2008 Malegaon blast case: From confessions to intercepted calls, here’s what was presented as evidence

While a detailed order is yet to be made available, here is the key evidence put forth by both sides.

Confessions and MCOCA

On September 29, 2008, a blast at Malegaon town near Nashik killed six people and injured over 100 others. The Maharashtra Anti-Terrorism Squad (ATS) that probed the blast rested its investigation mainly on the aspect that the accused had participated in conspiracy meetings to plan and execute the blast.

The main evidence was the confessions of some of the accused, recorded under the Maharashtra Control of Organised Crime Act. The confessions were rendered inadmissible after the MCOCA was dropped from the case in 2016, as the National Investigation Agency (NIA), which took over the probe from the ATS, said that there were shortcomings in how the Act was invoked.

The Act requires that the police show that the crime is the handiwork of an organised crime syndicate. For this, at least two previous chargesheets have to be shown pending against an accused. In this case, the ATS invoked MCOCA by showing two previous chargesheets filed against Rakesh Dhawade, who was discharged from all charges, except under the Arms Act, in the case in 2017.

The NIA in its 2016 chargesheet said that the previous chargesheets against Dhawade were filed within days of his arrest in the Malegaon case. The NIA said that this raised considerable doubt on the integrity of the invocation of MCOCA.

The Supreme Court, too, in 2015, had said that there is no prima facie evidence to charge the accused under the Act. Also, accused Sudhakar Dhar Dwivedi, one of the persons whose confession was recorded by the ATS, had claimed that he was tortured.

With MCOCA dropped, none of the evidence that was brought forward through confessions was reliable anymore, including claims that co-accused had participated in discussions and meetings about the bomb blast or that there was discussion on the logistics in executing the plan.

Conspiracy meetings

The ATS had claimed that conspiracy meetings were held in places, including Faridabad, Nashik, and Bhopal, between 2007 and 2008. The ATS mainly relied on the statements of witnesses, registers of halls where these meetings were allegedly held or registers of places where the accused allegedly stayed to prove their presence in these meetings.

Two key accused that the ATS claimed were part of the meetings in Faridabad and Bhopal had recorded statements before the magistrate under Section 164 of the Criminal Procedure Code for higher evidentiary value.

The NIA, however, said that there were inconsistencies in the statements, and re-recorded the same before a magistrate again. One of the witnesses said that he had not attended any meeting in Bhopal and had never visited the town till the ATS took him there in 2009. The same witness, whom the ATS claimed had heard discussions on the need for a revenge attack, had said that he was only serving water and meals to the participants and did not hear any discussion. He also said that he did not attend any meeting in Nashik.

During the trial, among the witnesses who turned hostile, most of them were on the point of conspiracy meetings. The accused had submitted that in the absence of any witnesses, none of the meetings as claimed by the ATS were proved.

The NIA investigating officer also admitted that the statements were re-recorded as the ATS had recorded statements “by use of force”, the accused told the court. The NIA, in its final submissions, said that none of the witnesses who claimed that they were coerced, except one, had approached any authorities with complaints and said the allegations were to save the accused as an afterthought.

In 2016, a theft of documents from the Malegaon 2008 blast case was reported. These included witness statements of 13 people. Most of the 13 turned hostile in the case, and the prosecution was unable to confront them with their statements as they went missing. While the prosecution said that copies of the statements were provided to the defence and hence sought the copies to lead secondary evidence in the absence of the originals, the accused said that they did not have copies. The NIA, in its final arguments, had submitted that a negative inference should be drawn from this stand of the accused.

During his pronouncement, Special Judge Lahoti said that there was no evidence of the conspiracy meetings as the witnesses had turned hostile.

Recordings on laptop

One of the crucial pieces of evidence that the ATS and the NIA relied on was the audio and video recordings on the laptop of accused Sudhakar Dhar Dwivedi. The ATS had seized the laptop from him at the time of his arrest and allegedly found recordings of meetings between the accused, towards planning the conspiracy. The ATS also recorded voice samples and said that forensic laboratory reports show that the samples matched the accused, showing that they had participated in the meetings.

The accused, in their final submissions before the court, claimed that these recordings could not be relied on. They claimed that there was no independent identification of the accused, and there were contradictions in the recovery memo and the arrest process.

It was also claimed that there were multiple procedural irregularities, like the laptop not being immediately sealed, or the hash value not being recorded, which gives scope for the possibility of tampering, they submitted.

The NIA maintained that there were no irregularities, and in the absence of witnesses deposing on the contents of the meetings, the recordings can be used as crucial evidence. The accused also claimed that the forensic expert on the voice samples was not qualified to give a report, as he had only done a five-day course on a related topic. The prosecution claimed that the voice samples match report was proper.

Intercepted calls

Another crucial link between the accused that the ATS and NIA relied on was the intercepted conversations between the accused. It was claimed that after the first arrest in the case was made of accused Pragya Singh Thakur on October 23, 2008, there were calls between the co-accused which show their complicity in the crime.

For instance, when newspapers reported Thakur’s arrest, the ATS had claimed that in one of the calls, accused Lieutenant Colonel Prasad Purohit told co-accused Major (retired) Ramesh Upadhyay that the “cat is out of the bag”, which it alleged was in reference to Thakur’s arrest. On another call, it was mentioned that “Singh has sung a song quite a bit”, which it was alleged also referred to Thakur’s interrogation.

A text message sent by Purohit to co-accused Sameer Kulkarni, where he allegedly mentioned that ATS officials were at his house, gave instructions to Kulkarni to delete all contacts, and mentioned leaving Bhopal immediately, also formed part of the evidence. The accused claimed that these calls were intercepted without following the guidelines for such interception and were in violation of laws and personal liberty.

A time lag and a ‘go soft’ allegation

The NIA took over the case in 2011, three years after the blast, but filed a chargesheet only in 2016. In its chargesheet filed in April 2016, the agency under the Union Ministry of Home Affairs submitted that no additional evidence could be collected from the crime scene.

“…and the veracity of the evidence collected by the previous investigation agency could not be fully substantiated. The delay in handing over the investigation to NIA also precluded the possibility of obtaining electronic evidence by way of telephone/mobile records, which has proved to be major hurdle in the investigation especially collection of material evidence to substantiate the statement of various witnesses and accused persons,” the NIA chargesheet said.

The NIA chargesheet did not include any new witnesses, but instead, included re-recorded statements of some of the witnesses who had given statements before the magistrate in 2008-09. The witnesses denied their previous statements.

Before the chargesheet was filed, in a 2015 interview with The Indian Express, then special public prosecutor Rohini Salian had said she was under pressure from the NIA to “go soft” in the case. Soon after the NDA government came to power last year, she said she got a call from one of the NIA officers, asking to come over to speak with her. She had subsequently reiterated the same in an affidavit filed before the Bombay High Court a few months later, also naming the officer who had approached her. The NIA, however, denied the allegation, claiming that her notification to appear as the prosecutor was to be recalled.

Motorbike ownership

The NIA submitted that there was other evidence, like the trust deeds of the Abhinav Bharat organisation, found in the homes of the accused. They argued that the organisation was not banned. Another crucial aspect the accused claimed was missing from the evidence was proof on where the bomb was assembled, how it was stored and how it was transported to the spot. They said that there was no evidence on who had brought the bike to Bhiku Chowk. The prosecution submitted that forensic proof, including from the bomb detection and disposal squad, proved that the explosive was kept on the bike.

Accused Pragya Singh Thakur’s lawyers argued that there were irregularities in the bike’s serial number claimed by the prosecution. The prosecution said that there was proof to show the motorcycle was registered in Thakur’s name. The court said that there was no evidence to show that Thakur was the owner of the motorcycle.