A Special Court in Odisha on Tuesday acquitted Maoist leader D Kesaba Rao alias Azad, who was accused by the police of being a conspirator and the main accused in the killing of Vishwa Hindu Parishad (VHP) leader Laxmanananda Saraswati and four of his disciples in August 2008, due to lack of evidence. He was released from Bhubaneswar’s Jharpada jail later in the evening.

Around 20-25 masked people had entered the Ashram at Jalespeta in Kandhamal district on August 23, 2008, and opened fire. Besides the VHP leader, others killed in the incident were Mata Bhaktimayee, Kishore Baba, Amrutananda and the brother of one of the inmates.

The killing of Saraswati had triggered communal violence in Kandhamal that claimed 38 lives while over 25,000 were rendered homeless.

As per police investigation, after the crime, the accused left behind a letter, stating that the Maoists of Bansadhar Division had executed the killing. The letter was signed by the name “Azad”. The police also claimed that Azad had called a meeting after the incident where he revealed that he, along with others, had killed Saraswati.

The court, in its order, said that despite the fact that five persons were murdered, the crucial issue is whether the prosecution has proved that this accused caused, participated in, or shared the criminal liability for the murders.

“Criminal jurisprudence does not permit conviction merely because an accused appears to be a possible participant in a grave occurrence. The prosecution must establish his identity and participation by reliable evidence,” observed the court.

‘Failed to establish beyond reasonable doubt…’

The court said no firearm was shown to have been recovered from Azad, no ballistic evidence connecting any weapon with him has been referred to, and no forensic evidence linking him to the scene has been proved in the material supplied.

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Though 22 witnesses were examined during the trial, there was only one eyewitness in the case. The court said no independent eyewitness identified Azad and no admissible confession or discovery connecting him with the murders has been established.

“The prosecution has consequently failed to establish beyond reasonable doubt that D Keshab Rao participated in the murder of any of the five deceased persons,” read the court order.

“Suspicion, however strong, cannot substitute proof,” the court said.

It observed that there was no reliable evidence to establish Azad’s participation in the alleged conspiracy.

The special court also observed that there was no evidence to prove Azad’s guilt on charges of unlawful assembly, house trespass, theft and Arms Act.

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The order also reads that the circumstances create a reasonable and substantial doubt as to whether Rao was one of the persons who participated in the occurrence.

“The doubt is not fanciful or remote; it arises directly from the prosecution evidence itself. It is a settled principle that where two views are reasonably possible on the evidence, the view favourable to the accused must prevail. The Court cannot convert suspicion into proof merely because the offence is heinous,” read the order.

Azad, 52, is in judicial custody following his arrest by the Andhra Pradesh police in May 2011 after his surrender. He has been lodged at the Jharpada Jail in Bhubaneswar for the last 15 years.

Last year, the Odisha government had set up a special court in Paralakhemundi for speedy disposal of as many as 49 cases pending against Rao, including one under POCSO. He was acquitted in all cases, with the Saraswati case being the last one pending against him.