Reversing a verdict

The Delhi High Court reverses partly the verdict in the Parliament attack case, acquitting S.A.R. Geelani and Afsan Guru who were sentenced to death by a POTA court.

THE Delhi High Court acquitted Syed Abdul Rehman Geelani and Afsan Guru of all charges in the Parliament attack case. Geelani had been sentenced to death by a Special Prevention of Terrorism Act (POTA) Court on charges of conspiracy and Afsan Guru had been sentenced to five years' rigorous imprisonment on the lesser charge of concealing knowledge of the conspiracy. The High Court bench, comprising Justices Pradeep Nandrajog and Usha Mehra, confirmed the death sentence awarded to the other two accused, Mohammad Afsal and Shaukat Hussain Guru, by the Special POTA Court on two counts. They were also awarded the death penalty on an additional count of `waging war against the state', under Section 121 of the Indian Penal Code (IPC). The POTA Court had sentenced them to life imprisonment on this charge.

On December 18, 2002, Justice S.N. Dhingra, presiding over a Special POTA Court, awarded the death sentence to Geelani, a lecturer at the Zakir Hussain College in Delhi; Shaukat Hussain Guru, a former student of Delhi University; and Mohammed Afsal, a militant who laid down arms in 1995, for offences under Section 3(2) of POTA (indulging in terrorist acts leading to deaths) and Section 302 of the IPC (murder). The three were convicted for conspiring to commit terrorism and acts of treason. The POTA Court had convicted Afsan Guru, wife of Shaukat Hussain Guru, on the lesser charge of concealing knowledge of the conspiracy. The court sentenced her to five years' rigorous imprisonment and a fine of Rs.10,000, dismissing the plea of leniency made on her behalf.

The charge-sheet filed by the police against Geelani shows that no arms, ammunition or any incriminating evidence was found in his house by the police. The only piece of evidence that the prosecution had against Geelani was an intercepted telephonic conversation. The prosecution argued that in the course of the conversation in Kashmiri between Geelani and his half-brother, he had supported the attack on Parliament House. The High Court held that there was nothing in the conversation that would incriminate Geelani. The Judges said that though he was on close and intimate terms with Afsal and Shaukat, there was no evidence on record that he was privy to the conspiracy.

Geelani, at a press conference held the day after he was released, said that there was no place for a law like POTA in a democracy like India. He asked: "Would you call keeping an innocent man on death row for two years justice?" His release has brought into focus the ease with which the police are able to misuse POTA.

Says Nitya Ramakrishnan, the advocate who represented Afsan: "The problem with arming the police with special legislation like POTA is that it results in the erosion of investigative accountability. It allows for the abandoning of safeguards in regular criminal law as well as in the special legislation. The police pick and choose provisions disadvantageous to the accused." She adds, "POTA makes a clear distinction between a person who does the act and a conspirator. Under the provisions of POTA, a conspirator cannot be sentenced to death. But the trial court had fallen back on the IPC to give the death even though the IPC itself says that this provision would operate only if a special sentencing provision for conspiracy did not already operate. On the other hand, the police use custodial confessions impermissible under law." The All India Defence Committee, an organisation set up to help Geelani, has said that it would launch a nation-wide campaign against the misuse of POTA.

THE High Court also held that under POTA, the confession of an accused was not admissible as evidence against a co-accused, thus dismissing the prosecution's claim that the statements of Mohammad Afsal and Shaukat Hussain Guru had implicated Geelani and Afsan Guru. The court said: "It has to be established by cogent evidence that the accused was a part of the conspiracy and this would require proof of some participative acts, which may not be overt but could be gathered from circumstantial evidence and in appropriate cases a high degree of consciousness may be sufficient. Evidence on record does not bring out a high level of consciousness qua Geelani in the conspiracy."

While acquitting Afsan Guru of all charges, the court held that the prosecution had not established that she had knowledge of the conspiracy and had failed to report it to the police. The court said: "We note that no role whatsoever had been assigned to accused Afsan as a participative member in the conspiracy - she provided no logistics, she procured no hideouts, she procured no arms and ammunition - she was not even a motivator." The prosecution's case against Afsan Guru was based on meetings that they claim had taken place in her house and from a conversation that she had had with Shaukat Hussain Guru on the night of December 18. The court held that the evidence against Afsan Guru did not create circumstances from which an inference of guilt could be firmly and cogently established.

Afsan Guru said after her release: " I am very happy at the outcome of the judgment and am indebted to the judiciary and those who helped me while I was in jail." The Special POTA Court, while sentencing Afsan Guru, had made no reference to the fact that she was pregnant at the time of the conspiracy. The Judge said that though it was beyond doubt "that she was having a difficult choice of going against her husband, she had to give priority to the nation and society".

The High Court has enhanced the sentence imposed on Mohammad Afsal and Shaukat Hussain, guilty of `waging war against the state' under Section 121 of the IPC . The court also held them guilty of the murder of nine security personnel during the attack under Section 302 of the IPC. The High Court, quoting an earlier Supreme Court judgment, said: "The guilt of the offence is of the magnitude that the collective conscious of the community is so shocked that it will expect the holders of the judicial power centre to inflict the death penalty irrespective of their personal opinion as regards the desirability or otherwise of retaining the death penalty."

Both Mohammad Afsal and Shaukat Hussain have said that they will appeal against the sentence in the Supreme Court. The Public Prosecutor, Mukta Gupta, told the press that any decision to appeal against the acquittals of Geelani and Afsan Guru would be taken only after the judgments were scrutinised by all `relevant departments'.