Fake encounter cases: Witnesses allege ‘mismanagement’ by prosecution, seek to be re-examinedhttps://indianexpress.com/article/cities/mumbai/fake-encounter-cases-witnesses-allege-mismanagement-by-prosecution-seek-to-be-re-examined-5503123/

Fake encounter cases: Witnesses allege ‘mismanagement’ by prosecution, seek to be re-examined

Mahendra Zala, a Gujarat-based businessman and Azam Khan, an Udaipur-based gangster who was allegedly a part of the criminal gang run by Sohrabuddin, have sought to be recalled as witnesses.

Sohrabuddin Shaikh and his wife Kausarbi.
Sohrabuddin Shaikh and his wife Kausarbi.

THE WITNESSES seeking to be re-examined in the Sohrabuddin Shaikh and Tulsiram Prajapati alleged fake encounters case told the special CBI court on Thursday that there was “mismanagement” on part of the prosecution in bringing relevant evidence on record during the trial.

Mahendra Zala, a Gujarat-based businessman and Azam Khan, an Udaipur-based gangster who was allegedly a part of the criminal gang run by Sohrabuddin, have sought to be recalled as witnesses stating that their statements recorded earlier under section 164 of the Code of Criminal Procedure (CrPC) were not exhibited by the prosecution, leading to relevant facts of the case not being brought on record as evidence.

Zala, through his advocate Arjundev Zala, told the court that his statement recorded in 2010 was crucial as it brought on record various aspects, such as the money racket involving the accused policemen, including those discharged and Sohrabuddin.

“Sohrabuddin was used by the discharged accused to get their work done. My statement under section 164 CrPC establishes their nexus, where they used Sohrabuddin for extortion. This material must come on record. The prosecution did not feel this was fit to be brought on record as the policemen named in the statement have been discharged. But there is a provision under the law to still summon them as accused if relevant evidence is brought. Only because they have been discharged, does not mean the evidence against them cannot be mentioned,” Zala said.

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He referred to section 319 of the CrPC, under which the court can summon anyone as accused if relevant evidence is brought on record. According to the CBI, 38 people were named as accused in the case and chargesheeted. Sixteen of them, however, including all IPS officers and senior politicians, were discharged. Since the beginning of the trial, the prosecution and the court have told the witnesses that as these 16 people have been discharged, the deposition should focus on the 22 currently on trial.

“During the trial, relevant material or answers were not brought on record. There is a clear mismanagement on part of the prosecution in getting answers and bringing evidence on record, which can be rectified by the court that has the widest power. It can ask for production of documents in the interest of justice,” Zala argued.

According to Zala’s submissions, his statement recorded in 2010 was pertaining to the alleged extortion by Gujarat IPS officers Abhay Chudasama and D G Vanzara, both discharged, by threatening to book him in a case of firing in the office of Popular Builders in 2004.

The CBI has claimed in its chargesheets that Sohrabuddin was killed as he went against the wishes of these policemen and complaints made against him by marble owners of Rajasthan, from whom he was extorting money. Sohrabuddin was shown to have been killed in an alleged fake encounter on November 26, 2005, the CBI has claimed. His wife, Kausarbi, who was abducted along with him, was killed soon after and her body disposed of. Sohrabuddin’s associate, Tulsiram, who was a witness to the abduction, was also shown to have been killed in an encounter on December 28, 2006, which the CBI has claimed was staged by the accused policemen.

Zala claimed that when he came to depose as a witness on October 23, 2018, he was not asked about his statement by the prosecution and without it, the court may not be able to establish the link of the conspiracy to kill the three persons.

“The prosecution has reached the climax, which is the murder, but has not established the link that led to the offence,” Zala said. Two chief investigating officers of the CBI, Amitabh Thakur and Sandeep Tamgadge, had told the court during their deposition this month that while the current accused did not have motive to kill the three, there was a larger link to the conspiracy involving a “criminal-police-politician” nexus.

Similarly, Azam Khan, currently lodged in Udaipur Central Jail, also told the court through advocate Sarim Naved that he was threatened during his deposition and hence, was not able to take the names of senior policemen and politicians, involved in the conspiracy.

He said that efforts were made to immediately approach the court, as Khan is lodged in jail and paperwork required requisite permissions from jail and local authorities. He also claimed that the threat felt by witnesses, including Tulsiram’s mother Narmadabai, who did not appear as a witness despite summons and warrants, showed that it was a fit case for the new witness protection scheme to be implemented.

Defence advocates for the accused called these pleas “a delay tactic” done with “malafide intention”. They claimed that Zala had a case pending against him in the firing of Popular Builders in Gujarat and his evidence was based on “hearsay”. They added that since Special Judge S J Sharma is set to retire this month, the witnesses were prolonging the trial so that another judge can hear the case.

Zala denied the argument by claiming that he had “shown courage” by seeking to be examined by CBI and no malafide intent can be inferred on him. The defence also said that the discharge of the some of the accused by the trial court has also been upheld by the Bombay High Court.

Special Public Prosecutor B P Raju countered Zala’s claim by stating that he had taken on record relevant parts of the statements of witnesses. “I am not concerned and the court is not concerned with personal grievances, business disputes. I have taken relevant parts of the statements made by witnesses, which is against the 22 accused facing trial,” Raju said. He, however, did not offer any counter to the allegation that statements made by witnesses under section 164 of CrPC were not exhibited as evidence in the court by the prosecution.

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While the court had reserved Friday as the date for the pronouncement for the judgment, it will decide on the pleas first. If it allows the recalling of witnesses, the judgment will be deferred.