July 03, 2016

Conspiracy, Most Foul

Teesta Setalvad

THE classic dictionary meaning of the word conspiracy is not that far from what Indian legal jurisprudence has evolved an understanding of. Simply put, the Oxford dictionary meaning explains, ‘A secret plan by a group to do something unlawful or harmful’. Over the years and through substantive jurisprudence, a legal understanding of the offence under Section 120(A&B) of the Indian Penal Code has emerged and, among the parameters laid down by the Supreme Court of India in deciding the question of ‘conspiracy’ under these sections is that the offence of conspiracy is a substantive offence, conspiracy is normally hatched in secrecy; it is difficult to have direct evidence to prove the offence and often, the prosecution has to rely on different acts by various parties and mostly circumstantial evidence; that the actual meeting of two persons is not necessary nor actual words used but a tacit agreement backed by a series of offences is enough to prove such a conspiracy existed behind the commission of grossly illegal acts. It has not been disputed, neither in the popular narrative nor in the voluminous legal documentation, that large mobs were allowed to gather from the early hours of February 28, 2002 the day after the ghastly arson at Godhra in several parts of the city of Ahmedabad and thereafter over the next few weeks, all over the state of Gujarat. The scenes of the second worst carnage of Gujarat 2002 was the one that took place at Gulberg Society within eight kilometres of Naroda Patita (the worst massacre) and 3.9 kilometres of the Shaibaug headquarters of then police commissioner, P C Pande. The mob attack began by about 9 AM that day. On June 2, 2016, the judgement was delivered in the case when special judge PB Desai proclaimed that ‘he had not accepted the charge of criminal conspiracy’. The final judgement became public on June 17. The court observes (between pages 742 and 808), when the charge of conspiracy was discussed and discarded, that the mob between 9 AM to 1-2 PM had merely gathered for not violent or murderous intent (but to enforce the bandh) and it is only after the private firing by former parliamentarian Ehsan Jafri that it turned malignant because as the judgement states ‘several members of the majority community had been injured and one/two even died because of the private firing’. Evidence, from the depositions and documents placed before the trial court, however, shows that a mob had started its antics in the Meghaninagar area where Gulberg society is located armed with stones, guptis (swords) and even burning rags. Besides the searing testimonies of over 35 severely injured witness survivors of which an overwhelming majority were badly injured attaching even more significance to their testimonials, five police witnesses Nathusinh Naharsingh Chauhan (PW 2), Pradipsinh Shaitansinh Rathod (PW 28), Dhananjay Bhaskarrao Bhagwat (PW 29), Dharmabhai Ramjibhai Bodat (PW 30) and Bhupendrasinh Karansinh Sisodia (PW 305) have testified to these facts and also stated that one of the accused was spotted by them with a knife. This was in the morning. By 10/10.30 AM, some persons from mob slashed the arm of Aiyub Cyclewala (Ankur Cycle shop), thereafter damaged the rickshaw of Gulam Master and started attacking the chawls (Dr Gandhi’s Chawk, New Chawl, Hasan Jivabhai’s Chawl, Ghee’s Chawl, Satontookbehn’s Chawl, etc) in the area selectively targeting homes and shops belonging to the minorities. Police witnesses have stated in their testimonies that the mob was huge enough, nearing 4,500-5,000. Injured and traumatised eyewitnesses have said that it was close to 15,000 strong. That the mob was also shouting slogans like ‘Miyaon ne kapo, maro,” (cut and kill the Muslims) is also part of the record. One witness who has even testified to getting a hint that meetings were being planned in the locality, excluding Muslims, but Firoz Dilawar Shaikh (PW 241) has been disbelieved by the judge. There is more. Three police witnesses -- Arvindsinh Shankarsinh Waghela (PW 7), Dhanesing Becharsing Kumpawat (PW 13) and Natwarji Javanji Bhati (PW 269) -- have on oath stated (and expressed surprise about why and how) joint commissioner of police M K Tandon came with striking force vehicle that was fully equipped to disperse crowds but he (inexplicably) left not only without ordering action on the fast gathering violent mob but did not even leave the well equipped ‘Vrij Vehicle’ behind. “Tandon saheb left the place due to any reason known to him without giving any order” is what these witnesses have deposed. These points were rigorously made by the advocates for the survivor witnesses who also pointed out from the documentary evidence on record (police registers and details) that there was only perfunctory firing by the policemen present on the mob between 12 and 2 PM allowing the mob gathered to execute its dire acts more successfully. Then there are also phone call records placed before the court, that have assumed status of a ‘hot potato’ that few want to touch or peel. They point to wider knowledge of the massacres executed in broad daylight. An analysis of the CDs made available by former IPS officer, then DCP Crime, Rahul Sharma reveal a total of 15 calls that day received and made by Pande with different officials from the then chief ministers office (CMO), the first telephonic exchange beginning as early as 11.14 AM. Of a total of 302 calls received and made on his mobile by Pande on February 28, he spoke several times to his boss, DGP K Chakravarthi and eight times to Jt CP Jha but called DCP Gondia (responsible for the jurisdictions of Naroda and Gulberg) only twice, that too after the worst was over (15:16:12 hrs and 15:54:39 hrs). Despite the proximity of the commissioner’s office and police control records that show that PI KG Erda was in constant and regular touch with his higher-ups, curfew was not declared in the Meghaninagar area till as late as 12.54 PM, an act that is inexplicable as much as it shows violations, by the officials of the ranks of police commissioner and additional police commissioner of violating standard operating procedure. Advocates for the witnesses have argued (and at least four eyewitnesses from Gulberg have testified to this) that the high-level conspiracy behind Gulberg went beyond the bestiality of the mob attack: Tandon’s role, callous and calculated, including destroying evidence: around 5:30 in the evening of the bestial attack, when they were being rescued by a police van, two survivors pleaded to be allowed to take the bodies of their near and dear ones, who had been raped and killed, with them. “You look after yourself, we’ll take care of the dead,” Tandon had reportedly told them. Panchnamas of the site reveal how the embers were allowed to burn, undoused, at Gulberg society for three days after the attack, ensuring that any forensic evidence behind the killings is properly destroyed. When survivors buried the charred remains of their loved ones at the Kalandari Masjid Kabrastan on March 3, 2002, these bodies had been reduced to ashes. There is little deliberation on this deliberate destruction of evidence in the judgement. This and more nuggets of substantive circumstantial and documentary evidence appear to have been overlooked in a judgement that shows no appreciation or empathy for the 69 lives so brutally lost to the fires of a hate driven politics. Testimonies of occurrence witnesses who broke down in court as they recounted the horrors of their ordeal find a similar, callous disregard by the judge. The telltale line appears on pages 778-779 of the 1,345-page judgement, “....No material has been considered even prima facie worthwhile to arraign such senior police officer and government officials and politicians in power as accused in a number of proceedings including the present proceedings and in my opinion, therefore, it would be unsafe and improper to even have a further discussion on this aspect. The controversy, in my opinion, has been laid to rest and is required to be given its due burial.” Herein lies the tale behind the weak and disappointing verdict. The Supreme Court-appointed Special Investigation Team (SIT), assigned with the worthy task of both investigating and prosecuting these trials, simply did not press hard enough to establish the charge of criminal conspiracy , never mind the availability of sustainable evidence. Their eye is on the Zakia Jafri case – now pending arguments in the Gujarat High Court; a case that makes arguments of a statewide criminal conspiracy behind the happenings of 2002. Already the verdict of August 29, 2012 in the Naroda Patiya case that not only upholds wider conspiracy but lauds Ashish Khetan’s sting operation (tapes were examined and found to be genuine by the CBI following an order of the National Human Rights Commission in 2008) as corroborative evidence. If, in the Gulberg trial, the SIT and its prosecutor had argued, as evidence demanded, for charges of criminal conspiracy to be upheld, it would have made arguments for Zakia Jafri in the High Court that much easier. By making a weak argument on conspiracy, as judge PB Desai often observes, and leaving advocates for the witnesses to strongly argue conspiracy, the SIT’s investigation into the Gulberg trial, nevertheless gets established as less than serious. (The writer is a journalist and secretary Citizens for Justice and Peace, an organisation that has been providing legal aid to the survivors of 2002)