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Judgement on the Second Odh Case #gujarat #Narendramodi


May 4, 2012

 

The Citizens for Justice and Peace welcomes the decision of the trail court (May 4 2012)November 9, 2011) in the second Odh massacre case (CR 44/2008) to convict  9 persons to life imprisonment for murder and unlawful assembly. (Sections 302 and 120 B of the Indian Penal Code as also other sections.) The verdict was delivered by Judge Sareeen at the Anand district court today.

 

There are some critical issues following the outcome of the this case that CJP would like to focus on:

 

Firstly, Witnesses and survivors are still terrified of returning to their village of ; seven of the ten displaced Vora Muslim families live in Anand –those who have returned (six to seven families are on conditions of silence) . Hence it is safe and reasonable to conclude that it is only with the monitoring of the cases by the , which monitoring has ensured that CISF protection is given to every eye not to mention the legal aid provided by Citizens for Justice and Peace could this result –9 convictions – have been achieved.

 

In the past two weeks alone, one in Umtha, the Trial court acquitted all the 130 accused in a heinous case of mass murder in 2002 reportedly on grounds that the witnesses had turned hostile. Barely eight days back the Gujarat High Court reversed the conviction of 21 accused in the ghastly Ghodasar mass massacre post Godhra killing wherein the had ordered convictions in late 2003. All this is evidence of the fact that unless there is close monitoring of the trials by the higher judiciary witnesses are protected (CISF protection has been given) and given the courage and facilities to depose without fear and favour, justice does not result.

 

Behind each of these 9 persons being convicted for life are the testimonies of three – six eye witnesses and victim survivors who have a) named them in statements before investigating agencies; b) named them in their testimonies in Court and c) identified them in a dock eyed investigation in the Court premises at Mehsana. This seemingly glib and easy exercise of witness testimony that started over two years ago in July 2009 has meant victim survivors living through pain and trauma, fear from the powerful perpetrators. The victim and eye witness community are traders forced to re locate at Anand  an hour’s drive from Odh village.. At every step they have been warned to stay away etc but the fact that the SC was watching, the central paramilitary was protecting them and there was a group of citizens committed to the rule of law, willing to risk things and apply to the SC if and whenever things went wrong gave the confidence to the witnesses to depose. This must not be lost sight of.

Eye witness testimonies are the only factor for convictions during mob violence. Eye witness testimonies are the only guarantor of convictions –there are over four dozen judgements on this and without these testimonies there would have been no convictions.

 

The would like to take this opportunity to express its appreciation and gratitude to its entire staff and team of lawyers who have worked tirelessly to make this happen. Specifically, would like ti take this opportunity to express gratitude for the commitment of its young legal team–advocates Irshad Mansuri who handled both the Odh cases. (photographs attached). Shri Suhel Tirmizi in the . Shri Mihir Desai in Bombay and Ms Kamini Jaiswal, Ms Aparna Bhat and Shri Ramesh Pukhrambam in the Supreme Court of India helped us pursue this case tirelessly.

 

A real life issue for CJP and all of us working in the socio political arena is the paralysis within locations where mass crimes happen, here Odh in Gujarat where Victim Survivors cannot relocate, where their destroyed homes are still a relic to the violence of 2002. What do we conclude from this? It is the failure of the entire socio political class even the Opposition to ensure the climate of safety to ensure this happens. An intrepid legal fight has ensured legal victory, what about reparation and restitution?

 

The CJP expresses concern that the evidence of several eye witnesses that had identified a total of about 20 accused has resulted in benefit of doubt to the accused. Witness victims and CJP will challenge these in the High Court. (The detailed written arguments filed witness survivors can be accessed from our website www.cjponline.org. Attached to this mail are documents relevant to this case.

 

Thirdly CJP would like to state unequivocally its stand on the sentence. We stressed that death penalty is not a form of punishment we subscribe to. CJP would like to place on record its distaste at the vindictive manner in which special public prosecutor in the Godhra case and pushed for death penalty for 11 persons. We believe that the issue of inter community peace and restitution of harmony has moral and ethical dimensions not only legal ones and hence we would like to express displeasure at the conduct of the prosecutor under the SIT.

In the judgement delivered today Judge Sareen convicted nine persons under sections 144,148,302,307, 395, 436, 440, 153(A). Read with 149,  AND 120(B) of the and Rs 21500 fine. One accused  convicted under section 353 sentenced for six months with Rs 500 fine.Thirteen accused against whom evidence was led have been given the benefit of the doubt and 17 have been completely acquitted.

The Names of the Nine persons convicted are
Harish Vallabh Patel
Vasant Poonam Patel
Lalabhai @ Nileshkumar Manibhai Patel
Tino @Maheshbhai Gopalbhai @ Ramabhai Patel
Minesh Poonam Patel
Prakash @ Pako Jamnadas Patel
Riteshkumar Arvindbhai Patel
Ashok Dahyabhai Patel
Kirit @ Boriyo Manubhai Patel
Under section 353 Bhavesh Pancham Patel

Trustees CJP

BACKGROUND NOTE:

Note on ODH Massacre (Judgement due on May

The Citizens for Justice and Peace has retained two advocates Shri Irshad Mansuri and Nasir Shaikh for both Odh Trials. Several of the injured witnesses were not examined by the SIT but deposed in the Court after we made applications before the Trial Court. Like others, this trial was stayed on November 21, 2003 and stay lifted on May 1, 2009 when Trials began. On March 26, 2008 the SC transferred Investigation to the SIT.

 

SUMMARY:-

Khambolaj police station I.C.R.No. 27/02 (SC No. 44/08)

Complainant  :-  Rehana Yusufbhai Vohra

Judge R.M. Sarin

Special P.P –  Shri. B.C. Trivedi

15.6.02  Charge Sheet filed on in case No. 833.02 umreth Court

Total Nos of Deaths. Three

(1) Ayesha Abdulbhai Vohra (2) Nuriben Gafurbhai Vohra  3) Kaderbhai Ishmailbhai Vohra

Total Accused :- 41  (Kantibhai Manabhai Chavda & Others)

Charge Framed against Accused  – 37 (charge Date 29/9/09)

After CRPC 319 Application filed by Injured Witnesses, Granted 4 Accused Add (Charge date 30/4/11) with sections –IPC 143, 147,148, 149, 302, 436, 440, 451 with 149, 307, 435, 120B  with 34, 395, 295, 297, & BP Act 135(1)

Total witnesses Examined  – 67 (23/9/11)

Doctors-14, Police-03, Mamlatdar- 02 Fire Brigade-01, Ex-maji-01, police Photographer-01, Hostile-16 Punch – 8

Total documents produced :- 98 documents produce from Ex 74 than after another document produced between Examination of witness

Absconding Accused (1) Natubahi Satabhai patel  (2) Ankurbhai Shahpurbhai Patel

(3) Samirbhai Vinubhai patel (4) Rocky @ Rakesh haribhai patel (5) Mohan @ Shashin Rameshbhai patel (6) Nikul Ravjibhai Patel

25/11/09   Application field by injured Witness under CRPC 173 Ex 211

21/10/09   Application rejected Ex 211

Arvindbhai Bhagabhai Patel passed away (died) during the trail (9/2/12)

9/6/10       Ex 288 CRPC 319 Application filed to arraign Four More accused by Injured Victim Witnesses

29/7/11     Ex 345 CRPC 319 Application file

4/12/10     Ex 288, Ex 345, The Application was Partly Allowed against 4 Accused (who were not arraigned by the SIT)            (1) Bhavesh Manubhai Patel  (2) Bipinbhai Manibhai , (3) Suresh @ Somaya  (4) Suresh @ Tato

12/11/11    Judge visited place of offence, 23/2/12     24/2/12   For FS

2/3/12        Defense Witness Examined (Mahendra Ambalal Patel owner of Shiv Sadan)

28/3/12     Argument s of the Defence completed

2002         IO K R Bhua (CPI) SIT IO H C Pathak

 

6/3/2002 Accused No. 1 to 7 Arrested at 11.30

14/4/2002 Accused No. 8 to 44 Accused Arrested  at 17.30 but those all Accused were released on Anticipatory Bail through an Order dated 6/4/2002

Accused No. 1 to 7 was release on bail on date 20/3/2002 order of session Court CRMA No. 169/02 (in the Application Mahendra Ambalal Filed affidavit)

Background

Ode village, Khambolaj police station, Anand Police Station Khambolaj Taluka

Umreth; District: – Anand:

Date of Incident (s)1-3-2002 and 2-3-2002

Time of the Incident(s)  Between 11 and 3 p.m. in the afternoon (This is the second incident) On 1-3-2002, the three torching alive incidents of 23 + 3 + 1 human beings being burnt alive took place.On 2-3-2002, a man was torched alive on the street at about 12.30 p.m.-1 p.m.

Twenty-seven persons were killed here over three separate incidents, one in which 23 + 3 + 1 were burnt alive on 1-3-2002 and one more was torched on the street the next day, i.e. 2-3-2002.The FIRST FIR 23/2002 and the Second FIR 27/2002 relates to the incidents of the first day. In between a police officer also filed an FIR 25/2002. No FIR was originally lodged related to the offence of torching alive Ghulam Rasool Miya on 2-3-2002 the next day despite repeated complaints to police and the Trial Court. Of these 27 persons, 23 were killed on 1-3-2002 in the Piravali Bhagol area of Ode, 3 persons in 1-3-2002 in the Mal Bhagol area of Ode and one person on 2-3-2002 in the Surivali Bhagol area of Ode. Two FIRs have been lodged at the Khambolaj police station. The first is C.R.No.23/2002. U/s. 302, 148, 149 etc. and the name of the complainant is Rafiq Mohammed Abdulbhai Khalifa.The second FIR lodged with the Khambolaj police station is C.R.No.27/2002. The complainant’s name is Rehanaben Yusufbhai Vohra. 22 accused were arrested in both cases. (FIR attached)

Bail was granted immediately in this mass carnage case also. I crave leave to refer tothe bail orders at the time of hearing of the Petition.  Many of the accused shown as absconding accused are wealthy NRI Patels who enter and leave the country despitehaving been party to such a heinous crime. Eye witnesses live out in their agricultural fields and cannot step back and live in Ode own—the price for having taken thedecision to fight for justice.The remand application for the accused was rejected by the judicial magistrate, first class, Umreth, 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 the cases.  During the tendency of the remand revision application, 18 accused were released on interim-bail for 8 days to celebrate the festival of Shivratri in 2002. Finally,16 accused who were members of the unlawful assembly which committed this heinouscrime of 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.  There was undue haste in granting Bail. Applications & Orders

a)Fifteen accused persons preferred bail application No:- 112/2002 before the

Additional Sessions Judge at Anand on 8.3.2002. The learned prosecutors Shri Pathak appeared on behalf of the State. The learned judge Shri N.N. Thakere by his order dt. 20.3.02 released 9 accused out of 15 accused on bail. Relevant para 4 of the order is important.

b)  The other 18 accused had preferred an anticipatory bail application No:- 246/2002 u/s 438 of the Code on 15.4.02. Shri M. S. Pathak appeared for the state as P. P. The learned judge Shri B.M. Modi was pleased to release the accused on anticipatory bail by his order dt 20.4.02

c)   Then accused in Cr. Misc application No 417/02 (Rejected on 20.3.02) and 5 accused (rejected on 20.3.02) preferred a Misc Cri application No 418/02. Both these applications were allowed. The P.P. Shri V.G. Parlot appeared as P.P. and learned Judge Shri B.M. Modi released the accused on bail. In both these applications, the P.P. did not oppose the bail but consented. A total of 39 accused arrested by Police and Released on Bail. Absconding Accused shown are as high as 57. From the 39 accused who were released on Bail, 5 went to America.

 

A total of 27 persons lost their lives. The complainants say that only four deaths are confirmed and the remains of the other victims have been disposed of at some unknown location. The first FIR 23/2002 relates to the incident of 1-3-2002 and the FIR 27/2002 relates to the incidents of 3 persons being torched alive in a house.  In between a police officer also filed an FIR 25/2002. The police continued the FIR dtd 1-3-2002 and clubbed the two offences into one.  Victim survivors have filed complaints about the clubbing of offences to Nadiad Court.   Annexed hereto are the FIRs related to the Ode Massacre as Annexure A (colly). Attached and annexed hereto as Annexure B (colly) is the complaint filed by witness No. 26 Rafik Md. Gulam Rasool Syyed dated 25-09-2003 before the Nadiad Court about this FIR being registered and other complaints he filed before the other officials. In this complaint, the witness has also mentioned that earlier requests/complaints lodged before different authorities giving information about this incident and asking that a complaint be lodged separately were made but unfortunately not heeded.:

a.   On 5/3/2002 complaint to DSP Anand

b.   On 9/7/02 Departmental Police Officer SP, Anand

c.   On 24/7/02, Police Inspector (illegible) Police Station M.D.S.P. Anand, Home Minister, Chairman of Minorities Commission Board

Efforts have therefore been made by witness complainants from the outset to get investigation matters rectified but have gone unheeded by the authorities in the state of Gujarat. No separate complaint about the incident on 2/3/02 has been admitted, nor have investigations been carried out in relation to it.In the ODE massacre, major accused are out on bail, five are ABROAD. Many were

given anticipatory bail. None of this has been challenged by the State.

There was no fire fighters inside Ode until 1500 hours on 2-3-2002 which is virtually 24

hours after the attack began. According to the State, “ First firefighter was called for

extinguishing the fire in houses and the shops. Fire fighter could reach Ode on 2-3-2002

at 1500 hours (emphasis added).”  On the very next page, page 7 the state government

contradicts itself stating that 200 homes and shops were put on fire but “due to non

availability of fire fighters the fire in the shops and home continued till extinguished on 2

3-2002 after 1500 hours.” (emphasis added)

 

Close to 24 hours fires that had burnt alive people in Ode village raged unchecked

because of fire fighters either not being summoned until the next day or not being

available. Any which way that one looks at it, it is unavoidable to conclude that there

was mass mayhem in Ode village, that the police present there were either mute

spectators or connived in the violence. It is also not clear as to the efforts made to put

out the fires and rescue trapped people in the burning houses before the fire fighters

arrived, the manner in which the survivors were brought, information on any inquiry

lodged into the non requisitioning of the fire brigade, or their non availability or their

delay in coming to the rescue and any  inquiry lodged into the conduct of police personnel after complaints received by victim survivors.

The Citizens for Justice and Peace has retained two advocates Shri Irshad Mansuri and Nasir Shaikh for both Odh Trials. Several of the injured witnesses were not examined by the SIT but deposed in the Court after we made applications before the Trial Court. Like others, this trial was stayed on November 21, 2003 and stay lifted on May 1, 2009 when Trials began.

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