‘Samjhauta’ on Hindu Nationalism? Deconstructing the legality of the NIA verdict

On March 20^th, a special National Investigation Agency (NIA) court in the Indian state of Haryana acquitted all four out of eight accused individuals in the Samjhauta Express bombing case of 2007. This acquittal has once again raised questions on the ability of the NIA to prosecute the accused.

Samjhauta Express, which connects Delhi to Lahore, was allegedly targeted by Hindutva-inspired extremists on February 18^th, 2007. The extremists set off bombs in two coaches of the train, which exploded as it headed towards Attari on the Indo-Pak border. 68 people, comprising of 43 Pakistani nationals, 10 Indians and 15 others whose nationalities could not be established, lost their lives in the tragic incident.

Following the terrorist attack, a special investigation team was tasked by the Haryana Police to investigate the case on February 20^th, 2007. The Ministry of Home Affairs transferred the investigation to NIA in July 2010. In June 2011, NIA filed a charge sheet by naming five individuals as accused of murder and criminal conspiracy. They were Swami Aseemanand alias Naba Kumar Sarka, Lokesh Sharma, Sunil Joshi (found murdered in 2007), Sandeep Dange (whereabouts unknown), and Ramchandra Kalasangra alias Ramji (whereabouts unknown).

According to the charge sheet, the Samjhauta Express train was targeted because of its use by Indian and Pakistani Muslims as a means to travel between the two neighbouring countries. The agency implies that the train bombings were an act of revenge by the accused, following a series of attacks on Hindu temples by Islamist terror outfits.

In August 2012, a supplementary charge sheet was filed against two more individuals, Kamal Chauhan alias Badrinarayan alias Vijay and Amit alias Ashok alias Prince. Nine months later, another accused Rajendra Chaudhary alias Samunder alias Laxman Das Maharaj was named in the second supplementary charge sheet.

Several factors contributed to the acquittal of all accused in the case. First, prosecutors failed to arrest three of the accused, named Amit Chouhan (Ramesh Venkat Malhakar), Ramchandra Kalsangra and Sandeep Dange, whom it wanted to file a case against.

Second, prosecutors were never able to prove the involvement of the alleged perpetrators successfully. The court noted that the complete case was based entirely around the statements of the accused. Most notably, Aseemanand’s retracted confession reportedly went missing. Haste on the part of the investigating officer, resulting in an unsigned application to record Aseemanand’s statement, led the court to believe that the confession was not voluntarily given. In fact, the court reached the conclusion that Aseemanand’s confession was not corroborated by other evidence on record.

Third, many of the 299 witnesses listed by the NIA turned hostile during the trial. Citing security concerns, 13 Pakistani witnesses never appeared before the trial court. Fourth, the statements of most witnesses were recorded by seven judges who heard the case before the incumbent judge took over the case proceedings in August 2018. Finally, crucial pieces of evidence were not presented before the court which includes:

• CCTV footage of the railway station
• Record pertinent to retiring rooms and dormitories at the station
• Failure to conduct a Test Identification Parade of the accused
• Call Detail Records of the mobile phones of the accused
• Fingerprints recovered from the incident site

The Samjhauta Express case verdict is not the first instance in which all accused Hindu extremists were acquitted due to lack of evidence. A similar reason was cited in the judgments of other prominent cases including the Malegaon blast case in 2006, Mecca Masjid blast case in 2007 and the Ajmer Dargah bombing of 2007.

With no announced plans to challenge the verdict in the higher court, the accused behind India’s seventh deadliest terror attack are now free to roam in society without facing any consequence. However, their freedom is a severe moral blow for India which demands other countries do more in combating terrorism when its own central investigation agency failed to convince courts of the involvement of the alleged, despite some of them even confessing (though subsequently retracting) to their role in terror attacks.

If India fails to prosecute individuals conducting terror attacks inspired by the Hindutva ideology, it will have no one else to blame for incidents of similar nature in the future. Hindutva-inspired individuals will be motivated to propagate communalism and instigate a sense of fear in society without any worry of legal consequence because of the existing flaws in the prosecution of terror suspects.

Fahad Nabeel is a Research Associate at the Centre for Strategic and Contemporary Research (CSCR).

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