With the apex court upholding the judgement of the Bombay High Court and rejecting to entertain review of acquittal of Ansari and Shaikh, it was time for Special Public Prosecutor Ujjwal Nikam to put up a brave face by saying that the two were let off because of insufficient evidence and it was not possible to collect proofs.
“No doubt prosecution could not establish the charge against Fahim and Sabauddin for want of sufficient evidence. There is a difference between no evidence and insufficient evidence.
“The evidence which was beyond the control to collect cannot be termed as defective investigation,” Nikam told PTI over phone.
A bench of justices Aftab Alam and C K Prasad, while dismissing 25-year-old Ajmal Kasab's plea against upholding of his death penalty, upheld the acquittal of Ansari and Ahmed, the two alleged Indian conspirators in the Mumbai attacks case.
Nikam, who helped in the investigations of the elite crime branch led by Rakesh Maria, at present in charge of Anti Terror Squad, was left in an embarrassing position by special court of M L Tahaliyani which had questioned probe conducted by the crime branch.
Maria and Himanshu Roy, at present joint Commissioner of Crime Branch, did not respond to calls or SMSes about the apex court judgement.
Prosecution had claimed that the same map was recovered from the pocket of Abu Ismail, a terrorist shot dead during an encounter that led to Kasab's arrest.
The Bombay High Court, whose February 21 order was upheld by the Supreme Court, had concurred with the view taken by the sessions judge that the map recovered from Ismail's pocket should have some wrinkles on it and blood spots as the Lashker-e-Taiba (LeT) terrorist was badly injured in the gunfight.
The Bombay High Court had also refused to take cognizance of Kasab's confessional statement naming the two and said, “We have held that Kasab's confessional statement is true and voluntary and can be relied upon because, it is corroborated by other evidence.
“The question is whether part of the statement which relates to involvement of Ansari and Shaikh can be kept out of consideration,” the High Court judgement had said.
“... It is open to the court to accept a part of the confessional statement which is corroborated by other evidence on record and exclude that part which is not corroborated. “In view of this, we find no difficulty in excluding that part of the confessional statement which refers to the involvement of Ansari and Shaikh as there is no sufficient corroboration to that part,” it had said.
The Supreme Court bench had also held, “Kasab's confessional statement was very much voluntary except a very small portion”.
Late police Commissioner of Mumbai Police Hasan Gafoor and Maria had repeatedly claimed that Ansari and Shaikh had carried out reconnaissance of various targets attacked by Lashker terrorists on November 26, 2008.
The case against these two was considerably weakened by the reported confession in an American court by US terror accused David Headley that he had reconnoitred the targets for the Lashker attackers.
After Headley's confession of carrying out pre-attack reconnaissance for the Lashker assault on Mumbai, the investigators had been facing some embarrassing questions. In its order today, the Supreme Court said, “We have gone through the evidence of Naruddin Shaikh and the other witnesses very carefully.
“We are of the view that the evidence of Naruddin Shaikh is completely unacceptable. The evidences of the other witnesses also do not inspire confidence insofar as these two accused are concerned.”
The trial court and the high court have considered the evidences relating to Ansari and Shaikh in far greater detail and both courts have analysed the prosecution evidence in regard to the two accused at great length and have given very “good reasons to hold the prosecution evidence unworthy of reliance” to hold such grave charges against the two accused. “We are in full agreement with the reasons assigned by the trial court and the high court for acquitting the two accused of all the charges.
“The view taken by the trial court and the high court is not only correct but on the facts of the case, that is the only possible view,” it said.