Sohrabuddin case: Bombay HC issues notice to acquitted persons, admits appeal

The Bombay High Court yesterday issued notice to 22 acquitted persons, including junior-level police officers from Gujarat and Rajasthan, in the alleged fake encounter of Sohrabuddin Sheikh that took place in 2005.

A Division Bench of Justices Indrajit Mahanty and AM Badar on Monday admitted the appeal filed by Rubabuddin and Nayabuddin Sheikh, brothers of Sohrabuddin. 

The appeal was filed in April this year. The Bombay High Court called for the entire case record from the special court.

Before the High Court, the order of acquittal passed by Special CBI Court judge SJ Sharma in December 2018 has been sought to be quashed.

In its judgment, the Central Bureau of Investigation (CBI) court did not deny that Sohrabuddin, his wife Kausar Bi, and his aide Tulsiram Prajapati had been killed. However, it had observed that the prosecution failed to establish a compelling case to suggest that there had been any conspiracy or that the accused persons had any role in it.

While making observations against the prosecution’s arguments, the special judge had ruled that the entire chain of circumstances was not proved, resulting in the acquittal of all the accused.

Rubabuddin’s appeal, filed through advocate Gautam Tiwari of Probus Legal, claims that the observations and conclusions made by the special judge were contradictory to the evidence. The appeal states,

“The order is full of perversity which is devoid of any reasonableness. The Special Judge bases his judgment on unwarranted assumptions and manifestly erroneous appreciation of evidence. His actions have led to substantial miscarriage of justice and hence interference of this court is justified in order to secure the ends of justice.”

Over 200 witnesses were examined by the prosecution, and 92 were declared hostile. It has been submitted that the evidence of witnesses clearly corroborates the entire sequence of events, leading up to the alleged fake encounters of Sohrabuddin and Tulsiram Prajapati as well as the killing of Kausar Bi.

The appeal claims that there were various witnesses whose statements were either recorded before a magistrate or video recorded by the investigating officers. However, these statements were not cited, or not produced before the trial court.

Based on these points, the appellant has sought directions from the Bombay High Court to conduct a re-trial under Section 386(a) of the Criminial Procedure Code (CrPC).

Referring to certain Supreme Court judgments in cases related to police encounters, the appeal states that the special judge should have kept in mind that it is not easy to have direct evidence in cases of fake encounters.

“It is well settled law that in cases of fake encounter, direct evidence is hard to come and prosecution may rely on circumstantial evidence. Moreover, it has been time and again held by the Supreme Court that there should not be insistence on direct and ocular evidence as the offenders are police and the investigators are police to.”

The Bench will hear the case in due course.

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