PUDR has all along been concerned with high profile cases be it the Rajiv Gandhi assassination case or the Parliament attack case as they raise serious issues pertaining to criminal jurisprudence. The judgement on the Red Fort attack delivered by a Delhi session’s judge, OP Saini is a very important one as it links waging war squarely with the attack on the Red Fort, based wholly on circumstantial evidence.
Unfair Verdict is a critique of the judgement and the conclusions arrived at are based on careful perusal of the facts presented before the court. Some of the main points which deserve mention are:
- Court’s willing suspension of disbelief: The report shows that when a person is charged with waging war (S. 121, IPC) and for criminal conspiracy (121A), there is a willing suspension of disbelief within the judiciary and the trial court, in particular. Once a person is accused of being involved in a ‘terrorist’ attack or charged with ‘waging war’, or even ‘criminal conspiracy to wage war’, it results in the judiciary relaxing procedures and providing the investigating agency as well as the prosecution with wide latitude. [See Chapter on main accused, Mohd. Ashfaq]
- Shoddy investigation and disregard for procedures: The investigation conducted by the Special Cell headed by IO, SK Sand shows how the police disregard procedures and conduct a shoddy investigation. For example, three encounters happen in the course of investigation, recoveries are made without proper seizure memos or in the presence of public witnesses, improbable discoveries are made (such as the recovery of the mobile phone from the main accused, Ashfaq or the incriminating letter from Babar Mohsin’s motorcycle) and fake witnesses are produced to indict the accused. [See in particular, Chapter 4, Our Findings] The entire findings based on a recovery of a slip with a mobile telephone number do not establish a chain of events which are above and beyond reasonable doubt. The judge’s acceptance of the prosecution theory of waging war and criminal conspiracy is therefore an unfair verdict.
- Unsubstantiated story of conspiracy: The prosecution’s account of the linkages between Hawala transactions with the attack on the Red Fort is not a wholly credible one. The argument that the Quasids disbursed money to LeT militants is nowhere established; telephonic contact between Ashfaq and Quasids is neither regular nor frequent as claimed by the prosecution; no materials are provided to prove that the conspiracy was hatched in the Quasids’ house. Yet, the judge convicts them for waging war, conspiracy to wage war and criminal conspiracy. [See Section on Quasids]
- Refusal to investigate the Nain Singh connection: Ashfaq’s 313 statement squarely indicts Nain Singh (public witness 20) as one responsible for Ashfaq’s stay in Delhi, business in money transactions and also the person who called Ashfaq to his house the day before his arrest and Ashfaq was interrogated by plain clothed policemen. In court, Nain Singh refused to disclose whether he worked for the RAW. The police’s refusal to investigate the Nain Singh connection and the judge’s dismissal of Ashfaq’s statement are very serious as they foreclose the possibility of an alternative chain of events, different from the one that the prosecution offered. [See box, The story of Ashfaq p. 14-15]
- Communal bias: The investigation in to Sadakat Ali’s for harbouring and concealing the main accused, Ashfaq’s intentions, is a clear case of how communal stereotyping worked. The case against Ali is that he rented his premises with foreknowledge. However, the fact that the prosecution has no real theory of where exactly Ashfaq stayed in Delhi and that a police informer was produced to indict Ali points to bias in investigation. The prosecution admitted that he did stay in the house of Nain Singh but no case is launched against him. [See, Where did Ashfaq stay p.15-16 and Sadakat Ali p. 23-25]
- The weak case of harbouring and concealing: THe conviction of three others Babr Mosin, Rehmana and Matloob Alam is unfortunate to say the least. Babr Mohsin is dragged in to this case on extrmely filmysy ground and Rehmana is held guilty primarly on marrying Asfaq. Neither had anything to do with attack or with the conspiracy. The case against Matloob Alam is astounishing as judge find more than what the prosecuton established (that he was a petty forger) and says that Alam forged Asfaqis ration card and helped him with the Indian identity. (see chapter 3)
Unfair Verdict is an account of how a fair trail was not given to these accused.
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