THE magistrate who convicted Indian Mujahideen operative Afzal Usmani and his nephew two weeks ago ruled that no “sane police officer” would try to abduct a man accused in 38 terror cases. He was responding to allegations that Usmani had been abducted by the police and threatened with death if he did not become an approver.
The five-year jail sentence handed out to the duo would send a message to “like-minded unscrupulous offenders that their indulgence with the security & integrity of our nation & its people shall entail harsh & deterrent punishment”, the magistrate said.
Usmani (39) and Javed Khan (21) were convicted by the Mazgaon magistrate court on January 20, more than two years after the former escaped an armed police escort from the Bombay City Civil and Sessions Court, where he had been produced for a hearing. Usmani is an accused in serial blasts in Ahmedabad in 2008 and was caught by the Maharashtra Anti-Terrorism Squad at Rupadiha railway station in Uttar Pradesh in October 2013, while attempting to flee to Nepal after a month on the run.
Khan, who had visited Usmani in court, helped him flee to Dharavi, where he shaved his hair and beard at a barber’s shop, before travelling to Bahraich district in UP, Khan’s ancestral village.
The judgment also took into note current circumstances saying, “We are hearing and reading the news of insurgency & rampant use of fire arms & ammunition for terrorist activities in our country by radicalising youth from our country.”
During the trial, however, the convicts alleged that on September 20, 2013, plainclothes ATS officers bundled them into a car and took them to Kasara Ghat, a little over 100 km from Mumbai, where special public prosecutor Raja Thakare threatened to kill Usmani and “bury him there” if he did not agree to become an approver in their case. Khan alleged that he was given Rs 50,000 by the ATS and ordered to leave Mumbai for a few days.
Magistrate S E Bangar discarded the theory, asking which “sane police officer or prosecutor” would seek to make a man accused in 38 serious terror crimes punishable with death an approver “when there is every possibility of his changing the stand against the police and prosecution”.
Commenting on the convicts’ defence, magistrate Bangar observed, “It appears to be an attempt to demoralise every police officer dealing with their cases so as to dissuade them and to teach them a lesson for having either apprehended them or having investigated any of the crimes.”
In the 100-page judgment, the magistrate also does not believe that prosecutor Thakare would visit any place without security and “without maintaining the official record”.
The magistrate also noted that the ATS and the Mumbai Police Crime Branch “did never intend to make the accused No. 1 (Usmani) an approver in any of its cases, considering his involvement in several number of crimes”.
Of the 11 witnesses whom special public prosecutor Vaibhav Bagade examined, the magistrate termed the Dharavi-based barber as the “most assailed witness”. The barber had deposed that at 5.30 pm on September 20, 2013, Khan had brought Usmani to the shop to have his hair and beard cut.
“He remembers the said incident because accused no. 1 (Usmani) had got annoyed and scolded him for a minor cut injury on his face by the shaving razor,” the judgment states, adding that accused no. 2 (Khan) pacified Usmani. The barber identified the duo at the ATS office in Kalachowkie as the agency did not conduct a single test identification parade for any of its witnesses.
Advocate Jamal Khan, who represented the convicts, examined three witnesses, of whom two were prisoners at Taloja Central Prison and had been produced with Usmani at the sessions court on the day of his escape. One of the prisoners deposed that on the day of the escape he saw the convicts being led away from the court premises by some unidentified individuals, while the other deposed that he had gone to the bathroom and realised Usmani was missing when he returned. The magistrate disregarded both their accounts after one deposed that he had not reported the kidnapping to the police, and the other told the court that he had not seen whether the convicts exited the court using the lift or the staircase.
While on the run, Usmani also applied for a driver’s licence at the Regional Transport Office in Bahraich under the assumed name of Vasim Sattar Ali Khan and using falsified documents. The handwriting analysis of the licence application proved that Usmani had committed forgery. Khan was also booked for aiding the escape and forgery as “he is the permanent resident of district Bahraich,” the judgment reads.
The magistrate, however, acquitted the duo of forgery charges under Section 467 of the Indian Penal Code, as the driver’s licence had not been issued by the RTO.
The judgment notes that the crimes for which Usmani was accused “are of serious nature wherein mass destruction to the public property, private property and lives of several innocent citizens have taken toll”.
Usmani, said the judgment, was convicted, as “escaping from the lawful custody instead of facing the trials and answering the charge is nothing but to evade the process of law and to undermine the legal process”.
Referring to Khan, the magistrate observed that “aiding, assisting & harbouring an offender for his escape from lawful custody and further in commission of forgery and cheating by false personation so as to prepare for proceeding to escape the territory of India is more serious than the actual commission of the crime”.