(This story was first published on 2 October 2020 and is being republished in light of the Babri Masjid demolition anniversary.)
Why did special CBI judge Surendra Kumar Yadav acquit all the accused in the Babri Masjid demolition case?
We’ve heard the crux of the verdict as declared by the judge when announcing the verdict on 30 September – that the CBI failed to provide any conclusive evidence that there was a conspiracy, or that the destruction of the mosque was premeditated.
Now here are some more details from the 2,300-page verdict of the court in Hindi, which brought to an end the 28-year saga that saw senior Bharatiya Janata Party (BJP) leaders like LK Advani, Murli Manohar Joshi, Uma Bharti, and former Uttar Pradesh Chief Minister Kalyan Singh all face charges.
A BOTCHED INVESTIGATION – FROM THE START?
While a lack of conclusive evidence may have been behind the court’s acquittal of the accused, there was no shortage of evidence itself. The Central Bureau of Investigation (CBI) produced 351 witnesses in the court, and had over 7,000 pages of documents, along with TV footage, photos and audio recordings of what happened.
And yet, because of numerous lapses, the judge had to discard much of the evidence. The lapses did not, however, just rest with the CBI. The investigation and case were originally within the purview of the UP Police and the state’s Crime Investigation Department (CID).
The quality of their investigation can perhaps be summed up by the testimony of Prosecution Witness (PW) 283, Bhavanand Kharakwal, one of the senior police officers assigned to the case till the CBI took over in 1993. In a shocking admission when he was on the stand, he said that “We conducted the investigation according to our own procedure, not in accordance with the CrPC.”
The CrPC is the Code of Criminal Procedure that has to be followed for every investigation by the police. If it is not followed, pretty much any evidence collected by the investigation will be rendered inadmissible or unproven – which is exactly what was to happen in this case.
THE CONSPIRACY THAT WASN’T
It was the CBI’s case that, starting from 1990 when the first attempt to destroy the Babri Masjid was foiled, the accused entered into a conspiracy to bring down the mosque. To prove this charge of conspiracy – which was part of the case thanks to a bitter struggle in the courts all the way up to the Supreme Court – the CBI had to prove there was a meeting of minds between the accused to achieve this illegal objective.
The CBI sought to do so with a variety of evidence: Newspaper reports, magazine articles, video cassettes of speeches, printouts of speeches that had been recorded on tape recorders, photographs, and witness statements.
According to the judge, however, none of this evidence was presented in a way where it could serve as proof under the Evidence Act. According to the judge, “it was clear that there was no moment when the accused persons gathered in a room to plan the scheme to demolish the structure,” The Hindu reports.
Failure to Authenticate Reports and Articles
The newspaper reports and magazine articles relating to meetings and press conferences, which the CBI sought to submit as proof of statements by the accused about their conspiracy, could not in themselves be enough.
Newspaper reports in themselves count as hearsay evidence, to prove them the court would ideally have needed to hear from the reporters and editors who filed those reports, or see some other corroborative evidence.
However, as the lead investigating officer M Narayanan admitted, the police never undertook the process used to authenticate the reports. Typed copies of articles were submitted without the date of publication, or the bylines of the authors, which meant they were of no value.
Inadequacy of Audio/Video ‘Proof’
Despite the photos, audio and video provided to the court, steps for authentication don’t appear to have been taken. Negatives of of the photographs weren’t submitted, audio tapes weren’t co-related to voice samples of the accused, and when it came to video cassettes of alleged speeches by them, the related witnesses accepted they had been edited.
None of these authentication measures were taken despite the huge lapse of time.
The problems with witnesses went even further than just that. The judge noted that there were discrepancies between the testimony of witnesses before the court itself when produced by the CBI, and the statements given by these witnesses around the time of the incident under Section 161 of the CrPC.
Other witnesses made statements which made their statements unreliable – for instance some witnesses said the distance between the Ram Katha Kunj platform where Advani et al were gathered and the masjid was 800 metres, even though it was an established fact it was 200-300 metres away.
These witness statements were particularly important because they were supposed to demonstrate how the accused signalled to the kar sevaks to demolish the mosque. However, because of these discrepancies, and other factors such as the number of kar sevaks and all the dust in the air, the statements of the witnesses couldn’t be taken as conclusive evidence.
THE FAILURE TO INVESTIGATE THE PAKISTAN ANGLE
With all the direct evidence falling by the wayside, the CBI’s case could have still been proven with circumstantial evidence. However, for a case based on circumstantial evidence to succeed, the prosecution needs to show that there was no other reasonable explanation for the events that took place.
An unexpected spanner in the works of this was the fact that the CBI never investigated intelligence reports from around the time that “explosives originated from Pakistan have reached ayodhya via Delhi” and that “about 100 persons including anti social/anti national elements from Udhampur area of J&K are coming to ayodhya in the Garb of Karsewaks.”
This meant there was another possible explanation for why the mosque was demolished, the judge noted, and hence broke the chain of circumstantial evidence.
DEMOLISHERS OF MOSQUE ‘WERE NOT RAM BHAKTS’
In a slightly bizarre finding, the judge felt compelled to note that the people who destroyed the mosque were not true believers of Lord Ram. According to the court, things had been normal at the site till around 12 noon on 6 December 1992.
At that point, while the late Ashok Singhal, who had been charged as one of the accused was trying to give instructions about how the kar seva should proceed, a particular group/section of the kar sevaks created a ruckus, and it was they (not the main body of kar sevaks) who then rushed to destroy the mosque, ignoring Singhal’s attempts to control them.
As The Hindu notes in its translation of the judge’s comments, he said:
“ ... They were definitely hooligans, because if they were actual believers of Lord Ram, they would have paid heed to Ashok Singhal’s statement that the disputed structure ‘is also a temple and you have to protect it’.”
Strangely, the judge had held that the RSS and Vishwa Hindu Parishad (VHP) had been managing the situation till then, but this is then used to indicate that the accused did not have a plan to demolish the Babri Masjid – some of the witness statements they considered reliable indicated that the RSS and VHP leaders tried to stop the kar sevaks from causing any damage.
NO PROOF THAT ADVANI & CO INCITED ANY VIOLENCE
Even if the conspiracy charge fell flat, the accused could still have been convicted for the formation of an unlawful assembly, rioting, inciting communal hatred, making assertions prejudicial to national integration, insulting religious sentiments, causing grievous hurt, and obstructing public servants.
However, the finding that Ashok Singhal was actually trying to stop the kar sevaks was taken as an indication that none of the accused wanted the mosque to be demolished. As none of them had realised that the kar sevaks had started their demolition of the mosque, given all the confusion, they could not be said to have played any role in the creation of the unlawful assembly that brought the Babri Masjid down.
While there was evidence, including audio evidence, that the kar sevaks had shouted incendiary slogans like ‘mandir vahi banayenge’ and ‘tel lagavo Dabur ka, naam mitaon Babar ka’, the court found there was no evidence that the accused had raised any of these slogans.
No unedited recordings of speeches were placed before the court either, and so it was unclear “which accused gave what speech” that day.
(With inputs from Live Law, The Hindu and tweets by journalist Aneesha Mathur.)