Referring to the increasing number of prosecution witnesses turning hostile before the trial court in the Sohrabuddin Shaikh alleged fake encounter case, the Bombay High Court today said it can not be "affected" by developments in the trial court.
Justice A M Badar started the hearing afresh on the pleas filed by the Central Bureau of Investigation (CBI) and Sohrabuddin's brother Rubabuddin Shaikh, challenging the discharge granted to some IPS officials and a constable who were accused in the case.
He had to go by what was presented as evidence by the CBI in its charge sheet, the judge said.
The observation came when Shaikh's lawyer, Gautam Tiwari, began reading out a statement given by the prime prosecution witness, Nathuba Jadeja.
Jadeja, a driver with the Gujarat Anti-Terrorist Squad in 2005, had said in his statement before a magistrate in 2007 that he had witnessed the abduction of Sohrabuddin, his wife Kausar Bi, and his aide Tulsiram Prajapati by the accused police officials.
According to the CBI, Sohrabuddin was killed in a fake encounter in November 2005 and his wife was killed later, while Prajapati was killed in another fake encounter in December 2006.
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In December last year, Jadeja retracted his statement while deposing before the trial court in Mumbai. The CBI forced him to make the statement, he said, and was subsequently declared hostile.
Senior lawyer Raja Thakare, representing some of the discharged police officials, pointed out that Jadeja had turned hostile (so his earlier statement should not carry weight).
Justice Badar refused to accept the argument.
"We have read in the newspaper that witnesses are turning hostile, so the moment you raised an objection I understood that he (Jadeja) too must have turned hostile. That doesn't matter at the revisional stage, since this court can't be affected by what is going on in the trial court right now. I have to go by what has been presented in the charge sheet," the judge said.
"It is unfortunate, but the longer a trial takes, the greater the chances that witnesses begin turning hostile and the accused then say they must be discharged. Apprehending such a situation, I had refused to stay the trial in the case in November last year," he said.
The defence will get a chance to make this argument at a later stage in the hearing, he added.
Justice Badar today also rejected the discharge pleas filed by two sub-inspectors of the Rajasthan Police.
Sub-inspectors Himanshu Singh Rajawat and Shyam Charan Singh had filed a revision plea against the trial court's order of July 2017 rejecting their discharge pleas.
Justice Badar noted that the charges against the duo as well as the other accused have been framed and the trial court has already examined 125 witnesses.
Hence, this was not the stage for seeking discharge, but it was now for the trial court to decide whether the accused should be convicted or not, he said.
Three petitions filed by Rubabuddin Shaikh against the discharge of IPS officers D G Vanzara, Dinesh M N and Rajkumar Pandian, and two petitions filed by the CBI against the discharge of IPS officer N K Amin and constable Dalpat Singh Rathod were left part heard when the assignment of the earlier judge, who was hearing them, was changed in February.
Sohrabuddin Shaikh, a suspected gangster, and his wife Kausar Bi were allegedly abducted and killed by a team of Gujarat and Rajasthan police in November 2005.
Prajapati was allegedly killed by some Rajasthan Police officers a year later.
The CBI filed a charge sheet against 38 persons for the alleged fake encounters. The trial court discharged 14 people, including BJP chief Amit Shah, from the case.