'92 Witnesses Turned Hostile, No Evidence Of Politician-Police Nexus': Bombay High Court While Acquitting 22 Cops In Sohrabuddin Encounter Case

The Bombay High Court while upholding the acquittal of the 22 policemen from Gujarat and Rajasthan in the alleged fake encounter case of Sohrabuddin Sheikh, his wife Kausar Bi and associate Tulasiram Prajapati, held that the prosecution's story of a 'conspiracy' to kill the trio after abducting them was not established and that the case rested solely on 'circumstantial' evidence, which too was not proved.

A division bench of Chief Justice Shree Chandrashekar and Justice Gautam Ankhad found the prosecution story to be 'incomplete and destroyed' and that the chain of circumstances could not be proved beyond reasonable doubt. The judges noted that over 90 witnesses turned hostile, which affected the credibility of the evidence adduced by the prosecution. The bench said that the prosecution failed to bring on record any witness, to testify that they witnessed the alleged abduction of the trio from a luxury bus by the policemen on the relevant day.

"There is no ground to draw an inference that the trial was not being conducted properly because 92 prosecution witnesses turned hostile. These witnesses were cross-examined by the prosecution and they flatly denied to have made any statement before the police in support of the prosecution case. This is also not a significant fact that the statement of a few witnesses such as PW-96, PW-205 and PW-207 recorded under section 164 of CrPC were not shown to them in their cross-examination. Even assuming for a moment that these witnesses would have admitted their statements under section 164 of CrPC, they were liable to be held unreliable witness in the face of the contradictory statements made by them in the Court," the bench observed in the order. 

The prosecution, the judges said, failed to establish motive for staging a 'fake encounter' and this is a circumstance which shall weigh in favour of the acquitted policemen. "The Investigating Officer stated in the Court that there was no material to show that any of the respondents received political or monetary benefit. He further admitted that the Police Officers facing trial were acting under the instructions of their superiors," the bench noted. 

In the 50-page judgment authored by Chief Justice Chandrashekhar, it is stated that the prosecution failed to establish that Sohrabuddin and Kausar Bi were abducted by the Gujarat and Rajasthan police in the early hours of November 23, 2005 from a luxury bus from a place near Zahirabad.

"Sohrabuddin was a dreaded criminal wanted by Gujarat and Rajasthan Police in several cases. He was projected as a master mind to eliminate Hamid Lala in a fight of primacy. The appellant Rubabuddin (Sohrabuddin's brother) had no personal knowledge of the events," the Chief Justice noted.

The CJ further noted Rubabuddin did not inform the police about the presence of Tulsiram with Sohrabuddin and Kausar Bi and in fact in his cross-examination, he admitted that he made a statement before the Inquiry Committee that one Kalimuddin was the third person with Sohrabuddin and Kausar Bi. Similar contradictions were noted by the bench in the testimony of Nayabuddin, the younger brother of Sohrabuddin. 

The judges while referring to the testimony of the Doctor, who conducted the postmortem on Sohrabuddin, noted that he found several bullet injuries on different parts of the body.

"The cause of the death was shock and hemorrhage due to injuries sustained by the victim. He stated in the Court that no burn marks or smoke deposits were found, the fire-arm injuries which would ordinarily be present if a person is fired at close range. He further noted that no cadaveric spasm was observed by him while conducting the postmortem examination over the dead body of Sohrabuddin Shaikh, which generally may occur when the death is associated with extreme physical or emotional stress such as fear. These findings clearly rule out any possibility of fake encounter of Sohrabuddin," the bench observed. 

As regards the alleged murder of Kasuar Bi, the bench noted that the prosecution contended that Kausar's body was charred to death and her remains were disposed of in the Narmada river in Gujarat, however, no witness came forward to support this claim. 

"The case of the prosecution is based on circumstantial evidence and there are several broken links in the chain of circumstances. We do not see any ground to hold that the prosecution has established by circumstantial evidence the complicity of the 22 policemen in the conspiracy to murder Sohrabuddin, Kausar Bi and Tulsiram by projecting a case of fake encounter," the bench held. 

In his order, Chief Justice Chandrashekhar also referred to the order passed by the special court discharging 16 accused persons in the case. He said that the prosecution had relied on the very same set of evidence against those 16 persons, which the special court did not accept and discharged them.

"... this cannot be overlooked. That decision of the Special Court has now become final. The very foundation of the prosecution case is demolished and the conspiracy theory must be held not proved. Mr Amit Desai, the senior counsel submitted that from the very beginning the prosecution theory aligned with a particular narrative with strong political overtones and attempted to foist liability on a particular political person and a select group of police officers. The investigation was done by a different Investigating Agency which is said to be highly skilled and equipped with scientific investigation and the trial was conducted in a State where the ruling party was different," the Chief Justice recorded. 

The bench further clarified that the family of the trio never made any grievance that the trial was unfair before the special court and in fact that investigations were transferred to the CBI,  presumably to ensure fair investigation.

"A senior Public Prosecutor was appointed to ensure that the prosecution case does not falter and he rendered his fullest duty. The trial of this case was transferred from the State of Gujarat under the direction of the Supreme Court, which observed that the decision to relocate the proceedings is a prophylactic measure, specifically intended to insulate the trial court from extraneous pressures and undue stress that may arise from the high-profile nature of the case. The Court further observed that such a transfer is essential to uphold the sanctity of the judicial process and to dispel any potential misgivings or perceptions of bias in the public mind, thereby ensuring that the principles of a fair and impartial trial are not only followed but are seen to be followed," the bench highlighted. 

Lastly, the bench made it clear that a judgment of acquittal cannot be interfered in a casual or cavalier manner and it is not permissible in law to overturn the judgment only on the ground that another view is possible. The High Court, the judges observed, must take a holistic view and not a myopic view of re- appreciation of the evidence and render its judgment keeping in mind the cardinal principle of criminal jurisprudence that there is presumption of innocence in favour of the accused.

"Such presumption continues at all stages of the trial and gets concretized when the trial ends in the acquittal. The judgment of acquittal strengthens the presumption of innocence of the accused and a higher threshold is required to rebut the same in an appeal against acquittal," the judges observed. 

With these observations, the bench upheld the acquittal of the 22 policemen.

Appearance:

Advocates Gautam Tiwari, Tasneem Khatau, Suraj Jagtap, Nidhi Mishra, Vaishnavi Dubey and Bhavesh Thakur instructed by Probus Legal for the Appellants.

Additional Solicitor General Anil Singh along with Kuldeep Patil, Aditya Thakkar, Chaitanya Chavan, Adarsh Vyas, Krishnakant Deshmukh, Rajdatt Nagre, Saili Dhuru, Anay Joshi, Sumitkumar Nimbalkar, Digvijay Kachare and Sanika Joshi represented the CBI.

Senior Advocate Amit Desai along with Advocates Madhusudan Pareek, Gopal Shenoy, Devendra Shukla, Harekrishna Mishra, Shabi Moulvi, Khan Abdul Wahab, Ms.Shifa Khan, Mayanka SR, Fardin Shaikh, Abdul Hafeez Kotawala, Nitin Mane, Shahabuddin Shaikh, Ishan Jani, Farhad Panthak, Maitreya Shukla, Hitesh Shah, Sachin Pawar, Devang Mhatre and Sagar Patil represented the Accused.

Case Title: Rubabuddin Shaikh vs Central Bureau of Investigation (Criminal Appeal 641 of 2019)

Citation: 2026 LiveLaw (Bom) 241

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