Samjhauta Express Case Judgment1 PDF

Bar & Bench (www.barandbench.
com)
IN THE COURT OF JAGDEEP SINGH, SPECIAL JUDGE under

the NIA Act for the state of HARYANA at PANCHKULA.
UID NO.: HR0125
Case Type SC
Case No. 5 RBT/01.07.2011/03.08.2018
Filing No. 4379/2013 Filing Date: 01.07.2011
Registration No. 2028/2013 Registration Date: 10.07.2013
CNR No. HRPK01-001653-2011
Date of Decision 20.03.2019
National Investigation Agency (NIA)
VERSUS
1. Naba Kumar Sarkar @ Swami Asimanand son of late Bhibuti Bhusan

Sarkar, resident of Shabridham Ashram, District Dang (Gujarat)(A-1).
2. Sunil Joshi @ Sunilji @ Manoj Joshi @ Manoj @Guruji son of late

Shyamlal Joshi, resident of H.No. F-7, Vikas Nagar,Dewas (Madhya
Pradesh). (stated to have expired prior to filing of Challan/Charge-
sheet by the Investigating Agency)(A-2).
3. Ramchandra Kalasangra @ Ramji @ Vishnu Patel son of Gopal

Singh Kalsangra, permanent resident of village Gopipur, PS Kotwali,
Distt. Shajapur (M.P.) (Declared Proclaimed Offender vide order
dated 01.07.2011)(A-3).
4. Sandeep Dange @ Parmanand @ Teacher son of Vishwas Kashav

Dange, resident of H.No. 360, Lokmanya Nagar, Labhchanda Chajlani
Marg, Indore (M.P.) (Declared Proclaimed Offender vide order dated
01.07.2011)(A-4).
5. Lokesh Sharma @ Ajay Tiwari@ Ajay@Kalu son of Gopal Krishan

Sharma, resident of H.No. 180, Sanghi Street, Mhow, District Indore
(M.P.)(A-5).
6. Kamal Chauhan @ Bhai Saab @ Badrinarayan @ Lucky @ Vijay son

of Radhey Shayam Chauhan, resident of H.No. 232, Murkhera, Tehsil
Hatod, P.S Depalpur, Indore (M.P.)(A-6).
7. Amit @ Ashok @ Prince @ Sunny @ Amit Chowhan @ Ashwani

@Ramesh Venkat Mahalkar@Amit Hakla. (Declared Proclaimed
Person vide order dated 23.10.2013)(A-7).
8. Rajender Chaudhary @ Dasrath @ Samundar@Laxman Das Maharaj

son of Sh. Vikram Singh Chaudhary, permanent resident of Dhakad Seri,
Depalpur, P.S. Depalpur, District Indore (M.P.)(A-8). ……. Accused.
Bar & Bench (www.barandbench.com)
NIA Vs. Naba Kumar Sarkar @ Swami Asimanand and others

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FIR No. 09 dated 29.07.2010
under section 120-B IPC read with Sections 302, 307, 324,
326, 124-A, 438 & 440 of IPC, Sections 150, 151, 152 of the
Railways Act, Sections 3, 4 & 6 of the Explosive Substances
Act, 1908, Sections 3 & 4 of the Prevention of Damage to
Public Property Act, 1984 and Sections 13, 15, 16, 17, 18, 19
& 23 of the Unlawful Activities (Prevention) Act, 1967.
Police Station: NIA/New Delhi.
Argued by:Shri R.K. Handa and Shri Rajan Malhotra, Special Public
Prosecutors assisted by Shri Vishal Garg, S.P., NIA, New
Delhi for the NIA.
Shri Subhash Sharma (R) , Advocate, Shri Jagdish Singh
Rana, Advocate for accused Naba Kumar Sarkar @ Swami
Aseemanand.
Shri Mukesh Garg, Advocate for accused Kamal Chouhan.
Accused Ranbir Singh, Advocate for accused Lokesh
Sharma.
Ms. Sumanjit Kaur, Advocate for accused Rajender
Chaudhary
Accused Naba Kumar Sarkar @ Aseemanand on bail,
whereas accused Kamal Chauhan, Lokesh Sharma and
Rajender Chaudhary are in custody.
JUDGMENT
1. The above-named accused have been sent up to face trial in
case FIR No. 09 dated 29.07.2010 under section 120-B IPC read with
Sections 302, 307, 324, 326, 124-A, 438 & 440 of IPC, Sections 150,
151, 152 of the Railways Act, Sections 3, 4 & 6 of the Explosive
Substances Act, 1908, Sections 3 & 4 of the Prevention of Damage to
Public Property Act, 1984 and Sections 13, 15, 16, 17, 18, 19 & 23 of the
Unlawful Activities (Prevention) Act, 1967 by the National Investigation
Agency, New Delhi.
2. At the very outset, it is pertinent to mention here that initial
investigation in the present crime i.e. FIR No. 28/2007 dated 19.02.2007,

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P.S. GRP, Karnal was initially conducted by GRP/SIT of Haryana Police
and subsequently in compliance of order no. 11034/16/2010-IS/VI dated
26.07.2010 of the Ministry of Home Affairs, Govt. of India, New Delhi,
National Investigation Agency (NIA) took over the investigation in the
present crime by re-registering the case as Cr. No. 09/2010 dated
29.07.2010, P.S. NIA, New Delhi.
3. Adumbrated, the facts of the present case are that on
18.02.2007 the Train No. 4001 UP Attari Express (Samjhauta Express)
was parked at platform No. 18 of Railway Station, Delhi junction for
departure to Attari and as per its schedule, it departed from the said
platform for Attari at about 2250 hours. Kiran Diwan, Sanjay Kumar and
R.D. Singh were deputed as Driver, Co-
Driver and Guard respectively of the said train. Additionally, three
railways officials, namely, Shaukat Ali, Head TTE, Rajesh Sharma, TTE
and Lalit Kumar, TTE were also on board. The train had 16 coaches
bearing Nos. NR SLR 00719, NR GS 04420, NR GS 98470, NR GS C
219066, NR GS 98482, NR GSCN 96297, NR GSCN 96266, NR GS CN
99251, NR GSCN 96236, NR GS 10855, NR GS 03432, NR GS 03431,
NR GS 14857, NR GS C2 19054, NR GS C2 19113 and NR GSCR
04703. Out of these coaches, 4 were reserved 2 nd class sleeper coaches
and remaining were unreserved general coaches. The 4 sleeper coaches
were placed in the middle of the train, whereas unreserved coaches were
placed in front portion (engine side) and in the rear portion (guard side).
4. It is stated that as per the investigation, in pursuance of


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criminal conspiracy the accused persons with common intention caused
explosion in 4001 Delhi-Attari Express (Samjhauta Express train) in the
intervening night of 18th/19th February, 2007 at about 25.53 hours while
the train was passing through Diwana Railway Station near Panipat,
Haryana. After the explosion, two unreserved coaches bearing No. NR GS
03431, NR GS 14857 caught fire, as a result of which 67 persons were
killed at the spot and 13 persons got injured who were shifted to
Safdarjung Hospital, New Delhi for treatment, where one injured person,
namely, Harril also succumbed to his injuries and thus, total 68 persons
were killed in the explosion and 12 injured persons were later on
discharged from the hospital after their treatment. During the course of
investigation, it is stated to have revealed that four Improvised Explosive
Devices (IEDs) were planted in unreserved compartments, out of which
IEDs placed in 12th compartment (No. NR GS 03431) and 13th
compartment (No. NR GS 14857) exploded, which was followed by fire
in the compartments and one unexploded IED in a suitcase was recovered
from 15th (NR CZ 19113) compartment, which exploded in the process of
diffusion by the technical personnel. However, one unexploded IED in a
suitcase was recovered from the spot down the railway line (on the
railway track near 15th compartment). The defused/destroyed IEDs debries
etc., found at the scene of crime, were duly examined by the experts. The
terror act was allegedly done by using improvised explosive devices
(IEDs) along with inflammable substances which caused blasts in
Attari/Samjhauta Express train on 18.02.2007 and the blast and


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consequent fire in train resulted in loss of lives and injuries to many train
passengers travelling in the train and also caused destruction of several
train coaches resulting in loss to the public property of Indian Railways.
Further stated that it was revealed that suit case cover with APOLO 600
(hand written on it) was purchased from Abhinandan Bag Centre, Kothari
Market, Indore. Puran Singh, a worker of the shop was on the sales
counter at that time time. Iqbal Hussain, a tailor of M.K. Bag Centre,
Kothari Market, Indore had stitched the same cover and put his mark on
the cover by writing APOLO 600. The questioned writing “APOLO 600”
written with blue ball point pen on the inner side of the suit case
alongwith the specimen hand-writing of Iqbal Hussain was sent to FSL,
Madhuban (Haryana) and as per FSL report, the questioned writing was
that of Iqbal Hussain. The blue colour cloth which was seized from
Abhinandan Bag Cenre and the Denim Jeans cloth seized from M K Bag
Centre, Kothari Market, Indore were also sent to FSL, Madhuban and as
per FSL report, the clothes seized from Abhimandan Bag Centre and M K
Bag Centre were similar in colour, design, physical/microscopic
appearance, texture with the suit case covers found at the scene of crime.
As per allegations of the prosecution case, one Bharat Bhai, resident of
Valsad, Gujarat met Naba Kumar Sarkar @ Swami Asimanand, resident
of Shabridham in the year 1999 and became his close disciple and during
the year 2003 Swami Asimanand met one Pragya Singh, resident of Surat
and Sunil Joshi @ Manoj. All four of them viz., Sunil Joshi @ Manoj,
Bharat Bhai, Pragya Singh and Asimanand were very close to each other.

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Swami Asimanand was very upset with the Islamic Jehad/terrorist attacks
on Hindu temples like Akshardham (Gujarat), Raghunath Mandir
(Jammu) and Sankat Mochan Mandir (Varanasi) and he used to express
his feelings of anger during discussion with Sunil Joshi @ Manoj, Pragya
Singh and Bharat Bhai. All of them discussed the issue of Islamic
Jehad/terrorist attacks on Hindu establishments and over a period of time,
they developed vengeance not only against the misguided Jehadi/terrorists
but against the whole Muslim community as such. Swami Asimanand,
with an intention to give a befitting reply to the perceived persecution of
Hindus by the members of the Muslim community, propounded a theory
“bomb ka badla bomb”. Further stated that during October 2005, in a
meeting held at Surat, some participants including one Indresh Kumar
visited Shabridham to pay obeisance (darshan) to Shabri Mata Mandir.
During the visit, Sunil Joshi @ Manoj arranged a meeting of Asimanand
with said Indresh Kumar at Shabridham. During their discussion, they
discussed about Jihadi attacks on Hindu places of worships and the need
to give befitting replies. During March 2006, after the blast at Sankat
Mochan Mandir in Varanasi, Sunil Joshi and Asimanand held a detailed
meeting at Shabridham, in which Asimanand told that they should no
longer tolerate such kind of Muslim terrorist attacks on Hindu temples.
Swami Asimanand exhorted to retaliate against this by undertaking some
terror attacks on the Islamic religious sites. Sunil Joshi informed him that
he had some boys who were capable of doing such actions, but he also
added that undertaking of any such mission would incur heavy financial

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expenses/logistic arrangements. Sunil Joshi also said that for procuring
the raw material for fabricated IED for arms and ammunition and other
items, he required not only money but also Asimanand’s resourceful
connections, for which Asimanand readily agreed and gave Rs. 25,000/-
in cash to Sunil Joshi and directed him to visit several places in UP and
Jharkhand alongwith Bharat Bhai to meet some resourceful Hinduvadi
leaders. Further stated that in May 2006, Sunil Joshi visited Shabridham
on his return from Jharkhand and UP as directed by Asimanand. Both
Sunil Joshi and Bharat Bhai briefed him about their visit. Sunil Joshi told
Asimanand that they had gone first to Jharkhand where Devender Gupta
(Jamtara) helped him by providing some SIM cards, pistols and
explosives. After that, they had gone to Agra and further gone to
Gorakhpur but could not get any help from any quarter. Sunil Joshi further
informed Asimanand that he alongwith Bharat Bhai went to Nagpur and
met Indresh Kumar who helped him financially by giving him Rs.
50,000/- in cash to meet out the expenditure for procurement of
explosives and other material. After returning from UP and Jharkhand,
Sunil Joshi requested Asimanand to call for a coordination meeting
immediately at the residence of Bharat Bhai known as Thakurghar,
Valsaad for chalking out the future strategy of their mission. Further stated
that during June 2006, the main conspiracy meeting took place which was
attended by Asimanand, Sadhvi Pragya, Sunil Joshi @ Manoj, Sandeep
Dange @ Teacher, Ramji, Lokesh Sharma, Amit Chauhan and Bharat
Bhai. Swami Asimanand was introduced to Ramji, Sandeep Dange @


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Teacher, Lokesh Sharma and Amit Chauhan by Sunil Joshi. It is further
alleged that in the said meeting, Sunil Joshi @ Manoj pronounced that
“yeh sabhi kaam ke ladke hai.” Asimanand presided over the meeting in
which he said “bomb ka jawab bomb se dena chahiye” and all agreed with
his views. During the meeting, Sandeep Dange @ Teacher got suddenly
agitated and said “Chaaron taraf mandiron per hamley ho rahe hain aur
Hindu baithey hua hain, kuch nahi kar rahe hain.” Sunil Joshi said “Yahan
Hindu mar rahe hain, aur bharat sarkar samjhauta train chala rahi hai ,” to
which Sandeep Dange replied “Hum samjhauta train ko hi uda denge.”
Sandeep Dange was very annoyed with the inaction by the Hindu leaders
and he taunted “Swamiji jaise Hindu baithe hue hain, waise hi aap bhi
baithe rahoge; jo kaam karne wala hai who kaam karege hi.” Then
Asimamand suggested to cause bomb blasts in Malegaon, Ajmer,
Hyderabad as a retaliation against the attacks by Jehadi terrorists on
Hindus and their religious sites and Sunil Joshi took the responsibility of
causing all the blasts. Sunil Joshi also talked about targeting Samjhauta
Express train about which he had already discussed with Sandeep Dange.
Sunil Joshi informed that Samjhauta train runs from India to Pakistan as a
goodwill gesture. He said “Ek taraf wo hum per ek ke baad ek atanki
hamla kathe ja rahe hain or hum unse Samjhauta karne ke liye train chala
rahein hain.” He said that they should any how stop this train and stressed
to target this train because most of the travellers in this train are Pakistani
Muslims. He also stated that “Is main visphot karne ke liye alag kism ka
bomb lagaana padega; daair sara chemical istemal karna padegaa, chunki

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chalti train mein kae saare visphot ek saath karne hai, isliye sim card
bomb nahi chalega.” He also stated that Sandeep Dange is an expert in
making bombs and he would undertake this project. Asimanand told Sunil
Joshi that he would try to contribute financially as much as possible. Sunil
Joshi however assured Asimanand not to worry about money by saying
“paisa dene wale aur bhi log hain.” Sunil Joshi also told Asimanand that
Rs. 25,000/- which he had given to him earlier in the month of March,
2006 were spent on procuring train tickets for Bharat Bhai, for himself
and for procuring some SIM cards, arms and explosives. Sunil Joshi
briefed them in the said meeting about the operational modus operandi to
be employed for causing all the bomb blasts. He told that there would be
three groups/teams which would work independent of each other i. e.
Group 1 would be consisting of white collared people who would help in
motivating youths for the missions and providing shelter to the field
works, Group 2 would be consisting of members who would procure raw
materials for fabricating bombs and Group 3 would be consisting of
people who would actually fabricate the bombs (IEDs) and plant them at
respective places. When Asimanand asked Sunil Joshi “ Par Manoj bomb
lagane ke liye chauthe group ki jaroorat nahi hai kya? .” Then Sunil Joshi
assured that he had already thought about it and he was of the firm belief
that the third group which would make bomb should plant it also because
of the technicality involved in the fabrication of an IED. Sunil Joshi
further added that all these groups would not have any link among
themselves. He suggested that these three groups would be in direct touch


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with him and no one from one group should even make endeavour to
know the particulars of the members of the groups. Sunil further clarified
that “Swamiji aap aur Bharat Bhai jaise log pehele group ke sadasye
hain.” After this, meeting was concluded and Asimanand left for Ashram
and Sandeep Dange @ Teacher, Ramchandra Kalsangra @ Ramji, Lokesh
Sharma and Amit also left the venue. Sunil Joshi @ Manoj, Pragya Singh
and Bharat Bhai stayed back. After Diwali in 2006, Sunil Joshi again met
Asimanand at Shabridham and told him that Malegaon blasts on
26.09.2006 were done by his boys and informed that “ Swamiji ye hamare
logon ne kiya hai.” On the day of Shivratri i.e. 16.02.2007, as per a
premeditated plan, Asimanand reached Kardmeshwar Mandir in Balpur,
District Tapi in his Santro car in the morning hours and by about 11.00
A.M., both Bharat Bhai and Sunil Joshi joined him the temple to celebrate
Shivratri. In the late evening hours, Sunil Joshi told Asimanand in the
Veranda outside the rooms that “news dekhte rahiyega, kuch achhi kabar
do-char din me milegi.” They spent the night in the premises of temple.
Next day, after taking breakfast, all left Balpur. Further it is case of the
prosecution that around 20.02.2007 i.e. after four days from Shivratri,
Pragya alongwith her associates Neera Singh and one Ritesh Sharma
again arrived at Shabridham, Dang from Surat by bus. Asimanand sent
Ashram’s Jeep to the Ahwa bus-stand to pick them up. Sunil Joshi also
arrived on the same day in the Ashram and after that Sunil Joshi, Pragya
and Asimanand had a secret meeting and on seeing Sunil Joshi after the
Samjhauta blast Asimanand asked him privately to prick his ego as “aap

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toh Samjhauta ke zimmedhari liye thhe, ghatna to ho gayi aur aap yahin
baithe ho.” But Sunil Joshi replied “Swamiji ye hamare logon ka hi kaam
hai.” Asimanand questioned him while he was physically present in
Gujarat, how could he do this incident at such a far off place. To this,
Sunil Joshi replied that it was Teacher’s (Sandeep Dange) work and
further told that “yakeen maniye swami yeh hamare Teacher (Sandeep
Dange) aur uske ladkon ka him kaam hai.” It is futher alleged that during
the year 2007, Sunil asked Asimanand for some more money for the next
blast which he intended to do at Mecca Masjid, Hyderabad and
Asimanand was prepared for this and gave him Rs. 40,000/- in cash. In
the month of May 2007, Bharat Bhai called Asimanand on phone and told
that Manoj @ Sunil would be shortly coming to meet him in Sabridham
for conveying some news. After about a week, Sunil Joshi visited
Sabridham and met Asimanand and that time, he was carrying a Telugu
newspaper which contained the news about the Mecca Masjid blast in
Hyderabad. He showed the paper to Asimanand and claimed that it was
again done by his boys. Sunil Joshi said “Swamji yeh hamara hi kaam
hai”. Some days before the Ajmer blast, which took place on 11.10.2007,
Sunil Joshi called Swami Asimanand on phone and said that “Swamiji
khabarein sunte rahna, Jaldi hi achi Khabar milegi.” That allegedly after a
few days, Sunil Joshi visited Sabridham alongwith one Raj and one
Mehul and told Swami Asimanand that “his boys carried out this blast
too”. That after the murder of Sunil Joshi on 29.12.2007, Swami
Asimanand called one Col. P.S. Purohit and told that “Manoj apna

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dedicated banda tha Uske ladkon ne hi Ajmer blast kiye they.” Asimanand
further asked him to get information from his sources as to who had
murdered Sunil Joshi. Swami Asimanand, by moving further on the
hardline Hindu philosophy, attended a meeting at Nasik and delivered a
speech alongwith Col. P.S. Purohit for starting a new Hindu organization,
namely, Abhinav Bharat. Swami Asimanand further went to Pune and met
Heemani Savaskar, Parmod Mutalik. During the months of
September-October, 2008, Asimanand drove his car upto Vyara bus-stand
where he met both Sandeep Dange and Ramchandra Kalsangra @ Ramji.
They hurriedly sat in his car alongwith their 5-6 bags which were
apparently heavy and all three proceeded towards Vadodara. During the
travel, on being asked, Sandeep Dange informed that they were coming
from Maharashtra. They appeared to be very tense and during the entire
journey, they hardly talked and Asimanand dropped them at junction of
Rajpiplia-Vadodra. Further that on coming to know about the arrest of
Devender Gupta and Lokesh Sharma in connection with Ajmer blast,
Swami Asimanand escaped from Sabridham to evade his arrest and
reached at village Atmalpur, Haridwar in Uttaranchal and stayed
alongwith one Swami Brahamanand by impersonating himself as Swami
Omkaranand and fraudulently obtained a ration card and a voter identity
card by submitting forged documents. Finally, Swami Asimanand was
arrested on 18.11.2010 from village Atmalpur by CBI.
5. Further as per case set up by the NIA, during the course of
investigation it was revealed that on 19.02.2007, Bharat Bhai and Sunil


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Joshi @ Manoj were watching TV at the residence of Bharat Bhai at
Valsad when the news about blasts in Samjhuata Express flashed. On
watching this news on TV, Manoj @ Sunil Joshi cheerfully stated that
“Accha hua, yeh kaam apne Teacher @ Sandeep aur uske ladko ka hai,
Finally usne kar hi diya.” Some months later, on 11.10.2007, Sunil Joshi
called Bharat Bhai and told him to switch on the TV and further told him
that “Hamne Diwali Ke Bomb Phod Diye.” Bharat Bhai switched on the
TV and saw news flashed about Ajmer blast. On 19.02.2007, at around
12.00 p.m., when Neera, Pragya and Lovely (Sister of Pragya) were
present at her Surat residence, Pragya talked to someone on phone and
asked whether “Ladke thik hain?” and immediately after phone call,
Sadhvi Pragya desired to watch TV news. All the aforementioned persons
went to a flat in a nearby multi storied building of a housing society (since
there was no TV set in Pragya’s house) and asked the lady present in the
house to switch on the TV set. When the TV was switched on, the news
about Samjhauta Express blast was being flashed in all the news channels.
On seeing the visuals of the dead bodies being recovered from the blast
site, Neera got seriously disturbed and started crying. On seeing this,
Pragya asked Neera that “tum kyon ro rahi ho”, to which Neera Singh
replied “Dekho kitne aur log mar gaye hain” Sadhvi Pragya on the
contrary was very jubilant and excited and she gleefully said “tum ro mat,
yeh to sab kattley mar rahe hai.” After watching the news, Pragya Singh
expressed her desire to eat ice cream to celebrate the occasion. It is further
stated that during investigation, it is revealed that in the month of


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October 2005, Sunil Joshi in Jaipur assigned the job of media
management to Pragya Singh, Ramji and Lokesh Sharma were given the
job of collecting arms/ammunition and he himself took the responsibility
of coordination and arranging finance. During analysis of call detail
reports of various mobile phones, it was revealed that accused Sunil Joshi
was in the Kothari market, Indore area on 14.02.2007 i.e. the day on
which the suitcase covers of IEDs were procured from the Kothari market,
Indore. The call details of telephones used by Pragya, Sunil Joshi,
Sandeep Dange and Asimanand showed the inter-connectivity and links of
suspects/co-accused Pragya, Sunil Joshi, Sandeep Dange and Asimanand
during the months of February and March, 2007. While Asimanand was
absconding, he had impersonated himself as Omkaranand and had hidden
himself in Paramhans Ashram at village Atmalpur-Bongla, P.S.
Bahadrabad, District Haridwar. During the year 2010, Asimanand had
developed close friendly relations with one Shakti Singh and one Ajay
Chauhan at Haridwar and one day, Asimanand had spoken to Ajay
Chauhan in the presence of Shakti Singh that he was involved in
Samjhauta train blast case. Asimanand informed him that several agencies
including police were behind him. Ajay Chauhan had even advised him to
surrender before the court at Haridwar itself, which he did not do.
6. It is further the case of NIA that during the course of
investigation, Asimanand was taken to Thakurghar Valsad (residence of
Bharat Bhai) where he disclosed and pointed out the place of conspiracy
meeting of June, 2006 in the presence of two independent witnesses,


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Asimanand disclosed the place of secret meeting of Shabridham Ashram
and also showed the place where he had given Rs. 25,000/- to late Sunil
Joshi for the preparation and arranging the raw materials in March, 2006
for making bombs. Asimanand also disclosed that place (Verandah) at
Shiv Mandir, Balpur where Sunil Joshi had informed him that “ News
dekhte rahiyega, kuch acchi khabar do chaar din me milegi. ” During
investigation, it was revealed that Sunil Joshi was keeping arms,
explosives and IED in his house, which were apparently used by Ramji
after being removed from the house of Sunil Joshi after his murder on
29.12.2007. It is also alleged that due to deep remorse, Asimanand desired
to do “prayashchit”, confessed to a jail inmate Khaleem in the presence of
Warden at Hyderabad jail taking the responsibility of blasts including that
of Samjhauta train blast. Swami Asimanand, during the period of criminal
conspiracy and after the commission of the terrorist act in the instant case,
also knowingly allegedly sheltered/harboured accused Sunil Joshi,
Sandeep Dange and Ramji. Further it is stated that during investigation, it
was revealed that the terrorists blasts in Samjhauta Express, Mecaa
Masjid, Ajmer Shariff were carried out by Sunil Joshi module in
pursuance to a criminal conspiracy as mentioned above wherein accused
Asimanand played a crucial role in furtherance of criminal conspiracy and
that arrested accused persons, namely, Lokesh Sharma @ Ajay Tiwari @
Ajay @ Kalu, Naba Kumar Sarkar @ Swami Asimanand @ Swami
Omkaranand @ Ramdas and other accused persons, known and
absconding, Sandeep Dange @ Parmanand @ Vasudev, Ram Chandra


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Kalsangra @ Ramji @ Vishnu Patel @ Omji, Sunil Joshi @ Guruji @
Manoj Joshi @ Manoj Singh @ Manoj and other suspected persons from
the period 2003 onwards, all of them deeply angered by a spate of
terrorists attacks committed by Jihadi terrorists with cross-border support
on Hindu temples and Hindus in India, conspired amongst themselves and
with each other during the period 2005 and 2007 with the motive of
avenging such Jihadi terrorist acts by committing terrorists acts on
Muslim places of worship and other places densely populated by Muslims
in India and in furtherance of such criminal conspiracy contacted,
communicated, transported, met, planned, prepared, motivated, assisted
and facilitated each other and acted in several ways in concert amongst
themselves towards furthering and fulfilling the object of the criminal
conspiracy including bomb blast in Samjhauta Express train in the night
of 18.02.2007, which resulted in the death of 68 persons, causing simple
and grievous injuries to 12 other persons who were travelling in the said
train and thereby committed offences punishable under Section 120-B
read with Sections 302, 307, 326, 324, 124-A, 438, 440 of IPC and under
Sections 3, 4 & 6 of the Explosive Substances Act, 1908 and under
Sections 150, 151, 152 of the Railways Act and under Sections 3 & 4 of
the Prevention of Damage to Public Property Act, 1984 and under
Sections 13, 15, 16, 17, 18, 19 & 23 of the Unlawful Activities
(Prevention) Act, 1967. That the involvement of Amit @ Sunny, Pragya
Singh Thakur, Indresh Kumar, Devender Gupta and some other
individuals in the conspiracy was highly suspected and further


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investigation was kept open. After the completion of usual formalities of
investigation, final report under section 173 Cr.P.C. was initially filed on
20.06.2011 against accused Naba Kumar Sarkar @ Swami Asimanand,
Sunil Joshi (since expired), Ramchandra Kalasangra (since declared P.O.),
@ Ramji, Sandeep Dange (since declared P.O.) and Lokesh Sharma. It is
pertinent to mention here that since Sunil Joshi had expired prior to the
filing of final report by the NIA, therefore charges against him were
dropped by the investigating agency and a memo of abatement of
proceedings qua him was also filed alongwith the charge-sheet. It is also
pertinent to mention here that during further course of investigation of the
case, accused Kamal Chauhan was arrested on 12.02.2012. As per further
investigation, it is alleged to have been revealed that accused Kamal
Chauhan was involved in planting suitcase bombs in Samjhauta Express
train blast on 18.02.20108 along with other co-accused, namely, Lokesh
Sharma, Amit Hakla @ Prince and Rajender Chaudhary. It is also stated
that accused Kamal Chauhan attended a training at Bagli forest area in
Dewas (M.P.) in January, 2006 organized by deceasedSunil Joshi, which
was also attended by Ramchandra Kalsangra, Lokesh Sharma, Amit
Hakla, Rajender Chaudhary etc. and that they have been imparted training
about preparation of pipe bombs and firing of pistol. Further stated that as
per further investigation, accused Kamal Chauhan and co-acused Sunil
Joshi, Lokesh Sharma, Amit Hakla and Rajender Chaudhary also
participated in firing practice organized by Sunil Joshi at Karni Singh
firing range at Faridabad in April, 2006. That accused Kamal Chouhan


18
along with Rajender Chaudhary @ Samundar conducted a reconnaissance
of Jama Masjit and Old Delhi railway station during
November/December, 2006 under the instructions of Lokesh Sharma and
they reached Delhi by Indore Intercity Express and retruned on the same
day after completing the assigned task. It is further stated that accused
Ramchandra Kalsangra delivered four suit cases to the accused containing
IEDs, which were later on planted in Samjhauta Express train. It is also
stated that during the course of investigation, it was revealed that accused
Lokesh Sharma, Amit, Rajender Chaudhary and Kamal Chouhan boarded
Indore Intercity Express train at Indore on 17.02.2007 and reached
Nizamuddin Railway Station next morning on 18.02.2007 from where
they took a local train and reached Old Delhi railway station and stayed in
the dormitory room at Old Delhi railway station and reached the platform
to plant bombs in Samjhauta Express train and then reached Jaipur by
train and then to Indore by bus. That role of Amit Hakla as one of the
planters of suitcase bomb in Samjhauta Express train on 18.02.2007 has
emerged during the investigation. It is also stated that during the course of
investigation, it was revealed that a secret meeting held at Gujarati
Dharamshala, Jaipur in November, 2005, where different tasks were
assigned to carry out the execution of their plan, was attended by
deceased Sunil Joshi, Ramji, Lokesh Sharma, Samundar and others. That
accused Kamal Chouhan and Amit Hakla @ Prince conspired, planned
and executed with other accused/suspects and accordingly,
supplementary charge sheet was filed against accused Kamal Chouhan @


19
Bhai Saab @ Badrinarayan @ Lucky @ Vijay and Amit @ Ashok @
Prince @ Sunny @ Amit Chowhan @ Ashwani (since declared
proclaimed person) vide charge sheet No. 03-A dated 09.08.2012. Further,
accused Rajender Chaudhary was arrested on 15.12.2012 as further
investigation continued u/s 173 (8) Cr.P.C. It is stated that during further
investigation, it was established that accused Rajender Chaudhary was a
close associate of Ramchandra Kalsangra and Lokesh Sharma and that
Rajender Chaudhary was radicalized and motivated by Lokesh Sharma
and Ramchandra Kalsangra. It is further stated that disclosure staement of
accused Rajender Chaudhary in the presence of independent witnesses
revealed about the conspiracy, planning, training and planting of bomb in
Samjhauta Express train on 18.02.2007 and in this regard, disclosure and
point out memos of the places were papread as per his disclosure. It is
also stated that accused Rajender Chaudhary led NIA team to forest area
Bagli village, Dewas (M.P.) and showed the exact place where
demonstration of bomb explosion took place and the soil samples of the
crater formed due to the blast were taken for examination and were sent to
CFSL for its examination. That investigation revealed that accused
Rajender Chaudhary a conspiracy meeting with other co-accused at Jaipur
in October, 2005 and this meeting was attended by Lokesh Sharma,
deceased Sunil Joshi, Ramji, Shivam Dhakad, Pragya Singh and Indresh
Kumar where status and plight of Hindus and regular attack on Hinuds by
Jehadi Muslims etc. were discussed and discussion also took place to do
something to stop it. That during investigation, efforts were made to track

20
absconders, namely, Ramchandra Kalsangra, Sandeep Dange and Ramesh
Venkat Mahalkar @ Amit but these accused so far absconding are
evading their arrest.That accused Rajender Chaudhary conspired, planned
and executed with other accused/suspects and accordingly, further
supplementary charge sheet bearing No. 03-B was filed by NIA on
12.06.2013.
7. It is pertinent to mention here that accused Ramchandra
Kalsangra @ Ramji, Sandeep Dange @ Parmanand @ Teacher and Amit
@ Prince @ Ashok @ Sunny @ Amit Chowhan @ Ashwani could not be
arrested, therefore, they were declared proclaimed offenders/person vide
orders dated 01.07.2011/23.10.2013.
8. Copies of final report filed under section 173 Cr.P.C. along
with documents were supplied to the accused persons free of costs as
envisaged under section 207 of Cr. P. C.
9. Finding a prima-facie case, charge was ordered to be framed
against the accused, namely, Asimanand, Lokesh Sharma, Kamal Chauhan
and Rajender Chaudhary vide order dated 24.01.2014 passed by the then
Special Judge under NIA Act and accordingly all these accused were
charge-sheeted for the commission of offences under Section 120-B IPC,
Section 302 read with 120-B IPC, Section 307 read with 120-B IPC,
Section 124-A read with 120-B IPC, Section 438 IPC read with 120-B
IPC, Section 440 IPC read with 120-B IPC, Sections 150(e), 151 & 153 of
the Railways Act, 1989, Sections 3 & 4 of the Explosive Substances Act,
1908, Sections 3 & 4 of the Prevention of Damage to Public Property Act,


21
1984 and under Sections 13, 15(1) r/w 16, 17, 18, 23 of the Unlawful
Activities(Prevention) Act, 1967, to which accused pleaded not guilty and
claimed trial.
Prosecution Evidence
10. In order to establish its case, prosecution has examined as
many as 224 witnesses i.e. PW-1 ASI Mahinder Singh, No.980, P.S.
GRP, Karnal; PW-2 Ranjit Singh, retired SI, PW-3 Ramdhan Singh, Train
Guard, Northern Railway, Delhi; PW-4 Shaukat Ali, Travelling Ticket
Inspector, Railway Station, Delhi; PW-5 Rohtash Singh, Yard Master,
Noli, Distt. Ghaziabad; PW-6 Vinod Kumar Gupta, Station Master,
Panipat; PW-7 Pawan Kumar, Pointsman, Railway Station,Ganaur, Distt.
Sonepat; PW-8 Parveen Kumar, Pointsman, Railway Station Kakrana,
Distt. Panipat; PW-9 Phool Kumar, Senior Section Engineer, Railway
Station, Old Delhi; PW-10 Ashok Kumar, Gateman, Gate No. 50,
Railway Station, Diwana; PW-11 Babu Lal Meena, Guard (Goods Train),
H.Q. Ghaziabad; PW-12 D.K. Sabarwal, Chief Booking Supervisor,
(Retired), Railway Station, New Delhi; PW-13 Surinder Singh, Booking
Clerk, Railway Station, New Delhi; PW-14 Rakesh Kumar Maini, Senior
Booking Clerk, Railway Station, Old Delhi; PW-15 Diwan Singh son of
Tarlok Singh; PW-16 D.K. Nayyar, Chief Ticket Inspector, Line (Retd.),
Railway Station, Delhi; PW-17 Sanjay Kumar, Loco-pilot (Passenger),
Loco Shed, Amritsar (Punjab); PW-18 Bijender Kumar, Enquiry-cum-
Reservation Clerk, Railway Station, Ghaziabad; PW-19 Anita Sharma,
Chief Reservation Supervisor, Reservation Counter, Noida; PW-20 B.C.


22
Dhawan, Assistant Divisional Mechanical Engineer (Retd.); PW-21
Rajeev Khanna, Deputy Station Superintendent, Delhi Junction, Old
Delhi; PW-22 C-Arun Kumar, RPF, Hazrat Nizamudeen, Delhi; PW-23
HC Ram Dass, Rail Coach Factory, Kapurthala (Punjab); PW-24 G.S.
Meena, Chief Ticket Inspector, Railway Station, Delhi; PW-25, HC
Tarsem Lal, RPF Out Post, Attari, Amritsar (Punjab); PW-26 Dr. Archna
Paliwal, Medical Officer, ESI Hospital, Panipat; PW-27 Dr Anu Arora,
SMO, ESI Hospital, Panipat; PW-28 Dr. Ashwani Kumar Garg, Deputy
Civil Surgeon (Retired), Panipat; PW-29 Dr. Alok Jain, SMO, GH
Hospital, Panipat; PW-30 Dr. Dalip Singh Tanwar, Medial Hospital,
General Hospital, Fatehabad; PW-31 Dr. Bijender Singh, Medical
Officer, CHC, Kharkhoda, Sonipat; PW-32 Dr. G.L. Dhall, SMO,
General Hospital, Karnal; PW-33 Dr. Jagtar Singh, SMO, Kalpana
Chawla Medical College, Karnal; PW-34 Dr. Jai Kishore, Dy. Civil
Surgeon, Sonipat; PW-35 Dr. Lalit Kumar, SMO, K.C.G.M.C. Hospital,
Karnal; PW-36 Dr. Munish Pruthi, SMO, General Hospital, Karnal; PW-
37 Dr. R.K. Kataria, SMO, General Hospital, Sonepat; PW-38 Dr.
Monika Breta, Medical Officer, General Hospital, Panipat; PW-39 Dr.
Prem Kumar, CMO, Incharge, OPD Safdarganj Hospital, Delhi; PW-40
Dr. Shashi Garg, Dy. Civil Surgeon, Panipat; PW-41 Dr. Shiv Kumar,
Medical Officer, ESI Hospital, Panipat; PW-42 Dr. Rahul Diwan, (Sr.
Orthopaedics), BPS, GMC, Khanpur Kalan, Sonepat; PW-43 Dr. Suresh
Kumar, Private Practitioner, Sadbhawna Hospital, Kunjpura Road,
Karnal; PW-44 Dr. Yogesh Goyal, Medical Officer, General Hospital,


23
Panipat; PW-45 Dr. Rekha Verma, Medical Officer, ESI Hospital,
Panipat; PW-46 Dr. Ritu Gupta, Medical Officer, General Hospital,
Panipat; PW-47 Dr. V.K. Tyagi, Medical Officer, General Hospital,
Panipat; PW-48 Dr. S.P. Singhal, SMO, Kalpana Chawla Govt. Medical
College Hospital, Karnal; PW-49 Dr. Rajiv Sethi, Medical Officer
(Retired), General Hospital, Sonepat; PW-50 Dr. Sandeep Mehta,
Medical Officer, General Hospital, Jhajjar; PW-51 Dr. Ravinder Kumar,
Medical Officer, ESI Hospital, Panipat; PW-52 Dr. Rajesh Kumar,
Medical Officer, ESI Dispensary, Sonepat; PW-53 Jai Singh, retired ASI;
PW-54 SI Niyaz Mohammad, SHO , GRP, Faridabad; PW-55 SI
Pardeep Kumar No.158, posted in the office of S.P. Railways, Ambala
Cantt.; PW-56 SI Harnek Singh, posted at CIA, GRP, Ambala Cantt;
PW-57 ASI Gulzar Singh, CIA, GRP, Ambala Cantt; PW-58 Bir Singh,
retired SI, P.S. GRP, Ambala Cantt; PW-59 Pala Singh, retired SI, P.S.
GRP, Ambala Cantt; PW-60 Hoshiar Singh, retired SI, P.P. GRP, Kaithal;
PW-61 Jeet Singh, retired SI, Police Line, GRP, Ambala City; PW-62
Surender Kumar, retired SI, P.S. GRP, Kurukshetra; PW-63 Dr. Hitesh
Chawla, Assistant Professor, Department of Forensic Medicine, SHKM
Govt. Medical College, Nalhar; PW-64 SI Shish Ram, Incharge, GRP
Purview Team, IG Office, Railways, Panchkula; PW-65 SI Naresh
Kumar, CIA, GRP, Ambala Cantt; PW-66 ASI Dariya Singh, PP GRP,
Samalkha, District Panipat; PW-67 ASI Satish Kumar, CIA Staff, GRP,
Ambala Cantt; PW-68 ASI Satbir Singh, Police Training College,
Sunaria, Rohtak; PW-69 SI Lakshman Dass, GRP, Karnal. PW-70


24
Gurnam Singh, retired SI, P.P. GRP, Kaithal; PW-71 SI Ramphal, P.S.
GRP, Hissar; PW-72 ESI Ram Kumar, GRP, Karnal; PW-73 ASI Ram
Bachan, GRP, Ambala Cantt; PW-74 ESI Kapoor Singh, GRP,
Bahadurgarh; PW-75 ASI Subhash Chander; PW-76 ASI Tara Chand,
GRP, Panipat; PW-77 Hori Lal, retired ASI, GRP, Kurukshetra; PW-78
Mahar Singh, retired SI, P.S. GRP, Karnal; PW-79 Sher Jang Singh,
retired Inspector, P.S. GRP, Karnal, PW-80 Dr. Vandana, Medical Officer,
ESI Dispensary No. 2, Panipat; PW-81 Ram Chander, retired SI, P.S.
GRP, Sonepat; PW-82 Sukhbir Singh, SI/SHO, GRP, Rohtak; PW-83
Snehi Raj, ASI, P.S. GRP, Rohtak; PW-84 Basant Sing, retired Chief
Train Clerk; PW-85 Sanjay Kumar, Inspector, 3rd IRB, Sunaria, District
Rohtak; PW-86 Suresh Kumar, ASI, P.P. GRP, Ganaur, District Sonepat;
PW-87 Surinder Singh, Photographer; PW-88 Ashraf Ali; PW-89 Afaak
Hussain; PW-90 Istkaar Ali; PW-91 Mohd. Zakir; PW-92 Suresh Kumar,
ASI, P.S. GRP, Sonepat; PW-93 Abdul Karim Khan; PW-94 Navi Mohd.
Khan; PW-95 Idrish; PW-96 Fayyaz; PW-97 Dharam Pal Singh; PW-98
Mohd. Rasid; PW-99 Itwari; PW-100 Mubarik; PW-101 Sharif Ahmad;
PW-102 Manish Sondhi; PW-103 Sukhdev Raj; PW-104 Nasir Ali
Khan; PW-105 Rashid; PW-106 Tarikat Ali; PW-107 Ram Charan
Patel; PW-108 Iqbal Hussain; PW-109 Fakruddin @ Fakri; PW-110
Zainuddin; PW-111 Puran Mal; PW-112 Abdul Latif; PW-113 Abdul
Kadir; PW-114 Jallaludeen Khan; PW-115 Prem Shankar Pandaya; PW-
116 Vinod Singh Kushwah; PW-117 Mohan Lal, Chief Train Controller,
Railway Station, Ratiam (M.P.); PW-118 Mohd. Jawaid; PW-119 Mohd.


25
Zikar; PW-120 Rohit Kumar; PW-121 Dinesh Babu Garg; PW-122
Ghansham Magharam; PW-123 Bharat; PW-124 Vasudev Parmar; PW-
125 Sheetal Gahlot; PW-126 Bhimsen Pasricha; PW-127 Dr.
Vishavmbhar Nagnath Ingole; PW-128 Jathore Vithal Gangaram; PW-
129 Angad Nagorao Jadhav; PW-130 Narayan Pundlikrao Mote; PW-
131 Ganpat Mashnajirao Bhuyare; PW-132 Devidas Parkashrao Tonge;
PW-133 Smt. Kavita; PW-134 Shivam Dhakad; PW-135 Jagdish Bhai;
PW-136 Dr. Ram Partap Sing; PW-137 Neera @ Poppy Singh @ Neera
Rani; PW-138 Dashrath Prasad Chaurasia; PW-139 Inder Singh; PW-
140 Smt. Aruna Thakur; PW-141 Ajay Chauhan; PW-142 Shakti Singh;
PW-143 Rajeshwar Singh; PW-144 Lal Krishan Joshi @ Govind; PW-
145 Pardeep Saxena; PW-146 Rahat Abrar; PW-147 Deep Bhatia; PW-
148 Krishan Pal Singh Tomar; PW-149 Udai Bhan Sen; PW-150 G.L.
Mandloi; PW-151 Mohd. Irshad; PW-152 Arvind Hooda; PW-153
Sheikh Abdul Khaleem; PW-154 Dr. R.K. Koshal; PW-155 Vijay
Kumar Upadhyay; PW-156 Mahendra M. Vankar; PW-157 Nagin Bhai
Lala Bhai Patel; PW-158 Virender Kumar, Deputy Secretary in the
Ministry of Defence, New Delhi; PW-159 Neeta Rathore; PW-160
Ishwar Lal Kander; PW-161 Devender Upadhyay; PW-162 Ashwin
Joshi; PW-163 Uday Khanwalker; PW-164 Jitender Badwaya; PW-165
Sharvan Chouhan; PW-166 Kismat Chouhan; PW-167 Sharda Wasnik;
PW-168 Vijay Keskar; PW-169 Subhash Chawda; PW-170 Kailash
Sharma; PW-171 Rakesh Nagori; PW-172 Shiv Narayan; PW-173
Jagdish Patel; PW-174 Rajesh Kumar; PW-175 Jitendra Chaudhary;


26
PW-176 Narain Dass Ji; PW-177 Rajesh Kumar Verma; PW-178
Krishna Joshi; PW-179 Venkat Hanumant Mahalkar; PW-180
Chanderjeet Singh; PW-181 Vivek Sharma; PW-182 Charan Singh;
PW-183 Alok Kumar; PW-184 Mansubhai Ramabhai Chaudhary; PW-
185 Jayantibhai; PW-186 Phool Chand; PW-187 Kishorebhai; PW-188
Sunilbhai; PW-189 Sarojini; PW-190 Raja Ram; PW-191 M.S. Wadia;
PW-192 Ashwani Kaushal; PW-193 Arpit Jaiswal; PW-194 Sahab
Singh; PW-195 Rajinder Singh, retired Inspector, GRP, Karnal; PW-196
Gurdeep Singh, retired Inspector, CIA, Ambala Cantt; PW-197 Amod
Kumar, Inspector, NIA, New Delhi; PW-198 Prabhat Bajpai, Inspector,
NIA, New Delhi; PW-199 Pardip Baburao Mane, Inspector, NIA, New
Delhi; PW-200 Pyare Lal Chaurasia, DSP, NIA, Head Quarter, New
Delhi; PW-201 Narender Singh Jangid, Inspector, NIA, New Delhi; PW-
202 Rakesh Singh, Addl. District & Sessions Judge, Kurukshetra; PW-
203 Rajesh Mittal, SDE, Office of BSNL, Chandigarh; PW-204 Dalbir
Singh, retired DSP; PW-205 P.K. Chaudhry, Assistant Director,
Enforcement Directorate; Dehradun; PW-206 Manish Rai, Inspector,
State Cyber and Hytech Crime, P.S. Bhopal; PW-207 Vipin Kumar,
Inspector, NIA, New Delhi; PW-208 Devinder Singh, Deputy
Commandant, CISF, NTPC, Kaniha, District Angul (Orissa); PW-209
Jasveer Singh, DSP, NIA, Gauhati; PW-210 Dr. A.K. Dalela, Controller
of Explosives, PESO, Allahabad; PW-211 K.S. Thakur, retured Addl.
S.P., CBI, New Delhi; PW-212 Kanchan Mahi, Addl. Sessions Judge,
Faridabad; PW-213 Narender Singh, CJM-cum-Secretary DLSA,


27
Gurugram; PW-214 Ram Sharan Dass; PW-215 R.S. Janwal, Assistant
Commandant, CISF, SHEP Salal, J&K; PW-216 Sameer Pal Srow, IAS,
Director, General Information & Public Relation Department, Haryana;
PW-217 Sudesh Kumar, Addl. Sessions Judge, Patiala House, New Delhi;
PW-218 Anil Kumar, DSP, NIA, New Delhi; PW-219 Inderjit Singh
Bisht, DSP, NIA, Mumbai; PW-220 Col. Prasad Srikant Purohit, Liasion
Unit, Southern Command, Kolaba, Mumbai; PW-221 H.S. Dahiya, Addl.
District & Sessions Judge, Panipat; PW-222 Nitish Kumar, IPS, IGP at
Director Cabinet Secretariate, Govt. Of India, New Delhi; PW-223 Ravi
Parkash, Assistant Nodal Officer, Idea Cellular Ltd., Panchkula and PW-
224 Vishal Garg, SP, NIA, New Delhi.
11. Thereafter, evidence of the prosecution/NIA was closed by
learned Special Public Prosecutors on 11.10.2018.
Examination of the accused under Section 313 Cr.P.C.
12. After closure of prosecution evidence, the entire
incriminating evidence/documents appearing against the accused were put
to them in their examination under Secton 313 Cr.P.C and all the accused
have filed separate written statements to the questions formulated under
Section 313 Cr.P.C. and pleaded innocence and false implication. Accused
Naba Kumar Sarkar @ Swami Aseemanand has pleaded that he has no
concern with the alleged occurrence and denied the circumstances as
being wrong, incorrect and not within his knowledge. He also pleaded that
he never met Abdul Khaleem in Chanchalguda Jail, Hyderabad and had
never any conversation with such person. Further pleaded that


28
Investigating Officer Nitesh Kumar, Assistant Investigating Officer Vishal
Garg and other NIA officials forced and compelled him to make statement
Ex.PW202/5 and said statement was neither voluntary nor true. That he
has been falsely implicated in the case and CBI officials and officials of
different investigating agencies physically and mentally tortured him
while in their custody and threatened that his family members would be
arrested, thereby he was compelled to depose before Hon'ble Magistrate at
Delhi as they had threatened him not to disclose to the Magistrate that he
has been deposing under duress and threat.That after completion of his
police custody remand in the Hyderabad case, he was produced in this
case before XIV MM on 20-12-2010 and was sent to judicial custody in
Chanchalguda Jail, Hyderabad. That he was remanded to police custody
from 23.12.2010 to 24.12.2010 and then from 24.12.2010 to 03.01.2011
and then from 03.01.2011 to 13.01.2011 and during this period of police
custody, NIA officials including CIO Nitesh Kumar and Vishal Garg
pressurized him to make confession before Magistrate as per script and
story given by them, which was not at all true. That he was produced
before Hon'ble court on 13.01.2011 and he moved applications Ex.
PW224/D9 and Ex.PW224/D10 stating therein that he is innocent and that
he has been falsely implicated. That during his police custody, he was
taken to Daman where he was forced to sign on few papers and he did not
point out any place at Valsad, Balpur or Shabri Dham. That on 13.1.2011
he was admitted to Central Jail, Ambala where senior NIA officer Lok
Nath Behra alongwith other NIA officials visited Central Jail Ambala and

29
called him to the chamber of Superintendent, Central Jail Ambala and
warned him to make statement as per the dictation of investigating officer
and Mr. Behra assured him that after the desired statement, he will be set
free otherwise he will have to serve his whole life in Jail and that this
continued from 13.1.2011 to 15.1.2011 till he was produced before the
C.J.M., Panchkula and during this period, several NIA officials
pressurized him to make the statement as per their directions and warned
him not to disclose to the Chief Judicial Magistrate, Panchkula and under
those compelling circumstances, he was forced to make statement on
15.01.2011. That he was taken in custody by ATS, Rajasthan on
21.01.2011 from Central Jail Ambala and was produced before Chief
Judicial Magistrate, Ajmer and he was in police custody of ATS Rajasthan
till 11.02.2011 and remained in Central Jail Ajmer for a long time. That on
08.04.2011 he moved an application before CJM, Ajmer and requested to
forward the application retracting his statement dated 15.01.2011 to the
designated Special NIA Court at Panchkula and learned Chief Judicial
Magistrate, Ajmer sent the application to Superintendent, Central Jail,
Ajmer with the direction to forward the same and the Superintendent,
Central Jail, Ajmer vide covering letter dated 10.04.2011 forwarded the
retraction application dated 08.04.2011 to the designated Special NIA
Court at Panchakula through post, which was received in the court and
the Hon’ble court directed the Ahlmad to place on record and the same is
marked as Mark PW224/DA, which bears his signature on each and every
page and the same may be taken into consideration. That after 13.01.2011,

30
he was personally produced before Special Judge, NIA Court for the first
time on 12.05.2011 and on that day, he moved application Ex.PW224/D-
11, thereby informing the court about the excesses done by investigating
agencies during police custody. Further stated that while he was in
Judicial custody in Ajmer, one T. Raja Balaji, S.P., C.B.I, on the pretext of
further interrogation, obtained permission to interrogate him from 12-3-
2011 to 14-03-2011 and during this period, said official again pressurized
him not to engage any lawyer and not to disclose this fact to anybody that
he has been compelled to make the statement on 18-12-2010 in Delhi and
on 15.01.2011 at Panchkula. That after that, one CBI officer of STF,
Mumbai moved an application before C.J.M., Ajmer to the effect that he
wanted to interrogate him regarding Malegaon blast case and he was
allowed to interrogate him for nine days starting from 16-3-2011 and
because of the constant pressure and threat from the various agencies, he
could not disclose fact of forcible statement to anybody. That on his first
opportunity, he moved an application before the Chief Judicial
Magistrate,Ajmer thereby informing that he was forced to make statement
before Magistrate at Delhi by CBI and NIA at Panchkula and that when he
was produced on 08.04.2011 before Chief Judicial Magistrate, Ajmer, he
moved an application for sending the retraction applications to the
concerned courts i.e. courts at Hyderabad and designated Special NIA
court at Panchkula. That he never made any disclosure statement to the
Investigating Officer nor did he pointed out any place and that he has
been falsely implicated. Further, accused Kamal Chauhan has denied


31
knowledge of most of the incriminating circumstances and further stated
that the same are wrong and incorrect. He has pleaded that his signatures
were obtained on blank papers during his police custody and he has not
disclosed anything. That NIA officials tortured him physically and
mentally and that he has been falsely implicated in this case. That he was
taken in custody by Vishal Garg, Investigating Officer, NIA on
08.02.2012 at Depalpur police station and kept him in police custody for
the whole day and night and again taken him to Depalpur police station on
09.02.2012 and again brought him back to camp office, NIA, Indore.
That he was physically and mentally tortured and was brought to Guest
House, NIA, Noida on 10.02.2012 and on that day, Investigating Officer
forcibly obtained his signatures on blank papers and threatened to involve
his other family members if he would not put his signatures. That he was
produced by NIA officials in the court of Special Judge, NIA at Panchkula
on 14.02.2012. That he never made statement to media person at any
point of time. Thereafter, he was again kept in Guest House, NIA, Noida
and was mentally and physically harassed by officials of NIA. That on
21.02.2012 Investigating Officer, NIA forcibly obtained his signatures on
alleged disclosure memos Ex.PW215/3 & Ex.PW201/1, alleged site plans
Ex.PW215/4 and Ex.PW215/5. That he never pointed out/identified any
such place and he never visited any such place earlier to his arrest. That
on 27.02.2012 he was taken to Airport, Indore by Vishal Garg,
Investigating Officer, NIA and was kept in SAF Guest House, Indore
where NIA officials forcibly obtained his signatures on blank papers and

32
converted the same into discovery/pointing out memos Ex.PW215/6 &
Ex.PW215/8, whereas he never disclosed the facts as mentioned in the
said memos. That he never disclosed/identified such places and he never
visited such places during his life time. Further, accused Lokesh Sharma
has pleaded that he has no concern with the alleged incident and denied
knowledge of the incriminating circumstances put to him. He has pleaded
that witnesses have deposed at the instance of officials of NIA. Further,
accused Rajender Choudhary has also pleaded that he has no concern with
the alleged incident and has denied entire circumstances as being wrong
and incorrect and not within his knowledge. He has pleaded that NIA
officials obtained his signatures on blank papers and tortured him
physically and mentally. Neither did he show any place to NIA officials
nor they took him to any place but his signatures were obtained on blank
papers at the time of his police custody. Further pleaded that he was
arrested on 15.12.2012 from village Piploda Bagla, Tehsil Nagda, District
Ujjain and was brought to NIA Guest House, Noida where NIA officials
tortured him physically and mentally and on 22.12.2012 Investigating
Officer, NIA forcibly obtained his signatures on disclosure statements
Ex.PW138/1, Ex.PW138/2, Ex.PW138/4, whereas he never made any
disclosure statement and Investigating Officer, NIA also forcibly obtained
his signatures on alleged site plans Ex.PW138/3 and Ex.PW138/5 but he
never pointed out/identified such places. That on 26.12.2012 he was taken
to Airport, Indore by Inspector, NIA and was kept at Rest House and his
signatures were obtained forcibly on blank papers and the same were

33
converted into discovery/pointing memos Ex.PW151/4 and Ex.PW151/5
whereas he never disclosed such facts as mentioned in the memos. That
he never disclosed or identified any such places, as alleged in the said
memos and he never visited such places during his lifetime. That he is
innocent and has been falsely implicated in this case.
Defence Evidence
13. Thereafter accused were called upon to lead evidence in
defence and the accused have not adduced any oral evidence in their
defence, howecer accused have tendered certified copy of judgment dated
16.04.2018 passed in Special case no. 03 of 2013 as Ex DA in defence
evidence and thereafter closed their defence evidence.
Arguments
14. Sh. R.K. Handa and Sh. Rajan Malhotra, learned SPPs for
NIA have vehemently argued that prosecution/NIA has successfully
established guilt of the accused persons facing trial by adducing enough
evidence. It is argued that there is no dispute about the occurrence dated
18/19.02.2007 in which train No. 4001 UP Attari Express (Samjhauta
Express) caught fire after bomb explosion while passing through Diwana
railway station near Panipat, Haryana, as a result of which 68 persons
were killed and 12 persons were injured. Learned SPPs have submitted
that in this regard, several witnesses have been examined, who have duly
proved the occurrence. The evidence of GRP officials i.e. PW-1, PW-2
etc, evidence of railway employees i.e. PW-3, PW-4, PW-5, PW-6, PW-7,
PW-9 etc. and further evidence of witnesses i.e. PW-88, PW-89, PW-91,

34
PW-93, PW-94, PW-95, PW-96, PW-97, PW-98, PW-99, PW-100 etc.
pertaining to identification of dead bodies, evidence of witnesses i.e. PW-
2, PW-53, PW-54, PW-55, PW-56, PW-58, PW-59, PW-60, PW-61, PW-
64 etc. pertaining to inquest proceedings and medical evidence in the
shape of testimony of Medical Officers i.e. PW26 to PW52, PW-63, PW-
80 etc. duly prove the occurrence in which several persons lost their lives
on account of explosion of explosive substance planted by the culprits in
Samjhauta Express train. Further submitted that initially the investigation
was conducted by GRP Police/Special Investigation Team of Haryana
Police and then investigation was taken over by NIA after re-registration
of FIR No. 28 on 29.02.2007 as FIR no. 9/2010 dated 29.07.2010 PS NIA
New Delhi and the motive, agreement, preparation as well as execution of
the conspiracy to target Samjhauta Express train is duly made out. It is
submitted that motive of causing the bomb blasts in Samjhauta Express
train was on account of repeated terrorist attacks by Islamic Jehadis on
Hindu temples and a theory of 'Bomb Ka Badla Bomb' was propounded.
It is further submitted that conspiratorial meetings, training and execution
of the plan was done by the accused in conspiracy with each other. It is
further submitted that accused Naba Kumar Sarkar @ Aseemanand
suffered confessional statement u/s 164 Cr.P.C. during the course of
investigation. Further submitted that accused Kamal Chauhan, Rajender
Chaudhary and Lokesh Sharma were arrested and accused persons also
suffered disclosure statements and got demarcated the places where
conspiratorial meetings were held and preparatory acts were carried out

35
and the same lend sufficient corroboration to confessional statement of
accused Aseemanand. It is further submitted that it is a case based on
circumstantial evidence and the prosecution has established complete
chain of circumstances making out guilt of accused persons and the same
is sufficient for conviction of the accused for the offences with which they
have been charge-sheeted. It is further submitted that confession made by
one accused is admissible in joint trial in terms of Section 30 of the Indian
Evidence Act, 1872. It is further submitted that confession of accused
Aseemanand is voluntary and can be relied upon to convict the accused
persons. It is further submitted that accused Lokesh Sharma, Rajender
Chaudhary etc. participated in firing practice organized by Sunil Joshi
(since deceased) in Karni Singh firing range at Faridabad in April 2006
and accused Kamal Chauhan along with Lokesh Sharma, Rajender
Chaudhary etc. also attended training at Bagli forest area in Dewas (M.P.)
in January, 2006 organized by Sunil Joshi (since deceased) where they
were imparted training about preparation of pipe bombs and firing of
pistol. It is further submitted that after taking 4 suit cases containing IEDs
from Ramchandra Kalasangra (absconder and since declared proclaimed
offender), the accused reached Old Delhi railway station and planted the
same in Samjhauta Express train. It is further submitted that conspiracy is
a clandestine activity and the same can only be inferred from
circumstantial evidence of co-operation between the conspirators and any
declaration by one conspirator made in furtherance of conspiracy and
during its pendency is admissible against each co-conspirator and that


36
there is enough evidence to infer conspiracy amongst accused persons. It
is further submitted that confessional statement of accused Aseemanand is
voluntary in nature and the same has also received corroboration,
therefore guilt of the accused is duly made out. It is further submitted that
proof does not mean rigid mathematical formula since that is impossible
and proof must mean such evidence as would induce a reasonable man to
come to definite a conclusion and in the light of evidence on record, guilt
of the accused is duly made out. It is further submitted that accused
persons suffered disclosure statements and got demarcated the places
where conspiratorial meetings were held in process of furtherance of
designs of conspiracy and the expression “fact discovered” includes not
only the physical object produced, but also the place from where it is
produced and the knowledge of the accused as to the same, therefore,
provision of Section 27 of the Indian Evidence Act, 1872 gets attracted
and all such facts disclosed in pursuance to the disclosure statements of
accused become admissible in evidence. A fact can be discovered by the
police/investigating officer pursuant to information elicited from the
accused after such disclosure was followed by one or more of a variety of
causes and pointing out place to the police officer where offence was
committed would be admissible as conduct under Section 8 of the Indian
Evidence Act, 1872. It is further submitted that conduct of accused
persons further lend corroboration to prosecution version as accused
Kamal Chauhan and Rajender Chaudhary were close associates of co-
accused Lokesh Sharma and were absconding from Depalpur after the

37
arrest of accused Lokesh Sharma in May, 2010. It is further submitted that
Ld. Magistrate took all necessary precautions required under the law
before recording confession of accused Aseemanand and the very nature
of the confession reflects that it was voluntary in nature and is not a result
of police torture. It is also submitted that there is also extra-judicial
confession of accused Kamal Chauhan in the shape of CD/Ex.PW192/1
vide which accused replied in affirmative regarding his involvement in the
crime and in this regard, reference has been made to statements of PW-
192 and PW193. Further contended that there is extra-judicial confession
of accused Aseemanand also and in this regard, reference has been made
to statement of PW-153 Sheikh Abdul Khaleem. It is further submitted
that as per FSL reports, the cause of fire in Samjhauta Express train was
blast. It is further submitted that two suit cases were also found lying
on/near railway tracks and both the suit cases were found containing
IEDs, which further substantiate that highly explosive substances were
used for causing explosion in the said train. Further submitted that reports
of CFSL Ex.PA/FSL-5 further make out use of sulphur and potassium
chloride, PETN, TNT, RDX etc. causing the explosions. Further
submitted that prosecution has also duly proved sanction for prosecution
of the accused persons under the Explosive Substances Act, 1908; under
Code of Criminal Procedure and under Unlawful Activities (Prevention)
Act, 1967 qua accused persons and therefore, all the accused persons be
held guilty and punished as per law. In support of their arguments, Ld
SPPs have placed reliance upon case law titled Harpal Singh @ Chhota

38
Vs State of Punjab, 2016 (4) RCR (Criminal) 936 (SC);
E.K.Chandrasenan Vs State of Kerala, 1995 (2) RCR (Criminal)
483; Firozuddin Basheeruddin Vs State of Kerala, 2001 (4) RCR
(Criminal) 20; Shankar alias Gauri Shankar Vs State of Tamil
Nadu, 1994 (2) RCR (Criminal) 731; State of M.P, through CBI Vs
Paltan Mallah, 2005 (1) RCR (Criminal) 949; Pawan Mandal and
another Vs State of Punjab, 2010 (1) RCR (Criminal) 273; Shiva
Karam Payaswami Tewari Vs State of Maharashtra, 2009 (1) RCR
(Criminal) 877; Aftab Ahmad Anasari Vs State of Uttaranchal,
2010 (2) SCC 583; Chattar Singh and Anr. Vs State of Haryana,
2008 (4) RCR (Criminal) 133; State of Punjab Vs Gurdeep Singh,
1999 (4) RCR (Criminal) 75; Rakesh Kumar & Ors Vs State, 2010
(6) RCR (Criminal) 2364; Jayendra Saraswathi Swamigal Vs State
of Tamil Nadu, 2005 (1) RCR (Criminal) 629; Hardeep Singh
Sohal Vs State of Punjab through CBI, 2004 (4) RCR (Criminal)
688; State Govt. of NCT of Delhi Vs Sunil, 2001 (1) RCR
(Criminal) 56; Musheer Khan @ Badshah Khan & Anr. Vs State of
Madhya Pradesh, 2010 (2) SCC 748; Geejaganda Somaiah Vs State
of Karnataka, 2007 (2) RCR (Criminal) 255; Amitsingh
Bhikamsing Thakur Vs State of Maharashtra, 2007 (1) RCR
(Criminal) 618; Anupam alias Anup Vs State of Haryana with Raj
Kumar Vs State of Haryana with Ravi Kant Vs State of Haryana
and Sudhir and another Vs State of Haryana, 2006 (1) RCR
(Criminal) 56; Sidharth, etc.etc. Vs State of Bihar, 2005 (4) RCR


39
(Criminal) 651 and M.A.Antony alias Antappan Vs State of Kerala,
2011 (5) RCR (Criminal) 752.
15. On the other hand, learned counsel for the accused have
vehemently argued that prosecution/NIA has squarely failed to establish
guilt of the accused persons by adducing evidence beyond reasonable
doubt. It is argued that there are glaring chinks in the prosecution
evidence and thus accused are entitled to be acquitted out-rightly.
16. Sh. Subhash Chand Sharma, Advocate, learned counsel
representing accused Naba Kumar Sarkar @ Swami Aseemanand has
argued that there is no admissible evidence on record to make out
involvement of this accused in the present crime. It is submitted that there
is no evidence on record regarding involvement of this accused in any
alleged conspiracy to carry out bomb blast in Samjhauta Express train.
That none of the prosecution witnesses has come forward to establish the
factum of any meeting at Jaipur, Valsad, Indore or in Jharkhand and there
is no evidence that present accused ever attended any conspiracy meeting
with respect to Samjhauta Express train blast. It is argued that none of the
concerned prosecution witnesses i.e.PW-123, PW-184, PW-185, PW-186,
PW-187, PW-188 etc. have supported the prosecution version and have
categorically denied that any conspiracy meeting was held and attended
by accused persons. It is argued that so far as so called confessional
statement of accused Aseemanand is concerned, the same is neither
voluntary nor discloses involvement of this accused in any conspiracy,
planning or execution of the Samjhauta Express train blast and therefore,


40
the same does not connect the accused with the crime in any manner. It is
argued that before a confession is accepted as evidence against the
accused and is taken into consideration, it has to be tested on the
touchstone of two tests laid down by Hon'ble Supreme Court i.e. (i) as if
the confession is voluntary, and (ii) as if the confession is true. Further, in
order to examine voluntary nature of confessional statement, the court has
to consider the circumstances in which accused has been forwarded for
recording of the confession, duration of the police custody of the accused
before recording such confessional statement, reasons/motivations which
induced the accused to make confession, conduct of the investigating
agency and the circumstances under which the accused is forwarded for
recording his statement, satisfaction of the concerned Magistrate to the
effect that accused is making statement voluntarily or that accused was
provided ample opportunity for reflection etc. It is argued that if the
circumstances of the present case leading to the recording of confessional
statement are seen, then it is apparently made out that accused was
coerced to make confessional statement. In this regard, it is pointed out
that investigating agency/NIA arrested present accused in this case on
23.12.2010 and first police remand was obtained on 23.12.2010 and again
police remand was sought and taken from 24.12.2010 to 03.01.2011 and
then again police remand was taken from 03.01.2011 to 13.01.2011 i.e.
total constituting police remand for more than 20 days. Then, on
13.01.2011, Investigating Officer/Vishal Garg moved an application
before designated Special NIA court at Panchkula and made a prayer to


41
send the accused in judicial custody and accused was remanded to judicial
custody till 27.01.2011. 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. Further pointed out that Investigating
Officer had also not taken any permission from the remanding court to
produce the accused for recording his statement u/s 164 Cr.P.C. before
learned C.J.M., Panchkula and once the designated court had remanded
the accused to judicial custody, then it was the duty of the Investigating
Officer to hand over the accused to concerned jail authorities, but instead
of this, Investigating Officer moved separate application before learned
C.J.M., Panchkula and it reflects haste on the part of Investigating Officer
to get recorded the statement of the accused u/s 164 Cr.P.C. It is further
submitted that accused Aseemanand had moved application on 13.01.2011
before Special NIA court, thereby submitting that he is innocent and has
been falsely implicated and moreover the applications reflect that on
13.01.2011 accused Aseemanand had no intention of making any
confessional statement, still Investigating Officer moved an application
before Ld. CJM Panchkula for recording his statement u/s 164 Cr.P.C. and
moreover the application was not even signed by the accused, which itself
creates reasonable doubt about the circumstances leading to the recording


42
of confessional statement and also apparently reflects that the statement
of the accused was not voluntary one. It is also pointed out that while
moving application Ex.PW202/1 before learned C.J.M., Panchkula on
13.01.2011, the investigating agency mentioned that accused Naba Kumar
Sarkar @ Swami Aseemanand has been examined in detail and his
statement u/s 161 Cr.P.C. has been recorded on 11.01.2011, meaning
thereby that till then, accused Aseemanand was merely a witness and not
an accused and therefore any question of getting recorded confessional
statement of such person could not have arisen and this fact again casts
shadow on the approach of the investigating agency. It is further pointed
out that relevant order-sheets pertaining to recording of confessional
statement further reveal that no direction was given to jail authorities,
Ambala to produce this accused before learned C.J.M., Panchkula on
15.01.2011 nor any direction was given to the jail authorities by the then
C.J.M., Panchkula to the effect that statement u/s 164 Cr.P.C. has to be
recorded on 15.01.2011 and as such, no one including the NIA officials
should be allowed to meet the accused in Central Jail, Ambala till his
statement is recorded. Further pointed out that there is no record vide
which it could be inferred that accused Aseemanand was produced before
learned C.J.M., Panchkula in pursuance to any written direction to jail
authorities at Central Jail, Ambala. It is also submitted that as per order-
sheet as well as from the testimony of concerned witness i.e. PW-202
Rakesh Singh, the then C.J.M., Panchkula and PW-224 Vishal Garg,
Investigating Officer, it is apparently made out that accused Aseemanand


43
was produced before learned C.J.M., Panchkula on 13.01.2011 by NIA
officials from their custody and after initial examination of accused
Aseemanand, his custody was handed over to NIA officials on 13.01.2011
and after recording his statement on 15.01.2011, again his custody was
handed over to NIA officials, which clearly reflects that accused was not
given any time to come out of the influence/shadow and pressure of the
NIA officials and as such, so called confessional statement recorded u/s
164 Cr.P.C. Ex.202/5 cannot be said to be voluntary one. It is also
submitted that apart from this, such confessional statement is also not
proved to be true because the facts mentioned in the said statement are not
corroborated by any other evidence on record. It is also submitted that
accused has not shown his own involvement in any alleged agreement,
planning or execution of the Samjhauta Express train blast in any manner
and as such, accused exculpated himself and therefore, no reliance can be
placed upon such statement even otherwise also. It is also pointed out that
even though two days time was sought by accused Aseemanand for free
thinking as he had not decided to make any statement u/s 164 Cr.P.C. on
13.01.2011, but it cannot be said that it was time given for reflection and
as per order dated 15.01.2011, accused was given merely 10 minutes time
for reflection when he was produced by the NIA officials and the same
cannot be said to be sufficient time for reflection in view of the fact that
he was in custody of NIA for more than 20 days in the present case and
for about 24 days in the custody of CBI prior to that and as such, this
much time was not sufficient for the accused to come out of the

44
pressure/coercion exerted upon him during his more than 40 days long
police custody. It is also submitted that 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 confessional statement u/s 164 Cr.P.C. as
per their dictation. Further submitted that factum of forcing the accused to
make confessional statement further becomes apparent in the light of the
fact that accused moved application at the earliest opportunity to inform
the court that his statement was not voluntary and that he was forced to
make confessional statement by the NIA officials and has sought
retraction from his statement and retraction at the earliest opportunity
further proves that so called confessional statement was not voluntary and
it cannot be relied upon. In this regard, it is pointed out that after sending
the accused to judicial custody on 13.01.2011 by the designatedSpecial
NIA court at Panchkula, accused was first produced in person before the
said court on 12.05.2011 and accused moved application Ex.PW224/D-11
on that very day, thereby informing the court that his statement has been
made under coercion. It is also pointed out that this accused also moved
an application dated 08.04.2011 before learned C.J.M., Ajmer and prayed


45
for sending said retraction application dated 08.04.2011 to the NIA court
at Panchkula and the same was ordered to be forwarded to this court
through concerned jail authorities and the same was forwarded by the
Superintendent, Central Jail, Ajmer and the said application has been
marked as Mark PW224/DA. It is also pointed out that accused in his
application Mark PW224/DA has categorically stated to the effect that
during his jail custody at Ambala from 13.01.2011 to 15.01.2011, he was
pressurized, induced and lured to make statement as per dictation of the
NIA officials and that accused has also stated that on 15.01.2011, before
producing him before the court of C.J.M., Panchkula, he was threatened,
pressurized and coerced by the NIA officials to make statement as per
their direction and in such circumstances, so called confessional statement
is neither voluntary nor true. It is also submitted that confession cannot be
treated to be confession unless accused confess to have committed crime
which he is alleged to have committed and unless he admits all such facts
constituting the offence. Further argued that it must be established that
confession is voluntary and also that it is true and for the purpose of
establishing its truth, it is necessary to examine the confession and
compare it with the rest of the prosecution evidence and the probabilities
of the case. Further submitted that if the provision of Section 164 Cr.P.C.
are not complied with in letter and spirit, then confessional statement
cannot be made basis of conviction. It is also submitted that order-sheets
of Ld. Magistarte do not show that any specific questions were put to the
accused by learned Magistrate as to whether any physical or mental


46
pressure was put on him by the investigating agency. It is also submitted
conviction cannot be made on the basis of retracted statement unless
corroborated by independent evidence and since there is no corroboration
of the so called confessional statement, therefore the same cannot be
pressed into service to convict the accused. It is also submitted that
statement of accused not involving himself is no confession and cannot be
relied upon. It is also submitted that it is settled law that Magistrate must
record confession of accused strictly by adhering to the procedure under
law and the law laid down and in the instant case, learned Magistrate has
erred in not recording the statement of accused u/s 164 Cr.P.C. in strict
conformity to the laid down law. In this regard, it is pointed out that as per
law laid down, accused should be assured of protection from any sort of
pressure, torture or influence of the investigating agency in case he
declines to make confessional statement and before proceeding to record
the confessional statement, a searching enquiry must be made from the
accused as to the custody from which he was produced and the treatment
which he had been receiving in such custody in order to ensure that there
is no scope of doubt of any sort of extraneous influence. However learned
Magistrate i.e. PW-202 Rakesh Singh, learned CJM, Panchkula, has not
assured the fact that accused was or was not under any sort of influence of
the investigating agency. It is also submitted that as per Rule 5 (h),
Chapter 13, Volume III of High Court Rules and Orders, the Magistrate
should invariably question the accused person as to the length of time
during which he has been in the custody of the police and the Magistrate

47
may also put other useful questions to the accused. However again learned
Magistrate has completely violated the rules by not observing the same at
the time of recording of confessional statement of the accused. Further
submitted that cross-examination of learned Magistrate makes out that
presence of NIA officials was prevalent around the accused during the
entire period prior to and subsequent to the recording of his statement and
Ld. Magistrate had not ensured to rule out influence/shadow of NIA
officials at the time of making confessional statement by the accused and
all such circumstances make out that statement of accused is not
voluntary.
17. Next, it is argued that in order to create false evidence,
investigating agency prepared discovery/pointing out memos
Ex.PW156/C, Ex.PW156/E, Ex.PW156/G, but both the independent
witnesses i.e. PW-156/Mahender M. Vanker and PW-157/Nagin Bhai L.
Patel have not supported the prosecution case on this aspect and have
categorically stated that all the aforesaid memos and site plans were
prepared while sitting in the Circuit House. It is also submitted that no
discovery of any new fact or no recovery of any material object was ever
effected in pursuance to pointing out memo and therefore, same is totally
inadmissible and in fact it comes out that investigating agency has
conducted tainted investigation and prepared false memos. It is further
submitted that there is not an iota of evidence on record to establish any
motive on the part of this accused to commit the crime and none of the
prosecution witnesses has lent any support to prosecution version in any


48
manner. It is further submitted that prosecution also tried to strengthen its
case by creating false evidence in the shape of extra-judicial confession,
but again concerned witnesses i.e. PW-141 Ajay Chauhan and PW-142
Shakti Singh have not lent any support to the version of the prosecution
and prosecution case falls to the ground. It is further argued that so far as
statement of PW-153 Shekh Abdul Khaleem is concerned, the same again
does not lend any support to the prosecution case because so called
confessional statement recorded by learned Magistrate at Delhi has not
been relied upon in the present case because the same has not been
produced and proved in this case and the statement of PW-153 Shekh
Abdul Khaleem does not come within the purview of extra judicial
confession and it is again of no help to the prosecution case. It is also
submitted that PW-153 Shekh Abdul Khaleem is a tool who has been used
by the investigating agency as this person, having shady past and confined
in jail, might have been made a got up witness on some promise by the
NIA. It is also submitted that accused Aseemanand was stated to be in
solitary confinement in Chanchalguda Jail, Hyderabad and any question
of an opportunity to talk to him so freely would not arise and this fact
itself belies statement of PW-153 Shekh Abdul Khaleem. It is also
submitted that as per so called confessional statement, some persons,
namely, Indresh, Pragya Thakur, Bharat Bhai Rateshwar etc. were also
somewhere involved in attending some meetings(even though denied
vehemently), however, investigating agency, very strangely, has not
arraigned all such persons as co-accused in this case. It is also submitted


49
that confession of co-accused cannot be treated as a substantive evidence
and more-so, the same cannot be taken into consideration if confessional
statement is self- exculpatory in nature. It is further submitted that as per
Section 27 of the Indian Evidence Act, 1872, only portion of the statement
which is immediate cause of discovery is admissible and thus, what is
admissible admissible u/s 27 of the Indian Evidence Act, 1872 is
information leading to discovery and not any opinion formed on it by the
prosecution and if the place of occurrence was already known to the
police before recording the disclosure statement, then pointing out memo
of the place of occurrence by the accused is not admissible in evidence. It
is also argued that neither any call records were collected to reflect
involvement of the accused in any alleged conspiracy nor any CCTV
footage pertaining to the alleged acts has come on record and thus, the
best evidence, which could have clinched the issue, was withheld by the
prosecution. It is also submitted that it is settled law that where the case
rests squarely on circumstantial evidence, the inference of the 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 and further golden principle running through web of
criminal justice is that suspicion, howsoever grave, cannot take the place
of proof and prosecution cannot afford to rest reliance on the evidence
which ‘may be true’ and if two views are possible, then accused must be
given benefit of doubt. It is also argued that in case of circumstantial
evidence, prosecution must prove all necessary circumstances constituting


50
complete chain and that conviction cannot be based upon circumstantial
evidence, especially when standard of proof is required to be higher in
case of heinous crime. That the prosecution has failed to adduce evidence
beyond reasonable doubt, therefore, the accused is entitled to be acquitted.
Sh. Jagdish Singh Rana, Advocate, learned counsel representing this
accused has also made submissions and all the submissions are in fact on
the same lines as submitted by other counsel and noted hereinabove and
thus the same need not be repeated again for the sake of brevity.
18. Sh. Ranbir Singh, Advocate, learned counsel representing
accused Lokesh Sharma, Ms. Sumanjit Kaur, Advocate, learned counsel
representing accused Rajender Choudhary, Sh. Mukesh Garg, Advocate,
learned counsel representing accused Kamal Chauhan have vehemently
argued that there is no admissible piece of evidence making out guilt of
theses accused in the occurrence in question, therefore all the accused are
entitled to be acquitted. It is argued that investigating agency has
conducted biased and tainted investigation, which has resulted in false
implication of these accused. It is argued that during the initial
investigation, it came out that incident of causing bomb explosion in
Samjhauta Express train is handiwork of terrorist outfits of Pakistan
origin, namel,y Lashkar-e-Taiba, AlQaida etc, however NIA has not
bothered to conduct investigation by taking into account the initial leads
pertaining to the incident. It is pointed out that on the day of incident, one
Rana Shokat Ali and one Ruksana Khatoon and their six children were
travelling in the said train and the investigators got prepared sketches of

51
two suspects on the basis of description given by the aforesaid passengers
and the said sketches were widely published in electronic and print media
and on the basis of said sketches, SIT of Haryana Police received an
information from the jail authorities of Amritsar that a person resembling
the said sketches is lodged in Amritsar jail in case FIR No. 8 dated
01.03.2007 under Sections 3/34/20 of the Passport Act and Section 14 of
the Foreigners Act registered at P.S. GRP, Amritsar, who was arrested on
01.03.2007 and on the basis of said information, then I.O./Inspector
Gurdeep Singh got issued production warrant of said detenu, namely,
Ajmat Ali and obtained his custody from Amritsar jail and the application
for issuance of production warrant in this case is exhibited as
Ex.PW196/9 and the order passed on the application is Ex.PW196/10.
Further pointed out that as per the investigation, said Ajmat Ali had
entered India without Passport and Visa on 03.11.2006 and had visited
different places in India and resided at various places including Delhi,
Bombay, Ajmer, Kanpur, Goa etc. with Hindu names on fake IDs. Further
submitted that inspite of such vital leads, the then Investigators got
discharged said Ajmat Ali and in this regard, reference has been made to
statement of PW-196 Inspector Gurdeep Singh who has stated that as per
directions of Senior Officers i.e. the then S.P. Ms. Bharti Arora and the
then DIG, application was moved for discharge of said suspect Ajmat Ali
by moving application u/s 169 Cr.P.C. Ex.PW196/17. It is vehemently
argued that despite such vital leads, the investigating agencies, especially
the NIA has failed to conduct its investigation by joining of such suspects,

52
which apparently makes out a case of tainted investigation. It is further
pointed out that one Mohd. Usman was found in the compartment of ill-
fated train along with two unexploded IEDs i.e. live suitcase bombs and
as per facts coming on record, as deposed to by the Investigators, said
Mohd. Usman is stated to have thrown articles of one suitcase on the
railway track and statement of said Mohd. Usman was also got recorded
u/s 164 Cr.P.C. and a bare perusal of his statement makes out that his
conduct was highly suspicious and unnatural and possibility of his
connection with the suitcases containing explosives cannot be ruled out
and perhaps he had either outsmarted the investigating agencies or there
was some other extraneous considerations on account of which he was let
off and the NIA never associated or interrogated said Mohd. Usman in
order to arrive at truth behind the incident. It is further submitted that
suspicion surrounding Mohd.Usman further gets substantiated by the
statement of PW-86/ASI Suresh Kumar who has categorically stated that
when he confronted Mohd. Usman regarding the suit cases lying with
them, he (Mohd. Usman) claimed it to be his suit case and later on
disowned. It is further pointed out that from the prosecution story and the
evidence, it comes out that all the passengers of the said train were shifted
in other coaches/bogie and all the passengers except said Mohd. Usman
and injured persons left for their destination at Attari border and this fact
further compounds the doubt about the role of said Mohamad Usman, but
unfortunately and for the reasons best known to the investigating agency,
said suspect was never interrogated to unearth the real truth behind the

53
incident. It is also argued that one ASI Raj Singh is found to have got
recorded statement of Mohd. Usman, however DDR register Ex.PW1/3
does not reflect name of ASI Raj Singh and the investigating officers
feigned ignorance about Mohd.Usman, which further makes the entire
circumstances surrounding Mohd. Usman totally shrouded in mystery and
tainted investigation on the part of investigating agency is apparent on
record and it seems that investigators were acting at the behest of some
outsiders and on extraneous considerations in order to derail the
investigation from proceeding ahead in right directions. It is further
pointed out that name of one Abdul Razak appeared in the NARCO test
analysis report of one Safdar Nagori i.e. Chief of SIMI arrested on
27.03.2008 at Indore and this aspect is part of the records and said Safdar
Nagori is found to have categorically stated in his test report to the effect
that in Samjhauta Express blast, some persons from Pakistand had come
and they had purchased suitcase cover at Kataria Market, Indore and one
Taslim had helped them to get the suitcase cover stitched and Abdul
Razak had helped Pakistanis in Samjhauta Express train blast and that
presently he had been arrested and that before Samjhauta Express blast,
Abdul Razak had informed him that he alone was to carry one target and
said Samjhauta Express blast and has taken the help of Misbah-ull-Islam
of Calcutta. Further submitted that on the basis of said information, the
then Investigating Officer of the SIT obtained production warrant of
Abdul Razak on 19.09.2008 and said Abdul Razak was out on bail at the
time of blast in the Samjhauta Express train, however, said Abdul Razak

54
was also got discharged on 10.12.2008 by the the then Inspector PW-85
Sanjay Kumar and again NIA has not interrogated this suspect during its
investigations and all these vital facts prima facie reflect that investigation
of the NIA is tainted one and apparently seems to have been done with
some pre-conceived design to falsely implicate the accused.
19. It is further submitted that prosecution/NIA has felt
contented by bringing on record disclosure statements of accused persons,
however no recovery whatsoever has been effected in pursuance to such
disclosure statements and therefore, all such evidence is clearly
inadmissible in evidence and cannot be relied upon to infer guilt of the
accused persons in this case. It is further submitted that neither any
independent witness has supported the case of prosecution with regard to
the disclosure statements of accused nor any incriminating circumstance
pertaining to incident in question has been discovered or recovered in
pursuance to the so called disclosure statements and therefore false
implication of the present accused in this case is writ large. It is further
submitted that alleged incident of shooting practice at Karni Singh
shooting range at Faridabad in the year 2006 or alleged training camp at
Bagli Forest area has nothing to do with the present occurrence, even if
the same is assumed to have happened for the sake of arguments(even
though denied vehemently) and the same has again remained totally
unproved. Further pointed out that tainted investigation of the
investigating agency has led the case nowhere and the prosecution has
squarely failed to bring on record any admissible evidence qua these


55
accused so far as occurrence in question is concerned. It is further
submitted that prosecution cannot derive any advantage out of FSL report
Ex.PA/FSL-2 simply because the samples of sand have been admittedly
lifted after about 6-7 years from an open place which experiences heavy
rain fall every year and is accessible to all and thus any such evidence is
totally inadmissible, especially when it is beyond prudence of ordinary
man that alleged residues of bomb blast could be found from open place
after 6-7 years and therefore in such circumstances, FSL report does not
render any support to the prosecution case in any manner. It is also
submitted that even otherwise the prosecution has not been able to
establish that sand samples, which is stated to have been taken from Bagli
Forest area, remained in sealed and intact condition till it was analyzed by
the concerned expert because there is no evidence at all to that effect as
neither Malkhana Mohrar has been examined nor any document
pertaining to prescribed register(s) of the Malkhana has been attached
with the charge-sheet. It is also pointed out that memo Ex.PW151/4 does
not make mention that any seal was affixed on the envelope of the said
alleged sand samples and in the absence of non-mentioning of seal
impressions, any alleged factum of sealing or preparation of sealed
sample is a farce and renders the whole process inadmissible and found to
be tainted one. It is further pointed that independent witness i.e. PW151
Mohd. Irshad has not supported the prosecution case and in fact it has
come out in his statement that he had signed the document at Airport after
return from Bagli, thereby reflecting that going to Bagli Forest area was a

56
mere formality and all the papers were prepared at Airport and this aspect
further causes serious dent in the prosecution version. It is also pointed
out that there is no evidence on record as to where the parcels containing
said samples were kept for about two months i.e. during the period from
taking of samples on 26.12.2012 upto the period on 27.02.2013 when the
same reached FSL. It is also submitted that as per scientific literature,
after six months, RDX turns into Nitrite and is not found in the shape of
RDX and after explosion, RDX turns in carbon and is found in soil in the
shape of ash. It is also submitted that with respect to their environmental
fate, TNT degrades the most rapidly, followed by RDX and HMX and all
these further falsify the prosecution story regarding finding of traces of
RDX in the alleged sand samples collected from Bagli Forest area and it
seems that investigating agency went wholehog in order to create false
evidence to ensure false implication of the accused by showing
connection of the accused to the incident in question by any means,
whether scientific or not and that too with a totally irrelevant piece of
evidence. It is also argued that FSL reports nowhere mentioned that traces
of RDX in sand samples collected from Bagli Forest area had any
connection with RDX contents found to be used in Samjhauta Express
train blast. It is further submitted that alleged training is stated to have
happened in Bagli Forest area in the year 2006 and the sand samples were
allegedly taken in December 2012 and the site had hill slope from where
samples were allegedly taken from a pit alleged to be created at the time
of training at the place and it is again highly improbable that any pit

57
would remain as such after more than a period of 6-7 years, especially
when the place is a hill slope and open area and due to the soil erosion,
the pit must have been filled with the other sand and soil erosion and
weather wear and tear must have also played their part in changing the
whole aspects of the site. It is further argued that there is no evidence
pertaining to participation of these accused in any conspiracy meeting
pertaining to the incident in question. Further submitted that there is no
evidence regarding the alleged journey of these accused from Indore to
Delhi and from Delhi to Indore via Jaipur and again the case of the
prosecution on this aspect remains totally a story of fiction. It is further
submitted that as per Investigating Officer, CCTV cameras were installed
at Delhi railway station premises, but investigating agency has not
collected and not brought on record any such CCTV footage and thus, the
best evidence has been withheld by the prosecution and adverse inference
is required to be drawn against the prosecution on this aspect.
20. It is further submitted that none of the prosecution witnesses
has deposed anything incriminating against accused Lokesh Sharma and
his false implication is writ large. It is also submitted that as per statement
of PW-90 Istkaar Ali, after about 10 minutes of the start of the journey of
the train, the train stopped and somebody had stated that some persons
had got down, but again there is no investigation on this aspect and this
much evidence goes diametrically opposite to the prosecution version. It
is also submitted that prosecution has not brought any evidence pertaining
to stay of accused in dormitories at Old Delhi Railway Station in February


58
2007 and again prosecution case has fallen flat so far as allegations
against these accused are concerned. It is also argued that prosecution has
further failed to make out that accused Rajender Chaudhary and Kamal
Chauhan absconded after the occurrence and there is no credible evidence
qua these accused to that effect and none of the prosecution witnesses
have supported the prosecution version in this regard. It is further argued
that so far as alleged extra judicial confession of accused Kamal Chauhan
before media persons/Press is concerned, there is no credible evidence to
that effect. In this regard, it is pointed out that as per the testimony of
concerned witnesses i.e. PW-192 Ashwani Kaushal and PW-193 Arpit
Jaiswal, the face of the accused was covered with monkey cap and none
of these witnesses had identified Kamal Chauhan as the person who was
produced by NIA on that day and further these witnesses have admitted
that there were many voices in the CD and that they cannot say that which
words were stated by which person at the relevant time and in such
circumstances, it cannot be said that accused Kamal Chauhan has ever
made any extra judicial confession regarding his involvement in the
present crime in the presence of media persons/Press and thus, no reliance
can be placed upon such an inadmissible evidence. It is further submitted
that so far as retracted confession of accused Naba Kumar Sarkar @
Swami Aseemanand is concerned, no reliance can be placed upon the
same, as said statement is totally exculpatory and confession of co-
accused, which is not self-incriminating, cannot be taken into account
with respect to other co-accused persons and such evidence is totally


59
inadmissible in the light of provision of Section 30 of the Indian Evidence
Act, 1872. It is also argued that retracted confession of accused Swami
Aseemanad does not incriminate these accused persons in any manner, as
no role of these accused has been spelt out in any criminal conspiracy to
carry out bomb blast in Samjhauta Express train and further no overt act
has been attributed to these accused persons in the present crime in any
manner. It is also submitted that retracted confession of accused
Aseemanand does not find any corroboration from other evidence on
record and the same cannot be treated as substantive evidence qua these
accused persons. It is also argued that no recovery has been effected in
pursuance to disclosure statements of accused and therefore, the same is
not admissible u/s 27 of the Indian Evidence Act, 1872. Finally, prayer
has been made to acquit the accused as the prosecution has failed to
adduce any evidence to connect the accused with the occurrence in
question. In support of their arguments, learned counsel have placed
reliance upon Sarwan Singh Rattan Singh Vs State of Punjab, AIR
1957 SC 637; Irsad Alam, son of Nurul Hoda Vs the State of Bihar,
2014 CRI L.J.2107; Aher Raja Khima Vs State of Saurashtra, AIR
1956, SC 217; Babubhai Udesinh Parmar Vs State of Gujarat, AIR
2007 SC 420; Devendra Prasad Tiwari Vs State of Uttar Pradesh,
1978 CRI.L.J.1614; Nazir Ahmad Vs King- Emperor, AIR 1936
Privy Council 253 (2); Govinda Pradhan and another Vs The State,
1991 CRI.L.J.269; Bhagwan Singh and others Vs State of M.P.,
2003 CRI.L.J.1262; Adambhai Sulemanbhai Ajmeri & Ors. Vs


60
State of Gujarat, 2014 (3) Crimes 79 SC; Parmananda Pegu Vs
State of Assam, 2004 CRI.L.J.4197; Mohtesham Mohd. Ismail Vs
SPL. Director, Enforcement Directorate and another, (2007) 8 SCC
254; State Vs Rambali and others, 1953 Cri.L.J.428; Chintamani
Das and others Vs The State, 1970 CRI.L.J. 906; Haricharan Kurmi
Vs State of Bihar, 1964 (2) Cri.L.J.344; Surinder Kumar Khanna
Vs Intelligence Officer, Directorate of Revenue intelligence,
(2018) 8 SCC 271; Arjun Biswas Vs State of Assam, 2005 CRI.LJ
554, Gauhati High Court; Mohmed Inayatullah Vs State of
Maharashtra, AIR 1976 SC 483; Aladdin & Anr. Vs State of
Rajasthan, 2016 (1) Cr.L.R. (Raj.) 521; Mustkeem Alias Sirajudeen
Vs State of Rajasthan (2011) 11 SCC 724; Vinod Kumar Vaidh and
another Vs State, 1992 CRI.L.J.3674; Vijender Vs State of Delhi,
(1997) 6 SCC 171; Madhu Vs State of Kerala, (2012) 2 SCC 399;
T. Diwakara & Ors. Vs State of Karnataka, 2006 CRI.L.J.4813;
Bhuboni Sahu Vs The King, 50 Cr.L.J.1949 (Privy Council); State
of Karnataka Vs P.Ravi Kumar Alias Ravi and others, (2018) 9
SCC 614; Ram Kishan Singh Vs Harmit Kaur and another, 1972
CRI.L.J.267; Tomaso Bruno and another Vs State of Uttar Pradesh,
(2015) 7 SCC 178; Anvar P.V. Vs. P.K. Basheer and others, AIR
2015 SC 180; P. Satyanarayana Murthy Vs. The District Inspector
of Police and Anr. 2016 (1) R.Cr.D.226 (SC); Brijesh Mavi Vs.
State of NCT of Delhi, AIR 2012 SC 2657; Raj Kumar Singh alias
Raju alias Batya Vs. State of Rajasthan, 2013 CRI.L.J.3276; Nizam


61
and another Vs. State of Rajasthan, (2016) 1 SCC 550; Rajiv Singh
Vs. State of Bihar and Anr., 2016 (2) R.Cr.D.35 (SC); Kalam alias
Abdul Kalam Vs Inspector of Police, Madipak-kam, 2011 CRI.
L.J.3179; Navaneethakrishnan Vs. State by Inspector of Police,
2018 (CRI.L.J.2814; Reena Hazarika Vs. State of Assam, SLP
(Crl.) No.2440 of 2018 and Pulukuri Kottaya and others Vs
Emperor, AIR (34) 1947 Privy Council 67.
21. I have heard learned Special PPs for the NIA, learned
defence counsels and have gone through the records of the case carefully.
Findings of Court
22. Briefly stated, the case of prosecution is that in the
intervening night of 18/19.02.2007, explosion/blasts occurred in two
coaches/bogies of Samjhauta Express train (Train No. 4001 UP Attari
Express), thereby causing death of 68 persons and injuries to 12 other
persons who were travelling in the said train and the aforesaid act of
terrorist blast is in pursuance of criminal conspiracy hatched by accused
persons who not only conspired amongst themselves but also abetted
other accused in the commission of said terrorist act and the accused
conspired amongst themselves and with others with the motive of
avenging bomb blasts by Islamic Jehadis with cross border support on
Hindu temples and Hindus, by committing terrorist act in Samjhauta
Express train and that in furtherance of criminal conspiracy, accused
contacted, communicated, planned, prepared, motivated, assisted and
facilitated each other and acted in concert amongst themselves towards


62
furthering and fulfilling the object of the criminal conspiracy of bombing
of Samjhauta Express train on the fateful night of 18/19.02.2007 and thus
the accused are alleged to have committed offences punishable under
Section 120-B IPC, Section 302 read with 120-B IPC, Section 307 read
with 120-B IPC, Section 124-A read with 120-B IPC, Section 438 IPC
read with 120-B IPC, Section 440 IPC read with 120-B IPC, Sections
150(e), 151 & 153 of the Railways Act, 1989, Sections 3 & 4 of the
Explosive Substances Act, 1908, Sections 3 & 4 of the Prevention of
Damage to Public Property Act, 1984 and under Sections 13, 15(1) r/w
16, 17, 18, 23 of the Unlawful Activities(Prevention) Act, 1967.
23. In view of the prosecution case as well as facts and evidence
coming on record and rival contentions, the following points arise for
determination in this case: -
(i) Whether the prosecution has been successfully in
establishing that bomb explosion/blasts occurred in two
coaches/bogies of Samjhauta Express train ( Train No. 4001
UP Attari Express) in the intervening night of 18/19.02.2007,
resulting into death of large number of persons i.e. 68
persons and injuries to many others who were travelling in
the said 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?


63
(iii) Whether the prosecution has been successful in
establishing motive on the part of accused persons to enter
into criminal conspiracy and to cause bomb explosion/blasts
in Samjhauta Express train?
(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 criminal conspiracy hatched
amongst accused persons and whether accused, namely, Naba
Kumar Sarkar @ Swami Aseemanand, Lokesh Sharma,
Kamal Chauhan and Rajender Chaudhary are found to be
involved in any criminal conspiracy to plant and cause
explosion/blasts in the coaches/bogies of Samjhauta Express
train?
(v) Whether prosecution has proved guilt of accused Naba
Kumar Sarkar @ Swami Aseemanand, Lokesh Sharma,
Kamal Chauhan and Rajender Chaudhary for the charged
offences i.e. offences punishable under Section 120-B IPC,
Section 302 read with 120-B IPC, Section 307 read with 120-
B IPC, Section 124-A read with 120-B IPC, Section 438 IPC
read with 120-B IPC, Section 440 IPC read with 120-B IPC,
Sections 150(e), 151 & 153 of the Railways Act, 1989,
Sections 3 & 4 of the Explosive Substances Act, 1908,
Sections 3 & 4 of the Prevention of Damage to Public
Property Act, 1984 and under Sections 13, 15(1) r/w 16, 17,

64
18, 23 of the Unlawful Activities(Prevention) Act, 1967, by
adducing evidence beyond reasonable doubt?
(vi) Conclusions.
Point No. (i)
24. First of all, so far as occurrence of explosion/bomb blast in
Samjhauta Express train in the intervening night of 18/19.02.2007 is
concerned, there is no dispute about the same and no doubt can be
entertained about the same as the prosecution has adduced enough
evidence to that effect. Even though accused have denied any knowledge
of the occurrence of 18/19.02.2007, yet prosecution has brought on record
more than sufficient evidence to establish said occurrence in which many
innocent persons lost their lives and many others suffered injuries, simple
and grievous. In this regard, prosecution has examined a large number of
witnesses. The criminal law was set into motion on the information of
PW-2 Ranjit Singh, the then PP Incharge who had sent a telephonic
message with regard to occurrence to SHO, P.S. GRP, Karnal, resulting
into initial registration of FIR No. 28 dated 19.02.2007 Ex.PW1/2 at P.S.
GRP, Karnal. PW2 has deposed that in February 2007 he was posted as
Incharge PP GRP Panipat and at that time, he was SI and on the
intervening night of 18/19.2.2007 he was on duty at PP GRP Panipat and
at about 1.00 a.m. on the intervening night of 18/19.02.2007 he received a
memo Ex.PW2/1 from Station Master, Railway Station, Panipat through a
messenger and received the information that bogie of Samjhauta train no.
4001 caught fire between Panipat and Diwana railway station. That on

65
receipt of said memo, he informed the higher officers, fire brigade,
hospital, ambulance etc. and registered the said information in DDR
register maintained in their PP GRP, Panipat. The entry at serial No. 31
dated 19.02.2007 Ex.PW2/2 was recorded to this effect and thereafter he
alongwith other police official reached at the spot i.e. near village Siwah
which falls in between railway station Diwana and Panipat and there he
found that two coaches of the train, which caught fire, were already
separated by the railway officials from the rest of the coaches before their
arrival. In the meantime, ambulance and fire brigade also reached at the
spot. The injured were evacuated and sent to the hospital. Fire brigade
extinguished the fire of the coaches and thereafter, the dead bodies were
retrieved from the coaches with the help of the doctors and employees. He
had sent telephonic message with regard to the occurrence to SHO
P.S.GRP Karnal and the FIR Ex.PW1/2 was registered. He stated that the
photocopy of the said FIR in the record caseis Ex.PW2/3. Further stated
that as per direction of the SHO, he went to Civil Hospital Panipat for
conducting the inquest proceedings on the dead bodies. At the Civil
Hospital, Panpat, he was entrusted with the inquest proceedings of dead
bodies no.14 and 26 by Inspector Taken Raj and SI Sher Jang. He has
brought on record the inquest report Ex.PW2/5 which contains the
photograph Ex.PW2/4 of dead body no.14. Likewise he also proved the
inquest report Ex.PW2/7 which contains the photograph Ex.PW2/6 of
dead body no.26. Further stated that he was also associated in the inquest
proceedings of dead body no.4 which was conducted by ASI Surinder


66
Kumar and inquest proceedings of dead body no.48 and 66 conducted by
ASI Hori Lal. In his presence, DNA samples of the dead body no.4, 48
and 66 were taken by the doctor and memos Ex.PW2/8 to Ex.PW2/10
respectively were prepared at the spot in his presence and he witnessed
the same. He identified his signatures on the aforesaid three memos at
point A. He also identified the signature of ASI Surinder Kumar at point B
on Ex.PW2/8, also identified the signature of ASI Hori Lal at point B on
Ex.PW2/9 and Ex.PW2/10. PW-1 ASI Mahinder Singh, No.980, PS
GRP, Karnal, who is posted as M/ASI, P.S.GRP, Karnal, has brought on
record FIR book as Ex.PW1/1 and the FIR No.28 dated 19.2.2007
registered at P.S. GRP Karnal as Ex.PW1/2. He has also brought the
original daily dairy register Ex.PW1/3 of P.S. GRP Karnal for the period
from 18.1.2007 to 3.3.2007 which contains the entry DDR No. 26 dated
19.02.2007 Ex.PW1/4 pertaining to information received from ASI Ranjit
Singh, PP GRP Panipat, which was recorded in the said register. Further,
PW-195 Rajinder Singh (Retd. Inspector) has deposed that on
19.02.2007 he was posted as SHO in GRP, Karnal. ASI Ranjit Singh had
given the intimation to him that two boggies of Attari Express had caught
fire in between the Railway Station, Panipat and Railway Station,
Diwana. He immediately sent the special report to the learned Area
Magistrate, CJM, Panipat, S.P., Railways, Ambala, S.P., Panipat and also
informed other concerned officials. He along-with ASI Sahib Singh, SI
Maha Singh, HC Ram Kumar other officials of GRP reached the spot at
about 4.00 a.m. On reaching there, he noticed that two boggies of the train

67
were burning and fire brigade officials were trying to extinguish the fire.
Further stated that he also inspected the site of occurrence and prepared
rough site plan Ex.PW195/1, which is in his hand and the same bears his
signature at point A. He further deposed that on the information of
Ranjeet Singh, FIR Ex.PW1/2 was registered by him under his signatures
at Point A, in respect of the present occurrence. He had also got obtained
the photographs and videography of the spot. Further, PW-194 Sahab
Singh has deposed that on 19.02.2007 he was posted in GRP Karnal. ASI
Ranjit Singh had given the intimation with SHO Rajinder Singh that two
bogies of Attari Ex-Press had caught fire in between the Railway Station,
Panipat and Railway Station, Diwana. He along-with SHO Rajinder
Singh and other officials of GRP reached the spot at about 4.00 a.m. On
reaching there, he noticed that two bogies of the train were burning and
fire brigade officials were trying to extinguish the fire. The officials of
Civil administration, besides the villagers of the nearby, were also present
there. After SHO Rajinder Singh first made arrangements to send the
injured passengers as well as the dead-bodies to the hospital. Thereafter,
the inspection of the spot was carried out. FSL team also arrived and
carried out the inspection. The FSL officials inspected the bogie
No.19054 and 19113 and after carrying out the inspection with their
instruments and dogs squad, handed over above-said bogies to him. Anti
sabotage certificate Ex.PW194/1 of the above-said two bogies were issued
by Arvind Hooda, Assistant Director of Anti Sabotage team. Thereafter,
Rajinder Singh SHO lifted three samples of burnt (ash) from bogie

68
No.GS03431 vide Ex.PW194/2. He has seen article Ex.MO/40 to
Ex.MO/42 which are the same which were lifted vide seizure memo
Ex.PW194/2. It bears his signatures at point A and of SHO Rajinder
Singh at point B. He identified the signatures of Shri Rajinder Singh,
SHO as he has seen him signing and writing, being his subordinate
officer. Similarly, vide Ex.PW194/3, three ash samples were lifted from
one bogie No.14857. He has seen articles Ex.MO/43 to Ex.MO/45 which
are the same which were lifted vide seizure memo Ex.PW194/3.
Thereafter, Arvind Hooda, Incharge of Anti Sabotage team had disposed
of two live bombs, which were lying in the track of the train, with the help
of instruments. An attachie case was also lying and near to it, some
pieces of thermocol, cotton, oil bottles, timer, wire which was found in the
attachie case were lying. Another material lying nearby was seized vide
seizure memo Ex.PW194/4 by SHO Rajinder Singh. He has seen the
articles Ex.A to Ex.K and articles 2 to 11 which were found and seized by
Rajinder Singh, SHO from the spot. Thereafter, one attachie case lying in
bogie No.19113 of the train was taken out by the Anti Sobatage team for
its disposal and said attachie case was taken out in the open. The Anti
Sabotage team blasted the attachie containing bomb with their
instruments. Thereafter, the remnants of attachie case were handed over
by Rajinder Singh, SHO who lifted the same vide seizure memo
Ex.PW194/5. He has seen the articles Ex.MO/36 to Ex.MO/38, which are
the same which were lifted by the SHO from the spot. Thereafter, SHO
Rajinder Singh had taken into possession the residue of the attachie case

69
into his possession vide memo Ex.PW194/6, which bears his signature as
well as that of Rajinder Singh at point B which he identified. He has seen
the article Ex.MO/49 which is the same which was lifted from the spot.
Thereafter, SHO Rajinder Singh had taken into possession the caps of the
bottles, which were affixed with M-seal, from bogie No.GS-03431, vide
seizure memo Ex.PW194/7, which bears his signature at point A and that
of Rajinder Singh at point B which he identified. He has seen the article
Ex.MO/39 which is the same which was lifted by Shri Rajinder Singh, the
burnt material from the bogies beneath the bogie No.03431 and 14857
vide seizure memo Ex.PW194/8 which bears his signature at point A and
that of Rajinder Singh at point B which he identified. He has seen the
article Ex.MO/49 which is the same which was lifted by Rajinder Singh
the plastic bottles, M-seal etc. vide seizure memo Ex.PW194/9. He has
seen the articles, i.e. 13 bottles, which are the same which were lifted vide
seizure memo Ex.PW194/9. The said bottles are collectively marked as
Ex. Article PW194/9-A which bears his signature at point A and that of
Rajinder Singh at point B which he identified. On 20.02.2007 he joined
the investigation with Gurdeep Singh Inspector CIA, who had taken into
possession one burnt pistol 9 mm along-with burnt magazine and burnt
cartridges from bogie No.14857 vide seizure memo Ex.PW194/10 which
bears his signature at point A as well as that of Shri Gurdeep Singh
Inspector CIA at point B, which he identified. He has seen the articles
Ex.MO/38 i.e. burnt pistol along-with burnt cartridges and the magazine
which were seized vide seizure memo. On the same day i.e. 20.02.2007

70
Inspector Gurdeep Singh of CIA had taken into possession some currency
notes Indian and Pakistani in denomination and taken into possession
from the bogie No.03431 and 14857 and were taken into possession vide
seizure memo Ex.PW194/11, which bears his signature at point A as well
as that of Shri Gurdeep Singh Inspector CIA at point B, which he
identified. All the currency notes are collectively marked as
Ex.PW194/11-A. Further, PW-196 Gurdeep Singh, Retd. Inspector
has deposed that on the night of 18/19.02.2007 he was posted as
Inspector,CIA, GRP Ambala Cantt. At about 1.30 a.m., on 19.02.2007
night MHC CIA informed him that he had received telephonic
information from the control room of the office of S.P., GRP at Ambala
Cantt. that a running train i.e. Attari Express No. 4001 UP, caught fire in
the coaches between the Panipat Railway station and Diwana and many
casualties had taken place and also informed that he should reach the spot
with force. On receipt of this information, he alongwith his staff left the
CIA office after recording their departure in the daily diary register at
serial No.21. They reached the spot at about 4.30/5.00 a.m. and he found
that many police officers, local administration officer, railway authorities,
doctors, ambulances and their staff, HAP, RPF, experts from the security
agencies etc. as well as FSL, Madhuban and other public persons, were
present there. Two coaches of the train bearing No. 14857 and 03431 were
burnt. The injured and the dead bodies were being shifted to civil
hospital, Panipat by Rajinder Singh, SHO, GRP, Karnal, with the help of
other police officials, doctors and public. At the spot, he saw that experts

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of the bomb disposal squad were handling the attachie case which was
lying near the track of the train and the another attachie which they had
lifted from the train at a distance and was blasted by the experts.
Thereafter, he went to the civil hospital, Panipat and helped the injured
and other police officials and assisted the other police officials in the
investigation. Special investigation team was constituted under the
supervision of Shri R.C. Mishra. He further deposed that on 20.02.2007,
vide recovery memo, Ex.PW194/10, he had taken into possession one
pistol 9 mm alongwith burnt magazine and burnt cartridges and burnt
walky talky set from bogie No. 14857 and the same bears his signatures at
Point B and that of ASI Sahib Singh at Point A. He has seen the articles
Ex.MO/38 i.e. burnt pistol along-with burnt cartridges and the magazine
which were seized vide seizure memo. On the same day i.e. 20.02.2007,
he had taken into possession some currency notes Indian and Pakistani in
denomination and taken into possession from the bogie No.03431 and
14857 and were taken into possession vide seizure memo Ex.PW194/11,
which bears his signature at point B as well as that of ASI Sahib Singh at
point A, which he identified. All the currency notes are collectively
marked as Ex.PW194/11-A. Further stated that on 24.02.2007, vide
seizure memo, Ex.PW196/1, he had taken into possession some pieces of
iron pipe (Splinter), two iron sheets etc. in all 19 pieces of such articles.
Said memo bears his signatures at Point A and that of SI Mehtab Singh
and ASI Rakam Singh at Point B and C respectively. Rough site plan in
respect of aforesaid recovery was prepared by him at the spot and the

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same is Ex.PW196/2, which bears his signature at point A. Vide seizure
memo dated 24.02.2007 Ex.PW196/3, he took into possession plastic
pieces of suit cases from boggie No. 19113 which was standing on the
track at No. 4 towards Panipat Side. Said pieces were 11 in number and
appeared to be live suit case bomb IED No.1. Rough site plan
Ex.PW196/4 of the aforesaid recovery was prepared by him at the spot
and the same bears his signature at point A.Vide seizure memo dated
24.02.2007 Ex.PW196/5, he took into possession splinters (small pieces
of iron) and broken luggage carrier from coach No. GS03431. Rough site
plan, Ex.PW196/6 of the aforesaid recovery was prepared by him at the
spot and the same bears his signature at point A. Vide seizure memo dated
24.02.2007 Ex.PW196/7, he took into possession two empty burnt
cartridges 9 mm and one round from the debris of the coach No.
GS14857, which was lying on the east side of the coach. Rough site plan,
Ex.PW196/8 of the aforesaid recovery was prepared by him at the spot
and the same bears his signature at point A. He has seen Ex.MO-49, MO-
50, MO-51, MO-52, MO-38, MO-53, MO-194/11A and stated that said
articles were collected by him during investigation in connection with the
above said seizure memos. Further, PW-86 ASI Suresh Kumar has
deposed that he was posted as HC in GRP Police station Sonepat and
during the month of February 2007, he was on leave on 18.02.2007 and
was present in his native village Siwah near Panipat and his house is
situated at a distance of about 150 yards from the railway track where the
present occurrence took place. That on 18.02.2007, at about 11.45 p.m.,


73
he was present in his house and heard cries of people, on which he came
out and found that a train was on fire and he immediately rushed to that
spot. On reaching there, he found that the train was on fire and thus he
tried to save the passengers who were crying for help while standing near
the doors and also tried to put off the fire. After that he came back to his
house to change clothes as he was wearing only his undergarments.
During this, he received a call from the Station Master that somebody is
throwing out something from the train. On this, he rushed back and found
that three bogies of the train were already detached from the train on fire
and further found that one person was sitting in a bogie and was having a
water bottle and snacks and when he asked him to board down from the
train, he stated that he will not come out. During this, he also found that
one broken briefcase was lying on the track and on checking, it was found
that it was containing some chemicals with a time clock. Being satisfied
that it can be a time bomb, he closed the suit case and informed the station
authorities that no train should be allowed to pass that place. After this, he
entered into one of the bogies where the said person was sitting and
confronted him about another suitcase lying near him and he alleged that
it belonged to him, but again said that the said suitcase was not of him,
but another suit case lying near to him belonged to him. That person was
under the influence of liquor and he asked him to talk in English. By that
time, GRP police reached there and he handed over that person alongwith
his belongings to the police. During his talks with that person, he came to
know that he was disclosing his name as Usmaan Ali and he was aged

74
about 60 years. After reaching of the police party, the briefcase lying in
the railway track was got blasted by the police, after taking it to away
from that place by bomb squad and the other suitcase was taken along by
the police. Thereafter, he left that place and he can identify that suitcase if
shown to me. The witness identified the broken briefcase Ex.MO-1 of
dark grey colour and stated that it is the same briefcase which was seen by
him at the spot and upper portion of the briefcase was lying inside the
train near to Usmaan, whereas the other half was lying on the railway
track having bomb like things fitted in the same with the help of
thermocol, which he has seen. This witness further stated that he had also
seen 8-10 plastic bottles lying scattered on the railway track, which were
intact and having some liquid in the same. The same were also taken into
possession by the police but no writing was done in his presence in this
regard. This witness also identified the 13 bottles Ex.MO2 to Ex.MO14
and stated that these are the same bottles which were lying at the railway
track. Further, PW-92 ASI Suresh Kumar deposed by way of tendering
affidavit Ex.PW92/A, thereby, inter-alia, stating that on 19.02.2007 he
was posted as MHC, PP, GRP, Panipat and that on 19.02.2007 SI Ranjit
Singh, SHO, P.S. GRP, Karnal deposited case property i.e. sealed
Pulandas with him in sealed condition containing ashes of burnt coaches
of the train, broken suit case, thermocol sheet, pieces of cotton, battery, 13
bottles, two covers of the size of suitcase out of which one was of blue
colour and other one of grey colour, Pulanda containing remnants of
suitcase after getting the same blasted including iron pipe metallic part

75
frame etc. Further stated that on 20.02.2007 Inspector Gurdeep Singh
deposited with him several articles/case property i.e. Pulandas containing
burnt 9 MM pistol and cartridges, burnt mobile Nokia Model, another
mobile Sony Ericsson Model, some currency of India and Pak and other
articles etc. Further stated that on 22.02.2017 SI Maha Singh deposited
Jars containing bones of dead bodies for DNA tests, as mentioned in detail
in his affidavit. Further stated that on 23.02.2007 SI Sultan Singh
deposited Jars containing hair, sternum, skin tissue pertaining to deceased
Harish Mohd. Further stated that on 24.02.2007 SI Rajender Singh
further deposited Pulanda of pieces of Mseal cark and Mseal, plastic
bottles etc. Further stated that on 24.02.2007 Inspector Gurdeep Singh
further deposited various articles i.e. splinters of iron, pieces of broken
plastic suitcase etc. in Pulandas bearing seal impression “GS”. Further
stated that on 03.03.2007 case property pertaining to this case i.e. 19
plastic Jars etc were handed over to ASI Ranjit Singh for depositing the
same in CDFD, Hyderabad vide RC No. 8 dated 03.03.2007 and said
official handed over him the receipt after depositing the same at
Hyderabad. That on 27.03.2007, 44 plastic jars pertaining to this case
were handed over to ASI Ranjit Singh vide RC No. 13 dated 27.03.2017
for depositing the same in CDFD, Hyderabad and said official handed
over him the receipt after depositing the same at Hyderabad. Further
stated that on 09.04.2007 case property including broken suitcase,
explosive mixture etc. were handed over to HC Ved Parkash vide RC No.
14 dated 09.04.2007 for depositing the same at FSL, Madhuban and said

76
official handed over the receipt after depositing the same at FSL,
Madhuban. Further stated that on 08.02.2008, HC Suresh Kumar
deposited case property with him, which he brought from FSL, Madhuban
and the detail of which is mentioned in his affidavit. Likewise, he has
stated about depositing of various articles of case property of this case
with NIA camp office, Panchkula by sending the same through ASI Jeet
Singh vide RC No. 171 dated 25.11.2010 and further depositing of
various articles of case property with NIA camp office, Panchkula through
ASI Baljit Singh vide RC No. 91 dated 13.06.2011.
25. Further, prosecution has also examined concerned railway
staff who have duly proved that Samjhauta Express train started its
journey from Platform No. 18 of Old Delhi Railway Station at 22.50
hours on 18.02.2007 and when it was crossing railway station Diwana,
then smell of burning was felt and accordingly brakes were applied and
train was stopped as it had caught fire and train stopped at Gate No. 49
between Diwana and Panipat railway stations. In this regard, prosecution
has examined a number of witnesses. PW-3 Ramdhan Singh, Train
Guard, Northern Railway, Delhi has deposed that in February 2007 he
was posted as Guard in Northern Railway at Delhi. Station Master used to
make roster with regard to allocation to their duties in the train. The
Samjhauta Express Train was already running from Delhi to Atari before
his joining in the year 2006, but he did not know when it was started for
the first time. On 18.2.2007 he was on duty at Delhi Railway Station and
was deputed as guard with train no. 4001 named as ‘Attari Express’ which

77
starts its journey from Delhi to Attari. The train on that day started at
22:50 hours. Kiran Diwan was driver of the said train with his headquarter
at Amritsar. Sanjay Kumar was the assistant driver with the train on that
day. Three ticket examiners staff were also on duty on that train. The train
was already placed at platform no. 18, which is now renamed as platform
no.1 at Delhi Railway station, on 18.02.2007, before his arrival to join
duty. His duty was allotted to him half an hour before the departure of the
train. In the year 2007, at that time, there was no security check of the
passenger or anybody else before boarding the train and even on
18.2.2007 the same procedure was adopted and there was no security
check of the passenger or anybody else before boarding the train. The
Duty Roster was always in writing and prepared one day in advance. He
brought on record attested copy of duty roster dated 18.2.2007 as
Ex.PW3/1and certificate forwarding letter as Ex.PW3/2 which is in hand
of Station Master Rajiv Khanna and he identified his writing and
signatures at point A in Ex.PW3/2. Further stated that the train departed
from Delhi at right time i.e. 22:50 hours. The speed of the train was 110
KMPH, though it was running at the speed of 105 KMPH when it was
crossing railway station Diwana and was heading towards Panipat, he
exchanged the proceeded signal with station master Diwana. He felt smell
of burning. He saw from his Guard brake van from both the sides and
noticed the flames from the coaches of the train. It was about 23:55 hours.
He applied pressure brake from the guard brake van and also spoke to
driver of the train through walkie talkie and informed that the train should

78
be stopped as it caught fire. The train stopped at railway crossing gate no.
49 between Diwana and Panipat railway stations. He conducted quick
survey of the train and found fire in two coaches of the train i.e. 4 th and 5th
coach from the guard van. Then he intimated the control room at New
Delhi through ECP (Electric portable set for communication) and also
intimated the station master of Diwana railway through telephone
installed at crossing gate for assistance. He gave protection to the train by
putting detonator at 600 meter and 1200 meter on the track to give
indication of warning to other trains. He separated the burning coaches
from the rest of train. He used fire extinguishers which were in guard van
with him and four extinguishers were also used by the driver in order to
extinguish fire on the burning coaches and in that process, his both hands
were burnt. He with help of TTs extended help to the injured persons and
got them admitted in the hospital. Thereafter, railways officer and civil
authorities of the area also reached at the spot and on their direction, the
train with 11 coaches, which were ahead of the burning coaches, were
departed to Ambala at about 02:50 hours on 19.2.2007. All the passengers
who were in the last three coaches were also shifted to first 11 coaches
before the train proceeded for Ambala. The burnt coaches and three other
coaches behind it were left at the spot/site. He also proceeded with the
train to Ambala. The train was driven by the drivers who were already on
duty. Further,PW-4 Shaukat Ali, Travelling Ticket Inspector has
deposed thaton 18.2.2007 he was assigned the duty on Attari Express
alongwith other two TTEs namely Rajesh Kumar and Lalit Kumar. He

79
was deputed for the first time. There were four reserved coaches in the
train and he was put on duty on two coaches S-3 and S-4 whereas
remaining two were put on duty on other two coaches. There were some
unreserved coaches in the train also but they were not on duty on those
coaches. There was no restriction for movement at the platform. The
coolies and others such like relatives of the passenger could go to the
platform. GRP and RPF used to check the luggage etc. at the entrances of
the Railway Station. Reservation chart of the train was given to them by
current reservation office. Attari Express started running from Delhi at
about 22:50 hours and after about one hour the train stopped, he got down
from the train and saw there was smoke and fire in the backside of the
train and there was commotion also. He did not know as to how the fire
had broken in the train. He alongwith guard of the train gave first aid to
some of the minor injured passengers. Fire brigade and ambulance also
reached there after about one hour. Police removed the dead bodies from
the train. The train left that place at 02:50 hours and halted at railway
station, Ambala Cantt. The head count of the passengers was done at
Railway station Ambala and thereafter, the train started and stopped at
Chharhatha. Thereafter, train stopped at Railway station Attari and they
handed over the reservation charts to Assistant Station Master (ASM).
Further, PW-6 Vinod Kumar Gupta, Station Master has deposed that
in February 2007 he was posted as Assistant Station Master at Railway
Station Diwana. On 18.2.2007 he was on duty as ASM on railway station
Diwana from 20:00 hours to 24:00 hours till 19.2.2007 upto 08:00 hours.

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At about 23:44 hours, ASM Samalakha had given line clean signal for
Samjautha Express train no.4001 Up and at about 23:53 hours, the
abovesaid train crossed railway station Diwana. He had taken the line
clearance signal from Panipat and in turn exchanged the alright signal
with the driver of the said train. The train was running at the speed of
about 108 KMPH. He was standing on the platform outside his office
when he exchanged signal with the driver of the train. When 9-10 coaches
of the train had passed him and from the last third coach, he noticed
flames of fire in one of the coach. He immediately shown red signal to the
guard of the train and rushed towards his office. By the red signal, he gave
indication to the guard to stop the train. From his office, from a Very High
Frequency walkies talkie set, he talked with the driver and informed him
about the fire in the train and to stop the train. He also gave the
instructions to the gateman at the crossing no. 50 towards Panipat to
change the signal from green to red to stop the train. Immediately
thereafter he received the information from the gateman of level crossing
of gate no. 47 on the telephone that he had heard two sounds of explosion
when the train passed through the gate level of crossing no.47. He also
informed the station master Panipat about the incident and instructed him
not to give clearance to the said train to cross the station. He also sent
information to the Instruction Control room at New Delhi of their
department. He also received a telephone call from railway crossing no.49
which was made by the guard of the train who had requested for
providing the first aid, ambulances and fire brigades at the spot.

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Thereafter, he gave instructions to his staff as well as ASM off duty and
Superintendent Joseph Ikka to reach the place of occurrence. Further,
PW-7 Pawan Kumar, Pointsman has deposed that in February 2007 he
was posted as gateman at the railway crossing of gate no.47C which falls
under the jurisdiction of Diwana railway station. On 18.2.2007 he was on
duty at gate no.47C from 20:00 hours till 08:00 on 19.2.2007. The
Samjautha train bearing no.4001 Up, Attari Express crossed gate no.47-C
at about 23:52 hours. He was showing the green signal to the train at that
time. The train crossed the railway crossing in front of him and he heard
sounds of blast (Dhamaka). He noticed the flames in the coach of the train
from far away place, that may be 100-200 meters. The speed of the train
at that time could be around 100 KMPH. Thereafter, he informed the
Asstt. Station Master, Diwana from his telephone from the gate that he
had heard two sounds of Dhamaka in the train. He remained at his duty on
the railway gate crossing no.47C. Further, PW-8 Parveen Kumar,
Pointsman has deposed that on 18.2.2007 he was on duty as gatesman at
Railway crossing no.48 C which falls in the jurisdiction of railway station
Diwana. His duty was from 20:00 hours to 08:00 hours. The Samjatha
train no.4001 Up crossed the gate no.48-C at about 23:52 hours. When the
train was crossing, he noticed the fire in the 4 th or 5th coach from behind.
On noticing the fire in the train, he immediately gave red signal to the
driver of the train. The train passed over the gate no.48-C and thereafter,
he informed the Asstt.Station Master, Diwana from telephone about the
fire in the train. In turn, ASM told him that he knows about the same.

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Further, PW-9 Phool Kumar, Senior Section Engineer has deposed
that on 17.2.2007 he was posted as such at Railway Station, Old Delhi.
His duty is related to the mechanical maintenance and cleaning of the rail
coaches of the train. On that day he was on duty from 22:00 hours to
06:00 hours till 18.2.2007. On that day, they had mechanically inspected
and carried out the cleaning of the coaches of the train bearing no. 4001,
Attari Express at Washing line no.20. After carrying out the mechanical
inspection and cleaning work of the coaches of the train, the coaches were
locked and the train alongwith coaches were handed over to their traffic
staff posted at railway station on 18.2.2007 at 06:00 hours. During the
inspection and cleaning of the train, no objectionable article was seen in
the train. Further, PW-10 Ashok Kumar, Gateman has deposed that on
18.2.2007 he was on duty from 20:00 hours to 08:00 hours on the next
day at Gate No. 49 which falls under railway station Diwana at about 12
O'clock, Samjhauta Express train no. 4001 Up came slowly and halted at
gate no. 49. He saw two coaches of train on fire. Said coaches halted in
front of gate crossing no. 49. He immediately informed Asstt. Station
Master namely, Vinod Kumar Gupta, of Railway Station Diwana about
the fire in two coaches. Thereafter, Guard of the train approached him and
asked him to bring fire extinguisher which he had brought from the
guardroom of the train. Thereafter, he came to his gate for duty.
Thereafter, three-four villagers brought the bucket. He also carried bucket
from his room. They tried to extinguish the fire by throwing water after
taking water from nearby pond but could not succeed. Further,

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PW11Babu Lal Meena, Guard has deposed that on 18.2.2007 he was
posted as Pointsman at railway station Diwana from 20:00 hours to 08:00
hours on the next day. The duty of Pointsman are to inspect the train, to
change the track of train and to give signal to the train to proceed further.
The Samjauta train no.4001 was crossed from Diwana station at 23:53
hours. He was on the offsite of the train at that time and was inspecting
the train while the train was passing the railway station Diwana and a
signal of through and through was given. He noticed that there was fire in
the train in about 8-9 coaches behind the engine. He immediately shouted
and tried to get the train stopped by showing red light signal carried by
him at that time. He also immediately informed the Asstt. Station Master
Diwana about the fire. The train stopped at gate no.49 at the distance of 2
Kms.from where he was standing. Thereafter, he called Station
Superintendent and they proceeded on foot towards gate no.49 where the
train was halted. On reaching there, he saw two coached of train on fire.
ASM had made a call through telephone to Suresh Kumar of GRP and
informed him to reach the place. Suresh Kumar of GRP reached there.
The villagers of near villages also reached the place of occurrence. They
detached the coaches of the train from the burning coaches from both the
sides. The driver of the train was also called and asked to give jerk to the
coaches of the train which were detached from the remaining train
towards backward, so that burnt coaches could be separated from the
other coaches for their safety. While he was passing the track through
Diwana end to Panipat end at the place of occurrence, he noticed that a


84
suitcase was lying on the railway track. It was at the distance of 2-4 feet
away from railway lines. He noticed the suitcase while he was coming
back towards Panipat after getting the detached coaches stopped from the
burning coaches. He noticed 14-15 bottles of one litre each containing
some white material as appeared to be of goat milk. When he pressed the
bottles, some liquid came out and on smelling the same, foul smell of
chemical was felt. He immediately informed Suresh Kumar of GRP to
look into the material. Suresh Kumar asked him to run away from that
place as the same appeared to be bomb and he ran away from that place,
cordoned off the area and stopped the villagers and people from going
towards that side. Further, PW-17 Sanjay Kumar, Loco-pilot
(Passenger) has deposed that on 18.2.2007 he was posted as Assistant
Driver at Loco Shed, Amritsar. He was on duty on train no.4001 Attari
Express alongwith driver Kiran Diwan. Being Assistant Driver, his duty
was to intimate about signal, informing about caution, blow the horn near
gate crossing and to carry out the instructions of the driver. On that day,
the train started from Old Delhi Railway Station at 22:50 hours. When the
train was crossing Diwana Railway Station, driver received information
on walkie talkie that the train should be stopped as the coaches caught
fired. The driver immediately applied the brakes and stopped the train.
The train stopped after passing Diwana Railway Station near KM no.
82/5. They put on the flasher light and secured the engine of the train.
They took fire extinguishers and rushed towards the burning coaches.
They operated the extinguishers and tried to control the fire. The driver

85
told him to disconnect the couplings to separate the burning coaches with
the help of guard R.D.Singh. As per instructions of driver, they
disconnected the coaches under fire. Thereafter, they again started the
train and started their journey at 02.50 hours to reach their destination.
Then train reached at Ambala and his duty was over and he left for his
house. Further, PW-20 B.C. Dhawan, Assistant Divisional
Mechanical Engineer (Retd.) has deposed that in the month of February
2007 he was posted as Senior Crew Controller of the Loco Lobby, Delhi.
His duties were to depute the driver on the train and to provide and
supervisor the drivers and other staff of division and provide facility for
proper rest. On 18.2.2007 as per roaster received from Amritsar, Kiran
Diwan Driver and Sanjay Kumar Assistant Driver were deputed on duty
on Attari Express. Further, PW-21 Rajeev Khanna, Deputy Station
Superintendent has deposed that in February 2007 he was posted as
Station Master (Planning), Old Delhi railway station. On 18.2.2007 he
was not on duty as it was Sunday and it was his rest day. The duty roster
used to be maintained one day in advance. On 18.2.2007, R.D.Singh was
deputed as guard in train no. 4001 UP, Attari Express. The register is
being maintained with regard to duties of the staff/guard. He brought the
guard duty roster register and verified the entry with regard to duty of
R.D.Singh at serial no.19 on Ex.PW3/1. Further stated that they also used
to maintain the register pertaining to detention of trains at Old Delhi
Railway Station wherein the entry with regard to all the trains are being
maintained. The departure of train 4001 from Old Delhi railway station

86
was duly entered in the detention register. In addition to these, the
prosecution has also examined a number of other witnesses who have
stated about the issuing of tickets etc.
26. Further, prosecution has examined many other witnesses,
who have testified about respective inquest proceedings in detail, brought
on record in their testimonies. PW-53 Jai Singh, retired ASI has
deposed that in February 2007 he was posted as ASI in police station
GRP, Sonepat. On 19.02.2007, on receiving the information of blast in
Samjhauta Express No. 4001, SHO deputed all the police officials of
police station to reach at civil hospital, Panipat where the dead body were
removed to conduct investigations and accordingly as per the directions of
SHO, he reached civil hospital, Panipat and was asked to conduct inquest
proceedings relating to two dead bodies. Accordingly, on 19.02.2007 he
conducted the inquest proceedings as detailed in inquest report
Ex.PW53/A relating to dead body marked as DB-34 on the inquest report
and Ex.PW53/B relating to dead body marked as DB-9 on the inquest
report of both dead bodies, being unknown. He further deposed that the
first dead body as referred in report Ex.PW53/A was of Ashima Shahjadi,
aged about 7-8 years as identified by Rana Shoukat and Ruksana Akhtar
wife of Rana Shoukat, who were also travelling in the same train, being
her parents on 23.02.2007 and their passport size photographs were also
affixed on the inquest report. The second dead body as referred in report
Ex.PW53/B was of Yusuf Naseem, aged 40 years as identified by Habib
Bhai and Abdul Kadim on 22.02.2007 and their passport size photographs

87
were also affixed on the inquest report. Photographs of the dead bodies
were also taken by the photographer summoned at the spot. After these
proceedings, both the dead bodies were subjectedto postmortem
examination. After collecting postmortem examination reports, the dead
bodies were handed over to their dependents as per the receipts
Ex.PW53/A-1 and Ex.PW53/B-1. After completing these proceedings, he
handed over the proceedings to the MHC of GRP police. Likewise, PW-
54 SI Niyaz Mohammad; PW-55 SI Pardeep Kumar No.158; PW-56 SI
Harnek Singh; PW-57 ASI Gulzar Singh; PW-58 Bir Singh, retired SI;
PW-59 Pala Singh, retired SI; PW-60 Hoshiar Singh, retired SI; PW-61
Jeet Singh, retired SI; PW-62 Surender Kumar, retired SI; PW-64 SI
Shish Ram; PW-65 SI Naresh Kumar; PW-66 ASI Dariya Singh; PW-67
ASI Satish Kumar; PW-68 ASI Satbir Singh; PW-69 SI Lakshman
Dass; PW-70 Gurnam Singh, retired SI; PW-71 SI Ramphal; PW-72 ESI
Ram Kumar; PW-73 ASI Ram Bachan; PW-74 ESI Kapoor Singh; PW-
75 ASI Subhash Chander; PW-76 ASI Tara Chand; PW-77 Hori Lal,
retired ASI; PW-78 Mahar Singh, retired SI; PW-79 Sher Jang Singh,
retired Inspector; PW-81 Ram Chander, retired SI; PW-82 Sukhbir
Singh, SI/SHO; PW-83 Snehi Raj, ASI and PW139 Inder Singh have
further testified about respective inquest proceedings in detail, brought on
record in their testimonies.
27. Still further, prosecution has examined many witnesses who
have testified about identification of dead bodies by their near
relatives/acquaintances, thereby further establishing that many persons


88
lost their lives in the occurrence dated 18/19.02.2007. PW-15 Diwan
Singh has deposed that on 18.2.2007 he was posted as outpost Incharge,
RPF, Attari. On the intervening night of 18.2.2007/19.2.2007 he received
information from HC Tarsem Lal, who was on duty in the Samjhauta
Express train on that night, about the death of Kashmir Singh. He was
also informed that the train Samjhauta Express had caught fire. On
receiving the information, he alongwith HC Parminder Kumar had gone
to Civil Hospital, Panipat where he and HC Parminder Kumar identified
the body of Kashmir Singh, ASI, RPF. He further deposed that jamatalashi
of deceased Kashmir Singh was also carried out and a gold ring, taken out
of the finger of deceased Kashmir Singh, was given to him vide memo
Ex.PW15/1. The dead body was handed over to him against receipt
Ex.PW15/2. Likewise, many witnesses i.e. PW-88 Ashraf Ali; PW-89
Afaak Hussain; PW-93 Abdul Karim Khan; PW-94 Navi Mohd. Khan;
PW-95 Idrish; PW-96 Fayyaz; PW-97 Dharam Pal Singh; PW-98 Mohd.
Rasid; PW-99 Itwari; PW-100 Mubarik; PW-101 Sharif Ahmad; PW-
102 Manish Sondhi; PW-103 Sukhdev Raj; PW-104 Nasir Ali Khan;
PW-105 Rashid; PW-112 Abdul Latif; PW-113 Abdul Kadir; PW-114
Jallaludeen Khan; PW-118 Mohd. Jawaid and PW-119 Mohd. Zikar,
have further deposed about identification dead bodies of deceased who
lost their lives in the said occurrence.
28. Further, medical evidence in the shape of testimonies of
many Medical Officers further make out that post-mortems of the
deceased persons were carried out and the cause of deaths is opined to be

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due to asphyxia due to suffocation and extensive burns which were ante-
mortem in nature or because of shock following thermal burn injuries and
sufficient to cause death in ordinary course of life. PW-26 Dr. Archna
Paliwal, Medical Officer has deposed by way of tendering affidavits
Ex.PW26/A and Ex.PW26/B in evidence and stated vide affidavit
Ex.PW26/A that on 19.02.2007, she was posted as Medical Officer at
Civil Hospital, Panipat and on that day she conducted postmortem of
unknown deceased vide PMR No. A.P/21/SPL2/19.02.2007 and the dead
body was brought by ASI Sukhbir Singh. Apart from mentioning external
appearance, it has also been stated that a jar with bones of lower limb in it
sealed with two seals were sent for DNA examination. Likewise, vide
Ex.PW26/B she has deposed that on 19.02.2007 she conducted
postmortem of another unknown deceased vide PMR No. A.P/SPL-
1/16/19.02.2007 on police request. Further stated that deceased expired
allegedly due to burns and bone was sent for DNA examination. Further
stated that cause of death, in her opinion, is asphyxia due to suffocation
due to burns which were antemortem in nature. PW-26 has proved
postmortem reports Ex.PW26/1 & Ex.PW26/2. Likewise, PW-27 Dr.
Anu Arora, Senior Medical Officer has tendered affidavits Ex.PW27/A
& Ex.PW27/B in her evidence. Vide affidavit Ex.PW27/A, she has stated
that on 19.02.2007 she was posted as Medical Officer in ESI Hospital,
Panipat and on that day, she had conducted postmortem examination of
unknown deceased female vide PMR Ex.PW27/1. Further stated that dead
body was brought by the police and bone (Sterum) was sent for DNA

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examination. This witness has further proved another PMR Ex. PW27/2
regarding conducting of postmortem of another unknown deceased
female. Further it has been stated that in both the cases the cause of death,
in her opinion, was because of shock due to excessive burns and asphyxia
which is due to suffocation and all the injuries were antemortem in nature
and were sufficient to cause death in ordinary course of life. Likewise,
PW-28 Dr. Ashwani Kumar Garg, Deputy Civil Surgeon, Panipat
has tendered affidavit Ex.PW28/A, thereby stating that on 19.02.2007 he
was posted as Medical Officer at General Hospital, Panipat and on that
day, he conducted postmortem of dead body of one Nafisa and one
unknown male child. The bodies were brought by ASI Hori Lal and HC
Ram Badian. Further stated that according to police papers, death
occurred on 19.02.2007 and left Clavicle bones were sent for DNA test.
Deep burns were present all over the body/abdominal wall. Further stated
that after conducting autopsy, he opined that cause of death was due to
shock, due to excessive burns and asphyxia due to suffocation. The burns
were antemortem in nature which were sufficient to cause death in normal
course of life. He has brought on record PMRs Ex.PW27/1 & Ex.PW27/2.
Likewise, PW-29, Dr. Alok Jain, SMO, PW-30 Dr. Dilip Singh Tanwar,
Medical Officer, PW-31 Dr. Bijender Singh, Medical Officer, PW-32 Dr.
G.L. Dhall, SMO, PW-33 Dr. Jagtar Singh, SMO, PW-34 Dr. Jai Kishore,
Dy. Civil Surgeon, Sonipat, PW-35 Dr. Lalit Kumar, SMO, PW-36 Dr.
Munish Pruthi, SMO, PW-37 Dr. R.K. Kataria, SMO, PW-38 Dr. Monika
Breta, Medical Officer, PW-40 Dr. Shashi Garg, Dy. Civil Surgeon, PW-

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41 Dr. Shiv Kumar, Medical Officer, PW-42 Dr. Rahul Diwan, PW-43
Dr. Suresh Kumar, PW-44 Dr. Yogesh Goyal, Medical Officer, PW-45 Dr.
Rekha Verma, Medical Officer, PW-46 Dr. Ritu Gupta, Medical Officer,
General Hospital, PW-47 Dr. V.K. Tyagi, Medical Officer, PW-48 Dr. S.P.
Singhal, SMO, PW-49 Dr. Rajiv Sethi, Medical Officer (Retired), PW-50
Dr. Sandeep Mehta, Medical Officer, PW-51 Dr. Ravinder Kumar,
Medical Officer and PW-52 Dr. Rajesh Kumar, Medical Officer, PW-63
Dr. Hitesh Chawla, have tendered their respective affidavits in evidence
and have stated about conducting of postmortem examination of dead
bodies, mentioning about causes of death of the deceased and brought on
record respective postmortem reports and have further stated about
conducting of medical examination of some injured persons having
varying degrees of burns on their bodies and accordingly, brought on
record MLRs of the persons so examined by them. It is also mentioned in
their respective affidavits that probable time between death and
postmortem was within 12 to 36 hours and probable time that elapsed
between injury and death was immediate/variable/spontaneous.
29. Further prosecution has also examined police officials/NIA
officials who have investigated the crime. Apart from Investigating
Officers who remained associated in the investigation of this case,
prosecution has also examined PW-152 Arvind Hooda, Assistant Director
who reached the place of occurrence on 19.02.2007 and testified that on
19.02.2007 at about 3.00 a.m., in the morning, he received a telephonic
message from control room to depute a Bomb Disposal team to report to


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SP Railways at Siwah railway crossing near Diwana Railway station in
connection with some firing incident in Samjhauta Express train and
accordingly he alongwith his team consisting of different police officials
as mentioned in his report, reached at Siwah railway crossing at about
4.00.a.m. On reaching there, Ms. Bharti Arora, S.P., GRPs was searching
bogies of the train and she asked him that the team should immediately
defuse two suit cases suspected of having some explosive device and
accordingly he alongwith his team reached at the spot where one broken
suit case was lying on the track and some plastic pet bottles filled with
some liquid were found scattered around the suit case. Similarly, another
suit case was lying in the standing position near the gate of the boggie No.
19113. Accordingly after examining both the suit cases and observing the
required procedure, both the suit cases were found containing improvised
explosive devices (IED) and accordingly, he alongwith team defused
both those devices as per the procedure mentioned in his report and after
doing the needful, all the components of the defused suit case IED No.1
and IED No.2 respectively mentioned in his report were handed over to
the Rajender Singh, SHO, GRP, Karnal with the advise to send all those
exhibits to send FSL after proper sealing and his report in this regard is
Ex.PW152/A, which contains all the details and procedure. Further PW-
154 Dr. R.K.Koshal, Assistant Director (Ballistics), FSL, Haryana,
Madhuban has deposed that on 18.02.2007 at about 01.00 a.m./2.00 a.m.,
he received information from S.P., Panipat through DSP Krishan Murari
and Director FSL, Panipat to reach Panipat, about the explosion in the

93
Samjhauta Express with a request to reach at the spot and to examine the
scene of crime and accordingly he alongwith Laxman Yadav, SSO
(Ballistics) and Rajinder Singh, SSA (Photo), reached at the spot, which
was near the railway crossing of village Shiva (Panipat) and on reaching
at the spot, it was stated by the Investigating Officer Rajinder Singh
SI/SHO GRP, Karnal that on the intervening night of 18/19.02.2007, at
about 23.53 hours, two explosions took place in two unreserved
compartments of Samjhauta Express Train No. 4001 up from Delhi to
Attari and said explosions were noticed by the gate man of railway station
Diwana and later on the Assistant Station Master of Diwana railway
station saw flames in two compartments and asked the guard and engine
driver on walky-talky for emergency stoppage of train and the train was
accordingly stopped near village Shiva (Panipat) crossing. He was also
informed that on account of that explosions, two unreserved
compartments of the train were completely burnt to ashes and some
persons were also burnt alive in two compartments, which were
compartment No. 12 and 13 from engine side and some persons were also
injured. The Investigating Officer also informed that he found two
suspected suit cases IEDs from another unreserved compartment and
accordingly he asked them to examine the spot with a view to give cause
of explosions in the two unreserved compartments and type of explosive
devices used and nature of explosives used in the devices. Accordingly,
he alongwith his team examined the spot and it was found that the
compartments were still on flames, but since the first concern was IEDs

94
were found at the spot by the police, they examined the spot and found
that some broken pieces of a suitcase, alleged to be an IED, was found
scattered at the railway track and some bottles were also scattered and on
examination, it was found that all those articles were part of the IED and
in addition to this, one complete suit-case having an IED fitted with a
glowing light at the handle of the suit case was shown by the police, lying
by the side of the railway track near the intact compartments.
Accordingly, first of all they tried to defuse that live suit-case IED, lying
near the intact compartments, but it got fired during this process and then
it was separated. Thereafter, they examined the burnt compartments as
the fire was over by that time and photographs of the burnt compartments
were taken and they were also examined from inside. Thereafter, those
two burnt compartments were shifted to railway station Diwana to clear
the main track. Thereafter, they examined the compartments at Diwana
railway station one by one by clearing all the burnt items lying in the
compartments. Collected items were handed over to the Investigating
Officer. The point of explosions in both the compartments were searched
and identified and IED pieces were recovered (Cast iron pieces of pipe
bombs) from the both the spots. After that, dead bodies were also
examined in Civil Hospital, Panipat and photographs of the same were
also taken. Investigating officer was advised to send all the collected
items of the devices and burnt articles alongwith material handed over by
the medical officers to FSL, Madhuban for further examination and
report. He further deposed that on the basis of inference based on the


95
physical examination, he prepared the scene of crime report Ex.PW154/A
and handed over the same to the police and it contains all the detailed
observations about the scene of crime. The report also contains sketches
of two compartments Ex.PW154/B-1 and Ex.PW154/B-2 which were also
prepared by him and part of his report. Similarly, the sketch of the third
intact compartment is Ex.PW154/B-3 and photographs taken at the spot
and developed in the laboratory are also part of the report and the same
are Ex.PW154/C-1 to Ex.PW154/C-18. Thereafter, when all the material
articles were received in the laboratory on 09.04.2007 vide forwarding
letter No. 17609 dated 07.04.2007 (30 sealed parcels despatched vide RC
No.14 dated 09.04.2007 through HC Ved Parkash No. 618 and on
examination, seals on the all the sealed parcels were found intact and were
similar to the specimen seal impression sent alongwith the forwarding
letter. Accordingly, all the material articles were examined thoroughly in
Ballistic division and on the basis of various tests and other reports of
chemical examination division, he submitted his detailed report
Ex.PW154/D. Further, FLS report Ex.PA/FSL-5 which has been tendered
into evidence and the Report(Opinion) Ex. PW154/D, further suggest use
of Cyclonite(RDX), P.E.T.N, Trinitrotoluene(TNT), Sulphur and
Potassium Chlorate, HSD, radicals of nitrite, chlorate and sulphate etc. in
causing explosion in Samjhauta Express train on the fateful night, as
traces of these explosives are opined to be found in the various
materials/articles collected from the place of occurence. Thus, it is duly
made out that in the intervening night of 18/19.02.2007, bogies of


96
Samjhauta Express Train caught fire and got burnt on account of
explosion/blast of explosives planted in the train, resulting into death of a
large number of persons and injuries to many others.
30. Thus, the evidence on record makes it crystal clear that bomb
explosion/blast occurred in two coaches/bogies of Samjhauta Express
train( Train No. 4001 UP Attari Express) in the intervening night of
18/19.02.2007, resulting into death of large number of persons and
injuries to many others who were travelling in the said train and point no.
(i) is determined in favour of the prosecution.
Points No. (ii) to (v)
31. All the above-noted points are taken up together so as to avoid
repetition of facts and evidence.
32. In order to establish guilt of the accused persons,
prosecution/NIA has mainly relied upon retracted confession of accused
Nabha Kumar Sarkar @ Swami Aseemanand and disclosure statements of
accused persons. First of all, it may be noted that accused Aseemanand
made a statement under Section 164 Cr.P.C. on 15.01.2011 before the
court of learned Chief Judicial Magistrate, Panchkula and said statement
has been brought on record as Ex.PW202/5. Further it is also a matter of
record that on 13.01.2011 accused Aseemanand was remanded to judicial
custody till 27.01.2011 by the designated Special NIA Court at Panchkula
and thereafter he was produced in person before the said court only on
12.05.2011 as he was taken in police remand/ sent to judicial remand in
some other cases and when accused Aseemanand appeared before the

97
designated Special NIA Court at Panchkula on 12.05.2011, he moved
application Ex.PW224/D11, thereby informing the court that during the
police remand, Investigating Officers tortured him physically and
mentally and by threatening of dire consequences, compelled him to give
statement before ld. Magistrate as per their dictation, in order to achieve
some ulterior motives and had been preventing him from giving the true
facts to the Ld magistrate about the treatment being given to him by the
investigating agencies , meaning thereby that accused Asimanand made
retraction from his statement made on 15.01.2011. It may also be
mentioned here that as per the defence, accused Asimanand also moved
application dated 08.04.2011 Mark PW224/DA before Ld.CJM Ajmer in
order tomake retraction from his statement allegedly made under coercion
and the same was ordered to be forwarded to this court through concerned
jail authority and the application was received in this court on 20.04.2011.
33. Therefore, first of all, it would be expedient to discuss briefly
the legal principles governing appreciation of evidence pertaining to
retracted confession. The Hon'ble Supreme Court in Subramania
Goundan Vs. State of Madras AIR 1958 SC 66 has held that in case
of retracted confession, the court has to take into consideration not only
the reasons given for making the confession or retracting it but the
attending facts and circumstances surrounding the same. The Hon'ble
Court has further observed that the view taken by that Court on more
occasions than one is that as a matter of prudence and caution which has
sanctified itself into a rule of law, a retracted confession cannot be made


98
solely the basis of conviction unless the same is corroborated, but it does
not necessarily mean that each and every circumstance mentioned in the
confession regarding the complicity of the accused must be separately and
independently corroborated nor is it essential that corroboration must
come from facts and circumstances discovered after the confession was
made. It would be sufficient that if the general trend of the confession is
substantiated by some evidence which would tally with what is contained
in the confession. Further, the Hon'ble Supreme Court in Parmananda
Pegu Vs. State of Assam (2004) 7 SCC 779 has held that retracted
confession cannot be made solely basis of conviction unless the same is
corroborated and it is enough that there is broad corroboration in
conformity with the general trend of the confession. Confession though
voluntarily made by accused may not be wholly or partly true and truth of
confession should be tested by the Court though voluntary confession can
be regarded as presumptive evidence of its truth. The Hon'ble Court
further held that before acting on the confession, the court must be
satisfied that the procedural requirements laid down in sub sections (2) to
(4) of Section 164 Cr.P.C. are complied with as these are salutary
safeguards to ensure that confession is made voluntarily by the accused
after being apprised of the implications of making such confession.
Further, Hon'ble Supreme Court in Shankar @ Gauri Shankar Vs.
State of Tamil Nadu 1994 (2) RCR (Criminal) 731, while referring to
the principles governing the evidentiary value of retracted confession, has
observed that it must be in express words by the accused in a criminal


99
case of the truth of the guilt fact charged or some essential part of it and a
statement that contains a self exculpatory matter cannot amount to
confession. The confession should be voluntary one, that means not
caused by the inducement, threat or promise and whether a confession is
voluntary or not is essentially a question of fact and in case when a
confession is retracted, the courts have held that apart from the statement
being voluntary, it should be true and should receive sufficient
corroboration in material particulars by independent evidence. The rule of
prudence namely requiring corroboration does not mean that each and
every circumstance mentioned in the confession with regard to the
participation of the accused in the crime must be separately and
independently corroborated. It is sufficient if there is corroboration of the
important incidents. Further, Hon'ble Supreme Court in P. Kalanjoy
Singh Vs. State of Manipur AIR 1956 SC 9 has held that
corroboration of confessional statement is` necessary if retracted. Further,
Hon'ble Supreme Court in Shankaria Vs. State of Rajasthan AIR 1978
SC 1248 has held that in case prosecution demands conviction of the
accused primarily on the basis of confession recorded u/s 164, the court
must apply double tests, i.e., (i) whether the confession was perfectly
voluntary, and (ii) if so, whether it is true and trustworthy. Satisfaction of
the first test is sine qua non for its admissibility in evidence. If the
confession appears to be probable catalouge of events and naturally fits in
with the rest of the evidence and the surrounding circumstances, it may be
taken to have satisfied the second test. Further, Hon'ble Supreme Court in

100
Muthuswami Vs. State of Madras AIR 1954 SC 4 has held that if
genuineness of confession is doubted, then there is necessity of
corroboration and corroboration of retracted confession is required. Still
further, the Hon'ble Supreme Court in Swaran Singh Rattan Singh Vs.
State of Punjab AIR 1957 SC 637 has held that usually courts require
some corroboration to the confessional statement before convicting an
accused on such statement and what amount of corroboration would be
necessary in such a case would always be a question of fact to be
determined in the light of circumstances of each case. Prima-facie
whether or not confession is voluntary would be a question of fact.
34. Further, the Hon'ble Supreme Court in Aloke Nath Dutta
Vs. State of West Bengal (2007)12 SCC 230, culled out the law
regarding evidentiary value of confession retracted by the accused, as
under:-
(i) In case of retracted confession, the courts should evidently be a
little slow in accepting the confession, although the accused may
not be able to fully justify the reasons for his retraction.
(ii) In a case of retracted confession, the courts while arriving at a
finding of guilt would not ordinarily rely solely thereupon and
would look forward for corroboration on material particulars and
such corroboration must not be referable in nature and such
corroboration must be independent and conclusive in nature.
(iii) A retracted confession of a co-accused cannot be relied upon


101
for the purpose of finding corroboration for the retracted confession
of an accused (AIR 1949 Privy Council 257 relied).
(iv) The value of retracted confession is now well known. The court
must be satisfied that the confession at the first instance is true and
voluntary (AIR 1958 SC 66 relied).
(v) If retracted confession is found to be corroborative in material
particulars, it may be the basis of conviction (AIR 1957 SC 216
relied).
(vi) In 1950 and 1960, corroborative evidence in material
particulars was the rule. A distinctiveness was made in later years in
favour of ‘general corroboration’ or ‘broad corroboration’ (2004 (4)
RCC (Criminal) 955 (SC) relied).
(vii) No judgment of conviction shall be passed on uncorroborated
retracted confession. Conviction of accused on the basis of a
retracted confession is permissible but only if it is found that
retraction made by the accused was wholly on a false premise.
(viii) Although retracted confession is admissible, the same should
be looked with some amount of suspicion. A strong suspicion than
that which is attached to the confession of an approver who leads
evidence to the court.
35. Thus it emerges that in case of retracted confession, the court,
while arriving at finding of guilt, would not ordinarily solely rely thereon

102
and would look for corroboration of the same and the court has to see as
to whether the same finds general corroboration from other evidence.
Further the court must be satisfied that confession, at the first instance, is
true and voluntary. Retracted confession can be relied upon if it is found
that retraction made by the accused was on a false premise. Further it is
also settled law that confession, though made voluntarily, may not be
wholly or partly true and truth of confession is to be tested by the court.
Thus, it is the duty of the court to test credibility, truthfulness and
reliability of retracted confession in the light of the afore-discussed
principles of law governing a retracted confession with respect to the
contents of the retracted confession. In the light of afore-discussed
principles of law governing retracted confession of an accused, it is to be
seen as to whether retracted confession of accused Naba Kumar
Sarkar@Aseemanand finds corroboration from other evidence on record
and as to whether the same can be relied upon to arrive at a finding of
guilt qua the accused facing the trial.
36. Now coming to the contents of the retracted confession of
accused Naba Kumar Sarkar@ Swami Aseemanand, if the same is
analyzed in the light of the occurrence of causing explosion/blast in
Samjhauta Express train, it clearly emerges that the so called confessional
statement is primarily exculpatory in nature. Accused Naba Kumar @
Aseemanand in his retracted confession has mainly given a version that
on 16th February, he went to Shiv Mandir, Balpur on account of Shivratri
where Sunil Joshi (since expired) and Bharat Bhai met him and Sunil

103
Joshi told him in private to keep reading news as good news was likely to
come within 2-4 days and after the programme of Shivratri, he came back
to Shabridham and that on 21.02.2007, Pragya Singh, Neera and Ritesh
came to Shabridham and Sunil Joshi also came there and one boy Raj and
one Mehul were also there and Sunil Joshi told him separately that the
incident of Samjhauta Express had been done by their men and on his
(Aseemanand) insistent asking, he (Sunil Joshi) named one Sandeep
Dange and his accomplice. That in the house of Bharat Bhai, Sandeep
Dange and Amit had disclosed about Samjhauta Express blast, therefore,
he (Aseemanand) guessed that incident of Samjhauta Express might have
been done by these persons. It also comes out that accused Aseemanand in
his retracted confession has also given a version that accused Sunil Joshi
(who is no more in this world) had told him that Ajmer Dargah bomb blast
had been done by their men and on his asking, he (Sunil Joshi) perhaps
for some other reasons told that two Muslim boys were with them and on
his asking, Sunil Joshi told that Indresh had provided Muslim boys. It is
also revealed that this accused has stated that in December 2006, Sunil
Joshi came to him and told that Malegaon bomb blast had been done by
his men and despite repeated asking, he did not disclose much about the
same. It is also disclosed that in about December 2007, Bharat Bhai
telephonically called him and disclosed that Sunil Joshi had been
murdered and that he made a telephone call to Colonel Prasad Purohit in
order to find out persons responsible for the murder because he (Colonel
Purohit) was looking-after military intelligence and that he knew Colonel


104
Purohit prior to that, as he had met him in January, 2007 through one
Sunil Kulkarni and Colonel Purhohit told that perhaps there was some old
murder case against him (Sunil Joshi) and it might be case of revenge.
Thus it is nowhere made out that this accused had ever entertained any
idea or intention or had any agreement with any other accused/suspect to
carry out Samjhauta Express Train blast, meaning thereby that he has
exculpated himself totally so far as present crime is concerned. Even
though, it is stated in the retracted statement that in March 2006, Sunil
Joshi came to meet him at Shabridham and Sunil Joshi told that SIM card
and pistol may be procured from Jharkhand and for the same, he wanted
to go to Jharkhand and that he demanded some money from him and that
he gave Rs. 25,000/- to him (Sunil Joshi), however this much statement
including the above-noted contents do not reveal that SIM Card or pistol
had been procured to carry out Samjhauta Express train blast and
moreover it is nowhere the case of the prosecution that any SIM card or
any pistol had been used in execution of the Samjhauta Express train
incident and thus, retracted confession of accused Aseemanand is not self-
incriminating at all. Not only this, 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. Needless to
mention that mens-rea is essential ingredient of criminal conspiracy and
in the absence of mens-rea on the part of accused/suspect, no culpability
is attracted qua such accused. Thus, this accused has stated that Sunil

105
Joshil had disclosed to him that Samjhauta Express train explosion had
been done by his men and on his enquiry, he (Sunil Joshi) named one
Sandeep Dange (since declared proclaimed offender) and his
associate/accomplice, but Aseemanand has not made self-incriminating
statement qua him or any inculpatory statement qua other accused facing
the trial. Moreover, so far as statement against the accused facing trial qua
present crime is concerned, it is trite law that statement containing self
exculpatory matter cannot amount to confession. Further, it is also trite
law that confession of co-accused cannot be elevated to the status of
substantive evidence which can form basis of conviction of co-accused.
Further, at the cost of repetition, a retracted statement cannot be made
solely basis of conviction unless the same is corroborated and it would be
sufficient if the general trend of the confession is substantiated by some
evidence which would tally with what is contained in the confession.
After marshalling the evidence on record, again retracted statement of
accused Aseemanand has remained totally uncorroborated and even no
general corroboration has been coming forthwith, what to talk of
sufficient corroboration in material particulars by other evidence on
record. None of the aspects and facts mentioned in the retracted
confession has found any corroboration from any other evidence coming
on record and this aspect has been discussed in detail in later part of this
judgment.
37. At this stage, it may also be relevant to discuss here the
circumstances leading to recording of confessional statement of accused


106
Aseemanand under section 164 Cr.P.C. on 15.01.2011. It is mainly
contended on behalf of accused Aseemanand that his statement is not
voluntary one and the same is a result of coercion, harassment and
pressure exerted by the Investigating Officers of various investigating
agencies during his long police custody. It is pointed out that accused
Aseemanand was arrested by the CBI in Macca Masjid blast case on
19.11.2010 and he was sent to judicial judicial after completion of police
remand on 20.12.2010 and thereafter NIA officials moved application on
20.12.2010 before designated Special NIA Court at Panchkula to issue
production warrant of accused Aseemanand and accused Aseemanand was
produced before Special NIA Court at Panchkula on 23.12.2010 and he
was formally arrested in this case on 23.10.2010 and was remanded to
police custody till next day i.e. 24.12.2010 and thereafter he was further
remanded to police custody from 24.12.2010 to 03.01.2011 and then in
further police remand from 03.01.2011 to 13.01.2011. It is further pointed
out that accused 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 and accordingly,
accused was ordered to be sent to judicial custody till 27.01.2011.
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

107
court as if the accused was willing to make any statement u/s 164 Cr.P.C.
Further pointed out that Investigating Officer had also not taken any
permission from the remanding court to produce the accused for recording
his statement u/s 164 Cr.P.C. before learned C.J.M., Panchkula and once
the designated court had remanded the accused to judicial custody, then it
was the duty of the Investigating Officer to hand over the accused to
concerned jail authorities, but instead of this, Investigating Officer moved
separate application before learned C.J.M., Panchkula and it reflects haste
on the part of Investigating Officer to get recorded the statement of the
accused u/s 164 Cr.P.C. It is further submitted that accused Aseemanand
had moved application on 13.01.2011 before Special NIA court, thereby
submitting that he is innocent and has been falsely implicated and
moreover the applications reflect that on 13.01.2011 accused Aseemanand
had no intention of making any confessional statement, still Investigating
Officer moved an application before Ld. CJM Panchkula for recording his
statement u/s 164 Cr.P.C. and moreover the application was not even
signed by the accused, which itself creates reasonable doubt about the
circumstances leading to the recording of the statement and also
apparently reflects that the statement of the accused was not voluntary
one. It is further pointed out that relevant order-sheets pertaining to
recording of the statement further reveal that no direction was given to jail
authorities, Ambala to produce this accused before learned C.J.M.,
Panchkula on 15.01.2011 nor any direction was given to the jail
authorities by the then C.J.M., Panchkula to the effect that statement u/s

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164 Cr.P.C. has to be recorded on 15.01.2011 and as such, no one
including the NIA officials should be allowed to meet the accused in
Central Jail, Ambala till his statement is recorded. Further pointed out that
there is no record vide which it could be inferred that accused
Aseemanand was produced before learned C.J.M., Panchkula in
pursuance to any written direction to jail authorities at Central Jail,
Ambala. It is also submitted that as per order-sheet as well as from the
testimony of concerned witness i.e. PW-202 Rakesh Singh, the then
C.J.M., Panchkula and PW-224 Vishal Garg, Investigating Officer, it is
apparently made out that accused Aseemanand was produced before
learned C.J.M., Panchkula on 13.01.2011 by NIA officials from their
custody and after initial examination of accused Aseemanand, his custody
was handed over to NIA officials on 13.01.2011 and after recording his
statement on 15.01.2011, again his custody was handed over to NIA
officials, which clearly reflects that accused was not given any time to
come out of the influence/shadow and pressure of the NIA officials and
as such, so called confessional statement recorded u/s 164 Cr.P.C.
Ex.202/5 cannot be said to be voluntary one. It is also submitted that apart
from this, same is also not proved to be true because the facts mentioned
in the said statement are not corroborated by any other evidence on
record. It is also submitted that accused has not shown his own
involvement in any alleged agreement, planning or execution of the
Samjhauta Express train blast in any manner and as such, accused
exculpated himself and therefore, no reliance can be placed upon such


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statement even otherwise also. It is also pointed out that accused was
given merely 10 minutes time for reflection when he was produced by the
NIA officials and the same cannot be said to be sufficient time for
reflection in view of the fact that he was in custody of NIA for more than
20 days in the present case and for many days in the custody of CBI prior
to that and as such, this much time was not sufficient for the accused to
come out of the influence /pressure/coercion exerted upon him during his
such long police custody. It is also submitted that 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. as per their
dictation. Further submitted that factum of forcing the accused to make
confessional statement further becomes apparent in the light of the fact
that accused moved application at the earliest opportunity to inform the
court that his statement was not voluntary and that he was forced to make
confessional statement by the NIA officials and has made retraction from
his statement and retraction at the earliest opportunity further proves that
so called confessional statement was not voluntary and it cannot be relied
upon. After analyzing the entire records, the aforesaid submissions of the

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defence cannot be brushed aside lightly. From the documents on file, it
appears that accused Aseemanand remained in police custody of the NIA
in the present case for about 20 days prior to 13.01.2011 and he had also
been in custody of other investigating agency prior to that. Further, it is a
matter of record that accused Aseemanand moved application on
13.01.2011 before NIA Court at Panchkula, thereby submitting that he is
innocent and has been falsely implicated, which in turn reflects that he
was not intending to make any statement at that moment, however
Investigating Officer moved application before learned C.J.M., Panchkula
for recording statement of accused Aseemanand on that very day i.e.
13.01.2011 and said application is admittedly not signed by accused
Aseemanand in order to reflect his willingness to make any such
statement. Further it is also matter of record that after sending the said
accused to judicial custody on 13.01.2011 by the Special NIA Court at
Panchkula, accused Aseemanand was produced before that court for the
first time on 12.05.2011 and on that very day, accused Aseemanand
moved application Ex.PW224/D-11 thereby submitting that he has been
coerced to make statement dated 15.01.2011. It has also been pointed out
that accused Aseemanand moved an application dated 8.4.2011 Mark
PW224/D-A before learned C.J.M., Ajmer and made a prayer for sending
the said application to the court at Panchkula and the same was ordered to
be sent through concerned jail authority and the same was forwarded to
the Special Court at Panchkula by the Superintendent, Central Jail, Ajmer.
Thus, all these facts are to be considered and become relevant to make

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assessment of the circumstances leading to recording of the statement of
accused Aseemanand and also reasons for retracting from such statement
by the said accused. At this stage, it may also be pertinent to refer to the
cross-examination of PW202 Rakesh Singh, the then learned Magistrate
who recorded the statement of Swami Aseemanand under Section 164
Cr.P.C. on 15.01.2011. PW202 in his cross-examination has stated that he
had not inquired from the accused since how long he was in police
custody prior to 13.01.2011 and did not ask the accused whether he was in
police remand at the time when he was produced before him. He has
further stated that on 13.01.2011 the custody of the accused was handed
over to the NIA authorities for lodging him in Central Jail, Ambala and
that he had not summoned the jail authorities to hand over the custody of
the accused to them in his presence. Further stated that it has nowhere
been mentioned in his orders dated 13.01.2011 and 15.01.2011 whether
the custody of the accused was granted to the NIA authorities by the NIA
Special Court at Panchkula. Further stated that in his proceedings, he had
not recorded as to whether he made any assurance to accused
Aseemanand that, in case, he would not make confessional statement
before him, then he will not be handed over to the NIA authorities again.
Further admitted that in his proceedings it is nowhere mentioned that after
recording confessional statement of accused, while handing over his
custody to NIA authorities, whether there was any member of the jail
authorities present or not. Further stated that NIA authorities did not
reveal the fact of the accused earlier being in CBI custody in some other

112
case and it was not disclosed to him by the NIA authorities regarding
recording of other statement of accused under Section 164 Cr.P.C. in any
other case.
38. Thus, from the circumstances leading to recording of the
statement u/s 164 Cr.P.C. of accused Aseemanand before learned
Magistrate and also in the light of the fact that said accused retracted from
his statement at the earliest opportunity and in view of the reasons given
in the application Ex.PW224/D-11, i.e. during the police remand,
investigating officers tortured him both physically and mentally and by
threatening him of dire consequences, compelled him to give statement
before learned Magistrate as per their dictation, a reasonable doubt may
be entertained about the voluntary nature of the statement made by
accused Aseemanand. At the cost of repetition, the Hon’ble Supreme
Court in Parmanand Pegu (supra) case has held that before acting on a
confession made before a Judicial Magistrate in terms of Section 164, the
Court must be satisfied first that the procedural requirements laid down in
sub-sections (2) to (4) are complied with. These are salutary safeguards to
ensure that the confession is made voluntarily by the accused after being
apprised of the implications of making such confession. It has further
been observed that if the first requirement for acting on a confession is
satisfied, but that is not the end of the matter. The Court, called upon to
consider the evidence against the accused, should still see whether there
are any circumstances appearing from the record which may cast a doubt
on the voluntary nature of the confession. The endeavour of the Court


113
should be to apply its mind to the question whether the accused was free
from threat, duress or inducement at the time of making the confession. In
doing so, the Court should bear in mind, the principle enunciated in Pyare
Lal v. State of Rajasthan [(1963) Supp.1 SCR 689] that under Section 24
of the Evidence Act, a stringent rule of proof as to the existence of threat,
duress or inducement should not be applied and a prima facie opinion
based on evidence and circumstances may be adopted as the standard laid
down. To put it in other words, "on the evidence and the circumstances in
a particular case it may appear to the Court that there was a threat,
inducement or promise, though the said fact is not strictly proved".
Moreover a bare perusal of the retracted confession reveals that the
confession is long but rambling one, which could have been pieced
together only after some sort of tutoring. Still further, since retracted
confession has not found general corroboration from other evidence,
therefore, very truthfulness of the statement also comes under cloud. 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.
39. At the cost of repetition, it is settled legal proposition that
unless the main features of the story/prosecution version are shown to be
true it would be unsafe to rely upon uncorroborated confessional


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statement, especially when the same is found to be given under
circumstances indicating certain degree of influence/duress/pressure.
Once it is made out that accused Aseemanand has exculpated himself in
the entire confessional statement, then the same cannot be used to convict
other co-accused persons who are being tried jointly with such maker of
reracted confession, because confession of a co-accused cannot be
elevated to the status of substantive evidence which can form basis of
conviction of other co-accused. Reliance in this regard may be placed
upon Bhuboni Sahu Vs The King, AIR 1947 PC 257. A person may
have knowledge that conspiracy was being hatched, but the person could
not be held liable for the acts of actual conspirators unless there is a
material to conclude that he was party to the conspiracy alleged against
him. Further the Hon’ble Supreme Court in Kashmira Singh Vs State
of Punjab, AIR 1952 SC 159 has also held that confession can only be
used to lend assurances to other evidence against a co-accused.
40. Further, the prosecution has also sought to strengthen its case
on the basis of alleged extra-judicial confession of accused Aseemanand.
In this regard, prosecution sought to rely upon two witnesses i.e. PW-141
Ajay Chauhan and PW-142 Shakti Singh, however none of the said
witnesses has supported the prosecution case in any manner. PW-141
Ajay Chauhan has stated that he is agriculturist and that he is not
associated with Congress party nor has any political link with senior
leaders of Congress party and he did not know whether there is any
Paramhans Ashram near Shanidev Mandir nor he knows whether any


115
religious function etc. is performed at the said ashram and that he did not
know any person by the name of Swami Brahmanand. Further stated that
he did not know any person by the name of Swami Onkaranand nor he
can identify him if shown to him. This witness was cross-examined by
learned SPP for the NIA with the leave of the court, but nothing
substantial could be elicited during the cross-examination of this witness
in order to lend any support to the prosecution case. Likewise, PW-
142/Shakti Singh has stated that he never met any person named Swami
Onkaranand @ Swami Asimanand in the Ashram of Swami Brahamanand
as he never met any such person there. Likewise, with the leave of the
court, this witness was also cross-examined by learned SPP for NIA, but
nothing substantial could be elicited in order to lend support to the
prosecution case. Further, prosecution also sought to make out some sort
of confession made by accused Aseemanand before one Sheikh Abdul
Khaleem who has been examined as PW-153. However, again a closer
scrutiny of statement of this witness would reveal that he (PW-153) has
nowhere deposed that accused Aseemanand had made confession before
him regarding his involvement in the present crime. PW-153 has simply
stated that he came to know from the newspaper etc. that Aseemanand had
made confession before the police in relation to Malegaon blast, Macca
Masjid blast, Samjhauta Express train blast and Ajmer Dargah blast case,
before a court and thus it is nowhe re made out that accused Aseemanand
had ever personally confessed before said witness regarding his
involvement in the present crime. Even otherwise, as per statement of this


116
witness, he was confined in Chanchalguda Jail, Hyderabad during the
relevant time i.e. from October, 2010 to January 2011, but very strangely,
no documentary evidence regarding lodging of this witness in the said jail
during the said period has been brought on record. Still further, this
witness in his cross-examination has stated that there were 10 solitary
confinement cells, out of 20 cells in a block and accused Aseemanand
was kept alone in one cell, meaning thereby that accused Aseemanand
was kept in solitary confinement and it is highly improbable that this
witness (even if it is assumed that said witness was confined in said jail
during the relevant time) had any occasion to interact with accused
Aseemanand who was lodged in solitary confinement cell. Further, as per
statement of this witness itself, he was having a shady past and was
involved/arrested in criminal cases and therefore, possibility of this
witness being got up witness on some promise cannot be ruled out.
41. The prosecution/NIA has also sought to rely upon disclosure
statement Ex.PW156/B of accused Aseemanand and discovery/pointing
out memos i.e. Ex.PW156/C, Ex.PW156/E and Ex.PW156/G in order to
lend credence to the case set up by it. It is the case of the prosecution that
accused Aseemanand, on 06.01.2011, suffered disclosure memo/statement
Ex.PW-156/B in the presence of independent witnesses and further
accused mentioned about three places, namely, Thakurghar, Shabridham
and Balpur Mandir where various conspiracy meetings were held relating
to this case and accordingly, accused Aseemanand identified places vide
aforesaid discovery/pointing out memos Ex.PW156/C, Ex.PW156/E &


117
Ex.PW156/G and that sketch of Thakurghar Ex.PW-156/D, sketch of
Shabridham Ex.PW156/F and sketch of Balpur Mandir Ex.PW-156/H
were also prepared at the spot and accordingly, learned SPPs for NIA
argued that this much evidence lend corroboration to the statement
Ex.PW202/5 of accused Aseemanand regarding the present occurrence. At
the very outset, it is worth mentioning here that no material/article was
ever got recovered from Thakurghar, Shabridham and Balpur Mandir in
pursuance to disclosure statement made by accused Aseemanand, as has
been duly admitted by Investigating Officer PW-224/Vishal Garg in his
cross-examination. Thus, the entire case pertaining to suffering of
disclosure statement Ex.PW156/B and consequent preparation of
discovery/pointing out memos is totally inadmissible in evidence because
neither any recovery was effected nor any new fact was discovered in
pursuance to the said disclosure statement and it is settled law that Section
27 of the Indian Evidence Act, 1872 is applicable only if the disclosure
statement leads to discovery of some new fact or discovery of unknown
fact or discovery of some material object and what is admissible under
Section 27 of the Indian Evidence Act is information leading to
discovery/recovery of new fact and not any opinion formed on it by the
prosecution and mere disclosure statement alone would not automatically
lead that offence was committed by the accused making confessional
statement. If no discovery of any new fact or recovery of any object is
effected in pursuance to disclosure statement, then information u/s 27 of
the Indian Evidence Ac, 1872 is inadmissible because the fact which has

118
already been discovered cannot be rediscovered. In the instant case, it is
coming out in the cross-examination of PW-224 Vishal Garg that
statement of Bharat Bhai Rateshwar was recorded u/s 161 Cr.PC. on
29.12.2010 i.e. prior to 06.01.2011 and further Investigating Officer has
not categorically denied and infact he has feigned ignorance as if the
places, namely, Thakurghar, Shabridham and Balpur Mandir are found
mentioned in the statement of Bharat Bhai recorded u/s 161 Cr.P.C. Thus,
once names of all these three places are found mentioned in the statement
of another witness, which has been recorded prior to the disclosure
statement of accused Aseemanand, then no new fact can be held to be
discovered in pursuance to the disclosure statement dated 06.01.2011 of
accused Aseemanand and thus such disclosure statement and
discovery/pointing out memos are simply inadmissible piece of evidence,
as per law and the same cannot be held to be lending any kind of
corroboration to the retracted confession.
42. Not only this, two independent witnesses i.e. PW-156
Mahendra M. Vankar and PW-157 Nagin Bhai Lala Bhai Patel, who were
associated during suffering of disclosure statement allegedly made by
accused Aseemanand, have not fully supported the prosecution case and
this aspect further creates serious dent in the investigations done by the
investigating agency. Both these witnesses i.e. PW-156 & PW-157 have
stated that on 06.01.2011 they were called by the Collector of Daman and
asked to accompany Local Patwari who will show some land and they
have to prepare site plan of the same and that accordingly they reached

119
Circuit House, Daman where some officers met who were from NIA and
they took them to village Mogra Badi, District Valsad and then took them
to a house and there were 6-7 person including the officers and that they
cannot say who were they. Both these witnesses were cross-examined by
learned SPPs for the NIA, but during cross-examination, both these
witnesses have stated that they had signed the papers on the direction
given by the Collector. Further during cross-examination by the defence,
both the witnesses stated that they had signed all these documents while
sitting in the Circuit House. Still further, it is relevant to note here that all
the places, allegedly pointed out by the accused, were in the State of
Gujarat and none of the places was situated in Daman and how accused
Aseemanand was taken to Daman is again a circumstance which creates
some suspicion about the methodology of investigation adopted by the
investigating agency.
43. Further, the prosecution has again similarly sought to rely
upon disclosure statements of accused Kamal Chauhan and
discovery/pointing out memos in order to lend credence to the case set up
by it. It is the case of prosecution that accused Kamal Chauhan was
arrested on 12.02.2012 and on 21.02.2012 accused suffered disclosure
memo Ex.PW-224/4 and in pursuance to disclosure memo, accused
Kamal Chauhan is alleged to have pointed out dormitory and other places
of Old Delhi Railway Station and consequential preparation of
discovery/pointing out memo Ex.PW-215/3 and preparation of sketch of
railway station Delhi Ex.PW-215/4. Further, it is also the case of the


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prosecution that in continuation of information disclosed by accused
Kamal Chauhan, he led NIA team to Karni Singh shooting range and
pointed out the place where shooting practice took place in April 2006
and pointing out memo Ex.PW-201/1 and sketch of Dr Karni Singh
shooting range Ex.PW-215/5 were prepared at the spot. Further, it is the
case of prosecution that on 27.02.2012 accused Kamal Chauhan also
disclosed that he can identify the places at Indore and Bagli forest area
where preparation of bomb & demonstration of blast of bomb was given
and disclosure memo Ex.PW-224/5 was prepared and discovery/pointing
out memo Ex.PW-215/6 pertaining to Sarv Sampan Nagar, Indore and
discovery/pointing out memo Ex.PW-215/8 pertaining to hill top in Bagli
forest area, Dewas and sketches Ex.PW-215/7 and Ex.PW-215/9
respectively were prepared at the spot. However, again admittedly no
recovery whatsoever has been effected from any of the aforesaid places in
pursuance to disclosure memo/statements of the accused and
consequential discovery/pointing out memos and all such evidence is
simply inadmissible in evidence and is not substantive evidence to lend
any corroboration to the retracted confession in any manner. Not only
this, all such places were already in the knowledge of investigating
agency and in this regard, Investigating Officer PW-224 Vishal Garg has
admitted, in his cross-examination, that factum of railway station and the
platform from where Samjhauta Express train started its journey was in
his knowledge from the very first day when he took over the
investigation. He has further admitted that for the first time, factum of

121
practice of shooting in Karni Singh shooting area came to his notice
during examination of Shivam Dhakad and recording of his statement
u/s 161 Cr.P.C. Ex.PW224/3 & Mark PW134/A during the course of
investigation which was recorded on 25.02.2011, which further renders
discovery/pointing out memo Ex.PW201/1, alleged to have been prepared
at the instance of accused Kamal Chauhan, to be of no consequence and
simply inadmissible. Thus, neither any new fact was discovered nor any
material/object was recovered in pursuance to aforesaid disclosure
statements of this accused and again this much evidence is hit by Sections
25/26 of the Indian Evidence Act, 1872. It may also be pertinent to
mention here that two independent witnesses, namely, Partap Kumar and
Rajesh Sarvate are reflected to have been joined during investigation and
preparation of pointing out memos Ex.PW-215/6 and Ex.PW-215/8, but
none of these witnesses has been examined by the prosecution. Further, so
far as allegations pertaining to undergoing training of firing/shooting
practice at Dr. Karni Singh shooting range is concerned, the same is not at
all proved as per law and moreover, this allegation does in any way
connect accused persons to the present crime even if it is assumed that
accused had underwent any kind of such training in said shooting range.
In this regard, prosecution has relied upon two witnesses i.e. PW-147
Deep Bhatia and PW-182 Charan Singh, JE. PW-182 Charan Singh, JE
has stated that he handed over certain documents i.e. Ex.PW182/2 to
Ex.PW182/5, i.e. some registers/receipt book, pertaining to Karni Singh
shooting range to the NIA official, but no incriminating evidence qua role

122
of the accused in carrying out Samjhauta Express train blast is made out
even if such documents are taken to be true and proved. However, as a
matter of fact, PW-182 in his cross-examination has stated that he did not
know who maintained the records mentioned in his examination-in-chief
and that one Manmeet Singh Goindi was Administrator at that time and he
had handed over the above said documents to him and he further handed
over the same to the NIA officials. Further, so far as evidence of PW-147
Deep Bhatia is concerned, he has not supported the prosecution case and
with the leave of the court, he was cross-examined by learned SPP for the
NIA, but nothing could be elicited in his cross-examination in order to
lend any support to the prosecution case. Further, irrelevancy of this much
evidence also comes forth prominently in the light of the fact that
investigating agency got prepared sketch Ex.PW138/5 of Karni Singh
shooting range, however the site plan/sketch has no connection
whatsoever with the occurrence in question, simply because as per
statement of concerned witness i.e. PW-182 and PW-147, the said site
plan is of the existing position of Karni Singh shooting range which was
re-built/re-constructed in the year 2008-2009 for Commonwealth games
after demolishing old structure built in the year 1982 and old structure
was totally demolished and new structure was raised and thus, it comes
out that the site plan/sketch has nothing to do with the then state of affairs
of Karni Singh shooting range as existing prior to the occurrence of year
2007 and it seems that investigating agency has gone over-board to build
a case even on the basis of documents which have no concern with the

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occurrence dated 18.02.2007.
44. Likewise, prosecution has also sought to rely upon disclosure
memo dated 22.12.2012 Ex.PW138/1 of accused Rajender Choudhary and
discovery/pointing out memo Ex.PW138/2 pertaining to old Delhi
Railway station and discovery/pointing out memo Ex.PW138/4 pertaining
to Dr. Karni Singh shooting range and consequential sketches Ex.PW-
138/3 and Ex.PW-138/5 prepared at the spot. However, again
undisputedly no recovery of object/discovery of any new fact/material has
been effected in pursuance to aforesaid disclosure statements of this
accused and this much evidence is again totally inadmissible in evidence
and does not lend any corroboration to the prosecution case. Further,
prosecution has also sought to make out that accused Rajender Choudhary
suffered another disclosure statement Ex.PW151/3 and in pursuance to the
same, he led NIA team to Bagli forest area in Dewas district and
discovery/pointing out memo Ex.PW151/4 & sketch Ex.PW151/1 was
prepared at the spot and that two samples of earth/sand were collected
from Bagli forest area and the same samples were sent to CFSL, New
Delhi and vide CFSL report dated 15.04.2013 Ex.PA/FSL-2, one of the
sand/earth sample is opined to be detected as having RDX’ based high
explosive and accordingly, learned SPPs for NIA argued that this much
evidence lend corroboration to the prosecution case to the effect that
present accused persons had undergone training of bomb
making/demonstration of blasting of bomb in the Bagli forest area and it
is a relevant circumstance in the chain of circumstances for making out


124
culpability of the accused persons. With due deference to the argument
raised, this court is of the considered opinion that this much evidence does
not make out, even remotely, the involvement of the accused persons in
the present crime and prosecution version does not find any support from
this much evidence. First of all, it is worth mentioning here that accused
Kamal Chauhan is alleged to have suffered disclosure memo/statement
Ex.PW-224/5 and in pursuance to the same, he is alleged to have led NIA
team to Bagli forest area and pointing out memo Ex.PW-215/8 and sketch
Ex.PW-215/9 are stated to have been prepared thereafter at the spot and
the said pointing out memo Ex.PW-215/8 is dated 27.02.2012. Further,
accused Rajender Chaudhary is alleged to have suffered disclosure memo
Ex.PW151/3 dated 26.12.2012 and discovery/pointing out memo Ex.PW-
151/4 is stated to have been prepared at the instance of said accused on
26.12.2012, meaning thereby that accused Kamal Chauhan had allegedly
already pointed out Bagli forest area on 27.02.2012, but strangely no
sample of sand/earth was collected at that time and samples of sand/earth
are stated to have been collected on 26.12.2012 i.e. after about 10 months
when accused Kamal Chauhan had allegedly led the NIA team to the
Bagli forest area. As per prosecution case, sand/earth sample is stated to
have been collected from a pit on hill top on 26.12.2012. However, PW-
215/Assistant Investigating officer R.S. Janwal, in his cross-examination,
has admitted that in the forest area where they visited, they noticed a pit
which was pointed out by Kamal Choudhan on 27.02.2012 and they did
not collect anything on that day and they did not collect sand from pit on

125
27.02.2012. Therefore, collection of sand/earth sample from a place
which has already come to the notice of investigating agency almost 10
months ago, is nothing but apparently seems to be procured evidence,
more-so when forest area is an open place accessible to all and is an open
area which is subjected to all kinds of wear and tear of weather. Therefore
collection of sample from such an open area is of no consequence and this
kind of investigation can be termed nothing else but tainted one.
45. Still further there is no evidence on record to make out that
collected sand samples were ever duly sealed and were kept intact by
depositing same in some Malkhana before sending the same to the CFSL
for examination. First of all, memo Ex.PW151/4 does not make mention
of any seal impression nor does it mention that any seal was affixed on the
envelope of the collected sand/earth samples. There is no credible
evidence to make out that the sand samples remained intact till the same
were sent to the concerned expert. Further there is no evidence pertaining
to depositing of sand samples in sealed condition in Malkhana of the NIA
and further no documents pertaining to prescribed registers maintained at
Malkhana of NIA has been brought on record. As per FSL report
Ex.PA/FSL-2, the parcels are reflected to have been received in CFSL
office on 27.02.2013 i.e. after about two months of alleged collecting of
sand samples on 26.12.2012 and since link evidence regarding intact
condition of the sand samples is totally missing, therefore again
credibility of such evidence gets corroded. As per statement of
PW215/Inspector R.S.Jangwal, the sand samples are stated to have been


126
handed over to Chief Investigating Officer Vishal Garg, but CIO Vishal
Garg has nowhere stated that he deposited the same in the Malkhana and
in fact PW224 Vishal Garg in his cross-examination states that he does
not recollect as to when the pulandas were deposited in Malkhana and as
to when the same were taken from Malkhana for further sending to the
CFSL. Further it may not be out of context to mention here that the
samples of sand/earth, which are stated to be taken from a pit in the Bagli
forest area in December 2012 regarding the alleged training of blast, but
the alleged training had allegedly taken place almost about 6-7 years prior
to collecting of sand samples from an open forest area and again
reasonable suspicion arises regarding presence of such traces in the sand
collected from hill slope which is an open area accessible to all and prone
to all kinds of weather wear and tear, soil erosion etc. Likewise,
prosecution has also sought to rely upon disclosure memo dated
26.12.2012 Ex.PW151/3 of accused Rajender Choudhary, disclosure
memo/statement Ex.PW151/3 and consequential discovery/pointing out
memo Ex.PW151/5 pertaining to H.no. 52, Sarv Sampan Nagar, Indore
and preparation of sketch Ex.PW151/2. However, again undisputedly no
recovery of object/discovery of any new fact/material has been effected in
pursuance to aforesaid disclosure statement of this accused and again this
much evidence is totally inadmissible in evidence. Moreover, even
otherwise, it may also be pertinent to mention here that independent
witness PW-151 Mohd. Irshad has also not fully supported the
prosecution version, so far as disclosure statement Ex.PW151/3 and


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discovery/pointing out memos Ex.PW151/4 and Ex.PW151/5 are
concerned. PW-151 has, inter-alia, stated that he reached Indore Airport
on the direction of higher authority and in the room, NIA officials were
making enquiries from the persons with muffled faces persons and he
does not know muffled faces persons personally or otherwise. Further
during cross-examination by the defence, this witness has stated that
during all the proceedings, persons with muffled faces remained as it is
and that he had signed the documents at Airport after return to the Airport,
meaning thereby that writing work was not done at the spot, as alleged by
the prosecution.
46. Further, learned SPPs for the NIA have also sought to lend
credence to the persecution case by submitting that accused Kamal
Chauhan and Rajender Chaudhary absconded after the occurrence,
especially after arrest of accused Lokesh Sharma and that this is further
circumstance in the chain of circumstances making out guilt of the
accused because such conduct of the accused raises reasonable doubt
about their involvement in the crime. However, again this court finds no
merit in the said argument simply because there is not an iota of evidence
on record to make out that either of these two accused had ever absconded
after the occurrence. First of all, so far as case of accused Kamal Chauhan
is concerned, none of the relied upon prosecution witnesses has stated that
accused Kamal Chauhan ever absconded prior to his arrest in this case.
On the other hand, PW-164 Jitender Badwaya, PW-165 Sharvan Chauhan,
PW-166 Kismat Chauhan have not supported the prosecution case in any

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manner and with the leave of the court, they were cross-examined by
learned SPP for the NIA, but nothing substantial could be elicited in
support of the prosecution case. In fact, PW-166, in his cross-examination
by the defence, has stated that they had jointly sold the agricultural land
because the land was not fertile and thereafter they purchased a piece of
land adjoining to other fields. He has further stated that his Uncle
Rameshwar has three daughters and two sons and his Uncle’s youngest
daughter namely Lanka was got married on 17.02.2007 and his Uncle's
son namely Ram was also got married on 19.02.2007 and Kamal Chauhan
had attended both the said marriages and he was active member of the
family who was managing all the affairs of both the marriages and he
remained present in the village itself. It is noteworthy to mention here that
this witness was never re-examined by the prosecution, thereby apparently
making out that the prosecution admitted the version of this witness as per
the facts deposed to in cross-examination of this witness by the defence.
Further, PW-172 Shiv Narayan, who had purchased some land vide sale
deed dated 20.04.2011 Ex.PW-150/2, has stated in his cross-examination
by the defence that Kamal Chauhan never absconded from the village and
he used to be seen in the village throughout before his arrest. Likewise,
PW-173 Jagdish Patel, in his cross-examination, has also stated that
accused Kamal Chauhan never absconded from the village and he used to
be seen in the village throughout and that grandfather of accused Kamal
Chauhan purchased another piece of land in the same village out of the
sale consideration amount which he received after selling the land and

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land so purchased was just near to his other piece of land. Further,
prosecution itself has also produced on record two sale deeds i.e. sale
deed dated 20.04.2011 Ex.PW150/2 and sale deed dated 30.09.2011
Ex.PW150/3 and in the sale deed dated 30.09.2011, Kamal Chauhan is
reflected to be one of the attesting witness.
47. Likewise, none of the prosecution witness has deposed about
abscondance of accused Rajender Choudhary in any manner. PW-175
Jitendra Choudhary has not supported the prosecution case and he was
even cross-examined by learned SPP for the NIA, but nothing substantial
could be elicited in support of the prosecution case. Further, PW-180
Chanderjeet states that he knows Vikram Sigh Chauhan who is famous
wrestler in the area of Depalpur and also knows his son Rajender
Choudhary who is also wrestler and police did not ask about the
whereabouts of Rajender Chaudhary. He has further stated that on
31.08.2012, Rajender Chaudhary was not present at his house, but he had
seen him prior to 31.08.2012 in wresting bout about 10-15 days ago in the
area of Depalpur. Further, during cross-examination by defence, this
witness has stated that he is active member of Congress party and had
contested the elections of M.C. on the ticket of Congress party. He has
further stated that usually the bouts of wresting were played by Rajender
Chaudhary in the area of Depalpur after every about 10-15 days prior to
2012-2013 and that he is also a wrestler and he used to meet Rajender
Chaudhary in the Akharas almost each and every day. Likewise, PW-181
Vivek Sharma deposes that he knows Rajender Chaudhary who is wrestler


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and on 31.08.2012, Rajender Chaudhary was not present at the house, but
he had seen him prior to 31.08.2012 in a wrestling about 10-15 days ago,
in the area of Depalpur. It is pertinent to note here that none of PW-180
and PW-181 were sought to be re-examined by learned SPPs for the NIA
with the leave of the court. Further, two witnesses i..e PW-176 Narayan
Dass Ji and PW-214 Ram Sharan Dass have also been examined, but
again none of these witnesses has supported the prosecution case and with
the leave of the court both these witnesses were also cross-examined by
learned SPPs for the NIA, but again nothing substantial could be elicited
in support of the prosecution. Infact, PW-176 Narayan Dass Ji, in his
cross-examination by learned SPP for NIA, has stated that he has seen
accused Rajender Choudhary present in the court but he has never seen
him before nor he (accused) stayed in their Ashram by the name of
Lakshman Dass. Likewise, PW-214 failed to identify the persons i.e. two
boys who started living in their Ashram and during cross-examination by
learned SPP for NIA, this witness, after seeing the accused, stated that he
is not in a position to identify him. Therefore, no credible evidence has
come on record to make out that accused persons, namely, Kamal
Chauhan and Rajender Chaudhary had ever absconded after the
occurrence in question. Even otherwise, it is settled law that mere
absondance cannot form fulcrum of guilty mind. Absconding of person
alone, in isolation, in the absence of any other incriminating material, is
not good enough. Absconding of accused after commission of crime has
no decisive implication, but it has utility to form a link to complete the


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full chain.
48. As per prosecution version, accused Lokesh Sharma is
alleged to have sent accused Kamal Chauhan and Rajinder Chaudhary to
Delhi to carry out recce in December 2006; accused Kamal Chauhan
alongwith accused Rajinder Chaudhary, Shivam Dhakad, Amit Hakla,
Lokesh Kumar etc are alleged to have undergone training of
firing/shooting at Karni Singh Shooting range at Faridabad; accused
Kamal Chauhan alongwith Rajinder Chaudhary, Shivam Dhakad, Amit
Hakla, Lokesh Sharma etc are also alleged to have undergone training of
bomb making/demonstration of blasting of bomb in Bagli forest area,
Dewas(MP); accused Kamal Chauhan, Rajinder Chaudhary, Lokesh
Sharma and Amit Hakla are alleged to have taken delivery of suit-case
bombs/IEDs in Sarvsampan Nagar, Indore on 17.02.2017 and thereafter
reached Delhi at Old Delhi Railway Station and stayed in a dormitory at
old Delhi Railway Station; accused Kamal Chauhan, Amit @ Prince are
alleged to have planted bombs in Samjhauta Express train alongwith co-
accused Lokesh Sharma and Rajinder Chaudhary on 18.02.2007.
However. after perusing the entire evidence on record, there is no
concrete evidence to establish role of the accused as per the afore-noted
allegations. No doubt accused suffered disclosure statements, but
undisputedly no recovery whatsoever of any material object and no
discovery of any new fact has been effected in pursuance to the said
disclosure statements and thus any such evidence does not come within
the exception carved out under Section 27 of the Indian Evidence Act and

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in fact the same gets hit by Section 25/26 of the Indian Evidence Act and
is inadmissible and cannot be relied upon to bring home guilt to the
accused. It is settled law that Section 27 of the Indian Evidence Act is
applicable only if the disclosure statement leads to the discovery of some
new fact or leads to discovery of an unknown fact and the relevance under
the exception postulated by Section 27 is limited to the extent as it relates
distinctly to the fact thereby discovered. The rationale behind Section 27
is that facts in question would have remained unknown but for the
disclosure of the same by the accused. Under Section 27 if an information
given by the accused leads to the discovery of a fact which is direct
outcome of such information then only it would be evidence, but when the
fact has already been discovered then the evidence could not be lead in
respect thereof. What is admissible under Section 27 is information
leading to discovery and not any opinion formed on it by the prosecution
and mere disclosure alone would not automatically lead to the conclusion
that offence was committed by the accused making the disclosure
statement. If no discovery of any new fact is effected in pursuance to
disclosure statement then information under Section 27 is inadmissible
because a fact already known cannot be re-discovered. In the instant case,
prosecution has sought to rely upon disclosure statements and
consequential discovery/pointing out memos of some places, however no
recovery thereof has been effected and no discovery of new fact has
emerged and therefore such disclosure memos and pointing out memos
cannot be pressed into service to derive an inference of guilt qua the


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accused persons making such disclosure statements. The Hon’ble
Supreme Court in State (N.C.T. Of Delhi) vs Navjot Sandhu @
Afsan Guru (2005) 11 SCC 600 has also held that discovery of fact
referred to in Section 27 of the Indian Evidence Act should be confined
only to the discovery of a material object and the knowledge of the
accused in relation thereto or the discovery could be in respect of his
mental state or knowledge in relation to certain things concrete or non-
concrete. A plain mental fact without the discovery of physical object will
not come within the ambit of Section 27. It has further been held that
discovery of fact cannot be equated to the object produced or found. It is
more than that. The discovery of fact arises by reason of the fact that the
information given by the accused exhibited the knowledge or the mental
awareness of the informant as to its existence at a particular place.
Further, the Hon’ble Supreme Court in Bodhraj Vs. State of J&K
(2002) 8 SCC 45 has observed that the words “so much of such
information” as relates distinctly to fact thereby discovered are very
important and the whole force of the Section concentrates on them.
Clearly the extent of the information admissible must depend on the exact
nature of the fact discovered to which such information is requires to be
relate. Further, the Hon’ble Supreme Court of India in Himachal
Pradesh Administration Vs. Om Parkash (1972) 1 SCC 249 has
observed as under:-
“In our view there is force in this contention. A fact discovered
within the meaning of Sec. 27 must refer to a material fact to which


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the information directly relates. In order to render the information
admissible the fact discovered must be relevant and must have been
such that it constitutes the information through which the discovery
was made.”
49. So far allegation pertaining to carrying out recce of Delhi
Railway Station is concerned, there is no evidence on record to that effect.
Still further, so far as prosecution version to the effect that accused
Lokesh Sharma, Rajinder Chaudhary, Kamal Chauhan and Amit Hakla
reached old Delhi Railway Station from Indore on 18.02.2007 and they
stayed in dormitories, again no evidence at all has come on record to
establish this fact. First of all, neither any proof in the shape of train
tickets/reservations or any other records of the Railways regarding travel
of accused persons from Indore to Nizamudin Railway station and then
from Nizamuding Railway station to old Delhi Railway Station, has been
brought on record. Further there is no documentary or other admissible
evidence to establish that these accused had in fact stayed in some
dormitories at old Delhi Railway Station on 18.02.2007.
50. Not only this, prosecution has failed to collect and bring on
record any CCTV footage in order to lend credence to its story regarding
involvement of present accused in the crime, especially when
investigating office PW224 has admitted in his cross-examination that
some CCTV cameras were installed at certain locations of old Delhi
railway Station on 18.02.2007. Still further, PW215/Asstt.
IO/R.S.Jamwal, in his cross-examination, has also stated that so far as he


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remembered, during the year 2007 CCTV cameras were installed at Delhi
Railway Station premises but he did not recollect the places. Further this
witness, though states that some of the CCTVs which were covering the
places of incident were not functioning, but he could not tell which
cameras were functioning at that time. This much admission on the part of
investigating officers further lays bare chinks in the prosecution version,
because the best evidence in the shape of CCTV footages has been
withheld by the prosecution/NIA. Had the CCTV footages of old Delhi
Railway Station been collected by the investigating agency and put to
rigorous examination, then some vital leads might have been obtained by
it in order to bring the real culprits to justice, but no such evidence has
been brought on record. Still further, one PW191/ M.S. Wadia in his
examination-in-chief states that the record pertaining to the retiring rooms
and dormitories for the year 2007 was disposed vide letter dated 4.5.2010,
however this witness in his cross-examination states that as per document
Ex.PW24/5 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. Still further,
as per the prosecution version, accused, namely, Lokesh Sharma, Kamal
Chauhan, Rajinder Chaudhary and Amit Hakla escaped after allegedly
planting the bombs/explosives in Samjhauta Express train and escaped to


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Jaipur and then went to Indore, however again no evidence in this regard
has been brought on record to make out any such escape journey of these
accused from old Delhi Railway station to Jaipur by train and then to
Indore by bus and in the absence of any credible and admissible evidence,
this court cannot put stamp of approval to the version put forth by the
prosecution in the shape of mere allegations.
51. As per prosecution case, suitcase covers of the two
unexploded bombs/IEDs planted in one compartment/bogie were found
at/recovered from the place of occurrence and the said suitcase covers
were found to have been stitched by tailor master Iqbal Hussain of Indore
and the said suitcase covers were allegedly got procured by accused
persons from Kothari market Indore. In this regard, prosecution has
examined four witnesses, i.e. PW-108 Iqbal Hussain, PW-109 Fakruddin
@ Fakri, PW-110 Zainuddin and PW-111 Puran Mal. PW-108 Iqbal
Hussain states that he is working as tailor master on the shop of
Fakrudeen, being run under the name and style of M/s. M.K. Bag House,
Indore. Fakrudeen himself runs his shop. On 14.02.2007 Fakrudeen asked
him to stitch cloth covers of two briefcases having size of 22-24 inches
and accordingly he stitched the covers and while stitching he put the
identification mark of the make of briefcases, which was Apollo 600, by
marking this on the clothes for the purpose of identification and handed
over the bags to Fakrudeen. Later in the month of March 2007, a police
official from Haryana police came to the shop of Fakrudeen and after
enquiry, when they showed him a cover and photograph and after seeing

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the cover, he disclosed that since the word ‘Apolo 600’ had been written
on that cover, it was the same cover which was stitched by him and his
statement was recorded by the police in this regard. Later on, he made
statement, copy of which is Mark PW-108/A before the Judicial
Magistrate also at Panipat and that it is the same statement which he had
signed before the Magistrate, after admitting it to be correct. He further
identified both the bag covers of blue and grey colours as MO-15 and
MO-16 respectively and that these are the same covers which were
stitched by him and which were shown to him by the police. He also
identified the marking of word ‘Apollo 600’ on one of the bags of grey
colour, MO-16.He further deposed that he has also given his sample
handwriting before the Judicial Magistrate at Panipat vide five sheets of
sample handwriting MO-17 to MO-21 and these are the same sheets on
which he gave his sample handwriting before Magistrate and identified
the same. Further, PW-109 Fakruddin @ Fakri has deposed that he is
running a shop under the name and style of M/s. M.K.Bag in Maharaja
Complex, Indore for stitching bag covers etc. Another shop with the name
of Abhinandan Bags is also situated in the same market, which is being
run by Jainudeen. On 14.02.2007 Puran, Salesman of Abhinandan bags,
came to his shop alongwith a suitcase alongwith a piece of cloth and
asked him to stitch a cover of that suitcase and also asked him to stitch
another cover of the same suitcase from the same blue coloured cloth but
from its reverse side. Accordingly he, after cutting the covers, handed
over the same to his Karigar Iqbal Hussain and he accordingly stitched the

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covers and on the same evening Puran came to his shop and took away
the covers. Since one of the cover was not stitched as required, he asked
Puran that if customer will not take that cover, he will take it back, but
later on Puran told him that customer took away both the covers. They
used to put identification marks on the cloth on the basis of model of the
suitcase. No mark was put on both these covers but another cover was
also taken by Puran, on which the mark ‘Apollo 600’ was mentioned by
them. At about 4th or 5th March 2007, Haryana police came to his shop
and purchased two bag covers of ‘Apollo 600 Model’ of suit case. Police
also shown him a photograph of a cover on which ‘Apollo 600’ was
mentioned and he identified the same to be of his karigar. Then police
again came to his shop and shown him a suit case cover of blue colour
and on seeing it, he told the police that it is also stitched by him. He also
identified two suitcase covers of blue and grey colour as MO-15 and MO-
16. He also identified the cuttings MO-23 which was handed over by him
to the police, saying that it is the same cloth which was used to stitch the
suit case cover and police has taken the above cuttings in possession as
per recovery memo, Ex.PW-109/1, which bears his signatures. He further
deposed that he also visited Panipat on the asking of police and his
statement, photocopy of which is Mark PW109/A, was recorded by
Judicial Magistrate at Panipat and it is the same statement which was
made by him before the Magistrate and was signed by him after admitting
it to be correct. He has further identified recovery memo Ex.PW109/2
vide which he handed over the bill MO-24 to the police. Further, PW-110

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Zainuddin has deposed that he is running a shop under the name and
style of M/s. Abhinandan bags in Kothari market, Indore, for the last
about 25 years. After the incident of bomb blast, police came to his shop
and enquired from him after showing some pieces of cloth of covers as to
whether these were being stitched by him or somebody else. Stitched
covers were not shown to him. Puran, Viren Aggarwal and Huzefa were
working as his Salesmen at that time. He was not present at his shop
during the time when these covers were made as such, he knows nothing.
The witness was declared hostile on the request of learned Special PP for
the NIA and was cross-examined by Ld. Special PP and during his cross-
examination conducted by Ld.Special PP, he stated that in March 2007
Dalbir Singh, DSP, Haryana came to his shop and had shown two covers
of attachie to him. Both the covers MO-15 and MO-16 were shown to the
witness and he deposed that he has seen both the covers, none of these
were shown to him by the police when it visited his shop. He has further
denied having made statement Ex.PW110/A to the police. He further
admitted that vide recovery memo Ex.PW110/1, the balance cloth of 14
meters was taken into possession by the Haryana Police. He identified the
blue coloured cloth MO-25 and stated that it is the same cloth which was
handed over by him to the police when it visited his shop. Further stated
that vide memo Ex.PW110/2, he handed over to the police MO-26 which
is a writing on the pad of his shop alongwith the bill MO-27 vide which
the above cloth was purchased by him from Porwal Fabrics and signed the
above memo and he identified his signatures on the same. He further


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stated that he was not present when the covers were got stitched from his
shop by somebody and when the same were taken by those persons.
Further, PW-111 Puran Mal has deposed that in the year 2007 he was
working as Salesman in the shop of Zainudeen, being run under the name
and style of M/s. Abhinandan Bags Centre, Kothari Market, Indore and he
was doing this work since 2001. Viren Kumar Aggarwal and Huzefa who
was also nephew of Zainudeen were the other two persons working in the
above shop. In the month of Jan/Feb 2007 one customer came to their
shop alongwith a suitcase cover and asked him that he wanted a similar
cover and accordingly, he showed him the clothes, out of which he
selected blue colour cloth and another piece of cloth was shown to him by
getting the sample from the Fakrudeen's shop and then he ordered to make
two covers of those two clothes, one of blue colour from their shop and
the other Denim cloth was procured from Fakrudeen shop by him and
asked him to provide the same by the evening. Thereafter, he went to the
shop of Fakrudeen and asked him to prepare the covers as per the sample
of the covers. Thereafter, he collected the stitched covers from the shop of
Fakrudeen and handed over the same to the customer in the evening. Later
in the month of March 2007, Haryana police came to their shop and
showed some cover and asked him to identify the same and after seeing
them, he disclosed that he identified those covers and disclosed that the
same were prepared by them. This witness was further shown both the
covers, MO-15 and MO-16, but he did not remember whether these were
the same covers which were shown to him by the police or not but the

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cloth was same. Thus, as per prosecution case, suitcase covers of grey and
blue colour Ex.MO-15 and Ex.MO-16 were the covers which were
recovered from the scene of crime and which were found to be same
covers which were stitched by Iqbal Hussain. Further, during the course of
investigation, some cuttings Ex.MO-23 etc. were handed over by the
above-mentioned witnesses to the police and said cuttings of cloth as well
as the suitcase covers were sent to FSL, Madhuban for examination and as
per report Ex.PA/FSL/1of FSL, Madhuban, cloth piece marked exhibit-22
and cloth piece marked exhibit-23 were compared with the suitcase cover
clothes marked 1 (a) and 1 (b) and these were found similar in respect of
colour, design, physical and microscopic appearance and have the same
texture and this much evidence has made it crystal clear that suitcase
covers, which were recovered from the place of occurrence, were found to
have been stitched by tailor master Iqbal Hussain (PW-108) at M/s M.K.
Bag House, Indore. However, 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. Had the investigating
agency got conducted TIP during the course of investigation, the same
might have given some vital clue about real culprits involved in the
present crime. However, the same has not been done for the reasons best

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known to the investigation agency.
52. Further, prosecution has also sought to lend credence to its
version by submitting that there is extra-judicial confession of accused
Kamal Chauhan before the media people/Press and that the same be taken
as corroborative piece of evidence in order to lend support to the
prosecution case. After going through the evidence of concerned
witnesses i.e. PW192 Ashwani Kaushal and PW193 Arpit Jaiswal, this
court is of the considered opining that there is no credible and admissible
evidence to make out a case of extra-judicial confession of accused Kamal
Chauhan with regard to his involvement in the present crime. Even
though prosecution has examined PW192 Ashwani Koshal who has stated
that on 14.02.2012 he went to Panchkula Court premises to cover the
news of Samjhauta blast case and on that day NIA team had produced
accused Kamal Chauhan in court and the accused was being taken back
by the NIA officials after the court proceedings and many press reporters
were putting questions to the accused and that he was recording all the
proceedings on his video camera and the answers given by accused Kamal
Chauhan, which were not heard by him at the spot because of rush of
press reporters, but subsequently while preparing CD in the office they
found statement made by accused Kamal Chauhan and whatever was
stated the same was recorded by him in video camera and was transferred
by him on the CD and that the CD Ex.PW192/1 was handed over by him
to the NIA officials. However this witness, in his cross-examination, has
admitted that he had not given any certificate regarding preparation of the

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CD from his original record and further stated that he also cannot say that
the CD Ex.PW192/1 was handed over by him to the NIA officials. He has
further states that he cannot say that in photo shop the CD can be edited.
Further admitted that there are many voices in the CD and he cannot say
which words were stated by which of the person at the relevant time. Still
further this witness has stated that the person, who was produced by the
NIA officials in the court on the said day, was having his face covered
with a monkey cap and therefore he cannot identify him in the court. Still
further in his examination-in-chief this witness has also stated that apart
from the CDs prepared from his own video camera, the clippings/footage
of the other news channel were also used to be exchanged. Thus, this
much evidence of this witness nowhere makes out that accused Kamal
Chauhan ever made any extra-judicial confession before the media
persons with regard to his involvement in the crime. Further, so far as
statement of PW193/Arpit Jaiswal is concerned, one CD could not be
displayed during his examination in the court as having been corrupted
and the CD Ex.PW192/1 was displayed during his examination, but this
witness again in his cross-examination has admitted that he had not given
any certificate regarding preparation of CD from his original record.
Further he has stated that there are many voices in the CD and he cannot
say which words were stated by which of the person at the relevant time
and this witness also failed to identify the accused in the court by stating
that the person who was produced by the NIA officials was having his
face cover with monkey cap. Thus, so far as any alleged extra-judicial

144
confession of accused Kamal Chauhan is concerned, the case of the
prosecution falls flat and has no legs to stand.
53. Even though, as per the challan filed by the NIA, it is
submitted that during investigation, through analysis of the call detail
records (CDRs) of various mobile phones, it was revealed that Sunil Joshi
was in Kothari market area at Indore on 14.02.2007 which is relevant to
the instant case and submitted that call detail records of the telephone
used by Pragya, Sunil Joshi, Sandeep Dange and Aseemanand showed
inter connectivity and links of suspects/co-accused during the months of
February/March, 2007. However, again prosecution/NIA has not brought
an iota of evidence on record to establish any such facts/assertions.
Neither any call detail records (CDRs) of any mobile phone nor any other
evidence pertaining to ownership and possession of any mobile phone by
the accused/suspects has been brought on record. The prosecution has
examined two witnesses, namely, PW-203 Rajesh Mittal, SDE and PW-
223 Ravi Parkash, Assistant Nodal Officer, however testimony of these
witnesses does not lend any support to the prosecution case in any
manner. Neither dump data of tower of Kothari market area, Indore has
been proved on record nor any call details were furnished in the
subscriber’s detail record and thus, again valuable piece of evidence
remained untapped.
54. Further, it may also be pointed out here that prosecution has
examined one witness, namely, Istkaar Ali as PW-90 who has stated that
on 18.02.2007 he boarded Samjhauta Express from Delhi to go to


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Pakistan and the train started from Delhi at about 10.50 p.m. and after
about 10 minutes, the train stopped somewhere for some time and
somebody was saying that some persons had got down from the general
coaches, meaning thereby that some suspects are stated to have de-
boarded the train after start of journey of the train. However, there is no
investigation on this aspect and in fact as per version put forth by
investigating agency, none of the accused persons travelled in Samjhauta
Express train and the accused had allegedly planted explosives in the train
at the platform of Old Delhi Railway Station and escaped then and there.
However, the testimony of PW-90 goes diametrically opposite to such
version of the Investigating agency.
55. Likewise, there is no evidence pertaining to alleged meeting
of suspects/accused at Jaipur in October/November, 2005. Even though,
prosecution has examined PW-140 Aruna Thakur, who had brought entry
register of the guests who stayed at Gujrati Samaj Atithi Grah, Jaipur, and
stated that in the year 2005 she was working as Manager of the aforesaid
Atithi Grah and any guest staying in their Atithi Grah used to make entry
in the register in her presence and on 31.10.2005, one guest, namely,
Manoj Singh stayed at their guest house and he made entries in the above
register at serial No. 7954 in her presence and signed the same and apart
from Manoj, six other persons were also with him and they stayed in one
room. However, this witness, in her cross-examination, has stated that she
cannot say that how many persons stayed in their Dharamshala on
31.10.2005 or on 02.11.2005 or on 03.11.2005 and how many rooms were


146
booked and who were those persons. Further, this witness has not
identified any of the accused persons as the person who had ever stayed in
the said Atithi Ghar and thus, there is not an iota of evidence to make out
participation of accused persons in alleged meeting at Jaipur in
October/November, 2005.
56. It may also be pointed out here that as per statement of PW-
195 Rajender Singh Inspector, on 24.02.2007 finger print expert Bharat
Singh visited the police post Panipat and examined the plastic bottles
which were recovered from the spot and that on 26.02.2007 he obtained
the report of finger print from Ram Singh, Inspector Finger Print Expert
and after return to the police post, he deposited the report and material i.e.
case property with MHC of the Malkhana Incharge. 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 finger prints 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.
57. Further, so far as accused Lokesh Sharma is concerned, there
is no evidence to make out his involvement in the present occurrence. The
prosecution has sought to place reliance on retracted confession of co-
accused Aseemanand in order to bring home guilt to this accused.
However, as already noticed, the confession of a co-accused cannot be


147
elevated to the status of substantive evidence which can form basis of
conviction of other co-accused. Moreover, the retracted confession of
accused Aseemanand is self-exculpatory in nature and since concept of
self-incrimination emerges as a pre-requisite for statement of the accused
which fall within the ambit of Section 30 of the Indian Evidence Act, so
no reliance can be placed on the self-exculpatory statement of co-accused
in order to convict another co-accused. Moreover no corroborative
evidence has come on record in order to make out involvement of accused
Lokesh Sharma in the present crime. Legal principle with regard to use of
confession of co-accused against another co-accused is materially
different and is governed by Section 30 of the Indian Evidence Act and in
order to appreciate prosecution evidence, the court has to marshal other
evidence independent of confessional statement of co-accused and if no
credible and admissible evidence has come on record to make out guilt of
an accused, then self-exculpatory confessional statement of co-accused
cannot be taken into account as the sole evidence to render finding of
guilt. In the case of Haroom Haji Abdulla v. State of Maharashtra,
AIR 1968 Supreme Court 832 , the Hon’ble Supreme Court held that a
confession intended to be used against a co-accused stands on a lower
level than the evidence of accomplice because the latter is tested by cross-
examination whilst the former is not. The confession of a co-accused is
not an evidence but if there is other evidence on which a conviction can
be based, they can be referred to as lending assurance to the verdict. It
was further held that although the confession may be taken into

148
consideration against a co-accused by virtue of Section 30 of the Evidence
Act its value is extremely weak and there could be no conviction without
corroboration on material particulars. Further it is trite law that a retracted
confession is a weak link against the maker and more so against a co-
accused. The expression 'the court may take into consideration such
confession' is significant. It signifies that such confession by the maker as
against the co-accused himself should be treated as a piece of
corroborative evidence. In absence of any substantive evidence, no
judgment of conviction can be recorded only on the basis of confession of
a co-accused, be it extra judicial confession or a judicial confession and
least of all on the basis of retracted confession. Further in Sidhartha
Versus State of Bihar, (2005) 12 SCC 545 the Hon’ble Court held as
under:
"It is true that the confession made by a co-accused shall not be
the sole basis for a conviction. This Court in Kashmira Singh
v. State of M.P. held that the confession of an accused person
is not evidence in the ordinary sense of the term as defined in
Section 3. It cannot be made the foundation of a conviction and
can only be used in support of other evidence. The proper way
is, first, to marshal the evidence against the accused excluding
the confession altogether from consideration and see whether, if
it is believed, a conviction could safely be based on it. If it is ca-
pable of belief independently of the confession, then of course it
is not necessary to call the confession in aid. But cases may arise

149
where the judge is not prepared to act on the other evidence as it
stands, even though, if believed, it would be sufficient to sustain
a conviction. In such an event the judge may call in aid the con-
fession and use it to lend assurance to the other evidence and
thus fortify himself in believing what without the aid of the con-
fession he would not be prepared to accept."
58. Further, so far as motive to commit the crime is concerned, it
is settled law that motive alone cannot be taken to base conviction of an
accused, even though the same is relevant. The Hon’ble Supreme Court
in State through CBI Vs. Mahender Singh Dahiya 2011 (3) SCC
109 has observed that where case of the prosecution has been proved
beyond reasonable doubt on the basis of the material produced before the
Court, the motive loses its significance, but in cases based on
circumstantial evidence, motive for committing the crime assumes great
importance. In such circumstances, absence of motive would put the court
on its guard to scrutinize the evidence very closely to ensure that
suspicion, emotion or conjecture do not take the place of proof (See
Surinder Pal Jain Vs. Delhi Administration 1993 (3) RCR (Criminal) 195
and Tarseem Kumar Vs. Delhi Administration) (1994) Supp 3 SCC 367.
Further, the Hon’ble Supreme Court in Suresh Chander Bahri Vs.
State of Bihar 1994 (3) RCR (Criminal) 1 has held that sometimes
motive plays an important role and becomes a compelling force to commit
a crime and therefore motive behind the crime is a relevant factor for
which evidence may be adduced. A motive is something which prompts a


150
person to form an opinion or intention to do certain illegal act or even a
legal act with illegal means with a view to achieve that intention. In a case
where there is a clear proof of motive for the commission of crime, it
affords added support to the finding of the court that the accused was
guilty for the offence charged with. The Hon’ble Supreme Court in B.S.
Venkata S. Rao Vs. State of Andhra Pradesh 1994 (3) RCR
(Criminal) 606 has held that in case of circumstantial evidence aspect of
motive assumes considerable importance. 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 Aseemannand 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 jihadis who are attacking Hindus’ 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

151
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. 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. It is also interesting to note
here that even though PW136 Dr. Ram Partap Singh did not toe the line of
prosecution, but neither any leave of the court was taken nor he was cross-
examined by learned Special PPs for the NIA in order to contradict and
confront him with his statement recorded under Section 161 Cr.P.C.
59. 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


152
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. In Bhagat Ram v. State of Punjab, AIR 1954 SC
621 it has been laid down that where the case depends upon the
conclusion drawn from circumstances the cumulative effect of the
circumstances must be such as to negative the innocence of the accused
and bring the offences home beyond any reasonable doubt. Further, the
Hon’ble Supreme Court in C. Chenga Reddy and Ors. v. State of A.P.
(1996)10 SCC 193 has observed thus:
"In a case based on circumstantial evidence, the settled law is that
the circumstances from which the conclusion of guilt is drawn
should be fully proved and such circumstances must be conclusive
in nature. Moreover, all the circumstances should be complete and
there should be no gap left in the chain of evidence. Further the
proved circumstances must be consistent only with the hypothesis


153
of the guilt of the accused and totally inconsistent with his inno-
cence....".
60. Further, the Hon’ble Supreme Court in Hanumant Govind
Nargundkar and Anr. v. State of Madhya Pradesh AIR 1952 SC 343
has also observed as under:
"It is well to remember that in cases where the evidence is of a cir-
cumstantial nature, the circumstances from which the conclusion of
guilt is to be drawn should be in the first instance be fully estab-
lished and all the facts so established should be consistent only with
the hypothesis of the guilt of the accused. Again, the circumstances
should be of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be such as
to show that within all human probability the act must have been
done by the accused."
61. Still further, the Hon’ble Supreme Court in Sharad
Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 ,
while dealing with circumstantial evidence, has held that onus was on the
prosecution to prove that the chain is complete and the infirmity of lacuna
in prosecution cannot be cured by false defence or plea. The Hon’ble
Court recapitulated the five golden principles which constitute the
panchsheel of the proof of a case based on circumstantial evidence. The


154
Hon’ble Supreme Court in Shivaji Sahebrao Bobade v. State of
Maharashtra, (1973) 2 SCC 793 held that 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."
62. 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 accused 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.


155
(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 hy-
pothesis put forward by the accused however far-fetched and fanci-
ful 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.
63. 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 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,


156
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.
64. 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 Aseemannad, Lokesh Sharma, Kamal Chauhan and


157
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
Aseemannad, 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 Aseemannad
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 property 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.
65. 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

158
remain unidentified and unpunished. It is generally noticed that a malaise
has set in the investigating agencies which coin various terms law 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. 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. However, despite all
this, everything does not seem to be lost, because in the instant case
itself, as per evidence of PW23/HC Ram Dass, one ASI Kashmir Singh
instructed them to check the toilets, passengers’ goods and luggage and
beneath the seats and to check about the unclaimed articles also and they
accordingly checked the coaches and nothing was found as unclaimed and
the train started its journey at 2250 hours and the train stopped with jerks
after crossing Diwana Railway Station and he and Mahinder Singh
alighted from the train and noticed some smoke coming from the train and
they were trying to contact ASI Kashmir Singh and Swaran Singh on
walkie-talkie but could not contact them and when they reached near the
burning coaches, they saw ASI Kashmir Singh and HC Tarsem Lal were

159
busy in rescuing the passengers from the burning coaches and ASI
Kashmir Singh instructed them to take the injured passengers towards the
crossing gate and when they came back, they saw HC Tarsem Lal felling
down and they lifted and brought him to the crossing gate and HC Tarsem
Lal told them that Kashmir Singh had gone inside the coach to search for
the passengers and when they again went there, they found ASI Kashmir
Singh lying on the railway track which was adjoining to train and they
lifted ASI Kashmir Singh and brought him to the gate and they noticed
that there was no movement in the body. The aforesaid evidence make out
that services of ASI Kashmir Singh (since decreased) have been
exemplary, who himself took up the courage to save maximum lives
trapped in the burning coaches of Samjhauta Express train and it further
reflects that police personnel and armed forces personnel do not hesitate
even in making the supreme sacrifices in the line of their duties and such
personnel like ASI Kashmir Singh are the real heroes who deserve the
highest accolades and the highest awards/rewards for their selfless
services towards mankind and it is selfless services of such personnel,
which keep all hopes of Utopian society afloat. 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. The Hon’ble Supreme Court, time and again, have
expressed concerns about safety and protection of witnesses and therefore
it is again high time we put in place some sound and workable witness

160
protection scheme at the earliest so that every criminal trial be taken to its
logical conclusion. Indian civilization, which is one of the oldest one, had
survived several onslaughts throughout centuries, which testifies vibrancy
of its rich heritage and culture and therefore we need to remind ourselves
and the world at large the old Indian phrase expressed in ‘Vasudhaiva
Kutumbakam’, which aptly conveys that ‘the world is one family’.
66. File be consigned to the record room, after due compliance,
however, file shall not be destroyed as it can be summoned as and when
proclaimed offenders/persons i.e. Sandeep Dange @ Parmanand @
Teacher, Amit @ Ashok @ Prince @ Sunny @ Amit Chowhan @
Ashwani @Ramesh Venkat Mahalkar @ Amit Hakla and Ramchandra
Kalasangra @ Ramji @ Vishnu Patel are arrested or surrender themselves
in the court. Ahlmad is directed to give a note with red ink on the file in
this regard.
Pronounced in Open Court; (Jagdeep Singh)

20.03.2019 Special Judge under
the NIA Act for the State of
Haryana at Panchkula.
UID No.: HR0125
Note: -All the pages of the judgment have been checked and signed by
me.
(Jagdeep Singh)
Special Judge under
the NIA Act for the State of
Haryana at Panchkula.
UID No.: HR0125
Rajesh Chawla

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What was the initial investigation about?

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What were the charges against the accused?

What were the charges against the accused?

Bar & Bench (www.barandbench.

IN THE COURT OF JAGDEEP SINGH, SPECIAL JUDGE under

National Investigation Agency (NIA)

1. Naba Kumar Sarkar @ Swami Asimanand son of late Bhibuti Bhusan

2. Sunil Joshi @ Sunilji @ Manoj Joshi @ Manoj @Guruji son of late

3. Ramchandra Kalasangra @ Ramji @ Vishnu Patel son of Gopal

4. Sandeep Dange @ Parmanand @ Teacher son of Vishwas Kashav

5. Lokesh Sharma @ Ajay Tiwari@ Ajay@Kalu son of Gopal Krishan

6. Kamal Chauhan @ Bhai Saab @ Badrinarayan @ Lucky @ Vijay son

7. Amit @ Ashok @ Prince @ Sunny @ Amit Chowhan @ Ashwani

8. Rajender Chaudhary @ Dasrath @ Samundar@Laxman Das Maharaj

NIA Vs. Naba Kumar Sarkar @ Swami Asimanand and others

1. The above-named accused have been sent up to face trial in

151, 152 of the Railways Act, Sections 3, 4 & 6 of the Explosive

Substances Act, 1908, Sections 3 & 4 of the Prevention of Damage to

Unlawful Activities (Prevention) Act, 1967 by the National Investigation

Agency, New Delhi.

2. At the very outset, it is pertinent to mention here that initial

NIA Vs. Naba Kumar Sarkar @ Swami Asimanand and others

and subsequently in compliance of order no. 11034/16/2010-IS/VI dated

26.07.2010 of the Ministry of Home Affairs, Govt. of India, New Delhi,

National Investigation Agency (NIA) took over the investigation in the

present crime by re-registering the case as Cr. No. 09/2010 dated

29.07.2010, P.S. NIA, New Delhi.

3. Adumbrated, the facts of the present case are that on

18.02.2007 the Train No. 4001 UP Attari Express (Samjhauta Express)

was parked at platform No. 18 of Railway Station, Delhi junction for

R.D. Singh were deputed as Driver, Co-

Driver and Guard respectively of the said train. Additionally, three

bearing Nos. NR SLR 00719, NR GS 04420, NR GS 98470, NR GS C

219066, NR GS 98482, NR GSCN 96297, NR GSCN 96266, NR GS CN

99251, NR GSCN 96236, NR GS 10855, NR GS 03432, NR GS 03431,

NR GS 14857, NR GS C2 19054, NR GS C2 19113 and NR GSCR

04703. Out of these coaches, 4 were reserved 2 nd class sleeper coaches

and remaining were unreserved general coaches. The 4 sleeper coaches

4. It is stated that as per the investigation, in pursuance of

NIA Vs. Naba Kumar Sarkar @ Swami Asimanand and others

explosion in 4001 Delhi-Attari Express (Samjhauta Express train) in the

intervening night of 18th/19th February, 2007 at about 25.53 hours while

Haryana. After the explosion, two unreserved coaches bearing No. NR GS

03431, NR GS 14857 caught fire, as a result of which 67 persons were

were killed in the explosion and 12 injured persons were later on

investigation, it is stated to have revealed that four Improvised Explosive

Devices (IEDs) were planted in unreserved compartments, out of which

IEDs placed in 12th compartment (No. NR GS 03431) and 13th

compartment (No. NR GS 14857) exploded, which was followed by fire

in the compartments and one unexploded IED in a suitcase was recovered

from 15th (NR CZ 19113) compartment, which exploded in the process of

diffusion by the technical personnel. However, one unexploded IED in a

railway track near 15th compartment). The defused/destroyed IEDs debries

terror act was allegedly done by using improvised explosive devices

(IEDs) along with inflammable substances which caused blasts in

Attari/Samjhauta Express train on 18.02.2007 and the blast and

NIA Vs. Naba Kumar Sarkar @ Swami Asimanand and others

passengers travelling in the train and also caused destruction of several