Twelve years after 67 people lost their lives in three serial blasts that ripped throught the national Capital, a Delhi court said the police “miserably failed” to prove charges against the accused.
Of the three accused of plotting and carrying out the terror strikes, two — Hussain Fazili and Rafiq Shah — were acquitted of all charges. Tariq Ahmad Dar, who the police claimed was the alleged mastermind, could not be convicted of conspiracy in the absence of any evidence.
Additional sessions judge Reetesh Singh, in a judgment running into 140 pages, said several leads in the investigation were not “properly verified” before reaching a conclusion.
The judge said the prosecution has not been able to prove any link between Dar, Fazili and Shah.
The court said in the absence of any evidence regarding Dar being involved in the conspiracy behind these blasts, none of the charges framed against him are made out.
“Even though no charge was framed against Dar for the offences under sections 38 and 39 of Unlawful Activities Prevention Act (UAPA), the ingredients of the offences (38 and 39 UAPA) are very much made out,” the court said.
“Hence for the reasons recorded above, Dar is found guilty of the offences under section 38 and 39 of UAPA,” it added. However, Dar will walk free since he has already served two years more than the 10-year-prison term awarded to him.
The police had accused the three of waging war against the state, conspiring, collecting arms, murder and attempt to murder—charges which, if proven, entail life imprisonment or even death.
Case rested on a phone number
The court noted that Shah, a student of Kashmir University in the year of the blast, was found to be in class on that day as per the attendance register, and witnesses had identified him as being present there.
“The prosecution has been unable to prove that it was he who had placed a bomb in the DTC bus. Thus, in any event, he deserves to be acquitted,” it said.
The police investigation heavily relied on a mobile phone number that Shah allegedly used. However, the records from the telecom service provider and the police could not establish that he was using that number.
A call that was never made
The phone that police claimed Fazili used to hatch the conspiracy of the blasts had only been used to call ‘123’ thrice on October 31, 2005 to check or recharge balance, the court observed. “There is no other use of the number,” the order noted.
“The solitary piece of evidence cannot lead to any inference that he (Fazili) was part of the conspiracy which was behind the blasts,” the judge said.
The court also reprimanded the police for not producing Fazili before a magistrate in Srinagar even though he was arrested there on November 22, 2005.
The prosecution heavily relied on phone calls and transcripts. However, the court observed that there is a discrepancy in the time and duration of the calls when compared with the calls in the intercepted conversation.
It was also pointed out that the intercepts that the prosecution relied on does not refer to the blasts. “They only referred to markets in Delhi which do not have CCTV cameras to capture images for identification process,” the court said.
Holes in probe
In the case of Dar, the prosecution had claimed that he was actively involved in receiving and distributing money for terrorist activities. The bedrock of the case against Dar were intercepted conversations on November 1, 2005 and November 4, 2005 as well as records of his financial transactions which, as per the prosecution, revealed that he had considerable unexplained inflow of funds, including foreign remittances while his income from his job as a medical representative was minuscule.
The court noted that Dar, during the course of his employment with a pharma company, had performed exceedingly well and earned several awards. “The fact that he had other sources of income was not investigated or verified,” the judge said.
There were also allegations that Dar had received Rs 14 lakh through hawala. But, the court said there was nothing on record to show that these funds were used for terrorist acts.
Referring to the calls and intercepts during November 1 and 4, 2005, the court said both took place post the blasts. The prosecution had submitted the two as proofs of conspiracy since they mentioned ‘Diwali ka tohfa’. The court, however, said that since the blasts had already taken place and reported, there was a possibility that the ‘tohfa’ referred to something else than the blasts.
Delayed recording of statements
The court observed that the witnesses recorded their statements four years after the incident in 2009, which also weakened the prosecution’s case.
“It has been held in the above cases that after the lapse of considerable time, a witness cannot be expected to dispose with mathematical precision. The gap between the time of incident and the date on which the statement of the witness was recorded was four years. In one witness’s case, the incident is of November 2005 whereas one of the prosecution witness was recorded in January 2016,” said Sushil Bajaj, counsel for one of the accused.