SC to examine challenge to acquittal of 22 in Sohrabuddin encounter case

• Supreme Court issues notice on plea challenging Bombay High Court's 7 May decision upholding acquittal of 22 accused in alleged killings of Sohrabuddin Shaikh, Kausar Bi and Tulsiram Prajapati.

• Case originally involved 38 accused, including then Gujarat home minister Amit Shah, former Rajasthan home minister Gulab Chand Kataria and senior cops D.G. Vanzara, Rajkumar Pandiyan and Dinesh M.N.

• Supreme Court bench flags the fact that 92 of 210 prosecution witnesses turned hostile, says it will examine selected witness statements.

The Supreme Court on Monday, 28 September agreed to examine a plea challenging the Bombay High Court's decision to uphold the acquittal of all 22 accused in the alleged fake encounter killings of gangster Sohrabuddin Shaikh, his wife Kausar Bi and his aide Tulsiram Prajapati, while flagging the fact that 92 prosecution witnesses had turned hostile during the trial.

A bench comprising Chief Justice of India (CJI) Surya Kant and Justices Joymalya Bagchi and V. Mohana issued notice on a plea filed by Sohrabuddin's brother Nayabuddin Shaikh challenging the Bombay High Court's 7 May judgment.

The bench indicated that it would examine selected witness statements relevant to the acquittals. "We would like to see statements of some witnesses. We are not summoning the record. You give us whatever three-four statements you feel are vital. We will examine the acquittal," the CJI said.

Justice Bagchi said the fact that 92 prosecution witnesses had turned hostile warranted consideration, particularly in assessing whether the trial had been fair and just. "Ninety-two witnesses turning hostile is a concern. Whether there was a fair and just trial… that's to be considered," he said.

The case dates back nearly two decades to November 2005, when Sohrabuddin, Kausar Bi and Prajapati were allegedly taken into custody while travelling by bus from Hyderabad (then capital of Andhra Pradesh) to Sangli in Maharashtra. According to the CBI's case, Sohrabuddin was killed on 26 November 2005 near Ahmedabad in an encounter involving Gujarat and Rajasthan police personnel, while Kausar Bi was allegedly killed three days later.

Prajapati, who was lodged in Udaipur Central Jail and considered a key witness to Sohrabuddin's alleged abduction, was killed in a police encounter near the Gujarat-Rajasthan border on 27 December 2006.

The case subsequently widened into an alleged conspiracy involving politicians and senior police officers. The CBI, which took over the investigation in 2010 following Supreme Court directions, originally named 38 accused. They included then Gujarat (now Union) home minister Amit Shah, former Rajasthan home minister Gulab Chand Kataria and senior police officers D.G. Vanzara, Rajkumar Pandiyan and Dinesh M.N. The CBI's case alleged a wider conspiracy behind the killings, including a police-politician nexus.

However, those allegations did not result in the political and senior police figures facing the final trial. Sixteen of the 38 accused were discharged between 2014 and 2018, including Shah, Kataria, Vanzara, Pandiyan and Dinesh. The final trial involved 22 accused, of whom 21 were serving or retired police personnel from Gujarat, Rajasthan and Andhra Pradesh, while the remaining accused was a Gujarat farmhouse owner.

The Supreme Court had earlier transferred the investigation to the CBI and shifted the trial from Gujarat to Mumbai. The alleged encounter killing of Prajapati was subsequently brought within the ambit of the same proceedings.

The special CBI court in Mumbai acquitted all 22 accused in December 2018. During trial, 210 prosecution witnesses were examined, of whom 92 turned hostile. The court held that the prosecution had failed to establish the alleged conspiracy or the involvement of the accused in the killings.

Bombay High Court, hearing appeals filed by Sohrabuddin's brothers Rubabuddin and Nayabuddin Shaikh, upheld those acquittals on 7 May this year. It said the prosecution case rested on circumstantial evidence and that several links in the alleged chain of circumstances were missing. The court also held that the prosecution had failed to establish that Sohrabuddin and Kausar Bi had been abducted by Gujarat and Rajasthan police personnel or that there was a motive to stage a fake encounter.

The high court also rejected the argument that the trial was rendered unfair merely because 92 prosecution witnesses had turned hostile. It noted that the witnesses had been cross-examined by the prosecution and that their testimony did not establish the prosecution case.

The CBI had told Bombay High Court that it had accepted the 2018 acquittals and would not challenge the verdict. The present challenge has instead been brought by Nayabuddin Shaikh.

The Supreme Court's intervention now brings fresh scrutiny to a case that has seen repeated judicial intervention since 2005.

With PTI inputs