IN ITS detailed judgment acquitting 22 accused in the alleged fake encounters of Sohrabuddin Shaikh and Tulsiram Prajapati and the alleged murder of Shaikh’s wife Kausarbi, the special CBI court has said that witnesses “improved” their versions, adding a “political nexus” theory to the case, which was not proved.
“There is no material, much less anything to whisper about proving even prima facie element of extortion from marble lobby of Rajasthan by politicians, who were initially arraigned as accused by CBI investigators,” Special Judge S J Sharma has said in the 358-page judgment pronounced on December 21.
The CBI, in its initial chargesheets had claimed that Sohrabuddin was killed due to a conspiracy between the politicians of Rajasthan and Gujarat, along with marble owners of Rajasthan, from whom he was trying to extort money.
While 16 of the 38 accused initially booked, including all IPS officers and two politicians — Amit Shah and Gulabchand Kataria — were discharged, the CBI’s chief investigating officer had said in court that the remaining 22 did not have any motive to kill Sohrabuddin, Kausarbi and Tulsiram. The court order said that this was not proved.
It further said that witnesses, who had in their earlier statements not said anything about political nexus, came up with the theory later as “improved versions”. The court, however, did not specifically point out who these witnesses were.
The court also relied on the deposition of chief investigating officers in the case, Amitabh Thakur and Sandeep Tamgadge, who had said that 21 accused policemen, who faced trial (one is a private person, Rajendra Jirawala), were discharging their official duty and following orders.
“In the instant case, as allegations made against the accused persons in chargesheets filed by the prosecuting agencies shows that the alleged offence was committed by the accused persons in discharge of their official duty and under the colour of office, even if it is assumed that the accused persons acted in excess of their official duty, then also they are entitled to claim protection of section 197 of the Code of Criminal Procedure,” the court said while observing that it was necessary for the agency to obtain sanction of the competent authority before filing chargesheet. “In the absence of the sanction, the accused are entitled for acquittal,” it added.
Under criminal law, sanction from a competent authority is necessary while prosecuting a public servant. The CBI, however, had maintained that sanction was not taken against these accused policemen as their actions were not part of their official duty. The trial court, too, while rejecting their discharge applications before the trial began, had agreed with CBI’s contention, stating that sanction was not necessary to prosecute them.
Further pointing out loopholes in the investigation, the court said that it was not proven that Tulsiram was present with Sohrabuddin and Kausarbi when they were abducted from a bus by the accused on November 23, 2005, while they were on way to Sangli from Hyderabad.
The court said that it was taking a judicial note of the fact that Eid was celebrated on November 5, and the prosecution’s story that the three were traveling to Hyderabad from Indore to celebrate Eid at the house of Sohrabuddin’s friend, Kalimuddin, “is not worth of reliance”.
It further said that the deposition of key witness Azam Khan, a co-inmate of Tulsiram in Udaipur jail from 2005-06, did not inspire confidence. It is clear that this witness has made improvements, it added.
“It will further be clear from his testimony that he is a hardened criminal and has knowledge about the proceeding in court of law. In the light of such circumstance and facts, evidence of this witness, which is full of improvements and omissions, do not inspire any confidence,” the court said about Khan’s testimony.
Khan had claimed in contradiction with the prosecution that Tulsiram had told him that Sohrabuddin was killed in front of him.
The court also said that the absence of call data records of some of the accused had come to the rescue of the defence.