The Reality of Criminal Investigation

Of all the writing about Yakub Memon's case the one that I found to be most pertinent, because of its resonance with my own experience as a sufferer of the police's propensity to falsely implicate people in this country, is this comment of Justice Markandey Katju, retired judge of the Supreme Court of India -
"I believe there has been gross travesty of justice in the case of Yakub Memon. I have carefully studied the judgement of the Court. The evidence on which he has been found guilty is very weak. This evidence is (1) retracted confession of the co-accused, and (2) alleged recoveries.

As regards the first, everyone knows how 'confessions' are obtained by the police in our country-- by torture. And torture is such a terrible thing that one will confess to anything under torture. Joan of Arc confessed to be a witch under torture. Moreover, in this case, the alleged 'çonfession' was later retracted in court. As regards 'recoveries', anyone having even the slightest knowledge of the working of the police knows that such alleged recoveries are often planted. The truth is that our police usually cannot nail the culprits because it is not trained in scientific investigation."

The inability on the part of the police to get good independent witnesses and proper material evidence due to shoddy investigation is a common failing of theirs. Going by what Justice Katju says, it would have been very difficult to get a conviction even in the trial court in this case under normal circumstances but the indictment of the accused under the now repealed TADA ( Terrorist and Disruptive Activities (Prevention) Act), in which confessions by co-accused and the accused themselves to the police are admissible as evidence) and the general tendency in the judiciary to come down hard on terrorists has led not only to conviction but also to the death penalty for Yakub. That is to say that even if there can be a strong suspicion to believe that Yakub played an important role in organising the blasts, the evidence is not sufficiently strong legally to nail him.  

In this regard here is an excerpt from another interesting analysis of the biases of the Judges of the Supreme Court who upheld the death penalty of Yakub by Sudeep Singh - 

"The two member bench that originally decided Yakub’s appeal at Supreme court included Justice Sathasivam and Justice BS Chauhan. This is same bench that is famous for Dara Singh’s judgement – yes, the same Dara Singh, a Bajrang Dal activist, who burnt alive Australian Missionary Graham Staines along with his two minor children. The Supreme Court judgement, which upheld Orissa High court’s decision commuting death sentence, observed in Dara Singh’s case, "Though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Staines about his religious activities, namely, converting poor tribals to Christianity". "It is undisputed that there is no justification for interfering in someone's belief by way of 'use of force', provocation, conversion, incitement or upon a flawed premise that one religion is better than the other"".

In fact the trial court had slapped the death penalty on nine other accused which was commuted to life sentence by the Supreme Court. So, as I see it, one can be thankful that the judges of the Supreme Court at least saw it fit to commute the death sentence of the nine other accused to life imprisonment even though the evidence against them also was the same as that in the case of Yakub - confessions of co-accused made to the police which were later retracted in court. It is also important to note that Abu Salem, another underworld Don associated with the Dawood Gang, which is said to have masterminded the lethal serial blasts in Mumbai in 1993, cannot be tried under draconian laws and sentenced to death, because Portugal, from where he was extradited, had made it a condition of his extradition that he would not be sentenced to death. When the police slapped TADA on him along with nine other accused against whom the case is still pending because they were all arrested later, he immediately complained to the Portugal court that had extradited him citing the violation of the conditions and the court cancelled the extradition order and demanded that Abu Salem be returned to Portugal. So the police removed the TADA charge against Salem while it is still there against the others.