www.sacw.net | 8 February 2005

India: Niyogi Murder Trial

by Rakesh Shukla

In a recent decision, the Supreme Court acquitted Moolchand Shah owner of
Simplex industries and Chandrakant Shah owner of Oswal Iron and Steel
Private Ltd in the Shankar Guha Niyogi murder case. The wheels of justice
having ground have spewed forth the conviction of Palton Mallah for the
murder. Palton is a young man from Gorakhpur involved in petty crime in the
Bhilai region. He had neither any connection nor any animosity towards
Niyogi. Palton was the hired killer. No one has even remotely suggested any
reason why Palton Mallah acting on his own should kill Niyogi. The
conviction of the two industrialists by the trial court appears to be the
only appears to be the only instance of the punishment of someone powerful
for the murder of a social crusader fighting for the exploited.

Niyogi known for his brilliant combination of struggle with constructive
work, was shot dead at Bhilai in Chattisgarh on September 28, 1991. In an
audio tape discovered within days of his assassination by his children,
Niyogi named Moolchand Shah, Kailashpati Kedia of the Chattisgarh
Distelleries and an IG of police as persons conspiring to eliminate him. The
"contract killing" of Niyogi was ordered because he was organizing the
contract workers and demanding implementation of labour laws. The first
charter of demands submitted by Niyogi to Simplex asked for work an
eight-hour working day, regularization of contract work for work of a
permanent nature, living wages, safety appliances, medical and earned leave.
The industrialists reacted by dismissing 4,200 workers. In addition, attacks
were launched on workers by hired thugs.

As per a document seized from the house of Moolchand Shah, an "action plan
tocombat Niyogi" was formulated. Pressure was brought to bear and in
February 1991 Niyogi was arrested. In July 1991, proceedings to extern
Niyogi from Chattisgarh were initiated. However, both these attempts failed
to check the workers movement. This failure of the arrest and externment
seems to have led to the conspiracy which resulted in Niyogi's
assassination. On the basis of ballistic evidence, incriminating documents,
extra-judicial confessions, witnesses, Niyogi's cassette and diaries, the
trial court convicted Moolchand Shah, Chandrakant Shah, the hired assassin
Palton Mallah and three others of murder.

The audio tape and entries in the diary by Niyogi naming individuals
responsible for his death have been taken by the apex court to be of no
particular relevance on the specious reasoning that they "do not refer to an
event which ultimately was the cause of his death". Under Article 32(1) of
the Evidence Act in addition to statements as to cause of death even
statements "as to any of the circumstances of the transaction which resulted
in his death" are also relevant facts in case the person is dead. The
cassette in Niyogi's voice and entries in the diary do indicate
circumstances of the transaction which led to his murder.

Visit to Nepal to for purchase of firearms evidenced by entries of foreign
made firearms on the back of old hotel bills have also been held to not
further the conspiracy on the ground that, "No bills proving purchase of
foreign-made weapons were recovered from any of these accused persons".
There is little chance that a purchase of firearms in Nepal to commit a
killing in India would be accompanied by bills proving purchase.

Watching the movements of a person to work out the best time and opportunity
to eliminate him seems to be something of a standard operating procedure for
assassinations. Recovery of slips from the accused bearing the registration
of the car and jeep being used by Niyogi indicating surveillance by them
have been discarded with a bald, "We are not able to attach any further
importance to these documents". Similarly recovery of a letter from one of
the accused on the day of the murder to another accused stating that Rs
20,000/- had been paid for the job has been held to show that there was
"some money transaction betweenthe second accused and the sixth accused" and
not in any way establishing that it was "consideration for the illegal act
carried out at the instance of the second accused".

The award, as part payment for the assassination, of the contract of a
parking stand in Maurya Talkies has been held to be innocuous. Even
absconding by the accused, generally taken as a sign of guilt, has been
explained away as understandable in view of the murder of a trade union
leader and allegations against the industrialists. Observing that
extra-judicial confession by Palton Mallah naming the industrialists has
only corroborative value, the Court declaring that there is no substantive
evidence acquitted the main persons responsible for the murder.

In a case of circumstantial evidence, there is no direct evidence of
eye-witnesses to the murder. It is the weaving together of the factum of
financial loss due to agitations led by Niyogi, the watching of his
movements, the trip to Nepal to purchase firearms, the audio cassette and
entries in the diary naming individuals, payment of Rs 20,000/- and the
absconding taken together which do seem to establish a conspiracy as held by
the trial court.

The workers of Chattisgarh have struggled for decades for the rights that
are theirs as per the laws of the land. The acquittal of the industrialists
is far more than a verdict in a criminal case of murder. Faith in the rule
of law and the direction of the struggles of the workers is bound to be
impacted by the judgement.

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