The Delhi High Court has allowed a petition filed by National Human Right Commission under Section 391 CrPC seeking permission to adduce additional evidence in the appeal against acquittal of accused in Hashimpura Massacre.
The High Court has allowed the prosecution to lead additional evidence in respect of extracts of a General Diary Register maintained by Provincial Armed Constabulary (PAC) showing list of PAC personnel with their list of weapons and truck number on which they left for Meerut district on the fateful day of May 22, 1987.
Section 391 of Code Of Criminal Procedure gives ample powers for the appellate Court to take additional evidence after recording reasons.
Senior Advocate Rebecca John appeared for the Appellant Zulfikar Nasar and Advocate Vrinda Grover appeared for NHRC.
Citing from a Supreme Court judgment in Zahira Habidullah Sheikh v State of Gujarat, the high court said, "The ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions."
The court’s order comes on plea of NHRC seeking direction to Uttar Pradesh for further inquiry and to place before the court registers, attendance registers, logbooks relating to names of the PAC personnel comprising the platoon on duty at Hashimpura on May 22, 1987.
As it heard the NHRC’s plea, the bench of Justice S Muralidhar and Justice IS Mehta was surprised to learn through a series of affidavits filed before it by that the relevant extracts from the general diary register were a part of the trial court record but were never adverted to by the prosecution witnesses or even the sole defence witness.
It is to be noted that during the hearing on NHRC’s plea, the Uttar Pradesh government had filed an affidavit on January 4, 2017 along with certain annexures including one marked as ANNEXURE-R-1/2 which was copy of General Diary of May 22, 1987, maintained by PAC.
This affidavit stated that as per the procedure, PAC has to keep a General Diary Register, for recording the daily movements of personnels, vehicles and other activities of the company. As per the General Diary of “C’ Company 41 Battalion, PAC, Ghaziabad on 22nd May 1987, the truck in question and the private respondents before this Court were posted at Pilokhari Chowki, P.S. Lisari Gate, Meerut, under the orders of the then SSP of Meerut, UP.
Further as per the General Diary Entries, the said personnel departed from company Head Quarter at Police Line, Meerut in official vehicle, truck bearing registration No.URU-1493 at 07:50 AM and reported back at the company head quarter at 09:00 PM on 22.05.1987. A copy of General Diary of May 22, 1987 was annexed and marked as ANNEXURE-R-1/2.”
The high court said, “The Court has perused the trial Court record and it is seen that the document which is enclosed as Annexure R-1/2 to the affidavit dated 4th January 2017 filed by the State of Uttar Pradesh forms part of the trial Court record. The said document is at page 5743 of the trial Court record. It is a photocopy without any exhibit number. For reasons that are not clear that the document has not been exhibited in the trial Court and not adverted to by any of the prosecution witness or even by the sole defence witness examined”.
“The relevance of the above documents, as well as the documents of which it forms part, to the issue involved in the case has not been questioned by any one.
“The charge sheets were filed in this case along with a whole bunch of documents which included these documents as well. With the documents already forming part of the trial Court record, the present application should not be viewed as an attempt made by the NHRC for tendering in evidence new documents that do not form part of the trial Court record,” said the bench.
It further said that if the State of Uttar Pradesh is unable to persuade the PAC to produce the original of the document at page 5743 of the trial Court record, it will have to move an application before the trial Court for permission to lead secondary evidence of the said document.
Listing the matter before the trial court on March 19, the high court directed as follows:
(i) The prosecution is permitted to lead additional evidence in respect of the GD register extracts which are at pages 5741 to 5746 of the trial Court record;
(ii) On the date on which the matter is listed before the trial Court pursuant to this order, the prosecution will furnish to the trial Court a list of witnesses which it seeks to examine in relation to the additional evidence to be led in respect of the above document(s); the prosecution will also keep ready its application for permission to lead secondary evidence, which application will be heard and decided by the trial Court on the day fixed by this Court and in any event not later than three days thereafter.
(iii) The prosecution will not seek adjournment on any ground whatsoever and it will be ready to examine the witnesses on the date fixed by the trial Court for that purpose. It is made clear that on the date fixed by the trial Court the State will be represented by its counsel and will not seek adjournment on the ground that its counsel is not being formally appointed as such by the State Government. All the steps necessary for the State to nominate the counsel to appear on its behalf in the trial Court should be completed by the date fixed by the trial Court for commencement of the recording of the additional evidence.
(iv) The right of the accused to cross-examine the prosecution witnesses in accordance with law will be permitted. The accused will also be permitted to lead defence evidence relevant the additional evidence of the prosecution in accordance with law.
(v) The recording of the additional evidence by the trial Court, inclusive of recording of the statements of the accused under Section 313 Cr PC and the defence evidence, if any, should be completed within a period of three months from the date fixed by this Court of the listing of the matter before the trial Court;
(v) Both the prosecution and the accused will cooperate with the trial Court to ensure that the above time schedule is strictly adhered to. The record of additional evidence including the further statement of the accused under Section 313 Cr PC as well as the defence evidence and the trail Court record should be made available to this Court not later than 2nd July 2018.
Nearly 42 to 45 persons were allegedly abducted from Hashimpura in Meerut District, Uttar Pradesh by the armed personnel of the Provincial Armed Constabulary (PAC) on May 22, 1987. Of these, around 35 were alleged to have been subsequently killed by the PAC on that very date in the late hours and their bodies thrown in a canal.
Two FIRs came to be registered in the incident – one at police station Link Road and other at police station Murad Nagar in Ghaziabad. On May 24, the probe was handed over to CB-CID and the charge sheets came to be filed nine years later in 1996 against 19 accused PAC personnel.
Both the cases came to be transferred to Delhi in year 2002 where a trial court framed charges against all accused in 2006 for murder, criminal conspiracy etc. While 91 prosecution witnesses were examined during the course of trial, on behalf of defence, only one witness was examined.
In 2015, the court acquitted all accused PAC personnel.
Aggrieved by this order, the State of Uttar Pradesh and complainant Zulfikar Nasir filed an appeal before the high court.
In December, 2015, the high court allowed NHRC to be impleaded as party in the appeal filed by Zulfikar.