Mumbai: One week after he acquitted all 22 persons accused of murdering Sohrabuddin Shaikh, his wife Kausar Bi and associate Tulsiram Prajapati in a series of fake encounters in 2005 and 2006, the CBI special judge has yet to make public his written judgment. But he has, unusually, devoted a passage in his conclusion to the exoneration of someone who was not even on trial before his court: BJP president Amit Shah.
Special Judge S.J. Sharma has accused the Central Bureau of Investigation – the agency which prosecuted the case under the supervision of the Supreme Court – of using a “premeditated theory” and “a script intended to anyhow implicate political leaders” in the three murders. He made these observations while categorically giving a clean chit to BJP president Amit Shah – who was not on trial before the court.
“My predecessor has, while passing an order of discharge in the application of accused number 16 [Amit Shah] clearly recorded that the investigation was politically motivated. Having given my dispassionate consideration to the entire material placed before me and having examined each of the witnesses and the evidence closely, I have no hesitation in recording that the premier investigating agency like CBI had before it a premeditated theory and a script intended to anyhow implicate political leaders. And the agency thereafter merely did what was required to reach that goal, rather than conducting an investigation in accordance with law.”
Shah, who was earlier named as an accused in the case, was discharged from the case in December 2014 by judge M.B. Gosavi well before the trial commenced. Gosavi took over the case after the sudden death of judge B.H. Loya that month.
Shah’s discharge was followed by the eventual discharge of all the senior policemen accused of the three murders. By the time the actual trial started, only 22 of the original accused remained – mostly low-rung policemen – and on December 21 Judge Sharma acquitted them all of the charges of murder, conspiracy, and destruction of evidence.
The CBI, he said, “did what was required of it to reach the goal rather than conduct an investigation in accordance with law.”
Though Sharma in his judgment has accused the CBI of trying to frame Shah, he actively discouraged witnesses as well as prosecution lawyers in court from bringing on record any specific evidence against Shah or the 15 other persons discharged as they were not facing trial anymore.
In his judgment, Sharma observes: “I have examined the entire evidence placed before me. Having so examined the entire investigation and having conducted the trial, I have no hesitation in recording that during the investigation of these offences, the CBI was doing something other than reaching the truth of these offences. It clearly appears that the CBI was more concerned in establishing a particular preconceived and premeditated theory rather than finding out the truth.”
The court, however, has refrained from passing any strictures or giving specific directions against the “erring” CBI officers who investigated the case.
Asked for a response, the CBI spokesperson refused to comment to on the court’s observation saying, “We have not received the judgment copy so far. We are not in a position to give any comments at present.”
No clarity on three encounters
Sohrabuddin, a small-time gangster, was killed by the Gujarat police on November 26, 2005. The official claim at the time was that he had been sent by the Lashkar-e-Tayyaba to assassinate a top political leader in the state, presumably Narendra Modi, who was chief minister.
In 2007, the Gujarat government itself admitted the encounter was fake and filed a chargesheet against 13 policemen. The Supreme Court subsequently handed over the investigation to the CBI, which filed its chargesheet in 2012. The agency established that Sohrabuddin’s wife, Kausar Bi, who had been abducted along with her husband from a Hyderabad-to-Sangli bus and kept in illegal custody, was murdered on November 28, 2005. Prajapati, who was aware of these killings, was killed in custody on December 28, 2006, the CBI charged, with the killing shown as a failed escape attempt.
While the CBI claimed that the three persons had been murdered as a part of one large “inter-state political- police-criminal nexus”, the CBI special court has concluded that Prajapati was killed in a “genuine encounter”.
The court said that he had in fact not traveled with Shaikh on the bus from Hyderabad in Telangana to Maharashtra’s Sangli district as the CBI had argued.
“If Prajapati had traveled along with Shaikh,” the court said, “the accused would not have waited for a year to eliminate him but would have killed him along with Shaikh.”
In an interview to The Wire, Prajapati’s mother, Narmadabai, had disclosed how her son had told her on three occasions that he feared the police were going to eliminate him.
Contesting the CBI’s allegations, the policemen charged with the custodial killing of Prajapati maintained that they had fired at him in self- defence when he tried to escape while they were escorting him from Udaipur central prison to Ahmedabad. One policeman was allegedly injured in the firing. While the CBI had claimed it was a self- inflicted wound, the accused policemen had used the wound to challenge the CBI’s versi0n.
The court also stated that the CBI had failed to provide adequate evidence to prove the “circumstances under which Shaikh was killed”. In other words, his murder, 13 years later, continues to be a mystery, just as the disappearance of his wife, Kausar Bi.
According to the court’s observation, “the CBI could not bring evidence to prove that Kausar Bi had traveled with Shaikh on the bus from Hyderabad to Sangli and that she was subsequently abducted and kept in a guest house along with Shaikh and then later shifted to another guest house (Arham guest house) before she was killed and her body was burnt.”
Judge Sharma said that nothing about her whereabouts and her supposed abduction or of her murder could be proved on the basis of the evidence that CBI had gathered in the case.
‘CBI coerced, pressurised the witnesses’
The trial, that went on for a little over one year, saw 210 witnesses – eyewitnesses, police and experts – depose before the trial court. Of these, 92 witnesses, including several crucial ones, turned hostile. Among others who were not declared hostile, many did not stick to their earlier statements entirely.
While past experience suggests witnesses turning hostile is the product of coercion and intimidation brought to bear on them during trial, judge Sharma accused the CBI of coercing witnesses to make false claims in their earlier statements:
“The witnesses whose statements were purportedly recorded deposed fearlessly before the court clearly indicating that their purported statements were wrongly recorded by the CBI during the investigation to justify its script to implicate political leaders.”
Sharma further added,
“In my discussion, I have also noted the negligence of the CBI towards the material part of the investigation which clearly indicates that they hurriedly completed the investigation either by using replica of the earlier recorded investigation and have implicated the police personnel who had not at all knowledge of any conspiracy rather they appeared innocent.”
The entire investigation, according to the court, was “targeted to act upon a script to achieve the said goal [of implicating politicians] and anyhow the CBI created the evidence and placed statements purported to have been recorded under section 161 and or section 164 of the CrPC.”
Though statements recorded under section 164 of the Criminal Procedure Code are taken on oath before a local district magistrate and are considered strong, admissible evidence at the time of the trial, the judge has concluded that most witnesses were coerced and pressurised into giving “purported statements” before the magistrate by the CBI and that they finally spoke the truth before the special CBI court at the time of the trial. “Some witnesses (including one CBI official) even cried before the court explaining how they were intimidated into giving favourable statements to the CBI,” the court has observed in its judgment, excerpts of which were read out to reporters by the judge.
Since the court has considered the hostile witnesses as a victim of the political vendetta furthered by the CBI, no legal proceedings have been initiated against them.
‘Agony’ and ‘regret’ at ‘reported killing’ going unpunished
As a concluding paragraph, judge Sharma stated that he was “not unaware of the degree of agony and frustration that may be caused to the society in general and (to) the families of the deceased in particular, by the fact, a serious crime like this goes unpunished. But then the law doesn’t permit the court to punish the accused on the basis of moral conviction or suspicion alone. The burden of truth in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubts on the basis of acceptable evidence.”
Expressing “regret”, the judge observed: “It is no doubt a matter of regret that there is a reported killing of Sohrabuddin and Tulsiram and it is going unpunished. So, also Kausar Bi, wife of Sohrabuddin’s disappearance and the script of the CBI during the investigation that she was killed and set ablaze is lacking evidence and is also going unpunished. However, just for the sake of the record, the accused cannot be punished by holding them guilty on moral or suspicious grounds. I have, therefore, no options (but) to conclude that the accused are not guilty and are to be acquitted.”