The Gujarat High Court, in its judgement on the 2002 Godhra carnage, has upheld the conspiracy theory but said the crime of the 11 convicts whose death sentence was commuted to rigorous life imprisonment was neither terrorism nor an act of waging war against the state.
The division bench of Justice Anant S Dave and G R Udhwani, in the order made available today, pulled up the state government for failing to maintain law and order, saying the state failed to apprehend the trouble considering the circumstances prevailing then.
It also said that the Ministry of Railways did not take "measures to ensure safety of the passengers or to provide alternatives" considering that the Sabarmati Express, a coach of which was burnt killing 59 kar sevaks, was "overcrowded." The court yesterday commuted the death sentence of 11 convicts to rigorous life imprisonment, while upholding the life sentence of another 20 in the case.
The court commuted the death sentence of 11 convicts to life imprisonment relying on observations made by the Law Commission of India which recommends that the death penalty be abolished for all crimes other than terrorism related offences and waging war.
"The cases on hand have no genesis in the act of terrorism or waging war against the state," the court said.
"Death penalties eliminates a person to a point of no return. While considering the question of sentence to death, a duty is cast upon the court to deliberate on various facets of sentence and to immunise itself to avoid branding imposition of death sentence as `judge centric' or `blood thirsty'," said the judgement.
The court said the fact that the coach of Sabarmati Express Train that was set on fire killing 59 kar sevaks was overcrowded, and that more than 100 persons could disembark safely on the other side.
"Overcrowdedness in the coach contributed to the enhancement of number of casualties which, in our judgement, might have been far far low in absence of the coach being overcrowded with double the official capacity of the passengers and the luggage," it said.
The fact that 100 passengers could escape suggested that while "the accused had the intention to cause death and maximum damage, they did not intend to enhance the number of casualties," the court said, adding that it would rather settle for rigorous imprisonment for life.
While ordering compensation to the kin of the deceased victims to the tune of Rs 10 lakh, the court pulled up the state over the law and order situation.
"Constitutional obligation to maintain law and order obligated the state to ensure safety of the persons who ventured to go to Ayodhya for Aahuti, etc. Furthermore, Signal Faliya, Godhra is highly sensitive communal riots prone zone to the knowledge of the state," the court said.
"In the above factual scenario, the government ought to have apprehended the trouble at least in sensitive areas like Signal Faliya wherefrom the train was scheduled to pass," the court said while ordering compensation of Rs 10 lakh to the kin of the deceased.
It said the Ministry of Railways was also "negligent in performing the duties for providing safety to the passengers travelling in the trains."
The court upheld the conspiracy theory, saying that emergence, pattern, nature, ignition, colour of flames and temperature in centigrade along with smoke and fire in coach S/6 of ill-fated train based on replies by experts "persuade us to reject theories canvassed by learned counsel for the defence about fire in the coach was due to unknown cause other than the conspiracy for which proper method of investigation in the cases of arson was not followed."
The court was hearing a batch of petitions challenging the special SIT court which had on March 1, 2011 convicted 31 people and acquitted 63 others in the case.
The lower court had accepted the prosecution's contention that there was a conspiracy behind the incident.
The Justice Nanavati Commission, appointed by the Gujarat government to probe the carnage, had concluded that the fire in the S-6 coach of Sabarmati Express was not an accident, but the coach had been set ablaze.