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IN THE HIGH COURT OF AT NEW DELHI CRIMINAL APPEAL NO. 574 OF 2015

In the matter of:

ZULFIKAR NASIR & ORS. … APPELLANTS

v.

STATE OF … RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANTS/VICTIMS IN THE APPEAL

Most Respectfully Submitted:

A. That the present case relates to a horrific incident of targeted abductions and killings of around 42 Muslim men, by officials of the Provincial Armed Constabulary, a reserve police force of the State of Uttar Pradesh, on the night of 22.05.1987. The evidence led in the case, leads to the inescapable conclusion that the victims belonging to one community were deliberately and brutally killed by men in uniform.

B. The Appellant No. 1 to 3 are victims/survivors of the incident, who had been abducted by the Provincial Armed Constabulary (hereinafter referred to as ‘PAC’). Appellants No. 4 to 27 are family members of the persons who were killed in the incident in the present case.

C. The present appeal has been filed under Section 372 of the Code of Criminal Procedure, 1973, against the Judgment of the Learned Trial Court dated 21.03.2015, whereby the court acquitted all the accused (Respondents No. 2 to 17) in the present case.

BRIEF FACTS

1. The case of the Prosecution is that in the month of May 1987, communal riots had taken place in District of Uttar Pradesh and consequently, the police and military were posted there for riot control and security, including the C-Company of the 41st Battalion of the PAC. The nineteen accused persons in the present case were all officers of the C-Company of the 41st Battalion of the PAC and the Company

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Commander of the C-Company was accused Surinder Pal Singh (now deceased).

2. It is the case of the Prosecution that on Friday, the 22nd of March 1987, officers/jawans of the C-Company of the 41st Battalion of the PAC i.e. the accused/Respondents No. 2 to 17, abducted around 42 unarmed young boys and men, all Muslims, from Hashimpura Mohalla of Meerut, and put them in a yellow coloured PAC truck.

3. It is further their case that this truck was taken to Gang Nehar in Muradnagar and three of the abducted persons were shot at and these bodies were thrown into Gang Nehar canal. Seeing this, the remaining abducted persons in the truck began screaming for help, at which point, the PAC jawans began to fire indiscriminately, inside the truck. At that time, one jawan of the PAC, Leela Dhar, sustained injuries on account of the firing that took place inside the truck. He got himself treated at the SVBP Hospital, Meerut, the next day i.e. on 23.05.1987 at around 10:30 am. Four of the abducted persons survived these shootings, including one Muzib-ur-Rehman, on whose statement, FIR No. 141/87 (Ex. PW-4/A at Page 1439), P.S. Muradnagar, was registered.

4. On seeing the approaching lights of another vehicle, the truck was taken by the PAC jawans to Hindon Canal near Makanpur Village, where the remaining persons were shot at and their bodies were thrown into the canal. One person, Babudeen, survived both these incidents of shootings, and on his statement, FIR No. 110/87 (Ex. PW- 11/DA, Page 1257), P.S. Link Road, , was registered.

5. It is further the case of the prosecution that after carrying out these killings, the yellow coloured PAC truck was taken to the Motor Transport Section of the 41st Battalion of the PAC in Ghaziabad, Uttar Pradesh, where the truck was thoroughly washed in an attempt to destroy evidence.

6. The indiscriminate firing by the PAC jawans inside the truck created dents and a hole in the body of the truck, which was subsequently covered by welding an iron patch over it.

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THE EVIDENCE LED BY THE PROSECUTION TO SUBSTANTIATE THE ALLEGATIONS

A. EVIDENCE OF ABDUCTION AND MURDER BY OFFICIALS OF THE PAC

The incident of abduction and murder by officials of the PAC, stands proved from a reading of the evidence of PW-1 Zulfikar Nasir, PW-2 Mohammed Naeem, PW-3 Mohammed Usman, PW-4 Muzib-ur-Rehman and PW-11 Babudeen, who were all young boys/men aged between 16-18 years of age, at the time of the incident. All of them (except PW-2, Mohammed Naim) are injured witnesses, and all these witnesses survived despite being shot at by the accused persons. This elevates them to the category of natural, truthful and uninterested witnesses.

From a combined reading of the evidence of the above witnesses, the following facts stand proved beyond any doubt:

1. That in the month of May 1987, communal riots had erupted in Meerut District, Uttar Pradesh.

2. That on the evening of 22.05.1987, officials of the PAC as well as other security forces, rounded up persons belonging to the Muslim community in Hashimpura Mohalla, Meerut, near a peepal tree in the Mohalla.

3. That personnel belonging to the PAC, Army and Police divided the gathered people of Hashimpura Mohalla into two groups, the first comprising of elderly men and young boys, while the second comprised of young men. The group of young men were made to sit in different trucks by the PAC and the Army officials, and were taken away from Hashimpura Mohalla. Some of these persons were taken to P.S. Civil Lines and Police Lines, Meerut and released several days later.

4. That PAC officials/jawans wearing ‘khaki peeli’ coloured uniforms and armed with rifles with ‘sangeens’ (bayonets), gathered about 40-45 men and young boys from the first group, and made them board a yellow coloured truck with ‘PAC’ written on it. About 18-20 PAC jawans also got into the same truck, and the truck began moving away from the Mohalla, towards Delhi Road, and after travelling some distance, the

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truck stopped for some time, and then started moving again. After about 1-1.5 hours, the truck reached the patri of Gang Nehar, Muradnagar, and after travelling for about 1-1.5 km on the patri, the truck was brought to a halt and the lights of the truck were switched off.

5. After stopping the truck, the accused persons started bringing down the abducted persons from the truck one by one. First, one Mohd Yasin, resident of Hashimpura Mohalla, was brought down from the truck, fired at by the accused persons, and his body was thrown into the Gang Nehar canal by them. Next, a boy named Ashraf was brought down from the truck, fired at by the accused persons, and thrown into the Gang Nehar canal. The third person to be brought down from the truck was PW-1 Zulfikar Nasir, and he was also shot at by the accused persons and thrown into the waters.

6. At the time when PW-1 Zulfikar Nasir was being shot, the abducted persons inside the truck began shouting ‘BACHAO BACHAO’. Seeing this, the accused persons present inside the truck began firing at the persons inside the truck and in the process many persons sustained bullet injuries, including PW-3 Mohammed Usman, PW-4 Muzib-ur- Rehman, and PW-11 Babudeen and Leela Dhar, one of the accused himself. After this, the accused persons began throwing the bodies of these injured/killed persons into the waters and in this manner around 15-16 bodies were thrown into the canal by the accused persons, including those of PW-2 Mohammed Naeem, PW-3 Mohammed Usman and PW-4 Muzib-ur-Rehman, assuming them to be dead.

7. Upon noticing the headlights of an approaching vehicle, the accused persons stopped firing and the truck was driven back towards the main road. After about 30 minutes, the truck was again stopped on the ‘pul’/culvert of Hindon canal, near Makanpur village. The accused persons got out of the truck and opened the dala (back) of the truck. They again began to bring down the abducted persons from the truck one by one and fired at them. In this manner, the accused persons fired at about 15-20 persons and threw their bodies into the canal waters. PW-11 Babudeen was also shot at in this manner and assuming him to be dead, his body was thrown into the canal waters, where he was subsequently discovered by PW-13 and PW-14.

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These facts have emerged from the consistent depositions of PW 1 to 4 and PW 11, and the same can be read from their evidence on the following pages:

 For PW-1 Zulfikar Nasir (Pages 8 to 10)

 For PW-2 Mohd Naseem (Pages 23 & 24)

 For PW-3 Mohd Usman (Pages 37 to 40)

 For PW-4 Muzib-ur-Rehman (Pages 50 to 52)

 For PW-11 Babudeen (Pages 76 to 80)

That, the credibility and truthfulness of these witnesses is further strengthened from the fact that these witnesses suffered bullet injuries when they were fired upon by the accused persons. The injuries sustained by PW-4 and PW-11 was noted by the Trial Court upon visual examination during the recording of their evidence (Pages 52, 79 & 80, where the injuries have been shown and the factum of the old scar marks on their bodies have been recorded). Please refer to the MLC of PW-3 i.e. Ex. PW- 3/1 (Page 1441) and Ex. PW-3/2 (Page 1442), seizure memo of blood stained banyan i.e. Ex. PW-11/A (Page 1168) and the dying declarations of PW-11 i.e. Ex. PW-11/DB (Page 1335) and of PW-4 i.e. Ex. PW-4/DA (Page 1167) recorded on 23.05.1987.

Thus, the incident of 22.05.1987 can be divided into two separate incidents:

1) First Incident – The incident that took place at the Gang Nehar in Muradnagar, which can be further divided into two parts:

a. The shooting of three persons namely Mohd Yasin, Ashraf and PW-1 Zulfikar Nasir, and throwing their bodies into the Gang Nehar canal.

b. The indiscriminate firing inside the PAC truck causing injuries and death of several abducted persons and causing grievous injury to accused Leela Dhar.

2) Second Incident – The incident that took place at Hindon canal, near Makanpur Village, of firing at abducted persons including PW-11 Babudeen and throwing their bodies into the canal.

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8. From a reading of the evidence of PWs 1, 2, 3, 4 and 11 and other prosecution witnesses, it can be reasonably inferred that close to 40-45 persons were abducted in the incident and all except 5 of them were killed by the PAC officials. The following list of 38 persons, either survivors, dead, or missing, emerged from the testimonies of the witnesses and the identification memo Ex. PW 23/A:

SURVIVING PERSONS

Name Witness to Abduction

1. PW 1, Zulfikar Nisar PW 58, Abdul Alim PW 53, Jamalludin

2. PW 2, Mohd. Naeem

3. PW 3, Mohd. Usman PW 4, Muzib-ur-Rehman

4. PW 4, Muzib-ur-Rehman PW 3, Mohd. Usman

5. PW 11, Babu Deen PW 4, Muzib-ur-Rehman

DECEASED PERSONS IDENTIFIED BY WITNESSES

Name of Deceased Witnesses to Abduction of Deceased

6. Mohd. Iqbal s/o Dil PW 21, Zaibunissa (wife of Mohd. Iqbal) and Alua Sher Khan (brother of Mohd. Iqbal) as per Ex. PW 23/A

7. Islamuddin s/o PW 19, Iqbal (brother of Islamuddin) Hafizuddin

8. Javed s/o Zahir PW 22, Abdul Hamid (uncle of Javed), and PW 77, Ahmed Hazara (aunt of Javed), PW 78, Zarina (mother of Javed) (also see Ex. PW 23/A)

9. Ayub s/o Zaeed Aziz and Mohd. Ilyas, as per Ex. PW 23/A

10. Naeem s/o Noor. PW 20, Mohd. Saleem (brother of Naeem) and Mohd. Salim Abdul Aziz (neighbour of Naeem), as per PW 23/A

11. Alauddin s/o Azidam (mother of Alauddin) and Gaffar Hafizuddin (neighbour) as per Ex. PW 23/A

12. Akil s/o Azimuddin PW 23, Shakeel Ahmad (brother of Akil) and Shakeel, as per Ex. PW 23/A

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13. Jamshed s/o Zainuddin (father of Jamshed) and Arif as per Ex. Zainuddin PW 23/A

14. Rizwan s/o Inamulla Naseem (mother of Rizwan) and Afroz (sister of Rizwan) as per Ex. PW 23/A

15. Munne s/o Alladia Nanua and Mohd. Ilyas as per Ex. PW 23/A

16. Hafizuddin s/o Qutubuddin and Dilshad, as per Ex. PW 23/A Munshi

LIST OF PERSONS ABDUCTED BUT DEAD BODIES NEVER FOUND

Name Witnesses to Abduction

17. Naim s/o Abdul PW 22, Abdul Hamid (father) Hamid PW 77, Hazara (mother)

18. Mohd. Yasin (please PW 1 Zulfikar Nasir see paragraph 12 PW 2, Mohd. Naeem on Page 9) PW 25, Mohd. Akhlaq (son)

19. Nizamuddin s/o PW 31, Gaffar (brother) and PW 30, Shakeel Abdul Shakul Ahmed, and also as per Ex. PW 23/A

20. Qadir Ahmed PW 48, Jamil Ahmed (son) PW 55, Dr. Zahiruddin Ansari

21. Khadir PW 49, Mehmuddan (wife)

22. Hazi Shamim PW 50, Laik Ahmed (brother) Ahmed s/o Wali PW 51, Mehrunissa Mohd. PW 55, Dr. Zahiruddin Ansari

23. Hazi Mustqeen PW 52, Rahis Ahmed (son) PW 60, Tanveer (son) PW 58, Abdul Alim PW 62, Sher Ali, Tailor

24. Qamruddin (please PW 1 Zulfikar Nasir see paragraph 11 PW 2, Mohd. Naeem on Page 9) PW 53, Jamalludin (son) PW 54, Parvez Ahmed

25. Sadruddin s/o PW 63, Fariduddin (brother) Mohd. Ali Ullah PW 55, Dr. Zahiruddin Ansari

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26. Mehtab s/o Jaffar PW 61, Jaffar (father)

27. Zahir Ahmed PW 78, Zarina (wife)

28. Mohd. Haneef PW 87, Mohd Isa (cousin)

29. Azim PW 11 Babudeen

30. Kausar Ali PW 4, Muzib-ur-Rehman PW 11 Babudeen

31. Hansalauddin PW 11 Babudeen

32. Arif PW 1 Zulfikar Nasir

33. Sarfaraz PW 1 Zulfikar Nasir

34. Mehboob Ali PW 1 Zulfikar Nasir

35. Hanif PW 1 Zulfikar Nasir

36. Mohd. Azeem PW 4, Muzib-ur-Rehman (nephew of Mohd. Azeem)

37. Mohd. Kauser PW 4, Muzib-ur-Rehman (nephew of Mohd. Kauser)

38. Ashraf PW 1, Zulfikar Nasir

8. That the evidence of PW-86 Praveen Jain, an independent photographer and journalist, and the photographs exhibited by him, Ex. PW-86/A1 - A15, also corroborate the testimonies of PW 1 to 4, PW-11 and many other witnesses, that persons were abducted from Hashimpura Mohalla by the PAC officials on 22.05.1987. Importantly, some of the survivors have also identified persons known to them, from these photographs.

9. That as per the Post Mortem examination reports of the dead bodies, they were of “unknown persons”. This is because during investigation, no identification of the dead bodies was carried out by the prosecution since the police never showed the dead bodies to the families of the deceased/missing persons. The only identification that was carried out was through photographs of the dead bodies and the clothes worn by the dead persons at the time of their discovery, via identification memos Ex. PW-23/A and Ex. PW-62/A.

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10. That however, during the recording of evidence in the present case, deceased/missing persons were identified by the witnesses from the photographs exhibited by PW-86 Praveen Jain.

11. That it is submitted that the case of the deceased Qamruddin can be examined to prove the manner in which bodies were identified by witnesses. Qamruddin was abducted and killed in the present incident as per the testimony of PW-1 (Page 11) and PW-2 (Page 24), who have deposed that Qamruddin was in the truck and was shot by the PAC officials in the incident. PW-1 has identified the dead body of Qamruddin (Mark F, Page 2690 in the PDF of the Trial Court Record). His father PW-53 Jamaluddin has also deposed that his son was made to board a PAC truck along with other persons. They thought they were being taken to PS Civil Lines. However, 10-12 days later, the statement of Zulfikar Nasir was published in Jansatta newspaper wherein it was mentioned that his son Qamruddin had been shot dead. He stated that thereafter he went to Ghaziabad and filed a complaint (Ex. PW-53/A at Page 1177) with the SSP, Ghaziabad, in this regard. A perusal of the said complaint dated 03.06.1987 shows that he had complained about the abduction of persons namely Zulfikar, Mohd. Yasin, Sirajuddin, Mujib-ur-Rehman, Mohd. Usman etc. and his son Qamruddin, on 22.05.1987 by the officials of the PAC and military. It has been stated that they did not know where the said persons were taken. He tried searching for his son but could not find him. It has also been stated that on 31.05.1987, he came to know that some PAC officials had shot and killed the persons taken away by them. It has been stated that thereafter on 02.06.1987, he came to know about the death of his son from the statement of PW-1 Zulfikar Nasir as published in Jansatta newspaper.

12. That it is also evident from a reading of the evidence of PW-53 that he was never shown the dead body of Qamruddin, but instead, he was only shown a photograph of his dead body at PS Murad Nagar, where he identified the same. This appears to be the common practice adopted by the police and this is the reason why the post mortems, all conducted on 25.05.1987 prior to identification, refers to the bodies as “unknown persons”.

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13. That similarly, the case of deceased Mohd. Yasin also corroborates the manner of identification conducted by the police. Yasin was a resident of Hashimpura Mohalla and as per the evidence of PW-1 and PW-2, he was the first person who was brought down from the truck and killed. He has also been identified by PW-1 from the photograph Ex. PW-86/A-11. His son PW-25 has also deposed that his mother had filed a complaint regarding the abduction of his father.

14. That thus, it is evident that the identification of the deceased could not take place since the police never produced the dead bodies before their family members and they were left to identify their loved ones through clothes worn by them or through the photographs. In the facts and circumstances stated hereinabove, it is amply clear that family members of the deceased identified them in a manner chosen by the police but benefit of the same cannot be given to the accused Respondents.

B. EVIDENCE AS TO CAUSE OF DEATH AND TIME OF DEATH OF THE RECOVERED DEAD BODIES

1. The Post Mortem Doctors who examined the dead bodies recovered from Muradnagar, Makanpur, Kalyanpuri etc, i.e. PW-5 Dr. S. N. Aggarwal, PW-16 Dr. Jai Prakash, PW-17 Dr. S. C. Mishra, PW-28 Dr. A. K. Sharma, PW-29 Dr. J. Prasad, PW-32 Dr. A. K. Rathi, PW- 71 Dr. M. K. Singhal.

2. That in their testimonies, these witnesses have categorically stated the following:

a. The time of death coincided with the time of the commission of the offence.

b. The cause of death was shock and haemorrhage caused by ante-mortem bullet injuries. They have also observed blackening and tattooing marks around the wounds caused by the bullet injuries.

c. The Post Mortem reports have identified as the bodies as those of muslim men.

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C. EVIDENCE REGARDING TRUCK NO. URU 1493 USED IN THE INCIDENT

1. That during the recording of additional evidence pursuant to the order of this Hon’ble Court dated 20.02.2018, PW-72 proved Ex. PW-72/A, the GD Entry Register dated 22.05.1987 of the C-Company Post, Police Lines, Meerut. In the said register, Entry No. 6 at 7:50 am records the departure of the accused persons from the Police Lines, Meerut and it is reproduced as under:

1 2 3

6/750 रररररर रर रर रर रर ररर रर रर रररर रररररर ररररर रररर ररररररररर रररर रररर रररररररर रररर रर रररररर रररररर ररर, रररर रररररर

रररर, Ct. रर रररररर, रर. रररररररर, Ct ररररर, Ct रररर

रररररर, HC

ररररररररररररररर, HC

ररर रररर, Ct रररररररर, रर. ररररर

ररररर, Ct रररररर, Ct रररररर रररर, HC ररर ररररर, Ct ररररररर 42,

Ct रररररर रररर, रर

रररर ररररर ररर ररर 15 ररररर 850 ररररर र: रररररररररररर रररररर 1 रररररररर 30 रररर ररररर रर रररर रर.रर.रर. 1493 रर. ररररर रररर रर रररररर रररर OP ररररर ररररररर रररर रररररर ररर

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ररररर ररररर ररर |

हहहहहहहहह हहहहहह हहहह

In his cross-examination, PW-72 has deposed (Page 246D), “According to GD No. 6 (part of Ex. PW-72/A), on 22.05.1987 at 7:50 am police force was sent to Out Post Pilokhadi, PS Lisadi Gate, Meerut, UP. According to GD No. 6, PC Surender Pal Singh alongwith his section having H Ct. Niranjan Lal, Naik Rambir Singh, Ct. Om Prakash, Ct. Shami Ullah, Ct. Jai Pal, Ct. Mahesh Prasad, H Ct. Suresh Chand Sharma, H Ct. Kamal Singh, Ct. Ram Dhyan, Ct. Sarwan Kumar, Ct. Leela Dhar, Ct. Hambir Singh, H Ct. Kush Kumar, Ct. Kunwar Pal, Ct. Budha Singh and Ct. Basant Ballabh went to Out Post Pilokhadi. As per the said GD, at that time they were having 17 rifles, 850 rounds, one revolver with 30 rounds, and they had gone there in the truck bearing registration no. URU-1493 and the name of the driver of the said truck was Ct. Mohkam Singh.”

2. That vide Entry No. 15 recorded at 9 pm, the said officials of the PAC returned to their post at Police Lines, Meerut, and the said entry is as under:

1 2 3

15/2100 ररररर रररररर OP रर ररर PC रररर ररररररर रररररररररररर रररर रर रर ररर No 9 रर रर रररर

ररररररर रररररररररर रररर OP ररररररररर रररररर ररररर ररर रर

ररर रररर ररररररर रर

ररररर रररर रर ररर रररररर ररररररर ररररररर रररर

ररररररररर रररररररर ररररर रर

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रररररररररररर ररर रररर ररर | PC रररर रररर SP रररर रर ररररर रररररर ररर ररररररर ररररर ररर रर|

हहहहहहहहह – हहहहहह हहहह

Thus, it is clear that the C-Company of the 41st Battalion, of the PAC, headed by the Platoon Commander Surender Pal Singh were given truck no. URU 1493 for riot duty on 22.05.1987.

3. That the fact that URU 1493 had been used by the accused persons to abduct and murder the victims on the night of 22.05.1987 is confirmed by PW-70 Ram Chand Giri, then SI, Motor Transport Section, of the 41st Battalion, PAC, Ghaziabad, who has exhibited the running register of vehicle URU 1493, as Ex. PW 70/A (Page 1394), where each arrival and departure entry of the said truck was maintained for the period between 03.01.1986 to 30.06.1988. In the register entry for the date 22.05.1987, it can be seen that the truck was in Meerut on that day and that the route taken by the truck, is through various areas of Meerut including Hashimpura Mohalla. The truck was stated to be on “riot duty”. The truck running register of URU 1493, for date 22.05.1987, which is reproduced as under:

रररररर रररर रररर रर रर ररर ररर DG रररर ररररर रर रररर रररर रर CBG रर रररर रररर

22.5. ररररर PS 86524 82 86606 रररररर PC रररर 1987 रररर ररररररर रररर ररररररररर रररर ररर रर OP रररररर रररर रररररररर रररर रर रररररर रर

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रररररररर रर रररररररर ररर रर ररररर रररर रर PS ररर रररररर रर ररररररर ररर रर रररररररर रररर रररर रर रररर रर रर रररर

4. That URU 1493 was used by the accused Respondents, is further corroborated by Ex. PW-91/A (the list of officers posted with the C- Company). It is revealed from this document that Mohkam Singh was the driver of truck URU 1493 being used by the company on 22.05.1987.

5. That Ex. PW-38/C (Page 1353) is the FSL examination report of the Truck No. URU 1493 and this report reveals that a 6x6 inch metal patch was welded at the back side of the truck to cover a hole in its body. It also notes two dents/depressions in the body of the truck, one on the front left side, and one behind the driver’s seat. The report has opined that these depressions/dents can be caused by the hitting of a projectile. However, no blood or chemical residue could be detected in the truck as the prosecution had failed to seize the truck soon after the incident and send it for FSL examination. The truck was examined on 04.01.1988 as per Ex. PW-38/C, about 8 months after the incident. Notwithstanding the same, the above findings that emerged during the examination of the truck, incriminates the accused Respondents and it was for them to explain why and in what manner the truck was still

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having, till date, the marks of the incident. In this regard, PW-42 has deposed that the delay in the examination of the truck was due to the fact that it was not available for inspection.

6. The fact that there was a hole in the body of the truck, which was subsequently covered by a metal patch, is also proved through the photographs taken by PW-42 Inspector Badan Singh Yadav, who was the Investigating Officer, in the present case, between 20.07.1988 and 13.06.1989. These photographs are Mark P 42/P-1 to P-13.

7. That a combined reading of the evidence of PW-74 V. N. Rai, PW-75 Kamlendra Prasad and PW-76 Yashpal Talwar, proves that the truck used in the commission of these acts was brought to the 41st Battalion of the PAC in Ghaziabad on the night of 22.05.1987 and it was washed thoroughly, to avoid detection of the crime.

a. That PW-74, V.N. Rai has stated that on the night of the incident he inspected the MT Section of the 41st Battalion and found that the ground was wet and that a truck had been recently washed there.

b. That PW-75 Kamlendra Prasad, then Additional S.P. Ghaziabad has stated (at page 1 of his examination-in-chief dated 31.07.2010) that on visiting the headquarters of the 41st Battalion PAC it could be reconstructed that a vehicle had been washed in the MT Section.

c. That PW-76 Yashpal Talwar, then Adjutant (Deputy SP) in the 41st Battalion PAC posted in Ghaziabad, has stated that on the night of 22.05.1987 they had found a pond near the MT Section and that as a result of the washing of the truck, “reddish water” had collected there. Reference is also made to the deposition of PW-59, then DM, Naseem Zaidi.

8. That in their original 313 statements dated 23.05.2014, the accused persons have denied the use of the truck no. URU 1493 and have even denied their presence at Meerut on 22.05.1987. In this regard, as an example, a reference is made to Q4, Q7, Q14 where questions pertaining to the use of the truck have been asked and the accused Respondents have denied any knowledge of the same. In the last

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question, i.e. Q117, the accused Respondents except Niranjal Lal, Sami Ullah, Mahesh Prasad and Jai Pal, have even denied their presence at Meerut on 22.05.1987. However, in their supplementary 313 statement dated 16.04.2018, all accused Respondents have admitted their presence at Meerut on 22.05.1987 and have also admitted to have used the truck no. URU 1493 on that day. This change of stand exposes the culpability of the accused persons as they admitted to the use of the truck and their presence at Meerut only when confronted with irrefutable evidence in the form of Ex. PW-72/A.

D. EVIDENCE OF FIREARM INJURY SUSTAINED BY RESPONDENT NO. 11 LEELA DHAR

1. That the case of the prosecution is strengthened and corroborated by the MLC of a jawan of the C Company, Respondent No. 11 Leela Dhar, who suffered a bullet injury in the incident.

2. PW-43 Dr. Subodh Tyagi, who was posted as the medical officer in Casualty Ward of SVBP Hospital, Meerut on 23.05.1987, has proved the Casualty Admission Register Ex. PW-43/A (Page 1156) and the relevant medical report of the Accidental Register Ex. PW-43/B (Page 1155), of the Leela Dhar, PAC No. 51769, dated 23.05.1987. As per the said report, the Leela Dhar suffered two injuries, one on the right eye outer side and the other on right side of the chest. Further, as per the MLC of Leela Dhar, Ex. PW-43/B, he was brought by ‘Subedar S.P. Singh’ i.e. deceased accused Surinder Pal Singh, 41st Battalion, PAC, who was the “Company Commander of the C Company”.

3. That it is also mentioned that he sustained an injury caused by a ‘firearm’, and the injury was ‘half a day old’ (he was brought to the hospital on 23.05.1987 at 10:30 am). This firmly places the injury to the time of the indiscriminate firing inside URU 1493 by the C Company jawans, of the 41st Battalion of the PAC.

4. That in his original 313 statement dated 23.05.2014, Leela Dhar denied his posting in Meerut on 22.05.1987 and also denied sustaining any injury as mentioned aforesaid. Thereafter, when his first supplementary 313 statement was recorded (after the recall of PW 43 and the proving

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of Ex. PW 43/B), he has admitted that he sustained an injury but claimed that it was caused by a petrol bomb. Lastly, in his further supplementary 313 statement dated 16.04.2018, he has admitted that he was posted at Meerut on 22.05.1987. Thus, Leela Dhar has taken a shifting defence with regard to the cause of the injury and his posting at Meerut on the date.

5. That it is further to be noted that in the GD Entry No. 15 dated 22.05.1987 in Ex. PW-72/A, all the accused Respondents are said to have returned to Meerut Police Lines. However, there is no mention of the injury sustained by Leela Dhar in the same, which is evidence of concealment of the factum of the injury by the injured accused Leela Dhar and Platoon Commander Surinder Pal Singh.

6. That the said injury to accused Respondent Leela Dhar could have been caused by a stray broken piece of a bullet that ricocheted from the body of the truck at a time when there was indiscriminate firing in the truck.

7. That it therefore, stands proved beyond any doubt, that it was the C- Company of the 41st Battalion, PAC, which was involved in this incident of shooting on the night of 22.05.1987 and Respondent No. 11 Leela Dhar sustained an injury in the said incident. However, in the impugned judgment, the Trial Court held that the medical record of Leela Dhar was not clear and conclusive to connect him with the incident, and refused to read it as a circumstance against the accused Respondents.

E. WEAPON OF OFFENCE

That as per the admitted GD Entry No. 6 in Ex. PW-72/A, the Respondents left the Police Lines, Meerut, with 17 rifles and 850 rounds of ammunition, as well as 1 revolver with 30 rounds of ammunition. Furthermore, Ex. PW-38/A (Page 1332), is the Ballistics Report of the FSL, , which has opined that the bullet (extracted from the body of a victim whose Post Mortem was conducted by PW-16 vide PM Report No. 418, Ex. PW-16/B at Page 1250) appears to have been fired by a 0.303 rifle. All the witnesses to the incident have testified that the PAC

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jawans were carrying rifles with sangeens (bayonets). From the above, it can be inferred that the accused persons were in fact using 0.303 rifles at the time of the incident.

F. THE TESTIMONY OF DW-1 GULESH ALI

1. That DW-1 Gulesh Ali has deposed that he was posted as Mess Munshi at the C-Company, 41st Battalion, PAC, and was posted at Meerut Police Lines on 22.05.1987. He has further deposed that on that day, he went to Pilokhadi Chowki to check the availability of atta. While returning, he returned with the staff which was posted at Pilokhadi Chowki in their truck. On the way back, the truck stopped at Hashimpura Mohalla and there, accused Subedar Surinder Pal Singh (deceased) and other official made 40-45 persons sit in a truck and the said truck was taken to Meerut Police Lines. However, this witness has thereafter deposed that four of the accused persons namely, Niranjan Lal, Sami Ullah, Mahesh Prasad and Jai Pal, as well as he himself, got down from the truck at Meerut Police Lines and went back to their tents.

2. That it is submitted that this Hon’ble Court can rely on the testimony of the DW-1 to the extent that it proves that 40-45 persons were put in the truck by Subedar Surinder Pal Singh and other accused Respondents on 22.05.1987 from Hashimpura Mohalla, and accordingly, what happened to those 40-45 persons were facts especially within the knowledge of the accused persons and the burden to prove what happened to those persons ought to have been discharged by the accused Respondents. The failure to do so, therefore, has to be read as a circumstance against the accused Respondents.

G. OTHER SUBMISSION ON BEHALF OF THE APPELLANT

The Appellants wish to place on record the unimaginable agony and terror they faced at the hands of agencies meant to protect them as also the total complicity and collusion between the investigating agency and the accused Respondents, in the course of investigation of the case.

The timeline of events in the present case is as follows:

Date Event

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22.05.1987 Incident took place

24.05.1987 Investigation was transferred to CBCID

1996 Charge Sheet was filed in the present case

1997 to The Trial Court at Ghaziabad, issued warrants against 2000 the accused Respondents a total of 23 times, to compel their appearance, but without success.

September Due to the lack of progress in the trial of the present 2002 case, the families of the deceased victims, filed a transfer petition in the Hon’ble Supreme Court of , titled ‘Jamaluddin & Ors. v. State of UP’, bearing Transfer Petition (Criminal) No. 321/2002, seeking the transfer of the trial, to a court in Delhi. The Hon’ble Supreme Court transferred the present case to Delhi and the case was assigned to the court of the Learned Additional Sessions Judge, West District, Tis Hazari Courts, Delhi.

18.05.2006 The Order on charge was passed by the Trial Court, directing that charges be framed under Sections 147/148/149/201/ 364/302/307/120B, IPC, and on 24.05.2006, charges were framed against all the accused persons.

22.07.2006 Evidence of PW-1 commenced

23.05.2014 313 statements of the accused Respondents were recorded

21.03.2015 The Trial Court passed the impugned judgment of acquittal

20.02.2018 This Hon’ble Court directed the recording of additional evidence by the Trial Court in the present case.

SERIOUS LAPSES IN THE INVESTIGATION IN THE PRESENT CASE

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The investigating agencies in the present case i.e. the UP Police and the CBCID, have committed serious lapses in the investigation of the present case. They have shown a complete lack of interest and urgency in the investigation and the same are evident from the following lapses:

1. Failure to conduct TIP of the accused, the truck, their weapons, their helmets etc.

2. Failure to seize the truck on 22.05.1987, particularly when senior officials were informed of the incident and had gone to the MT Section, Ghaziabad. This allowed the truck to be washed clean of any evidence including chemical residue, blood, grazing caused by bullet marks by the accused persons and valuable evidence of the highest quality was allowed to be compromised.

3. Failure to seize the bloody colour water found at the MT Section, PAC Battalion, Ghaziabad.

4. Failure to examine eye-witnesses from the MT Section, PAC Battalion, Ghaziabad, who witnessed the washing of the truck and who named Surinder Pal Singh.

5. Failure to seize the weapons of offence immediately after the incident, which led to destruction of forensic evidence.

6. Failure to seize the Kot register/arms issuance register, containing details of arms and ammunition issued to the accused, and details of arms and ammunition deposited back.

7. Failure to seize the uniforms of the accused which would have contained blood stains, since they were picking up the victims and throwing them into the river.

8. Failure of the Magistrates, while recording 164 statements, to ascertain whether the survivors were under any pressure, and to extract the best possible information from them.

9. Failure to properly inspect the two scenes of crime - Makanpur village or near Hindon canal, both of whom would have borne testament and would have corroborated the statements of the victims/eye-witnesses. It would also have led to the seizure of the cartridges/shells.

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10. Failure to conduct a prompt and robust investigation resulting in the filing of a charge sheet within a short period of time.

That notwithstanding the flaws in the investigation, the Appellants seek a reversal of the judgment dated 21.03.2015 passed by the Learned Additional Sessions Judge, West, Tis Hazari Courts, as lapses in the investigation cannot accrue to the benefit of the accused particularly if the accused are men in uniform. This is a case where police officers investigated the culpable acts of violence of fellow police officers. It comes as no surprise, therefore, that linked as they are by virtue of their professional and personal ties, the investigating agencies conducted a shoddy investigation. But shoddy investigation cannot be used to benefit the accused, particularly since the crime in question was committed by those entrusted with the task of protecting citizens. Reliance is placed on two judgments in this regard,

 Gajoo v. State of Uttarakhand; (2012) 9 SCC 532, paragraphs 18 to 21, wherein the Hon’ble Supreme Court held that a “defective investigation, unless it affects the very root of the prosecution case and is prejudicial to the accused, should not be an aspect of material consideration by the court”. The Hon’ble Court also relied on a number of judgments to establish that a defect in investigation should not stand in the way of evaluating the evidence by the court in order to ensure justice to the complainant.

● Dayal Singh & Ors. v. State of Uttaranchal; (2012) 8 SCC 263, paragraph 27, where the Hon’ble Court has cited a number of judgments and held, “Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P,. this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab held that in the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would

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tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.”

Paragraph 47.5 of the judgment of Dayal Singh & Ors. v. State of Uttaranchal; (2012) 8 SCC 263, is also relevant:

“We hold, declare and direct that it shall be appropriate exercise of jurisdiction as well as ensuring just and fair investigation and trial that courts return a specific finding in such cases, upon recording of reasons as to deliberate dereliction of duty, designedly defective investigation, intentional acts of omission and commission prejudicial to the case of the prosecution, in breach of professional standards and investigative requirements of law, during the course of the investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution. Further, the Courts would be fully justified in directing the disciplinary authorities to take appropriate disciplinary or other action in accordance with law, whether such officer, expert or employee witness, is in service or has since retired.”

CONCLUSIONS THAT CAN BE DRAWN FROM THE EVIDENCE ON RECORD IN THE PRESENT CASE

That from the evidence brought and proved, the following conclusions can be legally drawn:

A. That the incident of abduction and murder of men belonging to a particular community of Hashimpura Mohalla took place on 22.05.1987.

B. That bodies of men were recovered from Gang Nehar and Hindon Canal and one body was recovered near P.S. Kalyanpuri.

C. That PWs 1, 2, 3, 4 and 11 were five survivors of this horrific incident and there is nothing to dispute this fact, and the testimonies of these five men is truthful, creditworthy and consistent.

D. That PWs 1, 2, 3, 4 and 11 have testified that they along with other persons were put into a yellow coloured truck and some of them have mentioned that the word ‘PAC’ were written on the truck.

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E. That PWs 1, 2, 3, 4, and 11 have given similar and consistent testimonies of how they were made to sit near a peepal tree and how the PAC officials divided them into groups of elderly persons and children, and young men.

F. That PWs 1, 2, 3, 4, and 11 have testified that about 40-45 elderly men and young boys/men were put into a PAC truck. PWs 1 to 4 and PW 11 themselves between 16 to 18 years of age at that time. They have also identified some of the persons who were killed in the incident.

G. That the testimony of these witnesses of what happened inside the truck is a chilling account of what transpired that night and goes to the criminal intent of the accused persons. The intent was to murder the victims and to destroy all evidence.

H. That the indiscriminate firing inside the truck resulted accused Leela Dhar being injured and this leads to the irrefutable conclusion that the C-Company of the 41st Battalion was involved in this gruesome incident.

I. That PW 74, PW 75, PW 76 and PW 42 have given evidence of the washing of the truck of blood. The hole in the body of the truck which was later covered to avoid detection, is yet another piece of evidence, relevant to prove that URU 1493 was used in the incident.

J. That the use of the truck no. URU 1493 by the accused Respondents who were posted at Meerut with the C-Company, 41st Battalion, PAC, on 22.05.1987, has been admitted by them, as evident from Ex. PW- 72/A.

K. That the truck in question was driven by Mokham Singh, a driver in the C-Company, as evident from Ex. PW-91/A.

LEGAL SUBMISSIONS AND OTHER JUDGMENTS RELIED UPON BY THE APPELLANTS

1. STANDARD OF PROOF REQUIRED IN CASES OF CUSTODIAL VIOLENCE AND DEATH

That from the evidence on record, it stands established that the victims were subjected to brutal, unconscionable and unprovoked violence by

Bar & Bench (www.barandbench.com) 24 the accused Respondents who belonged to the C Company, 41st Battalion of the PAC, posted in Meerut. This is, therefore, a case of custodial torture and deaths. The rules pertaining to appreciating the evidence in such like cases is different from the rules of appreciation of evidence in other criminal cases. This has been so held in several cases of the Hon’ble , including:

 Munshi Singh Gautam & Ors. v. State of M.P.; 2005 (9) SCC 631, paragraphs 6, 7 and 8, wherein the Hon’ble Supreme Court has held that: “In cases of police torture or custodial death direct ocular evidence of the complicity of the police personnel is rarely available and that this reality must be taken into account by the Court when appreciating the evidence and that the courts are required to have a change in their outlook approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the truth is found and guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed”.

 Also see State of M.P. v. Shyam Sunder Trivedi; (1995) 4 SCC 262, paragraphs 16, 17 and 18, wherein the Hon’ble Supreme Court has held that: “Generally speaking, it would be police officials alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues, and the present case is an apt illustration, as to how one after the other police witnesses feigned ignorance about the whole matter.”

It was also held that “… the exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact-situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage

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of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged.”

2. TESTIMONY OF SURVIVOR WITNESSES ARE NATURAL AND CREDITWORTHY AND MUST BE BELIEVED IN ALL MATERIAL PARTICULARS

 State of U.P. v. Ram Sajivan; (2010) 1 SCC 529, paragraphs 39 to 41.

3. DUTY OF THE COURTS TO PUNISH PERPETRATORS OF CUSTODIAL VIOLENCE

 Raghbir Singh v State of Haryana; (1980) 3 SCC 80, paragraphs 2 and 3, wherein the Hon’ble Supreme Court emphasised the urgent need to prevent and punish custodial torture and other forms of brutality committed by the security force whose duty is to protect the lives and liberty of common citizens by holding that in cases of custodial violence by the police. Any failure to punish the perpetrators of custodial violence and killings the Court held, would result in “the credibility of the rule of law in our Republic vis-à- vis the people deteriorating”.

 Dalip Singh v State of Haryana; (1993) 3 Supp SCC 336, paragraphs 6 and 7

 State of U.P v. Ram Sagar Yadav; (1985) 1 SCC 552, paragraphs 5, 6 and 20, where the Hon’ble Supreme Court has held that “… the Government needs to amend the law needs to be amended so that policemen who commit atrocities on persons who are in their custody are not allowed to escape by reasons of paucity or absence of evidence”, and that “the law as to the burden of proof in these cases, may be re-examined by the Legislature”.

4. CIRCUMSTANCES IN WHICH BURDEN OF PROOF MAY SHIFT TO THE ACCUSED RESPONDENTS UNDER SECTION 106 OF THE INDIAN EVIDENCE ACT

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Once it is established that the accused persons had abducted the victims from Hashimpura Mohalla, the burden of proving what happened to these abducted men, shifts to accused, by virtue of the statutory requirement contained in Section 106 of the Indian Evidence Act, which reads as under:

“Section 106. Burden of proving fact specially within knowledge - When any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.”

The manner, circumstances and exact sequence of the events of 22.05.1987, especially what happened to the 40-45 persons loaded into the truck by Subedar Surender Pal Singh (as deposed by DW-1 Gulesh Ali) was within the “special knowledge” of the accused Respondent alone and they have not led any evidence to disprove the allegations against them, and have not discharged the burden enjoined on them under Section 106 of the Evidence Act.

 State of W.B. v. Mir Mohammad Omar and Ors.; (2000) 8 SCC 382, paragraphs 31 and 32

 State of Rajasthan v. Kashi Ram; (2006) 12 SCC 254, paragraph 23

APPELLANTS Through

Harsh Bora and Ratna Appnender Advocates 9, Lawyers’ Chambers, Delhi High Court Dated: 15.09.2018 New Delhi