Expected? Key documents in Malegaon blasts case missing from NIA court!

Mumbai, Apr 7: All the statements were given in front of a magistrate and hence admissible as evidence to nail the alleged culprits that include a 'sadhvi' and a serving Indian Army officer.

In a major setback to the 2008 Malegaon blasts case, seven statements of witnesses - all recorded in the presence of a magistrate and admissible as evidence - have gone missing from the Special NIA Court.

Coming in the wake of Special Public Prosecutor Rohini Salian's statement in June last year that National Investigation Agency (NIA) officers were putting pressure on her to go soft in the case, the disappearance of the crucial court documents will again call into question the prosecution's intent and ability to take the case, in which members of an alleged Hindu radical group stand accused, to its logical conclusion.

Two low-intensity explosions in Malegaon's Bhikku Chowk on September 29, 2008, had left seven people dead and left over 80 injured. The Maharashtra police's Anti Terrorist Squad, which investigated the case before it was handed over to NIA in 2011, arrested a dozen-odd accused, including self-styled Sadhvi Pragya Singh Thakur and serving Indian Army officer Lt Col Srikant Purohit. Both worked for Hindu radical group Abhinav Bharat.

An embarrassed NIA has formed three teams to look for the missing statements, while the court officials have also joined in the search. Salian, who quit the case last year over, what she called, NIA's pressure to not push too hard, on Wednesday told media that an official from the Special NIA Court came to her looking for the documents. "One of the staff from the special court enquired with me if I am in the possession of the key documents, including several witness statements recorded under section 164 of the Criminal Procedure Code, which, he said, were not traceable in the court," she said.

Salian said she had handed over all documents to the designated special prosecutor Avinash Rasal in the presence of NIA officials. "I have not kept a single document related to the case with me," she said.

Rasal, on his part, said he had no knowledge of any witness statements having gone missing, but said that it is possible that some documents may have been misplaced. "The documents have been moved frequently from one court to the other. If the documents are not in the Special NIA Court, then they are probably some place else and the court officials should be able to locate them," he said.

Top NIA officials, including DIG Abhin Modak, all through Wednesday did not respond to calls and text messages and an agency spokesman said he had no comment to offer on the matter.

Among the witness statements gone missing is that of Dharmendra Bairagi, a close aid of Ramji Kalsangra, a key accused in the case who is absconding. Bairagi, in his statement recorded before a magistrate, had said that he was witness to a meeting between Kalsangra and Pragya Thakur in Ujjain just months before the 2008 blasts. He had also said he had heard the two discussing a plan to engineer blasts.

Another key statement that is missing is that of the founder of Abhinav Bharat Hemani Savarkar. Savarkar's statement details a meeting between Lt Col Purohit and Pragya Thakur in Nashik in 2007. It also accuses Lt Col Purohit of misusing Abhinav Bharat's name to raise funds.

Top criminal lawyer Majid Memon called the disappearance of the documents shocking. "In a case relating to terror, which is considered a serious offence, if lethargy, negligence or deliberate removal of important documents surfaces, it is an extremely serious matter. The court should not tolerate such lapses."

He added that this appears as a deliberate attempt at weakening the case and helping the accused. "On the face of it, this cannot be accidental or a case of omission."

While copies of the missing statements are available with the accused, these, in the absence of the originals, become secondary evidence. Statements recorded in the presence of a magistrate have evidentiary value before the trial court. Though a witness can still be called for deposition before the trial court so that he can be cross-examined, if the witness deviates from the statement given before the magistrate, the trial court can still rely on the statement.

Advocate Shirikant Bhat said that while statements can be reconstructed from a copy of the same available either with the prosecution or the defence, it all depends on how reliable or authentic this document being relied upon is. "And whether or not that document should be relied upon for reconstruction is for the court to decide," he said.

Advocate Shrikant Shivade, who is appearing for Col. Purohit in the case, said reconstruction based on the copies available either with the prosecution or the defense will be possible only if the process of filing the documents on record has been followed. "We will have to check if the statements were ever on record in this case," he said.