The spin on Twitter now is Why should we trust Headley but not CBI. A very valid point.
May be we should start from an entirely different starting point. There was a gangster called Abdul Latif who was killed by the Gujarat Police in an “Encounter”. Later they woke up and wanted to use his confession in a different case. But the trial Judge refused to allow use of this confession statement on the following ground:
that unless the confession was recorded during the investigation of the very offence under trial it cannot be used in evidence of that case
The Police was in a bind. They had already killed the Witness. They had no other alternative. So they took the case to the Supreme Court. The Case is
When there is no statutory inhibition for using such confession on the premise that it was not recorded during the investigation of the particular offence which is under trial there is no need or reason for the Court to introduce a further fetter against the admissibility of the confessional statement. It often happens that a confessor would disclose very many acts and events including different facets of his involvement in the preparation attempt and commission of crimes including the acts of his co- participators therein. But to expel every other incriminating disclosures than those under investigation of a particular crime from the ambit of admissibility is not mandated by any provision of law.
We have, therefore, absolutely no doubt that a confession, if usable under Section 15 of the TADAA, would not become unusable merely because the case us different or the crime is different. If the confession covers that different crime in which that crime is under trial and it would then become admissible in the case.
This shows that even if Headley was not connected with the Ishrat Jahan case his statement can be used as a witness in the current case. But still the Question of credibility of Headley remains. The same judgement also covers that:
Learned counsel said that since the maker of the confession died, the relevancy of the confessional statement would fall within the ambit of Section 32(3) of the Evidence Act. The sub-section renders the following statement relevant if it was made by a person who is dead:
“(3) When the statement is against the pecuniary or propriety interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.”
What Headley said would squarely fall into this. But then the next question that would arise to a Pessimist like me is this. Is this valid only if Headley was dead. The same Judgement covers that.
However, learned counsel submitted that what becomes relevant under Section 32(3) of the Evidence Act would become relevant under Section 10 of the Act as well: That Section pertains to “Things or done by conspirator in reference to common design.
It provides that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence “anything said, done or written by anyone of such persons in reference to their common intention” is a relevant fact. So unless what the deceased accused (Abdul Latif) disclosed in his confessional to their common intention,” that statement cannot be brought within the scope of Section 10 of the Evidence Act.
So it can be seen that Headley confessed to a crime. What he said about Ishrat would also implicate him. He did not say this to help him escape. So it is more believable despite our antipathy to him. OTOH it is because of this mutual hatred it is believable.
But there is twist to this tale. The so called evidence of few Police Officers who refused to shoot and have given Affidavits now would not be valid evidence because what they say is not in common interest. They want to shift the blame to others.