A recent judgment in a 1992-93 Mumbai riots case showed that justice is possible, even after 15 years. Naresh Kamble and Sunil Shah were convicted of assault and attempt to outrage the modesty of a woman, after the woman and her husband identified them in court.
In almost all riot cases so far, victims have refused to identify the accused in court. In this case, the victims' unhesitant identification of the accused was the only reason for the conviction. And it was the fact that they recognized them, that spurred the victims to testify.
Iftikar and Mehjabeen Damad live in Murud Janjira, an idyllic coastal town 165 kilometers from Mumbai. On January 1, 1993, when it seemed that the violence that had engulfed Mumbai after the demolition of the Babri Masjid (in Uttar Pradesh) had died down, the couple thought it safe to travel to Mumbai to attend a relative's wedding.
(Built by Babur, the first Mughal emperor of India in the 16th century, in what is now Uttar Pradesh, the Babri Masjid [mosque] was torn down on December 6, 1992, by a mob of 150,000 religious extremists wanting to build a temple in its place, to mark what they consider the birthplace of Lord Ram. The demolition led to widespread communal violence in several parts of India.)
But as Iftikar and Mehjabeen crossed through Dharavi in an auto-rickshaw after midnight, they were surrounded by a mob that asked them what religion they belonged to. When they answered, they were pulled out and set upon. Mehjabeen was dragged to the nearby bushes and stripped. Iftikar managed to escape, find a rickshaw and go to the nearest police station. The police rescued Mehjabeen just in time.
The couple identified four of their assailants, but two absconded, and when the case came up for trial 15 years later, only two of the four accused were present in court. The couple - now middle-aged - was reluctant to make the long trip to Mumbai to testify, and, afraid that they would be called again and again, had come to court with the intention of withdrawing their complaint.
But waiting for the proceedings to begin, Mehjabeen, looking at a man seated with others in the dock, suddenly burst out, "That's him. I saw them up close. He was one of them." When it was time for them to step into the witness box, all their reluctance had vanished. Iftikar could identify only one with certainty; Mehjabeen recognized both. It seemed, going by the defence advocate's arguments, that this identification would not be enough. Quoting judgments, he stated that there was no corroborative evidence, that the husband and wife would naturally support each other's evidence, and that no Test Identification Parade had been held. What was the value of identifying the accused after 15 years, he asked, alleging that the police had shown them the accused in court.
But in her judgment, magistrate R.C. Bapat Sarkar countered all the objections. "The complainant (Iftikar) has unwaveringly pointed to the accused Number 1. But he has not identified the other accused. That lends a ring of genuineness to his testimony. If at all he was a put-up witness, he could have easily identified both." Pointing out that the evidence obtained by an Identification Parade was only of use for corroboration, and was not substantive evidence, the magistrate stressed that "each case must be decided on the peculiar facts of the case". In this case, she wrote, "both have undergone the ordeal, nay trauma, of having been assaulted mercilessly and mindlessly only on account of their faith. Not only this, the wife was subjected to having her clothes torn, whereas the complainant had to face the ultimate disgrace of having this done to his wife before his very eyes, while he was rendered helpless. After having gone through this ordeal it is but
natural that they would remember the faces of the assailants who put them through such a harrowing experience. Just because there has been a long lapse of time, does not mean their identification must be discarded".
Pointing out that the delay was due to the accused not being present all these years, she wrote, "After all this the accused seek to raise doubts about identification on grounds of delay. In other words, the accused are seeking to put a premium on their own absence."
Finally, the magistrate pointed out that the Identification Parade not being held was "at most an irregularity not amounting to illegality". The lapse was the Investigating Officer's, for which the victims couldn't be held responsible or disbelieved. "Even the sole testimony of one witness can be believed if it is cogent and natural," said the judgment.
If only such sensitivity had been in evidence in a similar, but far more gruesome case that was tried just two-and-a-half years after the riots. Ten Shiv Sainiks (described as such by the police) had been arrested under TADA (Terrorist and Disruptive Activities Prevention Act) for stripping and assaulting a mother and daughter, then killing and burning the latter, as well as her uncle who went to save her.
The mother identified in court nine of the 10 accused, and was even been able to describe who had done what to her. She had earlier identified all accused in the Identification Parade held at the police station.
But the TADA judge accepted all the arguments made by the defence lawyer, son of a leading criminal lawyer and Shiv Sena Rajya Sabha MP. Though the PP (public prosecutor) argued that the mother reached the police station much after the accused, the judge accepted the defence allegation that she had seen the accused being brought to the lock-up. He went by the defence's citation of a High Court judgment that cast aspersions on all identification parades held in police stations. Finally, the judge accepted that the mother's uncorroborated testimony (the other witnesses turned hostile, or were "untraceable") was of no use. Most disturbingly, the judgment went along with the Shiv Sena theory of "Hindu retaliation" provoked by the Radhabai Chawl incident (in which six Hindus had been burnt alive), although that particular incident had taken place a full six days later.
Magistrate Bapat Sarkar, in the case involving Iftikar and Mehjabeen, obviously thought differently. Referring to the defence argument for leniency since riots were on then and the two were the sole earning members of their families, she wrote, "That does not justify the accused assaulting total strangers just because they were Muslim. There was no reason why they molested Mehjabeen in the wee hours of the night. The nature of the offence does not justify leniency... Some punitive measures are required to send home the correct signals for the offenders themselves and society at large." She fined the accused Rs 6,550 (US$1 = Rs 42.24) and Rigorous Imprisonment (RI) of three months each. Ironically, in this case, although the police had surprisingly (given their communal conduct during the riots) helped Muslim victims promptly, the Investigating Officer had not bothered to record the statement of any other witness. In contrast, investigations in the TADA
case, supervised by then additional Commissioner of Police, A.A. Khan, had been thorough. But in both cases, the government did not bother to appoint special PPs; the regular underpaid, overworked PPs had conducted the case in their usual indifferent manner.
These two sharply differing verdicts provoke the question: What led one judge to overlook the most important piece of evidence and another magistrate to give it the importance it deserved?