MUMBAI: The prosecution failed to establish that Sohrabuddin Shaikh and his wife Kausar Bi were abducted by the Gujarat and Rajasthan police in the early hours of 23rd November 2005 from a luxury bus from a place near Jahirabad nor has it proved by any circumstantial evidence that 21 police officers were complicit in a conspiracy to murder them and Tulsiram Prajapati in a staged encounter, the Bombay high court categorically concluded on Thursday, May 7, as it upheld a December 2018 acquittal verdict of the trial court.By a 50-page judgment, uploaded same day, later at night, the HC chief justice Shree Chandrashekhar and justice Gautam Ankhad dismissed appeals filed by two brothers of Shaikh who had challenged the acquittal order as being ‘unreasonable’’ and a “miscarriage of justice.’’ The brothers’ counsel Gautam Tiwari had argued the acquittal was based on “unwarranted assumptions and manifestly erroneous appreciation of evidence.” The HC after hearing the appeal at length and analysing the record and submissions in the context of law, criminal jurisprudence and legal precedents, held that the “trial court applied the correct and settled legal principles in law.’’ The HC said the findings and judgment of acquittal are not perverse and merit no interference.In his December 21, 2018 judgment, Trial court Judge S J Sharma “held that there was no iota of evidence that the prosecution could adduce to prove that any politician was involved in the conspiracy or there was a politician-police nexus which led to fake encounters…’’, the HC observed in its ruling. Prior to the acquittal, 16 co-accused were discharged in the case by the trial court. The HC ruling authored by the Chief Justice Chandrashekhar, said, “The discharge of 16 accused persons against whom the prosecution relied on the same set of evidence cannot be overlooked. That decision of the trial Court has now become final. The very foundation of the prosecution case is demolished, and the conspiracy theory must be held not proved.’’ Senior counsel Amit Desai, for six of the acquitted police officers, had before the HC “submitted that from the very beginning the prosecution theory aligned with a particular narrative with strong political overtones and attempted to foist liability on a particular political person and a select group of police officers.’’The HC judgment also dealt with an interim application filed this year by a Mumbai resident Maniar Kumar, 53, to challenge the December 30, 2014 trial court order discharging A-16 Amit Shah who had been named accused while he was a minister in Gujarat. The HC held that Kumar “had suppressed” relevant subsequent orders cited by Additional Solicitor General Anil Singh to oppose the intervention plea. The HC said Kumar is not a witness in the case nor does he say how he is concerned with the appeals against acquittals, and why he surfaced about two decades later. The HC said it had “no hestitation’’ in holding that Kumar’s application was “filed with an oblique motive and at the instance of some political adversary of A-16”On the brothers’—Rubabuddin and Nayabuddin—appeals against acquittal, the HC analysed the evidence on record and said “Simply put, the prosecution did not produce a single witness who deposed in the Court that they had prior acquaintances with the respondent nos.2 to 23 (acquitted accused) and they identified them in the Court as the accused persons involved in the killing of Sohrabuddin Shaikh, Kausar Bi and Tulsiram Prajapati.’’“A judgment of acquittal cannot be interfered with in a casual and cavalier manner,’’ the HC underscored stating the legal principles. “It is not permissible in law to overturn the judgment only on the ground that another view is possible,’’ the HC reiterated and cited the Supreme Court’s emphasis that “the power of the Court against an order of acquittal should be exercised only in exceptional cases where the interest of public justice requires interference for the correction of manifest illegality, or to prevent gross miscarriage of justice.’’What was the prosecution (CBI) case: Sohrabuddin Shaikh took his wife Kausar Bi to Hyderabad for her medical treatment and Eid celebrations. They were travelling with Tulsiram Prajapati on 22nd November 2005 from Hyderabad to Sangli in a luxury bus for her surgery but before they could arrive in Sangli and, more precisely, about 15 km away from Zahirabad a few policemen travelling in four wheelers intercepted the bus and abducted the trio and headed towards Bharuch. Sohrabuddin Shaikh was a dreaded criminal wanted by Gujarat and Rajasthan Police in several cases. He was projected as a master mind to eliminate Hamid Lala in a fight of primacy.After travelling about 2 kms., Kausar Bi was asked to sit in a Jeep with her husband and they were taken to Ahmedabad. The Rajasthan Police brought Tulsiram Prajapati to Udaipur in another vehicle. Shaikh and wife were taken to Disha Farmhouse on November 23rd night and on 25th evening Sohrabuddin was taken to Arham guesthouse—its owner was the only non-cop accused who was also acquitted—and later moved somewhere between Narol and Vishala circle where he was shot dead at around 1:30 a.m. to 2:00 a.m. and the incident was projected as an encounter.Kauser Bi’s dead body was burnt near Ilol village in Gujarat and her remains were disposed in Narmada river. On 28th December 2006, Tulsiram Prajapati was also killed in a fake encounter near Himmatnagar Railway Station in Gujarat. What the accused said in DefenceWhen Tulsiram Prajapati was brought to Ahmedabad for a Court appearance, while going back to Udaipur, he attempted to escape from the police custody by throwing chilli powder at the face of the escorting guards and it was in an attempt to apprehend him that the police was constrained to fire at him.Hostile witnessesProsecution examined 210 witnesses 92 witnesses turned hostile and did not support the prosecution story of a fake encounter What the HC held• The hostile witnesses were put to intense cross-examination but nothing material could be elicited by the prosecution from them to support its case.• The foundation of the prosecution story is not established at all inasmuch as the prosecution failed to establish the abduction of Sohrabuddin Shaikh, Kausar Bi and Tulsiram Prajapati, their illegal detention at Disha Farmhouse and Arham Farmhouse and the alleged fake encounter. • There is no evidence to connect the weapon which is said to be used in the crime with the bullet recovered from the thigh of Sohrabuddin Shaikh.• No record was produced to establish that the said revolver was issued to a particular accused person. • The cartridge recovered from the thigh of Sohrabuddin Shaikh is said to have been fired from one of the five revolvers. • The Panch witnesses stated in the Court that they put their signatures as asked by the police officer.• There is no direct evidence of encounter of Sohrabuddin Shaikh or Kausar Bi or Tulsiram Prajapati. • There is also no evidence to establish the presence of the accused persons at the place of occurrence and at the time of occurrence. • There is no evidence that the accused police officers arrived at Hyderabad and stayed in the Officer’s Mess with Rajkumar Pandian.• Some evidence regarding mere transmission of thought or sharing of a desire to commit an unlawful act is not sufficient to establish criminal conspiracy. The offence of criminal conspiracy emanates from an agreement to commit an offence.• A mere statement that he would be killed in a fake encounter does not exhibit any circumstance leading to the death of Tulsiram Prajapati—who was jail mate of Shaikh• The story of three persons travelling together in a luxury bus and one of whom a “burka-clad lady” does not establish that Sohrabuddin Shaikh, Kausar Bi and Tulsiram Prajapati were travelling together in the night of 22nd January 2005.
