It has to be said right at the outset that in a major relief to Swami Asimanand and others, the NIA Court of Panchkula in NIA Vs. Naba Kumar Sarkar @ Swami Asimanand and others in Case No. 5 RBT/01.07.2011/03.08.2018 and delivered on March 20 by Jagdeep Singh who is Special Judge of NIA Court, Panchkula in a detailed 160 page judgment has finally acquitted former Rashtriya Swayamsevak Sangh (RSS) member Naba Kumar Sarkar alias Swami Asimanand who was the prime accused in this high profile case along with other suspects – Lokesh Sharma, Kamal Chauhan and Rajender Chaudhary for want of credible and admissible evidence. This high profile case is more famously known as Samjauta blast case. 68 people were killed in Samjauta blast which took place in 2007.

To put things in perspective, the blasts occurred on the intervening night of February 18/19, 2007, when Samjauta Express, which was bound to reach its destination Lahore from Delhi, had passed a station near Panipat and was on its way to Attari in Amritsar which is the last station on the Indian side. Before pronouncing the verdict, NIA Special Judge Jagdeep Singh had dismissed the plea filed by a Pakistani woman for examining some eyewitnesses from her country. NIA counsel Rajan Malhotra said that the Court ruled that the plea of the Pakistani woman was devoid of any merit. The blast had ripped apart two coaches of the cross-border train.

Truth be told, the Haryana police had registered a case but the probe pertaining to Samjauta train blast was handed over to the NIA in July 2010. The NIA had filed chargesheet in July 2011 against eight persons for their alleged roles in the terror attack. Of the eight, Swami Aseemanand, Lokesh Sharma, Kamal Chauhan and Rajinder Chaudhary appeared before the court and faced trial. Sunil Joshi who was alleged to be the mastermind of the attack was shot dead near his home in Madhya Pradesh's Dewas district in December 2007.

Also, it must be revealed here that the other three accused – Ramchandra Kalsangra, Sandeep Dange and Amit could not be arrested and they didn't appear before the court and so were declared "proclaimed offenders". Swami Aseemanand was out on bail while the other three were in judicial custody. The NIA had charged the accused with murder and criminal conspiracy and under the Explosive Substances Act and the Railways Act.

It must be pointed out that the prosecution alleged that the blasts were a part of the concerted design of the accused, who had allegedly formed a hardline organization named 'Abhinav Bharat' to avenge jehadi terrorism sponsored by Islamic groups. But it failed miserably to produce cogent and reliable evidence on which the Judge could rely to convict Swami Asimanand and others and therefore, they had to be acquitted!

Be it noted, Swami Asimanand was also alleged to be the mastermind of Mecca Masjid blasts and Ajmer dargah blasts which had occurred in 2007 just few months after Samjauta blasts and was acquitted in both the cases by NIA Courts at Jaipur and Hyderabad in May 2017 and April 2018 respectively. How can all this be dismissed so lightly that different Judges could not find any evidence to punish him in any of these cases? The fact of the matter is that Swami Asimanand being acquitted one after the other in different terror cases clearly and convincingly prove that this was certainly done with a diabolical conspiracy hatched at the behest of certain powerful vested interests enjoying tremendous political clout who were most desperate to implicate him falsely to further their own vested agenda!

Needless to say, this reminds one of the case of Mohammad Amir Khan who was long incarcerated in prison for 14 years in his prime age from 18 to 32, lost his father who could not tolerate people calling him as "father of terrorist" while in jail, mother too became paralytic and later died and still he swears by India and feels proud to be an Indian. All those in India who without spending a day in jail shout slogans in favour of Pakistan or shout anti-national slogans must learn a lesson from the life of Mohammad Amir Khan by reading what happened with him! Still it failed to push him to do anything that they who shout anti-India slogans do without spending even a day or even few hours in jail! I salute Mohammad Amir Khan from the innermost core of my heart! I wish those "shouting anti-India and pro-Pakistani slogans brigade" could learn something from his historic life which no Indian should ever forget!

Anyway, coming back to the case at hand, the NIA Court bemoaned the irrefutable fact that there was no evidence to establish the alleged motive behind the crime! The sole evidence in that regard was a statement by a witness. Dwelling in detail on this, Jagdeep Singh who is Special Judge of the NIA Court held in para 58 that, "In the present case, as per the prosecution version, accused were deeply angered by the spate of terrorist attacks committed by jihadi terrorists with cross-border support on Hindu Temples and Hindus in India and the accused conspired amongst themselves and with the motive of avenging such jihadi terrorist attacks, the accused had carried out Samjhauta Express train blasts. First of all, prosecution has failed to bring on record any evidence to make out any such motive on the part of accused facing the trial. Neither any oral nor any documentary evidence has come on record making out any such motive. The sole witness examined by the prosecution in this regard is PW136/Dr. Ram Partap Singh, trying to make out that on one occasion accused Aseemanand had talked in a meeting at Bhopal on 11.04.2008, where lots of talks had taken place for organizing the Hindus and that accused Aseemanand had stated that Hindus should also retaliate in the same way to the jihadists who are attacking Hindu religious places. First of all, the alleged meeting is alleged to have taken place on 11.04.2008 i.e. much after the occurrence of 18/19.02.2007 and therefore the same has no relevance at all and it nowhere reflects that this accused ever entertained any such intention prior to the occurrence. Further, PW136 in his examination-in-chief itself stated that he can identify Swami Aseemanand if shown to him and when learned SPPs asked the witness to identify that person from the persons present in the court, this witness failed to identify accused Swami Aseemanand."

Needless to say, it cannot be missed out here that it is then held in this very same para that, "This witness has further even gone to the extent of stating that the person who was present there (the meeting on 11.04.2008 at Bhopal) was a taller person and that said person is not present in the court. Thus the evidence of this witness makes it crystal clear that he was a got up witness of the prosecution and has failed to identify the alleged person who had talked about retaliatory attacks and thus there is not an iota of evidence on record to impute any motive to any of the accused facing the trial." Can any person be convicted on the evidence of such person as stated here? Certainly not because the person deposing is himself contradicting what he is alleging as has been pointed out in this judgment itself!

It also cannot be missed out that it is then held in the next para i.e. para 59 the following: "Admittedly present case is based on circumstantial evidence and it is settled law that all circumstance must form a complete chain in order to rule out innocence of the accused persons or culpability of persons other than the accused. The Hon'ble Supreme Court in a catena of judgments has held that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, (AIR 1977 SC 1063); Eradu and Ors. V. State of Hyderabad, (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka, 1983(1) RCR(Criminal) 292; State of U.P. v. Sukhbasi and Ors., (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab, 1987(1) RCR(Criminal) 517; Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances."

For the sake of brevity, some case laws mentioned in para 59 have been omitted. Para 60 and 61 also dwell on some other relevant case laws on circumstantial evidence. Shall discuss only one most relevant case law here. It is stated in para 61 that, "Hon'ble Supreme Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 held that the circumstances concerned 'must or should' and not 'may be' established and the Hon'ble Court made the following observations:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

No doubt, it would be of paramount importance to state here that it is then mentioned in para 62 that, "Thus, the following are the broad principles which are required to be followed while appreciating case of circumstantial evidence:-

(a) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and confirmly established;

(b) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(c) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accusaed and none else;

(d) The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence and circumstances should be of conclusive nature and tendency.

(e) On the availability of two inferences, the one in favour of the accused must be accepted.

(f) It cannot be said that prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise."

Stated simply, para 63 then envisages that, "It is further trite to say that suspicion, however grave, cannot take the place of proof and it is cardinal principal of criminal jurisprudence that charge against an accused can only be established by adducing evidence beyond reasonable doubt. 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. In criminal cases, conviction cannot be based upon morality and there must be admissible and credible evidence to base conviction and moreover it is a well settled canon of criminal jurisprudence that 'fouler the crime higher the proof' and mandate of law is that the prosecution has to prove the charges beyond all reasonable doubt. Prosecution is under obligation to place and prove all necessary circumstances constituting complete chain without there being any missing link and also pointing to the hypothesis that except the accused none else had committed the crime. In the present case, there is no evidence regarding any agreement to commit the crime amongst the accused persons. There is no evidence regarding any meeting of minds between the accused to commit the crime. 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. There is no evidence on record to show as to how and from where raw materials for making/preparation of bombs were procured; as to who collected the material to prepare the explosives; as to who had prepared/assembled the bomb/explosives; as to how and from where technical know-how was arranged/obtained with regard to preparation of bomb/explosives; as to who planted the bombs in Samjhauta Express train etc. and the entire prosecution case is found to have been built on inadmissible evidence in the shape of disclosure statements of the accused, without there being any discovery of new fact/recovery of material/object. Further, there is no credible and admissible evidence on record pertaining to any association, preparation, planning, execution etc. of by the accused with regard to carrying out explosion/blasts in Samjhauta Express train and further there is no credible evidence with regard to previous and/or subsequent conduct of accused persons so far as the present crime is concerned. In the light of fore-going discussion, the points Nos. (ii) to (v) are hereby decided against the prosecution."

Without mincing any words, it was then held in para 64 that, "As a corollary to the aforesaid discussion, this court is of the considered opinion that prosecution/NIA has miserably failed to prove the charges framed against the accused, namely, Naba Kumar Sarkar @ Swami Aseemanand, Lokesh Sharma, Kamal Chauhan and Rajender Chaudhary as per law. Prosecution has failed to adduce evidence beyond reasonable doubt to make out culpability of accused persons for the charged offences. Therefore, all the accused persons facing trial are entitled to be acquitted of the charges framed against them and resultantly, all the accused, namely, Naba Kumar Sarkar @ Swami Aseemanand, Lokesh Sharma, Kamal Chauhan and Rajender Chaudhary are hereby acquitted of all the charges framed against them. Bail/surety bonds furnished by accused Naba Kumar Sarkar @ Swami Aseemanand stand discharged. Accused, namely, Lokesh Sharma, Kamal Chauhan, Rajinder Chaudhary, who are in custody, be released forthwith if not required in any other case. Case properly be disposed of as per rules after lapse of period of filing of appeal or revision against this judgment or the outcome of the same, as the case may be."

Briefly stated, it is then acknowledged by the Special Judge in para 65 that, "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. A Court of Law is not supposed to proceed on popular or predominant public perception or the political discourse of the day and ultimately it has to appreciate the evidence on record and arrive at final conclusion on the basis of relevant statutory provisions and settled law applicable thereto. Since findings of a court of law are based on admissible evidence as per law, the pain becomes more acute when perpetrators of heinous crime remain unidentified and unpunished."

Going forward, the Special Judge then goes on to add in this same para that, "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 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 tendencies in the bud lest we should be heading towards intense civil war or caught in a whirlpool of fratricide. It is high time we made this world a place of peaceful co-existence lest the sentiments of mutual hatred or false notions of supremacy over one other would engulf the planet."

It cannot be dismissed lightly that senior BJP leader and Union Finance Minister who has held Law portfolio also in past along with Defence did not dither in taking a swipe at Congress leaders including its President Rahul Gandhi and General Secretary Priyanka Gandhi Vadra over their temple visits, saying those who believed Hindus to be terrorists are now busy showing their dedication to the religion. Attacking the Congress over the Samjhauta blast verdict, Jaitley said people cannot tolerate an entire community being labelled as terrorists. He also pointed out that the investigation was carried out between 2007-09 when the UPA was in power. Jaitley was at pains to point out that wrong set of people were framed by forging evidence and the entire Hindu community was 'smeared', something, he added, that happened for the first time in history. He also added that, "Who will take accountability for this? It rests with the leadership of the Congress. The society will never forgive them."

Not stopping here, Jaitley further added that, "Innocents were killed in the blast but investigators focused not on real culprits but on establishing the political theory of Hindu terrorism. The Congress gave the slogan of 'Hindu terrorism' for its 'votebank' politics. In other cases also evidence were forged to probe this theory, for political benefits. The US state department kept telling India about terrorists involved in blasts and gave their names as well but that line of investigation was not pursued. There were reports that the US state department suspected terror outfit LeT's role in the blasts."

It is a no-brainer that LeT is directly functioning in Pakistan openly and its chief Hafiz Saeed keeps lashing out at India that he will kill Indians mercilessly in public rallies most proudly but it is a fact that in Congress and UPA regime this angle was never probed and we have seen for ourselves how prominent leaders like Mani Shankar Aiyyar minced no words in saying that he got more love in Pakistan from people than in India! Anyway, that is his personal view but it cannot be denied that Pakistani terror outfits were given a clean chit even before investigation and Hindu outfits were blamed for it which under no circumstances can ever be justified! This latest landmark ruling must be an eye opener for all of us and we must fully respect not only the likes of Swami Aseemanand but also the likes of Lt Col Prasad Shrikant Purohit who inspite of giving his best years in Army fighting terrorists in Kashmir Valley still was falsely implicated which alone explains why for nearly 9 years no chargesheet was filed against him and why one of the most reputed lawyers of India – Harish Salve argued his case and got bail for him! I am sure that he too will be ultimately acquitted but who will compensate for the precious and prime years that he lost in jail and his wife and children being discriminated against for no fault of his? Swami Aseemanand has suffered totally alone as he has no wife and children but Lt Col Purohit has wife and children and they have faced untold sufferings for no fault! Lt Col Purohit even after getting bail vowed to continue his fight till the finish and his determination is certainly worth appreciating by every true human being! I salute him and his family also from the innermost core of my heart!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.