How the State kills and buries the truth

If Sanjay Jindal, Addl Sessions Judge at Tees Hazari Courts and author of the Hashimpura verdict, had to invoke Section 165 of the Evidence Act, he would have been a much frustrated man. This provision empowers a judge to order the production of any evidence - materials, documents, witnesses, so that he can determine the truth. As was already known for too long, and as is being brought to the fore again, successive governments of Uttar Pradesh and their law enforcement agencies tried every trick in the book to subvert the trial, and boy, what a success they have achieved!

In his Order acquitting all the 19 PAC personnel charged with the unprovoked and deliberate killing of 42 Muslim men, Jindal is constrained to observe that the case is essentially all about circumstantial evidence, because, in 28 years, the prosecution hadn’t managed to produce any material evidence which could be deemed credible in the eyes of law. 

As per the prosecution story based eyewitness testimony, on that fateful day, around 18-20 PAC men herded 42 villagers of Hashimpura into a truck (conspicuously marked with the PAC emblem), took them to the banks of a canal and the Hindon river, and opened fire. The first two of the victims were shot dead point blank, and then the men in khaki unleashed a volley of fire from their .303 rifles. Dropping off the dead into the canal, they proceeded to another spot, where the survivors of the first assault were hauled out and fired at. The dead were thrown into the river. The five prosecution witnesses who survived, clearly enunciated in their statements that it was the PAC personnel, but since it was dark (around 8.30 PM) and they were too petrified, they had neither noted, nor remembered their attackers’ faces or names (from the breast-plates). Thirteen years passed, and on 20 May 1996, the UP government charged 19 men with murder and other offences. No documentary evidence - duty-registers, search party logbooks etc. were provided to substantiate the contention of these 19 being the culprits. As for the truck, VN Rai, who was the then SP of Ghaziabad, asserts that he saw it being washed after the incident, and anyway, it was never kept under seal for forensic examination. Same with the alleged rifles - they were reissued (as the prosecution admitted before the court on 26 July 2006) and hence, the empty casings recovered from the crime scenes couldn’t be connected with the guns from which they were fired. All these culminated (just as all the conspirators and stakeholders in an acquittal) because criminal law demands proof beyond reasonable doubt. 

In February 1994, the UP Police’s CID submitted a report indicting 66 PAC personnel for the massacre. It was a thorough report, and minutely noted all the documentary evidence on which it based its conclusions. Stung by the government’s obstinate and dishonest reluctance to make this report public, a writ petition (No. 1379 of 1995) was filed before the Lucknow Bench of the Allahabad High Court by some kin of the murder victims. While opposing the petition, the CID on 13 March 1997 admitted in its counter-affidavit that the men were indeed taken in that particular truck and shot dead. Paragraph 10 of the counter read: "it is submitted that the incident and human right violations are not denied.”

Even though charged, those 19 were literally mollycoddled by both the UP police and the PAC. They were never arrested and produced before the Court, although they continued serving in the PAC whose posting and home addresses were known even after issuance of bailable warrants six times between 31 January 1997 and 16 February 1998 and of non-bailable warrants 17 times between 20 April 1998 and 29 April 2000 by the Chief Judicial Magistrate(CJM), Ghaziabad. On 16 February 1999, the CJM had also ordered for proceedings to be taken against them for declaring them absconders and for confiscation of their properties. It was only in the last weeks of May and early weeks of June 2000, that they surrendered in batches. Initially, they were refused bail by the CJM, but on appeal, the District Judge released them, holding that there were no direct evidence against them, and since they were responsible policemen and members of the PAC, there was nothing to fear about them absconding. 

Echoes of Bhagalpur, 1989

Hashimpura compels us to go back to Bhagalpur’s Logain village. It was 1989 and there were communal riots raging across the district. It is an eerie coincidence - the Congress government’s decision to open the locks to the Babri Masjid was responsible for the violence in both Meerut and Bhagalpur. On 27 October, ASI (Assistant Sub-Inspector) Ram Chandra Singh, along with BDO (Block Development Officer) led a heavily armed mob which pounced upon the Muslims of the village with all ferocity. That attack, which lasted for nine hours, left 180 corpses in its wake. 

The Bihar government sided with its police and refused to disclose any document which would enable effective criminal prosecution of the culprits. Copies of complaints filed with the police were kept under wraps, so one has no way of knowing if FIRs were properly filed. The Bhagalpur Commission of Inquiry documented how FIRs were fudged, and details mangled. Of the officially reported 982 deaths, there were only 595 FIRs and only 354 out of them were about the killings. In cases regarding destruction of property and vandalism by Hindus, the FIRs were the most cryptic, designed to make them collapse in court.

In case of Hashimpura too, the main FIRs were against “unknown people in khaki peeli uniform.”

Would an appeal against the Hashimpura judgement be an exercise in futility, now that 28 years have passed, and all material evidence crucial to the case must have been destroyed, and that three of the 19 accused are no more alive? It most likely will, unless of course the courts compel disclosure of the CID report. It would also ensure that the real names are brought forth, because many a time and oft, lower-ranking policemen (the highest-ranking among the Hashimpura accused was a sub-inspector) are made scapegoats for the deviousness of their superior officers. Till date, all UP governments - Congress, BJP, SP and BSP- have resolutely claimed legislative privilege (and the specious plea of disturbance of communal harmony) to not disclose that damning report. An appeal to the appropriate high court, or if not, the Supreme Court, directed not against the 16 PAC men, but the state of UP, could well be the first step towards complete justice for Hashimpura.