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MCOCA, conflicting evidence, 44,000 pages of confusion — 7/11 train bombing case drags

Buried inside 44,000 pages of court records—some completely illegible—and flitting between ‘overburdened’ judges, the 7/11 case is far from over.

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Mumbai: Abdul Wahid Din Mohammad Shaikh spent nine years in Mumbai’s Arthur road jail for the 2006 Mumbai train blasts, confined either to its 2ftx6ft anda cell or the 6ftx8ft area outside his barracks before he was acquitted seven years ago. To this day, he finds himself walking from wall to wall in his small room at home out of habit, until his wife reminds him that he is free, that he can step outside into the sunlight.

“You could only walk straight in that space (in jail)—forward and back, forward and back, like a train. There was no space to even turn around…So I am used to a closed room now. Even when I can go out, I don’t,” he says.

Of the 13 men accused in the 2006 blasts that killed 189 people, Shaikh was the only one acquitted in September 2015. He had been charged with harbouring some of the accused after they planted the bomb but was granted the benefit of doubt as the court felt that the allegations against him had not been proven.

However, a lot has happened in the seven years since then. Asif Khan, who was called one of the “key conspirators” of the blasts, by Mumbai ATS, has been acquitted in the two previous but unrelated cases that were pending against him.

It was primarily on the basis of these two past criminal cases that the Maharashtra Control of Organised Crime Act 1999 (MCOCA) was invoked in the 7/11 blasts case against all the people charged. The invocation of this 1999 law caused a ripple effect that allowed the court to accept alleged confessions the accused made to the police, which were used to finally convict them.

With the two past cases no longer in the picture, the families of these convicts are filled with renewed optimism, but celebrations are premature. The law may not work in their favour. An acquittal in previous cases will have no bearing on their appeal against the 7/11 judgment. This, despite the fact that MCOCA was only possible because of those pending cases. A lawyer connected with the appeals said MCOCA only requires pending cases against the accused when the original case is being heard. A not-guilty verdict in a pending case has no bearing on the current appeals, he says. The irony is not lost on the convicts, their families or their lawyers. “When the investigating officers file a chargesheet, all they have to see is that there are two pending cases against the accused. That’s all that’s required,” says one of the lawyers connected with the appeals.

Meanwhile, appeals filed against the judgment remain stuck in the Bombay High Court, which also needs to confirm the life imprisonments awarded by the trial court.

Buried deep inside 44,000 pages of court records—some readable and some completely illegible—and flitting between ‘overburdened’ judges, the case doesn’t seem to be nearing a conclusion. The result is an endless wait—for the victims of the blast looking for someone to hold guilty, and for the families of the convicts, who are hoping for a fate similar to Wahid for their own sons.

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The ripple effect

The special court in Mumbai had sentenced five of the convicts—Kamal Ahmed Mohd Vakil Ansari, Faisal Ataur Rahman Shaikh, Ehtesham Qutubuddin Siddiqui, Naveed Hussain Khan and Asif Khan—to capital punishment, and seven others were awarded life imprisonment.

After a trial that went on for eight years, nine months and twenty-eight days, the 1,839-page long judgment passed on 30 September 2015 called the five death row convicts “MERCHANTS OF DEATH”. They were then held guilty of a series of blasts that ripped through seven western suburban coaches, killing 189 commuters and injuring 824.

The verdict took into consideration the police confessions that had been allowed as evidence under MCOCA, which was invoked on the basis of the two pending cases against Asif Khan. While he was arrested for the 7/11 blasts from Belgaum on 3 October 2006, his story doesn’t begin there. Asif’s fate was sealed on 2 December 1999, when an FIR was filed against him at MIDC police station in Jalgaon. He was accused of possessing 2,000 English and Urdu posters on the demolition of Babri Masjid.

The second FIR against him was filed in 2001 by the same police station, alleging that Asif, along with a few others, had been trained by terrorist groups in Jammu and Kashmir and that they were conspiring to wage a war against India.

The ghost of these two cases came back to haunt not just Asif but the 12 other men accused along with him in 2006 when a series of blasts ripped through seven western suburban train coaches in Mumbai. The police used the two pending cases against Asif to invoke MCOCA in the 7/11 blasts case.

Unlike the usual evidence law, MCOCA permits confessions secured in police custody to be admitted as evidence in courts. This isn’t the norm because it’s presumed that all such confessions made to police officers are coaxed out of the accused through third-degree torture methods worse than those seen in Bollywood movies.

Eleven of the accused–except Wahid and Asif– recorded their alleged confessions in October 2006. Several of them tried to orally convey to the judge less than a week later that the confessions were forced or wrong or were not shown to them, and all of them filed an application in November claiming that their signatures were taken on blank papers or that they were threatened and tortured to confess.

“He never told us about anything happening in jail. We got to know of the torture only after reading Wahid’s book…But we know that bhai didn’t give in, he never confessed to anything,” Asif’s cousin brother Anis Ahemad told ThePrint, referring Wahid’s book Begunah Quaidi, later translated into English as Innocent Prisoner.

Wahid and Asif met with opposite fates. Wahid was acquitted, but Asif was handed down the death penalty. Wahid walked out of Mumbai’s Arthur Road Jail, but Asif has since been in Pune’s Yerwada jail.

The remaining seven accused were awarded life terms. All of their cases hinged on the integrity of a maze of confessions at the police lockup. The judgment heavily relied on these confessions, playing them against each other and using one’s alleged words to trap the others. Asif’s conviction was based on a confession by another co-accused, Faisal Ataur Rahman Shaikh, and circumstantial evidence.

However, Asif has been acquitted in both past cases against him. The first acquittal came in 2015 from the 1999 FIR, and the second came in 2020, from the Aurangabad bench of the Bombay High Court, in the 2001 case. The acquittals have given his family a “new hope”. Ahemad says, “He has come out victorious in these two cases, we’re confident that we’ll get a positive result in 7/11 too.”

Lawyers connected with the appeals, however, aren’t so sure. While they might bring the acquittals to the notice of the court because it seems like an argument that hasn’t been settled in law before, they say. As for the evidence other than the confessions, senior advocate Dr Yug Mogi Chaudhary, appearing for the convicts in the high court, told ThePrint that the evidence in the case is “flimsy”. “The eyewitnesses came months later saying that I saw him on the train, he was standing next to me. There are over 500 trains next to Churchgate, can you remember who is standing next to you two months later? This was the nature of the evidence in this case,” he explains.

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385 illegible pages 

Soon after the trial court judgment, the government filed petitions for confirmation of the death penalties in the Bombay High Court, while all the accused filed their appeals in a staggered manner. However, the case has been off to a rocky start.

As per court records, the confirmation case and the appeals first came up before the high court on 3 January 2019. However, almost all the hearings that entire year were spent ensuring that all documents relating to the case records and proceedings were in place.

For instance, on 11 February 2019, the court noted that the six paper books, running into 44,000 pages, received from the special judge in the case, had 385 pages that were “illegible”. For another two months, till April, the process of identification and matching of pages continued. And the issue continued cropping up over the rest of the year. By June, the special public prosecutor told the court that legible copies of the 217 pages had been made available, but 69 pages were still not legible and another 99 pages “remained to be traced out from the original records and proceedings”. Another July order discussed volume numbers and page numbers.

“Voluminous”—that’s the word that all the lawyers connected with this case use to define the court records. They include 169 volumes of paper books, along with 192 prosecution witnesses, 51 defence witnesses and 1 court witness. And in the last two years, these 169 volumes have flitted between multiple benches inside the Victorian gothic architecture of the Bombay High Court.

One of the lawyers representing two life convicts had to go to court for copies of these paper books because the Registry did not have enough copies at the time. The court had to direct two sets to be supplied to the lawyer.

In true tareekh pe tareekh fashion, the case was also adjourned multiple times, at the request of the accused, at the request of the prosecution and at “joint request” by the parties.

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Also waiting: the survivors

As for the victims of the blast, they are of course waiting for a quicker resolution.

Mahendra Pitale, whose left arm below the elbow had to be amputated after the blasts, told ThePrint, “26/11 happened after 7/11 and that was dealt with more importance. They gave the judgment and Kasab was hanged. This is an older case but still hasn’t reached a conclusion.”

Pitale was an artist, a graduate in fine arts from Raheja School of Fine Arts, Mumbai and worked as an architectural glass designer before the blast. The blast changed the course of his life.

“An artist needs both his hands,” says Pitale who now works as a clerk at Divisional Railway Manager’s office in Mumbai Central.

On the delay in the case, he says, “All I want is that the judgment should come soon. It would come as a solace for the people who lost their loved ones.”

Another survivor, Kamal, lost his right arm below the elbow. He had his own business before the blasts. Kamal too took up a government job in 2009, as a junior clerk at Western Railway.

“I want them to be given death penalty as soon as possible…We should be given justice. They are bringing in the Indian Mujahideen’s role in the blasts only to save themselves. But they (the 12 convicts) did the blasts.”

However, Kamal does not keep track of the case personally. “It is a thing that changed our lives completely so there’s no point thinking about it every day,” he says, adding, “I just want to forget it.”

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‘Where are the judges?’

Over the years, the legal machinery has creaked forward. Lawyers have changed, judges have retired, and prosecutors have become judges. But the case has remained almost stagnant.

It has come up before 16 benches with a combination of 21 different judges since 2019. And of these 21 judges, at least six have retired or been transferred since the matter first came up before the court in January 2019. This year, two judges—Justices Prithviraj K Chavan and Revati Mohite Dere—recused themselves from hearing the matter. While the reason for Justice Chavan’s recusal is not known, Justice Dere recused herself because she had appeared as a prosecutor in the case in the past.

During the most recent hearing on the sixteenth anniversary of the blasts, on 7 July, the case came up before a bench comprising Justices RD Dhanuka and MG Sewlikar. This bench also acknowledged that the court was “overburdened”, and asked the lawyer for the accused to approach the Chief Justice for assigning the case to another bench. Justice Sewlikar is due to retire on 20 September this year, and the bench believed that it was unlikely that the matter would finish by then.

Going against convention, the accused and the prosecution even filed a joint application in February this year before the Chief Justice of the Bombay High Court, demanding that a special bench be constituted for the final hearing of the appeals and the confirmation cases. It said that with almost 250 witnesses, the hearing would take four months even if the matter is heard on a day-to-day basis.

According to lawyers connected with the case, no response has been received from the Chief Justice or the registry on this letter. However, Dr Chaudhary told ThePrint that “the Chief Justice of the high court cannot be blamed for this.”

“Where are the judges?” he asked, pointing to the vacancies in the high court, which is functioning with 54 judges, as against an approved strength of 94 judges. And the situation is going to get worse by the end of this year, with eight more judges set to retire.

“He (chief justice) just doesn’t have the judges to appoint a special two-judge bench to hear this matter…There are no judges,” he added.

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‘More than a reasonable doubt’

Out of the 12 men convicted for the blasts, 11 remain behind bars now. Accused number 1 in the case, Kamal Ahmed Mohammed Vakil Ansari, died due to Covid on 19 April 2021.

And for these 11 convicts, their only hope now rests on two words, ‘reasonable doubt’. They claim that they are innocent and that the blasts were actually carried out by the Indian Mujahideen. To prove this, they have relied on documents from several investigating agencies, including the Mumbai Crime Branch, National Investigation Agency, Ahmedabad Police, Delhi Police, Uttar Pradesh Special Task Force and the Hyderabad-based Organisation for Counter Terrorist Operations (OCTOPUS).

One such document is a supplementary chargesheet that the NIA had filed in a Delhi court against the Indian Mujahideen in February 2014. The chargesheet, accessed by ThePrint, claimes that an alleged IM operative was aware of the terrorist organisation’s participation in the 7/11 train blasts, among other blasts carried out in the 2000s.

Similar clues have been found in a remand application filed by the Mumbai crime branch in 2008, seeking custody of a few alleged IM operatives. The remand application blamed the terror outfit and its operatives for several blasts, including “bomb blasts at Jaipur, Ahmedabad, Hyderabad, Varanasi, Lucknow, Delhi and 7/11 Mumbai suburban railway bomb blasts.”

While these are unrelated cases, the convicts are relying on these official documents to claim that other investigators across the country are aware that Indian Mujahideen was behind the 7/11 blasts, and not the twelve men convicted by the trial court.

A lawyer connected with the appeals told ThePrint that these documents “create more than reasonable doubt about the prosecution case”.

This is the reasonable doubt that the convicts are pinning their hopes on. They are on Wahid’s mind when he paces up and down his tiny room at his house in Vikhroli. These convicts, who the public prosecutor called, the ‘merchants of death’, Wahid calls “brothers”. He stays in touch with their family members and has phone numbers saved with endearments including dadi and chacha. And, in what seems like survivor’s guilt, he often asks, “How will I be able to survive if my brothers are hanged?”

(Edited by Srinjoy Dey)

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