'Holes' in the SIT report

BY HARIHARAN VS| IN Media Practice | 22/05/2012
The insignificant differences between preliminary and closure reports on the Gujarat violence have been highlighted as major discrepancies.
Proper research would have helped in achieving balanced writing, says HARIHARAN VS.
No sooner did the SIT’s closure report become public than Express News Service of Indian Express and Vidya Subramaniam of The Hindu set out to puncture what they perceived as holes in the SIT report. Unfortunately, in their eagerness to be early birds, they don’t seem to have considered all aspects of the issues they are highlighting. What are their issues?
Preliminary Report vs. Closure report
The first of the Indian Express stories points to the inconsistencies in the statements of Narendra Modi and top bureaucrats between the Preliminary Report submitted by SIT in May 2010 and its closure report. Vidya Subramaniam also harps on this issue in her article on the “Many twists and turns of February 27, 2002.” This is at best a comparison between apples and oranges.
The Preliminary Report, as admitted by A K Malhotra of SIT who prepared the same, “was not an investigation contemplated by the Cr. P.C. The statements recorded during the enquiry, therefore, do not amount to statements u/s 161 Cr.P.C.” and the amicus curiae also mentions this in Para 3 of his Report whereas SIT’s Closure Report recorded statements of witnesses under the said section. What is the relevance of this section?
Sec 161 (2) makes it mandatory for a person to “answer truly all questions relating to such case put to him by such officer.” So the seriousness, which a witness may attach to a statement u/s 161 may be missing in a statement recorded otherwise. When A K Malhotra mentions in his report that some of the public servants claimed loss of memory, as they did not want to get involved in any controversy, one can understand that the bureaucrats might not have felt compelled to respond to the queries of Malhotra with full earnestness. Another instance, which substantiates this argument, is the fact that when Sanjiv Bhatt was questioned as to why he did not respond to SIT’s public notice calling for witnesses, he replied that he did not want to divulge the facts “unless he was under a legal obligation to do so” (page 33 of SIT report).
Thus, bureaucrats such as Swarnakanta Varma, Ashok Narayan, and P K Mishra, who were tentative as to Sanjiv Bhatt’s presence when answering Malhotra’s questions, were more “categorical” later when SIT questioned them for the Final Report-- a simple fact which Vidya subramaniam chooses to be sarcastic about. Also it can be seen from the SIT closure report that it tried to help the witnesses refresh their memory by showing the photographs of Sanjiv Bhatt and also by probing them further on each of the issues.
Another interesting fact, which the Indian Express story with the sarcastic title “Loss of memory in 2010; recall in 2012” chooses to ignore, is that loss of memory does not seem to be the exclusive privilege of bureaucrats. Zakia Jafri stated that when they were shifted from Gulabarga Society the irate mob would have lynched all of them but for the timely action by the police when her statement was recorded u/s 161 on 6.3.2002. However, she conveniently forgot to disclose this fact when she deposed before Nanavati Commission on 29.8.2003 (page 16 of SIT report). Similarly, Sanjiv Bhatt, who could not recollect on March 22, 2011 who accompanied him to the Chief Minister’s meeting, suddenly remembered them two days later and went to SIT voluntarily to record a further statement. In fact, while Bhatt is cursed with long periods of loss of memory, he seems to be also endowed with a remarkable recalling ability-- that he sent two faxes on 28.2.2002 (or 2.3.2002 as hinted by SIT) which he could not recollect when Sreekumar asked for such evidence in July, 2002, or while talking to A K Malhotra in 2010, or while giving a statement to SIT in March, 2011, he did in December, 2011, just within 9 years of sending them! It is a different matter that these faxes did not seem to have been received by the addressees.
The next discrepancy pointed out by Indian Express relates to Modi’s statement in the Legislative Assembly. While the Preliminary Report quotes Modi as having said “…govt. was considering a proposal for an ex-gratia payment of Rs. 2 lakh…” the Final Report says Modi “announced an ex-gratia payment of Rs. 2 lakh…., ordered a high-level enquiry.” So the discrepancy seems to be “considering a proposal” as against an “announcement” in the final report; also the ordering of a high-level enquiry. One wonders whether these qualify as discrepancies at all! Even if they do, both the reports quote from Assembly records, and Indian Express could have done some research before writing the story.
By definition, a Final Report is much more profound than the Preliminary Report because some of the issues in the latter would have been taken up for further examination, additional witnesses would have been examined, and further documents would have been perused. One of the major events that took place between the two reports was the recording of Sanjiv Bhatt’s statement as suggested by Raju Ramachandran in his interim report. Sanjiv Bhatt’s numerous allegations had to be cross-verified with other witnesses and documentary evidence. Additional facts emerged out of this extensive probe, which were recorded in the Final Report. SIT’s closure report has not disputed the conclusions of the Preliminary Report on what Ramachandran calls “the most important allegation” viz. Modi’s alleged statement in the Law and Order meeting on February 27, 2002. In fact it has added additional evidence to support the conclusion.
It is surprising that the journalists, who are so concerned about the “discrepancies” between the Preliminary and the Closure Reports of SIT, do not mind the somersaults of Raju Ramachandran in his two reports. Some examples will help readers understand the differences between the interim and final reports of the amicus curiae: 

            ·       R.B. Sreekumar’s statement cannot be discarded as hearsay. (Observation 6 in Chart A of the Interim Report).

o   His statement is hearsay and would be inadmissible in evidence. (Para 47 of Final Report)

·       Dead bodies of Godhra carnage would not have been handed over to Jaydeep Patel, a VHP functionary unless ‘somebody very high’ told the Mamlatdar to do so (Observation 7 in Chart A).

o   Raghavan’s observations on the handing over of the bodies to Jaydeep Patel may be accepted. (Para 50 of Final Report)

·       Haren Pandya might have been present in the meeting on Feb 27 (Observation 4 in Chart A)

o   Haren Pandya could not have been present in the meeting on 27.02.2002. (Para 46 of the Final Report)

·       Modi had not taken enough steps to ensure that riots in Ahmedabad city were immediately controlled by his direct intervention. (Observation 12 in Chart A)


            o   SIT’s conclusion with regard to the steps taken by Modi to control the riots     in Ahmedabad may be accepted. (Para 48 of Final Report)    


The much hyped “So what, if words are spoken within four walls?”
The SIT systematically demolishes Sanjiv Bhatt’s claim of having attended the 27th meeting and his assertion that Modi told the bureaucrats and police personnel to allow Hindus to vent their anger by the following arguments (Pages 19-58, 239-242 and 512-522):
  • All those who attended the meeting have denied that Modi passed the illegal instructions attributed to him by Sanjiv Bhatt and Sreekumar.
  • Sanjiv Bhatt‘s phone records and other evidence prove that he could not have attended the meeting. He had tutored witnesses to confirm his attendance in the meeting.
  • R B Sreekumar’s deposition could not be relied upon as it was hearsay and he had antedated entries in his “register of oral instructions.” (Zakia Jafri’s complaint that Modi gave illegal instructions had relied on R B Sreekumar’s affidavit.)
  • The assertions of the Concerned Citizens Tribunal that Modi gave such illegal instructions which were based on Haren Pandya’s evidence were wrong because Pandya did not attend the meeting at all. (Zakia’s allegation IV had depended on this Tribunal’s assertion.)
After establishing that Modi could not have given the said illegal instructions, it raises a hypothetical question and dismisses the same immediately. Notice the language of SIT:
“Further, even if such allegations are believed for the sake of argument, mere statement of alleged words in the four walls of a room does not constitute any offence.”
The above statement has been used by Indian Express in the title of its story, “So what, if words were spoken within four walls?” Notice the tone subtly imputed to SIT in the title of Indian Express. (Of course the report mentions in one of the paragraphs the exact words of SIT; but everyone knows that what influences the reader most is the title. As Anant Rangaswami points out in his column in First Post in the context of the ‘C’ story of Indian Express, the headline in this case is “alarmist, dramatic and disturbing.”)
Coming to the statement of SIT, it is just evaluating a legal question: whether the alleged words would constitute an offence u/s 153 A (1) (a) & (b), 153 B (1) (c), 166 and 505 (2) of IPC. Since Modi did not appeal to Hindus or Muslims to take up arms or disobey the direction of any law as a public servant and there was no mensrea, these sections would not be attracted. (Arundhati Roy was booked under Sec 153 A, 153 B and 505 for making anti-India speech in a “public” seminar. It is a different matter that media at that time viewed this as an assault on freedom of speech.)
In other words it was not evaluating whether such a statement, if at all it had been made, was morally or ethically correct because SIT was not competent to evaluate the same.
The ‘oddity’ of using Sreekumar’s evidence in one place and dismissing in another
While dealing with the SIT’s purported statement, “So what if words were spoken with in four walls?” Indian Express points out the irrationality of using Sreekumar’s interview to prove Bhatt wrong, while the former’s evidence itself has been dismissed as “hearsay”.
R B Sreekumar, who did not attend the meeting on 27th night at Modi’s residence alleged that K Chakravarti, the then DGP, told him the next day that Modi had instructed those present at the previous day’s meeting to “allow Hindus to give vent to their anger.” This was hearsay. When Chakravarti denied having said the same, Sreekumar’s allegation had to be dismissed.
However when Sreekumar recounted the following in his interview to Star News, he was giving first hand information:
  • Sanjiv Bhatt did not inform him about attending the 27th meeting.
  • When, for filing an affidavit before Nanavati-Shah commission, Sreekumar called for information relating to Godhra riots from all officers in the State IB, Sanjiv Bhatt did not tell him anything about attending the meeting.
  • Sanjiv Bhatt handled Security portfolio while another officer handled the Communal portfolio.
  • When a junior officer (Sanjiv Bhatt in this case) attends a meeting in the place of his senior, the former should send a report on the discussions in the meeting to his superior.


Since the above were first-hand information, there was no need to disregard them so long as they were not challenged/disproved unless the “journalism of courage” prescribes that if one part of a statement of a witness is false, all the parts must be dismissed as false.
Further, Sreekumar’s interview was not the only factor used by SIT to dismiss Sanjiv Bhatt’s claims. His mobile records, evidence of his driver and other colleagues, discrepancies noted in his statements given at various points of time, etc. have been used to reject Sanjiv Bhatt’s accusations.
Was Ehsan Jafri’s firing at the mob an act of self-defense or a provocation?
Vidya Subramaniam in her article in The Hindu dated May 11, 2012, wonders among other things how the SIT, which treats Ehsan Jafri’s firing at the mob as an act of self-defense in the first page sees the same to have “provoked” the mob “within the space of a few pages.”
What Ehsan did might have been a valid act of self-defense--after all he had allegedly made many frantic calls and had allegedly not got any response. But imagine the psyche of a frenzied mob. What would be its reaction when it saw Ehsan firing and injuring 15 persons out of them? Would it evaluate cogently what alternatives were available to Ehsan and conclude logically that it might have been an act of self-defense or would it feel that he was repeating what some members of his community did the previous day in Godhra? Why should one’s self-defense not be perceived by another as provocation? Are these mutually exclusive?
The above issue has been discussed in detail by the author in The Hoot’s Blog.

Having gone through all this, one wonders what the plausible explanation could be for the particular line taken by the media and some journalists.

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