What went wrong in Hashimpura case? Victims’ Advocate reveals

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We abandoned Hashimpura victims in 1987, we abandoned them later and today we are shedding crocodile tears with them, comments Adv. Rebecca Mammen John on sudden rise in sympathy for the victims.

By Mumtaz Alam, IndiaTomorrow.net,
New Delhi, 10 April 2015: The verdict in the Hashimpura massacre case was not surprising for the victims’ advocate, and in fact, it shouldn’t surprise any given the botched-up investigation and poor prosecution during the 28-year trial in the case. Adv. Rebecca Mammen John, while speaking at an event, ripped apart the investigation of the Uttar Pradesh police. She also came down heavily on the sudden rise in sympathy for the families who lost their 42 people in the Independent India’s biggest custodial killing in 1987 in Uttar Pradesh, as the victims and their families were abandoned all through 28 years of trial.

In her speech at an event jointly organized by Jamia Teachers Solidarity Association and Jamia Teachers’ Association at Jamia Millia Islamia here on 7th April, Adv. Rebecca revealed some startling facts which tell one why the acquittal of 19 accused policemen by a Delhi court on 21 March was expected. The 42 people of Hashimpura village in Meerut district were killed by a team of Provincial Armed Constabulary (PAC) of Uttar Pradesh in May 1987, but the charge-sheet was filed full 10 years later. And more importantly, the test identification parade, which must have been conducted within days of the crime, actually took place 20 years later. The police truck, in which the 42 people were killed, was never seized. The blood marks and the bloody water (as the dead bodies were thrown into the Gang canal) were never captured. The arms with which the Police had killed them were not seized immediately but allowed to be reused by the police.


Students and teachers at the event in Jamia Millia Islamia on 07 April 2015. (Photo – IndiaTomorrow.net)

“The judge has accepted victim survivors’ testimonies in totality and has said that there is no doubt about the fact that the incident of abduction and brutal killing by men in uniform stands established. However, a prosecution must go further. When you prosecute 16 people for murder it is the duty of the investigating agencies and it is the duty of the prosecuting agencies to provide corroborative material to establish that these men in the dock were actually the men who committed the crime. Whose responsibility was it to provide that corroborative material? It was the responsibility of the prosecuting agency and investigating agency – the UP Police,” said she.

“I know from experience that the initial investigation, the initial seizure as you make and the initial evidence you seize is the most critical evidence in a criminal trial. This is where the judge has said that the prosecution has miserably failed,” she informed the audience of teachers and students at the program.

“The very first protocol of investigation is that you put the survivors to test identification parade, it was not done. Whose fault was it? The UP police. It was possible that back in the day in May 1987 they may have remembered somebody. But the time they were able to testify in court it was 2006 to 2009. It is humanly impossible for anyone of us to remember or identify people we have never seen in our life before 20 years after the occurrence,” she said.

“No seizure of the truck. No seizure of the bloody water. What do you expect the court to do? How does he (judge) connect these 19 men firstly to the battalion in question and then to the truck in question,” she asked.


(L-R) V.N. Rai, Prof. Purushottam Aggarwal, Senior journalist Ajay Singh and Adv. Rebecca Mammen John at the event in Jamia Millia Islamia on 07 April 2015. (Photo – IndiaTomorrow.net)

Speaking at the event whose title was “State Violence and the (Im)possibility of Justice: Lessons from Hashimpura”, Retd. IPS officer V.N. Rai (who was Superintendent of Police of Ghaziabad where the killings took place in 1987) said: “After Independence, Hashimpura killing was the biggest custodial killing in the country. It was different from 1984 Sikh riot, Nellie massacre or Babri incident in that no custodial killing took place in them. Those incidents happened in the presence of police due to negligence, indifference and complicit behaviour of police, but Hashimpura was very unique. As a professional police officer, it was very shocking for me.”

Prof. Purushottam Aggarwal, critic and commentator, stressed on identification and prosecution of higher officers who ordered the killings.

“Even if the 16 or 19 PAC men were convicted and punished but what about the higher officers possibly on whose orders this all happened? No SP, IG, DIG or IAS or IPS would have been punished. It seems we live in a kafkaland (I just read Manisha Sethi’s book of this title). This happens everywhere. That real culprit does have tea with us and attends parties and a small policeman or peon is punished,” said Prof. Aggarwal.

“We must strongly demand that not only those who took arms and killed the people should be identified but also those who primarily issued orders for the action or encouraged them later and then deliberately or foolishly or negligently botched up the investigation. In my view, real culprits are those people,” he said.


Family members of victims of the Hashimpura massacre during a press conference in New Delhi on 24 March 2015. (Photo – Sushil Kumar Verma – The Hindu)

Senior journalist Ajay Singh said the Hashimpura incident was big killings by state authorities after perhaps the state-sponsored killings in World War II.

“Those killed have become a mere statistics. As a society we tend to believe that time is the best healer. As a state, besides owning the killer instinct we have also developed a consummate skill in erasing the memories which are disturbing and unpleasant,” said Singh.


Rebecca Mammen John
In the judgement, Additional Session Judge Sanjay Jindal has categorized certain issues. One, the issue of the possible abduction, putting into a PAC (Provincial Armed Constabulary) truck, taking them to two different spots, their brutal killings and throwing them into the canal based on the statements of five surviving eyewitnesses – Zulfikar Nasir, Mohammad Nayeem, Mohammad Usman, Mujibur Rahman and Babu Deen. These five men were PW1, PW2, PW3 PW4 and PW11 in the trial. They have very very bravely come to court and testified as to how the incident took place, how they were picked up – they were young boys of 16 or 17 at that time – how they were pushed into this vehicle in the middle of the night, how they were shot and then thrown into the river, how they escaped because the men who were shooting them believed that they were dead.

When you read the testimony of these five victims you get shivers up your spine. As a criminal lawyer who has practised in courts for 28 years, when I reread the evidences at the time of final arguments I was again horrified. So what is being said here that these stories must never be forgotten is absolutely right. Because when you read their testimonies you realize what the state has done to these innocent men and how they were cheated.

The judge has accepted their testimonies in totality and has said that there is no doubt about the fact that the incident of abduction and brutal killing by men in uniform stands established. However, a prosecution must go further. When you prosecute 16 people for murder it is the duty of the investigating agencies and it is the duty of the prosecuting agencies to provide corroborative material to establish that these men in the dock were actually the men who committed the crime. Whose responsibility was it to provide that corroborative material? It was the responsibility of the prosecuting agency and investigating agency – the UP Police of whom Mr. V.N. Rai was a member at that time (He was Superintendent of Police of Ghaziabad district where the killings took place). I know that investigation was subsequently transferred from them within a very short period time. But I also know from experience that the initial investigation, the initial seizure as you make and the initial evidence you seize is the most critical evidence in a criminal trial. This is where the judge has said that the prosecution has miserably failed. Because although he believes the testimony of the five surviving witnesses, those five men said we cannot identify anybody. It was the middle of the night, these men were in uniform, they had helmets on their faces, we were asked to bend down, we were in fear and we had never seen them before we cannot identify. The first failure of the investigating agency – and I don’t know how these 19 men (accused policemen) were picked up eventually, there must have been some reasons as to why these 19 men were picked up – one would have imagined that the very first protocol of investigation is that you put the survivors to test identification parade, it was not done. Whose fault was it? The UP police. It was possible that back in the day in May 1987 they may have remembered somebody. But the time they were able to testify in court it was 2006 to 2009. It is humanly impossible for anyone of us to remember or identify people we have never seen in our life before 20 years after the occurrence.

But I am asking myself a question as an officer of the court. What is the judge supposed to do with this evidence? Ultimately he has to acquit or convict. And if he convicts people for 302 he must have evidence to back him. Where was that evidence? And why was it missing?

Mr. (V.N.) Rai has spoken today as well as at other forums of the larger conspiracy. Who said that in court? Did anyone say that in court? It is a simple thing. It is not rocket science. 42-odd men were put into a truck. The men don’t know the number of the truck. But they were people who saw a particular truck being rushed. Someone should have said that this truck number was this and that. There was no one who said that.

Now I am asking myself a question: who are we blaming? Because one of the paramount and most important elements of the criminal trial is investigation. So there was suppression of evidence. We all know that when a police officer investigates another police officer evidence will be suppressed. It is not a knowledge we have gained after Hashimpura. We know it all the time. Police officer investigating police officer will by and large suppress evidence.

There is also the question of elegant investigation. So apart from the suppression, basic protocol of investigation was not carried out and I am making that statement with a sense of responsibility having been frustrated through this trial looking at the evidence that the prosecution brought. No seizure of the truck. No seizure of the bloody water. What do you expect the court to do? How does he connect these 19 men firstly to the battalion in question and then to the truck in question? And he is saying that the horrific incident has taken place and there was indiscriminate firing that took place inside the truck. There must be some evidence. You allowed the truck to go. You allowed the weapons to be reused by the PAC. You allowed the weapons to remain with the PAC. By the time they were seized and sent to the CFL (Central Forensic Science Laboratory) the CFL said Hello what do you suppose us to say from this? It has been used subsequently. How on earth can a prosecution succeed if this is the quality of evidence? And there is culpable failure of the state, successive governments who ruled Uttar Pradesh and the centre and I would say officers in uniform whoever they were. People responsible for investigating this crime did not do so. Whether it was so negligence, whether it was so incompetence or whether it was so deliberate suppression of material it has not happened.

There is no point recounting conspiracies theories after these incidents. Many of these people came to court, many of these people testified. What is the nature of their testimony? The investigation was transferred from our hands after 30-odd hours. So we didn’t seize the vehicles we didn’t seize the bloody waters we don’t even name the truck in question. How do you build on that?

So as someone who appeared for these victims through a long and lonely struggle – that is the other point I want to make – once something like this happens 28 years after the incident, suddenly the whole civil society wakes up, suddenly Television programs, I have been wondering why I have been giving so many interviews. Through this lonely struggle of 28 years, it was only the men and women of Hashimpura who kept the flag flying. There was no one with them. They were poor and desperate in 1987, they are poor and desperate today.

And I think we must recognize there is no point in making a big civil liberty collaboration at the end of the struggle when you don’t walk with them through the struggle. And we haven’t done it. And I say that with respect to the media, with respect to the members of the force, and with respect to ordinary members of the civil society. These were an abandoned set of people from Hashimpura. We abandoned them in 1987, we abandoned them later and today we are shedding crocodile tears with them and it will not work.

No incident of this kind should ever go unpunished but for it to go punished we must be vigilant as a community – lawyers, police officers, politicians, ordinary students and teachers, all of us are invested in it because this is our future. If the men and women of Hashimpura are crying today, it is a shame on us. It reflects on how poorly our system functions, and as a member of that system, I am more than happy to take responsibility for what has happened.

There has been much talk about what is the way forward. It was very very clear, we actually knew that this would happen because what you do with the evidence as bad as this. So the question arises: We move to the high court, and ask for an appeal. What is the magical thing that will happen? I have a response to that. Justice means different things to different people. Justice sometimes, and always in fact, is that perpetrators must be punished but if that has not happened, can we not expand the concept of justice? Cannot a superior court look at this evidence and say all these people should have collected all these evidence on these these days but they did not do it and today fix accountability on them? Because unless you punish people in power, this will happen again and again and again. Cannot the superior court look at the horror and expose the horror of this incident? To that extent the judgement is very very disappointing. Because what this judge has done is he looked at it very clinically and as small scuffle. He didn’t give importance an incident of this nature deserved. There was no mention of the widespread ramification of the incident of this nature. Therefore this was a disappointing judgement from that point of view. And why he kept on saying about proof beyond reasonable doubt, which is a correct interpretation of criminal law.

I would also like to ask him a parallel question. I would like to ask this question to the judiciary at large: in such cases – in cases of custodial deaths – you ask for proof beyond reasonable doubt, which you can never get. A policeman will never bring evidence against another policeman, but still you insist on proof beyond reasonable doubt. I represent many accused persons in trial in terror cases. In 1995, bomb blast had occurred in Sarojni Nagar, for which five Kashmiri men were in custody for 11 years on zero evidence. At that place you compromise, there is no proof, but you give benefit of doubt to the prosecutor. Here (in Hashimpura case) you give benefit of doubt to accused. In both cases, victims are Muslims – as an accused or as a victim. So you shift the standards according to what is suitable. In a case like this (Hashimpura) you insist on proof beyond reasonable doubt, and I am asking why don’t you insist on proof beyond reasonable doubt when innocent men are put in custody under UAPA act, under MCOCA, under POTA and now that horrendous act which has come out in Gujarat. There you cover for the prosecutions – you say there is no need for proof, these men may have committed the crime…

I want to say two things: One, we must never erase these things from our memory, Hashimpura must become a rallying point not just for those men and women there but for all other cases where civil liberty is violated and we must always remember. Second, it is not good enough to wake up 28 years later, it is important for us to walk the journey with victims of such crimes. If you don’t do that, this will happen again and again and again.

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