Hostile Witnesses and the Limits of a Fair Trial in the Sohrabuddin Case
When the Bombay high court upheld the acquittal of all 22 persons who had stood trial for the deaths of Sohrabuddin Shaikh, his wife Kausar Bi and Tulsiram Prajapati in May, one figure stood out: 92 of the 210 prosecution witnesses had turned hostile. Yet the Bombay high court judgment held that this alone did not show that the trial had been improperly conducted.
In paragraph 30, Chief Justice Shree Chandrashekhar (now a Supreme Court judge) and Justice Gautam A. Ankhad said the hostile-witness count was “no ground to draw an inference” that the trial had been improperly conducted, noting that the prosecution had cross-examined those witnesses and that many denied making the earlier statements attributed to them.
On September 28, the Supreme Court treated the same fact as requiring closer examination. “92 witnesses turning hostile is a serious concern,” Justice Joymalya Bagchi, who was part of the bench – also comprising the Chief Justice Surya Kant and Justice V. Mohana – observed while issuing notice on Sohrabuddin’s brothers’ challenge to the acquittals. Chief Justice Surya Kant said the court wanted to examine a small set of witness statements considered vital by the appellants.
The legal issue is, therefore, whether the collapse of prosecution testimony can be treated entirely as an evidentiary failure for which the accused receive the benefit of doubt, or whether the handling of crucial witnesses and their earlier statements raises a separate question about the fairness of the trial process.
Sohrabuddin was himself accused in several criminal cases, including murder, extortion and arms offences, and police records described him as an absconding accused wanted in Gujarat and Rajasthan. The prosecution case, however, was that senior police officers from Gujarat and Rajasthan conspired to eliminate him, intercepted the bus in which he was travelling with Kausar Bi and Tulsiram Prajapati in November 2005, and killed him in a staged encounter near Ahmedabad.
Kausar Bi was subsequently killed and her body disposed of, according to the prosecution, while Prajapati, who was alleged to have known how Sohrabuddin was taken into custody, was killed in another alleged fake encounter in December 2006.
What remained after the witnesses resiled?
The high court judgment records that the Central Bureau of Investigation (CBI) filed chargesheets against 38 accused after the Supreme Court transferred the investigation to the agency. Thirteen accused were discharged, charges against three others were dropped, and 22 ultimately stood trial before the Special CBI Court in Mumbai, which acquitted them on December 21, 2018. Twenty-one of the 22 were police personnel from Gujarat, Rajasthan and Andhra Pradesh.
Also read: Sohrabuddin Case: SC Seeks Response From 22 Policemen Acquitted in 'Fake' Encounter Case
The CBI did not challenge the acquittals, while Sohrabuddin’s brothers, Rubabuddin and Nayabuddin Shaikh, pursued the appeals decided by the high court on May 7, 2026. The high court examined whether the surviving evidence established the alleged interception of Sohrabuddin, Kausar Bi and Prajapati while travelling by bus, their alleged detention, the killings, the role attributed to individual accused and the conspiracy said to connect the events.
It found important links unproved and held that the remaining circumstantial evidence could not sustain criminal liability beyond reasonable doubt. The high court also stressed the protection attached to an acquittal: an appellate court may reassess the evidence, but it does not displace a reasonably possible view merely because another view is also available. It found the trial court’s conclusions neither perverse nor manifestly unreasonable.
What did ‘hostile’ mean in this trial?
A witness who departs from an earlier account does not disappear from the record, because a court may rely on portions of the testimony it finds credible and properly corroborated. The Sohrabuddin trial presented the additional problem that several witnesses denied making the statements attributed to them by investigators.
The high court therefore examined statements recorded under Sections 161 and 164 of the Code of Criminal Procedure (CrPC). A Section 164 statement, although recorded before a magistrate, does not automatically become substantive proof of the facts stated in it; its use depends on the rules governing corroboration and contradiction when the witness later testifies in court.
The appellants argued that Section 164 statements of some important witnesses, including PW-96, PW-205 and PW-207, had not been properly put to them during cross-examination. The high court rejected that argument, reasoning that even an admission of the earlier statements would have left the court confronting inconsistent versions on oath.
It also considered applications under Section 311 of the CrPC to recall witnesses. Those applications were decided on December 21, 2018, the day the trial court delivered judgment; the high court noted that the orders were not challenged and that the prosecution itself had opposed the recall applications.
Witness-protection concerns during the trial
Concerns about witness protection had surfaced well before the trial ended. In February 2018, the Bombay high court asked the CBI what steps it had taken to protect witnesses after 30 of the first 45 witnesses had turned hostile. By April, 52 of 76 witnesses examined had failed to support the prosecution.
Shortly before the verdict, Mohammed Azam Khan, PW-207, sought another opportunity to testify and alleged that fear and pressure had affected his deposition and that his Section 164 statement had not been properly brought before the court. Petrol-pump owner Mahendra Zala also sought re-examination and raised a complaint about his Section 164 statement.
Although those allegations did not become judicial findings of intimidation, the high court had to consider the recall applications and the treatment of the Section 164 statements, and it rejected the suggestion that they established an unfair trial. The Supreme Court’s request for selected witness statements now brings that assessment back into focus.
Tulsiram Prajapati and the limits of earlier statements
According to the prosecution, Prajapati had expressed apprehensions to several people that he would be killed in a fake encounter, and it sought to rely on those accounts after his death. The high court examined whether the alleged statements could be treated as relevant under Section 32 of the Indian Evidence Act, including as statements concerning the cause of death or circumstances of the transaction resulting in death.
It concluded that general apprehensions attributed to Prajapati could not automatically be treated as dying declarations, particularly when the witnesses through whom the statements were sought to be proved gave inconsistent or unsupported accounts. This illustrates the difficulty before the Supreme Court: earlier statements disowned at trial cannot simply replace sworn testimony, but a reviewing court can still examine whether crucial witnesses were properly questioned and whether legally usable portions of their evidence received adequate consideration.
The safeguards around the trial
Paragraph 39 of the high court judgment records that “at no point of time it was stated before the trial court that it was an unfair trial” and points to the safeguards surrounding the prosecution: the investigation had been transferred to the CBI, a senior public prosecutor conducted the case and the trial had been shifted outside Gujarat.
In Rubabbuddin Sheikh v State of Gujarat (2010), the Supreme Court transferred the investigation into the deaths of Sohrabuddin and Kausar Bi to the CBI. In Narmada Bai v State of Gujarat (2011), it directed a CBI investigation into Prajapati’s death, and in Central Bureau of Investigation v Amitbhai Anil Chandra Shah (2012), it transferred the Sohrabuddin trial from Gujarat to Mumbai.
The high court relied on that history while rejecting the claim that mass witness hostility established an unfair trial. The Supreme Court is now examining that conclusion in a case where 92 of 210 prosecution witnesses turned hostile despite those institutional safeguards.
Amit Shah’s discharge stays outside the present case
The September 28 hearing also fixed the scope of the present proceedings. Paragraph 43 of the high court judgment concerns Union home minister Amit Shah, then Gujarat’s minister of state for home when the alleged events took place. The CBI had arraigned him as accused No. 16, but the Special CBI Court discharged him on December 30, 2014.
While the acquittal appeals were awaiting judgment, Maniar Kalpesh Kumar filed Interim Application No. 1172 of 2026 seeking to challenge that discharge. The high court rejected the application after referring to earlier proceedings concerning Shah’s discharge and criticising the applicant for suppressing that litigation history; its reference to an “oblique motive” was a finding about that application and applicant.
At the September 28 hearing, Chief Justice Surya Kant and Justice Bagchi made clear that the Supreme Court would not enter into paragraph 43, leaving Shah’s 2014 discharge outside the present scrutiny and confining the case to the acquittals of the 22 persons who stood trial.
What can the Supreme Court examine now?
Because witness hostility creates no presumption that witnesses were threatened or induced, and an earlier police or magistrate-recorded statement does not become proof of guilt merely because a witness later disowns it, the prosecution must still establish guilt beyond reasonable doubt. The respondents also come before the Supreme Court with acquittals affirmed by the high court, which raises the threshold for appellate interference.
A retrial would raise an additional issue because a fresh trial cannot ordinarily be ordered merely to give the prosecution another opportunity to repair deficiencies in its original case. The Supreme Court will therefore have to assess the selected witness statements within the rules governing hostile testimony, admissibility and interference with acquittals.
If the court finds that the high court correctly assessed the evidentiary record, the hostile witnesses will not cure the gaps identified in the prosecution case. If it finds a legally material defect in the treatment of crucial evidence or in the conduct of the trial, it will then have to determine what remedy is available within those appellate limits.
The September 28 hearing has thus brought together two propositions that the high court treated separately: the surviving evidence was insufficient to convict, and the scale of witness hostility did not establish an unfair trial. Whether those propositions can continue to be separated after scrutiny of the key witness statements is now the central issue before the Supreme Court.
V. Venkatesan is contributing editor at Supreme Court Observer.
This article went live on September thirtieth, two thousand twenty six, at eight minutes past twelve at noon.The Wire is now on WhatsApp. Follow our channel for sharp analysis and opinions on the latest developments.
