The Bombay High Court Monday rejected pleas against discharge of former Gujarat ATS chief D G Vanzara and four other police officers in the Sohrabuddin Shaikh-Tulsiram Prajapati alleged fake encounter case, holding that the CBI failed to establish a prima facie case.
Justice A M Badar rejected the review applications filed by Shaikh's brother Rubabuddin and the Central Bureau of Investigation (CBI) against the discharge, and also held that these officers were acting in discharge of their official duty.
The high court also granted discharge to IPS officer Vipul Aggarwal, another accused in the case.
"The material on record does not establish any prima facie case against the discharged accused, nor does it raise any suspicion on which they must be made to face trial," Badar said.
Thus, the Gujarat Police's Vanzara, Rajkumar Pandian, N K Amin and Aggarwal and the Rajasthan Police's Dinesh M N and constable Dalpat Singh Rathod now stand discharged.
The CBI did not obtain prior sanction from the government before charge sheeting some of them, the high court said.
Even if the court were to accept the CBI's case, lack of sanction would render their prosecution unlawful, it said.
"... The accused, as seen from the material in the charge sheet, were certainly acting in discharge of official duties," Badar said.
The CBI has failed to establish that these officers had a motive to hatch a conspiracy to kill Sohrabuddin Shaikh, his wife Kausar Bi and Shaikh's aide Tulsiram Prajapati, the court said, adding that a "few bits here and few bits there cannot make out even a prima facie case for inferring conspiracy."
The court picked holes in the CBI's case that Shaikh, Kausar Bi and Prajapati were abducted in November 2005 when they were travelling from Hyderabad to Sangli in Maharashtra in a luxury bus.
The CBI had claimed that Shaikh was killed on the same spot, Kausar Bi a few days later and Prajapati, an eye-witness to the two killings, was let off.
He was later arrested and killed by a team of the Rajasthan Police at the behest of Vanzara and the other officers now discharged in the case, it had said.
Lawyers Mahesh Jethmalani, Shirish Gupte, Niranjan Mundargi and Raja Thakre, who represented the police officers, argued that Shaikh and Kausar Bi were killed in a genuine encounter by a team of the Gujarat and Rajasthan police as Shaikh was trying to evade arrest.
Prajapati was killed in another genuine encounter by the Rajasthan Police in December 2006 as he tried to escape from custody while returning to Udaipur from Ahmedabad following another case hearing, they contended.
The defence lawyers said statements of Gujarat Police constables Nathuba Jadeja and Gurdayal Singh, on which the CBI's case mainly rested, should be ignored as they later turned hostile in a Mumbai trial court.
Badar said at this stage he cannot take note of what was happening in the trial. However, these two witnesses had made multiple admissions and retractions of statements in the past and so, the CBI should have produced independent evidence to corroborate their statements, he said.
The CBI also failed to establish that Prajapati was accompanying Shaikh and Kausar Bi, and it relied on statements of Shaikh's brother and no other witnesses, the high court said.
Mere suggestion by Rubabuddin that Prajapati was an eye-witness to the killings of Sohrabuddin and his wife is not enough to establish a motive, it said.
The high court upheld the trial court's order, discharging Vanzara and Amin for lack of evidence, and Dinesh MN, Pandian and Rathod for lack of evidence as well as prior sanction.
For Amin, the court rejected the CBI's theory that his presence at the spot where Shaikh and others were abducted, though he was then SP of Ahmedabad and the spot was outside his jurisdiction, should prove that he was aware of the plan.
Badar cited a Supreme Court order in the Rajiv Gandhi assassination case that mere knowledge of the conspiracy would not make the person a conspirator.
He also refused to accept Prajapati's statements to fellow prisoners in the Udaipur jail about the alleged fake encounters and threat to his own life as his "dying declaration".
These statements could not be held as credible evidence, he said.
Rubabuddin had challenged the discharge granted to Dinesh, Pandian and Vanzara and the CBI had challenged the discharge granted to Amin and Rathod.
CBI's lawyer Additional Solicitor General Anil Singh and advocate Sandesh Patil and Shaikh's lawyer Gautam Tiwari had argued that the officials should be made to stand trial.
The CBI had claimed that Shaikh and Prajapati were extortionists, who targeted marble traders in Rajasthan and Gujarat, and also did extortion work for the local police.
But, when the relationship turned sour, the Gujarat Police decided to have them out of the way, according to the charge sheet.
The Gujarat CID, which probed the case earlier, had claimed that records showed frequent calls between the accused police officers and BJP president Amit Shah (who was then Gujarat Minister of State for Home) during the relevant period.
In December 2014, the special CBI court in Mumbai discharged Shah, holding that the record of the calls was poor evidence.
Between August 2016 and September 2017, it discharged 14 others, including Vanzara, Dinesh, Pandian, Amin and Rathod, only rejecting Aggarwal's plea.
Over 80 CBI witnesses have turned hostile in the ongoing trial of the fake encounter case.
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