In quest of justice, Pehlu Khan's son won't be alone

'When Irshad Khan approaches the Supreme Court, he will undoubtedly have the best and most committed of lawyers to represent him.'
His case will be reported on the front pages.'
Neither the BJP government in Rajasthan nor at the Centre can stop this,' says Jyoti Punwani.

A dying man names those who assaulted him. But the police gives them a clean chit, relying on statements of their associates who claim the latter were with them at the time of the assault.

The police completely ignores other eye-witnesses who were with the dying man when he was assaulted.

Rajasthan dairy farmer Pehlu Khan's lynching was caught on camera and relayed on prime time on all news television channels less than six months ago. It remained in the news for quite some time.

One would have expected that the media heat would have forced the police to proceed professionally in the case.

But the media scrutiny didn't last too long, and obviously, meant little to the police.

First, they declared those named by the dead man absconding.

Then, they exonerated them without bothering to verify their findings.

Were the alleged assailants really with others, far away from the crime scene in Alwar? This could have been verified by other eye-witnesses.

Irshad and Arif, Pehlu Khan's sons, were also attacked with their father. Irshad has said he heard the same names being called that his father gave the police. But he wasn't asked.

What does one make of the Rajasthan cops' conduct?

It might make more sense if compared to another case far away both in time and place, but one where the police conducted an investigation in exactly the same fashion.

Here the accused was one of their own -- a policeman. His crime? Firing on unarmed innocents.

The person who accused him was no less than a sitting judge of the Bombay high court. And the team investigating the offence was a hand-picked one.

Sub Inspector Nikhil Kapse was exonerated by the Special Task Force set up by the Maharashtra government under Supreme Court directions. Its task was to follow up on the Srikrishna Commission Report of Inquiry into the 1992-1993 Bombay riots.

Before indicting Kapse, Justice B N Srikrishna had heard all concerned.

The policemen who were with Kapse when he stormed into the Hari Masjid at Wadala on January 10, 1993, the senior police inspector of his police station who kept a record of movements of his force, and Kapse's superior, then deputy commissioner of police K L Bishnoi, had all testified before the commission.

So had those inside the Hari Masjid who faced Kapse's bullets, and those around the masjid.

All these deponents had been cross-examined at length by the battery of lawyers who represented different parties in front of the commission: The police, the government, the victims, the Shiv Sena, the Communist Party of India.

Additionally, Kapse had been served with a notice to defend himself before the commission, which he had ignored.

Only after having recorded and examined all these testimonies, which included documents from the police and hospitals, did Justice Srikrishna indict Kapse for 'brutal and inhuman behaviour as well as unjustified firing which killed six.' The high court judge recommended that strict action be taken against him.

All these testimonies and documents were available to the STF. But despite the seriousness of the commission's charge against Kapse, the STF chose to conduct only a departmental enquiry against the sub inspector and recorded only the statements of his colleagues.

The STF refused to meet Kapse's victims despite the latter urging it to do so.

The STF's clean chit to Kapse was accepted by Maharashtra's then Congress-Nationalist Congress Party government, which had quite early on, showed its reluctance to take any action against the 31 policemen indicted by Justice Srikrishna.

It was only when one of Kapse's victims, Farooq Mapkar, approached the Bombay high court, that the STF's one-sided investigation was questioned. Its counsel could not explain his client's conduct to the bench.

Pehlu Khan's son has declared he will challenge the Alwar policemen's investigation in court. It would be good to hear the judges question the Alwar police's lawyer.

The judges hearing Farooq Mapkar's plea tore into the STF's conduct. Its one-sided investigation was one reason that the judges agreed to Mapkar's request to hand over the Hari Masjid case to a reluctant CBI.

This was a 'case that affects the very soul of India,' the judges said.

However, going by what happened with Kapse, one hopes that Pehlu Khan's case does not go to the CBI.

Left with no choice, the CBI charged Kapse with murder in February 2009. But after that, it showed no urgency in investigating a case that was already 16 years old. In this, it was helped by the Maharashtra government.

To save a sub inspector who had been indicted by a judge for shooting at unarmed namazis, the Congress-NCP government rushed to the Supreme Court against the high court order. But describing the Hari Masjid case as an 'extraordinary' one, the apex court refused to intervene.

More than three years after it took over what it had dismissed as a 'simple' case not worthy of its skills, the CBI exonerated Kapse and filed a closure report.

Unlike the STF, the CBI did speak to Kapse's victims who stuck to the testimony they had given to the Srikrishna commission, and held Kapse responsible for firing without provocation.

But in its closure report, the CBI stated that it did not believe these testimonies. Kapse had arrested these namazis after the firing, and charged them with attempt to murder and rioting.

Hence, the CBI said their accounts could not be relied upon, as they could not be deemed neutral.

The CBI chose to ignore two related facts:

1. The Srikrishna Commission had described Kapse's version that the namazis had been rioting as 'wholly unbelievable, fabricated to support the unjustified firing'.

2. A sessions court had honourably acquitted the victims after Kapse and the investigating officer of the case had failed to substantiate the charges against them in court.

To give the CBI its due, it also spoke to two independent witnesses. One of them contradicted the victims' story; the other supported it.

The CBI chose to believe the former and ignore the latter -- giving no reasons for doing so.

The CBI filed its closure report in December 2011. Farooq Mapkar is still struggling to challenge it.

Does this fate await Pehlu Khan's son? Divided by time and space, there is still one crucial common factor between Pehlu Khan's case and the Hari Masjid case.

In both, the victims are ordinary Muslims and the accused, Hindus backed by the State.

Rajasthan's home minister had downplayed Pehlu Khan's lynching and blamed Khan and his sons for illegally taking cows for slaughter.

Pehlu Khan's sons face criminal charges just as the victims of the Hari Masjid firing did.

But there is also one crucial difference between the two cases.

Farooq Mapkar has been fighting alone and unnoticed. Pehlu Khan's family will not be left to fend for itself.

Former IAS officer Harsh Mander last week sat in dharna at the spot where Pehlu Khan was lynched. The police were reluctant, but finally had to permit his peaceful protest.

When Irshad Khan approaches the Supreme Court, he will undoubtedly have the best and most committed of lawyers to represent him. His case will be reported on the front pages.

Neither the Bharatiya Janata Party government in Rajasthan nor at the Centre can stop this.

Ironically, it was the 'secular' Congress-NCP government in Maharashtra that protected Sub Inspector Nikhil Kapse and thwarted Farooq Mapkar's attempts to get justice.

In the Hari Masjid case, the Bombay high court had asked the CBI: 'Despite all that has happened, all these years the State apparatus has been saying nothing wrong has been done! Don't you feel this matter should be investigated, to restore the confidence of people in the rule of law?'

Alas! That confidence was eroded even further by the CBI's closure of the case.

That cannot be allowed to happen with Pehlu Khan's lynching.

IMAGE: Pehlu Khan being lynched by a mob in Alwar, Rajasthan.