india

Updated: Mar 29, 2019 12:58 IST

The National Investigation Agency’s (NIA) heavy reliance on the retracted confession of accused Naba Kumar Sarkar alias Swami Aseemanand and disclosure statements of other accused to establish their guilt was a major reason behind the falling apart of the 2007 Samjhauta Express blasts case.

The order of special NIA court judge Jagdeep Singh said the investigative agency also depended on circumstantial evidence, but could not bring on record concrete oral, documentary or scientific evidence to connect the accused with the crime in question.

The judgment also brings out the sloppy investigation of the case by the NIA.

“The entire prosecution case is found to have been built on inadmissible evidence in the shape of disclosure statements of the accused, without there being any discovery of new fact, recovery of material. Further, there is no credible and admissible evidence on record pertaining to any association, preparation, planning, execution by the accused with regard to carrying out explosion in Samjhauta Express,’’ the court said.

‘Needs corroboration’

The court said a retracted statement cannot be solely made the basis of conviction unless the same is corroborated. It would be sufficient if the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession, the court said.

The special court said that after marshalling the evidence on record, the retracted statement of Swami Aseemanand remained totally uncorroborated and even no general corroboration has been coming forthwith, what to talk of sufficient corroboration in material particulars by other evidence on record. “None of the aspects and facts mentioned in the retracted confession has found any corroboration from any other evidence coming on record…,” the court said.

It said there is no evidence to make out the involvement of Lokesh Sharma. In his case, the prosecution has sought to place reliance on retracted confession of co-accused Swami Aseemanand in order to “bring home guilt to this accused”.

The confession of a co-accused cannot be elevated to the status of substantive evidence which can form basis of conviction of other co-accused. A retracted confession is a “weak link against the maker and more so against a co-accused”, the court said.

The court said the prosecution sought to lend credence to its version by submitting that there is extra-judicial confession of accused Kamal Chauhan before mediapersons and it be taken as corroborative piece of evidence.

The evidence nowhere makes out that accused Kamal Chauhan ever made any extra-judicial confession before the mediapersons with regard to his involvement in the crime. Thus, so far as any alleged extra-judicial confession of Chauhan is concerned, the case of the prosecution falls flat and has no legs to stand, the court said.

‘Sloppy probe’

The court said the NIA chargesheet said that a thorough analysis of the call detail records of various mobile phones revealed that one of the accused, Sunil Joshi, was in Kothari market area at Indore on Feb 14, 2007 and call detail records of the telephone used by Pragya, Sunil Joshi, Sandeep Dange and Aseemanand showed inter-connectivity and links of suspects during February-March, 2007.

However, the prosecution/ NIA has not brought an iota of evidence on record to establish any such facts.

“Neither any call detail records (CDRs) of any mobile phone nor any other evidence pertaining to ownership and possession of any mobile phone by the suspects has been brought on record. Neither dump data of tower of Kothari market area, Indore has proved on record nor any call details were furnished in the subscriber’s detail record and thus, again valuable piece of evidence remained untapped,’’ the court said.

Likewise, there is no evidence pertaining to alleged meeting of suspects at Jaipur in October-November, 2005. Thus, there is not an iota of evidence to make out participation of accused persons in alleged meeting at Jaipur in October-November, 2005, the court said.

Fingerprints not matched

The court said it is nowhere made out from the evidence produced on record by the NIA that a report of the fingerprint expert was got matched or compared with the fingerprints of the suspects or the accused to get vital clue about the use of plastic bottles in the explosions carried out in Samjhauta Express.

“Again a vital piece of evidence in the shape of scientific evidence has remained untapped,’’ the court said.

A fingerprint expert, Bharat Singh, had visited the Panipat police post on February 24, 2007 and examined the plastic bottles recovered from the spot. Singh had also obtained the report of fingerprints from Ram Singh, inspector fingerprints, and deposited the report and case property with Malkhana.

‘NIA could not establish motive’

The court said so far as motive to commit the crime is concerned, it is settled law that motive alone cannot be taken to base conviction of an accused, even though the same is relevant. In the present case, as per the version of prosecution, the accused were deeply angered by the spate of terrorist attacks committed by Jihadi terrorists on Hindu temples in India, it added.

The accused conspired and with the motive of avenging such attacks, carried out Samjhauta Express train blasts. “First of all, the prosecution has failed to bring on record any evidence to make out any such motive on the part of accused facing the trial. Neither any oral nor any documentary evidence has come on record making out any such motive,’’ the court said

‘No evidence on planting explosives’

The court said there was no evidence regarding any agreement to commit the crime among the accused. “There is no evidence regarding any meeting of minds between the accused to commit the crime. No concrete oral, documentary or scientific evidence has been brought on record to connect the accused, facing the trial, with the crime in question,’’ the court said.

It added that there is not an iota of evidence to make out any motive on the part of the accused to indulge in the crime. There is no evidence on record to show as to how and from where raw materials for making of bombs were procured; as to who collected the material to prepare the explosives; as to who had assembled the bomb; as to how and from where technical know-how was obtained with regard to preparation of explosives; as to who planted the bombs in Samjhauta Express train.

“The entire prosecution case is found to have been built on inadmissible evidence in the shape of disclosure statements of the accused, without there being any discovery of new fact, recovery of material. Further, there is no credible and admissible evidence on record pertaining to any association, preparation, planning, execution by the accused with regard to carrying out explosion in Samjhauta Express,’’ the court said.

Circumstantial evidence

The court said the case was based on circumstantial evidence and it is a settled law that all circumstance must form a complete chain in order to rule out innocence of the accused persons or culpability of persons other than the accused.

Eight chargesheeted, only four tried by court

The NIA in its chargesheet had named eight persons as the accused in the case. But only four —Swami Aseemanand, Lokesh Sharma, Kamal Chauhan and Rajinder Chaudhary — faced trial. The alleged mastermind of the attack Sunil Joshi was killed in December 2007. Three other accused —Ramchandra Kalsangra Sandeep Dange and Amit —are still absconding.