This is part III of a Vantage three-part series on the Hashimpura massacre and the continued delay of justice.
On 21 March 2015, Sanjay Jindal, Additional Sessions Judge in the Tees Hazari Court at Delhi said, as he delivered his verdict on the 1987 Hashimpura massacre case, “Since there is lack of direct evidence against the accused persons, the case in hand has virtually converted into a case of circumstantial evidence against the accused … despite there being several eyewitnesses. Most of the basic facts except the identity of the culprits have been duly established … but the evidence required to connect the accused persons with the crime is actually missing.”
It could be argued that Jindal had little choice but to acquit all the nineteen personnel of the Uttar Pradesh PAC (Provincial Armed Constabulary). He was bound by the Supreme Court’s ruling in Sharad Sarda, which laid down that convictions on the basis of circumstantial evidence could be deemed valid only when all human probabilities led to a single conclusion—that no one but the accused could be guilty. Those nineteen men—three of whom passed away before the verdict—who belonged to the 41st Battalion of Uttar Pradesh had been charged with killing forty-two Muslims in cold blood before throwing their corpses into the Hindon Canal and Upper Ganga Canal in Ghaziabad.
After twenty-eight years, the victims of the largest custodial killing in the history of independent India got nothing except the court’s lament that the prosecution had failed to produce even an iota of evidence that could have gotten them justice, even if it was excruciatingly delayed.
In a televised interview conducted by NewsClick, Vibhuti Narain Rai—who was serving as the Police Chief of Ghaziabad district at the time of the massacre—minced no words in accusing successive governments, the PAC, the police and prosecution of complicity. It is an accusation that has also been repeated on a post written by the former police officer on his website in August 2008.
But that wasn’t what the prosecution contended at the trial. In the charge sheet filed in 2006, the Uttar Pradesh government charged the nineteen policemen, led by Platoon Commander Surendra Pal Singh, of rounding up forty-two Muslim men from the Hashimpura mohalla, herding them into a truck registered as URU-1493, and then killing them in two incidents.
Meerut, the city in which Hashimpura is located was a veritable communal tinderbox at that time, and some miscreants were alleged to have ambushed a PAC company and looted two rifles. The charge sheet states that the arrests were made in the course of a massive search operation for illegal and stolen weapons that the government feared would be used to instigate more violence. Those forty-two happened to be part of the four hundred to six hundred men who were allegedly arrested by the PAC in the afternoon of 22 May 1987. The forces were also searching for the killers of a certain Prabhat Kumar Kaushik who was shot dead in Meerut the day before.
The prosecution witnesses claimed that they were told to keep their heads down by the nineteen policemen who accompanied them in the truck. Thereafter, the lights within the vehicle were turned off, and the vehicle, which was prominently marked as being owned and operated by the PAC, sped away into the darkness. Upon reaching the canal, the policemen alighted and surrounded the truck. Two men were asked to get down, and the moment they did, they were shot thrice, and died instantly. Petrified by this, the other men started screaming for help. This infuriated the policemen, who proceeded to fire a volley of shots indiscriminately inside the truck, killing five more.
After hurling the dead into the canal, the PAC men set off for the second round. They stopped at a spot on the banks of the Hindon, and asked all the remaining survivors to alight. The men complied, and were immediately greeted by another hail of bullets from the .303 rifles with bayonets that the cops were armed with. Presuming that all thirty-five were dead, Singh and his men hurled their bodies into the river, and left in haste.
Five lived to tell the tale. Among them was Babuddin, Prosecution Witness (PW) 11, whose testimony formed the bulk of the evidence against the accused. Their testimonies were bereft of any doubt or contradiction, and Jindal considered them fully reliable. However, in these accounts, they did not name or describe in detail any of their assailants. All they said was that their attackers were dressed in the PAC uniform and were carrying rifles with sangeens (bayonets).
Upon being rescued by Rai and his men, the five were taken to register First Investigation Reports (FIRS). During this time, Babuddin recounted that the men at the police station conferred among themselves, wrote something on sheets of paper, and made them put their fingerprints on the documents. There were blank sheets, too, on which their signatures were taken. The FIRs were registered against “unknown persons wearing khaki peeli uniforms.”
As the eyewitness testimonies—howsoever concrete and blemishless—were grossly insufficient to nail the case, the killings had to be connected to the accused, for which one would need to prove that those 19 men, using those specific rifles, had used that particular truck in their murderous endeavour. Furthermore, since the maximum punishment upon conviction would either be life imprisonment or capital punishment, nothing but proof beyond reasonable doubt could suffice.
True, as the Supreme Court had held in Shakila Abdul Gaffar Khancase in 2003, in cases of custodial violence and killings of this type: “The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable.” However, that still does not mean that a court can base a conviction on merely the testimonies in the absence of any physical evidence, or any material evidence that pass the test of legal credibility.
As Jindal noted with regret, the prosecution provided none. Page 184 of the judgement stated that randomly selected rifles were presented, and they weren’t even properly sealed. The five PWs had categorically mentioned indiscriminate firing, but the casings of the spent cartridges supplied by the police were rejected by ballistic experts because there was no way of scientifically proving that those bullets were fired from the weapons that had been presented as evidence.
As for the truck, a vehicle bearing the same registration number was presented, but it bore no bullet marks. This, despite the prosecution affirmatively citing its own witness’s claim that a volley of bullets were fired into the truck. As Rai, a veteran police officer, stated in the interview given to NewsClick, there was no way in which a platoon commander would have decided for himself the execution of such an audacious act without the tacit approval, if not outright permission, of superior officers.
Finally, when rounding up the accused, minimal common sense would dictate the production of duty registers, armoury registers and other documents that would at least indicate that those men could have been at the alleged spot on that day. Not a single scrap of paper to this effect was produced before the court. As the court rightly noted, at that time, there were about thirty companies and two platoons maintaining curfew in and around Meerut. This meant that cherry-picking men would prove to be both a futile and an ineffective exercise for the court.
The cavalier disregard for elementary rules of evidence and criminal procedure are not the only failings of the prosecution. There is sufficient evidence that clearly proves criminal conduct, an almost criminal conspiracy between the police forces and successive governments that have ruled Uttar Pradesh.
In July 1987, the People’s Union for Democratic Rights (PUDR) conducted its own fact-finding exercise into the Hashimpura incident, and the report was damning, as it indicted the UP govt and the police of resorting to all sorts of tactics to protect the accused PAC personnel before the court. A 2000 report in the journal Economic and Political Weekly (EPW) was even more scathing.
The PUDR’s fact-finding report claimed that they petitioned the Supreme Court in July 1987 to direct the government to disclose all the documentary and material evidence that would nail the real guilty, but to little avail. Worse, as the EPW report stated, there was a concerted effort to shield the perpetrators. Between January 1997 and April 2000, the court issued twenty-three summons for producing the accused; each one of them were resisted by the state police administration. It is of little surprise that the victims and civil rights organisations were left with no option but to knock on the doors of the apex court and file an appeal for the case to be transferred outside Uttar Pradesh. On 27 September 2002, the court agreed, but unfortunately, despite being made aware of the government’s culpability in stonewalling the case, did not pass any directions that could have mitigated the harm.
The appeal wasn’t of much help. As reported in 2000, the Uttar Pradesh government managed to delay the appointment of prosecutors for the case. When reprimanded by the court, prosecutors were appointed, but their quality of arguments and callousness invited withering criticism from the judge, NP Kaushik, who was hearing the case in 2006.
While the prosecution and police administration are to blame for the acquittal, it would be cruelly naïve to heap all the blame on them. The Hashimpura massacre was committed under the watch of the Congress government, and its successors, even till this date, have demonstrated a shocking reluctance to end the impunity. As the PUDR report found, the Uttar Pradesh government ordered its own administrative enquiry. Former CAG (Comptroller and Auditor General) Gian Prakash carried out his investigation and fixed responsibility in his February 1994 report. Yet all governments that have come to power in Uttar Pradesh since then have claimed legislative privilege to bar disclosure of that report, because “it would be injurious to communal amity and public interest.”
See part I, 'How the Hashimpura Massacre Verdict Is Linked to a Loss of Faith in Our Country's Institutions,' by Monobina Gupta, here, and part II, 'Survival and Loss in Hashimpura: a Photo Essay,' by Parthiv Shah, here.