Denial of legal assistance: Why Supreme Court set aside death sentence in 1996 Dausa blast case

Overturning a July 2019 judgment of the Rajasthan High Court that had upheld Hameed’s conviction and capital sentence, a Supreme Court Bench comprising Justices Vikram Nath, Sanjay Karol and Sandeep Mehta ordered a fresh trial, directing that the proceedings be concluded within one year.

“The true measure of justice does not lie in the swiftness of retribution, but in the discipline of restraint. It is a canonical maxim of criminal jurisprudence that it is better for a hundred guilty persons to escape than for one innocent person to be condemned,” the Court observed.

“If the trial is found to have been conducted in breach of the constitutional guarantee of a fair trial, the very foundation of the conviction would stand vitiated,” the apex court said, adding that the proceedings of the trial court “do not reflect that Dr Abdul Hameed was represented by a legal counsel at any stage”.

Highlighting that 30 years have passed since the attack, the Supreme Court asked the High Court to assign the retrial to a specialised fast-track court presided over by a judicial officer with at least seven years of experience in sessions trials.

Clarifying that its order is based on the lack of fairness and procedural propriety in the case, and that it had not gone into its merits, the Court said: “The special court shall independently appreciate the evidence… and decide the matter strictly on its own merits without being influenced by any observation contained in this judgement.”

The Court also spoke to Hameed, who is lodged in Jaipur Central Jail, via videoconferencing, during which he said that he had “not engaged any private counsel and that no legal aid counsel was ever provided to him by the trial court”.

One of the arguments by the prosecution in seeking death for Hameed was that he was also named in the Republic Day blast at SMS Stadium in Jaipur in 1996.

Incidentally, an outfit called the Jammu and Kashmir Islamic Front had taken responsibility for the Samleti blast at the time.

While Hameed, who was arrested on June 26, 1997, has now been in jail for 29 years, Salim was arrested a month later and was imprisoned for over 23 years before he was released on parole in 2020.

The trial court and the accused

Among the accused, Riaz Ahmad Sheikh, died during the pendency of the trial. Another accused, Kulwinderjit Singh, was discharged by Additional Sessions Judge, Bandikui, in February 2003. In 2014, the High Court dropped charges against a third accused, Chandra Prakash Agarwal.

Finally, 18 years after the blast, on September 29, 2014, the trial court convicted seven people – Hameed, Javed Khan, Abdul Goni, Lateef Ahmad Waja, Mohammad Ali Bhatt, Mirza Nisar Hussain and Raees Baeg, while acquitting Farukh Ahmed Khan on the grounds that the evidence against him could not be proved beyond reasonable doubt.

Of those convicted, Hameed was sentenced to death, and the others given sentences ranging from life to 10 years’ rigorous imprisonment.

The trial court concluded that Hameed and an associate had boarded the ill-fated bus, planted the bomb under the seats in front of them, and then disembarked.

Subsequently, in March 2017, the trial court held Salim also guilty and awarded him life imprisonment.

HC proceedings

The Rajasthan High Court remanded Hameed’s case to the trial court again for a fresh order of sentence, observing that he had been awarded death on the same day as he was convicted, and that at the hearing on the sentence, there was no counsel representing Hameed.

In December 2015, the trial court again awarded death to Hameed.

In July 2019, the High Court upheld death for Hameed, while acquitting the six others convicted along with him. It also upheld the acquittal of Farukh. In a separate judgment, the court affirmed the sentence given by the trial court to Salim.

In September 2020, the High Court granted Salim permanent parole on his petition against the denial of parole to him.

Supreme Court

Hameed’s lawyer Kamini Jaiswal contended in the apex court that “the entire prosecution case is founded upon conjectures, surmises and legally inadmissible material and that the courts below gravely erred”.

“The case rests substantially upon circumstantial evidence and alleged confessional statements, and the prosecution has miserably failed to establish a complete and unbroken chain of circumstances leading only to the hypothesis of guilt of the said accused,” Jaiswal said, claiming “unreliable identification evidence, doubtful recoveries, unexplained contradictions, serious investigative deficiencies and a tainted and fundamentally flawed investigation”.

The lawyer also contended that the lower courts “erred in overlooking the serious infirmities surrounding the statement of Pappu (Salim) recorded as an approver”. The entire case against Salim rests “solely upon circumstantial evidence, there being no direct evidence whatsoever… Once the confessional statements are eschewed from consideration, there is no independent evidence”, Jaiswal further argued.

As for the other accused, the Court said that it finds “no justification to interfere” with their acquittal by the High Court.