AN accused in the Bhima Koregaon case, Professor Shoma Sen, has petitioned the Bombay High Court challenging her prosecution under the stringent anti-terrorism Unlawful Activities (Prevention) (UAPA) Act.
Sen, a former Head of Department of English at Nagpur University, alleged that that the case against her had been built entirely on unfounded, forged, hearsay evidence that was planted on digital devices belonging to a co-accused-Rhona Willson, which (devices) were "illegally" seized by the police in complete violation of all safeguards and procedures mandated under applicable law.
She was arrested on June 6, 2018, in connection with the violence in Bhima Koregaon and has been in jail since then without bail.
Sen's petition came to be filed a month after co-accused Rona Wilson, approached the Bombay High Court challenging the sanction granted by the state government to prosecute him under UAPA. In his plea, Wilson contended that the incriminating evidence said to have been found on his computer at the time of seizure on 17.04.2018 was 'planted' with the intention of framing him in a false and fabricated case.
Both the petitions are yet to be taken up by the high court for the hearing.
In her plea, Sen has asserted that the entire case against her was based solely on the electronic records allegedly recovered from the devices seized from Rona Wilson's home. These electronic records, the plea mentioned, comprised a series of purported letters that were allegedly written by and exchanged between the co-accused and members of the CPI (Maoist), a proscribed organization under the UAPA.
The plea, thus, argued that the independent verifications of the cloned copy of this electronic evidence provided by the prosecution to the defence, established that the electronic evidence was forged, fabricated and planted through dangerous malware that was used by an external attacker to infect Rona Wilson's Computer.
"There is not a single piece of corroborative or supporting evidence introduced by the prosecution, and accordingly, their entire case rests on the aforesaid electronic evidence", the plea stated.
Referring to the FSL report, Sen pointed out that the FSL report was silent with regard to the existence of malware, or evidence of tampering with the electronic evidence, despite being directly queried on this aspect by the Investigating Officer.
"The analysis of the FSL is restricted solely to aspects of forensic acquisition of the files, and searching of the hard-disks, without any examination of the source, authenticity, usage, interaction, and related metadata that could establish the origin of the documents therein. Effectively, the only objective of the FSL report is to describe the various files found on the electronic devices that were seized from the accused", the plea stated.
In her support, Prof Sen relied upon a forensic report by the American based, Arsenal Consulting, which indicated all the incriminating documents, including a letter mentioning a plot to assassinate the Prime Minister of India in another " Rajiv Gandhi type of incident " were planted on Rona Wilson's computer, through a malware named "Netwire".
The Washington Post in February this year, based on the report made by Arsenal Consulting, reported that this malware came to be planted in the system of activist Rona Wilson through a mail, which carried an attachment and appeared innocuous. Attempts to download the attachment resulted in installation of the malware in the background, without him getting even a hint of it.
The plea said the presence of an electronic record on a digital device cannot lead to the presumption that the owner of the digital device was the originator of that electronic record. Instead, an investigation of the source of an electronic record required an analysis of the metadata and technical aspects of that record, and further corroboratory evidence, so as to establish who the originator of that information was.
"This was not done in the instant case by the FSL Pune", the plea claimed.
The prosecution of any individual, the plea asserted, on the basis of electronic evidence planted through malware amounts to a serious violation of the principles of evidentiary jurisprudence, as this is no evidence in the eyes of the law.
Prof Sen claimed that the standard operating procedure for seizure was not followed when the electronic devices were seized and the hash value could be the only evidence to authenticate the contents of the seized device were not generated at the time of seizure. Relying on Government guidelines relating to the search and seizure of electronic devices, she asserted that those guidelines were violated.
Referring to the charge-sheet against her, Sen submitted that the allegations against her were that she had been a member of the frontal organisations of the banned organisation CPI (Maoist). She contended the UAPA did not proscribe or even recognise frontal organisations. Instead, the UAPA dealt with 'unlawful associations as are notified by the Central Government following due process under Rules 3 and 4', and separately, it dealt with 'unlawful activities'.
"An allegation that an organisation is a frontal organisation is meaningless under the UAPA, and the UAPA does not outlaw frontal organisations, unless these organisations are either notified as an unlawful association, or shown to be carrying out unlawful activities under the Act", Sen argued.
Additionally, the plea stated that the electronic records relied on by the prosecution against the petitioner could not be considered the evidence before the eyes of the law as it did not satisfy the standards of reliability or authenticity that are integral to the consideration of any electronic evidence, and it has been subjected to serious violations of due process by the Investigation Agencies, which render the electronic records in question unworthy of even a prima facie consideration by the court in relation to the case against the accused.