'Investigating agencies are not acting as independent authorities; they have stopped being neutral.'
Senior counsel and advocate of the Bombay high court and Supreme Court of India, Mihir Desai is advising lawyers representing the 13 accused in a case that has charged them with hatching a conspiracy to kill Prime Minister Narendra Damodardas Modi
The charge of hatching this conspiracy -- known infamously as the Bhima Koregaon case -- has been pressed by the National Investigation Agency, and the Pune police before the NIA in 2018, against Sudhir Dhawale, Mahesh Raut, Sudha Bharadwaj, Professor Shoma Sen, Surendra Gadling, Rona Jacob Wilson, Professor Varavara Rao, Gautam Navlakha, Arun Ferreira, Vernon Gonsalves, Sagar Tatyaram Gorkhe, Ramesh Gaichor, Jyoti Raghoba Jagtap, Anand Teltumbde and Professor Hanybabu Tarayil is based on a piece of electronic evidence, a typed letter, retrieved from Rona Wilson's computer, that was purportedly about assassinating the prime minister.
Recently, The Washington Post published a report (external link), based on the findings of Arsenal Consulting, a Massachusetts-based digital forensic company that stated Rona Wilson's computer was tampered with using a specialised malware by an outsider and the alleged letter was planted on his computer without him knowing about it.
Advocate Desai spoke with Prasanna D Zore/Rediff.com about Arsenal Consulting's findings, whether this will help secure bail for the accused, how the investigating agencies are working as handmaidens of the Modi government.
What are the findings of Arsenal Consulting related to the cloned copy of Rona Wilson's hard disk to them?
There are two basic findings. A malware was planted on Rona Wilson's computer from outside by an outsider and after planting it, the malware was used to plant some documents (a letter that plans a conspiracy to kill Modi).
Now, we have got only ten documents examined (by Arsenal Consulting) because we wanted to know whether they were genuinely planted by an outsider.
We don't know who this outsider is, but they have examined these ten documents (on the cloned hard disk of Rona Wilson's computer) and according to Arsenal Consulting all the ten were planted by an outsider using a malware.
There is some way in which they find out whether these ten documents were saved in Rona Wilson's computer by him or planted by an outsider without him knowing that these documents were present on his computer.
Arsenal Consulting has strong forensic reasons and proof to claim that these documents were planted by an outsider.
What exactly does a cloned copy mean which the Pune police gave to you?
Normally, when documents ate relied upon by the prosecution they give you (the defence lawyers or the legal team representing the accused) the documents to check their veracity.
So far as computers are concerned, we insisted that we don't just want the documents to rely upon, but the actual computer when you (the investigators) examined the hard disk.
So, they gave us the mirror image of the hard disk, which is exactly like the hard disk as they (the Pune police) examined.
It took them a long time to make the clone copy which the Pune police gave to us in the court before the National Investigation Agency took over the investigation.
What if the NIA claims that this cloned copy, which Arsenal Consulting examined and gave its findings on, was tampered with in a way to prove your point that documents were implanted on Rona Wilson's computers by an outsider?
Well, in that case, let them bring to me another cloned copy of the same hard disk, which is in their possession now, and we can together send it to a neutral body (forensic analysts or organisations that undertake forensic analysis of computers) for examination. I have no problems with that.
In fact, that is one of the many reliefs that we have asked in the courts.
Let a neutral or independent agency be appointed; we have no problems because we know we have not instructed Arsenal to do that (to tamper with the hard disk to prove that documents were planted on Rona Wilson's computer).
Who suggested the name of Arsenal Consulting and how will the findings help all the accused in the Bhima Koregaon case?
The defence team asked them to check the cloned copies and verify the authenticity of the documents (relied upon by the prosecution to build their case).
What are the most glaring loopholes in the chargesheet filed by the NIA and the Pune police against all the accused in the Bhima Koregaon violence case?
Apart from these copies (of letters found on Rona Wilson's computer) they are essentially relying upon electronic evidence which they claim they have recovered (from Rona Wilson's computer). There are two problems there.
One, Rona Wilson's computer itself is tampered with (as per findings of the Arsenal Consulting). That's one aspect.
Then take, for instance, in Anand Teltumbde's case or Shoma Sen's case and of cases of other accused, the charge against them is that they (the investigators) found documents pertaining to you (your involvement) on Rona Wilson's computer. Not on their (Teltumbde's or Sen's) computer.
We (the defence counsel) are saying even if you found it there (on Wilson's computer), how does it implicate us (Teltumbde, Sen and others)?
You (the investigators) have not found anything from me (Teltumbde, Sen and others); you have not found anything from my e-mail; you have not found anything from my computer; you have not found any arms, ammunitions, money or bombs from us.
(On) somebody's computer you find some typed letter, scanned letter, (and based upon this evidence) how can you implicate me in the case? That is the other argument.
Even assuming that those letters are genuine (not planted by malware or an outsider), the point is how does it implicate me (Teltumbde, Sen and others)?
If I write a letter on my computer saying so and so person or organisation is about to kill the prime minister, can people belonging to that organisation or that person be sent to jail on the basis of this piece (of so-called evidence)?
So, according to you, there is nothing much as evidence against the other accused apart from Rona Wilson?
They (the investigators) say that they found something (incriminating evidence) on four or five people's computers. But they don't say they have found anything on Anand Teltumbde's computer; they don't find anything on the computer of Shoma Sen or Sudha Bharadhwaj. They are relying upon what they found on other people's computers to implicate these people.
What they found implicating (the other co-accused in the alleged conspiracy to kill Modi) was only on Rona Wilson's and Surendra Gadling's computers.
Can the findings of Arsenal Consulting hold any water in an Indian court of law and will that help you get bail for the accused? Will these findings be recognised as valid proof in India?
Why (will it) not (hold water in an Indian court)?
We don't know (if this will help us get bail for our clients), but we are trying to do that.
We don't know how much weight the court will give to it (Arsenal Consulting's findings that Rona Wilson's computer was tampered with and evidence was planted by an outsider or a malware) but it will definitely (count) as experts' opinion which is based on forensic science employed by them in their laboratory.
The only way to counter it (Arsenal Consulting's findings) is by another independent body giving an opinion (on whether Rona Wilson's computer was tampered with or not).
Suppose there is a handwriting expert who says that this is your handwriting. How do you counter that? By bringing in another independent expert and have her/him give an opinion that it is not your handwriting.
So, an expert can only be countered by another expert.
Are you open to another independent/neutral body examining the cloned copy of Rona Wilson's computer hard disk to determine whether these documents were planted by an outsider?
We are open to any independent body that is not under the influence of this government.
Will it be okay with you if this independent/neutral computer forensic analysis firm is from India?
It can be from anywhere, including India, but this (computer forensic analysis) agency should not have taken a stand yet (on the case or assumed that the accused are guilty).
What would 'neutral' or 'independent' mean to you?
Neutral means, any body or agency which is not under the influence of the present government, which I believe, can be found everywhere. Many institutions like the CBI, the ED, the RBI or the CAG, everybody is under the influence of this government.
We don't mind this being sent to any independent/neutral body abroad. Just because one is an independent body based out of India doesn't mean it you are trying to do something against India. This is not a toolkit for campaigning.
For Varavara Rao's computer, these people (the NIA) have themselves said that they have to send (his computer) to the FBI. They have said it in court.
Do you see any similarities between the Bhima Koregaon case and the Disha Ravi case in the manner in which the investigators have built up their cases?
These investigators are acting as the handmaidens of the government not only in these two cases, but also in the way they are targeting the farmers' agitation in Delhi.
These investigating agencies are not acting as independent authorities; they have stopped being neutral. That's the most obvious commonality.
I feel democracy in this country is being killed very fast and the present establishment is responsible for this state of affairs.