Bhima Koregaon: Shoma Sen’s discharge application at NIA court claims lack of incriminating evidence

The matter will now be heard on May 17.

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A National Investigation Agency (NIA) court, presided by special judge Rajesh Kataria, on Tuesday heard a discharge application filed by women's rights activist and academic Shoma Sen, claiming lack of incriminating evidence against her in the  Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case.

Sen, an accused in the case along with 15 other activists and academics, has been charged under the Unlawful Activities (Prevention) Act (UAPA). Sen has been incarcerated as an undertrial since June 6, 2018, and is lodged at the Byculla jail in Mumbai.

Advocate Sharif Shaikh, appearing on behalf of Sen, pointed out that according to Section 207 (supply to the accused of copy of police report and other documents) of the Criminal Procedure Code, the accused has a right to receive a copy of electronic evidence against them free of cost. He, thereby, emphasised that the same should be provided to Sen.

Shaikh argued that the chargesheet filed by the NIA does not have a single document that can be considered incriminating evidence. Referring to the six letters attached to the chargesheet as evidence, Shaikh submitted that the letter dated December 23, 2017 dealt with the creation of a fact-finding team to investigate certain encounter killings.

Shaikh pointed out that in another letter dated January 2, 2018, there were references to the date December 6, 2017 in the future tense, indicating that the evidence is fabricated. It was highlighted by Shaikh that the other letters in the chargesheet failed to mention a sender or were not found in Sen's possession.

Shaikh contended that the documents do not corroborate the claims made by the prosecution that Sen is a member of the Committee for Protection of Democratic Right, allegedly a frontal organisation of the banned Communist Party of India (Maoist). He questioned the absence of any information in the documents on the organisation giving the accused persons directions, as well as the nature of these directions: spoken or written.

In view of the prosecution's contention that Sen received funds from one of her co-accused, human rights lawyer and Dalit rights activist Surendra Gadling, it was argued by Shaikh that no statement in the chargesheet claims that there is a donor for the Bhima Koregaon incident. He also argued that there is absence of any evidence of funds being transferred in relation to the incident. The prosecution's case is not based on verified facts, Shaikh submitted.

Shaikh also pointed out that two statements have been given by the witnesses with a gap of 50 days without any background or context provided to explain them.

The matter is posted for further hearing on May 17.

Background

In June 2018, Sen was arrested by the Pune Police under provisions of the Indian Penal Code and the UAPA, along with Gadling; activist, actor and publisher Sudhir Dhawale; activist Mahesh Raut; and activist and researcher Rona Wilson, for their involvement in the Bhima Koregaon incident.

On December 13, 2018, Sen moved the additional sessions judge, Pune, for bail. The trial court rejected the bail application on November 6, 2019. Thereafter, the NIA took over the investigation of the case on January 24, 2020, and filed a supplementary chargesheet on October 9, 2020.

Sen filed an appeal at the Bombay High Court against the rejection of bail by the additional sessions judge, Pune on January 9, 2020.

In April 2021, Sen petitioned the Bombay High Court challenging the UAPA charges levelled against her by the NIA. Sen submitted that the case against her was entirely based on evidence retrieved from Wilson's electronic devices that were infiltrated with malware, as confirmed by forensic reports by a private digital forensics consultant.

In September 2021, Sen sought interim bail on medical grounds. She submitted that she suffered from several ailments, including hypertension and blood pressure, making her more susceptible to COVID. However, an NIA court rejected her bail plea.

In May last year, the Bombay High Court dismissed a petition filed by Sen and seven of her co-accused in the case, who sought a review of an earlier order of the high court which dismissed their appeal for default bail.

In June last year, an NIA court also rejected the default bail application filed by Sen and four of her co-accused.

It must be noted that the trial is yet to begin in the Bhima Koregaon case. The prosecution has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses. Several of the accused persons, including Sen, have now spent almost five years in judicial custody without trial.

Three of the accused persons, trade unionist, activist and lawyer Sudha Bharadwaj; activist, poet, writer and teacher Dr P. Varavara Rao; and scholar, writer and civil rights activist Dr Anand Teltumbde have managed to secure bail so far. Another co-accused, tribal rights activist and Jesuit priest Father Stan Swamy, passed away due to COVID in custody in June 2021 after incarceration for over seven months.

An independent investigation by Arsenal Consulting, a leading, independent expert firm on digital forensics, has revealed that sophisticated malware was used to plant the digital evidence that forms the basis for the prosecution's case on the devices of two of the accused persons in the case, Gadling and Wilson. Arsenal's findings were published in four reports last year.