Mumbai: Pointing out one of the glaring lapses on part of the prosecution, the Bombay High Court said that it did not produce the call data records (CDR) of the accused, which raised serious doubt on the investigation. Asserting that the failure to produce CDR amounts to a grave violation of the right to a fair trial, the court said that the prosecution could have easily established the location and movement of the accused at the blast sites with the help of CDR, however, the digital evidence was destroyed. No proper evidence or explanation was put forth by the prosecution on the destruction of the records, the court underlined.
Questioning the prosecution’s conduct, the judges said, “The prosecution tried to connect the accused with the offence by obtaining the CDR and examining it. However, the same was later destroyed and not relied upon.” It further said that the accused were denied access to the 'incriminating' evidence and they even filed a RTI query to dig out the CDR. They finally moved the court, seeking help to access the same.
“However, by that time, the (standard) period of preserving the CDR lapsed and the service provider had to retrieve it. Still, the complete record could not be provided to the accused,” the court noted. The judges continued “Hence, it is evident that the prosecution possessed the record...its reluctance to bring the data on record and destruction of the same raises an adverse inference against the prosecution.”
Countering the defence claim that the CDR could prove alibi, the prosecution had claimed that the accused had been taught in the AlQaeda manual to keep their device at another place or not to have a phone in their own name to show alibi. The court said that even if that is true then where the call data records of the other numbers which were being discreetly used by the accused.
“The CDR was of critical importance, particularly because the first arrest was made on the basis of a number allegedly belonging to accused Kamal Ansari,” reasoned the judges. They said, “From the very beginning, the prosecution’s case was that the accused were in contact with the key conspirator Azam Cheema (from Pakistan) and members of Lashkar-e-Taiba.” Despite this assertion, the prosecution failed to place the CDRs on the record or establish any nexus between the accused and Pakistani nationals, the court said.
