[Bhima Koregaon] Rona Wilson moves Bombay High Court to quash case against him based on forensic report; demands SIT probe, compensation

In a significant development in the case related to the 2018 Bhima Korgaon violence, one of the accused, Rona Wilson has approached Bombay High Court seeking directions to appoint a Special Investigation Team (SIT) headed by a retired Supreme Court or High Court judge and consisting of experts in digital forensic analysis to probe the alleged the planting of documents on his computer by using malware.

Wilson has also sought quashing of the case against him besides seeking compensation for malicious prosecution, defamation and harassment.

The plea has been filed in the light of a report released by US-based forensic consulting firm, Arsenal Consulting which said that the computer which was seized by the Pune Police from Wilson, was compromised due to an attack from a significant malware infrastructure deployed over a period of almost two years.

In his plea, Wilson has placed reliance upon the said report to contend that incriminating documents relied upon by the prosecution were planted on his electronic device to incriminate him and his co-accused.

Arsenal Consulting had prepared the report after Wilson through his lawyers approached the America Bar Association (ABA) to help conduct an independent forensic analysis of the clone copy of electronic copies which were allegedly provided to him a year after filing of chargesheet.

ABA then contacted Arsenal Consulting to conduct the analysis with the intention of ascertaining the source of the said documents.

Arsenal was asked to perform forensic analysis in respect of 10 identified documents used by the prosecution against the accused.

“It is by citing these documents, that Prosecution has been able to ensure prolonged detention of the Petitioner and his co-accused,” Wilson's plea before the High Court states.

As per Arsenal's report, an attacker deployed a malware named NetWire with which he initially subjected will to surveillance and later delivered the incriminating documents to his computer.

This was done after a series of suspicious emails were sent by someone using Dr. Varavara Rao's email account. 82-year-old Rao is a co-accused in the case.

As per the report, the emails contained a particular document, which once opened by Wilson, planted a trojan (digital malware) on his computer. Five such trojan samples were found by Arsenal on Wilson's computer.

Importantly, the report said that while looking for various documents created on Wilson's computer through Microsoft Word, Arsenal found that Wilson's computer had the 2007 version of Microsoft word and there was no evidence to suggest that Wilson's computer had the 2010 or 2013 version of Microsoft Word.

The incriminating documents found on his computer and referred to in the chargesheet had in fact been planted for over a period of 22 months preceding the seizure without his knowledge, the petition states.

Wilson is presently an under-trial prisoner accused under provisions of the Unlawful Activities (Prevention) Act in the Bhima Koregaon case being investigated by the National Investigation Agency.

“During the investigation, it was revealed that Petitioner and other co-accused, were hatching conspiracy to eliminate Prime Minister Modi, ’in another Rajiv Gandhi type incident," the plea states.

According to Wilson, the basis of the allegation of the prosecution agency is electronic evidence supposedly recovered from the electronic evidence recovered from the Petitioner’s devices.

Wilson has submitted in the plea that the planting and framing of such evidence amounts to false prosecution.

There is also malice in law due to the selective prosecution of the present accused while ignoring the role of real culprits who triggered the violence that took place on January 1, 2018 during the Elgar Parishad at Bhima Koregaon.

The electronic evidence recovered from his devices was supposedly sent to the Forensic Science Laboratory (FSL) for analysis and after receiving clone copies of the same, the NIA claimed that “incriminating” electronic records in the form of electronic documents were found on the devices.

“There was intrinsic evidence to show that the search and seizure was not in accordance with law as the hash value of his device was nether taken nor provided to him leaving open the possibility of tampering and/or ruling out tampering of the electronic devices,” Wilson has contended.

He has further submitted that the First Information Report (FIR) before the Pune Police was in fact filed against Sambhaji Bhide and Milind Ekbote.

After some investigation, the police informed the Session court through their affidavit that Ekbote had played an active and pivotal role in the violence of January 1.

The Pune rural police also expressed their apprehension through affidavit over the involvement of extremist Hindu organisations in carrying out the attacks.

Despite such an affidavit, no chargesheet was purportedly filed against Bhide and Ekbote and no action was taken against them.

Stating that the act of planting amounts to committing offences against public justice, Wilson has sought for monetary compensation for the violation of fundamental rights, harassment, defamation, loss to reputation and detention suffered during this period.

He has submitted that further prolonging the case against him will be an absolute travesty.

Therefore, till the pendency of the plea, Wilson has sought stay on the proceedings in the chargesheet pending before the Special NIA Court and also prayed for his immediate release from detention.