Acquitting the 12 accused in the train blasts case, the Bombay High Court on Monday flagged the torture inflicted upon them to ‘extort’ their confessional statements and found it to be one of key reasons that discarded and vitiated prosecution’s case.
“The accused succeeded in establishing the fact of torture inflicted on them to extort confessional statement,” the HC said.
The HC said that confessional statements were “not found truthful and complete on various grounds, including some portions of the same were found to be similar and copied.”
The lawyers representing the accused including senior advocate S Murlidhar (former Delhi HC judge) had argued that the accused persons were languishing in jail for nearly 18 years based on confessional statements taken by the Maharashtra Anti-Terrorism Squad (ATS) through ‘torture’ in the form of beating, threatening and inducement and lost their prime years of lives in incarceration.
The accused claimed that their torture was corroborated by medical evidence to “very substantial degree,” which should render their confessions irrelevant in law under Section 24 of Indian Evidence Act.
The HC observed that one of the accused, Mohammad Sajid Margub Ansari was ‘fainting’ while he was taken for medical examination on October 24, 2006 and he was advised Rantac tablet, ORS and glucose water.
It is significant to note, the HC said that the report of the said date was before recording Part-1 of Ansari’s confessional statement which mentioned that he was fainting while being examined.
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“This remark speaks volume about the physical and mental condition of accused just before recording of Part-I of his confession. Therefore, the evidence discussed above casts serious doubt on the likelihood that torture was inflicted on accused to extort confession,” the court observed.
It added that prosecution was “not able to effectively refute” defence’s allegations of torture and evidence of accused “remained unshaken.”
“Thus, in view of language of Section 24 of Indian Evidence Act, we are of the opinion that the confessional statement of the accused is inadmissible in law,” the HC held.
The court also perused medical evidence of doctors of KEM and Bhabha Hospital related to accused Mohamad Majid Mohamad Shafi and noted that it “sufficiently hinted at the possibility of torture being inflicted on the accused to extort a confession.” The HC also referred to “torture inflicted” on other accused while recording their confessional statements.
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The HC observed that before recording confessional statements, the authority has to ascertain whether any torture or inducement was done to the accused and should insist for medical examination and look into the medical reports.
The bench refused to accept prosecution’s argument that medical evidence of torture was available only for some and not all accused and same will not detract from strong suspicion that all confessions were obtained under torture.
“If so many accused have been tortured, the threat of torture will loom large for all the accused and be sufficient to vitiate their confession under Section 24 of the Indian Evidence Act,” the HC said.
Justice Anil S Kilor, who authored 671-page judgment for the bench which also consisted of Justice Shyam C Chandak observed that one of the many grounds based on which confessional statements were rendered “inadmissible” was that Part-I and II of some of the statements were “identical.”
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The HC also said that variations in mentioning of offences in correspondences made by the concerned Deputy Commissioners of Police (DCPs) before or after recording a confession was also questionable. The court further emphasised on “absence of certificates mandated under the MCOC Rules to establish voluntariness of confessions.”
Moreover, it said that “there was no relevant material available with the authority to reach a subjective satisfaction about the compliance of prerequisites for grant of prior approval” of designated authority, which was mandatory under MCOCA before recording the statements and the same suffered from “non-application of mind.”
The HC also noted that S K Jaiswal, who was then Deputy Inspector General (DIG), who granted prior approval, “did not enter into the witness box to prove the contents of the letter of prior approval, and mere identification of Jaiswal’s signature did not prove the approval and therefore, confession statements were “inadmissible.”
