The puzzle remains

The Gujarat High Court commutes the death sentence of 11 persons convicted in the Godhra train burning case to life imprisonment but upholds the conspiracy theory, ignoring valuable evidence.

Published : Oct 25, 2017 12:30 IST

February 27, 2002: A coach of Sabarmati Express on fire near Godhra.

February 27, 2002: A coach of Sabarmati Express on fire near Godhra.

MANY people have argued that the Godhra train burning incident in which 59 Hindu kar sevaks died was as brutal and violent as the communal riots it triggered in Gujrat. In fact, the number of arrests and the degree of punishment given to those convicted for setting fire to two coaches of Sabarmati Express at Godhra railway station on the morning of February 27, 2002, appears far more severe than those convicted for orchestrating the riots that killed more than 1,000 people.

In a significant judgment in the Godhra case, the Gujarat High Court, on October 9, commuted the death sentence of 11 people convicted for burning the coaches. The 11 convicts will now undergo rigorous life imprisonment. The court also upheld the life sentences of 20 other convicts and confirmed the acquittal of the remaining 63 accused. The court backed the theory that it was a planned attack. Additionally, it pulled up the State government for failing to maintain law and order during and after the incident.

The Godhra ruling puts the protracted legal battle back in focus and once again raises the question whether this is an equitable sentence compared with the verdict given in the riots case.

Commuting the death sentences is obviously a humane step, in line with the move towards reducing the number of instances where capital punishment is awarded, but is not completely fair, say lawyers and activists monitoring the Gujarat pogrom cases.

The Godhra case has seen several twists in its 15-year course. Was all the evidence submitted to and considered by the courts? Lawyers and activists in Gujarat do not believe so. There are some critical questions that to date have been either dismissed or not addressed.

Teesta Setalvad, a civil rights activist and secretary of the Citizens for Justice and Peace (CJP), an organisation that fights for justice for the victims of the Gujarat communal violence, said: “The good thing from the judgment is the commuting of death to life. Removing the death penalty is in keeping with the move to reduce [the number of death penalties]/abolish it. The other good point is the court’s observation on the State’s responsibility regarding law and order. Yet, what is hugely disappointing is that the court has upheld the conspiracy theory.” She added: “The main issue with this case is that it got stuck in a quagmire of political hyperbole.” It is unfortunate that several crucial areas were not examined by the court. For instance, Ashish Khetan, who had evidence and data on the case, was not called. Section 311 allows the court to examine evidence by a witness. A major point that has not been considered is that there is forensic evidence to prove the fire started before the chain was pulled. This matter was crucial for the verdict, she said.

On February 27, 2002, Sabarmati Express, carrying a large number of kar sevaks returning from Ayodhya, halted at the Godhra railway station at 7:30 a.m. According to reports, the kar sevaks had been harassing people at various stations along the route and at Godhra the harassment intensified when one person reportedly attempted to molest a young Muslim girl. The train managed to pull out of the station, but the chain was pulled and it stopped a kilometre from the platform near a place called Signal Falia. There are various reports on how and what happened subsequently, but two coaches caught fire as inflammable substances were thrown into the coaches. The coaches were packed beyond capacity. Government officials and a few politicians accompanied the bodies of the victims to Ahmedabad ostensibly for a post-mortem. However, when news began to spread that the coaches were burnt by local Muslims in Godhra, the mood in Ahmedabad turned aggressive. When the bodies were taken through the main roads towards Sola Hospital, violence against the Muslim community began to rage across the city. Communal violence spread to other parts of the State, and for three days Gujarat was under siege.

Along with the Godhra case, there are nine cases of severe rioting. In 2002, the Nanavati-Shah Commission began probing the riots. In 2008, it submitted an initial report, which supported the conspiracy theory. According to the report, Maulvi Husain Haji Ibrahim Umarji, a cleric in Godhra, collected along with his accomplices 140 litres of petrol before the train arrived and then allegedly instigated the kar sevaks, knowing well that it would lead to a sensitive situation that would bring Muslims out to attack the train. The committee made a final submission to the court only in 2014. Several lawyers and activists working on the cases criticised the committee by saying that it reinforced communal prejudices by ignoring valuable evidence and that it supported the conspiracy theory too quickly.

In February 2011, the trial court convicted 31 people and acquitted 63 others, saying there was a conspiracy behind the incident. Eleven persons were given the death penalty for planning the attack. This was the only riot case in which the convicts were awarded capital punishment.

Maulana Umarji, regarded as the “mastermind”, was among those acquitted. He passed away in 2013. “He died broken-hearted,” his family said. The maulana was a respected cleric, who repeatedly maintained that his community was not at fault.

Death as a punishment In none of the post-Godhra reprisal killing cases did lawyers seek death for the convicts. “It’s an acknowledgment to the community that in spite of the violence they saw they were convinced not to seek retributory justice,” said Teesta Setalvad.

The Gujarat High Court ruled that the burning of the coaches at Godhra was neither “terrorism” nor an “act of waging war” against the state. It stated that the Law Commission wanted the death penalty abolished for crimes not relating to acts of terrorism and war against the state. The court followed this diktat. “Death penalties eliminate a person to a point of no return. While considering the question of sentence to death, a duty is cast upon the court to deliberate on various facets of sentence and to immunise itself to avoid branding imposition of death sentence as ‘judge centric’ or ‘bloodthirsty’,” said the court.

Citizen’s Tribunal The Gujarat government has consistently maintained that it was a pre-planned attack by the local Muslim community, which used the unruly behaviour of the kar sevaks as a ruse to trigger a communal clash.

However, evidence collected by investigators and the Concerned Citizens Tribunal headed by eminent Justices V.R. Krishna Iyer, P.B. Sawant and Hosbet Suresh, along with a panel of respected jurists, lawyers and human rights activists, allude to the theory that the train burning was part of a larger, darker conspiracy and was neither an impulsive attack nor a pre-planned one by the Ghanchi Muslims who reside at Signal Falia. Their report was ignored by the courts, but those who follow the case say the tribunal’s findings were explosive and their accuracy should not be discounted.

This case was all about forensics. A police officer involved in the investigation said the courts should have based their verdict on forensic data.

“The Gujarat Forensic Science Laboratory [FSL] Report, for instance, clearly states that 60 litres of inflammable liquid was poured into the mouth of the two coaches, which is why only those [two coaches] caught fire and the fire did not spread,” he said. “They imply that the incident was not an accident nor an act of impulse.”

The court ruling has brought the issue back into focus and it would perhaps be appropriate to revisit the tribunal’s report. Given that its findings emerged from investigations conducted by knowledgeable and experienced professionals, it is unfortunate that it was never considered by the courts.

Forensics on the actual burning point to a much more sinister plot, the official said.

Frontline has access to the report and here are some of the key findings on the trigger and the torching of the train.

On the actual burning • As the train travelled back from Ayodhya on its return journey to Ahmedabad, kar sevak girls and boys armed with trishuls and lathis were getting down at every station and shouting slogans like, “Mandir Vahin Banayenge!” “Jai Shriram!”, “Muslim Bharat chodo, Pakistan jao” (Muslims, Quit India! Go to Pakistan), “Dudh mango tho kheer denge, Kashmir mango tho cheer denge” (Ask for milk and we’ll give you kheer (pudding), But ask for Kashmir and we’ll cut you up). Many passengers felt harassed by this behaviour but were constrained to remain silent because the kar sevaks had captured all the reserved seats and the train was packed.

• The train reached Godhra station at 7:30 a.m. (three hours late), on February 27, 2002. There were certain incidents on the platform. There were some reports to the effect that a Muslim girl was molested by the kar sevaks who attempted to pull her into the train.

• As the train left the platform, at 7:48 a.m., it was immediately stopped by someone pulling the chain. The obvious reason for this was to enable some of the kar sevaks who were still on the platform to board the train. The train proceeded for about a kilometre. At Signal Falia the train stopped. Whether this was on account of someone pulling the chain or otherwise is not clear. The engine driver, at that point of time, had only seen someone from outside pelting stones at the train though not at coach S-6. Soon thereafter, coach S-6 was on fire. The question is, how did the fire occur?

• The version of the government appears to be that the Ghanchi Muslims residing near the railway station, who had gathered in large numbers, threw fireballs into the train and that resulted in the fire. The government version also has it that the Ghanchi Muslims wanted to attack the kar sevaks, and that there were about 2,000 Muslims who were bent on attacking the train.

• It may be stated at this stage that the full capacity of the train is 1,100. But, in fact, the train at that time had about 2,000 passengers, of which about 1,700 were kar sevaks. Only one coach was burned and even in that coach one is not sure how many passengers were kar sevaks. The train had 11 coaches with vestibule connection and kar sevaks were spread all over the train.

• So why did anyone target coach S-6? If 2,000 Muslims had gathered there, could they not have attacked the other coaches? Again, did anyone try to come out from the other coaches? If it is reasonably presumed that some of the passengers, including kar sevaks, rushed out, did anyone attack them? On all these questions there is no satisfactory answer. Why were all those dead called kar sevaks? Not everyone on the train was a sevak.

• A very significant fact is that coach S-6 was the only one that got burnt. The fire did not even spread to the other coaches. It is also not clear whether the train was stopped because of the fire in the coach or the coach was set on fire after the train stopped. If it was the latter, why was the train stopped at all? It is reasonable to presume that because of the fire in the coach, someone must have pulled the chain and the train was stopped by the engine driver.

• If kar sevaks were the target, they were overwhelmingly present in the entire train and the whole train could have been set on fire. The fact that the fire did not even spread to the remaining coaches is a clear indication that the fire originated in that compartment itself. That also explains why only persons in that coach died.

• On 7-5-2002, we inspected the coach and the site where it was burnt. The site where the train stopped is an elevated bund. From the ground level, the height of the bund could be about 12-15 feet and it is a slope. At the top, there is hardly enough space for 2,000 persons to assemble on either side of the track. Assuming that so many had gathered at that spot, the crowd would be spread over a much larger area than the stretch of coach S-6. This is only to indicate that if the government version is true, the other coaches would have been as easy a target as coach S-6.

• Our own observations were subsequently confirmed by the reports of the Forensic Science Laboratory [FSL]. Among its other findings, the relevant section of the Forensic Science Laboratory (State of Gujarat, New Mental Corner, Ahmedabad–16, Spot Investigation Report No.2 regarding CR No. 9/2002, Godhra Railway Police Station) filed by Dr M.S. Dahiya, Assistant Director, states:

“It was found that the height of the window of the coach was around 7 feet from the ground at the place. Under this circumstance, it was not possible to throw any inflammable fluid inside from outside the coach from any bucket or carboy, because by doing this, most of the fluid was getting thrown outside.” The FSL had used water to recreate the throwing of inflammable liquid into the train.

“On the basis of the above experimental demonstration, such a conclusion can be drawn that 60 litres of inflammable liquid was poured towards the western side by using a wide mouthed container by standing on the passage between the northern side door of the eastern side of the S-6 coach and the compartment of seat No. 72 and coach was set on fire immediately thereafter.

• By observing the condition of the frames of the windows of the coach, it appears that all the windows of the coach were closed during the time of the fire.

Thus, it is clear that the fire came from inside. We have seen the inner side of the coach. The intensity of the fire was such that even the iron rods, the seats, the fans were all burnt to such an extent that we found them twisted and molten out of shape. We also found rice and wheat partly burnt and scattered all across the floor of compartment S-6. Some of the witnesses had stated that kar sevaks had stoves in the train, but we did not find them in the coach.

The FSL report shows that for fire of such an intensity, 60 litres of inflammable liquid had to be poured into the coach, “by using a wide mouthed container”. The question is, where is this container? There is no evidence of anyone carrying 60 litres of inflammable liquid. At what point of time was this taken inside the coach or into the passage? Who was travelling in the train? If such a large number of kar sevaks, armed with trishuls and in such an aggressive mood, were inside the train, how could Ghanchi Muslims enter the train? And how could they have carried so much petrol openly, or even clandestinely, for that would have been found out in no time. So the mystery of the fire remains, the only thing certain being the fact that it came from within.

The tribunal also explores questions such as whether the Godhra incident was pre-planned and why it was “allowed” to happen, and also the subsequent instigation of communal hatred that led to the brutal violence. The courts ignored the report.

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