Institute of Legal and Management Studies

While acquitting the seven accused from the 2008 Malegaon Blast Case, particularly former parliamentarian and BJP leader Pragya Singh Thakur, the special NIA court held that the prosecution failed to prove that she was in 'conscious' ownership of the explosive-laden LML Freedom motorcycle just before the blast.

Special Judge AK Lahoti even refused to accept the theories of the Anti-Terrorism Squad (ATS) and the National Investigation Agency (NIA) that the bomb was strapped or planted on the LML Freedom bike, which was allegedly owned by Pragya. The judge even noted that Pragya had renounced material world at least two years before the blasts took place.

While referring to the testimonies of various witnesses, the judge said,

The judge added that the prosecution had not led any evidence on record to show that, she was in conscious possession of the said motorcycle even after renouncement of the material world.

Mere Damage To Motorcycle Not Conclusive Proof

Further the court referred to statements of some witnesses, who were present at the site during the blast and noted that none had identified the motorcycle or described that the blast took place due to that motorcycle. The judge said that the condition of the LML Freedom motorcycle and one more bike parked at least six feet from it, especially the former being half burnt in condition and the latter's petrol tank receiving some damage to the petrol tank, shows that the said damages could be because of the explosion.

The judge further pointed out there there was no single eye witness or circumstantial evidence placed on record to show that the absconding accused Ramji Kalsangra along with other co-accused received the motorcycle from Pragya and then assembled the RDX and the bomb on the said motorcycle.

"Therefore, mere on the assumptions or presumptions or surmises or conjectures the charges leveled cannot be said to be proved in the absence of strict proof. In the absence of any positive evidence, I am not inclined to accept that the said vehicle was brought to the house of A-11 and bomb was fitted at that place by the accused. Thus, the theory of ATS about planting or assembling or fitting of bomb or IED in the house of A- 11 do not inspire the confidence of the Court," the judge opined.

Forensic Evidence Was Just A Guess Work

As regards the forensic evidence, the judge noted that the expert himself admitted that he did not find any cavity beneath the seat of LML Freedom motorcycle and by carrying out preliminary test on the spot, it would be possible to opine scientifically about the same. The judge noted that the expert did not conduct any scientific test in order to arrive at certain conclusion.

"Taking into consideration the condition of the bike that its bottom portion was severely damaged except rods. It was in half burnt condition. When there is a blast of RDX and ammonium nitrate, it generates a very high temperature, waves, sound etc. But, the petrol tank having petrol neither melt or caught fire nor severely damaged. The Honda unicorn bike lying near the said motorcycle was also not severely damage. The present matter is serious case of bomb-blast. In such a case, mere guess work is not enough. Neither it is expected from expert when he is specifically called on the spot to collect the articles, to assist and to guide the Investigating Agency by carrying out some scientific tests. In such situation, there must be some scientific test to be carried out by an expert on the spot to arrive at certain conclusion," the judge explained.

Bomb May Have Been Hanged Or Kept On Motorcycle From Outside

Instead, the court came up with a finding that the bomb would have been kept or hanged or placed on the motorcycle from outside or in close proximity.

"Mere, blast on the site and damaged condition of motorcycle, is not a conclusive proof of fitting explosive inside the dikki i.e. beneath the seat of said motorcycle. The damages caused to motorcycle is also possible, if explosives are placed or hanged or kept on the motorcycle from outside or in closed proximity to it. At the cost of repetition, considering the entire evidence coupled with admission given by the expert, the possibility cannot be ruled out of hanging or placing the explosive materials from outside to the vehicle," the judge observed.

Prosecution Failed To Identify Chassis & Engine Numbers

The judge further held that the prosecution miserably failed to prove that the chassis number and the engine number of the motorcycle in question were correct and the same indicated that the said vehicle was registered in the name of Pragya. It said that the prosecution only used worked on basis of 'probabilities' which they turned into 'certainty' without proper foundation.

"Thus, testimony of witnesses makes it clear that both the numbers i.e. Engine and Chassis are required to identify the vehicle. Without getting both the numbers the vehicle cannot be identified. It is also evident on record that, unless and until both the Chassis number and engine number are confirmed and both the numbers are tallying with the numbers provided by the manufacturer, the identification of the vehicle cannot be confirmed or validated. It clearly shows that, on the basis of probable numbers close to the numbers are traced out, which resulted into the direct jumping to conclusion showing that, it was the same vehicle without searching out the other probabilities. Thus, probabilities are converted into certainty only on the basis of surmises, conjecture, assumption and presumption without any foundation or base," the judge said.

Cannot Accept Pragya's Version Of ATS Torture

Even as the court refused to accept the case against Pragya, it also junked the contentions she raised about her 'severe' torture at the hands of the ATS officers, because of which she claims to be in bad health even today.

"The issue of ill-treatment and beating raised by Pragya, it is necessary to mention that, the issue pertaining ill-treatment and alleged beating should have been taken at the earliest i.e. at the time of remand itself. The remedies were available at that time to her. She had also availed that remedy but there was no result in her favour. Moreover, the suggestions given to the investigating officers pertaining to ill- treatment & torture had been denied / turned down by them. Therefore, except the bare contention, there is no evidence brought to my notice and hence, I am not inclined to accept the submission of Pragya on this point," the judge held.

However, the judge noted inconsistencies in the case diary records of the ATS and the testimonies of few of its officers and also the documentary evidence available on record.

The judge pointed out that though the ATS claimed to have arrested Pragya on October 20, 2008, yet documents indicated that on October 12, 2008 itself they received information about her involvement in the offence.

As per ATS version, Thakur founded Abhinav Bharat, a right wing organisation and hatched a conspiracy along with other accused to take 'revenge' and 'terrorise' the Muslim community.

While questioning Pragya (on October 12), ATS claimed to have seized some materials from her possession which were - her mobile, chain, ring, and a book of Hindutva Savarkar, two pages pamphlets regarding Kashmir problem, one pamphlet of Sarvabhaum Aryavart Sarkar, one pamphlet of Manav Raksha Sangha, one pamphlet pertaining to demand of investigation of murder of Swami Laxmanand Saraswati, along with some notebooks etc.

"It means the person who makes the statement to the police accusing himself of committing an offence, he would be considered to have submitted to the custody of the police officer. In other words, she had admitted her guilt. In the backdrop of aforesaid facts, it is very strange that, which don't inspire the confidence that, for the period of next several days again the ATS officers were calling her and making the inquiry with her about the said vehicle and her ownership, which was already concluded in their inquiry. Thus, on a single point, they were making inquiry with her for several days, without arresting her immediately even after she admitted her guilt as per entry taken by them. Moreover, the inquiry report is also not filed on record along-with charge-sheet," the judge held.

The judge further observed that a prudent man would not digest the story that, an accused would keep several articles with him / her, so as to implicate himself / herself as an accused. "Therefore, seizure of alleged articles do not inspire the confidence about its reliability, credibility, in the backdrop of the aforesaid facts," the judge concluded.

Appearance:

Advocates JP Mishra and Prashant Maggu appeared for Pragya.

Special Public Prosecutors Avinash Rasal and Anushree Rasal represented the ATS and NIA.

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