The Bombay High Court has dismissed an appeal filed by a witness in the alleged fake encounter case of Tulsiram Prajapati, Sohrabuddin Shaikh and murder of his wife Kausar Bi. The said witness challenged the judgement of Additional Sessions Judge SJ Sharma acquitting 22 accused in the case.
Division bench of Justice Indrajit Mahanty and Justice AM Badar held that the said appeal was not maintainable under provisions of the CrPC as the appellant is not a victim in the case but a witness.
The appellant, who was examined as a witness during the trial, argued that as he was a co-accused with Tulsiram Prajapati and Mohammad Azam in the case of firing that took place at the office of Patel brothers in Navrangpura, Ahmedabad. As a result, the appellant claimed that he was a direct victim of the crime.
According to the prosecution, the Gujarat Police in order to create reasons for picking up Sohrabuddin had stage managed the said firing at the office of Raman Patel and Dashrath Patel (Popular Builders) using Sohrabuddin's gang members.
Appellant's counsel KH Giri submitted that in his statement recorded under Section 164 of CrPC, the appellant had alleged that there was an attempt to extort an amount of Rs.15 lakh from him by the discharged police officers. Giri argued that according to the said statant of the appellant reflects the fact that discharged accused DG Vanzara, Deputy Inspector General, Anti- Terrorist Squad, Ahmedabad, had attempted and extorted an amount of Rs.15 lakh from him under the threat of encounter. Thus, the appellant is a victim of the crime, Giri argued.
On the other hand, ASG Anil Singh vehemently opposed the allegations against DG Vanzara and Abhay Chudasma, both policemen were discharged as accused in the case. Further, Singh pointed out that discharged accused were arraigned as respondents in this appeal without challenging the discharge order.
The popular builder case has no relevance to the case at hand, Singh submitted. He argued that the order of acquittal had already been challenged by the two brothers of Sohrabuddin, Rubabuddin and Nayabuddin. Therefore, the appellant, who was merely examined as a witness by the prosecution cannot be construed as the victim of the crime in question as per Section 372 of CrPC. Thus, the appeal is liable to be dismissed as not maintainable, ASG said.
After referring to relevant provisions of the CrPC in order to determine who has the right to appeal against an order of acquittal, Court noted-
"It is, thus, clear that except the aforesaid categories of parties i.e. District Magistrate, State Government, Central Government and complainant, who can avail a right to appeal with the leave of court, no other party has been conferred right of appeal against an order of acquittal and the same is specifically and expressly barred under Section 372 of CrPC. The victim can no doubt prefer an appeal challenging acquittal without leave of the court, as per proviso to Section 372 of the CrPC."
Court examined the allegations made by the appellant and the prosecution's case and observed-
"Thus, neither the prosecution levelled the charge of extortion from the appellant against the accused persons nor the appellant has deposed about the same before the learned trial court. Thus, it cannot be said that the appellant is a person, who had suffered any loss or injury, by reason of the act or omission, for which the accused persons have been charged."
Dismissing the said appeal, Court said-
"An appeal against order of acquittal by the appellant, who is not the victim, is not at all maintainable under the provisions of the CrPC and the same is liable to be dismissed at the very threshold, it being a circuitous attempt to impugn the Judgment of acquittal without any authority of law."