MUMBAI: In a major victory for BJP president Amit Shah, a special CBI court in Mumbai on Tuesday held that there was no legal evidence against him in the Sohrabuddin Shaikh fake encounter case of 2005 and discharged him as an accused. “There is substance in the contention of Shah’s counsel S V Raju that the charges against him were politically framed,” said special judge M B Gosavi in a third-floor courtroom packed with media, relatives and well-wishers of Shaikh, an alleged gangster who had managed to get a stranglehold on marble mining in several areas of Rajasthan. “There is no prosecutable material against Shah which requires a trial,” the judge added.
The case against Shah was that a conspiracy was hatched by Rajasthan home minister Gulabchand Kataria with the use of his political connections in Gujarat and top police officials from Gujarat and Rajasthan to do away with Sohrabuddin. But the court has now held that there is nothing to show a “meeting of minds” that is required to prove a conspiracy.
The discharge order means that the case against Shah no longer exists and he doesn’t have to stand trial.
Shah was the minister of state for home in the Narendra Modi regime when he was arrested in July 2010. He had stepped down after his name surfaced in the encounter killing of Sohrabuddin and his wife Kausarbi. Out on bail within three months, he later won the assembly elections in Gujarat. Most of the 37-odd accused in the case so far are police officers, including deputy inspector general of Gujarat D G Vanzara, who was accused of actually prepping the case for Shaikh’s encounter.
Shah was accused number 16. He was first implicated in 2010, five years after the death, only after the CBI began investigating the case. “In a novel plot by CBI to trap him for political reasons, it called senior cops to record statements against Shah,” the court order recorded his lawyer as saying. Those who refused, like a 1999 batch IPS officer, Abhay Chudasama, now on bail and present in court while the judgment was being dictated, were made accused, those who gave statements against Shah were made witnesses.
According to CBI, the Gujarat anti-terrorism squad accused Sohrabuddin of being a LeT member, abducted him and his wife Kauserbi while they were on their way from Hyderabad to Sangli in Maharashtra and gunned him down in November 2005 near Gandhinagar in Gujarat. A year later in 2006, the police also killed his close aide, Tulsiram Prajapati, at Chapri village in Gujarat as he was the sole alleged witness, said CBI. Both encounter cases are being heard simultaneously. There are two chargesheets and two supplementary chargesheets filed in this case.
Shaikh’s family, represented by advocate Mihir Desai, said the court had enough circumstantial evidence in the form of calls and witness statements that show that the Prajapati encounter was also “stagemanaged” to frame charges and put Shah on trial rather than dropping the case against him. Shaikh’s younger brother Rubabuddin, who was in court and left with tears in his eyes, said he would certainly challenge the order in the Bombay high court. “For the first time I feel let down. It’s a huge disappointment,” he told TOI soon after the operative part of the order was first pronounced. His other lawyer Vijay Hiremath said, “A discharge in an encounter case is very unusual. It’s a disappointment. We will read the judgment and go in appeal.”
However, CBI, whose case is that Shah was a main accused at whose behest they conspired to kill Shaikh, in its legal arguments did say that if two views are possible or if the accused gives a possible explanation of evidence against him he can be discharged.
The prosecution case largely rested on witness statements and the “unusually high number of calls in a year between Shah and police officers accused in the case”.
“The call data record is selectively produced for only a short duration when it was Shah’s practice as a home minister to call top police officers and those on the field. CBI has not disproved or denied this,” argued Shah’s counsel, adding that neither the contents of the calls nor his alleged instructions were ever spelt out. “How could it amount to conspiracy? It was after the Godhra riots when it was found that instructions do not reach police officers along the line that he decided to call SP and higher-ranking officers himself,” Raju said later. The court too agreed. The judge said, “How can calls made by MoS home to police officers be unusual?” Judge Gosavi also said that even if Shah could have had some influence over the Gujarat police, it did not explain the alleged involvement of Andhra Pradesh and Rajasthan police in the case.
Discharge is a legal remedy available to an accused against whom evidence is very weak to begin with and the court said the witness statements in Prajapati case were “unreliable”. Besides, the Patel brothers Raman and Dashrath as witnesses made verbatim statements a year later before the magistrate that they had made earlier before cops, giving credence to the defence case that the case was “a sinister design” to falsely implicate him. The case doesn’t have to go to trial when it can be established at this stage that there is no evidence against Shah, said senior counsel Raju.
Several witnesses had said Sohrabuddin had no terrorist link as was sought to be made out by the Gujarat ATS to carry out the encounter.
Former DIG Vanzara, out on bail after seven years in custody, is alleged to have created the background for Sohrabuddin’s encounter. He allegedly forced a builder, Raman Patel, and his brother Dashrath Patel to make a false report against Sohrabuddin for extortion. The Bombay HC while giving Vanzara bail had said, “It also appears that Vanzara threatened the Patel brothers, and demanded an amount of Rs 1 crore from them, and that huge amount was actually extorted by him from Patel brothers.” A videographed conversation between Patel and others to show he was under threat from the former DIG is hearsay and cannot be used, Shah’s lawyers had argued in court during his discharge hearing.
A discharge application made by Kataria is now kept for orders on January 12, said his advocate Girish Kulkarni. He pointed out that in Shah’s discharge order, the court observed that there is no evidence to show that Kataria had conspired with Shah in the case.
TOI | Dec 31, 2014
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