The evidence presented by Maharashtra ATS to prove that Himayat Baig had collaborated with alleged Indian Mujahideen operative Yasin Bhatkal to carry out the 2010 blast at Pune’s German Bakery does not prove “conclusively” that the person seen on footage presented by the prosecution was indeed Bhatkal, the Bombay High Court observed while acquitting Baig of terror charges, and consequently death penalty.
According to ATS, Yasin Bhatkal had planted the bombs. The blast on February 13, 2010 had killed 17 people.
Justices N H Patil and S B Shukre found Baig guilty of possessing explosives and confirmed his life imprisonment
The prosecution had relied on seven video cassettes and the “identity” in clippings of CCTV footage. The investigating officer, Dinesh Kadam, had photos of Yasin Bhatkal from earlier cases, and it was inferred that the identity of the man purportedly seen in the video-grab matches with that in Bhatkal’s photo.
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The court observed: “…Based on the clippings shown on the screen and the version of one of the investigators, Dinesh Kadam, it would be difficult to conclusively hold that the said person seen on the screen was Yasin Bhatkal, though he may be resembling the person named Yasin Bhatkal, according to the prosecution and other witnesses.
“The circumstances assume significance, as according to the prosecution the accused was last seen with the planter – Yasin Bhatkal ? and was identified by the auto-rickshaw driver.”
The ATS claimed to have arrested Baig from Pulgate, Pune, on September 7, 2010, and seized 1.2 kg of RDX, allegedly the blast’s leftover. The ATS had named six other accused: alleged IM operatives Riyaz Bhatkal, Iqbal Bhatkal, Yasin Bhatkal and Mohsin Choudhary, and alleged Lashkar men Fayyaz Kagzi and Zabiuddin Ansari, alias Abu Jundal.
The Bench noted that the prosecution should have made use of “better evidence” to establish Bhatkal’s identity. “The prosecution may have an opportunity to establish its case against Yasin Bhatkal as and when the case proceeds against him,” it said.
Among other observations, the Bench said it was essential to prove all circumstances, especially in cases based primarily on circumstantial evidence. “It is not possible to hold that in all human probability, the acts must have been done by the accused. There was a vast gap between ‘may’ and ‘must’ and prosecution has failed to bridge this gap,” the court said.