Analysis

Comment on Headley’s “revelations”

Vrinda Grover
Senior Advocate, Supreme Court

Given below is the list of questions put by the Public Prosecutor, Ujjwal Nikam to David Coleman Headley during his video-conference witness examination in the bombay court with regard to 26/11 trial on 11th February 2016:
Q. (Public Prosecutor): there is a women’s wing in the LeT?
A. (David Headley): Yes.
Q. (Public Prosecutor): Who is the head?
A. (David Headley): The mother of Abu Aiman
Q. (Public Prosecutor): Are there female suicide bombers in LeT?
A. (David Headley): No. I don’t know.
Q. (Public Prosecutor): Can you name a suicide bomber?
A. (David Headley): I cannot name.
Q. (Public Prosecutor): Was there a botched up operation in India?
A. (David Headley): There was a botched up operation which I learnt while Zakiur Rehman Lakhvi was talking to Muzzamil Bhat. Later I asked Muzzamil and he told there was a female member of the LeT who was killed in a police shootout at a naka (picket). Exact place I cannot recall.
Q. (Public Prosecutor): I gave you three options: Noor Begum. Ishrat Jehan and (xxx).
A. (David Headley): Ishrat Jehan.
1. Ishrat Jahan was killed in a fake encounter in June 2004 in the outskirts of Ahmedabad in Gujarat. This stands proven by the SIT investigation monitored by the Division Bench of the Gujarat High Court, subsequent CBI investigation which led to the filing of a chargesheet against senior police officers of Gujarat and a supplementary chargesheet against IB officers. All the investigations pointed to a large criminal conspiracy which led to the illegal abduction, detention of Ishrat Jahan and her cold-blooded murder by the Gujarat police which was staged as an encounter. The investigation also revealed that the conspiracy and encounter were carried out on the instructions of the political executive of the state of Gujarat. The trial in these cases is pending in the Gujarat court. For reasons best known to it, the CBI is not proceeding with the trial.

Statement of witness recorded under S.164 CrPC:
Devendragiri Himmatgiri Goswami, Dy. S.P, Gujarat Police on the date of encounter:
“On 13/06/2004, I along with G.L.Singhal, went to Khodiya Farm by private vehicle. I had prepared draft bandobast for rath yatra. When we reached Khodiyar Farm, D.G.Vanzara and one Rajendra Kumar were present there. I handed over the file to G.L.Singhal and came out. I waited two hours and returned to the Crime Branch office at Gaikwad Haveli. In the evening, at around 7:30 pm to 8:30 pm I had gone with G.L.Singhal to Bungalow no.15 Shahi Bhag, Office of Joint C.P. I saw that D.G.Vanzara, Rajendra Kumar and P.P. Pandey, Jt. C.P., were present there. They were talking about Lashkar-e-Toeba operation. That time Rajendra Kumar told to D.G.Vanzara: talk to Chief Minister about it. Shri Vanzara told that, he would talk to Safed Dhadhi and Kali Dadhi’. Thereafter, I came out of the chamber of Shri Vanzara. P.P. Pandey also came out. After some time G.L.Singhal also came out of the chamber and returned to the Gaikwad House office.
On 14/6/2004 afternoon I, along with G.L.Singhal, went to the chamber of D.G.Vanzara, Bungalow No.15, Shahi Bhag Office. Vanzara handed over one written complaint to G.L.Singhal. There was plan to kill some persons of Lashkar-e-Toeba who intend to kill the Chief Minister. G.L.Singhal disagreed regarding the draft complaint as there was something to do about the girl Ishrat, but Vanzara was adamant. Shri Vanzara also told that he has the approval from Chief Minister and Minister of Home. Thereafter, I and Shri G.L.Singhal came to Gaikwad Haweli office” (recorded on 4/06/2013).
2. Under Indian law, the cold-blooded killing of any person is a murder. It is for this reason that Ajmal Kasab once taken into custody was prosecuted and tried. The law does not allow the police to kill even a terrorist once the person is in custody of the police.

Extract from chargesheet dated 3rd July 2013, filed against seven police officers of Gujarat state and four IB officials:
“Antecedents of the deceased: These aspects would be fully confirmed only after the custodial interrogation of the person involved in the illegal prior custody of the deceased persons and further investigation of the intelligence input. However, the following facts are notable at this stage:
Ishrat Jahan, 19 years old and student of 2nd year, B.Sc. when she died, had no criminal record. She had met Javed @ Pranesh for the first time on 1.5.2004. She had travelled with Javed to Lucknow and Ibrampur, district Faizabad in U.P and twice visited Ahmedabad with Javed. She may have understood that Javed was engaged in illegal activities involving smuggling and counterfeit currency. Statement of Rashid also indicates that she had knowledge about Javed’s illegal activities before she joined him. However, there is no evidence to indicate that she had any terrorist… certain news reports after the incident had indicated that David Headley, the terrorist arrested in US, had revealed that Ishrat Jahan was part of a terror network. However, there is no evidence to substantiate it. ...there is evidence to indicate that the Indica car, with Javed and Ishrat in it, was intercepted by the police officers of Ahmedabad city Crime Branch at Vasad Toll Booth in Anand district in Gujarat two days before the incident.
3. The nature of the questions put to David Headley by the Public Prosecutor Ujjwal Nikam and the answers given by Headley:
A. HEARSAY EVIDENCE
B. LEADING QUESTIONS CANNOT BE PUT TO A WITNESS
C. APPROVER’S EVIDENCE
The information given by Headley, and the manner in which it was extracted, has no legal value.
It is important to remember that this testimony is being taken with respect to the 26/11 trials so that India can present conclusive proof of the role of Pakistan in the attack. What Headley has said is not evidence. Headley’s testimony-sequence shows that he had absolutely no knowledge about any female suicide bomber, even when he speaks about a botched-up operation. He does not give any particulars, nor does he name anyone involved. This very clearly shows that he had no personal knowledge.
He categorically states that he has no personal knowledge about female suicide bombers in LeT. He is then asked whether he can name a suicide bomber. He says, “I cannot name”. Then a new questions is put about a botched up operation. He responds saying he has overheard a conversation, and later he asked Muzammil. He has no knowledge about whether the woman was killed in Gujarat or anywhere else. He is then given three options of names, out of which Headley selects is Ishrat Jahan. This is double hearsay. This is not evidence by any standards. Headley has categorically stated that he does not know anything, the Public Prosecutor has extracted it out of Headley by giving him multiple options, such leading questions cannot be put to a witness, and is unheard of in Indian trials. It’s shocking that such evidence was taken on judicial record.
You cannot give multiple choice questions or ask him leading questions and extract an answer.
Statement of an approver is an inherently weak piece of evidence and requires corroboration in all material particulars.
There is no evidence to show that Ishrat Jahan was a terrorist. She was studying and working in Mumbra. The only need to desperately label her as a terrorist is because if the conspiracy is ever investigated, it will lead us to political leaders in high places.
They want to distract the national discourse from the encounter killing to whether she is a terrorist or not, which in any case is irrelevant.
4. Need to ask why this is sought to be brought on to the judicial record so desperately: this piece of information is being brought on record to serve political interests not for the purpose of any national security.     

This article appeared in The Milli Gazette print issue of 1-15 March 2016 on page no. 11

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