Beruflich Dokumente
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IN
C.B.I. SCB
1
3) Further the brother of the deceased move the
Honorable Apex Court for the transfer of
investigation and pursuant thereof, investigation
came to be transfer to the C.B.I and in furtherance
thereof, C.B.I.S.C.B. Mumbai registered an
administrative F.I.R. being R.C.B. /S/2010/004
dated 1.02.2010 and undertaken the further
investigation u/s 173 (8) of Cr.P.C. and accordingly,
on 23.07.2010 filed the first final report being
charge sheet and subsequently thereafter on
22.10.2010 again a supplementary charge sheet
was filed. Thereafter C.B.I. also filed further third
charge sheet. The particular of event of the progress
of the investigation in Sohabudin Case in
Chronological order:-
2
Sr. Dates Particulars
No.
Magistrate, Ahmadabad and the
matter was carried to City Sessions
Court, Ahmadabad being No. 256 of
2007.
7. 10.12.2007 Additional supplementary charge
sheet was filed by the C.I.D. Crime
Branch, Ahmadabad.
8. 05.09.2008 Sessions Court, Ahmadabad allowed
the application preferred by the
brother of Sohrabuddin and directed
the investigating officer to further
investigate the case and to submit
the report within 90 days.
9. 30.09.2008 Vide an order passed in Writ Petition
No. 6 of 2007; the Honble Supreme
Court of India stayed further
proceedings pending before the
Sessions Court, Ahmadabad.
10. 08.12.2008 C.I.D. Crime Branch, Gujarat filed
an investigation report in a sealed
cover to the Honble Court, but the
same was not accepted by the
Honble Court as the Honble
Supreme Courts stay order was in
effect.
11. 12.01.2010 The investigation was transferred
from Gujarat Police to the C.B.I. by
the Honble Supreme Court of India.
12. 01.02.2010 Fresh F.I.R. was registered by the
C.B.I.
13. 23.07.2010 C.B.I. Submitted the charge sheet-I
14. 22/10/2010 C.B.I. submitted the charge sheet-II
15. 25.11.2010 C.B.I. submitted final report to the
Honble Court.
16. 13.01.2011 C.B.I. filed the Transfer Petition
before the Honble Supreme Court of
India.
17. 27.09.2012 The Honble Supreme Court of India
transferred the matter from Gujarat
Sessions Court to Mumbai.
18. 14.05.2013 Final charge sheet submitted by CBI
in Sohrabuddin Case.
3
even though there is no sufficient material or
evidence to proceed further on following amongst
the other grounds which are set out herein under:
4
i. The Investigation done By the A.T.S
Ahmadabad in which Investigation Officer
Filed A Summary along with the
Abated Summary which claims that the
encounter is genuine & none of the
scientific evidence are still disputed and
is the only Document which is judicially
scrutinized & accepted.
5
On this ground, we have
carefully examined eight Action
Taken Reports submitted by
the State Police Authorities
before us and also the various
materials produced and the
submissions of the learned
counsel for both the parties.
From a careful examination
of the materials on record
including the eight Action
Taken Reports submitted by
the State Police Authorities
and considering the
respective submissions of
the learned senior counsel
for the parties, we are of the
view that there are large
and various discrepancies in
such reports and the
investigation conducted by
the police authorities of the
State of Gujarat and also
the charge sheet filed by the
State Investigating Agency
cannot be said to have run
in a proper direction. It
appears from the charge sheet
itself that it does not reveal the
identity of police personnel of
Andhra Pradesh even when it
states that Soharabbuddin and
two others were picked up by
Gujarat Police Personnel,
accompanied by seven
6
personnel of Hyderabad Police.
It also appears from the
Charge sheet that Kausarbi
was taken into one of the two
Tata Sumo Jeeps in which
these police personnel
accompanied the accused.
They were not even among the
people who were listed as
accused. Mr.Gopal
Subramanium, Addl. Solicitor
General for India (as he then
was) was justified in making
the comment that an honest
investigating agency cannot
plead their inability to identify
seven personnel of the Police
Force of the State.
7
into as to the reasons of
their killing. The motive of
conspiracy cannot be merely
fame and name. No
justification can be found for
the investigating officer Ms.
Johri walking out the
investigation with respect to
Tulsiram Prajapati's death
without even informing this
Court. That apart, the charge
sheet was filed in the court of
Chief Metropolitan Magistrate,
Ahmedabad against 13 persons
who were charge sheeted for
criminal conspiracy,
abduction, wrongful
confinement and murder etc.
13 were arrested. One of the 13
accused whose names had
been listed is one
Mr.N.V.Chauhan, PSI who in
the previous Action Taken
Report, was mentioned as yet
to be arrested. However, in the
5th Action Taken Report, the
name of Mr.Jadeja, driver
(Police Constable) who was also
supposed to be arrested as per
previous Action Taken Report
was not appearing among the
names of the accused who
were arrested. Evidently, he
had not been charge sheeted.
From the above factual
8
discrepancies appearing in
eight Action Taken Reports and
from the charge sheet, we,
therefore, feel that the police
authorities of the State of
Gujarat had failed to carry out
a fair and impartial
investigation as we initially
wanted them to do. It cannot
be questioned that the offences
the high police officials have
committed was of grave nature
which needs to be strictly dealt
with. We have observed that
from the record, it was found
that Mr.V.L.Solanki, an
investigating officer, was
proceeding in the right
direction, but Ms.Johri had not
been carrying out the
investigation in the right
manner, in view of our
discussions made herein
above. It appears that Ms.Johri
had not made any reference to
the second report of Solanki,
and that though his first report
was attached with one of her
reports, the same was not
forwarded to this Court.
Therefore, we are of the view
that her mentioning the
criminal background of
Sohrabbuddin and the
discussion among the accused
9
officers concerning
Sohrabbuddin was meant to
obfuscate the enquiry.
10
in her report dated 7th of
December, 2006 had conceded
that ATS was not a regular
police station in which FIR
should have been filed. It was
further submitted that the
investigation and charge
sheet were silent on the
motive behind the `killings'.
The only motive stated is
fame. In the cases of Babu
Lodhi v. State of UP (1987) 2
SCC 352 and Prem Kumar
and Anr. v. State of Bihar,
(1995) 3 SCC 228, it was
held that motive assumes
greater significance in case
where the case rests on
circumstantial evidence, as
in the present case. That
apart, from the Action Taken
Reports submitted by the State
Police Authorities, we also find
that the State Police
Authorities of the Gujarat had
to take help from the other
police officials of other States,
namely, Andhra Pradesh and
Rajasthan. If the investigation
is transferred to the CBI
Authorities it would be fair and
proper that the other State
police officials should also help
the CBI Authorities in coming
to a final conclusion on the
11
allegations made by the writ
petitioner and also on the
offences alleged to have
committed by some of them.
12
authorities. We have already
distinguished the decisions
cited by the State that they
related to the power of the
court to monitor the
investigation after the charge
sheet was filed. The scope of
this order, however, cannot
deal with the power of this
Court to monitor the
investigation, but on the other
hand in order to make sure
that justice is not only done,
but also is seen to be done and
considering the involvement of
the State police authorities and
particularly the high officials of
the State of Gujarat, we are
compelled even at this stage to
direct the CBI Authorities to
investigate into the matter.
Since the high police officials of
the State of Gujarat are
involved and some of them had
already been in custody, we
are also of the view that it
would not be sufficient to
instill confidence in the minds
of the victims as well as of the
public that still the State Police
Authorities would be allowed to
continue with the investigation
when allegations and offences
were mostly against them. In
the present circumstances and
13
in view of the involvement of
the police officials of the State
in this crime, we cannot shut
our eyes and direct the State
Police authorities to continue
with the investigation and the
charge sheet and for a proper
and fair investigation, we also
feel that the CBI should be
requested to take up the
investigation and submit a
report in this Court within six
months from the date of
handing over a copy of this
judgment and the records
relating to this crime to them
MOTIVE OF THE ALLEGED CRIME
It is pertinent to note that the state CI.D
while concluding their final report
concluded motive behind the alleged
offence as being NAME AND FAME.
However the Honorable Apex Court has
heavily criticized the manner of
investigation of the state C.I.D and
opined that name and fame cannot be the
motive of crime. The Honorable Apex
Court has already concluded that the
whole investigation is misdirected and the
order of the Apex Court is self
explanatory and binding upon this
Honorable Court. The Honorable Apex
Court was upon disagreeing with the
charge sheet and doubting the credibility
and authenticity of the investigation by
the Gujarat state CI.D Crime transferred
14
the investigation to C.B.I. Hence the
Investigation Done by the CID Crime
could not be the Ground For Prosecuting
the present applicant.
15
various order passed by this Honorable Court
that this cannot be the motive as the alleged
nexus has no evidentiary proof and this
Honorable Court has without any hesitations
has disagreed with this part of charge sheet.
16
the trial as the said statement are insufficient
for the various reasons. It is most pertinent to
note that this statement has been retracted at
various stages before the Court by the
deponent the veracity of this statement are
dubious in nature. Moreover even if we take
this statements as it is then also this evidence
are not sufficient & evidence are also not been
supported by any other cogent evidence of any
nature.
17
are still not recovered or identified till date
today and the third vehicle Qualis No GJ-25-A-
7007 as observed By this Honble Court was
lying in garage In Ahmadabad Gujarat.
3. Transportation of deceased
from Hyderabad to Gujarat
Ahmadabad.
18
5. Encounter/Killing of
Diseased
19
2. P.W. 106 Gurudayal Singh,
21
October 2010. They again
approached CBI Court at
Ahmadabad and filed affidavit
stating that they did not give any
statements to CBI. Their statements
before Ld. Magistrate were recorded
under the threats. It was again prior
to filing supplementary charge-sheet
against this accused by CBI.
22
subsecuintly has retracted more
over he has also filed an Application
ExBh No : 1205 &1213 which again
claims that all his statements taken
by the prosecuting agency are false
and are taken under duress and
pressure hence this statement can
not be believed without any
corroborative evidence .
23
Qualise Jeep had came back at 8.00
pm. on 23/11/2005. From above
evidence the prosecution wants this
court to draw inference that Mr.
Pandiyan had arranged the Qualise
Jeep bearing No. GJ-25-A-7007 for
policemen to go to Hyderabad.
24
diseases was brought to koba since
no other vehicles is being recovered
and prosecution does not have any
evidence to establish that the
Disease was brought to Koba Circle.
Similarily, this honble disbelieved
or negated the statement of the
aforesaid witnesses in order dated
1.08.2017 on exhibit No.912 passed
by this honble court and therefore
same parity shall also been applied
while taking into consideration of
the application of present applicant.
5. P.W. 149
6. P.W. No. 26
25
given much weight-age More over in his
whole statement which CBI has taken as
D-188 has said some one at farm
house called chaubey shaeb come this
side So I know that someone name
chaubey is present Prosecution failed in
performing Identification pared which is
very important to established the
presence of alleged accuse at the spot of
crime As observed by Honble Apex court
in several judgments. Hence this witness
can be discarded as far as this applicant
is concerned. Moreover, it is apparent
that the statement of said witness is
hearsay evidence.
28
as far as this applicant is concerned
in his previous statements he Says
when he reached on his farm house
& he tried to enter in the room a
person sitting there said chaubey
sahib dont let him go inside so I
can say someone named chaubey is
present. Nothing else is said in
whole of the statement regarding
this applicant. Again prosecution
failed to perform the Identification
Pared which is very important
Ingredient to establish the
applicants presence at the spot
since the facts were not true. So in
his statement before Metro
Magistrate CBI court Ahmedabad
He did not uttered the name of
the applicant in his whole of the
Statement.
29
timely performing the Test
Identification Parade. The witness of
aforesaid are nothing but hearasay
evidence is not sufficient to
prosecute the applicant. The
opinion cannot take place of the
evidence the evidence should be
clear & cogent to establish an act of
Crime CBI fails in providing any
cogent clear evidence against this
Applicant.
30
6. After perusal of these judgments
relied upon by the appellants, what
reveals as a dictum governing the
issue of identification could be
summarized without discussing
each judgment. What emerges on
well settled position of law after
perusal and careful reading of all
the precedents cited at bar by both
sides is as follows :
31
such engraved impression about the
identity could create a suspicion.
32
Court held that where a witness
identifies an accused who is not
known to him in the Court for the
first time, his evidence is absolutely
valueless unless there has been a
previous test identification parade
to test his powers of observations
and that the idea of holding test
identification parade under Section
9 is to test the veracity of the
witness on the question of capability
to identify an unknown person
whom the witness may have seen
only once and that if no test
identification parade is held then it
will be wholly unsafe to rely on his
bare testimony regarding the
identification of an accused for the
first time in Court. In another
decision in Mohanlal Gangaram
Gehani's case (1982 Cri LJ 630 (3))
(supra) the Apex Court held that
when the witness did not know the
accused before the occurrence and
no test identification was held to
test his power of identification, his
evidence becomes valueless and
could not be relied upon and on that
ground alone the accused is entitled
to be acquitted.
34
Police How and by Whom is still not defined by
prosecution, the statement of PW Dinesh
Kodi Patel clearly says that the persons
stationed at farm house took some one late
night Face covered prior the date of encounter
& statement of this witness says that he took
the diseases from the "Araham Farm House"
which is far away from Desa Farm House
how come victim reached there , such major
discrepancy in the alleged fact and
simultaneous his submission that his
statement was recorded under Duress &
pressure makes it non reliable as the same is
observed in previous judgments of discharge
of the accused of this case. The Hon'ble Apex
Court in Narendra Singh and Anr. v. Slate of
M.P. 2004 SCC (Cri) 1893 : 2004 Cri LJ
2842 wherein it is held that suspicion,
however, grave may be cannot take place of
proof and there is a long distance between
"may be" and "must be". The prosecution
cannot deny its liability to prove the case
beyond reasonable doubt against the
accused. It is important to mentions some of
the important observations done by this
honble Court in the Discharge of Shri
D.G.Vanzara IPS in Exbhit No: order
Dt:1/08/2010
36
Mr. Pandian (A2) used the vehicle of
Andra Pradesh passing when he
visited Hyderabad. Thus, the
evidence that Mr. Pandian (A2)
arrange Qualis Jeep to go to
Hyderabad is not prima facie worth
of reliance. 29.
PW83 (Sheikh Gaziuddin
Chabuksawar), a cleaner in the bus
of M/s. Sangeeta Travels stated
that police persons made to stop the
bus at about 1:30 hour on
23/11/2005 when it left Zahirabad.
Police personals order the driver to
switch on the light of the bus. One
person and his companion lady
passenger in burkha were asked to
get down. Another passenger was
alsotaken in custody by police. He
has not whispered about names of
those passengers and police
personals much less against this
applicant. Same is the statement of
PW84 (Misban Haidar),driver of the
said bus.
37
thename of any of the police
personals and those two persons
and lady in burkha. His previous
statement was also recorded
inwhich he did not whisper about
identification of police officials and
the persons who were asked to get
down from the bus. Same is the
statement of PW101 (Amit Aapte)
and PW102 (Manjusha Aapte).
38
went towards luxury bus and
brought two men and one female
and thereafter they came to
Ahmadabad by overnight journey.
These witnesses further stated that
the person who was made to sit in
Tata Sumo was taken towards
Rajasthan whereas one male and
lady in his Jeep was taken to
Ahmadabad. It is pertinent to bear
in mind that evidence of both these
witnesses is that of accomplice.
They both drove private vehicle in
which the abductors were allegedly
brought. They did not make entry of
their outstation journey in station
dairy. The office attendance register
points out their attendance from
21/11/2005 to 25/11/2005. This
fact will brush aside their entire
story about alleged abduction.
39
CBI in October 2010. They again
made statement by filing affidavit
before CBI court, Ahmadabad
stating that they did not give any
statement to CBI and further that
their statements before Ld.
Magistrate were recorded under the
threats. Interestingly, their
statements recorded in 2007 and
thereafter in the year 2010, are
almost adverbatim. It is further
interesting to note that in their
statements recorded in 2010, they
gave exact date, time of incident in
precise manner which they had not
stated in their statement to CID
crime in 2007. This prima facie
points out the fact that they have
deliberately exaggerated the
prosecution case merely on the say
of CBI.
40
two witnesses. CBI during
investigation collected evidence to
establish that Mr. Pandian (A2)
travelled from Hyderabad to
Ahmadabad on 23/11/2005 by
Indian Airlines International flight
no. IC563. This international flight
had takenoff from Hyderabad airport
at 7:00 pm. PW198 (Simanta Bordoi
Traffic Assistant), then working
with Indian Airlines Hyderabad
Airport provided a list of passengers
who boarded in the said plane on
23/11/2005 at 17:50 hours. A
perusal of said list will point out
that Rajkumar Pandian (A2) was one
of the passenger. PW99
(M.S.Shivraman) stated that on
23/11/2005, passenger by name
Rajkumar Pandian (A2) made
declaration in presence of Custom
Officer that he did not carry goods of
foreign origin and cash more than
Rs. 5,000/. These documents prima
facie establish that on 23/11/2005
at 7:00 pm Mr. Pandian left
Hyderabad to go to Ahmadabad by
said airlines. This piece of evidence
will take away the prosecution story
to its extreme extent to say that
Sohrabuddin was abducted by said
police officer and was brought to
Ahmadabad by overnight journey. If
these witnesses make such false
and baseless statement with only
41
ulterior motive to implicate any
police officer then the
evidence/statement of such
witnesses needs to be thrown away
for all respect inclusive of alleged
conspiracy of applicant in abduction
of Sohrabuddin, Kausar Bi and
Tulsiram Prajapati.
42
evidence it is shown that there was
an agreement in between them to
carry an illegal act or a legal act by
illegal means. It would be proper to
reproduce Section 10 of the Indian
Evidence Act, 1861, which reads as
under: 10. Things said or done by
conspirator in reference to
common design Where there is
reasonable ground to believe that
two or more persons have conspired
together to commit an offence or an
actionable wrong, anything said,
done or written by any one of such
persons in reference to their
common intention, after the time
when such intention was first
entertained by any one of them, is a
relevant fact as against each of he
persons believed to be so conspiring,
as well for the purpose of proving
the existence of the conspiracy as
for the purpose of showing that any
such person was a party to it.
43
section 10 of the Evidence Act. It
was once considered that the
expression is as good as saying in
furtherance of the common
intention. Almost seven decades
ago a Full Bench of the Patna High
Court had held it like that in Indra
Chandra Narang v. Emperor The
object of this section is merely to
ensure that one person shall not be
made responsible for the acts or
deeds of another until some bond in
the nature of agency has been
established between them and the
act, words, or writing of another
which it is proposed to attribute
vicariously to the person charged
must be in furtherance of the
common design and after such
design was entertained. It is further
observed in para 14 that: But a
three Judge bench of this Court in
Bhagwan Swarup Lal Bishan Lal v.
State of Maharashtra said that the
expression (in reference to their
common intention) is wider than the
words in furtherance of their
common intention and is very
comprehensive and it appears to
have been designedly used to give it
a wider scope than the words in
furtherance of in the English law.
Even if it is wider, would its width
go beyond the period of conspiracy?
It is wellnigh settled that Section 10
44
of the Evidence Act is founded on the
principle of law of agency by
rendering the statement or act of one
conspirator binding on the other if it
was said during subsistence of the
common intention as between the
conspirators. If so, once the common
intention ceased to exist any
statement made by a former
conspirator thereafter cannot be
regarded as one made in reference
to their common intention. In other
words, a postarrest statement made
to a police officer, whether it is a
confession or otherwise, touching his
involvement in the conspiracy, would
not fall within the ambit of section 10
of the Evidence Act. 38. In Yogesh
alias Sachin Jagdish oshi v/s
State of Maharashtra ((2008) 10
SCC 394), it has also been held
that: By and large, however, if two
views are equally possible and the
Judge is satisfied that the evidence
produced before him gives rise to
suspicion only as distinguished from
grave suspicion, he will be fully
within his right to discharge the
accused. At this stage, he is not to
see as to whether the trial will end in
conviction or not. It has further been
held that: The wellknown rule
governing circumstantial evidence is
that each and every incriminating
circumstance must be clearly
45
established by reliable evidence and
'the circumstances so proved must
form a chain of events from which
the only irresistible conclusion about
the guilt of the accused can be safely
drawn and no other hypothesis
against the guilt is possible. 39. In
Saju v/s State of Kerala ((2001) 1
SCC 378), while considering the
scope of section 10 of the Act, it has
been held that: This section mainly
could be divided into two: the first
part talks of where there is
reasonable ground to believe that
two or more persons have conspired
to commit an offence or an actionable
wrong, and it is only when this
condition precedent is satisfied that
the subsequent part of the section
comes into operation and it is
material to note that this part of the
section talks of reasonable grounds
to believe that two or more persons
have conspired together and this
evidently has reference to section
120A of the IPC, where it is provided'
when two or more persons agree to
do, or cause to be done'. 40. In view
of the above principle of law as
stated by the Apex Court in the
rulings cited supra, if the facts of
this case and evidence on record on
the point of involvement of this
applicant /accused no. 1 in
abduction of Sohrabuddin, Kausar
46
Biand Tulsiram Prajapati are to be
considered which are elaborately
discussed in the foregoing
paragraphs, I am of the view that
there is no prima facie sufficient
material against this
applicant/accused no. 1.
41. The prosecution came with a
case that after abduction of
Sohrabuddin, his wife Kausar Bi
and Tulsiram Prajapati, they were
brought to Ahmadabad, where from
Rajasthan police took custody of
Tulsiram Prajapati. Who had taken
custody of Tulsiram Prajapati is not
brought on record during
investigation and thus there is a
lacuna on material fact. According
to prosecution Sohrabuddin was
taken to Disha farm house near
Ahmadabad till 25/11/2005. 42. It
is further alleged by the prosecution
that on 25/11/2005, Sohrabuddin
alone was taken to Arham
FarmHouse and thereafter lastly he
was taken towards GSB pole
situated between Narol and Vishala
Circle. Soharbuddin was killed in a
fake encounter in the morning of
26/11/2005 at about 5:20 am. After
about 3 days thereafter, his wife
Kausarbi was also killed by police
and her dead body was burnt and
disposed of on the river bed near
village Illol on 29/11/2005. After
47
about one year there from, more
specifically on 27/12/2006,
Tulsiram Prajapati was also shot
dead by Gujarat and Rajasthan
police in a stage managed encounter
near Sarhad Chapri on border of
State of Gujarat and Rajasthan.
Crime no. 115/2006 was registered
by Rajasthan police that Tulsiram
Prajapati has been killed in
encounter. 43. To substantiate
allegations as regard to alleged fake
encounter of Sohrabuddin,
prosecution has mainly relied upon
the statement of PW105 (Nathuba
Jadeja) and PW107 (Bhailal Rahtod).
According to PWPW107 (Bhailal
Rahtod), a driver in Maruti Fronti,
on 26/11/2005 at about 2:30 3:00
am he took M.L. Parmar (Dy.S.P.),
Shri Dabhi (P.I.), Ajay Parmar (Police
Constable) in the said vehicle
bearing no. GJ18/G1816, to Koba
Circle near Arham Farm House.
After 10 minutes, PSI Choube and
two persons (one of them was
probably police constable and
another person had covered his face
by handkerchief) reached there.
Dy.S.P. Parmar got down there
whereas PSI Choube and those two
persons seated on the back side seat
of Maruti Fronti. They then reached
up to Narol Circle and thereafter
proceeded towards Vishala, where
48
as per direction of Dy.S.P. Parmar
Maruti Fronti was stopped. He
thereafter took the vehicle 5060 Gaj
away from that spot in the mean
while another vehicle reached there,
however, he does not know who
were present in that vehicle. After
some interval he heard sound of
firing. Thereafter on the say of P.I.
Dabhi, he took Maruti Fronti,
however, another vehicle had
already left the spot. He noticed that
a motor cycle was found lying on the
spot near electric pole and a person
having bleeding injuries was also
found lying near the spot. That
injured person was taken in the
vehicle and was reached to civil
hospital. He has not whispered that
he had occasioned to see encounter
of Sohrabuddin with his naked eyes.
He has not even stated about
presence of applicant at the spot.
Therefore, the statement of this
witness prima facie does not
connect applicant as regard to his
involvement in alleged fake
encounter much less even as a
conspirator.
49
front seat whereas three officers of
Rajasthan police seated on the back
seat of the car. Vehicle was taken as
per direction of P.I. Dabhi from
Narol Circle to Vishala Circle where
all the four police officials got down.
In the meanwhile another Maruti
Fronti came from Narol Circle and
stopped near electric pole. One
Bhailal (PW107) was driving that
Maruti Fronti. Persons present in
that Maruti Fronti alighted. After
some interval he heard firing sound.
In the Fronti of driver Bhailal
(PW107), wherein Dy.S.P. Parmar
and police inspector Dabhi were
present, one seriously injured
person was taken to hospital. He
further stated at this place, Vanjara
Saheb, Pandian Saheb, S.P.
Udaipur, Choube Saheb, Shantaram
Sharma and S.P. of Udaipur who
came into my Fronti, were seen.
Thus, according to this witness
Vanjara saheb (this applicant) was
seen for the first time by this
witness at the hospital. He has not
whispered anything against this
applicant involving him in alleged
fake encounter of Sohrabuddin
much less even as a conspirator.
Even assuming that this witness
wanted to say presence of applicant
near the place of fake encounter
that is to be read between the lines
50
that this applicant did not reach to
the spot even in the vehicle which
was being driven by driver Bhailal
(PW107). As per both witnesses
namely PW105 (Nathuba Jadeja)
and PW107 (Bhailal) only two
Maruti Fronti reached to the spot.
Both these witnesses did not
whisper about presence of applicant
in those two vehicles. They have not
even stated that any other vehicle
than these two Maruti Fronti
reached to the spot. A careful
scrutiny of the statement of PW107
(Bhailal), it will reveal that prior to
the time his Maruti fronti reached to
the spot there was no other vehicle
present. This is inconsistent with
the statement of PW105 (Nathuba).
Further PW107 (Bhailal) stated that
the persons who reached to the spot
in another Fronti, alighted but he
specifically stated that he does not
remember their number and their
identity. He also stated that prior to
the time he reach near the spot after
encounter, on the call of Mr. Dabhi
(P.I), the other vehicle had already
left the spot. He has not stated
presence of applicant along with
Pandya (S.P.) and S.P. Udaipur at
the spot. In short, in such
circumstance presence of Vanzara
(this applicant) at the spot therefore
in absence of any specified
51
statement about details as to when
and how applicant reached there, is
not worth of acceptance.
52
The dead body was taken in a jeep.
Wooden stumps/hey were collected
from the nearby place by all police
officials and while bringing the same
in auto, it stuck into the sand of
river bed. A crane was arranged for
removing stuck tempo. Firewood
was brought in a matador.
Ultimately, because of stuck of auto
into the sand, they arranged
firewood at that place and kept the
dead body of Kausar Bi and lit
matchstick.
53
Chauhan collected firewood 700800
kg and proceeded via Gandhinagar
Chiloda Ciricle himmat Nagar to
village Illol. From Chiloda circle, in a
jeep of ATS, one Choubey saheb was
proceeding ahead of tempo. As the
said Tempo could not go ahead
because of mechanical defect,
another tempo was arranged and
the firewood was then shifted in the
second tempo. That tempo stuck in
the sand of river at about 10:00 11:
00 pm and therefore wood were
unloaded there itself.Thereafter
Vanzara Saheb (this applicant),
Rajkumar Pandian, Dy.S.P. Amin
reached there. Wood was staked. In
a jeep dead body was brought
which was kept on the firewood. He
stated that as per his remembrance
dead body was burnt by Vanzara
(this applicant). It is pertinent to
mention here that he has not firmly
stated that dead body was burnt by
applicant. As stated above, PW105
Nathubas evidence appears to be
evidence of accomplice. He had filed
an affidavit in the court at
Ahmadabad on 22/05/2007 that he
does not want to give any statement.
He was arrayed as accused and
therefore filed application for
anticipatory bail. His statement was
shown to be recorded on
26/05/2007 i.e. after filing of
54
affidavit dated 22/05/2007. He
again retracted from his earlier
statement. Subsequently in or about
October 2010, CBI again recorded
his statement, wherein he attempted
to make statement against
applicant. It is to be noted here that
he again in CBI Court at
Ahmadabad filed affidavit stating
that he did not give any statement
to CBI. His statement before the Ld.
Magistrate came to be recorded
under threats. This will
consequently point out that this
witness was changing his stand
from time to time. It will therefore be
difficult to give any weightage to the
evidence of such accomplice. It is
also to be noted here that his
evidence is not corroborated by any
reliable material pointing out
involvement of the applicant in
killing of Kausar Bi and setting her
dead body to fire.
55
conversation between the persons
who used cells mentioned in the
information supplied by them.
Merely filing CDR would be of no
consequence in absence of detail
conversation. It is held in citation
Babubhai Bhimabhai Bokhiria Vs.
State of Gujarat 2014 (5) SCC 568
that The other evidence sought to be
relied on for summoning the
appellant is the alleged conversation
between the appellant and the
accused on and immediately
between the day of occurrence. But,
nothing has come during the course
of trial. Regarding the content of
conversation, and call record alone,
the appellants complicity in the
crime does not surface at all. The
other documents like weekly dairy,
letter, panchanama as regard to the
spot where dead body was burnt
does not prima facie connect
applicant in alleged killing of Kausar
Bi. In fact, there is absolutely no
iota of material as to when, where
and who killed Kausar Bi. There is
also no material collected from the
spot like sand, ash, etc to say that
dead body was burnt. It was
obligatory for the investigating
agency to collect such material to
establish the story of burning the
dead body in the bed of said river.
56
50. PW156 (Kalpesh) stated that
firewood was transferred from one
tempo to his tempo. PW157 (Irfat
Bhia) stated that firewood was
loaded in his tempo and there from
it was transferred to another tempo.
Same is the statement of PW188
(Zahir Abbas) who was a driver on
tempo. As regard arrangement of
crane to remove stuck tempo,
prosecution relied on statement of
PW153( Gurbatsingh), PW154 (Kanti
Singh) and PW155 (allarkha).
Statements of these witnesses do
not even suggest involvement of the
applicant in killing and disposing of
dead body of Kausar Bi. There is no
prima facie reliable and acceptable
material against applicant to
establish the fact that he killed
Kausar Bi or participated in killing
of Kausar Bi and disposing of her
body.
This whole set of observations by this Honble
Court clearly emphasizes on the fact that the 1
phase of abduction of Shaurabuddin
,kausebee 2. Transportation of Diseases From
Hyderabad to Gujarat 3 Confinement of
Diseases in Disa Farm house and again
Shifting it to Arham Farm House & lastly
burning of the Corpus of Kuasarbee
.Prosecution fails in establishing this facts
beyond reasonable doubt since on Statements
of the Witness can not be partially accepted
57
and [partially discarded it can be either fully
accepted or discarded.
1 Encounter Spot
2 Desa farm house &
Araham Farm house
3 Jeep No used to carry alleged
dead body of Kasurbe .
58
CDR of cell phone of
Mr.Pandiyan, he was in
contact with other accused at
material time.
It is settled proposition of
criminal law that
prosecution is supposed to
prove its case on the judicial
file by leading cogent,
convincing reliable and
trustworthy evidence beyond
reasonable doubts. The case
of prosecution has to fall or
stand on its own legs and it
cannot drive any benefit
from the weakness if any, in
the defense of the accused.
It is not for the accused to
disprove the case of the
prosecution and onus to
prove the case against the
accused beyond reasonable
doubts never shifts and it
always remains on the
prosecution. Further, benefit
of doubt in the prosecution
story always goes to the
accused and it entitles the
accused to acquittal.
59
5. The applicant submit that for the reason
stated herein above applicant is entitle to get
discharge as there is no sufficient material for
proceeding with the trial in absence of cogent
evidence and also . In view of such weak
evidence applicant ought not to have been
prosecuted without sanction from the State
Government under section 197 of Cr. P.C.
60
take such proceedings without such sanction.
In another ruling in State of H.P. vs. M.P.
Gupta (2004) 2 SCC 349) the Hon'ble Apex
Court held that ultimately quality of evidence
appearing against public servant is required to
be looked into by the Court. It has been held
that ; It is the quality of the act which is
important and the protection of this section is
available if the act falls within the scope and
range of his official duty. There cannot be any
universal rule to determine where there is a
reasonable connection between the act done
and the official duty, nor is it possible to lay
down any such rule. One safe and sure test in
this regard would be to consider if the
omission or neglect on the part of the public
servant to commit the act complained of could
have made him answerable for a charge of
dereliction of his official duty; if the answer to
this question is in the affirmative, it may be
said that such act was committed by the
public servant while acting in the discharge of
his official duty and there was every
connection with the act complained Order
below Exh.562. 24 of and the official duty of
the public servant. This aspect makes it clear
that the concept of sec.197 does not get
immediately attracted on institution of the
complaint case. While answering the question
whether police officers involved in encounter
case can claim protection. The Apex court held
in It is in the case of Omprakash vs. State of
Jharkhand (2012) 12 SCC 72) (supra) in para
29 of said ruling that; The true test as to
whether a public servant was acting or
61
purporting to act in discharge of his duties
would be whether the act complained of was
directly connected with his official duties or it
was done in the discharge of his official duties
or it was so integrally connected with or
attached to his office as to be inseparable from
it. The protection given under section 197 of
the Code has certain limits and is available
only when the alleged act done by the public
servant is reasonably connected with the
discharge of his official duty and is not merely
a cloak for doing the objectionable act. If in
doing his official duty, he acted in excess of his
duty, but there is a reasonable connection
between the act and the performance of the
official duty, the excess will not be a sufficient
ground to deprive the public servant of the
protection... It has been further held by the
Hon'ble Apex Court in this ruling that:-
Unless unimpeachable evidence is on record
to establish that their action is indefensible,
mala-fide and vindictive, they cannot be
subjected to prosecution. Sanction must be a
precondition to their prosecution. It affords
necessary protection Order below Exh.562. 25
to such police personnel. Plea regarding
sanction can be raised at the inception.
120-B IPC
63
S. Name of Accused Applicatio Discharge Allegations
No n No / Granted by CID and
. exbhit no by court CBI
(Prosecution)
(Trial
Court)
(Trial
Court)
Court) 302,201,120
-B IPC
64
S. Name of Accused Applicatio Discharge Allegations
No n No / Granted by CID and
. exbhit no by court CBI
(Prosecution)
(Trial of encounter
Court) u/s
302,201,120
-B IPC
(Trial Sohrabuddin
A-22
Court) , Kauser bi,
Tulsi Ram
and murder
u/s
302,364,
365,368,341
,342,
201,120-B
IPC
(Trial 302,364,365
Court) ,368,341,34
2,384,120-B
65
S. Name of Accused Applicatio Discharge Allegations
No n No / Granted by CID and
. exbhit no by court CBI
(Prosecution)
IPC
(Trial 302,364,365
Court) ,368,341,34
2,384,120-B
IPC
Court) 2.
Participated
in
Sohrabuddin
encounter
3. Killing of
Kouserbi
and
disposed of
her body
4. Killing of
Tulsiram
66
S. Name of Accused Applicatio Discharge Allegations
No n No / Granted by CID and
. exbhit no by court CBI
(Prosecution)
u/s 302,
364, 365,
368, 341,
342, 384,
201, 120-B
IPC
(Trial Tulsiram
Court) 2. Main
conspirator
of Killing of
Sohrabuddin
u/s 302,
364, 365,
368, 201,
120 B IPC
u/s 302,
364, 365,
67
S. Name of Accused Applicatio Discharge Allegations
No n No / Granted by CID and
. exbhit no by court CBI
(Prosecution)
368, 201,
120-B IPC
68
Gujarat state A- Amit Anilshah , The Then Home
minister of Rajasthan State Shri Gulab Chand
Kataria & the Senior Police officers involving the
State police head DGP to the Police constable .hence
it can not be viewed as an individual act of an
Accuse as act done junior officers in presence of the
senior officers or as per the instruction of the senior
officer ,vicarious liability of the of equally makes
senior officer libel for the act done .
69
IN THE COURT OF HONBLE
SEPICAL JUDGE AT MUMBAI
70
NOTES OF WRITTEN SUBMISSION
ON APPLICATION UNDER SECTION
227 OF THE CODE OF CRIMINAL
PROCEDURE, 1973
Shri D. B. Shukla
Advocate High Court,
45, Maharashtra Bhavan,
Bohari Masjid Lane,
Fort, Mumbai-400001
71