2008 Malegaon Blast Verdict: FIR Discrepancies, Missing Witness Statements & Lack Of RDX Evidence Erode Prosecution's Case

Findings by the special court

FIR is found manipulated:

There is discrepancy in the FIR on record (carbon copy) and original FIR which was produced after the lapse of 11 years. Ongoing through the original FIR and carbon copy and if both are compared, then it depicts that, on original FIR the station diary entry no.07/08 is mentioned, however it is not appearing on carbon copy which was filed in the court along with charge-sheet in the year 2009.

The possibility cannot be ruled out that the station diary entry number mentioned in FIR and signature of Shri. Akade are taken on the original FIR later-on as per their convenience.

RDX - procurement by Purohit from Kashmir:

In the year 2008, PW-309, was serving as Chief Admin and Training officer at Bhonsala Military school, Nashik. He is one of the star witnesses of prosecution. As per the case of ATS, in his presence, Prasad Purohit has confessed that, he has brought RDX from Kashmir after completion of his posting and the said RDX was kept in the cupboard of his house.

However, during trial, PW-309 stated that he never met Purohit in the year 2007 and Purohit never told him that while coming from Kashmir, he had brought any RDX with him and kept it in a wooden cupboard of his house.

Transportation of RDX from Kashmir:

The Investigating Agencies had not inquired or collected or filed any documentary evidence on record to show that Prashad Purohit was posted at Kashmir during the particular period. Admittedly, for transportation of RDX, several formalities are required to be completed along-with several permissions.

Transportation of RDX cannot be done like other articles. There are several checks and restrictions for transportation of RDX. Not a single witness has deposed that, anyone had seen Purohit during his posting at Kashmir at a specific place or for a particular period or he has procured the RDX or he has brought the RDX.

Storage of RDX:

As per case of prosecution Purohit has stored the RDX in the wooden cupboard of his house. It emerges from evidence on record that the house of Purohit was searched twice by ATS officers in his absence.

During the first house search, the Investigating Officer did not find any RDX or traces of RDX or any other explosive material or any other suspicious articles from the house of Purohit.

The second time, house search was carried out on November 26, 2008, on the basis of suspicion. The Chemical Analyzer has opined in her report that, “After extensive search, it was revealed that, no explosive or explosive residues were detected. No suspected devices like detonators, wires used for detonators, times are found. Clocks, etc. used for the assembling of IED were also not found.”

Presence of accused on the spot:

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 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 the accused at Malegaon, on the date of incident or before or after the incident.

Non collection of Fingerprints, dump-data and DNA samples:

Dump-data could have been obtained in order to identify individuals who were present at the location / spot of incident prior to and subsequent to the incident. However, it is an admitted position that no such dump-data was collected during the course of investigation.

They did not ask the experts to collect DNA from the spot so as to find out the real culprit. DNA of culprits can be obtained from the articles found on the spot. But, for collecting DNA samples, they had not called any such expert team from FSL on the spot.

Ownership of the bike, that was allegedly to plant the bomb:

Prosecution had not led any evidence on record to show that Pragya Singh Thair was in conscious possession of the said motorcycle even after renouncement of the material world. Nobody has seen her with the said motorcycle or it was with her at Jabalpur Aashram even after taking the Sanyas.

Day to day during the course of her inquiry, Pragya Singh Thakur had narrated to them that she had transferred the said vehicle to Sunil Joshi on the basis of such documents. Even though, admittedly, investigation had not been carried out in that regard to cross verify & ascertain the said facts as narrated by her. It clearly indicates that, at one hand they have relied upon the sale purchase transaction among those persons but on the other hand, they were not inclined to accept her contention for the reasons best known to them.

Identification of the bike used for planting of explosives:

ACP Mohan Kulkarni has specifically admitted in his cross examination that they had not collected any information from the manufacturer of two wheelers pertaining to chassis number C10P-1937 (allegedly found on LML Freedom bike used for blast). they had not inquired about it to the manufacturer of the two-wheeler as to whether those are correct or false numbers.

Prior to November 6, 2008, he had knowledge of engine no. E55OK261886. But he himself or his investigating team had not made any inquiry pertaining to corresponding chassis number of said engine number i.e. E55OK261886. For proper identification of vehicle chassis number and engine number should be tallied with the record of manufacturer.

Missing statements of witnesses from the court records:

As per the case of prosecution, during the course of investigation by Ats, the statements of following witnesses were recorded under Section 164 of Cr.P.C. by the concerned Magistrate. But, those statements are missing from the record.

The copies produced on record were not compared with the original and there is nothing on record to show that those were prepared from originals. After moving such an application, the inquiry was necessary to verify the same.

Merely, it was asked to the witnesses during the course of their evidence about recording of their 164 statements. Even witnesses answered in affirmative to this question, though it would not tantamount to confirmation of contents of those statements, unless and until, those are produced on record, copies are supplied, opportunity to raise objection is given to accused, inquiry in the form of verification and admission of contents by the witnesses after confronting to them. Thus, in the present case, the aforesaid statements (recorded u/s 164 Cr.P.C.) are not confronted to the witnesses nor the concerned Magistrate were examined in such contingencies.

Conspiracy meetings:

The claim of prosecution that witnesses Yashapal Bhadana, RP Singh, Bapditya Dhar, have attended the said meeting and they heard the discussion took place in the said meeting. But the testimony of aforesaid witnesses clearly turned down the claim of prosecution. Neither they have attended the meeting nor they have heard the discussion took place in the meeting. Therefore, they are neither the eye-witnesses of the meeting nor overheard the conversation of the meeting.

Abhinav Bharat:

If the Central Government is of opinion that any association is or has become, an unlawful association, then by way of notification it may be declared as unlawful. But nothing is brought on record till date to show that Abhinav Bharat Trust or Abhinav Bharat or Abhinav Bharat Organization is banned or declared unlawful by the Central Government by way of any notification.

On the other hand, it emerges from evidence on record that, in the year 2007, Abhinav Bharat Trust was constituted and registered at the Charity office, Pune bearing registration number E-4767 / Pune and the office was located at Model Colony, Pune.

Seizure of articles - evidence

The seizure of articles, procedure adopted, packing, sealing is under cloud of doubt and then mere obtaining the positive result of finding some explosive would not be helpful to prosecution.

On bomb Blast:

Absolutely, there is no evidence to show that the accused have caused an explosion likely to endanger life or property. The evidence on record is scanty which doesn't fortify that there was an attempt to cause an explosion or they exploded the bomb or kept explosives with them to endanger life or property.

Call data records:

even CDRs are taken into consideration for the sake of moment, they merely establish that, the accused were known to each other via cellular communication. The actual chat or conversation among them is not produced on record. Apart from this, there are number of weakness in the evidence. It has already been discussed in detail that the arrest of the accused and the seizure of mobile phones from their possession are highly doubtful.

Hostile witnesses - allegations of torture by ATS:

lmost all those witnesses, during the course of the evidence deposed that, they had not given their statements voluntarily, but their statements were taken as dictated under coercion by the officers of ATS. The number of witnesses further alleged that, they were subjected to torture, ill-treatment, and unlawful detention during the course of investigation. The absence of formal complaints against ATS officers by all such witnesses cannot, by itself, be grounds to dismiss their testimony as false or unreliable.

It is also necessary to mention that, two prime investigating agencies were involved in this matter i.e. ATS and NIA. 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.

It was transpired that, the ATS officers tortured, illegally detained not only to the some witnesses but also the accused.

2008 Malegaon Blast Verdict: Mumbai Special NIA Court Turns Into Fortress Amid Heavy Security Deployment

Non-examination of Material Witnesses:

The number of material witnesses are not examined by the prosecution. if during the trial, it is brought to the notice of the court that, relevant witnesses are not examined or kept back or dropped, then court may draw the adverse inference against the prosecution by assuming the serious infirmity in the case of prosecution.