The Hindu : Prosecution evidence fails on many counts

Online edition of India's National Newspaper
Wednesday, Dec 11, 2002

Opinion

Opinion - News Analysis

Prosecution evidence fails on many counts

By Anjali Mody

New Delhi DEC.10. The prosecution, on the basis of a questionable telephone record, has linked Mohammed Afzal to the five slain terrorists who attacked Parliament. Then it attempted to construct an unwieldy web of connections, based on telephone records and eyewitness accounts, between the four accused, who have never denied knowing each other. The suggestion is that there is something suspicious about their knowing and meeting each other.

And the technology-heavy evidence the prosecution has relied on to build its web of connections, fails on many counts. Apart from phones and SIM cards which were tampered with, call records which contradict the dates of ownership, there is evidence that the telephone records are not necessarily technically sound. The call records for phones, said to belong to Mohammed Afzal (9811489429) and his cousin, Shaukat Hussain, (9811573506) show that two calls were made from 9811489429 and received by 9811573506 at exactly the same moment in time but from two different mobile phone instruments. This technical impossibility has never been explained. The Defence has argued that it raises doubts about the reliability of such evidence.

Prior to the High Court order, defence had proved in court that the police translation of the conversation in Kashmiri between S.A.R. Geelani and his brother, Shah Faisal, included words and sentences that were not spoken by either. These interpolated words and sentences could be imaginatively interpreted to suggest that the brothers were talking about the attack. The prosecution went so far as to suggest that this conversation was proof of Geelani's part in the conspiracy. Curiously it did not suggest any such thing about Shah Faisal, who, going by the police translation, would also have been in the know.

In the case of the conversation between Afsan Guru/Navjot Sandhu and her husband, Shaukat, the defence said that there was no intercept. Afsan denied the police claim of a conversation intercepted on December 14 prior to her arrest the next day. She said that she was arrested on December 14. An independent witness testified to this. Afsan also said that she did not have a mobile phone and did not have a conversation with her husband.

Showing a curious disregard for their own procedures, police failed to fulfil important pre-conditions for a trial, like procuring the relevant sanctions from the Lt Governor and the Police Commissioner for prosecutions under section 196 of the Cr.PC and section 7 of the Explosives Act. The only ``sanction'' the court saw was purported communications from an officials referring to the granting of the sanction. The order granting sanction was never produced in court. And nor, as was customary in TADA cases, was the Police Commissioner present to prove his sanction.

The police also employed legally dubious methods for obtaining positive identifications of the accused by eyewitnesses and their links with the dead terrorists. In each case police witnesses, landlords and shopkeepers, stated that they were shown pictures of the bodies of the five terrorists and asked whether they recognised them. The police also told them that the men with them — Afzal and Shaukat — were involved in the attack and then asked if they recognised them.

Given the shoddiness of the police investigation, the unreliable quality of evidence they presented, and procedural gaps, the ``confessional statements'' of Shaukat and Afzal were the most significant part of the case. According to the prosecution, the confessions recorded by the DCP, Ashok Chand, Delhi Police's Special Cell, were an admission of their guilt. Shaukat's statement also implicated his wife, Afsan, who was pregnant at the time. And Afzal's statement implicated Geelani. However, Shaukat Hussain said that the confessional statement attributed to him was not the one he made. Afzal said that his so-called confession had interpolations, including the references to Geelani. Evidence from a TV journalist strengthens Afzal's claim. Prior to making the `confession', the police presented Afzal to three TV channels. During the interview with an Aaj Tak journalist, Shams Tahir Khan, the police officer present, ACP, Rajbir Singh, aggressively interrupted Afzal and shouted at him saying ``I have told you not to talk about Geelani''.

During the trial, Shams Tahir Khan told the court that Rajbir Singh had also' requested' him to edit out the section in which Afzal denied Geelani's involvement. The court saw the unedited interview in which Afzal unambiguously stated that Geelani knew nothing about the attack.

The question that is raised by this episode is that if the police officer thought nothing of threatening an accused in front of journalists and also successfully suppressing information that a journalist had, what level of threat or coercion attended the making of the `confessional statements' ?

On Wednesday Justice S N Dhingra is expected to deliver his verdict.

(Concluded)

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