Witness Woes! : What the US is doing & India needs to do?

Being a witness for the prosecution is tough, especially if you are deposing against an organized crime syndicate or a terrorist group. I have been witness for the prosecuting agencies in around half a dozen cases mostly related with Mumbai underworld. Prosecuting agencies made me witness mostly for some of the extra judicial confessions which mafia gang bosses have done on phone to me in which they claimed responsibility for some high profile shootouts in the city of Mumbai. Although, being aware of the risks of becoming a prosecution’s witness, I treat a police summon asking me to become a witness as a certificate for participating in the war against organized crime. Being a crime reporter for over a decade, I believe becoming a witness is another opportunity to know underworld from a different perspective & contribute to the fight against crime in a way other than journalism.

When somebody becomes a witness against an organized crime syndicate, the gang undertakes all means to prevent that witness to depose in the court. Efforts are made so that the witness turns hostile & the arrested gang members are let off. Gangs adopt various tactics including offer of bribe, threat to kill, kidnap or maim to discourage a witness from deposing adversely in the court. Although, being a witness myself I am not an exception to such jeopardy, I chose to take comfort in having some sort of confidence on the prosecuting agencies that they will defend me or warn me if any danger is assessed. Moreover, in most of the cases whenever I have spoken to any mafia boss, I have made it clear before them that he is making an extra judicial confession before me & I might have to depose against his interests in the court. Mostly they say that they don’t care about it.

Nobody likes to spent time in the courts and so do I, but I enjoy the judicial process; especially at the time when defense lawyers cross examine me. With red eyes, harsh tone, aggressive body language, they try their best to prove before the court that I am lying & that I work for the cops. I keenly observe their facial expressions and choice of words. Most of the defense lawyers who confront me in the courts are the ones whom I have befriended during my professional endeavors. We often share cup of tea in the court campus & discuss high profile cases, but when I am in the witness box, the circumstances make us appear hostile against each other. Once the court hearing is over, the hostility ends.

I may not be feeling threatened & alarmed on being a witness, but such may not be the case with hundreds of other witnesses who have deposed or have to depose in organized crime & terror related cases before the court. Not much care has been taken in India to protect witnesses in criminal cases so that they are not threatened or eliminated before deposing in front of the court or turn hostile during deposition. Most of the investigating agencies doesn’t hold good track record of convictions & in many cases accused are acquitted due to witnesses turning hostile in the courts.

Fight against terrorism not only encompasses the prevention of terrorist acts but also apprehending those who conspire for such acts or have committed such acts. Bringing hostile elements to justice is also a significant component of counter terror strategies so that they are not let off after the trial & once again engage in planning terrorist attacks. To get them punished & keep them behind the bars as long as possible, it is imperative that prosecuting agency’s witnesses fearlessly provide evidence to the court. They should be covered with immunity from threats to them & their families before & after their deposition in the witness box. However, it is impractical for the government to provide armed physical security to each of its witnesses. Neither the finances, nor the strength of police forces will allow all the witnesses to move around with guards. Moreover, in many cases such effort could also cause inconvenience to the witnesses & it doesn’t provide a 100 percent guarantee that you will be unharmed after being surrounded by armed bodyguards.

During my visit to Washington DC, I was introduced to an effective & multifaceted initiative of US government for the protection of its witnesses. The Witness Secirity Program (WSP) in US is run by a federal agency called United States Marshall Services (USMS), which reports to Department of Justice. USMS plays a key role in federal judicial trials. The responsibilities of USMS includes protection of judges and other officials of the court, protection of court buildings, lookout for & arrest fugitives, transport accused & witnesses to the court and protect witnesses. As far as the witness protection program goes, USMS not only provides security to a witness before the court appearance, but also during the deposition and even after the deposition is over.

Witness Security Program of the US in its present form was started in 1971 when Organized Crime Control Act of 1970 was passed. One of the most important features of this program is that a witness who has a grave threat to his life from the accused or group against whom he has deposed could be permanently relocated along with his/her family to a different part of the country. The USMS assists the witness in generating a new identity, official documentation, getting employment and so on. Witnesses also get monetary help to meet basic living expenses and health care. Marshals keep on visiting the relocated witness to ensure that he or she doesn’t feel threatened and lives in a safe environment. One of the interesting features of WPP is that even a witness with a criminal record gets protection under this program. However, a witness gets protection only on the instructions of an attorney from the Department of Justice & protection could be withdrawn on attorney’s orders. During a meeting Marshal Rick Green informed-“Under WPP we have provided protection to 8300 witnesses and 9800 family members of those witnesses since the inception of this program in 1971.”

Apart from the USMS, various states too have their own witness protection units. Such units get financial & technological assistance from federal agencies. However, state witness protection programs are not as broader as the one by the USMS.

In India there is no such program to protect witnesses and they have to take care of themselves once the trial is over. The only terror related case in which a witness was well taken care was of a taxi driver Jaishankar Dube (name changed) who deposed in the Gateway of India bomb blast case of 25 August 2003. An individual named Hanif Sayyed & his wife Fahmida hired his taxi from Andheri, a western suburb of Mumbai towards downtown. After placing explosives in the bomb surreptitiously in the taxi, they alighted at Gateway of India and told Jaishanker Dube that after having their lunch at a nearby restaurant they will return in few minutes. Fortunately, Jaishaker Dube also got out of the taxi to answer nature’s call & minutes after the taxi exploded. The bomb blast killed 8 people including tourists which came from various parts of India. At the same time another blast happened at Zaveri Bazar, the prime gold market of Mumbai in another taxi. Unfortunately, in that blast the taxi driver was on the driving seat at the time of explosion and his body split into several pieces of human flesh. Around 60 people died and more than 100 people were injured in both the blasts. These twin blasts were seen as the second biggest terrorist attack in Mumbai after serial bombings of 12 March 1993.

After the blast, Jaishanker Dube rushed to nearby Colaba police station from where he was taken to Police Commissioner’s Office at Crawford Market. I met Dube outside commissioner R.S.Sharma’s cabin. He looked frightened & his khaki colored uniform was wet due to excessive sweating. While all other journalists were busy taking updates on the investigation from Commissioner Sharma, I took this as a good opportunity to interview him. (I decided to record his statement on camera & then hide his face to protect his identity during the broadcast.) However, as soon as I started interviewing him, some police officers rushed towards us and took him away. That was the last when I saw him before he appeared as a witness in POTA (Prevention of Terrorist Act) court 5 years later.

Jaishanker Dube was relocated to some other place by the police and nobody except his close family members knew about his whereabouts. He was provided armed security round the clock. Media tried its best to locate him so that the story of the blasts could be fetched from the horse’s mouth, but no publication or news channel was successful. Meanwhile in 2005, it was also reported that the accused Hanif Sayyed had forwarded a note from Mumbai’s Arthur Road Prison to one gunman from the underworld to trace and eliminate Jaishanker Dube before he deposes before the court. However, the cops arrested the said gunman before he could execute the operation.

Jaishanker Dube was examined by the prosecutors and then cross examined by a battery of defence lawyers. The defence was trying to establish that Dube was an unreliable witness and the explosion in his taxi could be a result of his bad maintenance of the fuel tank of the car. However, Dube although apparently scared, stood by the theory of prosecution. In July 2009, POTA court delivered the verdict and imposed death penalty on Hanif Sayyed, Fahmida Sayyed & another accused Ashrat Ansari. The court accepted the charges leveled by the prosecution that the trio executed the twin blasts at the behest of Pakistan based terrorist organization Lashkar-E-Taiyyaba. (LET) The testimony given by witness Dube played an important role in the conviction.

The conviction in twin blasts case was a significant legal victory for Mumbai Police, However, Jaishanker Dube’s case is just an exception of how witnesses are treated by prosecuting agencies in India. We haven’t seen Dube after his deposition in POTA court and we don’t know what he is doing to support his family. Assistant Commissioner of Police Suresh Wallishetty who was the investigating officer of the twin blast case told me after his retirement – “Although Jaishanker Dube has been provided police security after his deposition, his financial condition is very bad. There has been no official monetary support to him. I took care of him from my own pocket till the time I was in service, but after my retirement it is not possible for me to provide him monetary help.  Today his condition is so bad that he even could not offer a cup of tea to the policemen who are deployed for his protection.”