Why no independent witnesses to Girgaum encounter not examined, asks court
The special sessions court trying the 26/11 case was on Thursday stumped by the stray use of the word ‘rifle' in Mohammad Ajmal Amir Kasab's judicial confession statement. Plus, disagreeing with the prosecution's contention that there were no civilians present at the site of encounter between the terrorists and the police at Girgaum chowpatty, the court asked why independent witnesses to the incident had not been examined.
The incident in question was the death of Assistant Sub-Inspector (ASI) Tukaram Ombale, who as per the prosecution's case was killed by Kasab.
In his statement, Kasab said, “Klashan ka trigger daba ke firing ki. Vo goliyan rifle padkde hue police ko lagi aur vo neeche ludak gaye. [I pulled the trigger of the AK 47 rifle and fired. The bullets hit the officer who was holding a rifle and he fell down].”
Pointing to an aberration, Judge M.L. Tahaliyani asked, “Why is the accused who is using the word klashan [for AK 47] throughout, is suddenly using the word rifle? What does he mean?...Why were independent witnesses not examined [in the incident pertaining to the murder of Turkaram Ombale].”
Special Public Prosecutor Ujjwal Nikam pointed to the evidence of three police witnesses who were participants in the encounter. He said only two officers, Hemant Boudhankar and Bhaskar Kadam, were armed. He said if independent witnesses were not examined that was because there were “no common people” at the site. “People were watching television reports of the terror attack and did not come out.”
The court, however, sought to disagree. “I don't have any quarrel with the fact that they [police officers] were natural witnesses. At the same time, I don't agree that there were no independent witnesses,” Mr. Tahaliyani remarked.
Mr. Nikam continued his arguments and covered the evidence of witnesses in the Girgaum encounter and in the murder of Kuber's captain Amarsinh Solanki. He argued that the testimonies of witnesses corroborated with one another and with documentary evidence as well.
Kasab who appeared ill at ease told the court that his blood pressure was low and that he was finding it difficult to sit. On examination of his reports it was found that his blood pressure was at 70. The judge asked the guards to offer him some water, take him away for half an hour. He also enquired if the accused had had his breakfast.
The court came down heavily on a section of the media for “incorrect” reporting. It passed an order mandating some newspapers to print clarifications failing which reporters would be barred from covering the trial and contempt proceedings would be initiated against them.
Applicability of Section 121
The reportage under question was on the applicability of Section 121 (waging war) of the Indian Penal Code to foreign nationals. Mr. Tahaliyani observed that papers had carried “incorrect” and even “contradictory” information on the discussion which took place in court.
“I was shocked to read the reports in Loksatta and Hindustan Times to the effect that the court viewed that prima facie there was no case against accused no. 1 [Kasab], he being a foreign national. This was never said by the court. There was a brief discussion between me and the Special PP Mr. Nikam…I had told Mr. Nikam that [with regard to] the Navjot Sandhu judgment 121 could be made applicable to foreign nationals also. News reports however reported totally contrary stories and have clearly stated in their reports that the court said that Kasab could not be charged for an offence punishable under 121…It is necessary for the concerned papers to issue a clarification that it was never said by this court that 121 could not be applicable to foreign nationals. Clarifications should be published in the same place, using the same font and given the same prominence as with the news items. If these directions are not followed, the court may consider taking up contempt proceedings and barring reporters of those papers from attending court proceedings.”