Mumbai: A CBI special court in Mumbai acquitted All 22 accused in the 2005 killing of Sohrabuddin Sheikh, his wife and his friend Tulsiram Prajapati by police officers on Friday. The court said that the evidence was “unsatisfactory” and not enough to prove conspiracy and cold-blooded murder.
 
“The way in which evidence was brought before me I could not help,” Special Judge S J Sharma said while passing the order. He ruled that the prosecution has failed to put forth any “documentary and substantive evidence” to suggest or establish the alleged conspiracy. He apologised to Sohrabuddin’s family saying that he was helpless.
 
92 witnesses, including three key ones, turned hostile during the trial. Taking note of this, the judge said though the prosecution took efforts to bring as many as 210 witnesses but nothing could be done “if they don’t say anything.”
 
Gujarat cadre IPS Rajnish Rai, who probed #Sohrabuddin fake encounter case and arrested three IPS officers was suspended by the Ministry of Home Affairs on Thursday.
 
The case had 22 persons, most of them police officers, on trial. The court earlier discharged 16 of the 38 persons charge-sheeted by the CBI for want of evidence. These included BJP President Amit Shah, former Rajasthan Home Minister Gulabchand Kataria, former Gujarat police chief PC Pande and former senior Gujarat police officer DG Vanzara.
 
Sohrabuddin Shaikh, a wanted criminal, his wife Kauser Bi were allegedly abducted and killed in a fake encounter in November 2005. Kauser bi was raped and killed three days after Sohrabuddin’s encounter.
 
A year later, on 27 December 2006, his friend Tulsiram Prajapati was also shot dead by Gujarat and Rajasthan police in an alleged fake encounter near Chapri on Gujarat-Rajasthan border.
 
According to the accused, Shaikh was a Lashkar-e-Taiba (LeT) operative and was on his way to Gujarat to “assassinate a big political leader”. The CBI had said that the three were murdered by Gujarat police officers as part of a conspiracy for political and financial gains.
 
The case was initially probed by the Gujarat CID before the CBI took over in 2010. The Supreme Court in 2013 directed that the trial will be shifted to Mumbai from Gujarat on the central agency’s request to ensure a fairness.

  
“Even as the trial has wound down to a close, two prosecution witnesses applied to the court Wednesday that they be re-examined. One of them, Azam Khan, an aide of Shaikh, claimed in his plea that accused Abdul Rehman, a former police inspector who had allegedly fired on Shaikh, threatened Khan that if he did not depose as told, he would be framed up in false cases. His wife was also threatened, Khan claimed. Another witness, Mahendra Zala, a petrol pump owner, has alleged that the prosecution did not furnish to the court his statement recorded before a magistrate. The court will decide both pleas Friday,” reported The Wire.
 
Witnesses tortured, went missing or turned hostile
 
What the trial in the case of the alleged extra-judicial killing of Sohrabuddin Sheikh and his wife Kausar Bi has taught us, is that there is an urgent need for witness protection in criminal cases where powerful perpetrators often have the ability to change the outcome of the trial in their own favour. What started with the silencing of Sheikh’s wife Kausar Bi and his associate Tulsiram Prajapati, eventually led to 92 witnesses turning hostile in the case!
 
From the mysterious death of Judge Brijmohan Loya who was presiding over the case to the first ever press conference by four sitting justices of the Indian Supreme Court, such has been the journey of this case that it can easily be termed the trial of this century.
 
Citizens for Justice and Peace has a long history of fighting for Witness Protection laws and mechanisms. Because of CJP’s efforts, the Zahira Sheikh judgment expressly recommended legislative intervention to emphasize the prohibition against tampering of witness, victim or informant. To support the campaign for Criminal Justice Reforms, donate now.
 
According to Azam Khan, a key witness in the case, Sohrabuddin Sheikh was killed to cover up the murder of Gujarat Home Minister Haren Pandya in 2003. Khan says Sheikh had confessed to him about killing Pandya. Azam Khan has claimed that DG Vanzara was the person who declared a hit on Haren Pandya. He claims that Sohrabuddin got the contract to kill Pandya and his associate Tulsiram Prajapati executed the hit. Khan also claimed during his deposition before CBI Judge SJ Sharma to have met Prajapati in Udaipur jail said that Prajapati told him that the Gujarat Police had killed Sohrabuddin and Kausar Bi.
 
This makes Azam Khan one of the most important witnesses in the case who is still alive. But according to a recent petition by his wife Rizwana, his life is in danger. She says her husband was tortured for 20 days by the police before bringing his from Udaipur to Mumbai to depose in the case.
 
Azam Khan’s brothers and uncles were let off by the police. Upon their return, they revealed that police had tortured them for seven days and forced them to sign concocted statements prepared by the police stating that they had gone to Ajmer Sharif dargah without informing their family members.
 
Witnesses began deposing in court on November 27, 2017, the day that judge SJ Sharma passed the gag order. By the time the order was struck down on January 24, 2018, 30 witnesses had turned hostile. These include Mysbah Hyder and Gazuddin Chabukswar, the driver and cleaner respectively of the bus in which Sohrabuddin was travelling from Hyderabad to Sangli with his wife Kausar Bi and associate Tulsiram Prajapati. They had both initially claimed to have seen the trio being made to alight from the bus by policemen who came in an SUV. Sharad and Amit Apte, passengers who had also initially stated having seen the trio on the bus, later retracted their statement in court. Mohammed Ahmed, owner of MJ travels that owned the bus who had booked the tickets and given photo copies to the CBI also retracted his statement.
 
On February 13, 2018, Bombay High Court judge Revati Mohite Dere observing that 30 witnesses had already turned hostile, pulled up the CBI for failing to provide protection to witnesses. “What protection are you offering to your witnesses? It is your duty to protect the witnesses, so they can depose fearlessly. You can’t file a chargesheet and not give your witness protection,” justice Mohite Dere had asked. She had also asked during a previous hearing, “What action are you taking in cases where witnesses have turned hostile? Are they being charged for perjury for giving false evidence?” But the CBI callously responded with a feeble explanation… that none of the witnesses had sought protection, so no protection was provided.
 
CJP has written an extensive and detailed report on this case. It can be read here.
 

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What the trial in the case of alleged extra-judicial killing of Sohrabuddin Sheikh and his wife Kausar Bi has taught us, is that there is an urgent need for witness protection in criminal cases where powerful perpetrators often have the ability to change the outcome of the trial in their own favour. What started with the silencing of Sheikh’s wife Kausar Bi and his associate Tulsiram Prajapati, eventually led to 92 witnesses turning hostile in the case!

From the mysterious death of Judge Brijmohan Loya who was presiding over the case to the first ever press conference by four sitting justices of the Indian Supreme Court, such has been the journey of this case that it can easily be termed the trial of this century.

But at the heart of this trial lies fear… fear spread by powerful perpetrators who will allegedly not shy of witness coaching, coercion and even cold blooded murder… just to ensure a favourable verdict. From eye witnesses to the alleged abduction of Sohrabuddin Sheikh, Kausar Bi and Tulsiram Prajapati from the bus in which they were travelling, to even one of the lawyers of Tulsiram Prajapati and even his mother Narmada Bai, it was this fear that either made them retract their statements or not appear in court to testify.

What the Supreme Court has said about Witness Protection

The Supreme Court of India in Zahira Habibulla Sheikh vs State of Gujarat, 2004 (4 SCC 158) has stated the importance of victims in the following words:
 

Right from the inception of (the) judicial system it has been accepted that discovery, vindication and establishment of truth is the main accepted underlying existence of courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of (the) victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.”

In November 2005, then chairperson of the Law Commission, Justice M Jagannadha Rao had in his keynote address at a national conference in the capital, detailed the rights, needs and benefits of witnesses required to ensure effective victim testimony.
In this keynote address that may  be read here he had said that:
 

The victim of a crime is an important player in the administration of justice both as a complainant/informant and as a witness for the prosecution/state. His or her role is vital both at the stage of investigation and at the trial stage. Without the victim’s active support, the investigation of a crime may not come to a logical end. At the same time, the victim’s testimony in court, especially if the crime is a violent one, can be said to be the best piece of evidence that can be used against the accused. But despite being an important component of the criminal justice system, much attention has not been paid to the rights of victims.
The word ‘victim’ has not been defined either in the Indian Penal Code (IPC) or in the Code of Criminal Procedure, 1973 (CrPC). The General Assembly of the United Nations in its 96th plenary meeting on November 29, 1985 made a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The declaration defines victims as "persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are violations of criminal laws operative within member states, including those laws prescribing criminal abuse of
power.
We can say that the word ‘victim’ means the person or persons who have suffered physical, financial,
social or psychological harm as a result of an offence and in some cases it includes an appropriate
member of the immediate family of such a person.”

Who was Sohrabuddin Sheikh

Sohrabuddin Anwarhussain Sheikh was allegedly a criminal who extorted money from marble merchants. He hailed from Jharnia village in Madhya Pradesh and operated in Udaipur, Ahmedabad and Ujjain. He was alleged to have links with Sharifkhan Pathan, Abdul Latif, Rasool Parti and Brajesh Singh who were all members of the local organised crime network led allegedly by none other than Dawood Ibrahim. At the time of his killing 36 year old Sohrabuddin had as many as 60 cases registered against him. He had fled to Telangana with his wife Kausar Bi to avoid getting caught by the police. Police later claimed that he was also linked to terrorist outfit Lashkar-e-Taiba and Pakistan’s espionage agency ISI.
 

Brief background of the case

Sohrabuddin Sheikh was killed in what is believed to be a ‘fake encounter’ by the Gujarat police in November 2005. On November 23 he was travelling in a bus from Hyderabad to Sangli with his wife Kausar Bi, when the members of the Gujarat ATS stopped the bus, made them alight and whisked them away, never to be heard from again. On November 26, 2005 Sohrabuddin was gunned down by the police who accused him of hatching a conspiracy to kill ‘an important leader’ to spark communal violence. While his actual target was never actually disclosed, an impression appeared to have been created that it may have been then Gujarat Chief Minister.

DG Vanzara who was the ATS Chief at the time had said that a joint team of Rajasthan and Gujarat police were keeping watch near Narol circle on the outskirts of Ahmedabad when Sohrabuddin arrived on a bike. He refused to surrender and fired three shots at the police, who retaliated with gun fire.

Sohrabuddin’s wife Kausar Bi also went missing on the same day as his ‘encounter’. Sohrabuddin’s brother Rubabuddin Sheikh then moved a habeas corpus petition in the Supreme Court demanding his sister-in-law Kauser Bi be produced before the court. But, even before any orders to the effect could be passed, the Gujarat government filed a report stating that Kauser Bi was dead and her body had been cremated at Ellol village in Gujarat on November 25, 2005. Gujarat Government counsel KTS Tulsi had submitted the report in a sealed cover before the Supreme Court. Interestingly, Ellol is the village from where DG Vanzara hails. A year later on December 26, 2006, Sohrabuddin’s close associate Tulsiram Prajapati was also killed in another police encounter in Banaskantha. This too was allegedly a staged ‘encounter’.
 

The Accused: The Big Fish got away!

It is alleged that the extra-judicial killing was conducted at the behest of then Gujarat Home Minister Amit Shah. Senior BJP leader Gulab Chand Kataria from Rajasthan is also an accused in the case. Former Ahmedabad District Cooperative Bank director Yashpal Chudasma was also accused of attempting to “convince, coerce, threaten, and influence witnesses” in the case. Another accused Ajay Patel was accused of witness tampering. Both Chudasma and Patel were allegedly close associates of Amit Shah and acting at his behest.

Several policemen were also accused in the case. These include Gujarat ATS chief DG Vanzara, Gujarat IPS officer Rajkumar Pandian, Gujarat police officer NK Amin, Rajasthan IPS officer Dinesh MN and Rajasthan Police constable Dalpat Singh Rathod, who were all granted discharge by the trial court. This decision was also upheld by the Bombay High Court. Out of the 38 people originally accused in the case, 16 were discharged including Amit Shah, Gulab Chand Kataria and senior police officer Geeta Johri among others.

Only 22 accused faced trial. Most of them are junior police officers who claim to have been made scapegoats in a case of police and political rivalry and that they were merely following instructions from their superiors. While answering questions put to him by the Judge under section 313 of the CrPC, Narainsinh Dabhi, a retired police inspector from Gujarat who is an accused in the case, said, “I have not committed any crime as charged or alleged against me. The entire case is on account of political rivalry between two political parties and senior police officials. I have no personal grudge against the deceased.”

On November 19, investigating officer Amitabh Thakur had told the court that the men facing trial had no monetary or political motive to carry out the killing. However, Thakur named Amit Shah, IPS officers Rajkumar Pandiyan, D.G. Vanzara and Dinesh M.N., and police officer Abhay Chudasama as main “beneficiaries” of the crime. However, he was unable to show any evidence that they gained politically or monetarily from the killings. Meanwhile, Sandeep Tamgadge, the chief investigating officer in the Tulsiram Prajapati fake encounter case went on to call Amit Shah, and IPS officers D.G. Vanzara, Dinesh M.N. and Rajkumar Pandiyan the “principal conspirators” in the case. This was also mentioned in the chargesheet filed by Tamgadge in 2012.

The testimony of Tamgadge is startling also in its specificity:
 

The CDRs of Amit Shah, Dinesh M.N., Vanzara, Pandiyan, Vipul Agarwal, Ashish Pandya, N.H. Dhabi and G. Srinivasa Rao were available with us along with other substantial evidence to prove that there was a conspiracy hatched before the murders.”

Of those named, Pandya, Dabhi and Rao continue to face trial; the others have been discharged for lack of evidence. CDRs form a crucial part of the chargesheets filed by both Tamgadge and Thakur before him. The CBI had included calls between these men, before and after the alleged offence, in its chargesheet. However, the trial court, while discharging 13 of the 35 accused, had said there was insufficient evidence against them.

While Amit Shah had been named as an accused in Thakur’s investigation, it was Tamgadge who first questioned and arrested him. Shah was later discharged from the case by special CBI judge, M.B. Gosavi, on December 30, 2014. The fact that the CBI refused to challenge this decision added to the controversy. It is noteworthy that this happened after the new government took charge in New Delhi.

With so many alleged perpetrators holding various powerful positions and most of them discharged from the case, protection of witnesses should have become the prosecutions top priority. Alas this became what is probably the biggest reason behind nearly half the witnesses turning hostile.
 

Judicial Musical Chairs

In January 2011, the investigating agency told a Supreme Court bench comprising justices Aftab Alam and RM Lodha that given how powerful people were accused in the case a fair trial was not possible in Gujarat. Subsequently, the trial was moved out of Gujarat to Mumbai in September 2012. The SC order transferring the case may be read here. This progressive step taken in the interest of justice in the case was well before the new government came to power in May 2014.

It is noteworthy, however, that in just over a month of the new government coming to power at the center, JT Utpat, the CBI Special Court trial judge presiding over the case (after it had been transferred from Gujarat to Mumbai) was transferred on June 25, 2014. The transfer came just a week after Utpat, upset with Shah’s failure to appear in court, upbraided Shah’s lawyer for filing an exemption application without assigning any reason. Utpat had ordered Shah to remain present in court on June 26, but he was transferred to Pune on June 25, 2014! The case was adjourned and Brijmohan Loya took over the case.

Later that year in October, the party running the central government also came to power in Maharashtra. Judge Loya died in Nagpur under mysterious circumstances on December 1. According to his family, Loya had reportedly refused to accept a bribe of Rs 100 crores. In an interview to The Caravan, Judge Loya’s family alleged that former Bombay High Court Chief Justice Mohit Shah had made the offer for the bribe in exchange for a judgement in favour of Amit Shah. The family suspect foul play in Loya’s unnatural, untimely and unexpected death.

Loya’s replacement, MB Gosavi, heard Amit Shah’s discharge petition from December 15 to 17, 2014 and then dropped all charges against him and discharged Shah from the case on December 30, 2014. Subsequently Rabauddin challenged Shah’s discharge but withdrew his application, allegedly under pressure. the Bombay High Court dismissed two PILs including one by social activist Harsh Mander demanding that the CBI challenge Shah’s discharge.

The trial finally commenced in 2017 before a special CBI court with judge SJ Sharma presiding. But Sharma drew flak when he tried to ban the press from covering the trial. In November 2017, Sharma ordered, “Considering the sensitivity in the matter, likelihood of any untoward incident and likelihood of effect on the trial of this matter, in case of day to day publication of evidence. I am of the view not to allow media until further orders.” This was at the plea by the defendants whose lawyer Rajesh Bindra stated, “The media has raised issues over the death of judge Loya. This controversy has a serious impact on the trial in the sessions court and the lives of the accused.” However, this order was challenged by journalists in Mumbai and Justice Revati Mohite Dere of the Bombay High Court struck down the gag order in January 2018.

But shortly after this Justice Mohite Dere found that her assignment had been changed from hearing criminal revision applications to hearing anticipatory bail applications. This even as she had started daily hearings in a batch of applications related to the Sohrabuddin Sheikh case. These include revision applications filed by Sheikh’s brother Rubabuddin, challenging the discharge of IPS officers DG Vanzara, Dinesh MN and Rajkumar Pandian, and two revision applications filed by the CBI against the discharge of former Gujarat IPS officer NK Amin, and Rajasthan police constable Dalpat Singh Rathod.
 

Witnesses either went Missing or turned Hostile

Witnesses began deposing in court on November 27, 2017, the day that judge SJ Sharma passed the gag order. By the time the order was struck down on January 24, 2018, 30 witnesses had turned hostile. These include Mysbah Hyder and Gazuddin Chabukswar, the driver and cleaner respectively of the bus in which Sohrabuddin was travelling from Hyderabad to Sangli with his wife Kausar Bi and associate Tulsiram Prajapati. They had both initially claimed to have seen the trio being made to alight from the bus by policemen who came in an SUV. Sharad and Amit Apte, passengers who had also initially stated having seen the trio on the bus, later retracted their statement in court. Mohammed Ahmed, owner of MJ travels that owned the bus who had booked the tickets and given photo copies to the CBI also retracted his statement.
Girishbhai Patel, the owner of Disha Farms where the trio was taken by the police also retracted his statement along with his brother Naresh and an employee Dineshbhai. Two police drivers Nathuba Jadeja and Gurudayal Singh Chaudhry also retracted their statements.  Other witnesses who turned hostile at this stage include Madhubhai Bandiyawala, Malde Odedera, Sajjan Odedera,Chandresh Patel, Gurbansingh Sardar, Allahrakha Shaikh, Kalpesh Vaghela, Irfan Ghanchi, Jahir Abbas, Chandra Prakash Chopra and Pooranmal Meena.

But it was perhaps the retraction by Saleema Begum that proved to be most damaging. Saleema, sister of Kalimuddin, an associate of Sohrabuddin had initially claimed that her brother had hosted the couple at his home in November 2005 and it is from here that they had boarded the bus to Sangli. But during cross-examination she claimed to have never even met the couple!
 

Since the beginning of 2010 until now, it is noteworthy (and damning) that CBI, the prosecuting agency never made any applications or moved to protect the witnesses, especially given the power enjoyed by so many of the accused. The central agency was even pulled up for this fact.

On February 13, 2018, Bombay High Court judge Revati Mohite Dere observing that 30 witnesses had already turned hostile, pulled up the CBI for failing to provide protection to witnesses. “What protection are you offering to your witnesses? It is your duty to protect the witnesses, so they can depose fearlessly. You can’t file a chargesheet and not give your witness protection,” justice Mohite Dere had asked. She had also asked during a previous hearing, “What action are you taking in cases where witnesses have turned hostile? Are they being charged for perjury for giving false evidence?” But the CBI callously responded with a feeble explanation… that none of the witnesses had sough protection, so no protection was provided! Judge Mohite Dere was hearing three applications filed by Sohrabuddin’s brother Rubabuddin, challenging the discharge of former Gujarat DIG DG Vanzara, Rajasthan IPS officer Dinesh MN and Gujarat IPS officer Rajkumar Pandiyan. Mohite Dere was also hearing two applications filed by the CBI, challenging the discharge of Rajasthan police constable Dalpat Singh Rathod and Gujarat police officer NK Amin. Interestingly, it was on February 26, that the judge’s assignment was suddenly changed mid-way through these crucial hearing.

By May 2018, 73 witnesses had been produced and 50 declared hostile! Manjusha Apte, a passenger on the bus who had seen Sohrabuddin, Kausar and Prajapati being made to alight by the police, went back on her statement and claimed instead that she was asleep the whole time and did not see anyone. Her husband and father-in-law had turned hostile earlier.

Luckily Tulsiram Prajapati’s lawyer Saleem Khan stuck to his story. He said that when Prajapati was remanded to judicial custory Khan met him in jail with special permission of the court. “Prajapati told me that Shaikh was traced by police after obtaining his location from him. Shaikh was later killed in an encounter,” he told the court adding that Prajapati told him that feared for his life.

Meanwhile, Narmada Bai, the mother of Tulsiram Prajapati, who could have been an important witness in the case could not be brought before the court despite repeated summons and a non-bailable warrant being issued against her. Narmada Bai had moved the Supreme Court following her son’s 2006 death alleging that the encounter was staged and asked for a CBI investigation. But the prosecution has now told the special CBI court that she could not be traced. Interestingly, new reporters were easily able to find her. Speaking to Sukanya Shantha of The Wire, Narmada Bai said that she had received ‘innumerable threats’ over the last decade. She asked, “I have lived under tremendous pressure in the past 10 years. What is the point of pursuing the case when I know no amount of trying can get my son back?”

But midway through the interview a man who identified himself as Vinod Sharma, a relative of Narmada Bai, entered her home and began to threaten and intimidate the reporter. Vinod Sharma turned out to be Vinod Lala, a local BJP leader! The entire heartbreaking account of a mother who saw her son live in fear may be read here.
 

The Trial Court under Section 313 of the Code of Criminal Procedure (CRPC) is empowered to intervene whenever there are such misdemeanours in any case (but particularly in a sensitive case). No such steps were taken by any of the Judges hearing the case. This is not surprising given the suspicious nature of Judge Loya’s death.

By July 2018, 135 witnesses had been examined and 85 witnesses had turned hostile. These include Sharafat Ali who shared a prison cell with with Tulsiram Prajapati while lodged at the Udaipur jail in 2006. He had earlier told the CBI that Prajapati had told him that he and Sohrabuddin worked with the Gujarat Police. ALso, Prajapati’s other lawyer Krishna Tripathi went back on her statement that Prajapati had told her that he feared that the Guajara and Rajasthan police would kill him in an encounter. This retraction dealt a body blow to the prosecution’s case!
It was also revealed how Yashpal Chudasma and Ajay Patel engaged in witness tutoring. Patel allegedly conveyed a message to two witnesses Raman Patel and Dashrat Patel that the contents of what they were to say in their deposition before CBI would be given to them in writing by DCP Abhay Chudasama, who is also an accused in the case. Both witnesses had multiple meetings with Patel and they managed to discretely record two such meetings. Raman and Dashrath Patel are real estate developers who own Popular Builders that owned the property at the location of the encounter killing of Sohrabuddin.

Eventually, of the total 210 witnesses in the case, 92 turned hostile!
 

Azam Khan: The Most Important Witness

It is alleged that Kausar and Prajapati were killed because they were witnesses to Sohrabuddin’s killing. According to Azam Khan, a key witness in the case, Sohrabuddin Sheikh was killed to cover up the murder of Gujarat Home Minister Haren Pandya in 2003. Khan says Sheikh had confessed to him about killing Pandya. Azam Khan has claimed that DG Vanzara was the person who declared a hit on Haren Pandya. He claims that Sohrabuddin got the contract to kill Pandya and his associate Tulsiram Prajapati executed the hit. Khan also claimed during his deposition before CBI Judge SJ Sharma to have met Prajapati in Udaipur jail said that Prajapati told him that the Gujarat Police had killed Sohrabuddin and Kausar Bi.

This makes Azam Khan one of the most important witnesses in the case who is still alive. But according to a recent petition by his wife Rizwana, his life is in danger. She says her husband was tortured for 20 days by the police before bringing his from Udaipur to Mumbai to depose in the case. In her petition Rizwana says,
 

The current phase of intimidation began on 7 June 2018 when Azam Khan, his two brothers and his uncles were picked up by the Udaipur police. Thereafter, the petitioner’s mother-in-law (Azam Khan’s mother) was threatened by Udaipur police that Azam Khan and others would not be let off unless Khan testified in Court as per their wishes. Within 4 days of receiving the threat, Khan’s mother filed an application against these errant police officers under Section 342 of IPC. Thereafter, Azam Khan’s brothers and uncles were let off by the police. Upon their return, they revealed that police had tortured them for seven days and forced them to sign concocted statements prepared by the police stating that they had gone to Ajmer Sharif dargah without informing their family members.”

Rizwana also claims to have been threatened, held captive and beaten. Further Rizwana says Abdur Rehman, a former Rajasthan police man, came to the Mumbai hotel on Syed Kazi Street where Azam Khan was being kept before his deposition in court, in a black SUV. Udaipur police personnel made Azam sit in this vehicle where Abdur Rehman threatened Azam. The entire petition by Rizwana may be read here.

Sohrabuddin’s brother Rubabuddin remains reasonably reliable witness, though he too changed advocates and rescinded on his stance once before the High Court of Bombay. He has stated that Tulsiram Prajapati had told him that he was present at the time of Sohrabuddin’s murder. On being asked why his life was spared, Prajapati reportedly told Rababuddin that he was not killed because he was a Hindu and it would have been difficult to pin terror charges on him.

Judgement in the Sohrabuddin case is expected to be delivered on December 21, 2018.

Courtesy: https://cjp.org.in/

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Sohrabuddin case: Retired Bombay High Court Judge Abhay M Thipsay said the HC must exercise its powers of revision, even suo-motu if necessary, to relook at the case. (Express Photo/Pradip Das)

The way several high-profile accused in the Sohrabuddin Shaikh alleged fake encounter case were discharged, the “absurd” inconsistencies in the legal process, signs of witnesses under pressure or threat, evidence of “mischief” — all point to the “failure of justice and of the justice delivery system”.

These are among the series of observations made by Justice Abhay M Thipsay, a former judge of the Bombay High Court who ruled on four bail applications in the case, in an interview to The Indian Express. Speaking out for the first time on the case since he retired last year as judge of the Allahabad High Court in March 2017, Justice Thipsay said the Bombay High Court must exercise its powers of revision, even suo-motu if necessary, to relook at the case.
 

Describing as “absurd” the inconsistencies he found in orders passed by the special CBI court currently hearing the case in Mumbai, Thipsay said the court believed there was an abduction and a staged encounter but still discharged senior police officers. Several aspects of the case raise suspicion, he said, and are “contrary to common sense.” 

Read the full Indian Express report.

The post Justice derailed in Sohrabuddin encounter case, says retired Bombay HC judge: Explosive interview to Indian Express appeared first on SabrangIndia.

A CBI court on Tuesday, August 1, discharged controversial police officer DG Vanzara and MN Dinesh in the Sohrabuddin Sheikh encounter case. Vanzara, now retired, was the then Gujarat ATS chief. Dinesh, an IPS officer, was with the Rajasthan Police. The total number of accused discharged by the court now stands at 15. Vanzara, considered close to the coterie of then chief minister, Narendra Modi has had a colourful past, especially after his arrest in 2007. 

On Monday, July 31, the court rejected the discharge application of two Rajasthan police officers Himanshu Singh and Shyam Singh Charan. The two police sub-inspectors are accused in the case and were then part of the Rajasthan police. Significantly, the CBI had opposed their discharge, submitting before the court that they were among the main accused and that they were accused of firing shots at Sheikh. In december 2015, doing a U-Turn on its own earlier charge sheet, the CBI had filed for discharge of BJP president, Amit Shah, who was also one of the accused in this case.

Also read: CBI U-Turn against its own chargesheet in the Sohrabuddin case, the caged parrot syndrome?

Now, a special court in Mumbai is hearing the case after the Supreme Court ordered for the trial to be transferred out of Gujarat.  The discharge plea of some of the accused is still pending, after which the trial will begin in the case. A total of 38 persons were named as accused in the case initially.

In November 2005, Sheikh, along with his wife Kausarbi and associate Tulsiram Prajapati, was travelling in a Sangli-bound bus from Hyderabad. A police team chased the bus and forced the three to alight and took them to Ahmedabad, where they were eventually killed. The CID had alleged that it was made to appear that Sheikh was escaping, while he was shot at by cops.

DG Vanzara, had in 2013 written a sensational ten page open letter to Amit Shah and Narendra Modi while still in jail. Top cop of the Gujarat Police, DG Vanzara, who was then an accused in fake encounter cases in the state, resigned. In his resignation letter, Mr Vanzara has indicted former Gujarat Home Minister Amit Shah, a key aide of Chief Minister Narendra Modi. He has also slammed Mr Modi.

Read: Jailed top cop Vanzara’s letter, in which he slams Narendra Modi, Amit Shah

Background:
In December, 2005 Rubabuddin Shaikh wrote a letter to the Chief Justice of India complaining about the killing of his brother Sohrabuddin and the disappearance of his sister in law Kauser Bi at the hands of the Gujarat Police, the Anti Terrorism Squad (ATS) and the Rajasthan Police.  The Court forwarded the letter to the Director General of Police for an enquiry. During the pendency of the enquiry Tulsiram Prajapati, a witness to the abduction of Sohrabuddin and his wife Kauser Bi was, also  killed in an encounter (extra-judicial killing). Rubabuddin approached the Supreme Court seeking a CBI investigation. That is how the court monitored investigations into this extra judicial killing.

The Supreme Court first asked the Gujarat Police to investigate the matter. Certain police officers (prominently, Vanzara), were arrested. Charge sheets were filed and eight Action Taken Reports were produced before the Supreme Court by the State of Gujarat. Unsatisfied, the Supreme Court in 2010 came to the following conclusion:

“From the above factual discrepancies appearing in the 8 Action Taken Reports and from the Charge Sheet we therefore feel that the Police Authorities of the State of Gujarat had failed to carry out fair and impartial investigation as we initially wanted them to do.” The Supreme Court directed the CBI to carry out the investigation including on the issue of a larger conspiracy. The CBI started investigating the case and, on the basis of call records of the police officials and other evidence, submitted a chargesheet on 23.7.2010 in which Amit Shah was named as a co-conspirator. The chargesheet states that Amit Shah was the lynchpin in the conspiracy. Amit Shah was arrested. On 29.10.2010 Amit Shah was granted bail by the Gujarat High Court, The CBI appealed to the Supreme Court against this order. The bail was not cancelled but Amit Shah was asked to not enter Gujarat.

In its charge sheet, the CBI claimed that Amit Shah presided over an extortion racket and that it was under his pressure and at his behest that the Gujarat police tried to cover up his involvement in the killings. Phone records of the police officials at the time of killings of Sohrabuddin, Kauser Bi and Tulsi Prajapati were used to show that these police officers were in constant touch with Amit Shah. The trial was transferred to Mumbai. Subsequently, Amit Shah filed a Discharge Application in the Sessions Court at Mumbai. 

This story in the Outlook traces the queer route that the case took once the Modi regime swept to power in Delhi in May 2014.

The Amit Shah Files :Even before the trial is concluded, a CBI court finds reason to discharge a powerful man

The entire trajectory of the Sohrabuddin case may be read here:

Sohrabuddin Case File
 

The post DG Vanzara, MN Dinesh discharged by CBI Court, Mumbai: Sohrabuddin Sheikh Encounter Case appeared first on SabrangIndia.

A Sessions Court in Mumbai had discharged the officer in August 2016. Days after his discharge, the Gujarat government in September had extended the tenure of Amin, Superintendent of Police (SP) of Mahisagar district, by one year after his superannuation. Amin is currently on bail in the Ishrat Jahan encounter case.

While the Sessions court had discharged the police officer for lack of evidence, in its petition in the HC, the CBI has contended that there was enough evidence against Amin to ascertain that he played an “active” role in the alleged fake encounter. “Amin was present in Ilol — the native place of prime accused DG Vanzara — where Sohrabuddin’s wife Kausar Bi was killed and her body set on fire. Amin was present there for over six hours. He was involved in the transportation and disposal of the body. To prove this, we had attached the statement of a policeman who was part of the team that aided and abetted the disposal of Kausar Bi’s body. The trial court didn’t appreciate the evidence, saying that the witness lacks corroboration. We have contested this by citing Supreme Court judgements that state evidence given by a single eyewitness doesn’t require corroboration,” an official who did not wish to be named said.

The statement of the policeman is the strongest evidence that the central agency has against Amin.

The agency also contested that since the conspiracy was hatched in complete secrecy without an “overt act” of participation, the testimony of the lone eyewitness should be considered by the court. “It is not necessary that an accused does an overt act to participate in a conspiracy that is hatched in complete secrecy. In the said case too, while Amin participated in the conspiracy, there is not much conspicuous evidence of his participation,” the official added.

Interestingly, a public interest litigation (PIL) is currently pending in the Gujarat High Court that challenges the re-instatement of Tarun Barot and NK Amon by the Gujarat government. Filed in mid October, it came up for hearing recently when the Gujarat High Court posted it for hearing on November 23. It has been filed by cop-turned-lawyer Rahul Sharma.

A Sohrabudding Case File can be read here
 
Earlier in October, Gujarat government reappointed police officer Tarun Barot almost two years after his retirement and granted one-year extension on contractual basis to IPS officer N K Amin following his superannuation last year, according to news reports. Both the officers have been chargesheeted by CBI before.

The PIL has challenged the validity of these appointments by Gujarat government, arguing that only officers who have impeccable and outstanding merit can be given such benefits.

While Amin have spent almost eight years in jail in connection with the encounter of Sohrabuddin Sheikh, his wife Kauserbi and Tulsiram Prajapati, Barot is currently on bail in Ishrat Jahan and Sadiq Jamal Mehtar encounter cases. Barot retired in 2014 while he was still behind bars at the Nadiad sub-jail. On October 13, the home department issued a notification, stating that Barot, who retired as deputy superintendent of police (DySP), was appointed as DySP, headquarters, Western Railway, Vadodara on a one-year contract, as per an Indian Express report.

It also said that Amin, on the other hand, was due to retire on August 31 this year when the state government awarded him a year extension on contractual basis on the same post as Superintendent of Police of Mahisagar district, a first for an IPS officer.

Sharma has challenged this, raising questions about legality of the reinstatements and violation of rules. Amin is a co-accused in Ishrat Jahan encounter case . He was discharged in the Sohrabuddin Sheikh encounter case by the special CBI court in Mumbai.

Sharma is known for his confronatations with the Gujarat government after he testified before the Nanavati Commission that inquired into the 2002 riots. He was posted as SP of Bhavnagar in 2002.

Today, media reports suggested that the agency(CBI) is also likely to contest the applications for discharge filed by the other three accused in the case, including former IPS officer DG Vanzara and the then senior Rajasthan police officer M N Dinesh. “Since the trial court has discharged 12 accused, the three officers have sought discharge under the provisions of the Code of Criminal Procedure ( CrPC) citing parity as their ground. However, we have ample evidence against them and we will also contest their discharge,” the official added.

A discharge by the court means that the accused will not stand trial. However, it can be challenged in higher courts.

Alleged gangster Sohrabuddin Sheikh was gunned down in November 2005. The Gujarat Police had claimed that he had links with Pakistan-based terror outfit Lashkar-e-Taiba.

In 2010, the Supreme Court had asked the CBI to investigate the case. The probe by the agency had revealed that Sohrabuddin and his wife Kausar Bi were allegedly abducted by Gujarat ATS from Hyderabad on their way to Sangli in Maharashtra and killed. Tulsiram Prajapati, an eyewitness in the case, was allegedly killed by the Gujarat police in December 2006.
 
Sabrangindia has beenr egulargly tracking these cases in the courts.
 
In December 2015, the CBI by failing to challenge the discharge of Amit Shah, BJP president for his alleged involvement in these encounters, actually went against its own charge sheet.
 
In its charge sheet, the CBI had claimed that Amit Shah presided over an extortion racket and that it was under his pressure and at his behest that the Gujarat police tried to cover up his involvement in the killings. Phone records of the police officials at the time of killings of Sohrabuddin, Kauser Bi and Tulsi Prajapati were used to show that these police officers were in constant touch with Amit Shah. The trial was transferred to Mumbai.

Subsequently, Amit Shah filed a Discharge Application in the Sessions Court at Mumbai. The evidence that the prosecution had (CBI) was damning. G.C Raigar, Additional Director General of Police (ADGP) Home Guard, Gujarat who had the  Additional Charge of ADGP CID Crime, and was in charge of the  investigation into the case, had stated that Amit Shah personally told him not to involve high level police officials in the crime. Obviously if high level police officials were not involved, the link to Mr. Shah could not be established. The Patel brothers of Popular Builders, whose statements were also recorded, have stated that Amit Shah personally told them to give a false statement against Sohrabuddin and that they paid a large amount of money to a senior police officer for being paid to Mr. Shah so as to ensure that they are not falsely implicated in a crime.

There were also the call records between Amit Shah and the officers involved in the murder, during the killings. There were certain other allegations too against Amit Shah.

The post CBI challenges Amin’s Discharge: Sohrabuddin Sheikh Encounter Case appeared first on SabrangIndia.

Mihir Desai, advocate for Sohrabuddin in Mumbai

In December, 2005 Rubabuddin Shaikh wrote a letter to the Chief Justice of India complaining about the killing of his brother Sohrabuddin and the disappearance of his sister in law Kauser Bi at the hands of the Gujarat Police, the Anti Terrorism Squad (ATS) and the Rajasthan Police.  The Court forwarded the letter to the Director General of Police for an enquiry. During the pendency of the enquiry Tulsiram Prajapati, a witness to the abduction of Sohrabuddin and his wife Kauser Bi was, also  killed in an encounter (extra-judicial killing). Rubabuddin approached the Supreme Court seeking a CBI investigation.

The Supreme Court first asked the Gujarat Police to investigate the matter. Certain police officers (prominently, Vanzara), were arrested. Charge sheets were filed and eight Action Taken Reports were produced before the Supreme Court by the State of Gujarat. Unsatisfied, the Supreme Court in 2010 came to the following conclusion:

“From the above factual discrepancies appearing in the 8 Action Taken Reports and from the Charge Sheet we therefore feel that the Police Authorities of the State of Gujarat had failed to carry out fair and impartial investigation as we initially wanted them to do."

The Supreme Court directed the CBI to carry out the investigation including on the issue of a larger conspiracy. The CBI started investigating the case and, on the basis of call records of the police officials and other evidence, submitted a chargesheet on 23.7.2010 in which Amit Shah was named as a co-conspirator. The chargesheet states that Amit Shah was the lynchpin in the conspiracy. Amit Shah was arrested. On 29.10.2010 Amit Shah was granted bail by the Gujarat High Court, The CBI appealed to the Supreme Court against this order. The bail was not cancelled but Amit Shah was asked to not enter Gujarat.

In its charge sheet, the CBI claimed that Amit Shah presided over an extortion racket and that it was under his pressure and at his behest that the Gujarat police tried to cover up his involvement in the killings. Phone records of the police officials at the time of killings of Sohrabuddin, Kauser Bi and Tulsi Prajapati were used to show that these police officers were in constant touch with Amit Shah. The trial was transferred to Mumbai.

Subsequently, Amit Shah filed a Discharge Application in the Sessions Court at Mumbai. The evidence that the prosecution had (CBI) was damning. G.C Raigar, Additional Director General of Police (ADGP) Home Guard, Gujarat who had the  Additional Charge of ADGP CID Crime, and was in charge of the  investigation into the case, had stated that Amit Shah personally told him not to involve high level police officials in the crime. Obviously if high level police officials were not involved, the link to Mr. Shah could not be established. The Patel brothers of Popular Builders, whose statements were also recorded, have stated that Amit Shah personally told them to give a false statement against Sohrabuddin and that they paid a large amount of money to a senior police officer for being paid to Mr. Shah so as to ensure that they are not falsely implicated in a crime.
There were also the call records between Amit Shah and the officers involved in the murder, during the killings. There were certain other allegations too against Mr. Shah.

It was the CBI’s investigation which led to his arrest and to the transfer of the case outside Gujarat…… Shockingly however, it chose not to challenge the order of the Sessions Court.

However, it was now 2014 and, by now the CBI had decided to do a U turn. The case was not effectively defended in the Sessions Court.  The Sessions Court discharged Amit Shah on 30.12.2014. According to me, there is sufficient material against Mr. Shah to put him on trial. It was the CBI’s investigation which led to his arrest and to the transfer of the case outside Gujarat. At the stage of discharge the Court is not required to weigh the evidence in detail. The Court is only required to see whether it is a fit case for proceeding on trial. CBI had found it a fit case to proceed on trial  by filing the charge sheet. In fact, ordinarily the CBI would have challenged the discharge order of the Sessions Court in the High Court – more so in a sensitive case like this where it had been appointed by the Supreme Court as the Investigating Agency and the trial had been transferred at the instance of the CBI due to the involvement of Amit Shah.

Shockingly however, it chose to not challenge the order of the Sessions Court. 

Rubabuddin,  Sohrabuddin’s brother challenged the order in the High Court.  He was the person who had brought the case to light 10 years ago by writing to the Supreme Court. He had diligently followed it up in the Supreme Court and in the Sessions Court for all these years. Suddenly, within months after filing against the discharge, he decided to withdraw the case from the High Court. I am reasonably certain that this was due to extreme pressure brought on him. I can never forget the terror in his eyes and the helplessness when he did it. The question still remains. Why did the CBI not adequately defend the case in the Sessions Court and why did it refuse to file an appeal. Is it the caged parrot syndrome?

SOHRABUDDIN CASE FILE

(The author  is a senior advocate in Mumbai)
 
References:

The post CBI U-Turn against its own chargesheet in the Sohrabuddin case, the caged parrot syndrome? appeared first on SabrangIndia.

• On 25.07.2010, Amit Shah, then minister of state for home in Gujarrat (accused number 16 in the case) was arrested by the CBI. He was holding the charge of Minister of State (Home Affairs) in the Government of Gujarat till the time of his arrest.
• By its order dated 08.04.2013, the Supreme Court of India has clubbed the case of Sorabuddin and Tulsi Prajapati murder. Amit Shah was also the accused in the case of killing of Tulsi Prajapati.
• On 29.10.2010 the Gujarat High Court released Amit Shah on bail.

According to the original Charge sheet filed by the CBI in the Sohrabuddin case, the following facts are pertinent:

• On 26.11.2005 Sohrabuddin Shaikh was murdered and shown as if he was Laskar-e-Toiba terrorist killed in an encounter. Kauserbi, wife of Sohrabuddin was murdered on 29/30.11.2005 and her body was disposed off.
• Tulsiram Prajapati was a significant eye witness to the abduction of Sohrabuddin and Kauserbi by the accused policemen of Gujarat Police.
• On 27.12.2006 Tulsi Prajapati who was in custody and was being escorted from Ahmedabad to Udaipur, was alleged to have escaped from the custody of the escort party.
• On 28.12.2006 Tulsiram Prajapati who was secretly and wrongfully confined by two unknown persons was brought to the scene of crime in a handcuffed position in a white colouredMaruti car, and after Tulsiram Prajapati was made to alight from the said car, accused Aashis Pandya murdered him in cold blood by firing twice at him from his service revolver.

The CBI first filed the charge sheet against the accused No. 16, Amit Shah under the sections 120-B r/w 302,201,218,167,365,506 Indian Penal Code and Section 25(1B-a) Arms Act, 1959. Amit Shah, named as accused number 16 then sought discharge from this case.
In October 2015 Sohrabuddin first told the Bombay High Court that he did not wish to go ahead with his petition challenging the discharge. Before this, in the special Sessions Court itself,  his lawyers had filed detailed written  arguments laying down why Amit Shah’s application for discharge ought to be rejected. The crucial points in the written arguments placed before the Court were:

A.        There is enough prima facie material in the charge sheet against the Accused No. 16 regarding his (Amit Shah’s) involvement in the killing of Sohrabuddin, Tulsi Prajapati and then destruction of evidence to protect himself and the top police officers involved in the killing.

B.        The charge sheet of the CBI mentions of the call detail records of Amit Shah which, according to the records of the case show that Amit Shah is making calls or receiving calls from the co-accused involved in the killing of Sohrabuddin, Kauserbi and Tulsiram Prajapati. Several calls are to 
           be seen to exchanged between the Amit Shah around the time of those killings.

C.        Even after the killing of Sohrabuddin whenever the key eye witness to the abduction Tulsiram Prajapati was being brought to Ahmedabad from Udaipur, the CDR shows that several calls are being exchanged between the co-accused and the Amit Shah.

D.        The phone records and the cell details by itself show a pattern and makes out a prima facie case indicating that accused No. 16, Amit Shah, was part of the conspiracy in the killing of Sohrabuddin, Kauserbi and Tulsiram Prajapati.

E.        The argument of the Amit Shah, that by virtue of his being a Minister of State for Home, he needed to speak to the police officers does not hold much ground. The minister of state for home has argued that the entire call details of his (Shah) have not been produced. If produced, these
           would show that the minister was speaking to the accused police officer on a regular basis. Sohrabuddin’s legal team argued that this defence could be put during trial but could not preclude law taking its own course and the powerful accused being put to trial.

F.         All the following statements (excerpted) of the witnesses clearly establish that the accused number 16, MOS Home, Gujarat, Ami Shah was involved in the conspiracy and hence is liable to stand the trial.

(i)    Rajendra Valjibhai Aharya: In his statement dated 7.8.2010 he has stated that, he was a typist with the Gujarat Police. He had joined CID Crime, Gandhinagar in September 2006. He states in his statement that a meeting was held between Mrs. Geeta Johri, Mr. Raigar and Mr. P C Pandey. After the meeting he saw Mrs. Geeta Johri perturbed and on enquiring she informed him that Mr. Amit Shah had directed her to change the case papers of Sohrabuddin case and had also directed her to call Mr. V.L. Solanki and get the case papers in Sohrabuddin case changed.

(ii)   Statement of Mr. G. Raiger : He was DGP, Home Guard in January 2006 and also had the additional charge of CID, Crime. G.C Raiger has given consistent statements of 26.07.2010, 6.07.2011 and 20.07.2012.
Mr. G. Raiger in his statement dated 26.07.2010 has clearly stated that he was pressurized to follow illegal instructions from the then Home Minister in the case of Sohrabuddin encounter which he did not follow.
In his statement dated 6.07.2011 he has clearly stated that, in the second last week of December 2006 there was meeting with Mr. Amit Shah where along with him Mrs. Geeta Johri and Mr. P C Pande were present wherein Amit Shah sharply reprimanded them for not taming DPI Sollanki and they were also told to wrap up the matter by Amit Shah.

(III)    Mr. V.L. Solanki who was the initial investigating officer has also given his statement in which he has clearly stated that he was told by Mrs. Geeta Johri that Mr. Amit Shah was upset with the investigation in the Sohrabuddin encounter case and also that changes were to be made to the enquiry report in view of the instructions given by Mr. Amit Shah.

(iv)   Statements of Mr. Ramanbhai Patel and Dashrath Patel (also builders in Ahmedabad) that also clearly show how Amit Shah was involved in the conspiracy regarding the killing of Sohrabuddin and TulsiramPrajapati.

In his discharge application, Amit Shah has argued that there are discrepancies in the statements of the witnesses. It is clear from the various statements that the witnesses are consistent in narrating the facts regarding the role of the minister, argued Sohrabuddin’s legal team. If at all there is any discrepancy in the statements of witnesses, it’s a matter of trial and cannot be a ground of discharge at this stage. The discrepancies if at all in the statement of the witnesses can be brought out only through the cross-examination of the witnesses at the stage of trial.

G.        The following are the decisions of the Supreme Court of India which were relied upon at the time of arguments on behalf of the Original Complainant.

(i)         Ramdas s/o KachruWadkar and another V/s State of Maharashtra and Anr 2006 Cri LJ 1156
(ii)        State of Bihar V/s Ramesh Singh (1977) 4 SCC 39
(iii)       Suresh alias PappuBhudarmalKalani V/s State of Maharashtra (2001) 3 SCC 703
(iv)       Sajjan Kumar V/s CBI (2010) 9 SCC 368
(v)        Bhagwan Swarup Lal Bishan Vs. State of Maharashtra (1965) 1 Cri LJ 608
(vi)       Mohd Khalid V/s State of W.B. (2002) 7 SCC 334
(vii)      Major E.G. Barsay V/s State of Bombay (1961) 2 Cri LJ 828
 
H.        Reliance was also placed on the case of Rubabuddin Sheikh V/s State of Gujarat (2010) 2 SCC 200 and Narmada Bai V/s State of Gujarat (2011) 5 SCC 79. Both these cases are part of the charge sheet filed against the Amit Shah, accused number 16.

(Arguments in writing made in the Sessions Court, Mumbai in SC No 177/2013,
178/2013, 577/2013 and 312/2013)
 
 

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