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CLAIMING that the four policemen named by a witness as those who assaulted Khwaja Yunus “can alone account for what happened to him when he was in custody”, the prosecution filed an application in court on Thursday seeking summons against them to stand trial as accused in the case. Yunus, a software engineer, was arrested by the Mumbai Police as an accused in the Ghatkopar 2002 blast case. He was allegedly killed while in police custody. The first prosecution witness in the trial — the then co-accused who was acquitted by the court subsequently — had told the court on January 17 that he had seen four policemen — Praful Bhosale (retired as ACP Crime Branch), Rajaram Vhanmane (currently senior police inspector at Dindoshi police station), Ashok Khot (currently senior police inspector at crime branch unit 5) and Hemant Desai (till recently a senior police inspector at the Local Arms unit), assaulting Yunus on January 6, 2003.
The police had claimed that Yunus escaped from custody while being taken to Aurangabad when the vehicle they were traveling in overturned near Parner. The Maharashtra CID had concluded that the version was false after an FIR was registered on the basis of a letter sent by the now-prosecution witness from Thane jail where he was lodged.
On Thursday, during cross-examination by defence advocate, Sudeep Pasbola, the witness told the court that based on contusions he had seen on Yunus’s body while he was in police custody, it was not possible for Yunus to have run away. “Having regard to the evidence of PW (Prosecution witness)1 the only possibility is that Khwaja Yunus died of the assault on 6/1/2003 while in custody of the police officers named by PW1, who alone can, should and ought to account for what happened to him when he was in custody,” the application filed by special public prosecutor Dhiraj Mirajkar states. “All these officers are responsible by their acts of commission or omission (i.e passive abetment by not intervening to stop any form of assault) for the death of Yunus in custody,” it added.
The application sought that summons be issued through the Director General of Police for the four policemen “to appear and answer to charges in the case”. The plea also said there is no need or legal obligation to hear the four policemen before the court passes orders. Judge V S Padalkar has directed the prosecution to place on record material relevant to the four policemen in the case, including orders passed by the higher courts from time to time. He has also directed the current four accused — assistant inspector SachinVaze and police constables Rajendra Tiwari, Sunil Desai and Rajaram Nikam — file their say.
While the state CID had named the four policemen mentioned by the witness on Thursday in their chargesheet filed in 2004, the Maharashtra government had not granted sanction to prosecute them. In 2012, the Bombay High Court rejected the plea of Yunus’s mother Aasiya Begum against the state government’s refusal for sanction. Her appeal is currently pending before the Supreme Court.
In its application on Thursday, the prosecution claimed that notwithstanding the developments, in the light of evidence that has come before the court through the witness, the four policemen can be summoned under section 319 of the Criminal Procedure Code. It further said that since the assault on Yunus was not committed “during the actual or purported discharge of the duty” of the policemen, this aspect has remained unaddressed while not according sanction to prosecute them.
The witness had told the court that he had seen Yunus stripped to his underwear, his hands tied to his back, being whipped with a belt and slapped and kicked on his chest and abdomen. The prosecution application said such use of physical violence cannot be claimed as an act done “under colour of office”.
The court will hear the matter on February 26.