Tale of 2 Mumbai blasts verdicts: Five ways in which the special MCOCA court and Bombay High Court differed
The findings of the HC, based on a scrutiny of almost 44,000 pages of evidence, diverged sharply from those of the special MCOCA court that had sentenced 12 of the 13 accused in 2015. The thirteenth accused was acquitted.
The two courts arrived at contrasting conclusions on several key aspects of the case – from allegations of custodial torture and the validity of test identification parades to the reliability of eyewitness testimony and confessional statements.
Consider the following:
THE HIGH COURT said that the truthfulness of the confessional statements – on which the prosecution had placed heavy reliance – was in doubt, as they were extracted through torture.
'Confessional statements were not found to be truthful and complete on various grounds, including some portions of the same were found to be similar and copied. The accused succeeded in establishing the fact of torture inflicted on them to extort confessional statements,' the HC said.
THE SPECIAL COURT had accepted all the confessions as being true.
'I have no hesitation in accepting all the eleven confessional statements made by the eleven accused as voluntary, true and trustworthy. It is settled law that the confessional statements so made under section 18 of the MCOC Act is substantial evidence. Hence, there is no legal impediment in acting upon them to draw the conclusions against their makers as well as against the coaccused named in them. There is not even a single confessional statement that is exculpatory. I have to, therefore, hold that the prosecution has proved beyond reasonable doubt that the confessional statements given by the A1 to A7 and A9 to A11 [where A stands for 'accused'] are voluntary, true and trustworthy,' the Special Court had said in its 2015 judgment.
Under the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), a confession made before a police officer above a certain rank is admissible as evidence.
THE HIGH COURT, in its judgment, said that the accused had succeeded in establishing the fact of torture inflicted on them to extort confessional statements.
THE SPECIAL COURT, however, had said there was 'no evidence' for torture.
'It is very easy to make allegations of torture [in custody],' the court said, adding the allegations had been made very belatedly, and 'they have obviously come out of legal minds'.
'It is unacceptable and it does not appeal to the reason considering the alleged unbearable levels of torture for so long that not a single out of all the accused would not have complained, though duly represented by advocates, i.e., having the legal assistance. This is India where even a Pakistani terrorist gets a fair trial and fullest opportunity,' the court said.
It noted that there 'is no evidence to substantiate their allegations about the torture'.
THE HIGH COURT said that while the alleged connections of the accused with Pakistani mastermind Azam Cheema and members of the terrorist organisation Lashkar-e-Taiba could have been established with the help of call data records (CDRs), the prosecution seemed reluctant to provide these details.
'…The reluctance of prosecution to bring the CDRs on record and destruction of the same raises an adverse inference against the prosecution,' the HC said.
THE SPECIAL COURT was not that concerned about the CDRs.
'This is an inferential evidence and the CDR does not and will not show the location of a particular person at a particular place. It will only show location of the mobile handset as is admitted by the A7 in his crossexamination. Absence of calls at particular time will not raise any inference about a particular person or accused being not present at a particular place,' it said in its verdict.
THE HIGH COURT looked into the examination of eight witnesses, which it categorized under four categories: taxi drivers who drove the accused to Churchgate railway station; witnesses who saw the accused planting bombs in the trains; witnesses to the assembling of bombs; witnesses to the conspiracy.
The court ruled that the first category, which included two taxi drivers, were 'held to be not trustworthy and cannot be made basis for conviction'.
It said that it had reached this conclusion in view of aspects such as the fact that they were silent for 100 or more days after the incident.
'We observed that both the witnesses could not get sufficient opportunity to interact, to observe and to store the face of the accused in memory. Hence, we held that their evidence is not safe to base conviction,' the HC said.
THE SPECIAL COURT had a different take, especially on taxi driver Santosh Singh.
'In my humble opinion it is clear from the above discussion that the evidence of Santosh Singh, PW63, is a cogent and convincing evidence and his credibility has not been impeached during his crossexamination,' the special court said in its judgment in 2015.
THE HIGH COURT also discarded the eyewitness accounts of the men who allegedly saw the accused plant the explosives in the train.
'These witnesses identified the accused in the court after more than four years. We, therefore, again examined the evidence of the witnesses to find out whether there was any special reason for these witnesses to recollect the faces of the accused after such a long period and for that we tried to find out whether these witnesses had sufficient opportunity or interact or observe or to see the accused to enable them to recollect their faces after such a long period.
'On scrutiny of evidence of PW-57 and PW-62, we do not find any such special reason or any other reason for triggering of their memory and to recollect the faces of A.1 and A.3. Therefore, on this count and the other reasons recorded, we have observed that the evidence of these witnesses cannot be made basis for conviction,' the court said.
The HC also discarded the account of yet another eyewitness, Vishal Parmar, saying that he appeared to be a stock witness.
'The evidence available on record shows that he acted as a panch witness in four crimes out of which three were of DCB CID (Detective Branch, Criminal Investigation Department) and two cases were related with PI (Police Inspector) Tajne,' the HC verdict states.
THE SPECIAL COURT had taken the accounts of all eyewitnesses, including Parmar, into consideration.
'The evidence of Vishal Parmar, PW74, is unimpeached and a cogent evidence and looking at the facts and circumstances of the case it cannot be said that he is a got up witness or that his evidence is fabricated. I have, therefore, no hesitation in accepting his testimony,' the special court judgment stated.
THE HIGH COURT agreed with the defence that Shashikant Barve, who conducted the test identification parade (TIP), was not a Special Executive Officer (SEO) when he conducted the exercise, as his appointment as SEO had lapsed in July 2005, and was renewed only on November 11, 2006. The TI parade, in which the witnesses identified the accused, was conducted on November 7, 2006, when Barve was not the SEO.
'We have no hesitation to hold that on the date of T.I. Parade, i.e. 07/11/2006, Shri. Barve (PW-82) had no authority to conduct T.I. Parade, and hence, the T.I. Parades of A.1, A.3, A.12, and A.13 conducted by him vitiate and need to be discarded,' the HC ruled.
THE SPECIAL COURT, however, had ruled in 2015 that Barve was an SEO when he conducted the parade.
'It cannot be said that as on the date of the test identification parade SEO Barve, PW82, was not an SEO having authority to hold the test identification parade. To my mind, no person will dare to work as such if his appointment is not in force,' the court had said.
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