The plight of those accused in the Godhra train arson case
is a grim travesty of justice. They have been denied a fair hearing and
deprived of basic freedom. While in trials related to the 2002
carnage incidents, influential accused have been let off, repeated efforts
to obtain bail for the Godhra accused have proved futile.
A total of 135 persons were accused in the Godhra arson.
Of these, 22 persons are absconding. Twelve of the accused were released
under Section 169 of the CrPC, which provides for release of accused if,
after investigation, there is found to be insufficient evidence against
them. One of the accused died while in judicial custody. Of the remaining
100 persons, 84 persons are still in judicial custody, including two
persons who were minors at the time of the incident. Only 16 persons have
been granted bail. This includes bail granted to three persons who were
minors at the time of the incident. The last bail order was granted by the
Gujarat High Court on October 30, 2004. The court has simply not heard any
bail applications since.
One of the 22 absconding accused, a maulvi, was implicated
in the crime by an accused/witness, Sikandar, who stated that the maulvi
was allegedly seen on the terrace of a masjid at Godhra (ostensibly
planning the conspiracy) although it was later established that the maulvi
was in Maharashtra and not even in Godhra on the relevant day.
There were many serious discrepancies in the arrests,
glaring inconsistencies that have been pointed out to the state, which
simply refuses to address these concerns. Some of these anomalies have
been laid out below.
At least 20 of the accused persons were arrested as
members of the mob, several hours after the event, without any statement
or complaint naming them at the time (see box).
Five of the Godhra accused are shown as identified by a
witness, Dilip Ujjambhai Dasariya. A schoolteacher, Dasariya has stated on
affidavit that he was not present at the spot but on duty 25 kilometres
away when the incident took place. The school where he teaches has
certified to this fact. The prosecution has however refused to place this
fact on record. Aminabibi, the wife of accused, Saeed Abdulsalam Badam, a
resident of Chikhodra village in Godhra taluka, has filed an
affidavit before the Supreme Court stating that her husband, a poor
labourer, has been falsely implicated based on the solitary statement of
Dilip Dasariya who, by his own admission, was not present at the scene of
the crime on February 27, 2002.
The plight of those accused in the Godhra train arson is
indeed a sorry one. Accused No. 54, Ishaq Mohammed Mamdu, is totally
blind. In 1997, years before the train arson took place, the civil surgeon
at the district hospital issued a certificate confirming that Mamdu
suffered from 100 per cent blindness, following which he received
assistance as a handicapped person from both the state and central
governments. Mamdu’s father has made applications for reinvestigation into
his arrest but this has not been done.
On the contrary, in a pathetic attempt to justify Mamdu’s
arrest, the state of Gujarat has obtained a doctor’s statement dated June
2002 that states, vis-à-vis the 1997 certificate, that though Mamdu is
blind his eyesight allows him to see up to a distance of one metre.
Moreover, there is no record of a physical examination being conducted on
Mamdu prior to the doctor’s certificate being issued. The state’s
contention is that he was part of the mob. Despite this, and though the
only allegation against him is that he was part of the mob, Ishaq Mamdu’s
bail application has been consistently rejected.
Another of the accused persons, 42-year-old Fakruddin
Musalman, died while in judicial custody on April 30, 2003. Fifty-year-old
Siraj Abdulla Jamsa, a cancer patient, passed away after he was granted
bail. Gulzar Agnu Ansari, aged about 23, suffers from tuberculosis even
today. Maulana Hussein Umerji, aged about 60, suffers from kidney
malfunction, high blood pressure and arthritis. Siddiq Abdulla Badam, aged
about 38, suffers from bone tuberculosis. Anwar Mohammed Menda, aged about
33, suffers from serious mental depression. Idris Ibrahim Charkha, aged
about 32, also suffers from serious mental depression. Anwar Hussein Ahmed
Pittel, aged about 30, suffers from severe haemorrhoids.
Leaders of the minority community who played a significant
role in providing relief to victims of the post-Godhra carnage were
specifically targeted and arrested without evidence. Maulana Umerji, Harun
Abid and Harun Rashid are some examples.
The misconduct by investigating agencies and the
prosecution in the Godhra trial is potentially extremely dangerous not
only because it violates the rule of law and the basic rights of the
accused who have been unfairly implicated. In the wider context it
epitomises the discriminatory system of justice at work in the state of
Gujarat. Discrimination is particularly apparent with regard to bail,
where many of those accused of mass murder in the post-Godhra violence
roam free while most of those allegedly responsible for the Godhra arson
are denied bail five years after the event. This sends a detrimental
message to society as a whole.
CJP has placed on record before the Supreme Court the
sworn affidavits of five Hindu victim survivors of the Godhra arson,
family members of victims who died in coach S-6 of the Sabarmati Express,
who have also made a plea to the apex court for transfer of the Godhra
arson case out of Gujarat. They cite threats, intimidation and political
manipulation by the state administration that precludes a free and fair
trial within Gujarat. They have stated that the VHP has influenced public
prosecutors to present a partisan and unsubstantiated theory behind the
tragedy. The case for transfer of the Godhra trial was made and supported
by family members of the accused and supported by Hindu victim survivors
of the train arson incident.
Illegal invocation of POTA in the Godhra case
The invocation of POTA (enacted on March 28, 2002) in the
Godhra train arson case was itself both mala fide and illegal. On February
27, 2002 i.e. when the alleged offence occurred, POTO (Prevention of
Terrorism Ordinance, 2001) was not applicable in the area. It was on
February 28, 2002, after the Godhra incident, that the state of Gujarat
issued a notification declaring the whole area to be a notified area under
The Gujarat government did not publish the necessary
circular in the state gazette announcing the application of POTO to Godhra
on February 28, 2002. In spite of this, an attempt was made to wrongly
apply POTA in the Godhra arson case by declaring that POTO could be
applied to the Godhra incident on February 28. This attempt failed.
It was nearly a year later, on February 19, 2003, that
POTA was invoked in the Godhra case. It appears clear that this followed
the confessional statement by Jabir Binyamin Behra dated February 5, 2003,
a statement that Behra ultimately retracted, stating that the confession
had been extracted under torture. Behra’s confessional statement drew the
first picture of a pre-planned conspiracy behind the train arson incident.
Interestingly, five days before POTA was applied in the
Godhra train arson case i.e. on February 14, 2003, bail was granted to
most of the accused for the first time by the Gujarat High Court. It is
evident that POTA was applied to ensure that further bail orders were not
Legal provisions under POTA allow for the review of
individual cases by a central review committee to prevent misuse of the
Act and its draconian provisions. A decision by the Central Review
Committee on May 16, 2005 ruled that none of the alleged offences in the
Godhra case warranted the invocation of POTA. However, the committee’s
decision has not been taken into consideration by either the Gujarat
government or the POTA court. Matters relating to bail for the accused,
especially in view of the decision by the Central Review Committee, have
been brought before the apex court. However these too have faced repeated
Shockingly, over 45 of the accused have made written
applications voicing their apprehensions about the likelihood of a fair
trial within the state of Gujarat. From a perusal of these applications it
is clear that the accused see little hope of facing a free and fair trial
in the state. The persistent refusal by investigating agencies to follow
up and investigate the facts raised by these applications, and the failure
of the special POTA court to ensure this, also suggest that the Godhra
arson case is not being conducted in a manner that inspires confidence in
Some of the accused persons who were jailed at the
Vadodara central jail were subsequently transferred to the Sabarmati
central jail and they have also challenged this transfer. The jail
transfer has meant that families of these accused persons, all from
economically backward sections, already reduced to penury by the absence
of an earning family member, cannot even exercise their basic fundamental
right and visit their kin in prison.
There are also severe discrepancies in the discovery
panchnamas relating to the recovery of weapons. These too have been
detailed before the Supreme Court.
There are similar and serious lapses in the timing and
statements/complaints in the arrests of the accused.
All police witnesses who provided statements are employees
of the Godhra railway police station and serve under the same
investigating officer who has been investigating the case. This further
implicates the investigating agency on charges of bias. In fact, 36 of
those accused in the Godhra train arson case were acquitted in another
case, related to the Neelam Lodge (Godhra town CR No. 66/2002), on the
same day. Ironically, the police witnesses are common witnesses for the
same accused in both cases.
After the police filed the first charge sheet in May 2002,
the government’s own Forensic Science Laboratory report came out. Far from
strengthening the government’s position, the report exposed the
prosecution’s case. This led to the entire team of police investigation
officers being changed.
The statements before the police as well as the witness
statements that allegedly led to the accused, clearly indicate that some
of these witnesses were also active participants in the commission of the
crime. What is more, if their own statements are to be believed, these
witnesses are guilty of far more serious offences than those who were
booked and denied bail for the past few years.
The very magistrate who had earlier recorded statements by
two such witnesses under Section 164 of the CrPC, refused to record a
statement by accused/witness, Jabir Binyamin Behra, on January 29, 2003
when he realised the seriousness of the lapse. Instead, he directed that
Behra should be brought before the chief judicial magistrate (CJM) or a
high court judge because the judicial first class magistrate’s court did
not have the appropriate jurisdiction. Following these developments, Behra
was brought before the CJM in February 2003 and a confessional statement
by him was recorded on February 5. All three of Behra’s recorded
statements are practically identical and adhere to a strange prototype –
there is virtually no change in their content. Yet the law is clear in
that such statements must be in the language and words of the accused.
The Gujarat police and prosecution have also denied the
Godhra accused access to vital documents. For instance, confessional
statements and statements by the Patels dated April 10, 2002 were not
initially supplied to the accused persons. As the accompanying story
shows, Prabhatsinh and Ranjitsinh Patel, employees of a petrol pump in the
area, had clearly stated that no petrol had been bought from them (petrol
that the prosecution claimed was used in the arson).
The stay on the Godhra and post-Godhra carnage cases by
the Supreme Court did not extend to staying the investigations. The state
of Gujarat, which is the prosecution in all these cases, has, in the case
of the Godhra arson, continued with an aggressive investigation apparently
to suit political ends. In the post-Godhra cases however investigations
have simply not proceeded as they should. True investigations would
involve serious complaints by victim survivors about doctored FIRs,
incorrect naming of accused and several other harmful revelations.
The conduct of the judiciary in Gujarat, be it in the POTA
court or the high court, has been highly questionable. Bail applications
have been pending without decision in the Gujarat High Court since May
2003. Hence the CJP has supported the NHRC’s plea for a transfer of
investigation and trial of the Godhra arson case outside Gujarat.