07, Feb 2017

After a grueling exercise of over seven months, Survivors of the Gulberg carnage, both Rupabehn Modi and Sairabehn Sandhi, have filed an appeal against special court judge PB Desai’s June 2016 order convicting 24 accused and acquitting 36 others in Gujarat’s second worse massacre of 2002 and questioned the Judge’s discarding the charge of criminal conspiracy behind the attack. The Gujarat High Court admitted the appeal on Friday, February 3. The Survivors have been assisted by the legal rights group, Citizens for Justice and Peace, and their team of laywers. The SC-appointed SIT has not bothered to challenge the lower court order in appeal.

On June 17, 2016, the special court convicted 24 persons and acquitted 36 others for the killing of 69 persons, including former Congress party MP Ahsan Jafri. Eleven persons were awarded life imprisonment and 13 others received jail terms of up to 10 years for minor offences because they were not held guilty of murder. Controversially, the court had made some serious observations disregarding any conspiracy behind the attack and alleging instead that it was former parliamentarian Ahsan Jafri’s firing that led to the brutal mob violence.

Sixty-nine persons had been slaughtered in broad daylight in the massacre that lasted close to eight hours. Despite the police commissioner’s office at Shahi Baug being at a bare two kilometer distance no help had arrived for the members of the society under this brute mob attack. The survivor witnesses of the Gulbarg Society massacre ­ Rupa Mody and Saira Sandhi ­ have approached Gujarat high court and questioned the special SIT court’s verdict that brushed aside the theory of criminal conspiracy. Both survivors had lost sons in the communal violence at the colony in Chamanpura on February 28, 2002, one day after the Godhra carnage.

The survivor appellants are seeking the enhancement of punishment for the 13 of 24 persons, who were punished for minor offences as also the conviction of other accused who have been acquitted. The appeal has raised serious questions over the conclusions of the SIT court, which discarded the contention of prosecuting agency that the killings at Gulberg Society were a pre-planned conspiracy or a larger conspiracy . The court in its verdict said evidence with regard to conspiracy was “extremely flimsy and cannot be relied upon“. In discarding allegations of criminal conspiracy , the trial dubbed a witness’s statement as “uninspiring and downright ridiculous“, when he told the court that he had heard Hindus saying they intended to kill Muslims. The court also refused to accept the sting operation carried out by Tehelka, which showed the accused confessing the crime, as corroborative evidence.

In the appeal, the Survivors have submitted that the court did not properly appreciate evidence in their case and there is enough evidence to convict them. A bench of Justice S R Brahmbhatt and Justice A J Shastri admitted this appeal against acquittal on Friday and decided to hear it along with the appeals filed by the convicts challenging their conviction, said advocate M M Tirmizi. Significantly, though more than seven months have passed, the RK Raghavan-led Special Investigation Team (SIT) and the state government has not challenged the special court’s decision of acquitting the 36 persons, neither has it sought enhancement of punishment. SIT officials as well as the special prosecutor had told media persons on the day of verdict that the court’s decision would be challenged before the high court. The mainstream media that published the story of the appeal being filed have made no mention that the survivors are assisted by the CJP’s legal team.

Grounds in Appeal
The appeal points out in consistent detail that the special judge PB Desai’s finding that the attack began with stone pelting on both sides is erroneous. Worse the judge’s remarks that a 10-15,000 strong armed mob was ‘not big’ and had ‘not intended’ to enter the society has been questioned in the appeal. The Judge had upheld the claim of the defence accused that the firing by Ahsan Jafri had ‘provoked the mob’ into the attack. The Gulberg society had been under siege since virtually 9 a.m. with the mob attacking it from various sides, the road, roof tops and the side of the railway line. Dealing with this the Judge had wrongly concluded in holding that the mob had entered in the Gulberg Society from “different places” and therefore each section of the mob “had different intentions”.

Significantly, even before the special trial judge and again in appeal the Survivors assisted by CJP have argued that from 9 a.m. on February 28, the mob has started gathering in view of the ‘Bandh’ declared by the VHP and supported by the ruling BJP. At about 10 am, a cycle shop of one Ankur Cyclewala was attacked by the mob on the road side of the Gulberg Society. Between 10 am and 10:30 am, an auto rickshaw of one Gulam Master was also attacked on the road side of the Gulberg Society and at about 10:30 am the Ahmedabad Police Commissioner, PC Pande even came and met the (deceased) Ahshan Zafri (between 10:30 and 11:00) ‘assuring protection.’

Significantly, police witnesses namely Arvindsinh Shankasinh Vaghela, PW-7, Dhanesinh Becharsinh Kumpaat, PW-13, Natvarji Javanji Bhati, PW-269 have testified saying that, on that fateful day, on February 28 the Joint Police Commissioner, M.K. Tandon along with his striking force arrived outside the Society, met Investigating Officer namely Mr. P.I. Erda and instead of leaving behind this striking force that could have protected the residents under attack, inexplicably left with the striking force. Tandon did not return till late evening after the massacre had been completed.

From the morning, between 10:30 am and 11:00 am, persons in the mob were hurling abuse at Muslims and also provoking the rest in the mob to ‘cut and burn the residents’. This has emerged from the testimonies of witnesses including the police witness before the Court. A clear pattern of criminal conspiracy was laid before the court but rejected.

It was not just Gulberg society but the entire Meghaninagar area (i.e. Dr. Gandhini Chali, Hukumsingh Ni Chali, Navi Chali, Hasan Zivabhai Ni Chali, Uttambhai Ni Chali, Santoshbhai Ni Chali and Municipal Slum Quarters), the houses and shops of the Muslims were looted and burned.  From 11 am, a 10-15,000 strong mob had surrounded around the Gulberg Society and started pelting stones and there are police control room messages to this effect sent by the Meghaninagar-I to the Control Room. All this evidence has been ignored by the Judge.

From about 12:20 am onwards the mob was pelting stones, bottles as well as the burning rags and tyres at the society. No police help came. From 12:00 pm onwards the entire Gulberg Society was attacked by the mob and thereafter, only thereafter, only thereafter, in self defence had the residents of the Society started pelting stones. Between 12:00 and 2:00 pm despite the presence of the Police (as revealed in the official record) and despite being equipped with fire arms, the Police had not fired on the mob till 12:00 pm. Police evidence shows that about 14 and 16 rounds were fired between 12:00 and 2:00 pm. Records and phone calls records show that the accused. P.I. Meghaninagar, Police Station, KG Erda was in constant touch with the police control room.

Survivors in their appeal have also relied on details of the phone call records of senior police officials which are damning. On both February 27and 28, 2002, these phone calls records show that senior officers were in touch with each other and politicians. On February 28, from an analysis of incoming and outgoing calls of KG Erda and DCP PB Gondia, there are detailed communications seen to be taking place with Joint CP, M.K. Tandon and the police control room. From 11:30 am, (from the evidence in the phone calls details) M.K. Tandon is seen to be conversing with DCP PB Gondia who was at the distance of barely 1.5 kms from Gulberg Society. At 11:43 am, M.K. Tandon even spoke to Ahmedabad Police Commissioner, PC Pandey; M.K.Tandon received phone from the Police Commissioner, P.C. Pandey. With this flurry of coomunication –both PC and Jt CP had spoken to each other f six times—why was no police protection forthcoming for the society. This is the question that the appeal raises. From 12:54 pm onwards, the Police Commissioner imposed curfew but at a much belated stage.

Though the Police Control Room records show that, there was a mob of about five thousand people at about 12:35 pm. and from 12:38 pm. Only phase wise (partial ) curfew was imposed and thereafter 12:45 curfew was imposed in the entire Meghaninagar area. At about 1:30 pm the accused started pelting stones from the top of the house No.1 of the Gulberg Society. Between 2:00 and 2:30 pm the part of the mob broke the boundary wall of the back side of the Gulberg Society and entered into the Gulberg Society. Between 2:30 pm and 4:00 pm, the mob looted the house of the Gulberg Society and burnt vehicle as well as houses and killed the innocent people of the Society. After 4:00 pm the Police entered the Gulberg Society and between 5:00 and 6:30 pm when the victim survivors were shifted by the Police, the mob again attacked the survivors.

Despite all this crucial evidence, the Judge has materially erred in not considering the written arguments, the judgments cited as well as the evidences of the witnesses tendered by the prosecution as well as the victims and discarded serious evidence on charges of criminal conspiracy.

The appeal seeks a reversal of the verdict in its substantive content.

Related Articles:

Travesty of Justice: Gulberg Society Verdict
Gulberg Sentence: Survivors say Life over Death
Gulberg Massacre: Tortuous Journey to Justice
Gulberg Massacre Conspiracy: The Telltale Mobile Call Records of February 27/28, 2002
How Gujarat’s Top Cops Deserted Residents of Gulberg Society

Credit: Sabrangindia https://sabrangindia.in/article/persistent-their-struggle-justice-gulberg-massacre-survivors-challenge-sessions-verdict