7/11 Blast Acquittals: How Bombay High Court Discredited Prosecution's Key Witnesses And Evidence

The Bombay High court on Monday outrightly rejected the findings of the special MCOCA court in the 7/11 serial train blast, which had awarded capital punishment to five accused and life imprisonment to others out of total 12 convicted in the case.

The special MCOCA court had accepted the prosecution case and refused to accept the claim of alibi presented by the defence. The MCOCA accepted the confession statement of around eight accused as presented by the prosecution, which the high court however discarded.

The courts had referred to a set of key witnesses – taxi drivers who carried the accused, passengers who had seen accused plant bombs, witnesses who saw accused assemble bombs, conspiracy to carry out the blast.

Here we look into the evolution of the key evidence of the prosecution by the two courts.

Taxi Drivers:

As per the prosecution case, witness number 77, a taxi driver, had dropped Faisal Shaikh (accused no 3) and Asif Khan (accused number 13) on from Carter Road, Bandra to Churchgate Railway Station with their black bag. While another taxi driver, witness number 63 had carried Khan and another accused from his   companion   from   Perry Cross Road, Bandra to Churchgate on the day of the blast.

The special MCOCA found the testimony of the two taxi drivers very cogent as against the theory of Khan of alibi. The court said the testimony of these witnesses who had identified the accused as the passenger whom he had dropped at Churchgate was cogent and trustworthy

The high court however refused to accept the testimony of witness 63 and said, “having held that PW-63 had no sufficient opportunity to interact with A.13 or to observe and notice him minutely, it can be said that an exception to the rule that if a witness identifies the accused in Court first time, the probative value of such uncorroborated evidence becomes minimal, is absent.”

The court similarly discarded the testimony of another taxi driver observing, “there is nothing which would trigger the memory of PW-77 and to recollect A.3’s face. we are ascertaining the possibility of recollection of the face of A.3 after a huge gap. When PW-77 identified A.3, he identified him by his face. Thus, it is doubtful, in absence of any evidence brought on record for justifying the reasons to recollect the face of A.3.”

Passengers

As per the prosecution case, Subhash Nagarsekar (PW­57) for A1 (Kamal Ansari), Devendra Patil (PW­62) for A3 ( Faisal Shaikh), Vishal Parmar (PW­74) for A4 ( Ehtesham Siddique ) and Kishore Shah (PW­60) for A13 (Asif Khan), who had allegedly seen the respective accused keeping big black bags on the luggage racks and one below the seat in the first class   bogie   of   different   trains   in   which   they   were   travelling   on July 11, 2006.

The special MCOCA court had accepted their testimony as fluent and that of honest persons. The high court first questioned the reason for the witnesses to spot and notice the unusualness. The court noted that as per the prosecution case, the bombs were placed in cookers of 5 liters. “As regards size of 5-litre cooker, it is now certain that the bag required to put such cooker will be of a normal size and in any case it will not be of an abnormal size, which would attract anybody’s attention, including the attention of PW-57, and give cue for triggering memory,” the court said.

The high court gave similar findings on the other witnesses who, as per prosecution, had seen accused persons plant bags carrying bombs. The court said there was nothing unusual which took place for these witnesses to have remembered the accused in such crowded trains. The court said the special court had committed a grave error on placing reliance on the evidence of these witnesses.

The witness to assembling of bombs : Amar Sardar Khan : PW-75

It is alleged by the prosecution that between July 08, 2006 to July 10, 2006 explosive devices were assembled in the house of the A6 at Shivaji Nagar, Govandi. Khan had identified A.2 (Tanveer Ansari) , A.4 (Ehtesham Siddique), A.6 (Shaikh Alam Shaikh), and A.7 (Sajid Ansari) in the test identification parade as persons who were present there

The high court noted that “It is important to note that PW-75 himself was a suspect in this case and he was repeatedly called by police for inquiry immediately after the incident. However, he did not disclose anything to the police at that time about the preparation of bomb at the house of A.6 by the accused. One more important aspect which needs to be considered is that he gave statement u/s 161 of Cr.PC after the retraction of confessions by the accused.” The court had noted that Amar sardar Khan and Ajmeri Sheikh were also used as witnesses in the Ghatkopar blast. However, the prosecution had not examined Sheikh.

The high court said that there are numerous grounds to discard the evidence of this witness. But the court noted that the special court has accepted his evidence observing that prosecution has not proved that Khan saw some persons including the A7 in the house of the A6 a few days before the blasts. However, the court said “it will have to be held that by the cogent evidence of Amar Khan, prosecution has proved that Amar Khan, PW-75 had gone to the house of the A6 a few days before the blasts and had seen the A2, A4 and A6 outside his house”

The high court however, said that the evidence of Khan is not trustworthy and credible, the reliance placed by the Learned Special Judge on such evidence is nothing but a grave error committed by the Learned Trial Court.

Conspiracy of blast:

PW-59 claims to be a close friend of A.3 (Faisal Shaikh) and A.12 (Naveed Khan) and met A.2 (Tanveer Ansari) , A.4 (Ehtesham Siddique), A.9 (Muzzammil Shaikh), A.10 (Suhail Shaikh), and A.13 (Asif Khan) through A.3.

According to PW-59, in February 2006, once he went to the house of A.3. At that time, he saw 5-6 persons in his house. They had gathered there for discussion on some special subject. He had claimed that in the said meeting all the accused was present there and had discussed about a subject which they took oath to keep it secret and he was not aware about the said subject. Further he had claimed that few days before the blast on in May 2006 once or twice he went to A.3’s house. He saw the guests in his house. He told him that they are his guests from Pakistan and they have come for the good work of religion.

The special MCOCA court had however said that, “he is an impeccable witness. He has no criminal antecedents, no connection with the police either as a witness or panch or accused and no animosity against any of the accused. Thus, I have no hesitation in accepting his evidence as truthful. Hence, it will have to be held that by his evidence the prosecution has proved: (i) that the A3 was concerned with the atrocities being committed on Muslims and was of the view that the only way to solve their problems was by way of jihad, (ii) that the A3 had gone to Pakistan twice and had taken training in the camps of Le-T, (iii) that wanted accused no. 1 Azam Cheema rendered financial assistance to the A3, (iv) that the A3 was commander of Le-T in Mumbai.”

The high court on the other hand said that the testimony of the said witness was of no help to the prosecution to establish hatching of conspiracy by the accused. The high court had noted that “PW-59 had never met those four Pakistani accused before. Some special reasons are required to recollect the names heard on a single solitary instance. It, therefore, creates doubt that PW-59 could recollect all these names with full name and surnames, more particularly when he himself claims that there was nothing unnatural and that he did not have any knowledge about the subject matter of the meeting.”

At the same time, the court said, “he could not recollect the name of a particular dancer, with whom he had a close relationship for over a month in the same year. He does not even remember the name of the policeman who had called him on November 02, 2006.

“PW-59 has deposed that he had no knowledge about the subject of discussion between the accused, and A.3 did not tell him. In these circumstances, in absence of direct evidence of conspiracy, as per the well-settled principle of law, a chain of events has to be completed from which a conclusion of guilt of the accused can be drawn. The said chain, in this case, could not be completed having found the other seven witnesses as unreliable.”