‘Conjectures and surmises’: How prosecution case against Sharjeel and others failed the court test

Before arguments on framing of charges had begun, ASJ Varma had rapped police in November last year for handing over case files to newly appointed Special Public Prosecutor Madhukar Pandey after a one-year delay.

Police have filed one chargesheet and three supplementary chargesheets in this case. The court noted with “dismay” that police filed the third supplementary chargesheet a day before the conclusion of arguments on charges.

The court said, “Investigative agency has not adduced fresh evidence; rather has sought to present the same old facts in the garb of further investigation.” It cautioned that the filing of a “slew of chargesheets must cease, else this juggernaut reflects something beyond mere prosecution and would have the effect of trampling the rights of accused persons”.

The court noted that the third supplementary chargesheet contained the same photographs that are already a part of record and even statements of witnesses that were part of previous records had been reproduced afresh.

The court said that “photo identification by the witnesses have been carried out after almost three years of the incident” after filing of written submissions by the accused, which “makes the case of prosecution suspect”.

“During the course of arguments, the question of non-identification of accused by police witnesses was raised, and ostensibly, to fill this lacuna, the present chargesheet has been filed,” the court said.

The court noted that none of the witnesses have made allegations of breaking of police barricades. There were no eyewitnesses in this case who saw the accused get involved in the violence, it noted.

A test identification parade (TIP) was not carried out until the third supplementary chargesheet. In a TIP, witnesses, who claimed to have seen the accused are asked to identify them amongst other persons without any aid, to test their veracity as witnesses.

When the police produced a picture of Safoora Zargar, allegedly with her face muffled, the court said it is difficult to believe the police version that they were able to identify her.

The police officers who stood witness made “starkly similar” statements, but “no TIP was conducted for a long period of time which was not explained by the police”, the court noted.

On the police witness statements, the court noted that it “seemed strange” that one constable identified an accused in the first chargesheet, and later in the subsequent chargesheets, police witnesses claimed to identify the rest of the accused. “They could identify the accused only after filing of third supplementary chargesheet. Are police so unsure about its case?” the court said.

Two independent witnesses recorded their statements after a one-year delay, which was not explained, the court noted, adding that these witnesses took names of other suspects as well, who were not made the accused for “reasons best known to the police”.

One of the accused they named was made a police witness, which “makes one view the version of the police with circumspection”, the court said.

“It is apparent that the police has arbitrarily chosen to array some people from the crowd as accused and others from the same crowd as police witnesses. This cherry picking by police is detrimental to the precept of fairness,” the court said.

On allegations of conspiracy, the court said the chargesheet “does not even contain a whisper or insinuation that the accused persons acted in tandem or that they coalesced at the spot after confabulating to do so”.

The main case of the prosecution was that Section 144 CrPC prohibitory orders had been violated by the protesters. However, the court noted that this order has “been filed now, after lapse of so many years” and this notification was about prohibitory order near the Parliament.