Noting that several witnesses have turned hostile during trial in the alleged fake encounter cases of Sohrabuddin Sheikh and Tulsiram Prajapati, the Bombay High Court Monday asked the CBI what protection has been provided to prosecution witnesses.
“Is this the seriousness with which the CBI is conducting the trial,” Justice Revati Mohite-Dere remarked.
She was hearing three applications filed by Sohrabuddin’s brother Rubabuddin, challenging the discharge of former DIG of Gujarat D G Vanzara, Rajasthan IPS officer Dinesh M N and Gujarat IPS officer Rajkumar Pandiyan, along with two applications filed by the CBI, challenging the discharge of Rajasthan police constable Dalpat Singh Rathod and Gujarat police officer N K Amin.
“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 said.
So far, 30 witnesses, presented by the prosecution to support its case that Sohrabuddin, his wife Kausarbi and associate Tulsiram Prajapati were victims of extra-judicial killings, have turned hostile in the special CBI court in Mumbai.
“What action are you taking in cases where witnesses have turned hostile? Are they being charged for perjury for giving false evidence,” Justice Mohite-Dere asked.
Representing the CBI, Additional Solicitor General Anil Singh said he would have to take instructions regarding this.
Stating that the investigating agency cannot be a silent spectator, Justice Mohite-Dere said: “You don’t need to conduct the case if this is your attitude. What protection are you providing to witnesses? They are turning hostile. Is this the seriousness with which you (CBI) are conducting the trial?”
She said she was not getting the assistance she should. “I want a larger picture placed before me, not just isolated statements,” she said.
She made these statements while hearing arguments of senior counsel Mahesh Jethmalani who was representing Amin.
The CBI had relied on the statement of a constable from the Anti-Terrorism Squad of Gujarat who claimed that Amin was present at the spot when Kausarbi’s body was burnt. Presented as one of two key eyewitnesses to the alleged abduction and encounter of Sheikh and the killing of his wife, this witness retracted his statements several times.
According to Jethmalani, the constable’s statements made in April 26, 2007 to the CID and then on May 11, 2010 to the CBI were exactly the same. “There is no iota of change, not even grammatically… he has been made a witness but has repeatedly said he had not made the statement,” he said.
Jethmalani said the statement was inadmissible in law as evidence since it was a confessional statement. “If they wanted to make it admissible, they should have gone to a magistrate or given him pardon and turned him into an approver… His statement has to be discarded as far as Amin is concerned,” he said.
He also said Rubabuddin had been seeking time for several hearings, leading to delay. At this, the court said: “The CBI filed their applications in 2016, and has not taken any step to circulate this matter. They just filed the petition and did nothing. They have to give answer. Let us not blame anybody (for delaying the hearing of these matters).
It is alleged that Sohrabuddin and his wife Kausarbi were abducted by the Gujarat ATS from Hyderabad while they were on their way to Sangli in Maharashtra and killed in a staged encounter near Gandhinagar, in November 2005. Prajapati was allegedly killed by police officers at Chapri village in Banaskantha district of Gujarat in December 2006.
The court is likely to continue hearings in the matter Wednesday.