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A Special Central Bureau of Investigation (CBI) court in Mumbai is expected to pronounce its judgement in the Sohrabuddin Sheikh alleged fake encounter case on 21 December, reported ANI.
The CBI on Monday, 3 December, requested the court to not discard entirely the testimonies of prosecution witnesses who have turned hostile, even as the court said the CBI's theory and chargesheet are "riddled with unexplained gaps".
The investigating agency said that the killings of Sohrabuddin, his wife Kausar Bi and his aide Tulsiram Prajapati in 2005 and 2006 were staged and if some defects exist in the prosecuting agency's probe, that can’t be grounds in itself to grant benefit or acquittal to the accused.
A total of 92 out of 200 witnesses examined in the case have turned hostile.
THE ARGUMENTS IN COURT
Special public prosecutor BP Raju, who was making his final arguments on behalf of the CBI before Special Court Judge SJ Sharma, said that it was "unfortunate" that so many important prosecution witnesses had turned hostile and gone back on their statements given to the CBI and the magistrate courts.
He argued that the Supreme Court had ruled in many instances that courts could take cognisance of the testimonies given by those witnesses who eventually turned hostile.
“It is unfortunate that so many witnesses turned hostile (in the Sohrabuddin Shaikh fake encounter case) but the court must not discard their testimonies entirely, especially the statements given to the CBI by Nathuba Jadeja and Gurdayal Singh. They are very important,” Raju said.
Prajapati, an aide of Shaikh who was believed to have witnessed the encounter, was allegedly killed by Gujarat and Rajasthan police officials at Chapri in Gujarat's Banaskantha district in December 2006.
WHAT DID THE JUDGE SAY?
While Raju said that all the three were killed in fake encounters, Judge Sharma said, "The CBI's theory and its chargesheet were riddled with unexplained gaps".
Prajapati's presence on the bus, in which Sohrabuddin and his wife were travelling, was not mentioned by any complainant, witnesses or probe agencies until 2010, when the CBI took over the probe from the Gujarat CID (Crime Investigation Department), the judge said.
"Sohrabuddin Shaikh's brother Rubabuddin wrote a letter to the Supreme Court and filed a writ petition in the Bombay high court in 2006. However, he did not even whisper about Prajapati. The Gujarat police and the CID that initially probed the case made no mention of Prajapati being present at the site, or witnessing the incident.”
"So what dots did the CBI join to conclude that he was the third person travelling with Sohrabuddin and his wife on that bus?" the judge asked.
The judge also noted that the CBI chargesheet was "silent" on Prajapati's whereabouts some hours before he was killed in the alleged fake encounter in December 2006.
At this, Raju said he was admitting of some "lacunae" in the CBI probe. "However, these questions were for the Gujarat police to answer as the latter had probed the case initially," he said.
"There are several judgements of the Supreme Court which rule that even if some defects exist in the prosecuting agency's probe, such defects can't be a ground in itself to grant benefit or acquittal to the accused person," the special public prosecutor argued.
He said much of the CBI's case depended on circumstantial evidence and that he will accordingly submit previous rulings of the top court on such evidence, besides "other relevant judgements" before the special court Tuesday.
Defence lawyers for Gujarat police officers ML Parmar, Narsyansing Dabhi and Balkrishna Choubey – who are among the 22 people facing trial in the case – argued that the CBI's case was "not cogent and its evidence was not unimpeachable".
The defence's arguments are likely to continue on Tuesday.
THE CASE
In November 2005, Sohrabuddin Sheikh, an alleged gangster with terrorist links, and his wife Kausar Bi were allegedly abducted by Gujarat Anti-Terrorism Squad from Hyderabad when they were on their way to Sangli in Maharashtra. Shaikh was killed in what emerged to be a ‘fake encounter’ near Gandhinagar three days after the abduction. His wife was allegedly killed later.
Prajapati, an aide of Shaikh who was believed to have witnessed the encounter, was allegedly killed in December 2006.
Based on the statements of some witnesses and the charge sheet filed by the CBI, Sohrabuddin and his wife were brought to Ahmedabad’s Disha Farm where both of them were illegally detained and later killed. The Gujarat Police had initially maintained that Sohrabuddin was an LeT operative.
THE INVESTIGATIONS TILL NOW
After an investigation in 2006, it was found that the encounter was indeed staged, and consequently in 2007, three IPS officers – DG Vanzara, Dinesh Kumar, and Rajkumar Pandian – were arrested.
The case was transferred to Mumbai in September 2012 on the request of the CBI to ensure a fair trial. Owing to lack of evidence, Amit Shah was discharged from the case in December 2014.
The three cops were acquitted in August 2017 due to lack of evidence. The Bombay High Court had in September this year dismissed petitions challenging their discharge in connection with the case.
Of the 38 people charged by the CBI for the alleged fake encounters, 16, including BJP chief Amit Shah (who was the then minister of state for home in Gujarat) and all senior police officials, were discharged. Twenty-two accused are facing trial.
(With inputs from PTI)
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