2008 Malegaon blast case: The unsolved mystery of the missing documents

With the National Investigation Agency (NIA) taking over the probe from the ATS in 2011 and re-recording the statements of some of the witnesses, the missing documents were crucial and could have been used to confront the witnesses about their previous statements.

The prosecution, therefore, sought that they be allowed to refer to photocopies of the missing documents since the originals were not available. While the trial court permitted it, the accused approached the Bombay High Court, which stayed the decision, noting that it was not proved that the photocopies were indeed of the original documents. The court had said that the NIA could find proof and file a fresh application to be able to use the photocopies as evidence.

“Thereafter, instead of filing any sort of such application, the prosecution proceeded with the case and examined all the witnesses. Merely, it was asked to the witnesses during the course of their evidence about recording of their 164 statements,” Special Judge A K Lahoti said. He added that even though witnesses said that they had given statements previously, it would not be considered as evidence since the copies could not be produced on record, and an opportunity could not be given to the accused to verify them.

The prosecution had said that the accused had been provided copies, but they had refused, stating that the lawyers in the case were different earlier, and they did not have any copies. The NIA prosecutor sought that this be considered an adverse inference against the accused.

The court said that the prosecution had not even examined the magistrates who recorded those statements, and hence the contents cannot be accepted only on the basis of the photocopies. These statements included two crucial witnesses, who had in the missing statements, allegedly told the magistrate that they had heard the accused discuss the need to plan a revenge attack on Muslims and to establish a Hindu Rashtra with a separate Constitution and flag. They were among the 39 hostile witnesses in the case.

‘SIMI role not proved’

Among the defences claimed by the accused was that close to the spot of the blast in Malegaon at Bhiku Chowk on September 29, 2008, where six died and nearly 100 were injured, was the office of the banned Students Islamic Movement of India (SIMI) and that its activists were involved in the blast.

“…there is nothing on record to show that any activists of SIMI was involved or seen near the spot of the incident,” the court said, noting that the ATS investigation officer had admitted that he did not probe whether the SIMI office was operational. The court noted that one of the witnesses had also seen a girl near the blast site. The court said that while it was the prerogative of the officer to decide the direction of the probe, when certain facts come to his knowledge during the probe, then “those angles are also required to be considered and investigated”.