By Advocate Sanjeev Sirohi*
It has to be stated right at the outset that in a much awaited judgment, the Delhi High Court finally ending the years of nail biting suspense has finally delivered its historic verdict in Zulfikar Nasir & Ors v State of Uttar Pradesh & Ors in CRL.A. 574/2015 & Crl.M.A. No. 8003/2015 which was reserved on 6 September and then finally pronounced on 31 October has set aside the trial court judgment that had acquitted 16 Provincial Armed Constabulary (PAC) officials in the 1987 Hashimpur mass murder case. The Delhi High Court has convicted all the accused and sentenced them to life imprisonment.
This landmark 73-page judgment authored by Justice Dr S Muralidhar for himself and Justice Vinod Goel while pronouncing the verdict observed that, “Family of the victims had to wait 31 years to get justice, and monetary relief cannot compensate their loss.” Senior Advocate Rebecca John appeared for the appellant Zulfikar Nasar and advocate Vrinda Grover appeared for National Human Rights Commission (NHRC). The Delhi High Court termed the brutal massacre as “targeted killing” of unarmed and defenceless people by the police.
To begin with, it is first and foremost pointed out in para 1.1 that, “Hashimpura is a mohalla, i.e. a small area of Meerut city, about 82.5 kms north-east of Delhi, in Uttar Pradesh. Meerut’s population in terms of the 2011 census was approximately 3.5 million. Around 3.6% of the population are Muslims. Many of them earn meager sums as artisans and labourers to keep themselves and their families going.”
It is then pointed out in para 1.2 that, “On 22nd May 1987, in the evening hours, Hashimpura witnessed a tragedy that would leave a deep festering wound. Around 42 to 45 men, old and young, all Muslim, were rounded up by the Provincial Armed Constabulary (PAC), packed into a truck and taken away. Each of them was shot by the PAC personnel with .303 rifles in cold blood and the bodies dispatched to a watery grave – some in the Gang nahar (canal) and the remaining in the Hindon river. Five of them survived to recount the horrific tale. Of the 38 that were killed, the dead bodies of just 11 of them were able to be identified later by their relatives. The remaining bodies were not recovered.”
To be sure, it is then spelled out in para 1.3 that, “In May, 1987 communal riots took place in Meerut district. As a result, the police, paramilitary and military forces had been posted at mohalla Hashimpur for riot control and security. This included the ‘C-Company’ of the 41st Battalion of the PAC. On 21st May 1987, the brother of an Army Major was killed in the mohalla adjacent to Hashimpura and two rifles belonging to the PAC personnel ‘were looted by certain anti social elements’. This led to the registration of FIR No. 204/1987 at PS Civil Lines, Meerut under Sections 147, 148, 149, 302, 307, 347, 436 and 336 of the Indian Penal Code (IPC). The criminal case arising therefrom is still pending before the Chief Judicial Magistrate (CJM) Meerut.
Of course, para 1.4 then goes on to add that, “On 22nd May 1987 post noon, around 644 men, all Muslim, belonging to mohalla Hashimpura were arrested under Sections 107, 116 and 151 CrPC. They were first rounded up under a peepal tree in Hashimpura and divided into two groups. The first group comprised elderly men and young boys and the second comprised young men. They were to be sent to the PS Civil Lines and Police Lines in Meerut in the trucks of the PAC, the Army, the CRPF and the local police on the directions of the District Administration. The 42 to 45 males rounded up by the PAC and taken away in a truck and killed belonged to the first group.”
It is then explained in para 1.5 that, “The criminal justice process in connection with the murders commenced with the registration of two first information reports (FIRs). FIR No. 110/1987 was registered at PS Link Road, Ghaziabad on 22nd May, 1987 and FIR No. 141/1987 was registered at PS Murad Nagar, Ghaziabad on 23rd May, 1987. The investigation of both cases was handed over to the Crime Branch, Criminal Investigation Department (CB-CID), Uttar Pradesh.”
As things stand, it is then revealed in para 1.6 that, “The CB-CID filed a charge sheet in the criminal court in Ghaziabad in 1996, nine years after the event. 18 officers of the PAC were arraigned as accused in the first charge sheet. The 19th accused was arraigned in the supplementary charge sheet. Under the orders of the Supreme Court, passed in 2002 and 2007, the trial of the cases was transferred to Delhi. Charges were thereafter framed by the trial court on 24th May, 2006 against all the accused under Sections 147, 148, 149, 120B and 364/302/307/201 all read with 149 IPC. 19 years had elapsed by this time. During the pendency of the trial three of the accused died. The trial meandered for over eight years ending in a judgment dated 23rd March 2015 whereby all the 16 remaining accused were acquitted. That was 28 years after the commission of the crime.”
Needless to say, this aroused a lot of resentment among the relatives of the victims who were brutally killed. So they decided to go in for appeal. They firmly believed that justice had not been done with them by the trial court.
Not just this, even the State of UP and NHRC also decided to go in appeal against this judgment of trial court as they too were not happy with it. This is made amply clear in para 1.7 which stipulates that, “Aggrieved by the acquittal, three appeals have been filed in this Court – two by the victims and their families and one by the State of U.P. This Court permitted the National Human Rights Commission (NHRC) to intervene. Accepting the plea of the NHRC, this Court permitted additional evidence to be recorded by the trial Court, even while these appeals were kept pending.”
More glaringly, it is then disclosed in para 1.8 that, “By this judgment in the said appeals, we proceed to reverse the judgment of the trial Court and hold the 16 accused guilty of the offences with which they were charged viz., criminal conspiracy, kidnapping, murder, causing evidence of the crime to disappear. In arriving at this conclusion, we have also relied on the additional evidence recorded, which was not available to the trial Court. We hold that this was targeted killing by armed forces of the unarmed, innocent and defenceless members of a particular community.”
It is also conceded in para 1.9 of this judgment that, “We are conscious that for the families of those killed, this is perhaps too little, too late. They have had to wait for 31 years for justice. The monetary compensation they have received cannot make up for the lives lost. This case points to the systemic failure that results, not infrequently, in a miscarriage of justice.”
The unfolding of events
It is imperative to now narrate the entire chain of events that preceded the ghastly killings. Para 3 points out that, “The trigger to the events leading to the registration of the two FIRs have been noticed earlier. To continue the narration of events that transpired at Hashimpura on 22nd May 1987 in the evening at around sunset, the PAC officials/jawans wearing khakipilli (dusky yellow) coloured uniforms, armed with rifles with sangeens (bayonets) gathered about 42 to 45 able bodied elderly men and young men and made them board a yellow coloured truck with PAC written on it in the white paint. It is stated that about 18 to 20 PAC jawans also got into the same truck having registration No. URU-1493, which belonged to C-Company of 41st Battalion PAC.”
Going forward, it is then pointed out in para 4 that, “The said truck, driven by Constable Mokam Singh, moved away from Mohalla Hashimpura towards the Delhi road. After moving for some time the truck stopped to allow more PAC officials to board. It then began moving again. After about 1 to 1 ½ hours of the journey, the truck reached the patri of Gang nahar in Murad Nagar. After travelling for about 1 ½ kilometers on the patri, the truck was brought to a halt. The lights of the truck were then switched off.”
Now coming to para 5, it continues further in the same vein and brings out that, “After stopping the truck, the accused personnel of the PAC started bringing down the persons from the hold one by one. The first person to be brought down – Mohd. Yasim, a resident of Hashimpura mohalla, was shot with the rifle of one of the PAC jawans and his body was thrown into the Gang nahar.
The next one, Ashraf, was similarly brought down, fired at and killed and his body was thrown into the canal. The third person brought down was Zulfiqar Nasir (Appellant No. 1 in Crl A No. 574 of 2015) who was also a prosecution witness (PW-1) in the trial. He too was shot by the accused and thrown into the canal. PW-1 deliberately stopped breathing, feigning death. He managed to survive by concealing himself in the bushes around the water and later escaping on foot from the canal.”
What is more, para 6 then brings out that, “At the time when PW-1 was concealing himself, those inside the truck began shouting ‘bachao bachao’. Upon this, the accused present at the spot began firing indiscriminately at the persons inside the truck. Those inside the truck who were thus injured included Mohd. Usman (PW-3), Muzib-ur-Rehman (PW-4) and Babuddin (PW-11 and Appellant No. 1 in Crl. A. 629/2015). Leela Dhar (A-12), himself an accused, was part of the PAC jawans who also suffered an injury at this time by a ricocheting bullet. After this accused persons began throwing the bodies of those they had shot into the waters of the canal. In this process 15 to 16 bodies were thrown into the Gang nahar. These included three who miraculously survived: Mohd. Naeem (PW-2), Mohd. Usman (PW-3) and Muzib-ur-Rehman (PW-4).”
Moving further, para 7 then states that, “Noticing the headlights of an approaching vehicle, the accused persons stopped firing. The truck URU-1493 was driven back to the main road. After about 30 minutes, the truck again stopped at the pul/culvert of the Hindon Canal near Makanpur village. The accused persons got out of the truck and opened the rear portion (dala). They again brought down the remaining abducted persons and fired at them one by one. 15 to 20 persons, who were thus killed, were thrown into the canal. Babuddin (PW-11) who was also similarly shot at and thrown into the canal, miraculously survived.”
The two incidents
It would be imperative to mention here that para 8 then specifically points out that, “There were, therefore, two separate incidents that took place on the evening of 22nd May, 1987. The first incident took place at the Gang nahar in Murad Nagar. This further involved two distinct stages: one being the shooting of three persons i.e. Mohd. Yasim, Ashra and Zulfiqar Nasir and their bodies being thrown into the Gang nahar and the other the indiscriminate firing upon those inside the PAC truck and throwing 15 to 20 of the abducted persons who had been shot into the Gang nahar.
To put things in perspective, it is then mentioned in para 9 that, “The second incident was that which took place at the Hindon Canal pul/culvert where the remaining abducted persons were pulled down from the truck, shot at point blank range and their bodies thrown into the Hindon canal.” Para 10 then envisages that, “According to the prosecution, from the above two incidents, it could be reasonably inferred that close to 42 to 45 persons were abducted and barring five who survived i.e. Zulfiqar Nasir (PW-1), Mohd. Naeem (PW-2), Mohd. Usman (PW-3), Muzib-ur-Rehman (PW-4) and Babuddin (PW-11), the remaining were killed by the PAC jawans/officers.”
It cannot be lost on us that para 14 then holds that, “To continue the chronological narration, on 24th May, 1987 the investigation of both FIRs was transferred to the CB-CID, Uttar Pradesh. As already noted the chargesheets were filed in 1996. Between 1997 and 2000, the learned Sessions Judge, Ghaziabad issued warrants against accused persons about 23 times but was unsuccessful.” The moot question is: Why the accused persons didn’t comply if they had nothing to hide? Why for 23 times they didn’t appear? Why no strict action was promptly taken against them?
More importantly, it is then revealed in para 15 that, “In September 2002, unhappy with the progress of the investigation, the families of the deceased filed Transfer Petition (Crl.) No. 321/2002 in the Supreme Court of India seeking transfer of the trial from the Sessions Court, Ghaziabad to the corresponding Court in Delhi. By orders dated 22nd September, 2002 in Transfer Petition (Crl.) 321/2002 and 11th July, 2007 in Transfer Petition (Crl.) 285/2006, the Supreme Court transferred both criminal cases to the District and Sessions Judge, Delhi (hereinafter the ‘trial Court’).”
Simply put, para 16 then discloses that, “The trial Court framed charges against 19 accused on 24th May, 2006 for the offences under Sections 147, 148, 149, 120B and 364/302/307/201 all read with 149 IPC. Each of them pleaded not guilty and claimed trial. Three of the accused, Surender Pal Singh [Accused No. 1 (‘A-1’)], Kush Kumar (A-5) and Om Prakash Sharma (A-18) expired during the pendency of the trial.” Para 17 then states that, “The recording of evidence of PW-1 Zulfiqar Nasir commenced on 22nd July, 2006. It is only on 23rd May 2014, that the statements of the accused were recorded under Section 313 CrPC. Thereafter on 21st March 2015, the trial Court passed the impugned judgment.”
Summary of conclusions
For the sake of brevity, it is time now to dwell directly on the summary of conclusions. Para 115 states explicitly that, “To summarize the conclusions:
(i) The key issues in the present appeals concern fixing the identity of both the truck in which the 42 to 45 abducted persons were taken and of the persons belonging to the PAC who were involved in the killing of around 38 of the abducted persons. (para 42)
(ii) Entry No. 6 in GD Entry Register dated 22nd May, 1987 of the C-Compnay Post, Police Lines, Meerut, marked through PW-72, as Ex. PW-72/A records the departure of the accused persons from Police Lines, Meerut at 7.50 am. Apart from setting out the name of the Commander, Surender Pal Singh (since deceased), it shows that he was accompanied by the 18 named accused. The said GD entry No. 6 shows that the said personnel of the PAC who had gone out in truck URU-1493 were having with them 17 rifles of .303 bore with 856 rounds and one revolver with 30 rounds. It further confirmed that the driver of the truck was Constable Mokam Singh. (para 50)
(iii) The truck running register (Ex PW-70/A) makes it clear that the truck visited on that date various areas including Hashimpura mohalla. Ex.PW-91/A which contained the list of officers posted with the C-Company of the PAC shows that the truck bearing number URU-1493 was used on that date by the accused Respondents. This also showed that the driver of truck URU-1493, when it was used on 22nd May 1987, was Mokam Singh. (para 51)
(iv) The presence of the accused in the truck stands proved, not only by the entries in the GD Register, but even in the replies given by these accused when their additional statements under Section 313 Cr PC were recorded in the trial court on 16th April, 2018. (para 57)
(v) There is thus evidence of a clinching nature which proves beyond reasonable doubt that on the evening of 22nd May, 1987, the accused persons of the PAC were present in the truck URU-1493. (para 59)
(vi) The factum of the firing inside the truck is proved by several pieces of evidence. (para 62) The fact that there was a hole in the body of the truck on which a 6×6 inch patch was welded, with the two dents/depressions in the body of the truck is sufficient to prove that it was truck URU-1493 which was involved in the transportation of 42 to 45 persons rounded up and abducted by the PAC and the subsequent killings of around 38 of them. (para 66)
(vii) The medical evidence has demonstrated that from the body of one of the deceased, a .303 bullet was recovered. The forensic evidence more than adequately demonstrates that this matched with the rifles issued to the accused. There has been no satisfactory explanation forthcoming for the presence of a .303 bullet in the body of one of the deceased. (para 69)
(viii) As many as six doctors had conducted the post-mortem and confirmed that the deceased died due to gunshot injuries. No doubt the bodies were decomposed since they were recovered from the canal after a gap of three to four days. Only a few of them could be identified, and even then, for some reasons, the police did not show these bodies to the families and close friends of the victims. They were made to identify the dead bodies only from photographs and clothes recovered. What, however, stands firmly established is that the deaths were homicidal and the deaths were on account of gunshot injuries. (para 70)
(ix) Both the first incident of killing and throwing of the bodies into the Gang nahar as well as the second incident involving the killing and dumping of the bodies into the Hindon Canal is proved beyond reasonable doubt by the prosecution. (para 71)
(x) The involvement of the accused in this crime is more than adequately established through the contemporaneous evidence in the form of GD Registers establishing the fact that none of the accused has actually denied their presence at Meerut or that they were using the truck URU-1493. The identity and involvement of the said truck in the incident is also established beyond reasonable doubt. (para 71)
(xi) The evidence also clearly establishes the prior meeting of minds of the accused and their careful planning in executing the killings of the victims. Their guilt for the offence of criminal conspiracy punishable under Section 120-B IPC, and pursuant thereto committing the offence of kidnapping punishable under Section 364 IPC and murder punishable under Section 302 IPC and thereafter destroying the evidence of such crime thus punishable under Section 201 IPC stands proved beyond reasonable doubt. (para 72)
(xii) Although the victims were not taken to an enclosed place by the PAC, they were unlawfully detained, kept in a PAC, they were unlawfully detained, kept in a PAC trunk and taken to two places and asked to keep their heads down and not allowed to move. This leads this Court to conclude that they were kept in unlawful custody by the accused purporting to discharge their official functions when in fact they were clearly acting illegally. The deaths of the victims, in the present case, are custodial deaths. (para 81)
(xiii) The present case is yet another instance of custodial killing where the legal system has been unable to effectively prosecute the perpetrators of gross human rights abuses. The prolongation of the trial for over two decades, compounded by the endemic systemic delays, have frustrated the attempts at securing effective justice for the victims. (para 95)
(xiv) A case is the targeted killings of persons belonging to one minority community and killing of 38 of them soon after the incident of riots in which two rifles of the PAC were allegedly taken away by the rioters. It points to the disproportionate reaction by the PAC in targeting the members of the minority community. The Court is therefore unable to accept the submission on behalf of the accused that the motive for the commission of the crime was not proved. (para 104)
(xv) This Court recommends that every State Legal Services Authority should designate a Nodal Officer to address the needs of the victim families in the case of custodial killings or State excesses. The procedure put in place should ensure that such victims or the families are able to access and seek relief under the scheme and that such relief should not be limited to monetary compensation but other range of reliefs respecting the rights to basic survival and dignity of such families. (para 114)
Truth be told, para 116 then stipulates that, “For the aforementioned reasons, this Court sets aside the impugned judgment of the trial Court acquitting the Respondents/Accused Nos. 2 to 17 in Crl.A. 574/2015 and hereby convicts each of them for the offences under Section 120-B and Sections 302, 364, 201 all read with Section 120-B IPC.”
Be it noted, para 117 then notes that, “This case involves the killing of around 38 innocent persons in cold blood by members of an armed force viz, the PAC. The gravity of the crime is obvious. At the same time, the Court is aware that this case has been pending for over three decades for reasons not entirely attributable to the accused. Their acquittal by the trial Court 28 years after the event as reversed by this Court, 31 years after the event. The present age of the accused persons has also therefore to be accounted for. The Court also notes that substantial sums by way of compensation have been disbursed to the victims and their families.”
Most important of all, it is then held in para 118 that, “Keeping in view all of the above factors, this Court sentences each of the aforementioned 16 accused to life imprisonment for the offence punishable under Section 302 read with Section 120B IPC which, in this case, will mean the remainder of the person’s natural life.” It is then clarified in para 119 that, for the other offences, the sentence awarded to each of the 16 accused is as under:
(i) For the offence punishable under Section 120B IPC, to imprisonment for life;
(ii) For the offence punishable under Section 364 IPC read with Section 120B IPC, to rigorous imprisonment (RI) for 10 years and fine of Rs 10,000 and in default of payment of fine to six months’ simple imprisonment (SI);
(iii) For the offence punishable under Section 307 IPC read with Section 120B IPC, to RI for 5 years and fine of Rs 10,000 and in default of payment of fine to six months’ SI; and
(iv) For the offence punishable under Section 201 read with Section 120B IPC, to RI for 3 years and fine of Rs 10,000 and in default of payment of fine to six months’ SI.
The above sentences are directed to run concurrently.
Now coming to the concluding paras, it is held in para 120 that, “Crl A. Nos. 574, 629 and 884 of 2015 are accordingly allowed. The pending applications are disposed of. The bail bonds and surety bonds furnished by Respondents 2 to 17 in Crl A. 574 of 2015 stand cancelled and they shall surrender on or before 22nd November 2018, failing which the SHO concerned will immediately take them into custody for serving out the sentences awarded to each of them.” It is then held in the last para 121 that, “The trial Court record be returned forthwith together with a certified copy of this order.”
All said and done, even though this landmark judgment is being hailed as sending a loud and strong message to all the men in uniform that if they dare to kill innocents then they will have to pay a heavy price but such an unconscionable delay of 31 years is unpardonable, unacceptable and unheard of in all good countries! What is more, even now this landmark judgment will be challenged in the Supreme Court and then another round of legal battle will begin afresh! Three accused have already died a natural death! Why such unforgivable delay in delivering justice? For this even our courts must introspect!
But it must be added here that we can draw some solace from what the eminent, senior and one of the most reputed criminal lawyer of Meerut – Dr OP Sharma who is also the former President of Meerut Bar known for his indepth knowledge and vast expertise in criminal law points out with some degree of satisfaction about this life term conviction of 16 PAC policemen by Delhi High Court that, “Usually the cases of riots collapse by the time the judgment is pronounced and in some cases it is noticed that cases are even withdrawn and even social organizations try to make compromise and therefore cases are withdrawn. I have seen so many riots in Meerut as in 1968, September 1982 in Mandir-Masjid dispute when there was curfew in Meerut for 3 months but no one was convicted. Riots of 1987 or riots due to Ayodhya dispute in November 1990 and May 1991 and after this in 2011 in L Block riots and Teergaran riots but no one was convicted. Above all, police could not recognize rioters for many years and FIR was lodged in name of unknown persons. I have seen so many riots in the city but have never seen anyone getting convicted.” Nasim Zaidi who is Ex-CEC and was the then Ghaziabad DM opined that, “A crime had taken place and an FIR was lodged immediately which resulted in probe and a judicial process. This is a satisfactory judgement.”
No doubt, a good beginning has been made here by Delhi High Court but a lot more needs to be done! It must be ensured that not just the 16 subordinate PAC police personnel are punished but even those superiors who were involved in this ghastly massacre are brought to book!
Vibhuti Narain Rai who was the Ghaziabad SSP in May 1987 and who also was the first to complain after survivors approached him minces no words in saying convincingly and categorically that, “We must not forget that such a heinous offence can’t be engineered and delivered by lower level staff. The theory that a sub-inspector was commanding everyone and constables executed his orders is hardly believable…unless someone senior and powerful is involved, constables won’t obey commands of an SI. Hashimpura came to light only because they moved to Ghaziabad to effect the killings and we swung into action and lodged an FIR. At least a hundred Muslims were killed in Mailana and buried right there and the matter hushed up. There is no case diary and no one knows the case status.”
He also adds that, “The 16 convicted are small fry. Big people got away. The Army role was never investigated despite early case diaries mentioning the role of a Major linked to a political leader. I am happy that those who executed the orders have been punished but let us not forget that those behind the curtain, who planned and designed it, were not touched. There was a Congress CM in UP…and Rajiv Gandhi was the PM. The kind of alertness needed…wasn’t shown. There was no course correction even when Mulayam Singh assumed power. The tone and tenor of investigation changed with change of power in Lucknow and is evident in case diaries.”
Finally and most importantly, it must be reiterated that judgment must be delivered in such sensitive cases in the shortest possible time which should not exceed few months at the most and not few decades as we most unfortunately have witnessed for ourselves in this landmark case! For this not just the judiciary but also the Centre as also States must swing into action and provide all type of support like appointing more judges, giving more infrastructure, creating more courts etc! Unless this is done on a war footing things are not going to change much on the ground and the aggrieved victims will have to wait for a gruelling long period and justice delayed is not just justice denied but injustice perpetrated which under no circumstances can ever be justified!