Mumbai: Since the trial for the 2008 Malegaon terror blast commenced in 2018, the prosecution examined 323 witnesses over a span of seven years.

In the process, it dropped several witnesses, without providing any explanation as to why. The special National Investigation Agency (NIA) court felt that these witnesses had been “crucial” in establishing the chain of events. The decision to drop these witnesses, said special NIA judge A.K. Lahoti, gave the scope to draw an “adverse inference” against the prosecution.

The 1036-page judgement was made available on August 1, a day after the court acquitted all seven accused – including BJP leader and formed member of parliament Pragya Singh Thakur and serving Army officer Prasad Purohit. In it, the court has raised questions about the prosecution's intention to drop several crucial witnesses who the court observed would have helped connect the missing dots in the case. Besides Thakur and Purohit, five other persons – Major Ramesh Upadhyay (retired), Ajay Rahirkar, Sameer Kulkarni, Sudhakar Chaturvedi were also acquitted by the NIA court on July 31. 

The acquittal, the court has observed, was an outcome of the prosecution’s failure to bring sufficient evidence. Even with “grave suspicion”, the court was not able to punish the accused persons, as “mere suspicion is not enough”, the court observed.

According to the Anti-Terrorism Squad's case, which was later taken up by the NIA, Purohit has allegedly founded an organisation ‘Abhinav Bharat’ in 2006 and had attempted to establish a “Hindu rashtra [nation]” which would have its own constitution, flag and “government in exile” to be run from either Israel or Thailand. As a part of this agenda, the accused persons had come together and carried out the terror blast in Malegaon. 

Special public prosecutor Avinash Rasal took over the case soon after the earlier special public prosecutor Rohini Salian made a dramatic exit from the case in 2015 claiming that she was given instructions to “go soft” on the accused persons charged in the case. She had claimed that she had received the instructions from “higher ups”.

Since Salian’s exit, Rasal has been involved in the case for close to a decade. Among the many witnesses that the prosecution decided to drop are those who could have helped establish the movement of the alleged bombers days before the blast occurred. 

Ramchandra Kalsangra and Sandeep Dange

One of the witnesses that the prosecution decided to drop without any cogent explanation is the person whose user ID and phone number was used to book tickets. According to the ATS’s case, which was later taken over by the NIA which eventually filed a chargesheet in 2016, one witness named Vilok Sharma had used his account and his phone number to book the train tickets for two absconding accused persons, Ramchandra Kalsangra and Sandeep Dange, to travel from Pune to Indore. The two, according to both the ATS and the NIA, were accused of planting the bombs. Another person, Praveen Takkalki alias Pravin Mutalik, who the ATS had earlier accused of participating in the blast along with the two absconding accused was eventually discharged from the case after the NIA did not find any evidence against him in 2017.

The judgment, narrating the NIA’s case, points to Sharma’s role in getting the tickets booked under fake names – Balwant Pathak and Mansingh – instead of their real names Ramchandra Kalsangra and Sandeep Dange. Their travel to Pune, where the RDX explosive was allegedly procured from Purohit and then to Indore where the absconding accused had allegedly assembled, planted, fitted the explosive on the LML Freedom motorcycle, were fundamental to the investigation.

Also read: Malegaon Blast Trial: 1,087 Hearings, Inexplicable Orders and Victims Who Refused to Relent

The court said although the facts of the case create “grave suspicion” against the accused, mere suspicion was not enough to convict them. The court finally had to give the “benefit of the doubt” and acquit the seven persons facing trial in the case. The travel to Pune and Indore was crucial not just to establish the movement of the absconding accused but also their otherwise loosely hanging links with army officer Purohit, who now stands acquitted in the case.  

“Thus, Vilok Sharma from the aforesaid point of view was a material witness who could narrate about ticket details, booking details and traveling history. But, the prosecution has not examined Vilok Sharma. The prosecution has dropped the said witness... Therefore, in the absence of any evidence on this point, it cannot be said that, from his account the railway tickets were booked in the name of two fake persons and those were actually booked by AA-1 (Kalsangra) and AA-2 (Dange).”

It is not just Sharma’s statement but also the fact that an absolutely essential certificate, to be procured under Section 65 B of the Evidence Act, was not produced before the court. Without this certificate, electronic evidence is not admissible.

The prosecution’s case was that Kalsangra and Dange were in Pune around the same time as when Purohit had allegedly procured the RDX, i.e. August 8 to August 11. These finer details of the conspiracy and procurement of the explosive needed step-by-step building up of the evidence. The prosecution, according to the NIA judge, had dropped that.

Sharma was dropped from the list of witnesses even though his name cropped up in the examination of other witnesses, especially a senior railway executive and an ATS officer. The judgement says:

“Thus, only Vilok Sharma was the witness who could say about the booking of the aforesaid ticket. The material witness Vilok Sharma is not examined by the prosecution. Non examination of material witness without any explanation give rise to draw the adverse inference against prosecution.”

Another witness Pramod Deshmukh, who according to the investigating agency had seen Kalsangra and Dange them in Pune around August 8 and 11, was an “eye witness” but dropped by the witness.

Another important witness, the court points out, was the policeman who diffused the detonator but was not examined as a witness. Judge Lahoti writes:

“Officer API Sachin Gawade who has actually diffused the detonator as per the case of prosecution is not examined as witness. He was the only person who could narrate the exact condition of the detonator, the procedure carried out by him for diffusing the detonator and collection of remnants after diffusing. The non-examination of material witnesses give rise to adverse inference."

'Missing'

In 2016, the NIA had informed the court that around 13 witness statements, recorded under section 164 of the Code of Criminal Procedure (CrPC) before a magistrate, had gone missing. The central agency had attributed this sudden and suspicious disappearance of documents to their constant ferrying between the trial and the higher courts. While the original copies of these statements had gone missing, the NIA had sought permission before the NIA court to use the photocopies of the document – which the court had granted. This permission was challenged by one of the accused persons in the Bombay high court, which later stayed the trial court’s order and had directed the NIA to file a fresh application authenticating that the photocopies were indeed a replica of the original.

Interestingly, the NIA did not file that application, and the witnesses were examined solely on whether their testimonies were recorded under Section 164 of the CrPC.

In the absence of these Section 164 statements, the magistrate who recorded them should have been examined. However, the prosecution decided against it. The judgment notes, “The aforesaid statements (recorded under Section 164 Cr.P.C.) were neither presented to the witnesses nor was the concerned magistrate examined in such circumstances.”

These 13 statements were crucial for proving the conspiracy meetings, the movements of the alleged bombers, and other key aspects of the case. At least two of these witnesses were essential to prove the conspiracy meetings where conversations purportedly on revenge on Muslims were discussed. 

While it is incumbent upon the prosecution to present important witnesses in court, when the prosecution fails to do so, the court could have done it. Section 311 of the CrPC empowers the court to summon witnesses it deems essential for the case. Just as the prosecution’s reasons for suppressing certain key witnesses are unclear, it is equally unclear why the court did not exercise its authority to summon these witnesses.

The prosecution examined a total of 323 witnesses in the case, of whom 39 turned hostile. However, public prosecutor Rasal did not initiate perjury proceedings against them, and nor did the court make any significant observations regarding the witnesses who refused to adhere to their original statements.

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