Invitation sent out by a group of Students at JNU, New Delhi.

More than three years after his hanging, he is in the limelight again. A group of students at the prestigious JNU in Delhi gathered to protest against the alleged injustice done to Afzal Guru. Their passionate sloganeering went onto accuse Indian state of terrorism, death to India, called Afzal a martyr, called for Kashmir’s independence and openly cheered for Pakistan.

No doubt this is akin to a group of American students say at Harvard or Stanford gather to call for death to America and call Osama bin Laden a martyr. BTW, Osama did not even get a fair trial unlike Afzal who had faced a trial and subsequent appeals in higher courts.

So what are the contentions of these protesters and other notable scholarly folks like Arundhati Roy who are convinced that the surrendered militant Afzal Guru was falsely implicated in abetting a terrorist attack on the temple of Indian democracy?

Let’s Find out:

Accusation 1: Afzal Guru has nothing to do with the terrorists or the attack itself.

Truth: Afzal’s was in regular touch with perpetrators of Parliament attack up until a few minutes before the attack. In fact, when Afzal was picked up from Srinagar, the mobile phone siezed from him had the same IMEI number which appeared in the call records. Excerpts from Supreme Court’s Judgement:

Phone call details were obtained and analysed from the respective cellular mobile service providers. Analysis of the call records indicated that the number 9811489429 which was found on the I.D. cards, (subsequently discovered to be that of the accused Afzal) appeared to be integrally connected with the deceased terrorists and this number had been in frequent contact with the cell phone No. 9810693456(recovered from the deceased terrorist Mohammad at Gate No.1) continuously from 28.11.2001 till the date of the attack. It was further revealed that this number of Afzal, namely, 9811489429 was in contact with the above cellphone of Mohammad, just before the incident i.e. at 10.40 am., 11.04 a.m. and 11.22 a.m. It was also ascertained that the said number of Afzal was activated only on 6.11.2001 close to the attack.

Accusation 2: Afzal Guru’s confession was a forced confession under threats and stress.

Truth: On December 21st, Afzal Guru made a confessional statement before DCP Special Cell. In fact, at the time of confession his medical examination was conducted which revealed no physical injuries. Is it really possible to verbally threaten a surrendered terrorist into confession? Excerpts from Supreme Court’s Judgement:

On 22nd December PW80 produced the accused persons before the Addl.Chief Metropolitan Magistrate (PW63) in compliance with Section 32 of POTA. The learned Magistrate conducted the proceedings in respect of each of the accused persons in order to satisfy himself that the statements recorded by PW60 were not the result of any inducements or threats.

In fact, Afzal took police to several safe houses used by terrorists and Afzal also took the police to shops from where chemicals for making explosives were procured.

Accusation 3: The evidence of mobile phone recovery and call records was weak and inadmissible.

Truth: Here is a excerpt from the Supreme Court order on the validity of the call records evidence. It is lengthy but it is also important to state the complete details here:

Two witnesses were examined to prove the printouts of the computerized record furnished by the cellular service providers namely AIRTEL (Bharti Cellular Limited) and ESSAR Cellphone. The call details of the mobile No.9811573506 (which was seized from Shaukat’s house) are contained in Exhibits 36/1 to 36/2. The covering letters signed by the Nodal Officer of Sterling Cellular Limited are Ext.P36/6 and P36/7 bearing the dates 13th & 18th December respectively. The call details of mobile No. 9811489429 attributed to Afzal are contained in Ext.P36/3 and the covering letter addressed to the Inspector (Special Cell)PW66 signed by the Nodal Officer is Ext.36/5. The call details of 9810081228 belonging to the subscriber SAR Gilani are contained inExts. 35/8. The above two phones were obtained on cash card basis. The covering letter pertaining thereto and certain other mobile numbers was signed by the Security Manager of Bharti Cellular Limited. The call details relating to another cellphone number 9810693456 pertaining to Mohammed is Ext.35/5.These documents i.e. Ext.35 series were filed by PW35 who is the person that signed the covering letter dated 17th December bearing Ext.35/1. PW35 deposed that “all the call details are computerized sheets obtained from the computer”. He clarified that “the switch which is maintained in the computer in respect of each telephone receives the signal of the telephone number, called or received and serves them to the Server and it is the Server which keeps the record of the calls made or received. In case where call is made and the receiver does not pick up the phone, the server which makes a loop of the route would not register it”. As far as PW36 is concerned, he identified the signatures of the General Manager of his Company who signed Ext.P36 series.He testified to the fact that the call details of the particular telephone numbers were contained in the relevant exhibits produced by him. It is significant to note that no suggestion was put to these two witnesses touching the authenticity of the call records or the possible tampering with the entries,although the arguments have proceeded on the lines that there could have been fabrication. In support of such argument, the duplication of entries in Exts.36/2 and 36/3 and that there was some discrepancy relating to the CellI.D. and IMEI number of the handset at certain places was pointed out. The factum of presence of duplicate entries was elicited by the counsel appearing for Afsan Guru from PW36 when PW36 was in the witness box. The evidence of DW10a technical expert, was only to the effect that it was possible to clone a SIM by means of a SIM Programmer which to his knowledge, was not available in Delhi or elsewhere. His evidence was only of a general nature envisaging a theoretical possibility and not with reference to specific instances.

According to Section 63, secondary evidence means and includes, among other things, “copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies”. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the Court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge.

Accusation 4: Another allegation as part of the botched up investigation/trial theory is that Afzal was not duly represented.

Truth: Afzal chose not to avail a legal counsel during investigation. The court on it own expense appointed a legal counsel, before the charges were framed. The counsel requested her removal after some time. The court then appointed another counsel although the counsel appointed had no experience in TADA cases. All this while Afzal did not object to these developments. He was even given an opportunity to cross-examine the prosecution witnesses but he declined. If your life is hanging in balance you would fight till the last minute to save yourself. No separatist Kashmiri groups who are well funded by Pakistan or any human rights organization came to his rescue in court by arranging a reputed counsel. Why couldn’t they fund Afzal for arranging a senior and a more experienced lawyer? Simple, the investigations laid it all in black and white and Afzal probably knew there was incriminating evidence against him. Even noted Senior counsel Shanti Bhushan appeared for Afzal in the Delhi High Court during the appeal against the trial court’s Verdict.

Accusation 5: The whole trial and later appeals were fixed. Democratic institutions of India failed innocent Afzal.

Truth: So what is being said here is that in order to implicate and send to gallows one innocent person, the investigating agencies, Judiciary, the President of India and almost one hundred witnesses which also included executives from private telecom operators, car seller, chemical shop owners and many more, agreed to executing a plot and everyone was given specific role and accurate statements which led to a convincing implication of Afzal Guru. I would just say that would be a tremendous effort and the folks involved should be lauded for this act. And yes, in the last ten years no one had the change of heart and decided to come out with the truth. Laughable really.

Democracy and Freedom of Speech are highly misused in India. Those who fight the Indian state on intolerance, talk about travesty of justice in this particular case and shame the country internationally should travel to Pakistan and numerous other countries at least once and organize a peaceful protest against the state there to experience for themselves. This democracy and free speech is a gift from our ancestors. There are and always will be aberrations in it. We have to persevere and improve it and not manufacture false claims to undermine it.

The excerpts above have been taken from  a copy of the Supreme Court’s Verdict.

Aditya Dutta

Twitter: @aditya_datta