Lucknow: Witness number 291 finally arrives in court, three-and-a-half hours late. As the CBI prosecutor readies his papers to proceed to the courtroom, the witness makes a request — he will not be able to appear today, either to record his statement or for the cross-examination, as it is his daughter’s engagement.
He then gives the request in writing, takes permission from the judge, and leaves.
The stenographer, who has been waiting for the proceedings to start, also makes a note about the witness — the noise of his keyboard resonating in the empty courtroom — and winds up.
It is 2 pm, and the court is dismissed for the day.
It’s just another day at the mosquito-infested ‘Ayodhya Prakaran’ courtroom number 18, tucked away in a forgotten corner of Lucknow’s Old High Court building. Thirty-two high-profile people, including top BJP leaders L.K. Advani, Murli Manohar Joshi, Uma Bharti and several MPs, are accused of promoting enmity, hatching a criminal conspiracy and rioting.
The Supreme Court had ordered on 19 April 2017 that the case would be heard on day-to-day basis, and that the judge hearing the case would not be transferred.
But nearly 27 years after the Babri Masjid in Ayodhya was demolished, the case is still moving at a snail’s pace, proceedings are still at evidence stage, and the trial goes on without anyone noticing.
Despite the CBI filing comprehensive chargesheets in the case, the trial was delayed at the charge-framing stage, as most accused challenged the agency in a higher court and got a stay. When the trial did resume, many witnesses were untraceable, others unwilling to appear in court, and the voluminous evidence had rotted over time.
The judge, S.K. Yadav, who has been hearing the case for the last four years, was due to retire on 30 September 2019. But upon his request, the Supreme Court granted him an extension until the date of judgment, which he expects to deliver in April 2020.
ThePrint spent over two days attending the court hearings, speaking to prosecution and defence lawyers, going through court records, evidence and statements, to piece together the state of the trial. Here’s what we found.
Two FIRs, two courts, and years of delay
Following the demolition of the Babri Masjid on 6 December 1992, the police filed two FIRs.
The first — number 197/92 — was registered against lakhs of unknown kar sevaks who had climbed atop the mosque to smash it with hammers and axes.
The second — number 198/92 — was filed against eight people, namely Advani, Joshi, Bharti and Vinay Katiyar of the BJP, and the Vishva Hindu Parishad’s Ashok Singhal, Giriraj Kishore, Vishnu Hari Dalmia and Sadhvi Ritambhara. Of these, Dalmia, Kishore and Singhal have died.
Forty-seven more FIRs were filed for the attacks on journalists on the day of the demolition, after the mosque had been demolished.
The first problem that arose was the division of cases between the CBI and the UP Police’s Criminal Investigation Department (CID). FIR 197 against the kar sevaks was handed to the CBI, while FIR 198 against the BJP and VHP leaders was handed to the CID. It was only on 27 August 1993 that the CBI was handed all the cases by the UP government.
On 5 October 1993, the CBI filed its first chargesheet against 40 persons, including the eight leaders.
After two years of investigation, the CBI filed a supplementary chargesheet on 10 January 1996, alleging a larger conspiracy and a planned attack on the Babri Masjid.
The CBI then included the charge of criminal conspiracy, Section 120(B) of the Indian Penal Code, against nine more people, including Shiv Sena leaders Bal Thackeray and Moreshwar Save.
In 1997, a Lucknow magistrate ordered the framing of charges (including criminal conspiracy) against 48 accused. But 34 of them moved the Allahabad High Court appealing for revision, and were granted a stay.
For four years, nothing moved.
On 12 February 2001, the Allahabad High Court ordered that the criminal conspiracy charge against Advani, Joshi, Bharti, former UP CM Kalyan Singh and others be dropped, making the CBI’s case weak.
To add to the confusion, on 4 May, the special court in Lucknow bifurcated FIRs 197 and 198 again, and stated that while 21 accused will be tried in Rae Bareli, the other 27 will be tried in Lucknow.
The CBI then moved the high court to review its decision to drop the criminal conspiracy charge, but its petition was dismissed. On 16 June, the CBI wrote to the UP government for a fresh notification to resume trial.
In July 2003, the CBI withdrew the criminal conspiracy charge against Advani and filed a fresh chargesheet in the Rae Bareli court. But in July 2005, the high court reframed charges of inciting hate against Advani.
Until 2010, the two cases were being argued in the two separate courts. In 2011, the CBI finally approached the Supreme Court, which decided to transfer the whole trial to Lucknow.
For the next seven years, there were several review petitions filed in the courts against the charges framed, which led to a further delay. Only after the Supreme Court stepped in on 19 April 2017 that Advani and others were brought back into the criminal conspiracy case.
The top court called the high court’s order “erroneous” and also pulled up the CBI for not appealing against the order earlier.
“The trial technically began only after 2010. Before that, it remained stuck at the stage of framing of charges, as most accused challenged that in the high court,” CBI’s counsel Lalit Singh told ThePrint.
Currently, all the accused in the case are out on bail.
Oral evidence most crucial
With over 30,000-40,000 witnesses to the demolition, oral evidence is set to play an extremely important role in the trial, lawyers said.
This is why the CBI has been making an extra effort to track all witnesses and convince them to depose in court.
Oral evidence includes all the statements given by witnesses to the police while the investigation was on, and is currently stacked in files gathering dust in a room adjacent to courtroom number 18.
The room, however, is either always locked, or a staff member is posted on guard duty. A police constable is also deployed outside the courtroom, who mostly kills time by watching videos on YouTube.
“There are thousands of pages of statements that the witnesses had given to the police and that became the basis of CBI’s investigation in the case,” CBI’s counsel Lalit Singh said. “All that is oral evidence, which is extremely crucial in the case. These are the people who saw the incident happen before them.”
The CBI, during the investigation, drew up a list of 1,026 witnesses, which includes mostly journalists and policemen.
“These 1,026 were picked after going through voluminous statements, to ensure there is no duplication or repetition in what the witness is saying. It was a carefully charted-out list,” a CBI official privy to the investigation said.
The CBI is relying on oral evidence to establish the criminal conspiracy case against the eight BJP and VHP leaders as well.
“There are speeches that were made by these leaders when the Rath Yatra began, and the idea to demolish the mosque was conceived in 1990, which shows conspiracy. We are relying heavily on the audio clips of those speeches as oral evidence along with stills to show where all the raths stopped during the yatra, to prove the conspiracy charge,” another CBI official said.
Tracing witnesses took years, exercise still not over
Since 2010, several CBI teams have travelled the length and breadth of the country to trace witnesses and issue summons to them, asking them to depose in court. Some were even traced to places like England and Myanmar.
Only 348 witnesses have so far appeared in court. While the hunt is still on for some, many have died and the rest are untraceable.
“So many years have passed since the incident, which is why it becomes extremely difficult to trace the men who were witnesses in the case. In the last 27 years, their addresses have changed, some have died,” a CBI officer privy to the trial told ThePrint.
“It has taken us years to trace these 348 witnesses and get them to court. Five summons are still being issued on a daily basis,” he said.
“In 90 per cent of cases, the person was not found on the address with us on record. The team then had to go trace the person,” the officer said.
Sometimes, it took the CBI four or five years to locate a witness, only to have them refuse to appear in court.
“Some of the witnesses who were in their 50s at the time of the incident are now very old. They either cannot travel to the court or cannot recollect what happened on 6 December 1992,” the officer said.
The changing of names of places has also been a hurdle. “Once, a CBI officer who had gone to deliver a summons to a person whose address was in Gandhi Park found that there is no area by that name. He then asked an old rickshaw-puller, who told him that the name of Gandhi Park was changed Rafi Marg 20 years ago,” the officer said.
But when the officer bearing the summons went to Rafi Marg, he found that the witness had moved out and was probably living in Vaishali. “The officer took over two years to track that witness, and when he was approached, he refused to depose and said he was too scared to appear in court,” the officer said. “In some cases, it has even taken us six years to trace a person. This is what hampers the case a great deal in court.”
The CBI has also filed death certificates of 140 witnesses in court. “In some cases, death certificates were not available as the families had not applied for them, so they have not come on record. Untraceable reports of many witnesses have also been filed in the court,” another officer said.
“Now, only a few witnesses are left to depose before the court, and we expect that this process will be completed soon,” this officer added.
Over 100 video cassettes as proof
Documentary evidence too is set to play an important role in the trial. This includes the news reports, photographs and videos that were shot on 6 December 1992 by journalists covering the incident in Ayodhya.
“This is one case where there is so much documentary evidence, reports, photos and videos to show who did it, how they did it, that nothing more is required,” counsel Singh said.
Over 100 U-Matic video cassettes were submitted by various channels. But they, too, are gathering dust.
Whenever a witness appears in court and is asked to corroborate his statements with video-graphic proof, these cassettes are played in the courtroom on a 27-inch Sony TV and two VCRs.
“Each time the videos play in court, the memories of the demolition get fresh. It gives me goosebumps as it feels like it is all happening before my eyes,” said a court staffer who has been there for the last 12 years. “That should be enough to book and prove the crime against the accused. God knows what is taking that long,” he added.
What makes videographic proof secondary evidence is that they were never examined by forensics.
“Some of these cassettes are edited videos that the channels must have run. It is not raw footage, which gives us a point that the videos are tampered with. Only very few raw videos are available,” a lawyer assisting the defence told ThePrint.
Another lawyer representing the CBI, who wished to remain anonymous, said a lot of cassettes were destroyed by fungus, and a team from the Forensic Science Laboratory had to be called in to restore them. But only some could be saved.
It was then decided to digitise the cassettes by converting them to a Blu Ray disc format, so that they last long. “It was then decided to convert them, so that they last longer. What if the case now goes to the high court or the Supreme Court? This evidence will be required,” counsel Singh said.
But the lawyers say each time a converted cassette needs to be played, a machine has to be called in from Doordarshan, which adds to the delay. “We were told that the machine to play Blu Ray discs is only with Doordarshan. So we call for it when we need it,” Singh said.
Scientific evidence, which may be very crucial in murder cases, has a limited role in this case.
“Scientific evidence includes the sample of mortar from the site, which plays a role as we have better oral and documentary evidence to prove the case. Scientific evidence works best when there are no witnesses,” a CBI officer said.
Can the trial be completed by 2020?
After the chargesheet and the framing of charges, the trial came to the evidence stage in August 2010, where it currently stands.
Once the examination of witnesses is completed, under section 313 of the Code of Criminal Procedure (CrPC), evidence is presented by the prosecution before the accused in a question-and-answer format, and the defence can then present its arguments, countering the evidence. The defence is also given a chance to get its own witnesses or evidence to prove its case.
“Right now, we are presenting our evidence. After this, the defence will get its own witnesses and then the final arguments will happen, before the judgement is pronounced,” CBI counsel Singh said.
At this time, the court is also examining evidence against Kalyan Singh, the CM of Uttar Pradesh at the time of the demolition, and accused No. 3 in the CBI chargesheet. Charges of criminal conspiracy have only now been framed against him, after he demitted office as the governor of Rajasthan, which gave him constitutional immunity.
Though the CBI has withheld the witnesses who were to depose against Kalyan Singh since he was not a part of the trial, the defence can delay the trial further by calling back the old witnesses, since the charge of conspiracy against Kalyan Singh is a common charge.
Defence counsel Ranjan, who is representing Advani, Bharti, Kalyan Singh and Champat Rai, said the defence has the power to call back witnesses, if required.
“We have not decided if we will do it or not, but we can ask for it as the case of conspiracy is a common case against eight accused and the witnesses who have deposed against the accused cannot be segregated,” he said.
“It is possible that some earlier witnesses mentioned Kalyan Singh, but were not cross-examined at that time as he was not a part of the case then. Those witnessed can be called back,” he added.
According to a court staffer, the defence has charted out a rough list of 20 witnesses.
The judge’s target of an April 2020 judgment is possible, if all goes well. But at the current pace of the trial, it appears to be a difficult target to meet.