Haren Pandya's murder was a proven fact. But, as the Gujarat High Court noted, the prosecution's account of the murder was impossible.
Another terror investigation botch-up has turned up — but this time the foul-up is so spectacular that it seems to stand in a class by itself rather than form a pattern with earlier mishandled terror cases. The sensational 2003 Haren Pandya murder case, which the Gujarat High Court heard in appeal, unspooled into an unbelievable narrative during arguments, resulting in the acquittal last month of all the12 accused convicted by the Prevention of Terrorism Act (POTA) trial court.
The case did not come undone in the hands of an inept or prejudiced State police force. Nor did it collapse because witnesses turned hostile or because the evidence adduced was thin. India's premier investigating agency, the Central Bureau of Investigation, presented in court a whodunit that turned out to be scientifically impossible. It was outside of reason and logic that Pandya could have been shot through the scrotum — one of the seven gunshot injuries found on his body — while he sat in the driver's seat of his Maruti 800 with only a three-inch opening in the window. Asked how this was possible, the CBI's Investigating Officer (IO) told the trial court: “When a man falls, his whole body for a moment would go up and because of gravitation, it would come down and that is the way it can be explained…” Pandya was a hefty six-footer and it defied conjecture that his body could overcome the steering wheel of a small car and do the acrobatics the IO suggested.
Judges D.S. Waghela and J.C. Upadhyaya accepted that the scrotum injury “completely ruled out the possibility of firing upon Mr. Haren Pandya from the small opening of the window of his car.” Going on to censure the CBI for the “botch-up,” they said: “…The investigating officers concerned ought to be held accountable for their ineptitude resulting into injustice, huge harassment of many persons concerned and enormous waste of public resources and public time of the courts.”
The scrotum injury was a physical, proven fact, yet science disallowed it in a closed car. So where and how was it sustained? Consider the CBI's story: Pandya was shot dead in his heavily-tinted Maruti 800 at around 7.30 a.m. on March 26, 2003. The venue was the Law Garden in Ahmedabad where Pandya and the city's elite went for regular morning walks, and the killer was Asghar Ali, a sharp-shooter from Hyderabad. The murder was part of a large conspiracy entered into by Asghar and 19 others to kill Hindu leaders and spread terror as retaliation for the 2002 anti-Muslim pogrom. The lynchpin of the conspiracy was Mufti Sufian, a rabble-rousing local cleric who later escaped to Pakistan, and the acts in the conspiracy included, besides the Pandya murder, bomb attacks on city buses on May 29, 2002 and the attempted killing of Vishwa Hindu Parishad leader Jagdish Tiwari on March 11, 2003. Mufti Sufian arranged for the key actors, including Asghar, to go to Pakistan where they were trained in the use of firearms. Asghar did not participate in the bus bomb attacks but he shot at the VHP leader and killed Pandya. Since a larger conspiracy to strike terror was alleged, the Gujarat government handed both cases to the CBI, which combined the two and filed a common charge sheet under POTA.
The CBI version
As for how Pandya was killed, the CBI said the former Gujarat Minister of State for Home parked his car as usual and was rolling up the window glass on his side when Asghar approached him. At this point there was only a three-inch opening in the window. Asghar thrust his gun through the small opening and fired five bullets, causing Pandya to sustain seven injuries in all, one on the neck, three on the chest and two on the right hand and right forearm. Significantly, injury number seven was caused by a bullet that pierced Pandya's left scrotum and lodged itself behind his right shoulder.
The CBI produced as its sole eyewitness Anil Yadram Patel, a vendor from Uttar Pradesh who kept his handcart in Chitty Bang, an amusement park on the opposite side of the Law Garden parking slot. Anil told the trial court that he saw Pandya's car drive into the parking slot. He also saw the assassin walk up to the car and shoot Pandya dead. Anil described the assassin in great detail. He was five-foot-six-inches tall with deep-set eyes, a long moustache and hair parted in the middle. His cheeks curved inside, he had a long neck and he wore a coffee-coloured shirt. At the time of the murder, Anil was in conversation with fellow vendor Kanaiya. Sweeper Ramesh too came running. Yet Anil sat around for half an hour before deciding to talk about the murder to a third person in the complex, Shukla Chacha. Anil and Shukla Chacha then took a tempo to the house of Chitty Bang owner Nanubhai where they spent another 45 minutes drinking tea. When Anil returned to Chitty Bang, he found the police transporting Pandya to hospital — which according to police records happened at 11 a.m.
The CBI did not examine Kanaiya, Ramesh and Shukla Chacha, who were important to corroborating Anil's story. It did not check the time of Pandya's departure from home with his wife. This was crucial because the prosecution's case hinged on a single piece of evidence: At 7.33 a.m. on March 26, 2003, Asghar made a call to a co-accused signalling the success of the murder mission. The call was picked up by a telecom tower which indicated Asghar was within three kilometres of Law Garden. Assuming the call was indeed made from Asghar's phone — which the CBI did not conclusively establish — the murder ought to have happened before 7.33 a.m. But the sole eyewitness confessed to not being able to read the clock. The High Court worked the story backward from 11 a.m., when Anil saw Pandya being taken to hospital, and arrived at 8.30 a.m. as the probable time of murder.
This was not all. During cross-examination, Anil went back on all his claims. Pandya's car was already parked when he came out to talk to Kanaiya. If this was the case, Anil had not witnessed the murder at all. In any event, from where he was standing — at an acutely angled distance of about 16-18 feet — he could not have seen anything through the black-tinted glasses of a car that was parked with its left-side facing him. Nanubhai's statement blew further holes in Anil's testimony: Anil did not describe the murder or the assassin to him. Instead he told him he was sitting on a bench when he saw “one man running away.” This hardly squared with the detailed account Anil gave of Asghar's appearance and clothes, which included his “coffee-coloured” T-shirt (“Coffee-colour” was strange coming from a native of the Hindi heartland.).
But it was on the impossibility of the murder action that the prosecution's case collapsed. Though there were seven gunshot injuries, only five bullets were recovered. Given that the assailant had fired into a small, closed car, where could the remaining two bullets be other than in the car? To get around this, the prosecution suggested that one bullet had re-entered the body. But the post-mortem report showed no re-entry track. Besides, re-entry would require Pandya's arm to be positioned in a way that is impossible within the confines of a car. Seven bullets would also point to the use of more than one weapon in the murder.
The scrotum injury was beyond the comprehension of even the post-mortem doctor, a prosecution witness. He admitted in court that this injury could only be sustained if the assailant was underneath the victim. Yet, as the High Court concluded, this was ruled out by the manner of firing of the bullets: “Injury no 7 (scrotum injury) was impossible to be caused from the height and angle of the weapon attributed to the assailant.” Was it possible that the car was not the scene of crime but the same assailant killed Pandya in some other place? If so, what prevented the CBI, which had custody of all the accused, from establishing the truth of the murder?
The court noted other curious factors: The car that saw a violent murder was intact and had no blood stains. The alleged murder weapon was tampered with and the calls on Pandya's phone were found erased.
The prosecution fitted the Pandya murder into an elaborate conspiracy case but made no real effort to find Mufti Sufian, the supposed mastermind. The court accepted the argument of the defence that the attempted murder of VHP leader Manoj Tiwari was irrelevant to the Pandya murder case, which had to be proved on its own facts and evidence. The acquittal of the accused has raised fresh doubts and inevitable questions about who killed Pandya and how.