Sohrabuddin Encounter: How CBI Judge Played Devil’s Advocate to Protect the Powerful

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The CBI special court judge, Justice S J Sharma, ignored incriminating evidence and went to absurd lengths to dismiss the case involving the fake encounters of Sohrabuddin Shaikh, his wife Kausar Bi and Tulsiram Prajapati against powerful politicians and top cops, argues Safi Jannaty

SAFI H JANNATY | Caravan Daily

RARELY does one find a judge coming to the rescue and relief of the defendant more than the defence lawyer.  A closer reading of 358 page long judgment issued by the CBI Special Court Judge, Justice S J Sharma in the case of abduction and killing of Sohrabuddin Shaikh, Kauser Bi and Tulsiram Prajapati gives an impression that the accused were indeed in the care of very benign and soft hands.

During the entire proceedings, the only fact which the judge accepted or rather could not dismiss was that the deaths of Sohrabuddin Shaikh and Tulsiram Prajapati were homicide. While he was more or less convinced that Tulsiram Prajapati was killed by the police in “self defence,” he did not find cogent and substantial evidence to conclude as to how and by whom Sohrabuddin Shaikh was killed. Topping all the ironies that one could find in the judgment, the judge was not able to agree that Kauser Bi had died and her body was burnt.

Besides the prime objective of punishing the culprits, the investigation and the trial was to determine the extent of influence of politicians over police and government. Conspicuous in the judgment is the absence of the name of the powerful ruling BJP president, Amit Shah, from the list of the accused, though the names of other high-ranking officials including DG Vanzara, Raj Kumar Pandiyan, Geeta Johri and Dinesh M N who were all accused but discharged earlier appear in the list. Further, although the name of Amit Shah, the only politician, appeared twice as a passing reference, the Judge chose to criticise the CBI vehemently for “implicating” politicians and acting on a pre-written and a pre-meditated theory.  

Such scathing remarks when there was no discussion or deposition concerning the role of politicians during the proceedings make one circumspect. As a natural corollary, one would ponder on the reason as to why the court and the judge let the investigating officers of India’s premier investigative agency go scot-free in the face of such serious charges.  Should he not have ordered an investigation against them for fabricating a story and forging evidence to make that story look genuine?

What is also perplexing is the fact that the prosecution remained more or less a spectator during the whole proceedings. What could be more shocking than the prosecution failing to draw the attention of the judge to the fact that the Government of Gujarat had admitted in its affidavits filed with the Supreme Court at different times that Sohrabuddin Shaikh had been killed in a staged encounter as well as accepted that his wife Kauser Bi had died in illegal custody and conceded that Prajapati was killed in a fake encounter.

The affidavits were all cited in the Supreme Court order dated  September 27 2012, wherein the court had rejected the request by the CBI to overturn the Gujarat High Court order which had granted bail to Amit Shah.   

The prosecution also failed to cite the judgment of the Supreme Court dated April 13, 2013 debunking the denial of connection between the killing of Shaikh and Prajapati while ordering to merge the case with that of Kauser bi and Shaikh.

Ironically, that order had resulted in relieving Amit Shah to seek a separate bail and continue to be out of jail by the virtue of the bail granted earlier by Gujarat High Court in the first case. All these references from the orders of the top court, if rightly presented and argued by the prosecution, should have laid to rest the unwarranted discourse by the Judge as to how Sheikh, Kauser Bi and Prajapati had met their ends.

The judgment poses yet another challenge to the readers: Should they attempt to disentangle a complicated conspiracy woven by the people accused to get rid of Shaikh and his accomplice or untwine a complex web of fallacies allegedly built by the CBI?  Rarely also does one see most of the witnesses turning hostile during the trial and leave it to the judgment of the readers to assign different motives to such withdrawal.   

Out of 210 witnesses, over two-third had either turned hostile or substantially changed their testimonies or inserted contradictory elements to get their testimonies rejected.  In a handful of cases, where the witnesses deposed properly, the judge pressed his own arguments against those depositions to rescue the accused. 

The firm standing of the judge over the circumstances surrounding the death of Sheikh reflects that even if there were to be an eyewitness to the murder, his testimony would have also been trashed by the judge.  

Firstly, the judge refused to accept the origin and the source of the report of the incident which provided the first information about the killing of Sohrabuddin Shaikh on 26 November, 2005.  After the two main witnesses who had allegedly brought one Gujarat Police Inspector and three police officers of Rajasthan police to the crime site and who testified to have witnessed the killing of Shaikh turned hostile, the whole episode surrounding the macabre killing sounded nothing but a mystery as narrated in the judgment.  

Who killed Sohrabuddin Shaikh; who brought his body to Ahmedabad Civil hospital along with the items found on and around the body; who reported the crime; were all unclear to the judge and he continued to discard one evidence after another for one reason or other. 

Not only did he consider most of the evidence presented before him as incomplete and insubstantial; the Judge also applied his conjecture to dismiss the arguments put forth by the prosecution in the charge sheet.

Matching blood sample found in the car allegedly used to carry the body of Shaikh from the crime site to the hospital was dismissed by the judge since there was no substantial evidence proving that the body was indeed taken in that car. Even the presence of expert report that the death was caused by a bullet fired from a revolver similar to the one given to one of the accused did not impress the judge who argued that corroborative evidence in the absence of substantive evidence was not admissible.

The judgment dismissed the entire charge sheet related to the abduction of Shaikh, Kauser Bi and Prajapati by the Anti-Terrorism Squad (ATS) of Gujarat and Rajasthan while they were travelling in a bus from Hyderabad to Sangli due to what he continuously referred as ‘lack of cogent, reliable and complete evidence’ supporting the accusation.  

In fact, the judge had no qualms in concluding that the couple never travelled in the first place from Indore to Hyderabad and hence naturally there was no question of their travel out of Hyderabad on November 23, 2005. Again, he let his conjecture work overtime to reach such a conclusion including his argument that when Kauser Bi had three children from her earlier marriage, why was she referred to a specialist in Sangli for treatment of fallopian tube blockage?

He further added when the couple travelled from Indore to Hyderabad in a car purported to be owned by Sheikh, why did they choose to go in a bus to Sangli?  Similarly, he dismissed all the charges related to travel by one of the prime accused, Raj Kumar Pandiyan, Superintendent Police of ATS Gujarat and other State Police Officers as well as officers of the special task force of Rajasthan Police to Hyderabad. 

All evidence related to their arrival and stay in Hyderabad between November 21 & 23, 2005, meetings with local police officers, preparatory arrangements for travel by two cars were either found to be “incomplete or inadmissible.”  

When oral testimony in the case was presented, he discarded it stating that when there was a possibility to obtain documentary evidence, oral evidence lost its validity and when documentary evidence was available he dismissed it for want of confirmation by the author of the document.

For instance, entries from the register of the mess evidencing the stay of Superintendent of Police, Raj Kumar Pandiyan between 21 and 23 November 2005 were rejected since the person who had recorded those entries was not examined. However, as and when he willed, he extracted statements from testimonies of others who deposed before him or testified before the CBI although he rejected other parts of those statements.  

In his continued enthusiasm to eliminate Prajapati’s travel along with Shaikh he relied among other things on the letter of Rubabuddin Shaikh, a brother of Sohrabuddin Shaikh, to the Supreme Court to argue that Prajapati was not travelling along with Shaikh from Hyderabad to Sangli as nothing was mentioned in the aforesaid letter.

There was no plausible reason to reject the testimony of advocate, Shaikh Salim Khan who was the lawyer of Mohammed Azam, a co-accused along with Shaikh and Prajapati in the murder case of Popular Builders. 

His deposition that Prajapati had informed him about the entire episode of abduction and killing of Shaikh and had expressed his fear of meeting a similar fate was rejected just because Shaikh Salim did not inform about that fear of Prajapati to anyone earlier and since there was no documentary evidence of him filing Vakalatnama to represent Prajapati, the judge refused to rely on his testimony.  

Similarly, the testimony of Shaikh Salim that upon his instance, Prajapati had submitted a letter to one Magistrate who had noted ‘not to ill-treat Tulsiram Prajapati’ was not accepted on the ground that copies of applications extracted from court records are not considered as public documents as per the Indian Evidence Act and hence not admissible. More agonising is his blunt refusal to accept documentary evidence which matched with the oral deposition.  

One letter which Prajapati was said to have dictated through an inmate of the jail and which was sent to National Human Rights Commission, Gujarat High Court, Supreme Court, and the concerned court was dismissed for being a certified copy and required a carbon copy or original of the same. Given the gravity of the crime, the Judge could have ordered the concerned court or the concerned judge to provide the original application.    

Continuing with the series of denials, the deposition of Kundan Prajapati, Tulsiram Prajapati’s nephew that he had told him about the Shaikh encounter, the judge denied that deposition just because the statement did not find any mention in the CBI report and the witness had talked about that for the first time.

Besides tons of typos and grammatical errors, the judgment also has several contradictions and statements that defy logic.   Would a criminal who had allegedly escaped the police two nights ago try to stop a police jeep?   Prajapati, who was referred all through as an experienced sharp shooter, would just hit the upper arm of the police inspector instead of aiming his chest or head during the so-called encounter?   Why Prajapati was located in a small town of Rajasthan and arrested just two days after the encounter of Sheikh when the police had been on the lookout for the duo for over a year?

The judge had a good amount of ammunition in his arsenal to ease out the accused.  He argued that all of the 21 accused except one enjoyed protection under Section 197 of Code of Criminal Procedure that mandates obtaining of sanction by the competent authority before charging and trying a person for a crime allegedly committed while performing an official duty.

As they were all acting under the directives of their superiors who too had such protection, the judge ruled that a prior sanction was a sine qua non to prosecute them. Again, should not the chief investigation officer and his team be indicted for his serious lapse? Conversely, one would wonder the need of citing eight references of different courts and blackening 15 odd pages to offer such protection to the accused when the judge did not find any evidence worthwhile to convict them.  In fact, the judge had noted ‘Not Proved’ against each charge of the charge sheet, however, he gave a sort of clean chit by stating a big ‘NO’ against the question ‘whether the accused persons have committed any offence’.

All said and done, one remains clueless about the reason about the judge’s lamentation over the suffering of the families of the deceased when the two of the persons, Sohrabuddin Shaikh and Tulsiram Prajapati were dreaded criminals in the eyes of the judge and who had committed serious crimes including murders. 

Besides, why should he feel sorry over the killing of Tulsiram Prajapati when the judge had found convincing evidence that he was killed by the police in “self-defence”? Similarly, as far as Kauser Bi case is concerned, there was no need for him to shed any tear since no evidence was found that proved her to be dead.  Did he have the heart to issue the order to find Kauser Bi?

We all know that hundreds of people like Sohrabuddin Shaikh, Tulsiram Prajapati and Kauser Bi routinely get killed in the name of “self-defence” and “police encounters” and most of the times culprits go unpunished. However, it was expected that the judgment would set things right to some extent and that was the sole objective of the Supreme Court handing over the investigation to the premier agency and having the trial by a special court. Unfortunately, the judgment will now embolden the police officers and law enforcement agencies to take law in their hands and kill anyone they deem right or not budge to satisfy the will of their political bosses.

It is a foregone conclusion that the CBI will not appeal the ruling and the families of the victim must have lost the will and resources to carry their struggle further.  It will now rest with the social activists to take the matter to the Supreme Court and obtain justice, of course, a long and difficult terrain to cross.

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Safi H Jannaty is a Gulf-based Indian writer. The views expressed here are personal and Caravan Daily doesn’t necessarily share or subscribe to them.   

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