TERMING the investigation of the 2008 Malegaon blasts by the Maharashtra Anti-Terrorism Squad as being filled with “lacunae,” the National Investigation Agency (NIA) Friday filed a chargesheet against 10 and dropped Sadhvi Pragya Thakur and five others from the list of the accused.
Charges under the stringent Maharashtra Control of Organised Crime Act (MCOCA) were dropped against all accused including Lt Col Prasad Shrikant Purohit.
As first reported in The Indian Express Friday, this cleared the way for the agency to reject key confessional statements under MCOCA and state, in the chargesheet, that “sufficient evidences have not been found against” the six and “prosecution against them is not maintainable”.
Sadhvi Pragya, originally Accused Number 1, was the first to be arrested in October 2008. Besides her, those given a clean chit: Shivnarayan Kalsangra, Shyam Sahu, Praveen Takkalki, Lokesh Sharma and Dhan Singh.
In the Malegaon incident, seven people were killed in twin blasts, allegedly set off on a bike, after Ramzan prayers on September 29, 2008.
It was investigated initially by Joint Commissioner of Maharashtra ATS Hemant Karkare who was killed during the 26/11 Mumbai attack. Before the NIA took over the case in 2011, ATS had booked 16 people but filed chargesheets on January 20, 2009 and April 21, 2011 against 14 accused in a Mumbai court.
The 133-page chargesheet, filed before the special NIA court in Mumbai today, indicts Purohit relying upon an authorised intercepted conversation between him and accused Ramesh Upadhyay, claiming that their “post conduct” shows guilt and active participation in the crime.
Additionally, the latest NIA chargesheet has not only said there is “considerable doubt” on the applicability of MCOCA but it has also called the methods used by the Maharashtra ATS “questionable” and “dubious”.
It also says a CBI investigation has found ATS men linked to the disappearance of a key witness in the case.
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A new NIA witness has also been quoted as saying that he saw an assistant police inspector (API) of the Maharashtra ATS “suspiciously” in the house of Sudhakar Chaturvedi. “When I entered the room, I saw API Shri Bagade was alone and doing something. On seeing me he immediately came out and pleaded to me that I should not inform about the incident to anyone.” The NIA chargesheet has said that the recovery of RDX from Chaturvedi’s house hence becomes suspect.
The NIA has now booked nine people, including Purohit, Major Ramesh Upadhyaya, Sameer Kulkarni, Ajay Rahirkar, Rakesh Dhawde, Sudhakar Dwivedi, Sudhakar Chaturvedi, Ramchandra Kalsangra and Sandeep Dange under Unlawful Activities (Prevention) Act, Indian Penal Code and Explosives Substances Act. In addition, accused Jagdish Mhatre, has been charged only under the Arms Act for illegal supply of arms to the other accused. The NIA found no evidence to link him to the conspiracy.
The two whom the NIA had arrested but did not charge are Lokesh Sharma and Dhan Singh.
Claiming that there is insufficient evidence to prosecute Thakur, the NIA stated that its evidence has pointed out that the LML Freedom motorcycle, used for planting the bomb, was registered in Sadhvi Pragya’s name but was in the possession of accused Ramchandra Kalsangra and was being used by him well before the blast.
It further says that as the confessional statement of accused Sudhakar Dwivedi in which he is claimed to have spoken about being introduced to Kalsangra and Sandeep Dange — both absconding accused — by Thakur has no “evidentiary value” and was retracted.
Further, all key confessional statements, as permissible under MCOCA, were recorded before a DCP-level police officer — as distinct from a statement under Section 164 of CrPC before a Magistrate — and so with MCOCA revoked, these statements had no evidentiary value and were, therefore, discarded.
Such statements include the one which claimed that it was Thakur who requested Dwivedi to call Purohit to arrange for explosives. Another witness statement which claimed that a meeting took place between Kalsangra and Thakur in October 2008 — after the blast — also became inadmissible as evidence against Thakur.
In the alleged meeting, Kalsangra was said to have confessed that he executed the blast using Thakur’s motorcycle.
Another statement by a witness of the ATS claiming that Purohit had told him that he along with Kalsangra and Sudhakar Chaturvedi had fit the explosive device in the motorcycle was also rendered inadmissible.
In 2008, the ATS had invoked MCOCA based on two chargesheets filed previously against accused Rakesh Dhawde. During the course of its investigation, the NIA said, it found that these two chargesheets had been filed for the sole purpose of fulfilling conditions enabling application of MCOCA. While Dhawde was chargesheeted in the Parbhani and Jalna bomb blast cases of 2003 and 2004, the NIA has said there is no evidence to show that Dhawde was involved in either.
“Neither is there any evidence of any accused of the instant case knowing about the involvement, if any, of Dhawde in any continuing criminal activity. The way and the circumstances in which the ATS invoked the provisions of MCOCA became questionable as a case was registered in the Parbhani blast on Nov 28, 2003. Supplementary chargesheet filed in the case against accused Dhawde was on November 13, 2008 while he was placed under arrest in the case on Nov 11, 2008,” the chargesheet states.
It says the chargesheet against Dhawde in the Jalna case was under similar circumstances. “The Jalna case was registered on Aug 27, 2004. Supplementary chargesheet was filed against Dhawde on Nov 15, 2008 on the same day of his arrest. It may be mentioned that in this case, no accused was shown as wanted in the case. Dhawde was arrested by the ATS on Nov 2, 2008 in the Malegaon case,” it says, adding that the ATS could not have had time to collect evidence against the accused in these two blast cases before filing the chargesheets. Dhawde has already been acquitted in the Jalna case, while the Parbhani trial is going on.
On the confessional statement of co-accused Sudhakar Dwivedi, recorded before a DCP-rank officer as permissible under MCOCA, the NIA says the statement was made under duress.
“The confession was made as an outcome of torture meted out to him. This raises considerable doubt on the integrity of invocation of MCOCA by ATS, the dubious method adopted by ATS becomes crystal clear by the disappearance of one of the main witnesses. The CBI during its investigation has submitted findings pertaining to the disappearance against the officers of ATS Mumbai,” the chargesheet says.
The NIA has claimed that since it took over the investigation in 2011, the time lag has ensured that no additional evidence could be collected from the scene of the crime. “…the veracity of the evidence collected by the previous investigation agency could not be fully substantiated,” the NIA chargesheet states.
Earlier, Purohit and Pragya had moved several applications before the Bombay High Court and Supreme Court challenging the chargesheet and applicability of MCOCA in the case.
Director General of NIA Sharad Kumar told reporters today there was no dilution in the case. Asked to explain the U-turn, he said: “Until our investigation was not complete, we had to go by the probe done by the ATS. Now that we have completed the investigations, we have submitted our final report (chargesheet)”.
The chargesheet was today submitted by public prosecutor Geeta Godambe before Special Judge S D Tekale here. Special Public Prosecutor in the case Avinash Rasal said he was not informed about the filing of the chargesheet (by the NIA). “I am hurt and I may resign from the case”, Rasal said.
The NIA made a reference to the Court of Inquiry report of Army against Purohit which claims that ATS officials had barged into his house and apparently “planted” RDX.However, the NIA has not come to its own conclusion about the claims made by the army in its inquiry report.
The blast took place by an improvised explosive device fitted in a LML Freedom motorcycle and the probe was handed over to the Maharashtra ATS which first invoked UAPA on October 18, 2008 and stringent MCOCA, a month later in the same year.