The extra-judicial confession made by Naba Kumar Sarkar alias Swamy Aseemanand on December 18, 2010, was not voluntary as it was made in police custody, the NIA Special Court judge K. Ravinder Reddy observed in his verdict.
In the judgment accessed by The Hindu , the judge observed that the investigating officer and CBI SP Rajah Balaji testified during the trial that Aseemanand was in CBI custody then. Because of that, Aseemanand’s confessional statement is hit by section 26 of Indian Evidence Act, the judge noted.
The accused was not provided legal aid then, and even retracted the statement four months later. The prosecution had presented two crucial witnesses, Maqbool Bin Ali alias Chawaish and Shaik Abdul Khaleem, both of whom were arrested in different cases and lodged in Chanchalguda central prison.
According to the prosecution, the two witnesses interacted with Aseemanand inside the prison where the latter admitted to his guilt in Mecca Masjid blast case. “The presence of the two witnesses in Chanchalguda prison is not proved beyond reasonable doubt,” the judge said in the verdict.
‘No documentary proof’
Barring oral statements, the investigators failed to present any documentary evidence to confirm their presence in the prison when Aseemanand was lodged there, he stated.
They did not examine Chanchalguda prison superintendent or record his statement in this regard, the judgment said.
The judge said the manner in which the Test Identification (TI) parade to recognise Accused Two Lokesh Sharma was conducted was illegal. Prosecution witness, a judicial officer, conducted the TI parade in the prison. He came back to the court and dictated the proceedings.
“This was illegal and not in consonance with rule 34 of Criminal Rules of Practice,” the judge said.
It was also not clear in the report from which direction (left or right) of the row serial number one started in the TI parade. Investigators presented evidence of the call data record of Accused One Devender Guptha’s mobile phone number 9334371425 from the service provider.
Citing judgment of the Supreme Court, the NIA judge said electronic evidence must be supported by a certificate from the service provider and that merely exhibiting the document does not dispense with proof.
