The Special Prevention of Terrorism Act (POTA) Court’s (the trial court) conviction on June 25, 2007 of the 12 accused – given the many gaps and infirmities of the case, especially the lack of material evidence – in the Haren Pandya murder case was surprising. On August 29, 2011, the Gujarat high court reversed the lower court’s “perverse and illegal” verdict and acquitted all the accused.
In the wake of this acquittal and the indictment of the Central Bureau of Investigation’s (CBI’s) work by the high court, there is every reason to believe that the real murderer of Gujarat’s former home minister may have got away with the actual weapon used being nowhere in evidence. The killer could be a lone wolf assassin, hit man for a gang or a group of conspirators, or an instrument of a terror revenge group linked to rabid clerics as well as criminals, perhaps even with cross-border links. Worse, underlying the murder mystery could be a fraught maze involving gangsters, politicians, police officials, businessmen and dirty money, all bound by the common interest to subvert the justice system and suppress the truth about the killing.
It is now suspected that Pandya’s murder on March 26, 2003 – first clubbed with and, later, effectively delinked from the attempted murder of Vishwa Hindu Parishad (VHP) leader Jagdish Tiwari on March 11, 2003 – may well be connected to the fake encounter killing of Sohrabuddin Sheikh in 2005.
Case for reinvestigation
The facts of the prosecution case, the fiction surrounding it, the loose ends, unsustainable material evidence and the doubts over the killer and the weapon raise a number of questions that add up to a compelling case for reinvestigation of Pandya’s murder.
It may be recalled that from the time Haren Pandya’s body was found riddled with bullets, his father Vithalbhai Pandya has been maintaining that his son’s murder was a political killing and the assassins were still at large. Pandya, as was common knowledge, had a serious falling out with then chief minister Narendra Modi in 2002. Vithalbhai had moved up to the Supreme Court for reinvestigation of the case. However, the court declined his plea at that stage. Presumably because the trial court had recorded a conviction in the case and the verdict was challenged before the high court.
Now, after the high court has castigated the investigation as “botched up and blinkered”, in September, Haren Pandya’s widow, Jagrutiben, moved the high court for an order of reinvestigation. Even as her petition is pending, the CBI has, on November 25, 2011, challenged the acquittals in the Supreme Court. Strangely, the Gujarat government, too, has challenged the high court judgment in the Supreme Court. The locus of the state government is doubtful in the face of a recent Supreme Court ruling – in the Lalu Yadav case – that once a case has been handed over to the CBI, it is for that agency to appeal an acquittal. Since the state government had handed over the case to the CBI two days after the murder in March 2003, its unusual interest has raised eyebrows.
The bare facts are beyond dispute. That fateful morning, around 10:30 am, Pandya’s friends found him slumped in his Maruti 800 outside the crowded Law Garden, where he used to go for a walk. The car’s three windows were all rolled up, but the driver’s window was open three inches from the top. These friends were never brought to the witness box by the CBI. So the court remained in the dark about the position in which his body was first seen. The police came to the spot at 11 am and took Pandya to the nearby VS Hospital. Around noon he was declared dead and a post-mortem carried out. His body had seven bullet wounds and five bullets inside it. All seven injuries had black margins (the holes in his clothes corresponding to the bullet wounds showed gunshot residue) signifying the entry of seven bullets. Four injuries went downwards from right to left. The fifth one had entered the lower part of his left scrotum and travelled diagonally across to the back of his right chest muscles. There was a bullet entry on the back of his right index finger and a horizontal slash on the forearm just short of the wrist.
There was no trace of blood on the seat where he was found though his scrotum was shot through. There was no trace of blood in the car, save a minuscule drop on the adjacent seat. The car had not a scratch; nor any bullet or gunshot residue. A witness produced at the trial claimed to have seen the shooting around 7:30 am.
Web of fact and fiction
Now for the tangled web of fact and fiction. Acting on a tip-off, the local crime branch arrested four young men on April 3, 2003. Later these men were to tell the CBI that they were complicit in the murder carried out at the behest of a rabble-rousing cleric Mufti Sufiyan. Curiously, on the eve of the arrests, Sufiyan vanished. His call records showing an Ahmedabad location abruptly stopped on 2 April 2003. His family, which was under surveillance by both the crime branch and the CBI, also disappeared without a trace. Speculation is that they are in Pakistan.
The four arrested men named Asghar Ali in Hyderabad as the killer. Upon his arrest, Asghar Ali (the first accused) pointed to a house in Ahmedabad where the CBI found a revolver, which it claimed matched the five bullets from Pandya’s body. Terming the murder as part of a larger Muslim terror conspiracy to avenge the 2002 post-Godhra riots, the CBI invoked the POTA to record confessions from 12 persons who had been hauled in from Ahmedabad and Hyderabad.
The so-called eyewitness, the weapon and the confessions were the mainstay of the CBI case, which the trial court accepted. But even the trial court, which unhesitatingly accepted other aspects of the prosecution case, could not bring itself to accept the credentials of the ballistic expert or his report of a weapon match. It went instead by the broad probability of the eyewitness account and the confessions.
In sharp contrast, the high court trashed the prosecution case. It is impossible to shoot a target (sitting inside a small car) through the scrotum upwards to the right from a window on the right; more so, when the opening is three inches as the photographs showed and the so-called eyewitness claimed. The description (white metal, indicating jacketed bullets from a pistol, and not a revolver) and the number of bullets as recorded in the post-mortem report did not match that in the ballistic report. The manner of firing recorded in the confessions strained credibility. There was no convincing explanation for Sufiyan’s escape and the absence of blood and other marks that should be found when bullets are fired in a closed space.
The high court noted that the injuries indicated two weapons and arguably another assailant. “The careful and meticulous mention of only five gunshots throughout the relevant evidence for the prosecution and even in the retracted confessions (of six of the accused) made the whole prosecution case a possibly well-orchestrated concoction of a story away from the whole truth of the matter”.
Questions for the CBI
The first and most important question is: Why did the CBI risk presenting such an incredulous case? Is it because something about the actual manner of firing and matching weapon(s) would have pointed to quarter(s) best kept out of the scene?
Two, the CBI disclaimed all knowledge of one of Pandya’s phones, which was under surveillance. From the other phone, found in the dead man’s car, no calls or messages were noted; and, mysteriously enough, the call records obtained from the service provider went missing from the files. This is intriguing, to say the least.
Three, it is baffling why Jagrutiben, who could have given evidence about Pandya’s phones, the time of his leaving the house on that morning and much else was kept out of the witness box. Jagrutiben herself and police officers like Sanjiv Bhatt now suggest that Sohrabuddin and Tulsiram Prajapati, once close to Gujarat’s ruling dispensation and later eliminated, were behind Pandya’s killing. Former home minister Amit Shah, senior police officials, D G Vanzara and Abhay Chudasama, are already in the dock for the killing of Sohrabuddin, with whom they were allegedly involved in extortion rackets. Vanzara and Chudasama are in jail and Amit Shah is out on bail.
Four, in September 2010, another wing of the CBI probing the Sohrabuddin and Prajapati killings had hinted at a connection between the murders of Pandya and Sohrabuddin. The CBI recorded a statement of one Azam Khan, to whom Chudasama is said to have admitted to protecting Sohrabuddin in the Pandya investigation. Azam Khan, who was shot at in Udaipur soon after this statement, was quick to retract it, presumably in fright.
Five, Pandya’s case record reveals a second and even more disquieting connection between gangsters and clerics. Udaipur was Sohrabuddin’s operating ground, and he was associated with the Latif gang, too. Usman, scion of a family of Latif loyalists and whose father and uncles had either killed or been killed in Latif’s cause was produced at the trial as the man who hosted Asghar Ali in Udaipur in January 2003. Usman talked of visits by Mufti Sufiyan to his Khanjipeer house in Udaipur, which is a small locality where Sohrabuddin had also stayed.
Six, far from laying bare these two links as would be expected, the CBI did everything to cover up the Udaipur connection. It did not permit Usman to reveal his address when he appeared as Prosecution Witness 29 in the Pandya trial. Who were they hiding the address from? Surely, it could not be Asghar Ali, who had supposedly stayed in that house. Somehow the Udaipur link and, therefore, Sohrabuddin’s role was kept under wraps in this case until November 2005 – when he was eliminated – and after.
Seven, the CBI has failed to come up with convincing motives for the murders of Pandya and Sohrabuddin. There are no takers for its two theories of Muslim terror revenge in the Pandya case and of an extortion racket resulting in the Sohrabuddin murder. Reports are that in the course of a 22-month-long Sohrabuddin investigation, the CBI has not even questioned the traders who were allegedly his victims. This CBI “lapse”, according to credible newspaper reports, has given rise to suspicion that Sohrabuddin was done away with because he knew too much about Pandya’s murder.
Eight, the CBI has not investigated many other clues, including those that may reveal a motive. There are pointers to possible motives in Jagrutiben’s petition for a reinvestigation. She cites the Modi government’s order for surveillance of Pandya’s phone because of his testimony to the Krishna Iyer Commission on the 2002 communal riots. She also mentions the Sohrabuddin connection to the Pandya case as also the fact that Sanjiv Bhatt as Sabarmati Jail superintendent said he had information about Prajapati’s involvement in Pandya’s murder. Indeed, Jagrutiben says that the time at which Pandya left the house on his last day completely demolishes the CBI version.
Clearly, there is no dearth of leads if the CBI chooses to reinvestigate the murders in right earnest.
The Special POTA Court had, while endorsing the CBI case, observed that the only valid purpose that Jagrutiben could have served was to have “averted such absurd theory (sic)” about the circumstances of Pandya’s death. It happens, however, that far from averting any challenge to the CBI theory, Jagrutiben’s name leads all the rest in the demand for reinvestigation.
Shastri Ramachandaran is a political and foreign affairs commentator based in New Delhi.
This article was originally published in the Economic and Political Weekly on December 24, 2011 and is republished here with permission.