How Mumbai train blasts case fell: Court flags torture signs, identical statements, dodgy witnesses

Indian Express

4 days ago

The veracity of 'identical confessions' by 11 accused made to the police; allegations of custodial torture before confessions were made; and the lack of any reliable material for the state to grant 'prior approval' to invoke the stringent anti-terror laws — a combination of these factors were behind the Bombay High Court's acquittal Monday of the 12 accused in the 2006 Mumbai blasts case.
To illustrate the discrepancies in the prosecution, the court flagged statements by two prosecution witnesses, Deputy Commissioners of Police Brijesh Singh and D M Phadtare, recorded on two different dates, at different places and time.
'By any stretch of imagination, it is highly impossible to have (the) same questions, and its sequence in both the statements with same answers. Thus, it speaks volume and create(s) doubt about the genuineness of the procedure followed while recording confessional statements of these accused,' the Court said.
Essentially, the Court accepted the arguments made by the defence that raised questions about the 'genuineness' of the confessions. While different DCPs recorded the confessions, evidence showed that the questions asked, answers provided and even the ellipsis in the statements were identical.
'Even if, for a moment, it is presumed that a format of questions were used by them for convenience, it cannot be ignored that the answers…are identical verbatim, which is highly improbable, if not copied or a format was provided,' the Court held.
Significantly, the Court reproduced 'handwritten' statements by each of the accused who said that they had signed confessional statements under duress by the agencies. These notes contain serious allegations of custodial torture. The Court, apart from looking at medical evidence, noted the timeline of the confessions to hold that doubts are cast on the confessions.
The court perused medical evidence of doctors of KEM Hospital and Bhabha Hospital and noted that it 'sufficiently hinted at the possibility of torture' being inflicted on the accused to extort a confession.
'…while seeking remand of the accused, it was the consistent case of the prosecution that the accused are not co-operating. However, immediately after invocation of the provisions of the MCOCA on 24/09/2006, the first confessional statement was recorded on 04/10/2006 and then there was a series of such statements which continued till 25/10/2006,' the Court noted.
Under the stringent Maharashtra Control of Organised Crime Act, confessional statements made to the police are admissible as evidence. This is a departure from ordinary criminal law where only statements made in judicial custody have evidentiary value.
The Court closely examined each confession to find glaring gaps in the answers on the events of the crime.
For example, accused number 6, Shaikh Mohd. Ali Alam Shaikh did not disclose as to whether the whole 15 kg RDX substance was used, or some quantity was left over. And if it was left over, who had taken the remaining RDX and where was it kept, although he confessed to RDX being brought to his house.
MCOCA also requires 'prior sanction' by a competent authority, a police officer not below the rank of the Deputy Inspector General of Police, before the law is invoked in a case. This procedure is an essential safeguard against the misuse of the law that reverses the burden of proof, allows prolonged detention and relaxes evidentiary standards.
The court noted that the sanction was obtained based on a '2.5 pages long proposal' with no supporting documents.
'Mere reproduction of some expressions, used in the definition of 'organised crime', 'continuing unlawful activities' or 'organised crime syndicate' to show the compliance, cannot be said to be in tune with the letter and spirit of the law relating to grant of approval for invocation of the provisions of the MCOCA,' the court said.
Discarding the Test Identification Parade (TIP) of the accused, the court noted that the Special Executive Officer (SEO) who conducted it did not have the authority to do so.
The court noted that the prosecution examined eight witnesses, including taxi drivers who drove the accused to Churchgate station; witnesses who saw the accused planting bombs in trains; witnesses to the assembly of bombs, and witnesses to the conspiracy.
About the taxi drivers, the court said they were silent for over 100 days after the incident, and gave their statement to the police only on November 3, 2006, that two of the accused had travelled in their taxis. It observed that there was no special reason to trigger their memory about the faces and description of the accused, to enable their identification after such a long gap.
Similarly, the court flagged the long gap in the case of witnesses who claimed to have seen the accused planting the bombs in the trains. The court noted that while one of the witnesses said that he saw the accused and some more persons making bombs when he entered the house of one of the accused, he changed his version during cross examination, saying he did not enter the house, but a friend who accompanied him told him about the bombs.
'Thus, since the defence succeeded in shattering his oral evidence in cross-examination, for this reason and other reasons recorded, we have not considered his evidence worth relying,' the HC noted.
On the version of a person who claimed to be a witness to the conspiracy, the bench noted that while he said the accused were discussing some issues in secret meetings, he was unaware of the subjects discussed.
On the statement of the witness who helped to draw sketches of the accused, the HC noted that he was not called for the trial and was not asked to identify the accused in the court.
On evidence related to recoveries of explosives, including RDX granules, detonators, cookers, circuit boards, hooks, maps, etc, the HC noted that 'evidentiary value of these recoveries does not attach any importance on the ground that the prosecution failed to establish and prove the proper custody and proper sealing which ought to be intact till the articles were taken to Forensic Science Laboratory (FSL).'
The judges observed that circuit boards recovered from two accused were of 'no help to the prosecution to establish as the prosecution failed to bring any evidence on record and to establish the type of bombs used in the present case'.
Apurva Vishwanath is the National Legal Editor of The Indian Express in New Delhi. She graduated with a B.A., LL. B (Hons) from Dr Ram Manohar Lohiya National Law University, Lucknow. She joined the newspaper in 2019 and in her current role, oversees the newspapers coverage of legal issues. She also closely tracks judicial appointments. Prior to her role at the Indian Express, she has worked with ThePrint and Mint. ... Read More