Saturday, January 3, 2009

A brief analysis of Supreme Court judgment on SAR Gilani

The supreme court judgment in which Afzal Guru, his wife Navjot Sandhu, Shaukat hussain Guru, and SAR Gilani were tried is here:
State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru on 4 August, 2005

The judgment narrates the events, talks about the police investigation, confessions and finally the judgment. It also talks in detail about the different provisions relating to confessions under POTA and it has actually stuck it down. Finally, the court went with a normal criminal confession under a magistrate.

SAR Gilani was defended by Ram Jethmalani. Court rejected some witnesses who said that they have seen Shaukat and Gilani together while procuring room and board for the terrorists (that were killed). This was mostly because the witnesses did some mistake while identifying Gilani.

However, one evidence that was irrefutable was the constant phone calls between Gilani and Shaukat and Afzal. This evidence was furnished by AIRTEL and ESSAR after warrants provided under Indian Telegraph Act. Court accepted these phone calls as evidence. However, supreme court held the high court view that just phone calls between Shaukat and Gilani did not confirm that Gilani knew about the conspiracy. Here is the text from the judgment:

"The High Court after holding that the disclosure statement of Gilani
was not admissible under Section 27 of the Evidence Act and that the
confession of co-accused cannot also be put against him, observed thus:

"We are, therefore, left with only one piece of evidence against
accused S.A.R. Gilani being the record of telephone calls between
him and accused Mohd. Afzal and Shaukat. This circumstance, in
our opinion, do not even remotely, far less definitely and unerringly
point towards the guilt of accused S.A.R. Gilani. We, therefore,
conclude that the prosecution has failed to bring on record
evidence which cumulatively forms a chain, so complete that there
is no escape from the conclusion that in all human probabilities
accused S.A.R. Gilani was involved in the conspiracy.""

Police could only get the call records for previous conversations. However, they recorded the call between GIlani and Brother of Gilani after the incident. Here is the text excerpt translated from Kashmiri:

"Caller: (Bother of Gilani) What have you done in Delhi?
Receiver: (Gilani) It is necessary to do (while laughing) ( Eh che zururi).
Caller: Just maintain calm now.
Receiver: O.K. (while laughing)Where is Bashan?
This portion of the conversation appears almost towards the end of talk.
The defence version of translation is as follows:
Caller: (Brother of Gilani) What has happened?
Receiver: (Gilani) What, in Delhi?
Caller: What has happened in Delhi?
Receiver: Ha! Ha! Ha! (laughing)
Caller: Relax now.
Receiver: Ha! Ha! Ha!, O.K. Where are you in Srinagar?"

Police did another mistake here of recording it really poorly that high
court rejected the first two lines as inaudible. Police needs to do a
better job than this. On the other part Supreme court said:

"However, we would like to advert to one disturbing feature. Gilani rejoiced and laughed heartily when the Delhi event was raised in the conversation. It raises a serious suspicion that he was approving of the happenings in Delhi. Moreover, he came forward with a false version that the remark was made in the context of domestic quarrel. We can only say that his conduct, which is not only evident from this fact, but also the untruthful pleas raised by him about his contacts with Shaukat and Afzal, give rise to serious suspicion at least about his knowledge of the incident and his tacit approval of it. At the same time, suspicion however strong cannot take the place of legal proof. Though his conduct was not above board, the Court cannot condemn him in the absence of sufficient evidence pointing unmistakably to his guilt."

Finally the judgment:

"In view of the foregoing discussion we affirm the verdict of the High
Court and we uphold the acquittal of S.A.R. Gilani of all charges."

On the whole I felt that there was surely not enough evidence (or significant
amount of police mistakes) to implicate
Gilani as a conspirator in the unfortunate happening. However, a significant
amount of doubt still remains on his character.

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