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Godhra: The Verdict Analysed Nitya Ramakrishnan

A judgment has branded the Muslims of Godhra “Hindu killers” by tradition. The 27 February 2002 train fire, it declares, was a conspiracy to kill karsevaks. Ignoring the plain record that the source of the fire was inside the train even before it suddenly stopped after leaving Godhra station, the judgment holds that the train was stalled by Muslims to break into a coach brimming with belligerent karsevaks, pour petrol, and start a fire, and to do so all unnoticed. The half-truths of forensics and the machinations of the police have succeeded in the trial, and 31 men, unfairly made to bear the burden of proof and denied vital witnesses, have been sentenced either to death or life imprisonment.

Nitya Ramakrishnan (nityarkrishnan@gmail. com) is a Delhi-based lawyer. Economic & Political Weekly

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n 2002, 9166 Up, the Sabarmati Express, ran from Muzaffarpur to Ahmedabad, passing through Uttar Pradesh and Madhya Pradesh and entering Gujarat at Dahod. After Dahod and before Vadodara, it had a scheduled five minute halt at a sleepy little town called Godhra. On the morning of 27 February 2002, the Sabarmati Express pulled into Platform 1 of the Godhra railway station at 7.43 am, five hours after its scheduled time of arrival. On the train were karsevaks returning from Ayodhya. During the train’s halt at Godhra that day, tempers ran high on the platform. Karsevaks descended from the train shouting religious slogans. Some of them went about the platform forbidding custom to Muslim tea vendors and forcibly preventing payment for what had been sold. For no reason at all, they beat up hawkers. Other karsevaks molested Muslim women. A Muslim girl, Sofiya, was waiting for a local train with her mother and sister. Covering her mouth and pinning down her arms, the karsevaks pulled Sofiya towards the train which was soon to leave. Her mother shouted for help. As Sofiya freed herself and ran into the booking clerk’s office she saw the karsevaks set upon another burkha-clad lady. Panic and outrage had, by then, gripped the platform. Stones were aimed at the karsevaks who got into the train and threw objects back as well at those outside. The train, starting for Vadodara at 7.48 am, stopped, moved and stopped again some 800 metres from the platform. An irate crowd collected on the platform side of the train. Suddenly, in the midst of all this, coach S-6 went up in flames. Fifty-nine passengers died in the fire. All this forms part of the official record of the incident. The incident bore the stamp of a spontaneous riot. But nine years on, a court has declared it the outcome of a Muslim conspiracy planned in advance to kill the

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karsevaks, with the added comment that Godhra had a history of killing Hindus. Inside the walls of Ahmedabad’s Sabarmati Jail where he tried 94 men for the burning of the Sabarmati Express, P R Patel sessions judge, Panchmahals, delivered judgment on 22 February 2011. He convicted 31 men of conspiracy, murder and allied offences. On 1 March 2011 he sentenced 11 of them to death and 20 to imprisonment for life. Fifty-six were acquitted upon the finding that their presence at the spot was not established and seven were given the benefit of the doubt as the court found the evidence to link them with the conspiracy thin. Among those given the benefit of the doubt was Maulvi Umarji. The only material on Umarji was a remark in the confession of another suspect Jabir Binyamin Behra – that Jabir had heard from someone else – of Umarji’s instruction to set coach S-6 ablaze. Jabir later retracted the statement. Hearsay in the retracted confession of another suspect is the material on which the ailing Umarji remained in prison for nine years. Had they only chosen to be informed of the facts, sections of the media that called Umarji “the ‘chief conspirator’ gone scot-free” may have thought the better of it.

The Judgment and Its Rationale The upshot of the judgment is that there was planning and preparation by some to set the train on fire. But every Muslim present at the spot hurling stones or other things has been pronounced equally culpable. Men whose physical presence in the riotous assembly seemed doubtful to the court were all acquitted. The court disbelieved the prosecution story of spot arrests and held that the arrests had occurred during subsequent combing operations.1 The court also acquitted all those implicated principally by a witness belonging to the Vishwa Hindu Parishad (VHP). Molestation of Sofiya and attacks on hawkers are viewed by the judge as events that fortuitously aided the conspirators’ design. He does not disbelieve Sofiya, nor could he as her testimony went unchallenged.2 But he misses the absurdity of the conspiracy theory in the face of her

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story, primarily the point that outrage over her molestation was sufficient to explain the rioting that erupted in its wake.

Outline of ‘Conspiracy’ The judgment concludes that the conspiracy was executed in the following manner: A group of Muslims forced some vendors on the platform to alter the coupling between the coaches and halt the train near Railway Cabin A. Hundred and forty litres of petrol had been bought and stored the previous night in a guest house3 close by. Seven men loaded a rickshaw with seven 20 litre jerrycans4 of petrol and came to Cabin A. The train had by then been stopped there as per plan. They went first to coach S-2 to set it on fire but the passengers extinguished the burning rag that was thrown in. They next ran to S-6. Three of them got into the vestibule between S-7 and S-6 after cutting the canvas screen. One of them named Jabir kicked the bolted metal door between the two compartments and broke it open, to move into the crowded passage of S-6. He opened the

coach door to let in three others. Six of them stood in the coach passage and poured jugfuls of petrol on the floor. The miscreants got off the train, even as an accomplice threw a burning rag on the floor of the coach passage to light the petrol. In coming to its conclusion that this was how the train was set on fire, the judgment relies chiefly on three factors. • The first factor consists of forensic reports which refer to petroleum hydrocarbon residue in a set of samples taken from the yard around the train and in burnt matter scooped out from coach S-6.5 Another forensic report describes the sliding door between S-6 and S-7 as open but jammed into the toilet wall. A long scratch sighted on the door is visually matched with its bent stopper, to infer force from the S-7 side. A damaged door in a coach ravaged by fire is hardly a wonder. But the scalded portions around S-7 are seen as indubitable proof of an open door to allow the heat and flames to pass. Sounds of knocking on that door heard by passengers standing in the passage of S-6 near the vestibule are

taken as confirmation that the door was broken open by the “assailants” – although not one passenger speaks of either an assailant or of the door breaking. • The second factor rests on the statements of two employees of a local petrol pump that 140 litres of petrol were sold on the eve of the fire to some of the accused men. They had said nothing of the kind when questioned about a month after the fire. One year later, they came up with this story of which there was no record shown. • The third factor is the confession of Jabir plus the evidence of two witnesses who appeared many months after the incident to claim that they had witnessed the entire operation. Other things being equal, direct witnesses to the criminal act and its preparation would make out a plausible, even reasonable case. But here, other things are far from being equal. Then, the judge has brought to bear upon the issue a logic entirely private, unaffected by law or record.

Recruitment of an Economist as Research Fellow / Visiting Research Fellow The Institute of South Asian Studies (ISAS), an autonomous research institute within the National University of Singapore (NUS), is seeking to recruit a research fellow in economics. ISAS welcomes applications from researchers with specialisation(s) in climate change, education, health, infrastructure, poverty and other areas of economic development. Applicants must have a major focus of research experience and interest in the economic development and policy issues of South Asia, and should have a PhD with at least 3 years of relevant experience. Applicants with publications in peer-reviewed journals will be preferred. Remuneration will be internationally competitive and commensurate with qualifications and experience. Vacation leave and medical benefits will be provided. Other benefits may include housing and settling-in allowances. Your application package should consist of a covering letter, clearly stating how you fulfil the requirements of the position; a detailed curriculum vitae; and copies of your certificates and transcripts. Please send your application to: The Acting Head of Administration Institute of South Asian Studies 469A Bukit Timah Road #07-01, Tower Block Singapore 259770 Email: isasrecruit@nus.edu.sg Application closes on 30 April 2011. We regret that only shortlisted candidates will be notified. 40

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The Site and Railway Record Godhra Railway Station is a junction. Its platform no 1 is 160 metres long. Cabin B is on the Dahod side and Cabin A on the Vadodara side. At the end of the platform towards Cabin A is the parcel office. From the parcel office to Cabin A is 690 metres. Cabin A overlooks the railway track, barely 8 metres away. Nine metres behind Cabin A is a nallah 270 metres long, 14 metres wide and 3-4 metres deep (with water up to 1 metre).6 On that fateful trip, the Sabarmati Express was overcrowded. Nearly 2,000 karsevaks were travelling on it. Karsevaks displaced passengers with reservations. They would not even let the train ticket examiner (TTE) enter the coaches. Other than the engine and the “dead power”7 the train had 18 coaches. Ten including S-6 were reserved coaches. S-6 was the ninth coach from the engine in front and the 11th from the guard’s coach in the rear. Between S-7 on the guard’s side and S-5 on the engine side, was S-6. The scheduled time of arrival of the Sabarmati Express was 2.55 am but that day it came at 7.43 am. It started pulling out at 7.48 am, but not before the karsevaks created mayhem on the platform. The train set off towards Vadodara. Stones were pelted as the panic cry spread of the abduction of a Muslim girl. The engine and the three coaches after it had just moved out of the platform, when the train again stopped. This stoppage was found to be on account of the “alarm” chains pulled in four coaches to allow passengers who got left behind to board the train again. The guard and the assistant driver set it right. They noticed nothing untoward as they walked the length of the train to do that. The stone pelting does not appear to have impeded them.8 The correction happened between 7.48 and 7.55 am.9 At 7.55 am the train moved and then stopped for the second time. The distance covered between the first stoppage and the second was 790-800 metres at a speed of 10-12 km per hour.10 The train must have moved for at least four or five minutes.11 Meanwhile, the fire had already been noticed. As many as three distinct official records note the time at which the fire was reported as 7.55 am.12 These records Economic & Political Weekly

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also mention the train as having stopped near Cabin A. The fire had been noticed sometime between the train’s start and the second stoppage, in the course of the time taken to traverse the 790-800 metres. In other words, the fire did not take place after the second stoppage but before or simultaneously with it. It had already been reported by the time it stopped for the second time. The cause of the fire was inside the train, before the second stop. A slew of contemporaneous records should suffice to dispel any theory of the fire starting after the second stop. But one need not rely on record alone. As soon as the train stopped again, the TTE, Sajjan Singh Raniwal, stepped down to see what had happened. As he walked he noticed fire and smoke in the train. Even allowing for some inaccuracy in the time noted in the records, it is obvious that the second stoppage and the fire were near-simultaneous. The fire was seen within 15 minutes of the train’s entry into Godhra. Either way it does not yield the time needed for Jabir’s operation as described.13 Anyway the categorical case made is that Jabir entered the train some time after the second stop. Besides, the vestibule’s canvas cannot be cut in a moving train however slow. None of this has been noticed by the judge. He holds that the “train stopped because of dropping of vacuum, as someone turned outside Vacuum Disk or cut the Hose-Pipe”. Two men14 who were supposed to have altered the vacuum pipes at the instance of the conspirators were examined in court. Neither mentioned having done any such thing and both were declared hostile. There is no technical investigation into the cause of the second stoppage. The guard’s book has an illegible entry about “vacuum pipes” but with no mention of the relevant coach. The station master’s record suggests that one of the coaches with a vacuum disturbance was not rectified.15 That could explain the second stop.

The Changing Charge Sheets Until it was driven to fundamentally alter its first theory (in its first charge sheet of May 2002) that the coach was set ablaze by the mob standing outside, the investigative agency did not have the

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faintest indication of what may be called the “Jabir script”. In March and April 2002 the police recorded statements of 41 passengers of S-616 including 20-odd karsevaks. Their sense of how the fire began was blurred and their accounts varied. Some karsevaks mentioned petrol thrown from outside without specifying where it fell. Passengers are uniformly silent about the “Jabir script”. This is also true for their testimonies in court. That day, there were as many as 10 Government Railway Police (GRP) men at the station, two of whom were on patrol duty around Cabin A. Two railwaymen were on the second floor of Cabin A, with a ringside view of the burning train. No one describes anything remotely close to the dramatic entry of Jabir into the train with buckets of petrol. The first information report17 and all investigations until May 2002 were premised on the theory that the train was burnt from outside. So also the charge sheet filed on 22 May 2002.18 Oddly, the charge sheet contained a report of the Forensic Science Laboratory (FSL) dated 17 May 2002 giving the lie to the case in the charge sheet of an incendiary mob outside the train. As it was received only five days before filing the charge sheet, its import was perhaps missed. The report dealt a blow to the very basis in the charge sheet for projecting the riot as deliberate and communal murder. This should have led to an honest reassessment of the case and also the conclusion. Instead, the police cast about for new facts to fit the same conclusion On 3 May 2002, the FSL had conducted an experiment by throwing liquid from the ground near the Cabin A on to the coach and found that hardly any liquid got into the train and recorded the finding in its report dated 17 May 200219 that fire could not have been started from outside. The same report noted a scorched patch on the floor passage towards the vestibule that linked S-7 and S-6. The FSL inferred that an accelerant was poured on that spot to start the fire. The report also hazarded a view that 60 litres of fuel would be needed to cause the kind of fire that burnt the coach. To sustain the story of a deliberate fire, it now became necessary to introduce the

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arsonist into the train. It was a matter of record that the passengers had bolted all the doors because of the stone pelting. The only way for the arsonist to enter was through the vestibule. Like manna from heaven for the prosecutors, forensic evidence and eyewitnesses materialised to perfectly fit the FSL conjecture. On 2 July 2002, an eye witness turned up, who claimed to have seen the operations of Jabir and his accomplices.20 On 11 July 2002 the FSL discovered the open sliding metal door between S-6 and S-7 (so welded by the heat into the groove that it could not be removed was the oral description given in court by the FSL officer). The FSL visually noted a long scratch on it which seemed to correspond with the stopper at an angle, suggesting that it had been forced from the S-7 side. The coach had been examined many times earlier, but this condition of the metal door seems to have eluded observation until July. With this new evidence a “Supplementary” charge sheet was filed on 20 September 2002. In January 2003, Jabir Binyamin Behera was arrested. Jabir promptly confessed21 to burning the train as part of a conspiracy hatched the previous night and mentioned that he was told of Maulvi Umarji wanting to burn S-6. Jabir’s confession gave a “terrorist” colour to the case, for it revealed a Muslim conspiracy to kill karsevaks. Charges under the terror law, POTA were added to the case. In May 2005, a statutory Review Committee recommended dropping the POTA charges.22 The trial reverted to normal criminal procedure. The use of statements to the police was now forbidden. The judge has incorrectly observed that he was entitled to some use of confessions to the police under the POTA procedure even after removal of POTA from the case. Mercifully, he does not seem to have used them, beyond mentioning their existence.23 Umarji was arrested in March 2003. In time, 94 persons were put on trial.24 One year after saying nothing special, petrol vendors remembered having sold 140 litres of petrol to Jabir and his friends on 26 February 2oo225 – without any record whatsoever of the sale. The same vendors later told a correspondent of Tehelka

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magazine on camera that they were forced by the police to implicate Jabir and his friends.26 The law permits proof of former statements inconsistent with the evidence in court to impeach the credit of a witness.27 The judge, however, refused to summon the Tehelka correspondent either as a court witness or as a defence witness to enable the defence to confront these petrol vendors who testified against the accused. Denial of such an opportunity to those facing a capital trial is rare and hard to understand. All those implicated by these vendors have been sentenced to death.

Appreciation of Evidence by the Court The judge uses Jabir’s confession28 as proof of the conspiracy. Other than Jabir’s confession there is no material to show that there was a prior plan. A confession is not evidence against anyone other than its maker. It may be used against others in the same trial, but only to confirm independent evidence which, if believed, could convict them.29 Anything said or done by one conspirator may be used against all the others as proof that there was a conspiracy and that they were all parties to it. But use of apost-arrest confession to prove conspiracy is forbidden.30

The judge also uses the crowd for corroborating the conspiracy. There is not much doubt that an irate crowd was pelting the train with stones. Some were armed with sticks and knives. Glass and burning rags were also thrown into the train and menacing slogans were raised. Some attacked the firemen and harassed the passengers. But all those who escaped the fire did so unhindered by the crowd. The offside of the train was left free.31 This conduct32 is an exonerating factor as it suggests that their intent was not murderous, but the judge does not factor this in. Common object, common intention and conspiracy33 are allied but distinct concepts of shared liability in criminal law. Before concluding from the mere presence in a riotous assembly any complicity in murder, proof rather than suspicion is needed. Especially so, as the judge concludes that the mob gathered because of the “rumour” that a Muslim girl was being abducted by the karsevaks in the train. This was not entirely a rumour as we have seen. In any case, a crowd gathering to save the girl can hardly be credited with murderous intent. A nuanced assessment of individual roles was in order but is missing from the judgment. In concluding the common object to be the killing of karsevaks, the judge is

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influenced by the extraneous. “Godhra is known for its past history of communal riots”. He says, “For Godhra, this is not the first incident of burning alive innocent persons belonged (sic) to Hindu community”. (Points 47 and 48, “Summary of Material Matrix and Conclusions”, Godhra judgment.) Even the bad personal antecedents of an accused cannot be brought up in a criminal trial.34 Here the communal history of the whole town is invoked as a principle of culpability in a capital case! The judge has accepted the evidence of two supposed eye witnesses,35 to the burning operation instead of testing them against the countervailing facts. Using polygraphs against five men, he has sentenced two of them to death. Polygraphs, incidentally, have been struck down as amounting to compelled self incrimination by the Supreme Court.36,37 An “assailant” who forced the vestibule door is a conjecture from the visual impression of a scratch mark on it. The inference is also based on the inability of the defence to prove that the door was opened by some passenger. This is irrational and contravenes the most basic rule about the burden of proof. The judge examined the train but did not place on record his observations.38 Nothing may be taken as proven by default, particularly in a capital trial. By unquestioning acceptance of the forensic reports, the judge has done just that.

Appreciation of Forensic Evidence On 27 and 28 February 2002, samples were collected from around and inside the train. No 20 litre jerrycan was found! The objects found outside were wrapped in paper parcels. Burnt residues taken from inside the coach were kept in plastic bags. The FSL report of 20 March 2002, records “petrol hydrocarbon residue” in some of the burnt clothes and metal objects found in the yard and in all the burnt residues collected from inside S-6. Evidence of science calls for justification.39 The report of the Chemical Examiner must show the tests or experiments performed by him, the factual data revealed by such tests or experiments and the reasons leading to the formation of the opinion from such factual data. Otherwise the report would have no value as a piece of evidence. 40 Economic & Political Weekly

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As per the Daubert Principles41 the trial judge must assess whether the reasoning or methodology is scientifically valid and whether it can be properly applied to the facts in issue. Fire debris analysis has some basic rules. Three will suffice for now. (i) Samples should be collected in inert impermeable containers. Fire debris samples should be stored in a well-sealed specialty polymer bag. (ii) Samples should be compared with uncontaminated substrates. Petroleum derived liquids are used in the manufacture of building structures.42 Volatile petroleum products are found even when the substrates are several years old. Analysis of comparison samples should first determine if the detectable volatiles may be from the substrate itself rather than from the presence of an accelerant.43 Gas chromatography patterns and ratios must be quantified to see which hydrocarbon product is indicated and whether the same is an accelerant like petrol or a polymer or other substrate.44 Even fire retardants may confuse the results and incorrectly packed samples may absorb (adsorb) hydrocarbons from the transportation vehicle’s emissions. (iii) Eliminating the pyrolysis effect: The natural release of pyrolysis products from burning substrates can produce a background of volatile components that can significantly complicate the detection and identification of ignitable liquid residues in fire debris samples. GC/MS analysis along with the use of extracted ion profiling is necessary to distinguish an ignitable liquid from interference due to pyrolysis products or other contaminants.45 The FSL report is silent about the method, readings and comparisons. No worksheets or spectrographs were produced. This was Talati’s46 first case of this magnitude. He admitted that no quantitative analysis or pyrolysis test was done. There was no comparison with uncontaminated substrates either. He was not even sure about whether some traces were burnt or unburnt hydrocarbons. The FSL report is as unreliable as it is insignificant. The judge surmises that many materials of the coach are “fire retardant” and so the coach could only burn down if someone deliberately used an accelerant. Certainly,

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something must initiate the fire, but it need not be deliberate.47 Given enough time any unnoticed smouldering object may cause. In its correspondence with the investigating officers, the FSL reasons that a cigarette, bidi or rag would not be the cause as it would have been noticed and snuffed out.48 Is it then possible that six men with jerry cans of 140 litres of petrol would pass unchecked and unnoticed? Of the two, a smouldering cigarette or other tiny spark is more likely to remain unnoticed. The rexine of the seats, the foam underneath, the paint and adhesive material and the vinyl flooring are all petroleum-based products. The foam and plywood base of the seats are also highly inflammable. These are omitted from the list of coach materials noted in the judgment. The burnt patch on the floor could be caused by pyrolysis as well.49 The defence request to summon a team of scientists was declined.50 The reluctance to face facts is truly puzzling.51 Without clarity on the material cause of the fire, there can be none on its efficient cause.

Postscript A fact is proved not merely by a witness speaking of it, but only when the court believes that it is so probable that no prudent man should disbelieve its existence.52 Should a prudent man believe that a 100-strong coach of karsevaks and others spilling over the passage will remain politely passive as six men pour 140 litres on to the floor and set it alight? Could Jabir’s operation take anything less than 15 minutes? Was that operation probable in view of the fire noticed at 7.55? To the judge his every premise is “undisputed” and his every conclusion “crystal clear”.53 Two commissions54 and one trial later, to the rest of us the truth about Godhra is as clear as mud but the explanations hardly cover the ground. Notes 1 On 27 and 28 February 28 people were arrested and statements of VHP activists and policemen were recorded, showing an improbably symmetrical pattern of one witness identifying four “assailants”. A mass recovery of common weapons like sticks and knives is shown from an open field four days later. All these 28 have been acquitted. 2 Sofiya and her mother Jethunbi were prosecution witnesses (PWs) 183 and 184 at the trial.

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INSIGHT 3 The owner of this Aman Guest House, Razak Kurkur has been sentenced to death. 4 Not one jerry can of 20 litres was recovered from inside or outside the train. 5 The scientifically unreliable nature of this is dealt with in the section on Forensic Evidence. 6 “Survey Report: Godhra Railway Station”, Report of the Survey of India, No T-86/39-Air(Misc) dated 9 January 2005. 7 A kind of dummy engine that follows immediately behind the engine. 8 The engine driver walked on the yard side where there was no stone pelting. All four of the carriages in which the chain pulling happened were close to the guard’s end and so the guard, who walked on the platform was not affected by the stone pelting from near the parcel office on the other end. 9 In the Railways, a record is always kept of every chain pulling. The guard’s book shows the rectification and restarting as 8 am and the driver’s log shows this time as 7.55 am. The four coaches rectified were 5343,83101,91263,88238. 10 The length of each coach is approximately 20 metres (63 feet) as per the FSL report of 17 May 2002. At the final stoppage S-7 was opposite Cabin A and the engine is 10 coaches ahead so, roughly 200 metres ahead of A Cabin. At the time of the first stoppage, the engine dead engine and three coaches were ahead of the platform, so roughly 100 metres ahead of the edge of the platform. Between the Parcel Office at the platform edge and Cabin A is 690 metres as per the Survey of India. The speed given is based on the guard’s testimony 11 The guard’s book notes that the train started after the first chain pulling at 8 am and again stopped at 8.05 am. 12 GRP Wardhibook Entry No 34, (ii) RPF Special Occurrence Report (recording a simultaneous complaint of the stoppage of the train and the notice of fire), (iii) RPF Roznamcha showing the issuance of some instruction regarding Sabarmati Express at 7.58 back to the GRP. The inspector of GRP was informed at his residence of the fire by 8 am. Also Vadodara Division was informed of the fire by 8.05 am. The fire brigade was informed at 8.20 am and they reached at 8.35 am. Relief operations and police firing to disperse the mob followed. 13 As per an experiment done by the police, it took four minutes just to load the rickshaw at the guest house and reach the wall behind the station. Logically, an equal time should be allowed for reaching the guest house and for unloading the rickshaw. Strangely the police did not time a mock operation of the steps taken before the fire itself. As per the eyewitness Ajay Baria, the group of seven left the platform for the guest house to fetch the petrol at the time when the train left the station first, around 7.48 am. So at least 8 minutes to go and fetch the petrol and unload it. To rush to S-2, from the wall, douse a rag and throw it in. Then to move on to S-6, and break the vestibule door to pour petrol is an operation that would by itself require at least another 8-10 minutes. Sixteen-eighteen minutes is the superhuman minimum for the whole operation from the time the train left the platform. But the fire had been sighted within 15 minutes of the train entering Godhra and within less than 10 minutes of it leaving the platform. 14 Anwar Kalandar and Illyas Mullah Ghanchi, tea vendors. 15 Charge Book of Harimohan Phoolsingh Meena, assistant station master, Godhra. Entry dated 27/2/02 notes coach no 90238 as requiring correction but no record shows that the correction was done. 16 The reserved coach’s seating limit was 72. Fifty nine passengers died and the statements of 41 were recorded which itself totals 100. There were, in all probability, more. 17 C R No 9/02 Godhra Railway Police Station. The complainant was R R Yadav, engine driver. 18 In the Court of the Judicial Magistrate First Class, Godhra alleging offences of murder, hurt and conspiracy against 54 persons.

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19 This is the only report of Gujarat FSL in this case that mentions the methodology of the experiment and its quantified conclusions. 20 Ajay Kanubai Baria. In fact he claimed to have been forced to accompany them to fetch the petrol to the station. 21 A retracted confession, though not ruled out, has less authenticity, depending on how soon the retraction was made. In the present case, Jabir’s confession would be of little use against anyone else on the plain law of evidence regardless of its retraction. Against himself it is substantive evidence but is rendered completely unreliable because it relates an operation that is completely improbabalised by objective circumstances. 22 The vires of the law setting up the review committee was first challenged by some purporting to be relatives of those who died in the fire. The Supreme Court upheld the vires and held the review committee recommendation binding on the trial Court which would then have to drop the POTA charges. The said victims then challenged the review committee’s report dated 16 May 2005 in this case, in a writ petition before the Gujarat High Court, which dismissed the challenge. The Supreme Court declined to stay that order, so, in 2009 the Godhra trial started under the normal criminal procedure, but inside the Sabarmati Jail. 23 There are six POTA confessions in this case, recorded when POTA charges were current. 24 There were in all 18 supplementary charge sheets but most of them were little more than additions of the names of the absconding accused, as and when they were apprehended. 25 The first set of statements was dated 10 April 2002. The second set was dated 23 February 2003. 26 “Tehelka Sting Investigation”, “The Truth about Gujarat 2002” and also Vol 8 Issue 9 (5 March 2001) titled “Conspiracy? Yes. But of Another Kind” by Ashish Khetan. 27 Section 154 of the Indian Evidence Act. 28 The only confessions admissible in a regular trial are those made to a magistrate under Section 164 CrPC or to anyone other than a police officer, when not in police custody. No confession other than to a magistrate is admissible by an accused in police custody and no confession or statement made to a police officer is admissible under any circumstance (Sections 25 and 26 of the Indian Evidence Act, 1872 and Section 162 Code of Criminal Procedure, 1973). Jabir’s was a confession recorded by a magistrate. 29 Section 30 of the Evidence Act and a long series of judgments of the Privy Council and the Supreme Court, a recent one being the Parliament Attack Case: State vs Navjot Sandhu (2005), 5 SCC 600. 30 Section 10 Evidence Act and a long series of judgments of the Privy Council, and the Supreme Court a recent one being the Parliament Attack Case: State vs Navjot Sandhu (2005), 5 SCC 600. 31 The testimony of passengers , policemen and firemen bear this out. 32 Conduct of an accused is relevant under Section 8 of the Evidence Act. 33 Sections 34, 149 and 120B of the Indian Penal Code, respectively. 34 Section 54 of the Evidence Act. 35 Ajay Kanubai Baria and Sikandar. A Sikandar of the same address mysteriously disappeared from the list of absconding accused, and a Sikandar of the same address became a witness, but the judge refuses to believe that they are the same. 36 Selvi vs State of Karnataka (2010), VII SCC 263. 37 The judge says polygraphs done prior to the Supreme Court ruling are exempt from its ratio. Since the celebrated Golaknath case everyone knows that a judgment interprets the law as it was always meant to be read. Except in the case of the interpretation of the Constitution, which is governed by the doctrine of prospective overruling. 38 A mandate under Section 310 Code of Criminal Procedure. 39 Section 45 of the Evidence Act says that the opinion of experts on a number of subjects including april 9, 2011

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science is relevant. Section 51 says that where the opinion of any living person is relevant, the grounds on which the opinion is given are also relevant. Justice Bhagwati when he was in the Gujarat High Court, in Suleman Usman vs State of Gujarat, AIR 1961 Gujarat 12. US Supreme Court in Daubert vs Merrell Dow Pharmaceuticals Inc, 509 US 579 (1993). The trial courts were to hold preliminary hearings under the Federal Rule of Evidence 702 at which the scientists would explain their methods and conclusions. The judge would then decide, using a series of criteria for scientific validity, whether the testimony was accurate enough for the jury to hear. Though there is no such statutory prescription in Indian law or a jury system the principles on evaluating scientific testimony are relevant to the spirit of Section 51 of the Evidence Act and the Daubert Principles are quoted with approval in several Indian Supreme Court decisions such as Selvi vs State of Karnataka. Volatile components detectable in a range of otherwise uncontaminated substrates, including clothing, shoes, household products, building materials, paper products, cardboard, and adhesives. “Fire Cause & Fire Debris Analysis, A Review: 1998 to 2001” by Chris Lennard, Coordinator (Laboratory Services), Forensic Services Australian Federal Police, 13th INTERPOL Forensic Science Symposium, Lyon, France, 16-19 October 2001. An excellent chart comparison between various hydrocarbon residues can be seen on the net at http://www.tcforensic.com.au/docs/article2.html 13th INTERPOL Forensic Science Symposium, Lyon, France, 16-19 October 2001. Also see American Society for Testing and Materials (ASTM); “ASTM Standards for Fire Debris Analysis: A Review” by Eric Stauffer and John J Lentini, Forensic Science International 132 (2003), 63-67. Asst Director Gujarat FSL who gave the report on residual petroleum hydrocarbon. The cause of fire need not be deliberate. Six coaches have caught fire and burnt down completely in Gandhinagar, Jaghadari and Delhi while kept under maintenance. These accidental fires are listed in “Note on Cause of Fire in 9166 up Sabarmati”, Experts Committee of Hazards Centre. Hazards Centre, New Delhi, January 2005. There are queries from the Gujarat Police and later from a Special Investigation Team which was directed by the Supreme Court to review the Godhra investigation among others. The SIT endorsed the investigation by the Gujarat police. The judgment recounts the correspondence bet ween the FSL and the investigators. The “alligatoring” is often the sign of the spot where an accelerant is poured. But it can also be caused by the falling of burning objects on it in an accidental fire. See “Is It an Accidental Fire or Arson?”, Tony Café and Asst Prof Wal Stern, Chemi stry in Australia, 1989. “Note on Cause of Fire in 9166 up Sabarmati” (op cit). Under Section 311 of the Code of Criminal Procedure, the judge is empowered to call anyone at any stage of the proceedings to assist the trial or serve the ends of justice. Definition of proof in Section 3 of the Evidence Act. He used “undisputedly” 23 times and “crystalclear” 14 times. Then, there is “admittedly” too. The Nanavati Commission set up by the Gujarat Government and the High Level Committee under Justice U C Banerjee set up by the Ministry of Railways under the UPA government in 2004. The first confirmed the prosecution story. The second called the fire an accident. Reports and evidence of Commissions are not to be used at all in a criminal trial in view of Section 6 of the Commissions of Inquiry Act 1952 and the judgment of the Supreme Court in Kehar Singh vs Delhi Admini stration (1988), 3 SCC 608.

vol xlvi no 15

EPW

Economic & Political Weekly

Must read critique of Godhra train burning judgement by Nitya Ramakrishnan.  

A judgment has branded the Muslims of Godhra “Hindu killers” by tradition....

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