The Trans Yamuna region of the national capital (Northeast Delhi) had witnessed a bloody communal violence following a nationwide protest against the Citizenship (Amendment) Act, which claimed 53 lives and left hundreds injured. Majority of those killed were Muslims.

Three years after the worst communal violence in the national capital since Partition, courts in the city have continued to come down heavily on the police — making stinging remarks on the shabby investigation and booking mostly Muslims for the violence that took place in February 2020, on the basis of concocted evidence.

A SAGA OF CONCOCTION, FABRICATION

On August 16, Additional Sessions Judge (ASJ) Pulastya Pramachala at Karkardooma Court discharged three men — Aqeel Ahmed alias Papad, Rayees Khan and Irshad — in a case related to the violence as the judge suspected that the investigating officer had “falsified and manipulated the evidence” and charge sheeted the accused in a “predetermined, mechanical and erroneous manner, with subsequent actions to only cover up the initial wrong actions”.

The court ordered, “… instead of having grave suspicion against accused persons for their involvement in the alleged incidents, I am having suspicion for IO (investigating officer) having manipulated the evidence in the case, without actually investigating the reported incidents properly.”

On August 24, ASJ Pramachala acquitted a Muslim man who was an accused in a case related to the violence, describing the police statement against him as “artificial”. Also in this order, the court concluded that the police had filed its chargesheet in a “mechanical manner without actually investigating the incidents properly”.

On August 28, the same judge accused the Delhi Police of “befooling” the court by relying on a video for evidence when such a video did not exist, “stalling” the trial and adopting “double standards” in two cases.

Acquitting Noor Mohammed, a resident of Sonia Vihar, on May 30, Metropolitan Magistrate Shirish Aggarwal had said that it appeared that the statement of a prosecution witness (a head constable) was “procured and prepared falsely and belatedly to solve this case.… The police was already aware that its case was fabricated…”.

The above mentioned orders are a few sample of a string of judgments in cases related to the violence, faulting the Delhi Police for planting false evidence and carrying out shabby probes.

Let’s revisit some more cases in which the court discharged or acquitted or gave bail to those accused of violence.

On September 20, 2022, ASJ Pramachala acquitted Noor in another case, observing that his identification as an accused was “probably an outcome of an afterthought development” by the police.

The acquittal was also based on the contradictory statements of the investigation officer.

In the same month, the court also acquitted Mohammad Shoaib, Shahrukh, Rashid and Mohammad Shahnawaz in a case. The court, while acquitting the said accused, found that the sole testimony of the constable (prosecution witness), who said that he had seen the accused in the crowd, was not found sufficient to admit their presence in the crowd.

Another contradictory statement by an assistant sub-inspector and a head constable prompted Additional Sessions Judge Vinod Yadav to observe in October 2021 that the “police witnesses are lying on oath”.

The head constable had claimed before the judge that he had identified three of the four rioters as Rinku Subziwala, Golu Kashyap and Vikas Kashyap. He had said that he knew the three men as he had been deployed in the area as a beat constable since 2019.

However, another prosecution witness, the assistant sub-inspector, on the contrary, told the court that the three accused — despite being named by the head constable — could not be identified during the investigation.

The judge then noted, “… there is no material on record that efforts were made by the IO to apprehend the said accused persons. Prima facie, one of the police witnesses is lying on oath (that is) punishable under section 193 of the IPC.”

“This is a very sorry state of affairs,” Yadav had said, seeking a report in that regard from the deputy commissioner of police (Northeast Delhi).

In September 2021, ASJ Yadav, while discharging three men, including Shah Alam, brother of former Aam Aadmi Party councillor Tahir Hussain, who were accused of rioting, arson and various offences, had pulled up Delhi Police for measurably failing to conduct a proper investigation.

The judge observed in his order that the police “made no effort” to investigate the case and were “merely filing chargesheets without any real effort being made to trace out the eye witnesses, real accused persons and technical evidence”.

Observing that the “investigating agency has merely tried to pull the wool over the court’s eyes” and expressing suspicion that a constable — a witness in the case — had been “planted”, the court had said, “I am not able to restrain myself from observing that when history looks back at the worst communal riots since partition in Delhi, it is the failure of the investigating agency to conduct proper investigation by using the latest scientific methods, that will surely torment the sentinels of democracy.”

However, months later, the judge, who had passed several orders against the flawed investigation, was transferred.

NewsClick analysed the judgments passed by courts in Delhi adjudicating on matters relating to the riots between 2020 till date. In over 10 orders, the courts have raised serious doubts on the credibility of witness statements. In most of the cases, the prosecution witnesses were police personnel.

In some cases, the statements of the prosecution witnesses were identical — raising doubts about their veracity. The analysis of the orders revealed some of the witnesses had alleged that they were coerced into giving false statements by the police.

In addition to lower courts, higher judiciary too criticised the Delhi Police for its lackadaisical approach in investigating the riots cases.

In October 2020, the Delhi High Court granted bail to one Irshad Ahmad on the grounds that the two police “witnesses seemed to be planted”.

There are several other orders (this and this for an instance) passed by the High Court over the past three years that have strictures against the investigators.

While making scathing remarks against police functioning and prosecution in the cases, the trial court attempted to ameliorate the situation by referring individual cases to senior officers i.e. the concerned DCP and in some cases the Commissioner of Police.

However, these referrals were made with highly critical comments without any action against the erring officer or similar measures to ensure his accountability.

What the courts are calling a “sad and shocking situation”, the judicial orders have consistently reflected a similar tone. But the directions are falling on deaf ears.

IS PRODUCING FALSE EVIDENCE A CRIME?

Fabricating and using false evidence, falsely charging someone with an offence and making false claims in courts are criminal offence against public justice, as per the provisions of Chapter XI of the Indian Penal Code.

And the punishment for the offence, depending its severity, varies between a jail term of three years to life imprisonment and even death penalty.

However, despite the Delhi Police being found by different courts indulging in fabricating evidence, there is no accountability of its officers.

WHY SO?

Despite acknowledging perjury on part of the investigators, the judiciary finds itself helpless to prosecute erring police officials who often lie under oath.

The Code of Criminal Procedure for prosecution of offences under Chapter XI of the IPC is extremely complicated.

In case of a complaint for such an offence, preliminary inquiries have to be instituted by a court to ascertain whether the complaint is merited.

In addition, the trial of such offences is to be conducted separately from the main trial wherein the alleged false evidence was produced.

It’s not easy for courts to prosecute every case of alleged fabrication and concoction as it would have no time for other matters as Indian judicial system is flooded with such cases.

Even though the courts have acquitted innocent persons, strict action is needed against guilty police for carrying out unfair and serious lapses in investigations, failure to apprehend and bring the real culprits to book and framing of innocents using fake evidence.

Courtesy: Newsclick

The post With Delhi Violence Cases Caving in, Who Will Fix Police Accountability for Lying on Oath? appeared first on SabrangIndia.

In September 2003 the then chief justice of India, VN Khare, had sharply chastised the Gujarat government for not only its failure to protect lives and property but its open collusion in the subversion of the justice process and had subpoenaed evidence in the now famous Best Bakery case. The indignities heaped on the Gujarat state apparatus included the cross-examination in open court of the two most senior civil servants in Gujarat at the time – its chief secretary, PK Lahiri, and director general of police, K. Chakravarti. The judge’s remarks were occasioned by the state’s abysmal failure to offer cogent explanations for the hasty completion of the Best Bakery trial (in a matter of a few weeks!) and the failure to protect evidence or to ensure that all witnesses had appeared for the prosecution, which led to speedy acquittals. It was possibly the first time ever in the history of independent India that the higher judiciary had spoken, and spoken sharply, in a case of mass communal violence. (The apex court then decided to monitor the government’s appeal in the case and subsequently, in an indictment of the Gujarat high court which had dismissed the appeal, ordered retrial and transfer of the case to Mumbai, Maharashtra.)

Two months after these remarks, the first ever conviction in a 2002 carnage case occurred in Nadiad in Kheda district. On November 24, 2003 Judge CK Rane sentenced 12 persons to life imprisonment and three to two years’ rigorous imprisonment. Forty-eight persons were acquitted. The crime: the brutal massacre of 14 Muslims at Ghodasar and Jinger villages in Kheda on March 3, 2002. Six years later, six convicts had jumped parole and the Gujarat state apparatus claimed inability to track them down. About a year earlier, in October 2002, two other carnage cases, Pandharwada, where about 25 Muslims were killed (the unofficial figure is higher), and Kidiad, where 61 Muslims had been chased and burnt alive in two tempos, saw complete acquittals. In both cases, senior elected representatives and functionaries of the ruling dispensation were accused; in both cases, the story behind the acquittals was similar to that in the Best Bakery fast track trial in Vadodara in May 2003 – witnesses had been made to turn hostile.

In February 2006 the Best Bakery retrial judgement of Judge AM Thipsay finally convicted nine persons (if the Gujarat police are to be believed, seven of the accused are still absconding!). On October 30, 2007 eight persons who were accused of rape and murder in Eral, Panchmahal, were sentenced for life while 29 were acquitted. They were part of a mob that had brutalised, raped and then killed seven Muslims. In January 2008, in the Bilkees Bano case, also transferred to Mumbai, Judge UD Salvi sentenced 11 to life imprisonment. The case involved the brutal gang rape of Bilkees and the slaughter of her three-year-old daughter Saleha, during an incident in which 14 Muslims had been massacred. Though a constable was convicted for destruction of evidence, government functionaries, including doctors, escaped the arm of the law and senior policemen who had orchestrated the subversion of the case were let off by the court.

It is in this overall context that the November 9, 2011 verdict in the Sardarpura massacre case – which convicted 31 persons, all of them landed Patels responsible for assaulting defenceless agricultural labourers who had toiled in their fields for generations – must be viewed and assessed. Communalism Combat brings its readers edited excerpts of the judgement as this month’s cover story. This is the highest number of convictions ever recorded in a case of targeted communal violence in independent India. It is a tribute to the grit and courage of the 33 survivor witnesses, displaced from their homes, who testified in court, identified the accused despite threats and inducements and ensured that justice was delivered. That the case was one among those monitored by the Supreme Court, whose directives had ensured effective witness protection, enabled the impossible to happen. That the judge cleared Citizens for Justice and Peace and its secretary of malicious and motivated charges of tutoring witnesses was another landmark. None of this would have been possible without the energetic and committed CJP team, especially its lawyers in Gujarat. Advocates Yusuf Shaikh, Aslam Baig and Sameer Mansuri assiduously participated in an onerous process.

Some points for reflection: Even in simple cases wherein a group of persons acting with one mind have assembled to commit a set of crimes, the charge of conspiracy holds. Why then were the charges of conspiracy under Section 120B of the Indian Penal Code dropped?

Remember that Gujarat 2002 was about 300 ghastly incidents in 19 of the state’s 25 districts. Evidence was led through witnesses who testified about significant preparations by politicians and leaders of the Bajrang Dal who enjoyed state patronage and protection. Witnesses also sought to lead evidence on Tehelka magazine’s courageous sting ‘Operation Kalank’ which revealed specific and relevant aspects concerning arms and ammunition being brought into Mehsana (the district in which Sardarpura is located) prior to Godhra, February 27, 2002. At witnesses’ insistence, the Special Investigation Team (SIT) did record the statement of Tehelka’s correspondent Ashish Khetan but they did not call him as a witness. Why? Though former director general of police RB Sreekumar’s affidavits, with annexed reports of the State Intelligence Bureau, corroborated some of this evidence, the SIT was reluctant to probe this aspect further.

Sharp and aggressive in its approach to the Godhra train burning tragedy, the SIT and its prosecutor had not only bought the Gujarat police’s shaky and shady version of conspiracy but had argued for the death penalty, which was imposed on 11 of the 31 accused. In the Sardarpura case, witnesses, being opposed to retributive justice, did not argue for the death penalty at all.

And thus a niggling question remains: do we view the incidents of Godhra and post-Godhra as qualitatively and quantitatively different kinds of crimes? This is a tough one, which the Indian system would do well to answer.

— EDITORS

Archived from Communalism Combat, December 2011, Year 18, No. 162, Editorial

The post When the impossible happens appeared first on SabrangIndia.