-By Kshitij Goyal and Kunal Gupta
Introduction
The Ram Janmabhoomi case has become a cause célèbre,a case which has garnered unprecedented public attention. The last part of the controversy got resolved on 30th Sept 2020 when the special court of CBI acquitted all the 32 accused in criminal dispute due to lack of evidence.What needs to be noted is that this acquittal has been allowed for an act so grave that even the Supreme Court had, by way of obiter dicta in para 788 observed that “The destruction of the mosque was an egregious violation of the rule of law,” while deciding the civil suit in 2019.
The accused were charged u/s 120B (criminal conspiracy), 147 (rioting), 149 (unlawful assembly), 153B (imputations, assertions prejudicial to national integration), 295A (Outraging religious feelings), and 505 (public mischief) of the Indian Penal Code.
This article seeks to analyse the recent CBI court judgment and shows that there was ample evidence to convict the accused under the above charges, but the prosecuting agency CBI failed to adduce conclusive evidence.
Analysis of the charges put on the Accused persons
- Was there a criminal conspiracy u/s 120 of the Indian Penal Code?
All the 32 accused were exonerated by the special CBI court. No conclusive evidence was found which could prove the existence of a conspiracy by those accused to demolish the Babri-Masjid.
Criminal Conspiracy, u/s 120 of the IPC, requires three elements.
- Commission of an illegal act.
- Two or more persons.
- An agreement amongst them.
There are no two ways about the fact that the gut-wrenching act of demolishing the mosque was illegal and that quite a lot of people were involved in the said Act. However, the ‘presence of a prior agreement’ has been the bone of contention.
The special CBI court rejected the presence of prior mens rea and agreement for conspiringto demolish the structure. They decided so in light of the absence of any conclusive direct evidence showing those accused to have conspired for razing the Babri Masjid. What seems to have been missed is that it is not a requisite to have ‘direct evidence’ as conspiracies are made in secret. It was held in Devender Pal Singh v State (NCT of Delhi) that “Direct evidence in proof of a conspiracy is seldom available, the offense of conspiracy can be proved by either direct or circumstantial evidence.” Thus, to prove criminal conspiracy, even ‘circumstantial evidence’ would have sufficed; this is a part of the argument which was not sufficiently focussed on.
In Mohd Usman Mohd Hussain Maniyar v State of Maharashtra, it was held that “the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication.” Devender Pal Singh (supra) also mentioned that the circumstances “before, during, and after the occurrence” have to be considered in the cases of conspiracy. Thus, careful consideration must be given to the acts preceding the demolition.
The Liberhan Commission Report, which took 17 years to complete its inquiry, meticulously dealt with various aspects of the demolition. It gives some astonishing pieces of evidence and circumstances that resolves the dilemma of there not being a prior conspiracy.
Rath Yatra was started by Mr. LK Advani to mobilize the crowd in 1990, and the use of slogans like “Ram Lalla hum aye hain, Mandir yahin Banayenge” was at its heights and were used for mobilization. [para60.10] On the date of the incident, CM Kalyan Singh “directed DGP on innumerable occasions” to not use any force against the karsevaks. [61.3] and there is well-documented order for not using any firearms or force against the karsevaks. [161.7] 6th December was not the only time a violent act was committed; even on 1st Dec 1992, graves and Mazars were damaged by them, evidence for the same is filed in the formal FIR but no action was taken by the state. [61.16], This is enough evidence as to the factum of involvement of the government in the conspiracy.
To prove that the demolition was not done at the ‘spur of the moment’ but with prior planning, the Liberhan Commission also went into the finances and concluded that the transactions exceeded many tens of crores of rupees, which were utilized on 6th Dec. 1992. It held that “The utilization of such large monies is a categorial pointer to the planning and pre-planning carried out for the entire movement commencing in demolition.” [158.8-9]
Various journalists received violent treatment from the karsevaks that day as they were physically stopped from taking photographs and filming the demolition. [162.12] To maintain the security, ‘closed-circuit television cameras’ were installed by the State government at the disputed structure. However, either those cameras mysteriously became inoperative, or the footage was concealed from the public and Liberhan commission. [161.10]
The transaction of such a humungous amount, incessant sloganeering for building the Ram Temple, deficiency of security measures, violence towards journalists, cameras becoming mysteriously inoperative, no substantive effort for preventing the demolition, concealment of the camera footage, andan environment of enthusiasm after such a demolition goes on to show that the act was not‘spur of the moment’ but pre-planned. There wasa criminal conspiracy, and this would have been evident if there had been more careful attempts at joining the dots and considering the circumstantial evidence.
- Was there a common intention and a common object to commit a criminal act u/s 34 of the Indian Penal Code?
The liability of the acts done by several persons in furtherance of a common intention is traced in Section 34 of the IPC. The Supreme Court, in the case of Sachin Jana and Another v. State of West Bengal, held that common intention has to be inferred from the circumstances /facts of the case. The prosecution need not produce any direct evidence (for instance, written communications, telephonic conversations, etc.) to signify the common intention of the accused to demolish the mosque.
The CBI court in its 2,300-page verdict said that the video cassettes, printed material, tapes, witness testimonies, and speeches made it clear that “that at no point of time the accused gathered to hatch a conspiracy to demolish the structure.” However, the possibility of tampered video evidence and audio or even disavowals on record could not undo the cumulative effect of the financial and logistical preparation, besides the communal mobilization.
Factors such as the mode of assault, the large number of Karsevaks who carried out the demolition, hidden faces of the Karsevaks entering the domes, and the availability of the instruments of attack,point towards the common intention of the accused/Karsevaks. The same has also been pointed out in the Liberhan Commission report.
2. Was there an unlawful assembly in pursuance of common object u/s Section 149 of the Indian Penal Code?
For an unlawful assembly, as per Baladin and Ors. vs. State of Uttar Pradesh, a person is liable if he had been present at the time of commission of the crime, and it was shown that he omitted to do something or did something which would make him a member of an unlawful assembly. The judgment relied on this case to dismiss the charge of unlawful assembly. There cannot be any second thoughtsabout whetherMr. L.K. Advani and others were the members of an unlawful assembly or not. This is underscored bythe fact that they made only feeble requests to the karsevaks to stop the demolition of the mosque. Also, as the Liberhan Commission noted,“No request was made to the kar sevaks not to demolish from inside the domes or not to enter into garb griha. This selective act of the accused persons itself speaks of the hidden intentions of one and all being able to accomplish the demolition of the disputed structure.”
Also, the unlawfulness of the assembly is inferred from the “common object” guiding the actions of the crowd. The circumstances in which the incident took place and the conduct of the members of an unlawful assembly are sufficient to determine the common object guiding the unlawful assembly as held by the SC in the case of Roy Fernandes v. the State of Goa.
In the present case, the use of demolition tools, ropesand shovels, was a well-recorded fact, and the behaviour of the accused prior to, during, and after the incident were well-recorded facts pointing towards the “common object” that was guiding the accused. As per the charge sheet, there was an alleged meeting at the house of Vinay Katiyar where the decision to allegedly demolish the mosque wastaken. Kalyan Singh allegedlytold a witness, “rok construction par lagi hai, destruction par nahi.” This all implies that there was an unlawful assembly in prosecution of the common object.
Has the prosecuting agency CBI failed to prove conclusive evidence?
The Manmohan Singh Liberhan Commission had recorded all the events purporting to the entire conspiracy in its report.But unfortunately, under the Commission of Inquiry Act, 1952,it has no binding value as is laid down in the case of Md. Ibrahim Khan v. Susheel Kumar and Anr. It just has persuasive value; it is the evidence produced at the trial that would guide the court.
The criminal conspiracy charges on LK Advani were earlier dropped in 2001 by a special court in Lucknow on technical grounds. Later, the Supreme court restored the charges of criminal conspiracy against the accused in 2017 and directed the trial court to commence day-to-day trial and reminded the agency in a language, “In the present case, crimes that shook the secular fabric of the constitution have allegedly been committed 25 years ago. The conduct of the CBI in not pursuing the prosecution of the accused in a joint trial has let the accused persons roam free without even trial.”
The Special CBI court, in its recent and quite controversial judgment,has acquitted all the accused on the ground of lack of conclusive proof. Inthe case under scrutiny, the court did not accept over a hundred videotapes as they were neither sealed and nor had been sent to the forensic laboratories to ascertain whether they had been tampered with. The newspaper reports were not accepted as they fall under the category of “hearsay evidence.” The judge of the special court was not convinced even after more than 351 witnesses were testified.The statements of testimonies of the witnesses were “not credible” as they were contradictory, according to the judge.
The CBI failed to submit recordings of any slogan raised by the accused or voice samples in the court. The court even observed that this could have been proof of the utmost importance.
Conclusion
The Supreme Court in 2019 had considered the demolition of Babri Masjid as a violation of the law and a criminal act to which the police and the government officials remained a mute spectator. It is a bolt from the blue as to why proper evidence and witnesses were not produced by the CBI before the special court to prove the guilt of the accused.
The report of the Liberhan Commission turned to dust and the meticulous efforts of the commission across 17 years went futile. The observations of the Liberhan Commission and theabove analysis shows that the charges framed on the accused had some merit but there was alack of conscious will on the part of the CBI to adduce conclusive evidence in the court. Even the Supreme Court in 2013 denounced the CBI as “a caged parrot” and “its master’s voice. “The reputation of CBI has been tainted by the acquittal of all the accused individuals. It is high time that CBI is unshackled from political influence.
Given the grave implications that the exoneration of the accused would have on public trust in the judicial system, it is the need of the hour that the CBI goes on appeal.
[The authors are second-year students at NLSIU Bangalore]