New Delhi: No evidence, and a trial court judgment based on speculations and suspicions — this is what the Gauhati High Court observed last week, while acquitting all five convicts in a 2004 bomb blast in Assam’s Dhemaji, which had killed 13 people, including 10 schoolchildren, on the spot, while injuring several others.
The blast had occurred on 15 August 2004, at around 8:55 am, in the Dhemaji College playground, as Independence Day celebrations were underway. The five accused — identified in the HC judgment as Dipanjali Borgohain, Lila Gogoi, Jatin Dowari, Muhi Handique and Hemen Gogoi — had been convicted by a trial court in 2019. The prosecution had claimed that the United Liberation Front of Assam (ULFA) had carried out the attack “to create an atmosphere of terror, with an aim to create an independent nation by declaring war against the State”, said the high court judgment seen by ThePrint.
However, a HC bench comprising Justices Michael Zothankhuma and Mridul Kumar Kalita set aside the conviction last week, asserting, “We find that the findings of the learned Trial Court have not been supported by the evidence recorded by the prosecution witnesses. The Trial Court cannot make findings on the basis of speculations or suspicion and the same has to be based on evidence.”
It further felt that the prosecution had been unable to prove “foundational facts” against the appellants, and that the trial court had arrived at a conclusion “based on suspicion and speculation, not supported by the evidence adduced by the Prosecution witness”.
The court added: “In the present case, the prosecution has not been able to conclusively prove the guilt of the appellants, as there is no continuous chain of circumstantial evidence, with regard to the hypothesis that the appellants had hatched a conspiracy and had blasted the bomb on the fateful day in the Dhemaji College Field.”
Chargesheet in the case was filed in February 2011, and charges were framed against the accused, according to the HC judgment. During the trial before the trial court, 58 prosecution witnesses and two defence witnesses were examined. The trial court then convicted the five accused, sentencing Lila Gogoi, Dipanjali Borgohain, Muhi Handique and Jatin Dowari to life imprisonment, and handing a four-year jail term to Hemen Gogoi.
A retracted confession
The high court’s reasoning in the judgment began with looking into the testimonies of all the prosecution witnesses.
For instance, the trial court judgment had relied heavily on a purported confessional statement made by one of the accused, Jatin Dowari, claiming that it revealed that a conspiracy was hatched to blast a bomb in Dhemaji College field on Independence Day. However, Dowari had retracted his confession later before the court.
The high court now noted that the magistrate who recorded Dowari’s purported confession in October 2004 told the trial court that before recording the statement, he did not ask Dowari as to why he wanted to make a confession. The magistrate also told the trial court that he did not ask the accused persons whether they were going to make the statement for fear of police torture or under pressure. Taking note of this, the high court said that his testimony “does not instill confidence in us that the statements were made voluntarily”.
According to Dowari’s confession, which was a part of the HC judgment, he had shown the college field at gunpoint to five alleged members of the separatist organisation the United Liberation Front of Asom (ULFA) — including Lila Gogoi — on 5 August 2004, and had then escorted them through a safe passage later the same day. The high court asserted that “the showing of the field by Jatin Dowari does not indicate that he had any knowledge that a bomb was going to be planted in the field, though it can be inferred that there could be a connection with the bomb blast”.
While the trial court felt that his retraction was an afterthought, and that the confession was made voluntarily, the high court opined even though his statement was voluntary, his confession was “exculpatory in nature”. This means that the court felt that there was nothing incriminating in his confession, and that “he does not implicate himself and as such, it cannot be said to be a confession in its true sense.”
“Further, the retracted confessional statement has not been corroborated by any evidence to the effect that Jatin Dowari was involved in the bomb blast and as such, the same cannot be the basis for conviction of the appellants,” the court added.
It, therefore, felt that Dowari’s retracted confessional statement “only gives rise to a suspicion and it is by no means an establishment of any fact pointing towards the guilt of the accused Jatin Dowari having any knowledge that a bomb would have been planted in the Dhemaji College field”.
A Maruti car, a pocket diary
The trial court had also emphasised on the prosecution claim that Dowari had recreated the scene of the crime during the police investigation, according to the HC order. However, the high court now noted that there was no evidence on record to show that he had, in fact, recreated the scene of the crime.
“There is nothing to show that the appellant Jatin Dowari had been involved in the making, transportation, planting or in the blasting of the bomb…No whisper of the same is made in the evidence adduced and no video recording/cassette has been produced. No notes are shown and no evidence has been led by any witness as to what the appellant had stated while allegedly recreating the scene of the crime,” the court asserted.
It, therefore, felt that the trial court’s finding with regard to Dowari’s involvement in the blast was not supported by any evidence. It then asserted that there was no evidence against other accused in the case as well, apart from Dowari’s retracted confessional statement.
The trial court had found Dipanjali Borgohain and Muhi Handique guilty of involvement in the blast because their mobile phones had been allegedly used for making calls to alleged ULFA leaders. However, the high court noted that the prosecution had not produced any evidence with regard to the contents of the communication that had allegedly taken place between the accused Borgohain and Handique, and the alleged ULFA leaders, connecting them with the bomb blast.
Apart from this, the prosecution had also relied on the seizure of a Maruti car from Handique, alleging that it was used to commit the crime. However, the high court pointed out that the prosecution had no evidence as to whether the car was used for committing the crime.
It observed, “There is no evidence recorded to the effect that the perpetrators of the crime had used the car or carried the bomb or parts of it for the purpose of committing the bomb blast. As such, we fail to understand as to how the seizure of a Maruti car, which has not been shown to be connected with the bomb blast, could be the basis for coming to a finding that the appellant Muhi Handique was guilty of having been involved with the bomb blast.”
Similarly, the prosecution had relied on recovery of a pocket diary from Handique while finding him guilty, without explaining the contents of the diary, observed the HC judgment.
Inconsistencies and contradictions
The trial court had held that another of the accused, Hemen Gogoi, had given shelter to alleged ULFA members in the house that he shared with his brother and their wives. This was on the basis of the finding that “four or five boys” had come to his house sometime in August 2004, and had stayed at his place in his absence, by threatening his wife and sister-in-law. This was purportedly according to the witness testimony of Gogoi’s sister-in-law and wife.
However, the high court now pointed out that there was no evidence showing that these “boys” belonged to ULFA or had anything to do with the bomb blasts.
The court highlighted various contradictions and inconsistencies in other witness testimonies as well. The court found it “disturbing” that while the witnesses claimed that statements of various accused had been video recorded, the prosecution had failed to produce these video recordings in either the trial court or the high court.
The court also emphasised on the fact that the Supreme Court has ruled that courts should be wary of the fact that it is human instinct to react adversely to the commission of an offense and make an effort to see that such instinctive reaction does not prejudice the accused in any way.
“While the offence committed is a serious one and though conviction may be based solely on circumstantial evidence, the prosecution must provide greater assistance to the Court that its case has been proved beyond reasonable doubt,” it explained.
The court then opined that the prosecution has not been able to prove the guilt of the five accused.
(Edited by Poulomi Banerjee)
Also read: How SC’s right to privacy judgment influenced rulings — Section 377, trans rights, phone tapping