“For relief and rehabilitation work, I set up a Committee headed by the Governor. This is the first time in the history of India that after a riot any state government made the State Governor in charge of this job. The Committee also had NGO representatives as well as Leader of the Opposition, ex-Chief Minister, representatives of Chambers of Commerce. It had about 15 members in all and the quantum of relief was decided under the Chairmanship of the Governor. This has never happened before in India. Again, it was for the first time ever that I set up a Committee of three former women judges to sit in the police station for registering complaints of women victims. Normally people must go to the police station to register FIRs. But my government made special arrangements for registering FIRs in the relief camps itself (because NGOs had made a case that the riot victims would be too traumatised to go to police stations to register their FIRs). Special camps for FIRs were also set up in the Circuit House as well as in the Government Guest House.

“The law of the land says that a police FIR should be handwritten (now they can be also be recorded on computer). But almost all the FIRs filed under the aegis of these NGOs are xeroxes – which is in itself illegal. These NGOs made a common template for registering FIRs and got it xeroxed. They then simply filled in the name and location of the concerned person. Even today, the law doesn’t allow for a xerox FIR anywhere in the country. But in Gujarat thousands of cases that were filed were all xeroxes with a set pattern of complaints.

“Certain NGOs had hired full time staff to get these xeroxed forms filled. (The complaints were not written by the victims but by the hired staff of NGOs). The law of the land demands that a complainant has to go personally to the police station to lodge an FIR. But I allowed FIRs to be registered in relief camps plus those set up in Circuit House, etc, because I did not want that injustice should be done to anyone. My job as CM was to control the riot, to help the affected people and to ensure that those treated unjustly should get justice.”

NGOs working at the behest of the Congress party and some elements within the Muslim community took advantage of this situation by xeroxing (making copies) in bulk a standard form for registering complaints in which victims were asked to fill any name they chose as the accused. They were even instigated to settle old personal scores and name not just the real culprits but all and sundry among the BJP cadre.

Even so, in 2002, none had mentioned Kodnani's name as an accused or accomplice in the riots, leave alone implicate her as a “mastermind”. Therefore, not a single FIR was filed with Kodnani’s name as an accused. Her name suddenly cropped up when the Congress party came to power a second time, and the Supreme Court admitted a public interest litigation filed by Setalvad and Zakia Jafri, wife of Ehsan Jafri, to appoint a Special Investigation Team (SIT) to investigate the role of Modi along with all senior bureaucrats and cabinet ministers in allegedly instigating the 2002 riots. It is at this time that witnesses were mobilised by Setalvad to name Kodnani as a prime accused in the 2002 riots, because by then Kodnani was a minister in Modi’s cabinet. It is unprecedented in the history of criminal jurisprudence anywhere in the world that six years after an alleged crime, the judiciary orders the police to file an FIR against an individual who had never been accused of any wrongdoing previously; nor was there any mention of hers before the Inquiry Commission headed by Justice G T Nanavati.

All of a sudden, 11 witnesses accused her of “masterminding” the riot. Rais Khan, the right-hand man of Setalvad for collecting evidence from riot victims, told me in a recorded video interview that Setalvad made innumerable Muslims file false affidavits. In many cases, the complainants did not even know what was written on their behalf. Most of these false witnesses could not hold on to their claims during cross-examination. The testimonies of 11 residents of Naroda Patiya, who testified against Kodnani, may well have collapsed but for the willingness of Judge Yagnik to humour their evidence. Khan also alleged that Setalvad paid a monthly allowance as well as lump sum amounts to most of the witnesses. The role played by Setalvad in influencing the political narrative of the 2002 riots is worth hearing in the words of Khan. (Watch video interview here and here.)

Why Kodnani appears to be falsely implicated

If we examine the schedule of Kodnani on the fateful day and compare it to the charges on which she has been booked, it seems likely that some of the testimonies of witnesses can be doubted.

On 28 February 2002, the day the riots broke out in Ahmedabad and several other places in Gujarat, Kodnani’s movements are easy to track for the crucial part of the day because there is audio-visual evidence of her presence at key places; on the other hand, there is flimsy and mutually contradictory evidence by way of statements of witnesses vouching for her presence in places where she allegedly instigated riotous mobs.

Kodnani’s presence in the state assembly is recorded in the video footage of the day’s proceedings. She left home at around 7.45am to attend the special session of the assembly called to pay tribute to those karsevaks who were burnt alive the previous day at Godhra. The footage shows that the session started at 8.30am and concluded at 8.40am. The time is established by the fact that the camera pans to the wall clock in the assembly just as the shraddhanjali meeting ends. The clock shows the time to be 8.40am. In that very shot, Kodnani is visible as one of the participants of that meeting. (Here is the video.)

This meeting took place in the hall on the second floor of the secretariat. Thereafter, Kodnani came down with MLA Amrish Patel of Asarwa. The SIT accepted Patel’s statement about having walked down with Kodnani after the 8.40am meeting, but Judge Yagnik did not call him to court to testify even though he was chargesheeted as a witness. Yagnik declined to summon Patel, saying it is the right of the prosecution to call who they want as a witness. While it is indeed the prosecution’s privilege to summon whoever they think to be essential to prove their case, the accused also has the right to include a witness who endorses her version to prove the version of the prosecution to be malafide. Kodnani insisted on Patel’s testimony and asked that he be brought in as a court witness. But the judge overruled her plea.

Back to that morning, Kodnani came down in an elevator and walked down all the way to a distant car park to drive her private car – a Maruti Esteem. As an MLA in 2002, (she was not a minister at that time) she was not entitled to a chauffeur-driven car. But Judge Yagnik had this to say in her judgment: “She, being minister, she must have been escorted; the area must have been cleared for her”. But the fact is, Kodnani become a minister only in 2007. In 2002, she was just an MLA and, therefore, not entitled to police escort.

Kodnani probably left the Vidhan Sabha premises around 9.15am because it took her that much of time to go down the assembly building and walk through the car park to reach her vehicle. From there, she went to Sola hospital in Sarkhej area, which is situated on the Gandhinagar highway. This is the hospital where all the dead bodies of the Godhra-Sabarmati Express carnage had been brought. The special reason for her visit to Sola hospital was that three persons of her neighbourhood had been burnt alive in the train fire. One of them was the father of a nurse employed in her hospital. She wanted to help nurse Lata and others of her neighbourhood to get the bodies released from the hospital expeditiously.

CCTV and media recordings at Sola hospital

Kodnani reached Sola hospital around 10am covering a distance of about 22km from Gandhinagar Vidhan Sabha – almost at the same time as Amit Shah arrived there separately. They were confronted with a mob of angry Hindus outraged at the brutal way in which a Muslim mob had stoned and allegedly set fire to a bogie full of karsevaks. The Hindu mob at the hospital surrounded her and Shah – both of whom were pushed around and abused. But they managed to enter and get the doctors to expedite the release of dead bodies to the relatives.

As they came out of the hospital escorted by a police inspector, the crowd was still agitated and unruly. This is also recorded in the video footage of various media persons who were covering that morning’s happenings at the hospital (See video here).

Given the mood of the mob and realising that it was not safe for her to travel alone in her car, both Shah and Kodnani left their respective vehicles behind. Instead, they travelled together in a police jeep. Some party workers followed the jeep in Kodnani’s car. Inspector Lathia, who was on duty at Sola hospital, gave instructions to his driver, Kantibhai Solanki, to drop Kodnani and Shah at a safe place. She was dropped at RTO circle, Shahibagh, while Shah got off earlier at Gotha Chowkadi.

Judge Yagnik did not call either Shah or Solanki as witnesses. It is only recently, after her appeal, that Kodnani was allowed to call witnesses who have the evidence to corroborate her innocence. These witnesses might well have contradicted the charge that from 8.30am to 10.30am, Kodnani was instigating mobs at Naroda Patiya.

The news of Kodnani’s visit to Sola Hospital and the hostile response she received there was carried all day by Sandesh TV channel on 1 March 2002. This evidence was put before the court, but Judge Yagnik did not take it into consideration. Even the 7pm Doordarshan news bulletin had given coverage to the Sola incident. In this video recording, Kodnani is shown going in at about 10am and coming out of the hospital with a policeman. But none of this impressed Judge Yagnik.

Simple logistics go against the logic of the judgment

It is noteworthy that the Gujarat Vidhan Sabha and Sola Hospital are 22km apart. And from Sola to Naroda Patiya through the crowded city, the distance is another 23km. In 2002, there was no express highway between Ahmedabad and Gandhinagar. Therefore, vehicular movement between the two cities on the old two-lane road was much slower. Even city roads were not as good as they became later. If the court tried to reconstruct the events of the day, it could well have developed doubts about whether Kodnani could have been sighted at Naroda Patiya at 8.30am, or even 9.30am or 10.30am, as claimed by all the 11 witnesses. Since there is video evidence that till 8.40am she was in the assembly hall, there is no way she could have gone to Sola, spent some time there and yet be present in Naroda Patiya between 8.30am and 10.30am.

Mobile phone records also ignored

Similarly, mobile phone records placed before the court by the prosecution show her location at Sola Hospital from 10am onwards. Likewise, the phone records prepared by the police officer J S Gedam, who was deputed to the SIT, showed that Kodnani’s mobile number was nowhere close to Naroda Patiya till 12.37pm. These were placed before the court, but Judge Yagnik discounted the validity of that piece of evidence by saying that since the bill of that mobile phone was being paid by the BJP office, “we can’t be sure if Mayaben was personally using that phone”. The analysis of phone call details from 27 February to 4 March was available, but the court did not check if Kodnani was using that phone or not.

Kingpin of conspiracy but not part of “unlawful assembly”

On that particular day, large parts of Gujarat were burning. Most others accused of involvement in the riots have been punished under section 149B (being part of unlawful assembly). Even though Judge Yagnik gave Kodnani the benefit of doubt under the charge of ‘unlawful assembly’ because her presence could not be established beyond reasonable doubt, yet she called her the “kingpin of the conspiracy”. One wonders how Kodnani could instigate a murderous mob if her very presence as part of that unlawful assembly could not be established.

NGO-propped witnesses

Now let us look at the evidence brought forth by Setalvad through 11 witnesses.

1) Amina Abbas: While Abbas was an inmate in the Shah Alam camp, she was interviewed by Setalvad for a special issue of Communalism Combat (CC), of which Setalvad is the owner-editor. The issue was titled ‘Genocide’. This bizarre exaggeration and overstatement itself shows the provocative slant of the CC team. The killing of 863 Muslims and 262 Hindus in the week-long riots of 2002 can be termed a “genocide” of Muslims only by someone keen on promoting a persecution complex among an already volatile minority. (The death tally has been vetted by the Supreme Court-monitored SIT.)

Coming back to Abbas’s story, in the entire interview, she doesn’t once name Kodnani as the one responsible for or as an instigator of riots in Naroda Patiya. And yet in 2008, for the first time, she alleges that at 8.30am, Kodnani came with her personal assistant to Naroda Patiya and got off from her car in front of Noorani Masjid to instigate the mob to riot. Abbas goes on to say that because she was wearing her work uniform – that of a security guard – the mob took her to be a policewoman. She claimed to have heard Kodnani say, “Maro, kato (kill them, cut them up).” Thereafter, Kodnani allegedly fired a pistol shot and left.

Abbas’s testimony appears questionable for these reasons:

As mentioned earlier, till at least 8.40am, Kodnani was in the assembly and took at least 20 minutes to reach her car and drive out. Naroda Patiya is at least 45km from the assembly. There is no way Kodnani could have been in two places at the same time unless someone saw her clone.

Abbas’s normal “service hours” used to be from 3pm to 10pm. On 27 February, seeing the disturbed atmosphere following the Godhra train massacre and the bandh call given by the Vishva Hindu Parishad (VHP) and the BJP, the owner of the establishment where Abbas worked had declared the establishment closed on 28 February. So what was Abbas doing in her service uniform that early morning, much before her duty hours? The response of ordinary citizens who do not wish to be part of mob violence is to stay away and not go snooping to hear who said what to whom.

Kodnani has never had any weapons licence and, as an MLA, she was not likely to have carried an unlicensed weapon. All through the trial, no attempt was made to recover the revolver allegedly used by Kodnani.

On that morning, the police did not escort Kodnani, as deposed by Abbas. As an MLA, she was not entitled to police escort.

In her deposition, Abbas doesn’t explain how she came to be included as a witness in this case. In fact, the answer she gave is in itself suspicious: “I don’t remember who called me, or who took me to Gandhi Nagar. All I remember is that I sent an application to SIT saying, ‘I have some important information to give regarding Naroda Patiya’.” That is why the SIT just recorded her statement, but it did not subject it to scrutiny or verification. In her cross-examination, it became apparent that after Abbas appeared against Kodnani, she accompanied Setalvad on several foreign trips. She used to be a small-scale money-lender in the area before the 2002 riots. But ever since she made common cause with Setalvad, she has become a jet-setter.

One-line testimonies of this kind have been taken at face value and used to send Kodnani to 28 years in jail even when she has strong evidence to support her non-involvement.

2) Dildaar Umrao: The second main witness in the case said, “Madam came around 11.45 am, stopped her car near Panchwati Estate. From there she signalled her workers to come near her. Thereafter she opened her car dickey and took out swords and other weapons which she distributed among her party workers.” However, between 2002 and 2008, Umrao had given testimonies to four or five other agencies before giving this statement to SIT. In none of the earlier statements did he implicate Kodnani. Like the others, he too mentions her name for the first time in 2008.

Umrao is also a close associate of Setalvad, and has accompanied her for several meetings in Delhi and elsewhere. He used to work as a kabaadi (buyer and seller of junk and waste products). But after meeting with Setalvad, he stopped that work.

3) Abdul Majeed: Majeed was the third important witness. He had lost five members of his family in the riots. He too gave statements to the police and to the Crime Branch, etc, soon after the riots in 2002. But he too had never named Kodnani in any of his earlier statements to different agencies.

The rest of the eight witnesses merely described her presence in different locations. They echo what Abbas said about Kodnani having called her party workers and told them to go on a killing spree. They all claim that they saw her addressing a mob of 15,000 to 17,000 persons. Two of the witnesses had said that she stopped near the gate of the ST workshop at Naroda Patiya, spoke with the police Inspector, K K Mysorewala, gave him some instructions and drove away.

In all, 200 Muslim witnesses were examined in this case. Out of 200, only 11 spoke of Kodnani’s presence. (And none of these 11 even mentioned her name prior to 2008. It took them a good six-and-a-half years after the actual events to implicate Kodnani.) None of the other 200 witnesses mentions anything about Kodnani, leave alone she distributing weapons to the mob. If she had indeed publicly distributed weapons and fired gunshots, surely this merited more witnesses.

Contradictions in witness accounts

Many of the witnesses contradict each other about the time and place at which they spotted her. They also give contrary descriptions of whether the person accompanying her was her personal assistant or her driver. If they had actually spotted Kodnani, the description of the person who allegedly accompanied her should have been similar, if not identical. The court of Yagnik did not cross-question these witnesses for giving contradictory statements about the person allegedly accompanying Kodnani.

The first FIRs had mentioned five accused by name and described a mob of 15,000-17,000 that went on a rampage. Out of the five accused that were named from day one, three have been acquitted even though the police as well as the Crime Branch said in their depositions before the court that there were five main instigators of violence against whom several Muslim witnesses had testified.

It is noteworthy that none of the journalists covering the Naroda Patiya massacre ever named Kodnani when their reports were published during the riots or even weeks or months after the killings. As said earlier, even Setalvad’s Communalism Combat did not name her in its special issue of March 2002. And yet she was treated as a “kingpin” of the riots by Judge Yagnik.

Police inspector Mysorewala, who had accompanied her on 28 February 2002, did come and testify before the court that Kodnani did not come anywhere near the murderous mob on that fateful day.

Her phone location, as per mobile tower records, shows that she came to Naroda Patiya at around 12.37pm. That is the time she came to her hospital building, where her MLA’s office was also located. Her office is barely 500 metres from the site where the murders took place. But not a single witness claimed to have seen her at 12.37pm.

Contradictions in the Naroda Patiya case

Judge Yagnik was also given charge of the Naroda Gam killings. This village is about 2.5km from Naroda Patiya. In the Naroda Gam case, the same five witnesses who testified about her presence in Naroda Patiya said that Kodnani was in Naroda Gam from 10am to 10.30am – the very time she was at Sola hospital. Judge Yagnik could have checked whether the same five people could have witnessed Kodnani’s presence in two places 2.5km apart. The normal response of members of a community under attack is to run for shelter and not to shadow the alleged leader of a murderous mob.

Four witnesses allege that she came and communicated through certain signs to the 8,000-10,000-strong mob and then gave a fiery speech and left. One witness went on to say that she took out a volatile liquid from her car dickey and gave it to the mob. The Naroda Gam case was handed over to Judge K K Bhatt after Yagnik retired.

Senior officials’ testimonies ignored

The first defence witness from Kodnani’s side was executive magistrate Dheeraj Lakhabhai Rathode. However, because he had deposed in favour of Kodnani’s version in the Naroda Gam case, Judge Yagnik dropped him from the Naroda Patiya case and discounted his testimony. This, despite the fact that he was on duty at Sola hospital on 28 February morning and confirmed Kodnani’s presence at the hospital from about 10am onwards. Given that magistrate Rathode’s testimony is backed by video-recorded evidence, Yagnik’s decision to not include his testimony seems questionable.

The second witness in favour of Kodnani was yet another executive magistrate, Kantibhai Bhikhabhai Soni. Since he too confirmed Kodnani’s presence at Sola (as recorded on video) in the Naroda Gam case, he too was dropped in the Naroda Patiya case, even though he was a prosecution witness.

The third witness, police inspector Mansukh Lathia, gave his statement before the SIT for both the Naroda Patiya and Naroda Gam cases. But he could not depose in court because by the time Yagnik was handed charge of the case in 2008, he had migrated to and settled down in the United States. He could have easily been summoned or cross-examined through video conference, but this was not done. He was the one who sent his driver Kantibhai Solanki to drop Kodnani at a safe place.

It is noteworthy that the driver Solanki deposed in the Naroda Gam case but he too was not called for the Naroda Patiya case. He was the one who had dropped Kodnani at RTO circle, where she got her car that had followed the police jeep. From there she had gone to the Ahmedabad Civil Hospital, where some of the injured persons in the Godhra train as well as those injured during the riots of 28 February morning were being brought in. There she met the MLA of the area, Amrish Patel.

Thereafter, she drove to her own hospital to attend to an emergency delivery, which is also part of the hospital record. Between 3.30pm and 3.45pm, Kodnani left her hospital and went back to Civil Hospital. The Superintendent of this hospital, Dr Anil Chaddha, is a witness and issued a statement before the SIT that Kodnani had come and met him to enquire about the patients. This person too was dropped from the Naroda Patiya case even though he was a chargesheeted witness.

From Civil Hospital, Kodnani came back home and stayed there till the next morning. Her mobile phone records confirm all of these locations.

On the other hand, not a single video or audio recording has been produced to authenticate Kodnani’s participation in the killings. Her presence at Naroda Patiya would mean that she traversed the long distance from the Vidhan Sabha, which she left at about 9am for Sola hospital, and then came to Naroda Patiya, travelling a distance of about 45km in a self-driven car, distributing weapons, delivering speeches at three places, including Sola, all in a matter of an hour, that too at a time when Ahmedabad roads were poor and there were two railway crossings en route.

Kodnani’s video-recorded behaviour and body language are revealing. The facts point to a totally different persona. Though Kodnani is shown on video being jostled around and yelled at by angry relatives and others who had gathered at Sola hospital, she doesn’t speak a word, leave alone instigate the angry relatives. Instead, she quietly slips out. If she was in a mood to provoke the already agitated crowds, Sola was a good place to do so. But she maintains her calm. Why then would she go and provoke violence in an area which is populated by her neighbours, many of whom were also her patients and whose children she had delivered over the years? A person who has been a life-giver is not suddenly likely to turn into a mass murderer, especially since Kodnani did not have any such history before that fateful date.

The “sting” by Tehelka

Another bit of corroborative “evidence” used by the court against Kodnani is the so-called sting operation by Ashish Khetan, then with Tehelka. Firstly, there is no sting operation on Kodnani. Instead, two of the accused – Prakash Chhara and Suresh Langda – are shown talking to each other in an inebriated state. Khetan asks one of them: “On that day (28th February 2002), which all politicians came? Did Mayaben come?” At this Chhara asks Langda, “Did Maya Kodnani come?” Langda says: “Yes, she came for a little time.” Chhara then asks: “Didn’t she go around in an open jeep? Did not Narendra bhai also come on that day?”

At this Khetan asks with mock surprise: “Narendra bhai?” Langda says: “Yes, he came in front of our house, patted us on the back and said, you are doing good work [meaning setting people’s homes on fire and killing them brutally].” It is noteworthy that the Supreme Court-appointed SIT did not find any evidence of Modi having gone around the city encouraging mob violence, as alleged by these two. But Yagnik takes them seriously even though both contradict each other.

Chhara’s statement does not state any time and instead makes a vague assertion that “she used to go around all day in an open jeep”. And yet, this has been treated as definitive evidence to prove that Kodnani was a co-conspirator in the riots.

What’s more, the sting operation was of 90 hours’ duration over several visits. Khetan edited and cut it into a one-hour video which was provided to Aaj Tak for telecast. This was relayed by the channel just before the appointment of the SIT by the Supreme Court.

Normally, courts do not accept edited recordings as definitive evidence because the likelihood of tampering and distortion is very high. But in this case, one stray sentence without any substantiation was used by Judge Yagnik to condemn Kodnani to 28 years of imprisonment.

It is interesting to note that Chharu and Langda blurted a lot more during that drunken conversation with Khetan. They named a lot more people. But the court did not haul up any of the rest. Judge Yagnik’s focus was on the part that indicted Kodnani.

As long as the UPA government was in power, Kodnani was not even allowed bail even though her health deteriorated dramatically while in jail. According to her doctor, unable to take the shock of her conviction, she sank into deep depression that was made worse by the kind of medical treatment she was subjected to while in jail. Her husband had to intervene firmly as they were about to give her the fourth ECT.

Overconfidence also did her in

Knowledgeable people say Kodnani suffered this fate because she was so confident of the video evidence and testimonies of credible witnesses that she did not even bother to hire a personal lawyer. In all, there were 62 accused in this case and all of them had a common lawyer appointed by the Government of Gujarat, which had also been put in the dock for orchestrating the killings. Kodnani was part of the 62 accused that the government-hired lawyer defended en bloc. Of the 62, 31 were acquitted and 31 convicted.

It is unlikely that she got the best defence possible.

It is highly likely that, like Kodnani, many innocents may have been framed for political reasons, while those who were really guilty got away with murder.

Kodnani has appealed against this order in the High Court, pleading that she has been falsely implicated. One hopes she can get justice.

(Madhu Kishwar is founder of Manushi and ICSSR Maulana Azad National Professor)