Sohrabuddin Case: Bombay HC Admits Appeal Filed by Sohrabuddin's Brothers Challenging Acquittal of 22 Accused
The Bombay High Court on Monday admitted appeal filed by brothers of Sohrabuddin Shaikh challenging the acquittal of all 22 accused in the alleged fake encounter case. Amongst the accused are police officers from Gujarat and Rajasthan, they were acquitted by a special CBI court in a judgement dated December 21, 2018.
Division bench of IA Mahanty and Justice AM Badar admitted the appeal and issued notice to the respondent accused.
Rubabuddin Shaikh and Nayabuddin Shaikh had sought quashing of the said judgment or in the alternative, directions for a re-trial. Previously, Rubabuddin had written to the Ministry of Home Affairs, Director, CBI and the Cabinet Secretary requesting them to file an appeal against the judgment of Special CBI judge SJ Sharma.
At the very outset, the appeal states that the appellant is a victim in terms of Section 2(wa) of the Code of Criminal Procedure, 1973 as he is the person who has suffered the loss of his brother and sister-in-law and is, therefore, is entitled to file an appeal.
"The learned Special Judge bases his judgment on unwarranted assumptions and manifestly erroneous appreciation of evidence. His actions have led to a substantial miscarriage of justice, and hence interference of this Hon'ble Court is justified in order to secure the ends of justice", the appeal states.
Further, the appeal states that the judgment of acquittal was wholly and completely contradictory to the evidence at hand.
In the 358-page judgment, Judge Sharma expressed his sympathy towards the family of the deceased. But he also pointed to the lack of conclusive evidence in the case.
"It is no doubt a matter of regret that there is a reported killing of Sohrabuddin and Tulsiram and it is going unpunished. Also, Kausar Bi, wife of Sohrabuddin disappeared and the script of the CBI's investigation that she was killed and set ablaze is lacking of evidence and is also going unpunished. However, just for the sake of record the accused cannot be punished holding them guilty on moral or suspicion grounds. I have therefore no options to conclude that the accused are not guilty and are to be acquitted" Judge Sharma noted.
A total of 210 witnesses were examined in the case, out of which 92 turned hostile. Amongst many other questions raised in the appeal with regard to the judgment, the appellant questions the fact that no effort as made by the prosecution to summon magistrates before whom the 'hostile witnesses" had deposed earlier.
The entire trial has been conducted in a manner to defeat the ends of justice, appeal states. It is argued in the appeal that the manner in which the trial was conducted, it makes a compelling case for a re-trial.
Thus, the appeal seeks quashing and setting aside of the judgment pronounced by the Spl CBI Court or directions to the Sessions Court to conduct a re-trial under S.386(a) of CrPC, 1973.
The matter will come up for hearing due course.