special courts for the trial of the mass carnage cases.

CJP intervened in the case and filed over 65 affidavits for victim survivors of these massacres. It pleaded that the Naroda Gaon, Ode and Sardarpura massacres also needed to be reinvestigated and transferred for trial as they too had figured in the NHRC’s 2002 report. Following CJP’s arguments, on November 21, 2003 the Supreme Court stayed the Godhra, Gulberg, Naroda Gaon, Patiya, Ode and Sardarpura trials. Since then, detailed hearings have taken place during which CJP placed voluminous details on record.

After an inordinate delay – due largely to the turnaround of witness Zahira Sheikh in November 2004 — the Supreme Court, on July 11, 2006, resumed hearing the matter. It ordered the services of Judge Mehta, additional sessions judge, Delhi to guide the court on the issues raised. Now, on September 27 and 28, 2006, the issues of reinvestigation and transfer (as in the Best Bakery case) are to be heard by the apex court.

CC brings to its readers details of the failure of proper investigation and continued subversion of the justice process by the state of Gujarat, which CJP has already brought to the Supreme Court’s notice. The current issue of CC deals with the Gulberg Society, Naroda Gaon, Naroda Patiya, Ode and Sardarpura massacres. In our next issue, we will publish details on the Godhra trial.

Complicity at the highest level in the appointment of public prosecutors (PPs) by the state of Gujarat was thoroughly exposed in the Best Bakery case. Lawyers who had appeared for the accused were appointed as public prosecutors, exposing a transparent conflict of interest. Worse, many who were appointed were clearly linked, ideologically and organisationally, with the VHP, BJP and Bajrang Dal, the very outfits that had proudly claimed credit for the post-Godhra violence.

Instead of learning lessons from the scathing comments of the apex court in the Best Bakery case, the Gujarat government has shown little inclination to correct its misdemeanours. A shocking piece of information has recently come to light related to the Godhra train arson and some of the major post-Godhra carnages. CJP has brought this to the notice of the apex court. Following the decision of the Supreme Court on July 11 to get the matter of the pleas for reinvestigation and transfer examined by a sitting judge (additional sessions) from Delhi, the Gujarat government announced that it was appointing two special public prosecutors to plead their case. Shockingly, Vinod D. Gajjar, one of the lawyers chosen by the state of Gujarat, holds the brief and has appeared for 23 accused in the Gulberg Society (Meghaninagar) massacre.

Even after November 21, 2003 when the Supreme Court stayed the trials, the Gujarat government has persisted with its double standards evident in the way it has pursued investigations in the Godhra train fire incident and in the post-Godhra massacres. In the former case, the Gujarat administration and police have aggressively persisted with their faulty and mala fide investigations. In sharp contrast, despite numerous and repeated complaints by victim survivors, the police doggedly refused to take any corrective action as regards investigation in the Gulberg, Sardarpura, Ode, Naroda Gaon and Patiya massacres. All this is now on record before the Supreme Court.

Despite three rigorous years in court, the Modi government is completely silent on why it did not undertake any further investigation following applications for reinvestigation made by witnesses. It is similarly silent on arresting those actually named as accused. They are, in effect, allowing those accused named to go scot-free without even a minimum investigation.

On protection of witnesses, too, misleading information continues to be provided to the Supreme Court. The government’s own table supplied to the court tells a different story. There is not a word on the clubbing of FIRs, deliberate omission of names of accused, incomplete list of dead and missing persons, absence of dying declarations and injured persons’ statements, appointments of PPs or reinvestigation.

In the post-Godhra massacres there has been no attempt to de-club FIRs (dealt with later) and no attempt to address the complaints of eyewitnesses challenging the facts recorded by the police pertaining to things such as the sequence of events and the names of the accused. Fresh statements of witnesses were not recorded and no reinvestigations have been conducted despite the fact that there was no bar on this.

As petitioners, CJP has demanded that all police control room records of the relevant time from the carnage-affected parts of Gujarat be scrutinised and placed before the court. This would bring to light the numerous distress calls that were made and which were ignored by top echelons of the government and police. But the Gujarat state has maintained a studied silence on the issue.

The blatantly discriminatory attitude towards the perpetrators of the post-Godhra violence is also evident in the obvious duplicity in granting of bail by the courts in Gujarat. Whereas a large number of the Godhra accused remain in jail four years after the incident, those responsible for heinous mass crimes were promptly granted anticipatory bail by the Gujarat High Court in cases where the lower courts denied the same. The result is that the perpetrators freely roam in the violence-rocked areas under political tutelage and continue to intimidate witnesses.

The Gujarat government has shown no qualms in misleading even the apex court. In 2004 it deliberately supplied a partial list of bail orders to convey the impression that bail had been refused to quite a few accused. When CJP, the interveners, pointed out this lapse to the court’s amicus curiae, Harish Salve, he had the bail orders translated which exposed the attempt at deliberate concealment: in cases where a lower court refused bail, the Gujarat High Court had invariably granted it. The Gujarat government chose to conceal such rulings of the high court. Such undue concern and interest in shielding the accused suggests complicity at the very highest levels.

As far as rehabilitation is concerned, the fact is that survivors and eyewitnesses of the Sardarpura massacre cannot return to Shaikh Mohalla in their native village and are still living as refugees at Satnagar in a neighbouring district. Survivors of the Gulberg massacre cannot return to their middle class housing colony. Survivors of the Ode massacre cannot return to their village. Well over four years after the carnage, only a few victim survivors of Naroda Gaon and Patiya have returned to their locality. Even after Supreme Court orders have been issued, the security provided to witnesses is inadequate and threats continue.

And while the property of those accused in the Godhra massacre has been attached by the authorities, the property of those granted anticipatory bail in the post-Godhra carnages has not been attached.

Gulberg massacre

In the ghastly massacre that took place at Gulberg Society between 7.30 am and 6 p.m. on February 28, 2002, over 70 persons were killed in broad daylight. An FIR was registered on the same date. Three charge sheets have been filed. Significantly, the witnesses made three applications for proper investigation between 2002 and 2003 but none of these have been adequately responded to by the state of Gujarat. A complaint addressed to Gujarat’s home secretary dated July 18, 2003 pointed out that Chetan Shah, the public prosecutor appointed by the government, had in fact appeared for accused.

Repeated applications for further investigation (the first was dated November 25, 2002) lodged by 11 of the witnesses with the Meghaninagar police station and the commissioner of police, Ahmedabad have been ignored. It was when these shocking facts pointing to gross negligence of duty were placed before the Supreme Court that it ordered a stay of the trial. Despite this, the Modi government continues to maintain a deafening silence on the issues raised and has failed to respond to the contentions raised by the witness survivors.

Survivor witnesses have filed affidavits before the apex court pointing out that their repeated complaints to the Gujarat police to do an honest investigator’s job have been ignored. For example, in his detailed application before the court, witness survivor Salimbhai Sandhi states that in his statements to the police recorded on March 6, 11 and 13, 2002 he had named Krishna, Naran Channelwalla, Atul Vaidya, Meghsingh Chaudhary (Vakil), Manish Prabhudas Jain, Rajesh Dayaram Jinger, Pradeep Parmar, Bharat Talodia, Bipin Patel and Arun Bhat as the accused. However, the investigating agency had deleted their names.

In his complaint to the police in November 2002, witness Ashraf Sikandarbhai pointed out that while he had named Girish Prabhudas Jain in his statement to the police on March 3, 2002, there is no mention of Jain in the statement recorded by the police. Another survivor witness, Imtyaz Saudkhan, had also demanded further investigation in November 2002, complaining that Jain’s name was missing from the police record of his statement of March 5, 2002 even though he had specifically named him.

Survivor witness Salimbhai Noormohammed’s affidavit in the Supreme Court complains that his police statement dated February 28, 2002 was falsely recorded and that his November 2002 application to the police in this connection has been ignored. Along with naming the accused he had also detailed the weapons each of them had wielded: Krishna (petrol carboys), Naran Channelwalla (with pipe and gupti), Atul Vaidya (sword), Meghsingh Chaudhary (petrol carboys), Manish Prabhudas Jain (sword and petrol carboys), Rajesh Dayaram Jinger (petrol carboys), Bharat Talodia (sword), Bipin Patel (sword).

Similarly, complaints lodged by victim survivors Sayrabhen Sandhi, Ashraf Sikandarbhai, Mohd Ali Shahjadali Saiyyed, Fakir Mohammad Saiyyad, Mohd Rafik Bukhara, with specific contentions, were also ignored by the Gujarat police. Fresh applications to the police made by witnesses in April and yet again in September 2003 also remain unanswered.

The second application filed by witnesses on April 16, 2003 contains shocking details about the PP. The first public prosecutor appointed by the state of Gujarat, respondents in the Gulberg trial, was Chetan Shah who had appeared for the accused in this very case. In September 2003 – after the Supreme Court took cognisance of the utter mockery of justice by the Gujarat government in the acquittals in the Best Bakery case – the plea of an eyewitness in the Gulberg massacre, Firoz Gulzar Mohammed Pathan, asking for a removal of Chetan Shah was acceded to. The PP appointed in Shah’s place was PP Atre. The application filed by witnesses before the trial court dated November 4, 2003 states that PP Atre (appointed after Chetan Shah’s removal) had argued against the witnesses’ plea for reinvestigation and had supported the affidavit of the police inspector denying allegations against the police about faulty investigation.

In a note filed before Judge Mehta, the Gujarat government admits that Chetan Shah was appointed PP in this case but was not assigned the case. No reasons are given here and none of the serious contentions, raised against a state which is the prosecuting agency and which is proven to have appointed lawyers who had already appeared for those accused of mass crimes, are addressed. The attitude of the state of Gujarat, despite judicial rebuke, remains one of smug complacency.

All the applications made by witnesses for corrections in the course of investigation were made in 2002 and 2003 and yet again after charge sheets were filed. However, there was no evidence of any desire at any stage by the Gujarat government to make amends.

Detailed affidavits filed by witnesses and victim survivors in the Supreme Court contain shocking details and raise important points to be considered on the following issues:

Coercion by investigating officer

The affidavit of Rupa Modi dated October 5, 2003 states how the original police inspector, PI KG Erda, tried to coerce her into changing her stand.

 

No protection to witnesses

Saiyyad Sajjad Ali’s affidavit mentions fear for life and lack of protection; Said Khan Pathan speaks of witnesses being surrounded and threatened on the premises of the Nanavaty-Shah Commission itself in August 2004. Similarly, the affidavits of Zakia Ahsan Jaffri and Tanvir Jaffri talk of being threatened by some of the accused who the police claim are absconding.

 

Clubbing of FIRs

In response to serious charges, the Modi government has provided extremely frivolous reasons for clubbing the FIRs. The clubbing of serious offences into a single FIR is motivated by a desire to subvert the process of justice. The Gulberg massacre was the first recorded incident after the Godhra arson. It began at 7.30 a.m. on February 28, 2002 and continued until at least 6 p.m. The criminal offences in the brutal massacre included mob attack, police complicity, gang rape, arson and killing. Is the filing of one FIR justified? The reasoning advanced by the state of Gujarat – that simply because the place and offence is the same, they have all been clubbed – is woefully inadequate.

While over 70 persons were brutally massacred, there were at least 10-12 cases of brute sexual violence and gang rapes. Clubbing all the crimes committed in this fashion in fact does several things:

(a) reduces the magnitude of the mob attack,

(b) minimises the detailing of individual and collective crimes,

(c) makes difficult the punishment of the guilty thus subverting the criminal justice process itself. It obfuscates the role of each of the accused. Had separate complaints been registered, the degree of involvement of all the accused, in terms of leadership and incitement, committing of criminal acts (burning victims to death, quartering, parading and then killing), role in the gang rapes etc. would have been clearly specified. There is an obvious desire on the part of the investigating agency to violate both the letter and spirit of criminal procedure in giving the go-by to the recording of details of the mass crimes and mob violence. All this amounts to shielding the accused. There is also no desire to fix role and responsibility for the utter and complete breakdown of the rule of law and constitutional governance in the state of Gujarat.

Ahsan Jaffri surrendered himself to the attacking mob at around 2.30 p.m. on the fateful day, once he realised that all his efforts, including 200 telephone calls for help to, among others, then chief minister of the state (Narendra Modi) and Union home minister (LK Advani), had not lessened the fury of the attack. The attack lasted for 10 long hours at the minimum. After Jaffri had surrendered to the mob he was stripped, his body parts were chopped off and he was paraded, half-alive, around the society to terrify the others before he was burnt alive. Do these gruesome incidents and the criminals involved in this specific crime not deserve the registration of a separate FIR?

The state of Gujarat’s response is an attempt to cover up the extent of state connivance and complicity. KG Erda, the inspector of Meghaninagar police station, stood by as the mob attacked. Then commissioner of police, PC Pandey (who has since been rewarded and is now director general of police, Gujarat), visited Gulberg Society around 10.30-10.45 a.m. Phone calls were made seeking help for over seven desperate hours before the mass killings began at 2.30 p.m. Gulberg Society is not that far from Gandhinagar or Shahibaug, the police headquarters in the city. None of this is reflected in the police records of the ghastly incident.

There is no explanation offered by the Gujarat police as to why many of those named by witness survivors as perpetrators of the violence – Dr Atul Vaidya, Pradeep Parmar, Bipin Patel, Arun Patel, Jitu Pratapbhai, Pappu Pratapbhai, Manish Prabhudas Jain, Dinesh Prabhudas Sharma, Dharmesh, Kapil Munnabhai and Bharat Rajput – are missing from the police record of their statements. Similarly, there is no explanation as to why many other accused named in the FIRs – Girish Prabhudas Sharma, Ramesh Pande alias Choti, Ashish Pande – are claimed to be absconding even though it is public knowledge that they roam freely in the Meghaninagar area and for fear of whom the victims dare not return to Meghaninagar.

 

Naroda Gaon and Patiya massacre

Clubbing of FIRs

The clubbing of FIRs has been the biggest scandal related to investigations into the post-Godhra carnages. Naroda Gaon and Patiya occupy a large geographical area on the outskirts of Ahmedabad city, an area that witnessed several incidents of appalling brutality during the Gujarat carnage. A total of 106 FIRs were registered at the Naroda police station on February 28, 2002. These 106 FIRs have subsequently been shockingly merged into two bulk FIRs relating to the two incidents.

Following this entirely illegal and unlawful clubbing, we are left with just FIR No. 97/2002 and 98/2002 relating to the offences at Naroda Gaon. Similarly, 28 independent FIRs in the killings at Naroda Patiya have been merged into a single FIR No. 100/2002.

The story behind crime report, CR 197/2002 of Naroda police station (Naroda Gaon) is particularly scandalous because the names of elected representatives as well as mastermind Dr Jaideep Patel (general secretary, Gujarat VHP) were mentioned when these FIRs were first recorded. But in the clubbing process, they have been dropped. Thus while Jaideep Patel was named by each of the witnesses and BJP MLAs Ashok and Maya Kotdani by several of them, none of their names figure in the clubbed FIR. The Modi government has maintained a deafening silence on these issues and has simply not responded to repeated complaints, backed by facts, of gross lapses in investigations.

Faulty/Mixed up charge sheets

Two FIRs of the main incident that occurred at Naroda Patiya (100/2002) and Naroda Gaon (98/2002) are registered at the Naroda police station. There is almost a deliberate mixing up of records related to the two charge sheets.

Ø Madinaben Arifbhai Malek’s injury certificate has been wrongly included in the charge sheet related to the Naroda Patiya incident though she is a resident of Naroda Gaon and her case should figure in the other charge sheet.

Ø Sugrabi Shaikh was killed at Naroda Gaon (CR No. 98/2002). However, in a gross discrepancy in investigations, without any application of mind, her post-mortem report is wrongly produced in CR No. 100/2002 while the statements in this regard are produced in CR No. 98/2002 and not in CR No. 100/2002.

Ø Twenty injury certificates issued by the doctor who treated the injured have been attached to the Naroda Patiya case. Of these 20 injured, nine are eyewitnesses. Yet, to date, the police have not recorded their statements in connection with the event.

Ø Witness Mohammed Maruf Rauf Khan Pathan’s statement recorded by the police on March 17, 2002 does not contain the names of the accused. Thereafter, another statement of his was recorded, on May 23, 2002, by the crime branch. This, the second statement, does contain the names of the accused but was not produced in the charge sheet.

Ø Sufiyabano Abdul Majid Shaikh, aged 17, residing at Jawannagar, Naroda Patiya was admitted to hospital on February 28, 2002 with severe burn injuries. Her father, Abdul Majid stated in his police statement dated April 15, 2002 that he met his daughter Sufiyabano in the hospital on March 4, 2002 when she told him she had been raped by Bhawani Chara and his son who is a vakil (lawyer). This fact is recorded in her father's police statement dated April 22, 2002. However, it was only after Sufiya's death on March 7, 2002 and her post-mortem report as well as her dying declaration and police statement dated March 3, 2002 were handed over to her father that it became evident that these records have no mention of rape.

Ø The police have not produced any evidence in any charge sheet related to Naroda Gaon or Patiya regarding the identification of most of the bodies. For example, deceased Kauser Bano whose abdomen was slit open by sword and her foetus thrown into the fire. No evidence has been produced regarding identification of her body.

Ø There are also gross discrepancies in the names and status of the accused between the charge sheet and other documents.

Ø The charge sheet related to the Naroda Patiya incident shows a total of 97 dead bodies. However, in a scandalous lapse of investigation, post-mortem investigation has only been conducted on 59 dead bodies. As for the remaining 38 dead bodies, no post-mortem report is attached nor has any reason for this lapse been offered so far.

 

Threats and intimidation of witnesses

Witnesses of these incidents were repeatedly threatened and coerced, especially by Accused No. 1 Babu Bajrangi (local unit chief of the Bajrang Dal, who is out on bail) on the premises of the Nanavaty-Shah Commission in August 2004. It was only after CJP’s intervention in the Supreme Court that they were given protection, by way of round the clock protection by the Central Industrial Security Force (CISF).

Mohammed Sharif Rahim Miyan Malek has stated in his affidavit that when he tried to return to his place of residence, an RSS worker, Pradeep Patel alias Padumal, threatened him. (Patel’s father is named as an accused in the massacre.) He also said, "How much more do you wish to go through before you leave? Next time you will be killed!"

Through the affidavits of Nanubhai Rasool Miya Malek it is clear that this witness who had deposed before the Nanavaty-Shah Commission was booked in a false case of murder of one Ghanshyam Patel and released on bail 10 months later. Similarly, 11 other key witnesses in the Naroda Gaon and Patiya massacres who have named specific persons as accused have been falsely implicated in bogus cases. For example, Bismillah Khan, who gave shelter to many victims and who escaped the mobs that day, has also been in jail on false charges of murder.

None of these serious issues raised by CJP, with facts supporting the contentions and allegations, have been adequately responded to by the state of Gujarat.

Countering the state of Gujarat’s inability to contest bare facts, this writer has pointed out that substantive allegations in affidavits by eyewitnesses are not answered, including those related to state complicity and the fact that names of influential persons were deliberately left out by the police. Allegations of sexual violence and rape crimes have, according to eyewitnesses, been deliberately obscured by the police.

In sum, the entire role of the state of Gujarat in the four years since the genocide of 2002 has been geared to reducing the magnitude of the evidence, reducing the magnitude of the mob attacks, negating the gruesome description of individual and collective crimes and concealing the names of the politically and financially powerful who masterminded and led the attacks. All this with a view to prevent action against the guilty thus subverting the criminal justice system itself.

 

Sardarpura massacre

The Sardarpura massacre that occurred in Mehsana district on March 1-2, 2002 took place at the Shaikh Mohalla. Witness survivors photographed this spot in June 2006 and the photographs reveal the pitiful condition of houses still in a broken down state. Burnt clothes of victims are in the same condition that they were in March 2002. A Patel from the village has even taken over a shop/booth belonging to a victim and has now set up business there.

Thirty-three persons, mostly women and children, were burnt alive in a small room in Sardarpura village. In all, there are 54 accused and they have all been released on bail through four different applications filed before the additional sessions judge, Mehsana, DR Shah. Between June and October 2002 four applications were filed for cancellation of bail of the accused (including a writ petition alleging mala fide investigations) by Hashim Qureshi, the advocate appearing on behalf of the victims’ families. The PP, surprisingly, did not object to the cancellation of bail. The high court has issued notices in all four of these matters.

The PP in the district court at the time, Dilip Trivedi, is also general secretary of the VHP in Mehsana district. (Trivedi also made an extremely provocative statement to the daily, Sandesh, in the wake of the Godhra train arson on February 28.) It was only after vociferous protests that Trivedi was removed from his post as PP. The state government is completely silent on this.

The four applications for rejection of bail were made on the grounds that even after being released on bail the accused had attacked a mosque in the same Sardarpura area on May 13, 2002. Charge sheets have been filed and charges framed on the basis of faulty FIRs and worse, mala fide and sketchy investigations.

Though FIRs were registered, charges were not framed. Shockingly, one of the cases related to this massacre has been closed as ‘A’ summary. The police have made no efforts to arrest those supposedly absconding. The state government continues to proffer inadequate and erroneous information suggesting utter contempt of the proceedings in which it has been held prima facie guilty of gross unconstitutional conduct.

The first incident at Sardarpura village took place on the night of February 28, 2002 when cabins and hawking pushcarts belonging to the Muslim community were burnt. Though victims sought to register a complaint with PSI Parmar, the police sub-inspector who was on bandobast at the time, he refused to register the complaint.

Between 9.30 and 11.30 p.m. on the night of March 1, 2002, a mob of about 1,000-1,500 persons attacked, looted and burnt down shops, cabins and homes belonging to the Muslim community situated in the Sardarpura bazaar. Some of these details are contained in a complaint that was lodged by PSI Rathod. No names of accused have been mentioned in this complaint though Rathod was present there on bandobast duty. Witness survivors contend that Rathod knew the persons leading the mob by name but due to political pressure on him he deliberately concealed the names of the accused in the complaint.

As far as the massacre of March 1-2, 2002 is concerned, the registration of the complaint and the subsequent investigation into the mass massacre that took place at Shaikh Mohalla have been effected in a partisan manner with a view to underplay the gravity of the crime and to protect the role of rich and politically influential people who participated in it. As a result, the main accused have been acquitted. There are defects in the police statements and therefore also the charge sheets.

The defects in the charge sheet pointed out to the Supreme Court are as follows:

Ø During the violence of March 1, 2002 that engulfed Sardarpura village and surrounding areas of the district, PSI Parmar had brought Muslims from Sundar village to Sardarpura village. Though a large number of people were witness to this, none of their statements were recorded.

Ø Pathan Mohalla lies adjacent to Shaikh Mohalla (where the massacre took place). On the night of March 1, 2002 there were about 200 persons present in Pathan Mohalla, who by their very presence and proximity to the place of tragedy were eyewitnesses who had seen the organised attack, those responsible, the timing and the ferocity etc. However, the police did not record any statements from any of those present in Pathan Mohalla.

Ø A series of incidents took place in the presence of PSIs Parmar and Rathod. However, no witness statement from PSI Parmar has been recorded. No departmental inquiry has been conducted against either or both of them.

Ø The panchas whose signatures were taken on the panchnama are in fact relatives of Accused Nos. 10, 23 and 31. They appear to have been chosen as panchas by the police with a view to withdraw support to the prosecution (and support the accused) at the time of trial.

Ø On the night of the incident recorded in CR 46/2002 i.e. the night of March 1 and 2, 2002, at about 2.30 a.m. deputy superintendent of police, DSP Gehlot came to Sardarpura village and accompanied by persons from Pathan Mohalla went to Shaikh Mohalla from where he transported the dead to the civil hospital and, using two large police vehicles, moved out those Muslim victims who had survived. These facts do not figure in the police investigations and the statements of the persons concerned were not recorded. DSP Gehlot, in fact, revealed details of these events in a statement to the media published in the northern Gujarat edition of Gujarat Samachar dated March 7, 2002.

Ø In the charge sheet filed by the police, no statements from the members of the Harijan community who gave Muslims shelter have been recorded.

Ø The Muslim homes are located adjacent to the scene of the mass murder at Shaikh Mohalla. Adjacent to these are the homes of the accused. The Muslim homes are lower in height than the higher constructions belonging to the accused. The accused threw burning cloth torches from their higher buildings to torch the lives and homes of Muslims of Shaikh Mohalla. These detailed facts about the attack are all missing from the police investigations.

Ø When they sought bail following their arrests, the accused received full support from the state. The sessions court granted them bail subject to the condition that the accused would not enter Sardarpura village. Yet not only do the accused conveniently reside in Sardarpura village in full view of the police and administration but victim survivors and witnesses cannot enter and live in Sardarpura themselves. Though the accused have violated the conditions of bail, the police have not and are not taking any action against them. The state government has taken no steps to ensure that the Muslim victims and eyewitnesses of Sardarpura village are rehabilitated.

Ø In the police statements the accused have not been named, the statements themselves being shoddily recorded. Investigation has been deliberately shoddy so as to shield the accused. There are several contradictions evident in the FIRs, the police statements and the charge sheet.

In its reply before Judge Mehta, the state of Gujarat was silent on the fact that the PP did not oppose bail. Bail was granted on the condition that the accused could not enter Sardarpura village. In fact, the opposite is happening. It is the victim survivors who have been ostracised from their hometown.

 

Ode massacre

The Ode massacre took place at Ode village, Khambolaj police station/Anand police station, in Anand district. A total of 27 persons were killed on two separate dates, March 1, 2002 and March 2, 2002.

The first FIR 23/2002 and the second FIR 27/2002 relate to the incidents of the first day. To date no FIR has been lodged in the offence of torching alive Ghulam Rasool Miya on March 2, 2002 despite repeated complaints to the police and the trial court.

Both complainants, of FIR 23/2002 (Rafik Khalifa) and FIR 27/2002 (Rehanabehn Vora), have filed affidavits before the Supreme Court. The complainants have said that only four deaths have been confirmed while the bodies of the other victims were disposed of at some unknown location. The FIRs were lodged at the Khambolaj police station and 22 accused were arrested in the two cases.

Bail was granted with unholy haste in this case of carnage as well. Many of the accused listed as absconding are wealthy non-resident Indian Patels who enter and leave the country freely despite having been accused of such a heinous crime. Their passports have not been impounded. Meanwhile, eyewitnesses live outdoors in their fields and dare not return to live in Ode town — a heavy price to pay for their decision to fight for justice.

Shockingly, the judicial magistrate, first class, Umreth, rejected the remand application for the accused even though the crime has been classified as not just grave but heinous. A revision for remand was made by the police before the sessions court, Anand, in both cases. The presiding judge was NM Thakore. During the pendency of the remand revision application, 18 accused were released on interim bail for eight days in 2002 to enable them to celebrate the Shivratri festival! Finally, 16 accused who were members of the unlawful assembly that committed this heinous crime – burning alive 26 persons – were released on regular bail by the sessions court, Anand. This action of the lower judiciary has generated a sense of injustice and outrage. This writer visited Ode in June 2006. Victim survivors cannot live in their ancestral homes. One accused approached us threateningly as we toured the area.

By the state of Gujarat’s own admission, a total of 39 accused were arrested by the police and released on bail. Yet the number of absconding accused shown is as high as 57. Of the 39 accused who were released on bail, five have returned to America.

The state’s latest response before the apex court raises more questions than it answers. The points that need investigation are:

Why were no firefighters able to reach Ode until virtually 24 hours after the attack began?

The state of Gujarat remains dishonest in its claims of having rehabilitated victim survivors. It has been denying the ground reality that none of the victim survivors or eyewitnesses of the Ode massacre can return to their mohalla in Ode. Any rehabilitative measures implemented, such as the rehabilitation of some victims in houses at Anand, have been carried out by private NGOS, not the state. Most victims live in fields outside Ode.

No proper protection has been given to witnesses in Ode (much as in the Sardarpura case) despite Supreme Court orders in this regard. Only cluster protection has been provided by the State Reserve Police under the supervision of the CISF. This is far from satisfactory and there have been numerous complaints lodged with the CISF about intimidation. Even today victim survivors and eyewitnesses live under threat from the rich and politically powerful accused who enjoy the patronage of a local MLA and minister of the ruling party.  

Archived from Communalism Combat, September 2006 Year 13    No.118, Special Report

Struggle for Justice

Various issues related to the state sponsored genocide in Gujarat in 2002 require urgent attention: the guilty must be punished and the state must provide fair and immediate reparation

 

The struggle for justice to the victims of the mass carnage in Gujarat 2002 has taken many twists and turns. The inordinate media attention on the famed Best Bakery case, which in a sense overtook all others, was justified given the prompt hearing and disposal of the issue by the apex court in its historic judgement dated April 12, 2004.

What somehow escapes public attention is the extraordinary scale and extent of state complicity in the carnage of citizens in 2002 and therefore the unrelenting efforts to shield its perpetrators. Various writ petitions, trials and civil suits have attempted to bring this out. Apart from the issue of punishing the guilty in the major massacres, the issue of fair reparation by the state is also pending before the Gujarat High Court (Citizens for Justice and Peace, CJP, are the petitioners).

Besides this, all the victim survivors of the Gulberg Society massacre have filed civil suits of compensation against Gujarat Chief Minister Narendra Modi, the BJP and the Vishwa Hindu Parishad (VHP). Zakia Jaffri, widow of the late former parliamentarian, Ahsan Jaffri, has filed an FIR (First Information Report) under Section 154 of the CrPC against Modi and 67 others (including present and former ministers and IPS and IAS officials) alleging criminal conspiracy at the highest level.

Over the next few issues of Communalism Combat we will refresh our readers’ memory on the various issues related to the state sponsored genocide that are pending decision before our courts. To begin with, in this issue we document the brazen attitude of the state of Gujarat in the mass carnage cases. (Apart from the Best Bakery case in which Additional Sessions Judge Abhay Thipsay of the Mazgaon court, Mumbai delivered his verdict in February this year.)

On September 1, 2003 when the National Human Rights Commission (NHRC) approached the Supreme Court demanding retrial and transfer in the Best Bakery case, the statutory body also filed a transfer petition asking for reinvestigation and transfer of major carnage cases, including the Godhra train torching case, the Gulberg Society and the Naroda Patiya incidents. NHRC’s transfer petition was a logical corollary to its own fact-finding report on the Gujarat killings (May-July 2002). The report had strongly recommended transfer of investigation and setting up of special courts for the trial of the mass carnage cases.

CJP intervened in the case and filed over 65 affidavits for victim survivors of these massacres. It pleaded that the Naroda Gaon, Ode and Sardarpura massacres also needed to be reinvestigated and transferred for trial as they too had figured in the NHRC’s 2002 report. Following CJP’s arguments, on November 21, 2003 the Supreme Court stayed the Godhra, Gulberg, Naroda Gaon, Patiya, Ode and Sardarpura trials. Since then, detailed hearings have taken place during which CJP placed voluminous details on record.

After an inordinate delay – due largely to the turnaround of witness Zahira Sheikh in November 2004 — the Supreme Court, on July 11, 2006, resumed hearing the matter. It ordered the services of Judge Mehta, additional sessions judge, Delhi to guide the court on the issues raised. Now, on September 27 and 28, 2006, the issues of reinvestigation and transfer (as in the Best Bakery case) are to be heard by the apex court.

CC brings to its readers details of the failure of proper investigation and continued subversion of the justice process by the state of Gujarat, which CJP has already brought to the Supreme Court’s notice. The current issue of CC deals with the Gulberg Society, Naroda Gaon, Naroda Patiya, Ode and Sardarpura massacres. In our next issue, we will publish details on the Godhra trial.

Complicity at the highest level in the appointment of public prosecutors (PPs) by the state of Gujarat was thoroughly exposed in the Best Bakery case. Lawyers who had appeared for the accused were appointed as public prosecutors, exposing a transparent conflict of interest. Worse, many who were appointed were clearly linked, ideologically and organisationally, with the VHP, BJP and Bajrang Dal, the very outfits that had proudly claimed credit for the post-Godhra violence.

Instead of learning lessons from the scathing comments of the apex court in the Best Bakery case, the Gujarat government has shown little inclination to correct its misdemeanours. A shocking piece of information has recently come to light related to the Godhra train arson and some of the major post-Godhra carnages. CJP has brought this to the notice of the apex court. Following the decision of the Supreme Court on July 11 to get the matter of the pleas for reinvestigation and transfer examined by a sitting judge (additional sessions) from Delhi, the Gujarat government announced that it was appointing two special public prosecutors to plead their case. Shockingly, Vinod D. Gajjar, one of the lawyers chosen by the state of Gujarat, holds the brief and has appeared for 23 accused in the Gulberg Society (Meghaninagar) massacre.

Even after November 21, 2003 when the Supreme Court stayed the trials, the Gujarat government has persisted with its double standards evident in the way it has pursued investigations in the Godhra train fire incident and in the post-Godhra massacres. In the former case, the Gujarat administration and police have aggressively persisted with their faulty and mala fide investigations. In sharp contrast, despite numerous and repeated complaints by victim survivors, the police doggedly refused to take any corrective action as regards investigation in the Gulberg, Sardarpura, Ode, Naroda Gaon and Patiya massacres. All this is now on record before the Supreme Court.

Despite three rigorous years in court, the Modi government is completely silent on why it did not undertake any further investigation following applications for reinvestigation made by witnesses. It is similarly silent on arresting those actually named as accused. They are, in effect, allowing those accused named to go scot-free without even a minimum investigation.

On protection of witnesses, too, misleading information continues to be provided to the Supreme Court. The government’s own table supplied to the court tells a different story. There is not a word on the clubbing of FIRs, deliberate omission of names of accused, incomplete list of dead and missing persons, absence of dying declarations and injured persons’ statements, appointments of PPs or reinvestigation.

In the post-Godhra massacres there has been no attempt to de-club FIRs (dealt with later) and no attempt to address the complaints of eyewitnesses challenging the facts recorded by the police pertaining to things such as the sequence of events and the names of the accused. Fresh statements of witnesses were not recorded and no reinvestigations have been conducted despite the fact that there was no bar on this.

As petitioners, CJP has demanded that all police control room records of the relevant time from the carnage-affected parts of Gujarat be scrutinised and placed before the court. This would bring to light the numerous distress calls that were made and which were ignored by top echelons of the government and police. But the Gujarat state has maintained a studied silence on the issue.

The blatantly discriminatory attitude towards the perpetrators of the post-Godhra violence is also evident in the obvious duplicity in granting of bail by the courts in Gujarat. Whereas a large number of the Godhra accused remain in jail four years after the incident, those responsible for heinous mass crimes were promptly granted anticipatory bail by the Gujarat High Court in cases where the lower courts denied the same. The result is that the perpetrators freely roam in the violence-rocked areas under political tutelage and continue to intimidate witnesses.

The Gujarat government has shown no qualms in misleading even the apex court. In 2004 it deliberately supplied a partial list of bail orders to convey the impression that bail had been refused to quite a few accused. When CJP, the interveners, pointed out this lapse to the court’s amicus curiae, Harish Salve, he had the bail orders translated which exposed the attempt at deliberate concealment: in cases where a lower court refused bail, the Gujarat High Court had invariably granted it. The Gujarat government chose to conceal such rulings of the high court. Such undue concern and interest in shielding the accused suggests complicity at the very highest levels.

As far as rehabilitation is concerned, the fact is that survivors and eyewitnesses of the Sardarpura massacre cannot return to Shaikh Mohalla in their native village and are still living as refugees at Satnagar in a neighbouring district. Survivors of the Gulberg massacre cannot return to their middle class housing colony. Survivors of the Ode massacre cannot return to their village. Well over four years after the carnage, only a few victim survivors of Naroda Gaon and Patiya have returned to their locality. Even after Supreme Court orders have been issued, the security provided to witnesses is inadequate and threats continue.

And while the property of those accused in the Godhra massacre has been attached by the authorities, the property of those granted anticipatory bail in the post-Godhra carnages has not been attached.

Gulberg massacre

In the ghastly massacre that took place at Gulberg Society between 7.30 am and 6 p.m. on February 28, 2002, over 70 persons were killed in broad daylight. An FIR was registered on the same date. Three charge sheets have been filed. Significantly, the witnesses made three applications for proper investigation between 2002 and 2003 but none of these have been adequately responded to by the state of Gujarat. A complaint addressed to Gujarat’s home secretary dated July 18, 2003 pointed out that Chetan Shah, the public prosecutor appointed by the government, had in fact appeared for accused.

Repeated applications for further investigation (the first was dated November 25, 2002) lodged by 11 of the witnesses with the Meghaninagar police station and the commissioner of police, Ahmedabad have been ignored. It was when these shocking facts pointing to gross negligence of duty were placed before the Supreme Court that it ordered a stay of the trial. Despite this, the Modi government continues to maintain a deafening silence on the issues raised and has failed to respond to the contentions raised by the witness survivors.

Survivor witnesses have filed affidavits before the apex court pointing out that their repeated complaints to the Gujarat police to do an honest investigator’s job have been ignored. For example, in his detailed application before the court, witness survivor Salimbhai Sandhi states that in his statements to the police recorded on March 6, 11 and 13, 2002 he had named Krishna, Naran Channelwalla, Atul Vaidya, Meghsingh Chaudhary (Vakil), Manish Prabhudas Jain, Rajesh Dayaram Jinger, Pradeep Parmar, Bharat Talodia, Bipin Patel and Arun Bhat as the accused. However, the investigating agency had deleted their names.

In his complaint to the police in November 2002, witness Ashraf Sikandarbhai pointed out that while he had named Girish Prabhudas Jain in his statement to the police on March 3, 2002, there is no mention of Jain in the statement recorded by the police. Another survivor witness, Imtyaz Saudkhan, had also demanded further investigation in November 2002, complaining that Jain’s name was missing from the police record of his statement of March 5, 2002 even though he had specifically named him.

Survivor witness Salimbhai Noormohammed’s affidavit in the Supreme Court complains that his police statement dated February 28, 2002 was falsely recorded and that his November 2002 application to the police in this connection has been ignored. Along with naming the accused he had also detailed the weapons each of them had wielded: Krishna (petrol carboys), Naran Channelwalla (with pipe and gupti), Atul Vaidya (sword), Meghsingh Chaudhary (petrol carboys), Manish Prabhudas Jain (sword and petrol carboys), Rajesh Dayaram Jinger (petrol carboys), Bharat Talodia (sword), Bipin Patel (sword).

Similarly, complaints lodged by victim survivors Sayrabhen Sandhi, Ashraf Sikandarbhai, Mohd Ali Shahjadali Saiyyed, Fakir Mohammad Saiyyad, Mohd Rafik Bukhara, with specific contentions, were also ignored by the Gujarat police. Fresh applications to the police made by witnesses in April and yet again in September 2003 also remain unanswered.

The second application filed by witnesses on April 16, 2003 contains shocking details about the PP. The first public prosecutor appointed by the state of Gujarat, respondents in the Gulberg trial, was Chetan Shah who had appeared for the accused in this very case. In September 2003 – after the Supreme Court took cognisance of the utter mockery of justice by the Gujarat government in the acquittals in the Best Bakery case – the plea of an eyewitness in the Gulberg massacre, Firoz Gulzar Mohammed Pathan, asking for a removal of Chetan Shah was acceded to. The PP appointed in Shah’s place was PP Atre. The application filed by witnesses before the trial court dated November 4, 2003 states that PP Atre (appointed after Chetan Shah’s removal) had argued against the witnesses’ plea for reinvestigation and had supported the affidavit of the police inspector denying allegations against the police about faulty investigation.

In a note filed before Judge Mehta, the Gujarat government admits that Chetan Shah was appointed PP in this case but was not assigned the case. No reasons are given here and none of the serious contentions, raised against a state which is the prosecuting agency and which is proven to have appointed lawyers who had already appeared for those accused of mass crimes, are addressed. The attitude of the state of Gujarat, despite judicial rebuke, remains one of smug complacency.

All the applications made by witnesses for corrections in the course of investigation were made in 2002 and 2003 and yet again after charge sheets were filed. However, there was no evidence of any desire at any stage by the Gujarat government to make amends.

Detailed affidavits filed by witnesses and victim survivors in the Supreme Court contain shocking details and raise important points to be considered on the following issues:

Coercion by investigating officer

The affidavit of Rupa Modi dated October 5, 2003 states how the original police inspector, PI KG Erda, tried to coerce her into changing her stand.

 

No protection to witnesses

Saiyyad Sajjad Ali’s affidavit mentions fear for life and lack of protection; Said Khan Pathan speaks of witnesses being surrounded and threatened on the premises of the Nanavaty-Shah Commission itself in August 2004. Similarly, the affidavits of Zakia Ahsan Jaffri and Tanvir Jaffri talk of being threatened by some of the accused who the police claim are absconding.

 

Clubbing of FIRs

In response to serious charges, the Modi government has provided extremely frivolous reasons for clubbing the FIRs. The clubbing of serious offences into a single FIR is motivated by a desire to subvert the process of justice. The Gulberg massacre was the first recorded incident after the Godhra arson. It began at 7.30 a.m. on February 28, 2002 and continued until at least 6 p.m. The criminal offences in the brutal massacre included mob attack, police complicity, gang rape, arson and killing. Is the filing of one FIR justified? The reasoning advanced by the state of Gujarat – that simply because the place and offence is the same, they have all been clubbed – is woefully inadequate.

While over 70 persons were brutally massacred, there were at least 10-12 cases of brute sexual violence and gang rapes. Clubbing all the crimes committed in this fashion in fact does several things:

(a) reduces the magnitude of the mob attack,

(b) minimises the detailing of individual and collective crimes,

(c) makes difficult the punishment of the guilty thus subverting the criminal justice process itself. It obfuscates the role of each of the accused. Had separate complaints been registered, the degree of involvement of all the accused, in terms of leadership and incitement, committing of criminal acts (burning victims to death, quartering, parading and then killing), role in the gang rapes etc. would have been clearly specified. There is an obvious desire on the part of the investigating agency to violate both the letter and spirit of criminal procedure in giving the go-by to the recording of details of the mass crimes and mob violence. All this amounts to shielding the accused. There is also no desire to fix role and responsibility for the utter and complete breakdown of the rule of law and constitutional governance in the state of Gujarat.

Ahsan Jaffri surrendered himself to the attacking mob at around 2.30 p.m. on the fateful day, once he realised that all his efforts, including 200 telephone calls for help to, among others, then chief minister of the state (Narendra Modi) and Union home minister (LK Advani), had not lessened the fury of the attack. The attack lasted for 10 long hours at the minimum. After Jaffri had surrendered to the mob he was stripped, his body parts were chopped off and he was paraded, half-alive, around the society to terrify the others before he was burnt alive. Do these gruesome incidents and the criminals involved in this specific crime not deserve the registration of a separate FIR?

The state of Gujarat’s response is an attempt to cover up the extent of state connivance and complicity. KG Erda, the inspector of Meghaninagar police station, stood by as the mob attacked. Then commissioner of police, PC Pandey (who has since been rewarded and is now director general of police, Gujarat), visited Gulberg Society around 10.30-10.45 a.m. Phone calls were made seeking help for over seven desperate hours before the mass killings began at 2.30 p.m. Gulberg Society is not that far from Gandhinagar or Shahibaug, the police headquarters in the city. None of this is reflected in the police records of the ghastly incident.

There is no explanation offered by the Gujarat police as to why many of those named by witness survivors as perpetrators of the violence – Dr Atul Vaidya, Pradeep Parmar, Bipin Patel, Arun Patel, Jitu Pratapbhai, Pappu Pratapbhai, Manish Prabhudas Jain, Dinesh Prabhudas Sharma, Dharmesh, Kapil Munnabhai and Bharat Rajput – are missing from the police record of their statements. Similarly, there is no explanation as to why many other accused named in the FIRs – Girish Prabhudas Sharma, Ramesh Pande alias Choti, Ashish Pande – are claimed to be absconding even though it is public knowledge that they roam freely in the Meghaninagar area and for fear of whom the victims dare not return to Meghaninagar.

 

Naroda Gaon and Patiya massacre

Clubbing of FIRs

The clubbing of FIRs has been the biggest scandal related to investigations into the post-Godhra carnages. Naroda Gaon and Patiya occupy a large geographical area on the outskirts of Ahmedabad city, an area that witnessed several incidents of appalling brutality during the Gujarat carnage. A total of 106 FIRs were registered at the Naroda police station on February 28, 2002. These 106 FIRs have subsequently been shockingly merged into two bulk FIRs relating to the two incidents.

Following this entirely illegal and unlawful clubbing, we are left with just FIR No. 97/2002 and 98/2002 relating to the offences at Naroda Gaon. Similarly, 28 independent FIRs in the killings at Naroda Patiya have been merged into a single FIR No. 100/2002.

The story behind crime report, CR 197/2002 of Naroda police station (Naroda Gaon) is particularly scandalous because the names of elected representatives as well as mastermind Dr Jaideep Patel (general secretary, Gujarat VHP) were mentioned when these FIRs were first recorded. But in the clubbing process, they have been dropped. Thus while Jaideep Patel was named by each of the witnesses and BJP MLAs Ashok and Maya Kotdani by several of them, none of their names figure in the clubbed FIR. The Modi government has maintained a deafening silence on these issues and has simply not responded to repeated complaints, backed by facts, of gross lapses in investigations.

Faulty/Mixed up charge sheets

Two FIRs of the main incident that occurred at Naroda Patiya (100/2002) and Naroda Gaon (98/2002) are registered at the Naroda police station. There is almost a deliberate mixing up of records related to the two charge sheets.

Ø Madinaben Arifbhai Malek’s injury certificate has been wrongly included in the charge sheet related to the Naroda Patiya incident though she is a resident of Naroda Gaon and her case should figure in the other charge sheet.

Ø Sugrabi Shaikh was killed at Naroda Gaon (CR No. 98/2002). However, in a gross discrepancy in investigations, without any application of mind, her post-mortem report is wrongly produced in CR No. 100/2002 while the statements in this regard are produced in CR No. 98/2002 and not in CR No. 100/2002.

Ø Twenty injury certificates issued by the doctor who treated the injured have been attached to the Naroda Patiya case. Of these 20 injured, nine are eyewitnesses. Yet, to date, the police have not recorded their statements in connection with the event.

Ø Witness Mohammed Maruf Rauf Khan Pathan’s statement recorded by the police on March 17, 2002 does not contain the names of the accused. Thereafter, another statement of his was recorded, on May 23, 2002, by the crime branch. This, the second statement, does contain the names of the accused but was not produced in the charge sheet.

Ø Sufiyabano Abdul Majid Shaikh, aged 17, residing at Jawannagar, Naroda Patiya was admitted to hospital on February 28, 2002 with severe burn injuries. Her father, Abdul Majid stated in his police statement dated April 15, 2002 that he met his daughter Sufiyabano in the hospital on March 4, 2002 when she told him she had been raped by Bhawani Chara and his son who is a vakil (lawyer). This fact is recorded in her father's police statement dated April 22, 2002. However, it was only after Sufiya's death on March 7, 2002 and her post-mortem report as well as her dying declaration and police statement dated March 3, 2002 were handed over to her father that it became evident that these records have no mention of rape.

Ø The police have not produced any evidence in any charge sheet related to Naroda Gaon or Patiya regarding the identification of most of the bodies. For example, deceased Kauser Bano whose abdomen was slit open by sword and her foetus thrown into the fire. No evidence has been produced regarding identification of her body.

Ø There are also gross discrepancies in the names and status of the accused between the charge sheet and other documents.

Ø The charge sheet related to the Naroda Patiya incident shows a total of 97 dead bodies. However, in a scandalous lapse of investigation, post-mortem investigation has only been conducted on 59 dead bodies. As for the remaining 38 dead bodies, no post-mortem report is attached nor has any reason for this lapse been offered so far.

 

Threats and intimidation of witnesses

Witnesses of these incidents were repeatedly threatened and coerced, especially by Accused No. 1 Babu Bajrangi (local unit chief of the Bajrang Dal, who is out on bail) on the premises of the Nanavaty-Shah Commission in August 2004. It was only after CJP’s intervention in the Supreme Court that they were given protection, by way of round the clock protection by the Central Industrial Security Force (CISF).

Mohammed Sharif Rahim Miyan Malek has stated in his affidavit that when he tried to return to his place of residence, an RSS worker, Pradeep Patel alias Padumal, threatened him. (Patel’s father is named as an accused in the massacre.) He also said, "How much more do you wish to go through before you leave? Next time you will be killed!"

Through the affidavits of Nanubhai Rasool Miya Malek it is clear that this witness who had deposed before the Nanavaty-Shah Commission was booked in a false case of murder of one Ghanshyam Patel and released on bail 10 months later. Similarly, 11 other key witnesses in the Naroda Gaon and Patiya massacres who have named specific persons as accused have been falsely implicated in bogus cases. For example, Bismillah Khan, who gave shelter to many victims and who escaped the mobs that day, has also been in jail on false charges of murder.

None of these serious issues raised by CJP, with facts supporting the contentions and allegations, have been adequately responded to by the state of Gujarat.

Countering the state of Gujarat’s inability to contest bare facts, this writer has pointed out that substantive allegations in affidavits by eyewitnesses are not answered, including those related to state complicity and the fact that names of influential persons were deliberately left out by the police. Allegations of sexual violence and rape crimes have, according to eyewitnesses, been deliberately obscured by the police.

In sum, the entire role of the state of Gujarat in the four years since the genocide of 2002 has been geared to reducing the magnitude of the evidence, reducing the magnitude of the mob attacks, negating the gruesome description of individual and collective crimes and concealing the names of the politically and financially powerful who masterminded and led the attacks. All this with a view to prevent action against the guilty thus subverting the criminal justice system itself.

 

Sardarpura massacre

The Sardarpura massacre that occurred in Mehsana district on March 1-2, 2002 took place at the Shaikh Mohalla. Witness survivors photographed this spot in June 2006 and the photographs reveal the pitiful condition of houses still in a broken down state. Burnt clothes of victims are in the same condition that they were in March 2002. A Patel from the village has even taken over a shop/booth belonging to a victim and has now set up business there.

Thirty-three persons, mostly women and children, were burnt alive in a small room in Sardarpura village. In all, there are 54 accused and they have all been released on bail through four different applications filed before the additional sessions judge, Mehsana, DR Shah. Between June and October 2002 four applications were filed for cancellation of bail of the accused (including a writ petition alleging mala fide investigations) by Hashim Qureshi, the advocate appearing on behalf of the victims’ families. The PP, surprisingly, did not object to the cancellation of bail. The high court has issued notices in all four of these matters.

The PP in the district court at the time, Dilip Trivedi, is also general secretary of the VHP in Mehsana district. (Trivedi also made an extremely provocative statement to the daily, Sandesh, in the wake of the Godhra train arson on February 28.) It was only after vociferous protests that Trivedi was removed from his post as PP. The state government is completely silent on this.

The four applications for rejection of bail were made on the grounds that even after being released on bail the accused had attacked a mosque in the same Sardarpura area on May 13, 2002. Charge sheets have been filed and charges framed on the basis of faulty FIRs and worse, mala fide and sketchy investigations.

Though FIRs were registered, charges were not framed. Shockingly, one of the cases related to this massacre has been closed as ‘A’ summary. The police have made no efforts to arrest those supposedly absconding. The state government continues to proffer inadequate and erroneous information suggesting utter contempt of the proceedings in which it has been held prima facie guilty of gross unconstitutional conduct.

The first incident at Sardarpura village took place on the night of February 28, 2002 when cabins and hawking pushcarts belonging to the Muslim community were burnt. Though victims sought to register a complaint with PSI Parmar, the police sub-inspector who was on bandobast at the time, he refused to register the complaint.

Between 9.30 and 11.30 p.m. on the night of March 1, 2002, a mob of about 1,000-1,500 persons attacked, looted and burnt down shops, cabins and homes belonging to the Muslim community situated in the Sardarpura bazaar. Some of these details are contained in a complaint that was lodged by PSI Rathod. No names of accused have been mentioned in this complaint though Rathod was present there on bandobast duty. Witness survivors contend that Rathod knew the persons leading the mob by name but due to political pressure on him he deliberately concealed the names of the accused in the complaint.

As far as the massacre of March 1-2, 2002 is concerned, the registration of the complaint and the subsequent investigation into the mass massacre that took place at Shaikh Mohalla have been effected in a partisan manner with a view to underplay the gravity of the crime and to protect the role of rich and politically influential people who participated in it. As a result, the main accused have been acquitted. There are defects in the police statements and therefore also the charge sheets.

The defects in the charge sheet pointed out to the Supreme Court are as follows:

Ø During the violence of March 1, 2002 that engulfed Sardarpura village and surrounding areas of the district, PSI Parmar had brought Muslims from Sundar village to Sardarpura village. Though a large number of people were witness to this, none of their statements were recorded.

Ø Pathan Mohalla lies adjacent to Shaikh Mohalla (where the massacre took place). On the night of March 1, 2002 there were about 200 persons present in Pathan Mohalla, who by their very presence and proximity to the place of tragedy were eyewitnesses who had seen the organised attack, those responsible, the timing and the ferocity etc. However, the police did not record any statements from any of those present in Pathan Mohalla.

Ø A series of incidents took place in the presence of PSIs Parmar and Rathod. However, no witness statement from PSI Parmar has been recorded. No departmental inquiry has been conducted against either or both of them.

Ø The panchas whose signatures were taken on the panchnama are in fact relatives of Accused Nos. 10, 23 and 31. They appear to have been chosen as panchas by the police with a view to withdraw support to the prosecution (and support the accused) at the time of trial.

Ø On the night of the incident recorded in CR 46/2002 i.e. the night of March 1 and 2, 2002, at about 2.30 a.m. deputy superintendent of police, DSP Gehlot came to Sardarpura village and accompanied by persons from Pathan Mohalla went to Shaikh Mohalla from where he transported the dead to the civil hospital and, using two large police vehicles, moved out those Muslim victims who had survived. These facts do not figure in the police investigations and the statements of the persons concerned were not recorded. DSP Gehlot, in fact, revealed details of these events in a statement to the media published in the northern Gujarat edition of Gujarat Samachar dated March 7, 2002.

Ø In the charge sheet filed by the police, no statements from the members of the Harijan community who gave Muslims shelter have been recorded.

Ø The Muslim homes are located adjacent to the scene of the mass murder at Shaikh Mohalla. Adjacent to these are the homes of the accused. The Muslim homes are lower in height than the higher constructions belonging to the accused. The accused threw burning cloth torches from their higher buildings to torch the lives and homes of Muslims of Shaikh Mohalla. These detailed facts about the attack are all missing from the police investigations.

Ø When they sought bail following their arrests, the accused received full support from the state. The sessions court granted them bail subject to the condition that the accused would not enter Sardarpura village. Yet not only do the accused conveniently reside in Sardarpura village in full view of the police and administration but victim survivors and witnesses cannot enter and live in Sardarpura themselves. Though the accused have violated the conditions of bail, the police have not and are not taking any action against them. The state government has taken no steps to ensure that the Muslim victims and eyewitnesses of Sardarpura village are rehabilitated.

Ø In the police statements the accused have not been named, the statements themselves being shoddily recorded. Investigation has been deliberately shoddy so as to shield the accused. There are several contradictions evident in the FIRs, the police statements and the charge sheet.

In its reply before Judge Mehta, the state of Gujarat was silent on the fact that the PP did not oppose bail. Bail was granted on the condition that the accused could not enter Sardarpura village. In fact, the opposite is happening. It is the victim survivors who have been ostracised from their hometown.

 

Ode massacre

The Ode massacre took place at Ode village, Khambolaj police station/Anand police station, in Anand district. A total of 27 persons were killed on two separate dates, March 1, 2002 and March 2, 2002.

The first FIR 23/2002 and the second FIR 27/2002 relate to the incidents of the first day. To date no FIR has been lodged in the offence of torching alive Ghulam Rasool Miya on March 2, 2002 despite repeated complaints to the police and the trial court.

Both complainants, of FIR 23/2002 (Rafik Khalifa) and FIR 27/2002 (Rehanabehn Vora), have filed affidavits before the Supreme Court. The complainants have said that only four deaths have been confirmed while the bodies of the other victims were disposed of at some unknown location. The FIRs were lodged at the Khambolaj police station and 22 accused were arrested in the two cases.

Bail was granted with unholy haste in this case of carnage as well. Many of the accused listed as absconding are wealthy non-resident Indian Patels who enter and leave the country freely despite having been accused of such a heinous crime. Their passports have not been impounded. Meanwhile, eyewitnesses live outdoors in their fields and dare not return to live in Ode town — a heavy price to pay for their decision to fight for justice.

Shockingly, the judicial magistrate, first class, Umreth, rejected the remand application for the accused even though the crime has been classified as not just grave but heinous. A revision for remand was made by the police before the sessions court, Anand, in both cases. The presiding judge was NM Thakore. During the pendency of the remand revision application, 18 accused were released on interim bail for eight days in 2002 to enable them to celebrate the Shivratri festival! Finally, 16 accused who were members of the unlawful assembly that committed this heinous crime – burning alive 26 persons – were released on regular bail by the sessions court, Anand. This action of the lower judiciary has generated a sense of injustice and outrage. This writer visited Ode in June 2006. Victim survivors cannot live in their ancestral homes. One accused approached us threateningly as we toured the area.

By the state of Gujarat’s own admission, a total of 39 accused were arrested by the police and released on bail. Yet the number of absconding accused shown is as high as 57. Of the 39 accused who were released on bail, five have returned to America.

The state’s latest response before the apex court raises more questions than it answers. The points that need investigation are:

Why were no firefighters able to reach Ode until virtually 24 hours after the attack began?

The state of Gujarat remains dishonest in its claims of having rehabilitated victim survivors. It has been denying the ground reality that none of the victim survivors or eyewitnesses of the Ode massacre can return to their mohalla in Ode. Any rehabilitative measures implemented, such as the rehabilitation of some victims in houses at Anand, have been carried out by private NGOS, not the state. Most victims live in fields outside Ode.

No proper protection has been given to witnesses in Ode (much as in the Sardarpura case) despite Supreme Court orders in this regard. Only cluster protection has been provided by the State Reserve Police under the supervision of the CISF. This is far from satisfactory and there have been numerous complaints lodged with the CISF about intimidation. Even today victim survivors and eyewitnesses live under threat from the rich and politically powerful accused who enjoy the patronage of a local MLA and minister of the ruling party.  

Archived from Communalism Combat, September 2006 Year 13    No.118, Special Report

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