Malegaon Blasts : Special Court Rejects Argument That ATS Wanted To Implicate RSS Chief Mohan Bhagwat

The special NIA court in Mumbai while acquitting all the seven accused including Pragya Thakur and Lt Col Prasad Purohit from the 2008 Malegaon Blasts case cited the differing theories of the Anti Terrorism Squad (ATS) and the National Investigation Agency (NIA), the weak testimonies of witnesses forcibly 'obtained' by the ATS sleuths and the failure of the prosecution to bring on record cogent and 'confidence-inspiring' evidence. 

In his detailed judgment running into 1036 pages, Special Judge AK Lahoti said, "The statements of key witnesses relating to the alleged conspiracy, meetings, or other incriminating circumstances have not sufficiently supported the case of the prosecuting agency. While there may be strong suspicion against the accused, mere suspicion cannot take the place of legal proof. The testimony of prosecution witnesses is riddled with material inconsistencies and contradictions. Such discrepancies undermine the credibility of the prosecution's case and fall short of establishing the guilt of the accused beyond reasonable doubt."

Rejects Arguments That ATS Wanted To Implicate RSS Chief Mohan Bhagwat

SIMI Involvement Not Probed

The special judge noted from the statements of a police inspector that one of the witnesses - Abdulla Jamaluddin Ansari stated in his testimony that he was the owner of Shakeel Goods Transport and that on the first floor of this Goods Transport, was the office of Students' Islamic Movement of India (SIMI) - a terrorist organisation banned in India since 2006.  

"ACP Mohan Kulkarni (of ATS) has admitted in cross- examination that, on second floor of Shakeel Goods Transport office there was an office of SIMI. It was banned organization. He knew that, how to get the information about banned organization, its activists and as to whether they were present at the same locality or not at the relevant time, but he did not investigate as to whether SIMI office was operative or not at the relevant time," the judge said. 

Admittedly, the special judge said, the ATS team had not investigated from this angle to rule out the possibility that, there was no involvement of SIMI.

"It is also necessary to mention that, in what directions the matter to be investigated it is the sole prerogative of the Investigating Officer. It is also necessary to mention that, when the certain facts came to their knowledge or transpired during the course of investigation, then those angle are also required to be considered and investigated," the judge said. 

The special court, however, said there was nothing on record to show that SIMI executed the blasts. 

"Although, it is the contention of learned Advocate for Pragya Thakur that the SIMI activists might have exploded the bomb but there is nothing on record to show that, any activists of SIMI was involved or seen near the spot of incident. Except the bare admission that there was the office located on the second floor of Shakeel Goods Transport and it is banned organization, it is not enough to draw the conclusion in the absence of any investigation and evidence on record to show that, SIMI Activist were involved in the commission of offence and exploded the bomb. Hence, I am not inclined to accept the contention of Advocates for accused," the judge held. 

UAPA Sanction Invalid

The judge after going through the statements of various witnesses and the material on record concluded that the prosecution did not proved through the cogent, reliable and acceptable evidence to that, the alleged act was done by the accused with intent to threaten or likely to threaten the unity, integrity or security or sovereignty of India or with intent to strike the terror or likely to strike terror in the people by using bomb (RDX) or other explosive substances and thereby caused the death or injuries to the persons.

"As per prosecution, the alleged conspiracy was cooked in the various meetings held among the accused. But the evidence on record is not sufficient to prove those alleged meetings. Though, the prosecution had led the evidence of 323 witnesses to establish the foundational fact, but evidence is not sufficient to prove the facts and to raise the presumption. There must be definitive evidence suggesting the involvement in the offence of a terrorist act  Merely raising the presumption would not be sufficient in the absence of cogent, reliable and acceptable evidence. It is also well- established principle of law that, the more serious offence, the higher standard of proof required for conviction," the judge observed. 

The judge said that the sanction accorded under the Unlawful Activities (Prevention) Act (UAPA) was defective, invalid, and legally untenable.

"In view of the invalid sanction, the invocation of provisions under various sections of the UAPA against the accused is unsustainable. Consequently, the statutory presumptions contemplated under the said Act cannot be attracted nor invoked against the accused. Therefore, the question of applying such presumptions or sections does not arise," the judge said. 

No Accused Seen At Blast Site Ever

Further, the judge noted that the police did not find a single eye-witness who confirmed the presence of any accused on the spot before or after the said incident. "Even during the course of evidence, not a single witness spoke about the presence of the accused on the spot of incident prior to the said incident or at the time of incident or subsequent to the incident. The charge-sheet of ATS and NIA is also silent on this point. Thus, there is no direct evidence on the point of presence of accused at Malegaon, on the date of incident or before or after the incident," the court held.

The evidence on record shows that, number of police officers and personnel were deployed on fixed point duty (Bandobast Duty) at Bhiku Chowk and nearby area being Holy Ramzan was going on. No outside vehicle was allowed. The entry of outsiders vehicle were banned by barricading. Police had kept watch on every movement of people so as to avoid any unwanted or untoward incident, the judge noted.

Anti Terrorism Squad vs National Investigation Agency 

The court noted that supplementary charge-sheet filed by NIA showed that, the investigating officers of NIA have also drawn conclusion on the basis of their investigation that, ATS officers had extended threats to some witnesses to falsely implicate them in this case.

"On the basis of threat, the statements being recorded by ATS in their favour. No doubt, the supplementary charge-sheet filed by NIA shows that it is reasoned charge-sheet. Moreover, the investigating officer of NIA specifically mentioned the reasons in the charge- sheet for arriving at certain conclusion and not agree fully on material aspects to the earlier investigation carried out by the investigating officers of ATS," the judge noted.

The judge referred to the testimony of Deputy Superintendent of Police Anil Dubey (NIA Officer), who admitted that, they found several inherent legal lacunas / complications in the charge-sheet of ATS and that to some extent the investigation conducted by ATS was flawed investigation.

"Thus, the opinion and conclusion drawn by both the investigating agencies are fairly different and dissenting on various material aspects," the judge underlined. 

The two prime investigating agencies were involved in this matter i.e. ATS and NIA, the judge said, adding, "Both agencies conducted independent investigations and submitted separate charge-sheets upon completion thereof. However, the allegations of misconduct, torture, illegal detention have been levelled exclusively against ATS officers and no such accusations have been made against any officer of the NIA. Thus, pointing out towards the treatment given by ATS officers to the witnesses is self-sufficient which raises serious concern and credibility of evidence collected by ATS officers during the course of investigation."

On Yogi Adityanath

In the judgment, the judge has referred to the testimony of Milind Joshirao, an individual linked with Abhinav Bharat. He stated that he was grilled by the ATS sleuths from October 28, 2008 till November 7, 2008. He testified that he did not attend any conspiracy meeting at Raigad Fort and had no information about any oath being taken there to create a separate 'Hindutva Vadi Rashtra.'

"On the other hand, he stated that ATS treated him like accused and kept for seven days at ATS office. ATS officers were compelling him to take the name of five RSS persons. They were telling him to take the names of Yogi Adityanath, Asimanand, Indreshkumar, Prof. Devdhar, Sadhavi (Pragya), and Kakaji in his statement. They also assured him that if he takes their name then they would let him free. But he denied to do so and hence DCP Shrirao and ACP Param Bir Singh had shown the fear of torture to him, extended threats to him," the judgment records. 

The contents of portion marked of his statement are never stated by him, the judge noted, adding that it was written down / recorded solely by ATS officer.

"Considering his testimony, it clearly indicates that the statement was involuntary. Even though the contents of such a statement are proved by the investigating officer, it may still be insufficient, as it raises doubts regarding its admissibility and authenticity of such involuntary statement," the judge said. 

Click Here To Read/Download Judgment

Click Here To Read Findings of the Special Court Against Pragya Thakur

Click Here To Read Findings of the Special Court Against Lt Col Prasad Purohit