Four police officials facing trial in connection with the custodial death of Sayyed Khwaja Yunus moved the sessions court on Monday to reframe the charges levelled against them.
Claiming that the charges framed in December 2012 were inappropriate, Sachin Vaze, Rajendra Tiwari, Rajaram Nikam and Sunil Desai they several charges were not applicable to them and pleaded that the murder charge cannot be invoked in this case as Yunus’s death has not been established been by the prosecution.
“…there is no death established in the case hence no questions of motive and / or any other points which constitute a charge of murder under section 302 of Indian Penal Code in the said matter. Thus prima facie no case of murder been established by the prosecution hence in the absence of the very basics of the mandates of law, this framing of charges is misleading and thus bad in law,” read the application filed by the accused policemen.
They have also said that “it is not the case of the respondents that any death occurred between Mumbai to village Jategaon. It is, in fact, alleged by the respondents that the alleged presumption of death of Yunus has occurred in Ghatkopar and it is also alleged by the respondents that the present applicants were carrying a person which was not Yunus.”
The accused have further alleged that the prosecution has not named them as the assailants who allegedly assaulted Yunus. They added that the officers, who have been named assailants, have not been tried yet as the state government has not yet given sanction against them for prosecution.
They have also alleged that the mandatory provisions of section 226 of the Criminal Procedure Code (opening case for prosecution) has not been complied with and so they are likely to face an unfair and misleading trial.
The advocate for the accused, Aarti Kalekar, said, “The application has been filed for the alteration of charges and will be heard on March 18. The prosecution has to file a reply on the said date. Meanwhile, we have also sought a list of witnesses who the prosecution intends to examine.”
The case so far
Sayyed Khwaja Yunus, a software engineer working in a Dubai firm, was picked from Parbhani, Marathwada, in December 2002 in connection with a bomb blast that took place in a BEST bus near Ghatkopar station that killed two people and left around 50 people injured
The prosecution alleged that Yunus was tortured in jail and this led to his death in police custody. It further alleged that the policemen had concocted a story of his death
The police team, which had arrested Yunus and that is now charged with his death, claimed he escaped after the vehicle in which he was being transported met with an accident near Aurangabad in January 2003. However, Abdul Mateen claimed Yunus died as he was being tortured in custody
Earlier, Yunus’s father, Sayyed Khwaja Ayub, alleged that his son was killed in police custody and filed a habeas corpus petition. Consequently, the court handed over the case to the state CID in March 2003
The CID filed chargesheet against 14 policemen. However, the state government had not sanctioned the prosecution of the 10 accused against which Yunus’ mother moved the Supreme Court. This petition is yet to come up for hearing
In March 2012, the sessions court had framed charges against the accused for murder and criminal conspiracy. The case has since been pending.
Charges levelled against the accused
Sections under Indian Penal Code (IPC):
331 (Voluntarily causing grievous hurt to extort confession),
217 (Public servant disobeying direction of law)
193 (Punishment for false evidence)
506 (Punishment for criminal intimidation)
109 (punishment for abetment of crime)
342 (Punishment for wrongful confinement)
120b (Criminal conspiracy)
34 (Common intention)