New Delhi, Sep 28 (IANS): The Supreme Court on Monday issued notice to the CBI and 22 accused, including 21 police personnel, on a plea challenging the Bombay High Court judgment upholding their acquittal in the alleged fake encounter killings of Sohrabuddin Shaikh, his wife Kauser Bi and associate Tulsiram Prajapati.
A Bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V. Mohana issued notice on a special leave petition (SLP) filed by Rubabuddin Shaikh, younger brother of Sohrabuddin, challenging the Bombay High Court judgment dismissing the appeals filed by the deceased’s brothers against the December 2018 acquittal of all 22 accused by the special CBI court.
The matter has been posted for further hearing on October 28.
Senior advocate Dama Seshadri Naidu, appearing for Rubabuddin, informed the CJI Kant-led Bench that Nayabuddin Shaikh, another brother of the deceased, had also filed a petition challenging the High Court judgment and requested that both matters be tagged.
During the hearing, the apex court expressed concern over the fact that 92 witnesses had turned hostile during the trial and said it would like to examine the statements of some witnesses.
“92 witnesses turning hostile is a serious concern. Although it was a concurrent finding (of acquittal), whether there was a fair and just trial — that’s to be considered. We would like to see the statements of some of the witnesses; we want to satisfy ourselves,” it remarked.
Senior advocate K. Parameshwar, appearing for some of the acquitted accused, submitted that the case involved “concurrent findings of acquittal by very reasoned judgments” and sought an early hearing, saying the accused did not want the matter to remain pending for long.
However, the Supreme Court made it clear that it would not examine any challenge to the discharge of the current Union Home Minister, Amit Shah, in the case.
The CJI Kant-led Bench said it would not enter into paragraph 43 of the Bombay High Court judgment, which dealt with the challenge to Amit Shah’s discharge in December 2014.
The Bombay High Court, while dealing with the issue, had recorded that petitions challenging Shah’s discharge had earlier been rejected by both the High Court and the Supreme Court, and that the subsequent application had been filed suppressing those facts.
The Bombay High Court, in its judgment passed on May 7, had upheld the acquittal of all 22 accused and dismissed the appeals filed by Sohrabuddin’s brothers.
The appeals had sought the setting aside of the trial court’s verdict or a retrial under Section 386(a) of the Code of Criminal Procedure.
The appellants had argued that the trial suffered from serious flaws, including the failure to summon magistrates before whom certain hostile witnesses had earlier recorded their statements.
They had also claimed that several witnesses subsequently claimed that their statements had not been accurately recorded during the trial. However, the Bombay High Court declined to interfere with the acquittal. The CBI had informed the Bombay High Court that it had accepted the December 2018 acquittal verdict and had not taken a decision to challenge it in appeal.
The case relates to the alleged abduction of Sohrabuddin Shaikh, Kauser Bi and Prajapati from a luxury bus travelling from Hyderabad to Sangli on the night of November 22-23, 2005.
According to the prosecution, Sohrabuddin was killed in an alleged staged encounter near Ahmedabad in November 2005 by a joint team of Gujarat and Rajasthan Police personnel.
Kauser Bi was allegedly killed a few days later, and her body, secretly, disposed of. Prajapati, considered a key eyewitness in the case, was subsequently killed in another alleged fake encounter on the Gujarat-Rajasthan border in December 2006.
The investigation, initially conducted by the Gujarat Police, was later transferred to the CBI by the Supreme Court, which also shifted the trial from Gujarat to Mumbai in 2012.
The trial was conducted against serving and retired police personnel from Gujarat, Rajasthan and Andhra Pradesh, besides a farmhouse owner accused of illegally confining the victims.
The proceedings had also witnessed the death of Special CBI Judge B.H. Loya in 2014, while the trial was pending. Subsequently, Judge M.B. Gosavi discharged Amit Shah from the case in December 2014.
On December 21, 2018, Special CBI Judge S.J. Sharma acquitted all 22 accused, holding that the prosecution had failed to establish the charges of conspiracy and murder beyond a reasonable doubt.
The trial court had recorded that 210 witnesses were examined during the proceedings, of whom 92 had turned hostile. It had observed that the accused could not be convicted merely on the basis of moral considerations or suspicion in the absence of cogent evidence establishing their involvement in the alleged conspiracy and killings.
