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COMMENTARY To a layperson, the image of a criminal The Haren Pandya Judgment: investigation comes from watching films and television. While investigators are Dissection of a Botched usually portrayed as sleuths who can fig- ure out the clues and catch the culprit Investigation with one breathtaking deduction after an- other, there is another genre of cinema, especially in Hindi cinema, where the in- Sarim Naved vestigators are portrayed as being clumsy and unfortunately buffoonish. This case The acquittal of the 12 accused he Haren Pandya murder case, brings the latter image to mind. in the 2003 murder of Gujarat which attracted a degree of cover- The case made by the prosecution is as Bharatiya Janata Party leader Tage and scrutiny owing to the high- follows: Haren Pandya left his house on the profile status of the victim who was a senior morning of 26 March 2003. He was going Haren Pandya brings out all that leader of the state unit of the Bharatiya Ja- to the Law Gardens in Ahmedabad for his can go wrong in high-profile cases nata Party and earlier also a minister in morning walk, and he took his car, a white where “terrorism” is invoked to the state government, serves as a reminder Maruti, to go from his home to the Law convict those who are rounded up of many fundamental facts about our Gardens. As he reached his destination criminal justice system. and parked his car, a man came and shot for a criminal act. Investigation First, the Gujarat High Court’s acquittal him through the window of his car. This and prosecution end up becoming of all the accused is a strong statement window was partially open, and five shots an exercise to prove a theory, against the existing investigative tech- were claimed to have been fired at Pandya not necessarily to find out the niques where scientific and technological who had been driving the car himself and scrutiny is ignored in favour of unreliable was alone in the car. The prosecution claimed truth. Even if a reinvestigation is witnesses and so-called confessions. to have an eyewitness who could testify to ordered of the Pandya murder, Second, it is a reminder that laws like the seeing Mohd Asghar Ali (Accused No 1 in it is now unlikely that the guilty Prevention of Terrorism Act 2002 (POTA) this case) shoot Haren Pandya. The inves- will be brought to book. can have a dangerous effect on the admin- tigators then figured out that there were istration of justice by allowing investiga- 11 other individuals who had been part of tors to become complacent and theorise this conspiracy and arrested them as well. on the basis of insufficient information A straightforward case as it stands, but and (often forced) confessions instead of one that turned out to be completely at seeking actively and persistently to find variance with the evidence collected. out what really happened. Third, it affirms the fact that public safety as well as state Lapses in Investigation security cannot be assured by a system First, the Central Bureau of Investigation which takes eight years to exonerate 12 (CBI), which was drafted in as the investigat- persons of the crime of murder, for the ing agency for the case, failed to examine simple reason that this delay has ensured Pandya’s wife and the members of his that the real culprits are now hardly likely family to ascertain the simple fact of the to be identified. time at which he left his home. This became In the words of justice D H Waghela, who crucial when the eyewitness, a small vendor spoke on behalf of a Gujarat High Court operating from a handcart nearby, made a bench consisting of himself and justice number of self-contradictory statements in J C Upadhyaya (in para 23 of the judgment). his deposition before the trial court. He was confused about when he saw the car What clearly stands out from the record of the present case is that the investigation in the coming, about the details of the shooting case of murder of Shri Haren Pandya has all and could not explain satisfactorily as to throughout been botched up and blinkered when his statement was finally recorded. and has left a lot to be desired. The investi- The police personnel present on the day of gating officers concerned ought to be held the incident and later the CBI also failed to accountable for their ineptitude resulting into injustice, huge harassment of many persons produce records of Pandya’s phone calls Sarim Naved ([email protected]) is a concerned and enormous waste of public re- on that day which would not only have Delhi-based practising lawyer. sources and public time of the courts. provided evidence of his movements but 10 september 17, 2011 vol xlvI no 38 EPW Economic & Political Weekly COMMENTARY would also have helped them to figure out untenable and, indeed, impossible. Further, invoked, all the accused confessed, only to the time of death by ascertaining the time the forensic team which examined the spot retract later. The high court has noted in at which he stopped answering his phone. found no traces of cartridges near the car and its judgment that some of the accused had Of course, the accused might still have been no traces of gunshot residue on the car. Un- only confessed to the conspiracy regard- convicted if the CBI had been able to link less the assailant carefully cleaned up after ing the attempted murder of Jagdish the accused, at the very least, to the scene himself, this would not have been possible. Tiwari, but such confessions were also of the crime. A perusal of the judgment, Further, the number of bullets fired by the sought to be used for the Haren Pandya however, shows that the forensic evidence assailant did not match with the number murder. It was observed by the high court collected actually proved that the sequence of injuries. To add insult to injury, even the that the alleged confessions clashed with of events suggested by the prosecution bullets that were examined by the ballis- the other evidence on record, as far as could not possibly have happened. tics expert did not match with the bullets the main accused were concerned. Apart that had been extracted from the body. from this, those who were convicted as The Curious Incident of Injury No 7 co- conspirators and against whom there Different witnesses have testified that the Confessional Statements was no direct evidence in the first place, window on the driver’s seat was open, but The prosecution’s evidence having been had allegedly confessed that they had only to a slight degree. Witness statements disproved, the only factor left in favour of the participated in the conspiracy as Pandya range in their estimates, but the version prosecution was the confessions recor ded had led a mob in the 2002 riots and had accepted by the trial court was that the by the accused. The appeal in the high court attacked a mosque. Regarding this facet, window was open a little, almost “to the against the sessions court judgment did not the high court has observed (in Para 17.3): measurement of a palm”. This became a deal only with the Haren Pandya murder There was no material whatsoever to sub- crucial factor because, as per medical evi- case, it also dealt with an attempt on the stantiate that Shri Pandya had, in fact or in dence, one of the injuries to Pandya could life of one Jagdish Tiwari, some 15 days perception of the victims of riots, played a not have happened unless he was shot prior to the murder of Pandya. Jagdish leading role in the riots or caused in any way demolition of any masjid. Therefore, the ob- from a level below his waist. This was Tiwari, a Vishwa Hindu Parishad leader in ject and intent of taking revenge and strik- injury No 7 which was described as Ahmedabad, was fired at on the morning ing terror through his murder was provided External injury No (7) has passed through of 11March 2003 but he managed to survive with no basis except the dialogues narrated skin, subcutaneous tissue, muscles, left testis the attack. He identified Asghar Ali and in the confessional statements. and has entered abdominal cavity through Mohd Shafiuddin (Accused Nos 1 and 3 in pelvis from left lateral of urinary bladder. Bul- Conspiracy and let has found peforated coils of small intes- the Pandya murder case) as the persons tine, ascending colon and has passed behind who had come into his shop and shot at him. the Jagdish Tiwari Case liver through posterior aspect of right ab- Both these cases were handed over to the As such, all the accused were acquitted on dominal wall from 10th intercostal space and CBI for investigation. After these cases were the charge of murdering Pandya and con- is found lodged in chest muscles on back of right chest at 4th-5th ribs region. Vessels and brought under the purview of POTA, the spiracy and abetment thereof. How ever, other tissues coming in plane of bullet are confessional statements of the 12 accused they were all convicted for the attempted lacerated and ecchymosed. Track of bullet is were recorded. Unlike under general murder of Jagdish Tiwari and for conspiring directed upward, slightly right and backward. criminal law, special statutes like POTA (and and abetting that offence. The high court Regarding this injury, Pratik Patel, head the earlier Terrorist and Disruptive Activities has, however, clarified that this conviction of the forensic medicine department at (Prevention) Act as well as the current is not based on merits but based on a con- V S Hospital, who had examined Pandya’s Maharashtra Control of Organised Crime cession from the lawyers for the accused body, had this to say in his cross examination, Act) allow for confessions recorded by senior that they would not press their case 160 Q: What is your view with regard to the police officers to be considered admissible if the appeals were partly allowed on merits injury No 7? evidence.

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