"In anxiety to wrap up case, NIA recorded inadmissible confessions:" Kerala High Court acquits prime accused in Kozhikode Twin Blasts

The Kerala High Court on Thursday acquitted Thadiyantevida Nazeer and Shafas, who are the prime accused in the 2006 twin bomb blasts in Kozhikode district..The judgement of the Court began with a quote from Stephen's History of Criminal Law."If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation and prolonged examination of other men, materials and documents? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law “to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes rather than go about in the sun hunting up evidence”. While confessions may have an element of truth in it but it fails to persuade the Judges, in travelling the distance between 'may be true' and 'must be true'; the whole of which distance, must be covered by 'legal, reliable and unimpeachable evidence', the Court said. .A Division Bench of Justices K Vinod Chandran and C Jayachandran pulled up the investigators, including the National Investigation Agency (NIA) for their lack of effort in gathering independent evidence and improper recording of confessions. "The Investigators, we cannot but say, did not make a concerted effort to 'go out in the sun' to collect independent evidence of whatever version the accused told them; though we do not venture to speculate whether they employed 'red pepper' to elicit the disclosures. In their anxiety to wrap up the case; we say anxiety since we do not think the Officers of the NIA would be ignorant of the law on the subject, they even recorded the confessions made by the accused, clearly inadmissible under Section 25 and 26 of the Evidence Act," the Court said..The Court found that there was no reliable evidence regarding preparation or commission of the crime that would incriminate the accused beyond reasonable doubt.Moreover, it found the approver's evidence, relied on heavily by the prosecution was unreliable and uncorroborated."The approvers evidence fails miserably in the twin tests; that of inherent reliability and credibility as also on the aspect of corroboration; the latter of which we find to be absent even in a single material particular," the Court observed..The case pertained to the twin bomb blasts in the Kozhikode KSRTC and Mofussil bus stands on March 3, 2006.Interestingly, the accused informed the media about the location of the bombs before planting them. The police were able to reach the site on time and evacuate the area.However, two timed explosions occurred at the bus stations within a gap of 10 minutes and two persons, including a police officer, were injured.Nazeer and Shafas, accused nos. 1 and 4 respectively, were among 9 persons who allegedly conspired, planned and executed the twin blasts, allegedly as protest against the denial of to the accused in the second Marad incident.Two of the accused were absconding at the time of trial, one died and accused no 7 turned approver and gave evidence as the first prosecution witness..Investigation into the blasts was first taken over by the Crime Branch Criminal Investigation Department (CBCID) and later by the NIA.The Special Court for NIA Cases, Kerala, Ernakulam had found Nazeer and Shafas guilty of the offences under Sections 16(1) & 18 of the Unlawful Activities Prevention Act, 1967 (UAPA), Sections 124(A) and 153(A) of the Indian Penal Code (IPC) Section 4(b) of Explosive Substances Act, 1884. .The sheet anchor of the prosecution case was the evidence of the approver whose testimony was said to be corroborated on material aspects by the disclosures, the discoveries, the resultant identification and the call details..While considering the appeals, the Court examined precedents on approver's evidence which led to the observation that "though not absolutely necessary, it is always prudent to look for corroboration of the approver's testimony, before entering a conviction; not on all material aspects of the prosecution case, but at least so much as to inspire the confidence of the Court to accept that evidence, which fundamentally is 'weak' and 'tainted'".The Court stated that as per the mandate of the Supreme Court, there is a twin-test that must be satisfied before accepting an approver's evidence. First is the the test of reliability of the approver and then the test of corroboration at least in some material particulars. .Reliability of the ApproverIn the instant, the approver did not speak of any long standing close relationship with any of the accused and "it is very unlikely that such a casual acquaintance, would be summoned when a seditious act of explosion in a public place is planned," the Court said. Moreover, the disclosures made by the approver was when the NIA took him under their custody, before which itself he had expressed his desire to turn approver. These, among other facts and circumstances of the case, led to the Court finding the approver to be an unreliable witness. .Corroboration of approver's evidenceThe Court opined that if there is no independent evidence of the crime, a recovery under Section 27 or a conduct under Section 8 of the Evidence Act cannot by itself or solely result in a conviction. In the present case, the Court was examining the evidence proffered by the prosecution, of the disclosures and the discoveries or the conduct, only for the purpose of corroboration. The Court opined that the Section 164 statement of the approver, especially in the teeth of its finding on the credibility of the approver, does not offer any corroboration. "There is no propriety in finding corroboration to an approver's testimony, from his own 164 statement," the Court said. Further, the Court found that all the disclosures recorded, contain a confession regarding the involvement in the bomb blast, which is inadmissible under Sections 25 and 26; whether it be for the purposes of Section 27 or Section 8. When the portion of the disclosure that offends Section 25 and 26 are eschewed, then the disclosures lead to no discovery of fact having a connection with the crime and the conduct too has no bearing.Even in the chief examination, the Court discovered that there was no attempt made by the prosecution to call upon the approver to identify each of the accused standing in the dock.The Court referred to a judgement penned by Justice Anna Chandy in 1960 in Karunakaran v. State of Kerala which said that "it is a very difficult mental process to close your eyes to the details in the confessional statement and see only the bracketted portion and remain uninfluenced by the confession of the accused. This feat is possible of performance only by a few specially trained experts"The above view was upheld by two Division Benches two decades apart, in Mohammed v. State of Kerala and Gabriel v. State of Kerala and the statement of law laid out stands even today, the Court said. "In the present case there are no lengthy statements but the disclosures record the confession linking the accused with the crime so unabashedly, that none could escape the innuendo...This is in flagrant violation of Sections 25 and 26 of the Evidence Act and tend to impress upon the Court the need to convict, even without proof beyond reasonable doubt," the Court held..On the strength of these findings and the facts and circumstances of the case, the Court acquitted Nazeer and Shafas..The Court also had this to say regarding communal violence in the State in general. "Inexplicable violence as a retaliatory measure against establishments of State, based on religion and community, often questions the secular credentials of a society; particularly of this State which proudly proclaims itself to be the most literate in all of the country.".[Read Judgement]