An unpunished act of Terrorism: How the NIA “miserably failed” to produce evidence in the Samjhauta Express case

A Special NIA Court last week acquitted Swami Aseemanand and others accused of conspiring to conduct the Samjhauta Express blasts that killed 68 persons in 2007..While the judgment delivered by Special NIA Judge Jagdeep Singh caused a huge outcry in various circles, it is reflective of the sorry state of affairs of India’s investigation agencies..The 160-page judgment highlights in great detail how the National Investigation Agency (NIA) miserably failed to build a case against Swami Aseemanand and seven other accused..Brief Facts.In the aftermath of the Samjhauta Express blasts that occurred on February 18, 2007, the investigation in the case was handed to the NIA in 2010. An FIR was lodged against Swami Aseemanand and others under Section 120-B IPC read with Sections 302, 307, 324, 326, 124-A, 438 & 440 of IPC, along with various provisions of the Railways Act, the Explosive Substances Act, the Prevention of Damage to Public Property Act, and the Unlawful Activities (Prevention) Act..It was the NIA’s case that the alleged conspirators planned to commit terrorist acts on Muslim places of worship and other places densely populated by Muslims in India..As per the case put forth by the NIA, the motive for Aseemanand and others to commit the attack was payback for the terrorist attacks on Hindu temples across India. Aseemanand was accused of giving money to co-accused Sunil Joshi, in order to gather resourceful Hindu leaders to carry out the attacks..As per Aseemanand’s confession to the NIA, which was later retracted, the conspirators attended a number of meetings wherein the Samjhauta blasts, as well as attacks in Malegaon, Ajmer and Hyderabad were also planned..The Samjhauta Express was seen as a move to bring about goodwill between India and Pakistan. In one of these meetings, Sunil Joshi allegedly said “Yahan Hindu mar rahe hain, aur bharat sarkar samjhauta train chala rahi hai,” (Hindus are dying, and the Indian government is launching the Samjhauta Express) to which Sandeep Dange replied “Hum samjhauta train ko hi uda denge.” (We will destroy the Samjhauta train itself)..It was also alleged that while in jail, Aseemanand confessed to an inmate Khaleem in the presence of the Warden at the Hyderabad jail, taking the responsibility for the Samjhauta train blast..On his part, Aseemanand later retracted the confession, stating that NIA officials had compelled him to make the statement. He also alleged mental and physical torture by officials of different investigation authorities, who also threatened that his family members would be arrested if he didn’t confess. He also pleaded that he never met Abdul Khaleem in the Hyderabad jail, and had never any conversation with such person..The Issues.After hearing counsel for the accused as well as the NIA, Judge Jagdeep Singh proceeded to frame the following issues:.(i) Whether the prosecution has been successful in establishing that bomb explosion/blasts occurred in two coaches/bogies of Samjhauta Express train…?.(ii) Whether the prosecution has been successful in establishing that aforesaid occurrence of causing explosions in Samjhauta Express train on 18.02.2007 is a result of criminal conspiracy of accused persons facing trial?.(iii) Whether the prosecution has been successful in establishing motive on the part of accused persons to enter into criminal conspiracy…?.(iv) Whether the prosecution has been able to establish that bomb explosion/blasts in Samjhauta Express train on 18/19.02.2007 is in pursuance of the criminal conspiracy hatched amongst accused persons…?.(v) Whether prosecution has proved the guilt of accused Naba Kumar Sarkar @ Swami Aseemanand, Lokesh Sharma, Kamal Chauhan and Rajender Chaudhary for the charged offences…?.While holding that the first point was irrefutable given the evidence pointing towards the blasts, the judge considered points (ii) to (v) together..The Retracted Confession.At the outset, the Court noted that the NIA’s case was based solely on the retracted confession of Swami Aseemanand and statements of other accused..The Court relied on various Supreme Court judgments to reiterate that a conviction cannot be given solely on the basis of an uncorroborated retracted confession..As per Aseemanand’s confession, when the news of the Samjhauta Express blasts broke, Sunil Joshi (since expired) told him separately that the incident had been done by their men..But this did not satisfy the Court. It held,.“contents of retracted confession reveal that the accused has primarily disclosed the facts which are stated to have been disclosed to him by one Sunil Joshi (since deceased), which in turn reflects that retracted confession is nothing but hear-say one.”.The Court further noted that the retracted confession has remained totally uncorroborated by the other evidence on record..It then proceeded to look into whether or not the confession was voluntary. In this regard, it was noted,.“Aseemanand was produced before Special NIA Court at Panchkula on 13.01.2011, after the expiry of further police remand and then, investigating agency prayed for judicial remand… However, Investigating Officer also moved an application on the same day i.e. on 13.01.2011 before learned C.J.M., Panchkula for recording statement of accused Aseemanand u/s 164 Cr.P.C., but the Investigating Officer concealed this fact while moving application before designated Special NIA court and Investigating Officer had not even informed said court as if the accused was willing to make any statement u/s 164 Cr.P.C…”.The haste on the part of the Investigation Officer, as well as the fact that the application to record the statement was not signed by Aseemanand, led the Court to believe that the statement could not have been a voluntary one..It was further noted,.“…during the first remand of the accused from 23.12.2010 to 24.12.2010 and from 24.12.2010 to 03.01.2011, no concrete investigation was done by the investigating agency and during the next spell of police remand from 03.01.2011 to 13.01.2011, accused was stated to be taken to Daman for one day on 06.01.2011 and one disclosure memo and three pointing out memos along with respective site plans were prepared and no other evidence was collected, which itself reflects that NIA officials were constantly pressurising the accused to make statement u/s 164 Cr.P.C.”.Aseemanand had also moved an application on February 13, 2011 – the same day he made the confession – submitting that he is innocent and has been falsely implicated. Thus,.“Twin tests, i.e. whether confession was perfectly voluntary and whether it is true and trustworthy, are sine qua non for relying upon confessional statement to base conviction and in case reasonable suspicion arises about voluntary nature and truthfulness of the statement, then very basis of such statement goes and it would not be justified to base conviction solely on the basis of self-exculpatory statement of the maker, as per settled law.”.Missed Evidence.Judge Singh left no stone unturned in criticizing the NIA for its utter failure to place on record important evidence that could have helped established the guilt of the real culprits..The NIA failed to collect CCTV footage of old Delhi Railway Station, where the blasts occurred. The Court took a dim view of this, noting that some vital leads could have been obtained had the NIA brought such evidence on record..Then, the record pertaining to retiring rooms and dormitories at the station were not brought on record..“…the record of dormitories, where the passengers made the entry in their own handwriting, were not disposed of and again this court has not got an opportunity to look into a vital piece of evidence because the entries in the handwriting of passengers might have been got compared with the handwritings/signatures of suspects, thereby further providing a vital clue about the involvement of real culprits.”.Further, a suitcase in which one of the bombs was placed, was retrieved as evidence. It was found to be made at a bag store in Indore. As the Court notes, the NIA failed to conduct a Test Identification Parade of the accused for “reasons best known” to it..“…investigating agency, very strangely, has not even bothered to get conducted Test Identification Parade (TIP) of suspects/accused so as to arrive at concrete finding that any of the accused persons facing trial had in fact got the suitcase covers stitched at the said shop and procured for using the same in the occurrence and thus investigating agency has lost a very valuable piece of evidence by not conducting investigation properly in this regard…”.Other evidence that was not brought on record included the call detail records (CDRs) of the mobile phones of the accused and the fingerprints recovered from the site of the incident..“However, again, very strangely, it is nowhere made out from evidence produced on record by the NIA that such report of Finger Print Expert was got matched/compared with the fingerprints of the suspected persons or the accused so as to get vital clue about the use of plastic bottles in the explosions carried out in Samjhauta Express train blast and again vital piece of evidence in the shape of scientific evidence has remained untapped.”.The Verdict.Ultimately, in the absence of any concrete evidence, the Court had no option but to acquit the accused..“A few bits here and a few bits there on which prosecution relies cannot be held to be adequate or connecting the accused with the crime in question….…No concrete oral, documentary or scientific evidence has been brought on record to connect the accused, facing the trial, with the crime in question. There is not an iota of evidence to make out any motive on the part of the accused to indulge in the crime.”.Thus, the Court concluded that the NIA “miserably failed”to prove the charges framed against the accused..Parting shots.At the end of the judgment, Judge Singh laments the fact that this act of terrorism has gone unpunished, owing to the incompetence of the investigating agencies..“I have to conclude this judgment with deep pain and anguish as a dastardly act of violence remained unpunished for want of credible and admissible evidence. There are gaping holes in the prosecution evidence and an act of terrorism has remained unsolved. Terrorism has no religion because no religion in the world preaches violence…the pain becomes more acute when perpetrators of heinous crime remain unidentified and unpunished.”.Judge Singh also calls for peace in these times of turmoil..“It is generally noticed that a malaise has set in the investigating agencies which coin various terms like Muslim terrorism, Hindu fundamentalism etc or brand an act of criminal(s) as act(s) of particular religion, caste or community. A criminal element, belonging to a particular religion, community or caste, cannot be projected as representative of such particular religion, community or caste and branding the entire community, caste or religion in the name of such criminal element(s) would be totally unjustified and it would be in the best interests of human kind to nip such tenancies in the bud lest we should be heading towards intense civil war or caught in a whirlpool of fratricide…”.The verdict ends with a call to establish a more robust witness protection system, in light of the fact that many witnesses in the case turned hostile..“Even though the prosecution has miserably failed to connect the accused with the crime in question, however, it may also be noticed here that large number of witnesses have turned hostile in the present matter and have not supported the prosecution case… it is again high time we put in place some sound and workable witness protection scheme at the earliest so that every criminal trial be taken to its logical conclusion.”.Read the judgment:.Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.