Right from the beginning, the State abdicated its responsibility in fixing the blame for the Hashimpura massacres or getting justice for the victims.
Jyoti Punwani and photographer Uttam Ghosh, in the third part of their series, trace the long and fruitless legal struggle waged by the victims' families for 28 years.
Special to Rediff.com
EARLIER IN THE SERIES:
- 'To wait for justice for 28 years, and to see them walk away...'
- In Meerut, no cry of justice for Hashimpura victims
Within hours of the Provincial Armed Constabulary whisking away a truckful of able-bodied, unarmed Muslim men from a single locality in Meerut, shooting them and dumping their bodies into two nallahs on the outskirts of the city, the entire administration -- the chief minister downwards -- knew of the incident.
Riots had been on for some weeks. Late night on May 22, 1987, then Uttar Pradesh chief minister Veer Bahadur Singh was passing through Meerut. Then Ghaziabad superintendent of police V N Rai, who had by then already met one survivor, and visited the 41st PAC battalion headquarters along with district magistrate Naseem Zaidi, met the CM along with top police brass and informed them about the incident.
Did the CM instruct his men to nab the PAC men? He could have himself gone to the PAC HQ where evidence of a truck having been washed, in the form of reddish water, was still there. He could have summoned the PAC head and ordered him to find the men who had killed his citizens.
Instead, the only thing Singh did was to instruct his administration to control the situation that would inevitably arise from this mass custodial killing.
The killing happened late on the night of May 22. On May 24, the investigation was handed over to the state Crime Investigation Department-Crime Branch.
The initial investigations had already been done by the local police: The statements of two survivors recorded, panchnamas of the scenes done. Says Special Public Prosecutor Satish Tamta, "The first two IOs (investigating officers), who were from the regular police, did their duty."
The CB-CID -- a division trained in investigation -- took seven years to do theirs; a task, says Tamta, that should have taken six months at the most, given that the accused were men on duty in government service.
After those seven years, the CB-CID produced a chargesheet devoid of the most crucial pieces of evidence. There was no statement from a single senior PAC officer; no record to establish that the 19 accused were the persons in that truck; nor any record linking that particular truck or the rifles and ammunition used to the incident.
Consider some of the highlights of the investigation:
- The forensic expert was asked to examine the truck one-and-a-half years after the incident; naturally, he found nothing.
- The driver of the truck was changed at the last minute. One Iftikhar Ahmed, who was scheduled to be the driver, was replaced by Mokham Singh after an 'altercation.' The case diaries reveal that Ahmed had refused to drive it, having got some inkling of what was to happen. But neither Ahmed, nor the two PAC officers who handled this change of driver, were made witnesses by the CB-CID.
- No PAC jawan was asked to identify which of them got into the truck at Hashimpura.
- The chargesheet did not list the identifying numbers of the two army officers in charge of the raid on Hashimpura that afternoon, at the end of which the PAC drove away with the men of the area. The army refused to trace them. Hence neither of them turned up for the trial.
- The official list of 89 men in the 41st PAC Battalion 'C' company was procured a year after the incident. The list was signed by the 'dal nayak,' and no witness was produced to identify the signature.
- The case diaries mention army records authorising the raid, and the number of men picked up from Hashimpura -- but these documents were neither seized nor identified.
- No instructions were given to the PAC to preserve documents.
- Seven IOs handled the seven-year-long investigation. The first three started from scratch, instead of going ahead from where the last one had stopped. So all statements got recorded multiple times, leaving room for contradictions in statements.
- Six years after the incident, PAC witnesses in charge of maintaining registers were being asked whether they had noted the timings of arrival and departures of crucial players. 'I don't remember,' was the reply.
Seven years after the incident, the distance between Hashimpura and the spot where the bodies were found were measured.
By the time the chargesheet was filed in 1996, one of the army men was dead. Despite that, the CB-CID cited him as a witness.
As V N Rai, Tamta and the victims' lawyer Vrinda Grover point out, this investigation was not the work of a single officer. Regular reports had to be sent to superiors of the progress in investigation. But no one seems to have objected.
The case was sent to the Ghaziabad court in 1996, where it lay till 2002, when it was transferred to Delhi after a petition was filed in the Supreme Court by the People's Union for Civil Liberties.
In these six years, nothing moved because the accused PAC men just did not turn up in court. Non-bailable warrants issued by the court were never served; the court was told that the men were untraceable.
These men were in government service, points out Grover. The judge could have summoned either the head of the CB-CID or of the PAC or both, and ordered that the men be produced.
It was only in 2000, after a national newspaper front-paged the goings-on in the case, that the accused appeared in court. Refused bail by the trial court, they were allowed bail on appeal, on the grounds that being members of the PAC, they would not abscond.
The court didn't seem to notice that they had been virtual absconders for the last four years.
But the transfer to Delhi brought no relief. For the PP kept coming to court unprepared. Many complaints later, he was replaced, but a young, unqualified PP was sent.
It was only 20 years after the riots, when then chief minister Mulayam Singh Yadav had to take note of the victims when they marched to Lucknow, that Special Public Prosecutor Satish Tamta was appointed.
By the time the trial began in earnest, the tardy CB-CID investigation, the non-cooperation by the PAC and the indifference of the UP government in court, had achieved their desired results.
The two main investigating officers who had listed the 19 accused from the 89 men belonging to the 41st PAC Battalion 'C' company, were dead. Thus, there was no way to find out why these men had been picked out. Neither the case diaries nor the chargesheet explained their choice.
The rifles ostensibly used to kill the victims were produced in court in an unsealed condition; the court was informed that they had been reused by the PAC after the incident; hence, their evidentiary value was zero.
The second FIR, filed on the night of the incident itself, had been 'weeded out' -- a routine government process of discarding old records.
It is revealing of the CB-CID's attitude towards the case that not one of their men thought it fit to be present in court during the trial.
Despite all this, the judge held that this was a 'horrific' incident of targeted abduction and killing of around 42 persons by the PAC. He found the victims' testimony reliable and disregarded the discrepancies in their statements as minor. He did not put much store in the victims' failure to identify the accused in court.
Incidentally, even during the investigation, the CB-CID had never asked them to identify the accused.
But given the lack of any evidence linking these 19 PAC men to the incident, he acquitted them.
The judge's finding, feels Grover, was a validation for the victims. "We underestimate what this formal acknowledgement by a legal institution means to them," she says.
However, there was some evidence produced by the prosecution that could have been deemed sufficient to identify two of the accused, feels Tamta.
One was a PAC jawan named Leeladhar.
It was established that immediately after the truck returned to the PAC battalion that night, Leeladhar was rushed to hospital by Surinderpal Singh for an eye injury.
The defence stated that the injury had been caused by shrapnel generated when a petrol bomb was thrown at Leeladhar in the city. But no record of such an incident was produced. And though he claimed to have received the injury on duty, no FIR was filed as is mandatory.
The prosecution alleged that Leeladhar had been shot in the eye inside the truck.
The victims had deposed that after the PAC brought down the first three men from the truck and shot at them, the rest of them raised a hue and cry. The PAC men then shot directly at them inside the truck.
One victim said he heard a PAC man cry out that he was hurt. Leeladhar was the man, claimed the prosecution. His getting himself voluntarily discharged from the hospital aided this conclusion.
The judge rejected this argument because Leeladhar had not been examined by an eye specialist who could say for sure that the injury was caused by a bullet, and no witness testified about him in particular being shot inside the truck.
The second accused whose identity was established was the driver, Mokham Singh. The records established that he drove the truck URU1493; however, these records could not be corroborated. More importantly, there was no hard evidence to prove that this was the truck that had been used in the incident.
A physical examination of the truck had revealed that a metal strip had been stuck on it; when the strip was removed, there was a depression underneath that could have been formed by a bullet.
But the prosecution could not prove when this damage was done or when the metal strip had been stuck. Since the examination was conducted more than a year after the incident, this depression could have occurred any time.
Finally, evidence in favour of the prosecution came in the form of testimony by a defence witness, Gulesh Ali. He was presented as a witness by four of the accused who had separated themselves from the rest and hired their own lawyer.
Ali was then part of the 41st PAC Battalion. He deposed that the truck in which he and others from the PAC were travelling on May 22 was requisitioned by Subedar Surinderpal Singh at Hashimpura. Some 40, 45 persons from Hashimpura as well as PAC men were taken in the truck. But he and four other PAC constables were asked to get off on the way.
Among those four was another Muslim, Samiullah.
But the judge maintained that this testimony was too general to be of help to either the accused or the prosecution.
Acquitting the accused, the judge pointed out that the evidence was too weak, the defects of the investigation too strong to prove beyond reasonable doubt that the accused were the very persons who committed the crime.
Since the punishments for their alleged offences could be life imprisonment or even death, conviction on such unreliable evidence would be a miscarriage of justice.
"Being on duty and in government service, the identity of the accused could never be a mystery; it had to be matter of record," points out Grover. "There should be a white paper on the Hashimpura investigation. Everyone from top down was derelict in their duty. How do we hold them accountable?"
Agreeing that for a criminal trial the standards of evidence must be very high, Grover wonders why no disciplinary action was taken against the accused. "For that, a departmental inquiry is enough."
The accused were in fact suspended briefly, for periods ranging from six to 18 months. Even this brief period proved too much. Subedar Surinderpal Singh pleaded that he was in financial difficulties, so they took him back.
Indeed, the confidential reports of Surinder Pal Singh only got better after 1987. His 1989 CR describes him as disciplined, truthful, and his overall performance as 'ati uttam' (most ideal). "This was a man facing investigation for mass murder!" points out Grover.
'Who will police the police?' asks Tamta, quoting a 1961 observation by Justice A N Mulla of the Allahabad high court: 'I say it with all sense of responsibility that there is not a single lawless group in the whole country whose record of crime is anywhere near the record of that organised unit which is known as the Indian police force.'
Will the policemen who killed 20 alleged smugglers and five SIMI undertrials in Andhra Pradesh and Telengana also get away?
The Hashimpura judgment has yet again demonstrated the need for an independent investigating agency; but what shape should it take needs to be debated urgently, says Grover.
What happens now? The UP government might file an appeal; the victims surely want to. Since an appeal is considered a continuation of the trial, says Tamta, the court may order for production of documents not produced, or for additional evidence.
Or, says Grover, the thrust could be on the most glaring aspect brought out by the trial: the collusion between the investigating agency and the accused.
Interestingly, the chargesheet holds nobody senior responsible for these killings in custody. Subedar Surinderpal Singh and his men acted on their own because of their 'disturbed mental condition,' says the CBCID.
But certainly, these men got the full protection of their force, of the government and even the Indian Army in this ostensibly individual crime.