Arsenal Report Can't Be Relied Upon, Pune Police Opposes Rona Wilson's Plea Alleging Planting Of Materials In Bhima Koregaon Case

The affidavit filed by Deputy Commissioner of Police Shrinivas Muralidhar Ghadge seeks dismissal of Wilson's petition on grounds of maintainability, including stating that the report by USA based Arsenal Consulting is not admissible as it is not a part of any of the charge sheets filed by the investigating agencies.

Matching precisely with what the NIA had said, Ghadge's affidavit states that Wilson's petition blames someone else for planting the documents but does not name the person; that he can try and prove the details of the report during the trial and that it is a "disputed question of fact" which could not be gone into at this stage.

Wilson's petition also seeks the appointment of a Special Investigation Team to inquire into the planting of fabricated documents in his computer. It says that the SIT should include experts in Digital Forensic Analysis and be headed by a retired judge of the High Court or Supreme Court, and other appropriate persons empowered to enquire into the planting of documents to ascertain who perpetrated the crime.

The Bhima-Koregaon Elgar Parishad violence case, which was initiated via a complaint filed before the Pune police on January 8, 2018, was being investigated by the Pune police till the Central government unilaterally decided to transfer the case to the National Investigation Agency after a new government came to power in the State of Maharashtra in 2019. The Pune police handed over the case documents to the NIA on February 19, 2020, only after the NIA approached the Pune court.

No need to look into Arsenal Report: Pune Police

"This report does not form part of the charge sheets which are filed by the Respondent (Pune police) and the National Investigation Agency. It is a settled position of law that documents which are not relied upon in the charge sheet cannot be relied upon by the petitioner, and as such, there is no question of looking into the report of M/s Arsenal Consulting and as such the entire contention of the petitioner deserves to be rejected," the affidavit filed by Pune police reads.

It adds that either of the investigating agencies has not produced the report; hence it cannot be relied upon, and "the petitioner has an opportunity to prove all these documents at the time of the trial," adding further, "I say that since this document cannot be relied upon at this stage, the entire petition of the petitioner deserves to be dismissed."

The affidavit further contends that the report states that Arsenal had identified IP addresses exploited by the hacker, which one service provider had provided. "The said Arsenal report states that without the cooperation of such service provider, it is difficult to zero down upon the particular person who has planted the said document. Thus the petitioner himself is not sure of the person who has allegedly planted the document and as such the entire petition of the petitioner is vague and therefore cannot be considered by this Hon'ble Court," the affidavit, maintaining the NIA's line further, says.

Disputed question of facts and alternate remedy

The affidavit says that the petition can't be entertained due to disputed question of facts – arguing that the agencies had not accepted the report of Arsenal Consulting. It adds that Wilson can approach the trial court for discharge instead of seeking quashing of the charge sheet from the High Court.

What is the Arsenal Report?

Arsenal Consulting, a digital forensics consulting company in the USA, concluded that a cyber-attacker had infected Wilson's computer with a malware called NetWire (available for $10 online), planted through an email on June 13, 2016, almost two years before his arrest on June 6, 2018.

The report shows that the hacker initially carried out surveillance on his laptop and later delivered 52 documents in a hidden folder called 'Rbackup'. The hacker added the last document just a day before the police searched Wilson's house and seized his laptop, on April 17, 2018, the report states.

The American Bar Association had asked Arsenal to investigate 10 of the 52 documents in 'Rbackup'. "It should be noted that this is one of the most serious cases involving evidence tampering that Arsenal has ever encountered, based on various metrics that include the vast time span between the delivery of the first and last incriminating documents," Arsenal has said in the report.

The report further shows that Wilson neither opened the folder in which most of the incriminating material has been allegedly found nor was it ever opened on his computer legitimately.

So far, 16 people have been arrested in the case as accused under the stringent Unlawful Activities (Prevention) Act (UAPA) — Jyoti Raghoba Jagtap, Sagar TatyaramGorkhe, Ramesh MurlidharGaichor, Sudhir Dhawale, Surendra Gadling, Mahesh Raut, Shoma Sen, Rona Wilson, Arun Ferreira, Sudha Bharadwaj, Varavara Rao, Vernon Gonsalves, Anand Teltumbde, Gautam Navlakha, Hany Babu and Father Stan Swamy. Swamy passed away last week in a Mumbai hospital.