Substantive pieces of circumstantial and documentary evidence appear to have been overlooked in the Gulberg Society verdict.
The dictionary meaning of the word conspiracy is not far removed from the understanding of it evolved in Indian legal jurisprudence. The Oxford dictionary explains it as: “A secret plan by a group to do something unlawful or harmful”.
Over the years, in deciding the question of “conspiracy” (120A and 120B of the IPC), the Supreme Court has opined that it is a substantive offence, normally hatched in secrecy; it is difficult to have direct evidence and constitutes different acts by various parties and mostly circumstantial evidence; an 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 the motive behind the commission of grossly illegal acts.
It has never been disputed, either in the popular narrative nor in the voluminous legal proceedings over close to 15 years now, that large mobs were allowed to gather from the early hours of February 28, 2002, the day after the mass arson at Godhra in several parts of Ahmedabad, and thereafter, all over Gujarat.
The scenes of the second worst carnage were the ones that played out at Gulberg Society within a few kilometres of Naroda Patiya (the worst massacre) and 3.9 km of the Shahibaug police HQ, under the watch of then police commissioner, P.C. Pande. On June 2, 2016, special judge, P.B. Desai proclaimed that “he had not accepted the charge of criminal conspiracy.”
Pages 742 and 808 of the judgement that became public on June 17 discuss and discard the charge of conspiracy. The judge observes that the mob gathered between 9 am to 1-2 pm had no murderous intent; it is only after the private firing by former parliamentarian Ehsan Jafri that it turned malignant when “several members of the majority community had been injured and one/two even died because of the private firing.”
Evidence, all from the depositions and documents placed before the trial court, however, shows that a mob armed with stones, guptis (swords), even burning rags had started its antics in the Meghaninagar area where Gulberg Society lies. The testimonies of over 35 severely injured survivors, of which an overwhelming majority were badly injured under attack (attaching even more significance to their testimonials), as also five police witnesses, Nathusinh Naharsingh Chauhan (PW 2), Pradipsinh Shaitansinh Rathod (PW 28), Dhananjay Bhaskarrao Bhagwat (PW 29), Dharmabhai Ramjibhai Bodat (PW 30), Bhupendrasinh Karansinh Sisodia (PW 305) have confirmed this and added that at least one of the accused was spotted with a knife. This was in the morning.
By 10.30 am persons from the mob slashed the arm of Aiyub Cyclewala (Ankur Cycle shop), and broke apart the rickshaw of Gulam Master and also started attacking the chawls, Dr Gandhi’s Chawl, New Chawl, Hasan Jivabhai’s Chawl, Ghee’s Chawl, Satontookbehn’s Chawl in the area, selectively targeting homes and shops belonging to the minority. Police witnesses have put the mob as large as 4,500-5,000, injured eye-witnesses at 15,000 strong. This is all part of the evidence. That the mob had declared its murderous intent and some members were shouting slogans like “Miyaon ne kapo, maro,” (cut and kill the Muslims), is also on record.
There is more. Three police witnesses, Arvindsinh Shankarsinh Waghela (PW 7), Dhanesing Becharsing Kumpawat (PW 13) and Natwarji Javanji Bhati (PW 269) have testified that joint commissioner of police, M.K. Tandon, came with a striking force vehicle that was fully equipped to disperse crowds, but he left (inexplicably) not only without ordering action on the fast gathering violent mob but did not even leave the well equipped vehicle with arms behind.
“Tandon saheb left the place due to a reason known to him without giving any order”, they have stated. This evidence finds no mention in the section discarding conspiracy. This was around 10.30 am. These and other strong points were rigorously argued by the advocates for the survivors. Evidence showed also that there was only perfunctory firing by the policemen present between 12 to 2 pm, allowing the mob gathered to execute its dire acts more successfully.
There are also the phone call records, placed before the court that have assumed the status of a “hot potato” that few want to touch or peel. They point to a 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 chief minister’s 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 P.B. 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, records show that curfew was not declared in the Meghaninagar area till as late as 12.54 pm, an act (delayed declaration of curfew) for which officials of the ranks of police commissioner and additional police commissioner are normally held responsible.
At least four eyewitnesses from Gulberg have testified that the high-level conspiracy behind the Gulberg massacre went beyond the bestiality of the mob attack and extended to destroying evidence: Around 5.30 pm on February 28, when they were being rescued by the police, two survivors pleaded to be allowed to take the bodies of their near and dear ones, killed and lying out in the open, with them. “You look after yourself, we’ll take care of the dead,” Tandon had reportedly told them.
The site panchnamas 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 was destroyed. When survivors buried the charred remains of their loved ones at the Kalandari Masjid Kabrastan on March 2 and 3, 2002, these bodies had been reduced to ashes.
These and other nuggets of substantive circumstantial and documentary evidence appear to have been overlooked in a judgement that shows little empathy for the 69 lives so brutally lost to the fires of a hate driven politics. The telltale line appears on pages 778-779 of the 1345-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 real story behind the disappointing verdict. The Supreme Court-appointed Special Investigation Team (SIT) assigned with both investigating and prosecuting these trials chose not to press hard enough to establish the charge of criminal conspiracy in the Gulberg trial, never mind the availability of sustainable evidence. Their eye is trained on the Zakia Jafri case — now pending arguments in the Gujarat High Court; a case that makes out arguments of a statewide criminal conspiracy behind the happenings of 2002.
If, in the Gulberg trial, the SIT had pressed for the charges of conspiracy as evidence demanded, it would have made the arguments for Zakia Jafri in the high court that much easier. By making a weak argument on conspiracy, as judge P.B. Desai often observes, the SIT’s investigation into the Gulberg trial, nevertheless gets established as less than