The Examination-in-Chief of David Headley in the 26/11 Trial: Legal Infirmities Abound


(Guest post by Sahana Manjesh)

As per the conclusion of the Central Bureau of Investigation (CBI), the report of Metropolitan Magistrate Mr. S.P.Tamang, and the report of the Special Investigation Team (SIT) headed by Mr. Karnail Singh, Ishrat Jahan died in an encounter killing by the Gujarat police in 2004, aged 19. The official narrative however is – as is the case with most encounter killings – mired in layers of litigation and allegations, with no finality in sight. 

Civil rights groups have reported on the several encounter killings that came to be executed in Gujarat, post the riots of 2002. The official narrative is that some of these encounters were in response to the alleged threat to the life and security of the then Chief Minister of the state, Mr. Narendra Modi. An FIR under s.302 of the IPC, for the murder of Ishrat Jahan, was registered after the SIT’s report to the Gujarat High Court in 2011. Registration of FIRs in cognizable offences became mandatory only in 2013, after the Supreme Court’s judgment in Lalita Kumari v. Government of UP

Even as the fight to get official recognition of Ishrat Jahan’s death by encounter is on-going, there seems to be a rather wicked twist in the story. 

One of the Gujarat government’s many ways of distorting Ishrat Jahan’s true story was to allege a link between her and the terror outfit, Lashkar-e-Taiba. It has also been alleged that she was involved in a plot to assassinate Mr. Narendra Modi. Perhaps Ishrat Jahan was part of the LeT. And perhaps she was involved in a plot to kill Mr. Modi. But this has to be proved either in her on-going murder trial, or through a separate charge that should have been brought against her. 

Instead, Public Prosecutor Mr. Ujjwal Nikam, who is prosecuting the accused in the 26/11 Bombay blast trial, decided to bend some rules of procedure and evidence. On 11 February 2016, the chief-examination of Mr. David Headley, via video conferencing, by Mr.Nikam was recorded as follows:

Q. (Public Prosecutor): There is a women’s wing in the LeT?
A. (David Headley): Yes.
Q. (Public Prosecutor): Are there female suicide bombers in LeT?
A. (David Headley): No I don’t know
Q. (Public Prosecutor): Can you name a suicide bomber?
A. (David Headley): I cannot name.
Q. (Public Prosecutor): Was there a botched up operation in India?
A. (David Headley): There was a botched up operation which I learnt while Zaki Ur Rehman Lakhvi was talking to Muzzamil Bhat
Later I asked Muzzamnil and he told there was a female member of the LET who was killed in a police shootout at a naka (picket). Exact place I cannot recall.
Q. (Public Prosecutor): I gave you three options. Noor Begum. Ishrat Jehan and ((xxx))
A. (David Headley): Ishrat Jehan

Fact, Ishrat Jahan is not an accused in the 26/11 bomb blasts (she died in 2004, the blasts were in 2008). Also fact, David Headley, an accused in the 26/11 blasts, was granted pardon by the Bombay High Court, turning him into an approver. He is now a prosecution witness. Under s.114(b) of the Indian Evidence Act (IEA), the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars, as the prosecution is likely to get its version of evidence recorded through an approver/accomplice.  Given that Mr.Headley is an approver in the 26/11 case, and not a case in which Ishrat Jahan is also an accused, his evidence against her is weaker still. 

Under s.141 of the IEA, any question suggesting the answer which the person putting it wishes or expects to receive, is a leading question. Leading questions are permitted during the cross-examination of a witness. However, a leading question is not normally permitted during an examination-in-chief, or during re-examination, unless (i) the court permits it (when the witness is said to have turned ‘hostile’) [s.142, IEA], or (ii) if it pertains to matters which are introductory or undisputed, or which have, in the opinion of the court already sufficiently proved [proviso to s.142, IEA]. 

What follows then is that yes/no/multiple-choice questions, or questions that allow the counsel to feed words into the witness’ mouth are not allowed. The logic is that if a person is bringing a witness to prove her version of the story, there is more than a possibility that the person deposing will depose in her favour. My story through another’s mouth, is no longer an independent testimony, and is hence not permitted. Therefore, during chief-examination, a witness can only be asked questions for which she has independent, first hand, answers.  In Varkey Joseph v. State of Kerala, the Supreme Court has held that evidence collected in response to leading questions during chief-examination is an incurable irregularity for offending the right to fair trial. 

The examination of Mr. Headley then is a text book case of leading questions during an examination-in-chief, and would have been objected to by Ishrat Jahan’s lawyer had she been present. But, Ishrat Jahan is not an accused in the 26/11 trial, and hence there was nobody to defend her in court, or object to Mr. Nikam’s leading questions. The exceptions to asking one’s own witness leading questions are also not attracted here – Mr.Headley is no hostile witness, and these questions pertain to matters which are highly disputed and are yet to be proved. 

A second rule of evidence was disregarded during Mr. Headley’s examination. How did Mr. Headley know of Ishrat Jahan’s ‘botched up operation’, or that she belonged to LeT? Because he heard it from Muzzamnil, making this hearsay evidence, and hence inadmissible. A fairly recent and clear exposition on the exclusion of third party evidence through the rule of hearsay was laid down by the Supreme Court in Kalyan Kumar Gogoi v. Ashutosh Agnihotri. Dismissing an appeal by a Congress candidate under the Representation of People Act, challenging the election of a BJP candidate who had won from the Dibrugarh legislative assembly constituency, the court held that the testimony of persons who had heard their party workers say that a large number of voters had been unable to cast their votes due to sudden change in venue of the polling booth was inadmissible as evidence, as it was hit by the rule of hearsay:

“The sayings and doings of third person are, as a rule, irrelevant, so that no proof of them can be admittedThat this species of evidence cannot be tested by cross-examination and that, in many cases, it supposes some better testimony which ought to be offered in a particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness, its incompetency to satisfy the mind of a Judge about the existence of a fact, and the fraud which may be practiced with impunity, under its cover, combine to support the rule that hearsay evidence is inadmissible.” 

The evidence related to Ishart Jahan is inconsequential for the 26/11 trials. However, evidence recorded in one judicial proceeding can be led as evidence in another proceeding. Surely the prosecution would have known that this evidence against Ishrat Jahan would be inadmissible in court – in this proceeding, or any other. But that it was sought for and recorded anyway is alarming.

However, this is the latest in a series of attempts to use media and legal processes to cover up the facts surrounding Ishrat Jahan’s death, and protect those accused. Interestingly, in an alleged confession by Headley to the National Investigating Agency (NIA), the very same words – ‘a botched operation’ – was used to establish Ishrat Jahan’s connection the LeT. The confession was rejected then, also on the ground of being hearsay. 

Subverting the rules of evidence to establish nebulous connections, and continue to keep the circumstances under which Ishart Jahan died a mystery, is an unfortunate – and dangerous – legal and political game. 

(Sahana Manjesh is a practising lawyer in New Delhi)

4 comments

  1. 1. Prosecution is not allowed to ask leading questions for obvious reasons. But this aspect is concerning the material part of the enquiry. The prosecution can not put leading questions on the material part which in this case as rightly mentioned 26/11aspect . Once witness has been conducted to the material portion of his examination it is also the duty of prosecutor to ask the witness to state facts which can not otherwise be called to the matter under enquiry, trial or investigation and the court often grants permission for the same under Section 141 itself. This is done towards the end of examination in chief. Thus there is no apparent irregularity.

    2 Secondly, court can always rely even on uncorroborated testimony of accomplice provided it is cogent and inspires confidence please refer to Section 133

    3. As far as hearsay aspect is concerned please refer to Section 10. It especially deals with principles of agency in conspiracy and relevant testimony whereby anything said and done is relevant.

  2. Another point worth considering is that leading questions must not be asked except with permission of court in case opposite party raises an objection. Where they are not objected to by the opposite party leading questions may be asked in chief. Here we don't know whether defense has objected or not and if raised any objection whether court in its discretion still granted permission for asking leading ques . Thus above mentioned classification must deal with area besides hostile witness to bring more clarity on regularity of impugned examination in this piece.

    Further Latter PART OF 141 ENJOINS DUTY UPON COURT TO GRANT PERMISSSION FOR LEADING QUES WHHERE THEY ARE OF INTRODUCTORY NATURE ETC. The essence of this part is in the word 'shall' rather than a classification for asking leading ques. It merely takes away discretion of court where QUES are of above-mentioned nature while generally court has discretion to allow or refuse permission as mentioned in the former part.

  3. @ Koni Sharma – Thank you for your comments, and apologies for this inordinate delay in responding.
    1. There was no permission sought by the prosecution to ask these questions, and merely because they do not pertain to the material aspects of the enquiry, the prosecution cannot be allowed to enter a fishing and roving expedition.
    2. s.133 of the IEA does indeed state that merely because there is uncorroborated testimony of accomplice evidence, conviction cannot be illegal.My limited point was, and remains, that uncorroborated accomplice evidence is necessarily weak; s.133 r/w s.114 (b), upheld in a series of SC judgments, and regularly applied in trials.
    3. The conspiracy – if there really was one – has by the prosecution's own case, nothing to do with the 26/11 trials. The exception that you speak of then is not attracted to this particular examination.
    4. The defense counsel did not raise an objection, and rightly should have as you point out. However, as I explained in my post, we do know that the defense counsel was not present because Ishrat Jahan is not on trial in the 26/11 case – she, or rather her next of kin, is unrepresented in this trial. You might agree then that asking these questions is in clear disregard to the rules of evidence, and principles of natural justice.

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