Lack of Witnesses Protection Derailing Justice in Sohrabuddin case? Over 90 Hostile Witnesses and One Dead Judge, cry out for major Criminal Justice Reforms

20, Dec 2018 | CJP Team

What the trial in the case of alleged extra-judicial killing of Sohrabuddin Sheikh and his wife Kausar Bi has taught us, is that there is an urgent need for witness protection in criminal cases where powerful perpetrators often have the ability to change the outcome of the trial in their own favour. What started with the silencing of Sheikh’s wife Kausar Bi and his associate Tulsiram Prajapati, eventually led to 92 witnesses turning hostile in the case!

From the mysterious death of Judge Brijmohan Loya who was presiding over the case to the first ever press conference by four sitting justices of the Indian Supreme Court, such has been the journey of this case that it can easily be termed the trial of this century.

But at the heart of this trial lies fear… fear spread by powerful perpetrators who will allegedly not shy of witness coaching, coercion and even cold blooded murder… just to ensure a favourable verdict. From eye witnesses to the alleged abduction of Sohrabuddin Sheikh, Kausar Bi and Tulsiram Prajapati from the bus in which they were travelling, to even one of the lawyers of Tulsiram Prajapati and even his mother Narmada Bai, it was this fear that either made them retract their statements or not appear in court to testify.

CJP has a long history of fighting for Witness Protection laws and mechanisms. Because of CJP’s efforts, the Zahira Sheikh judgment expressly recommended legislative intervention to emphasize the prohibition against tampering of witness, victim or informant. To support our campaign for Criminal Justice Reforms, donate now.

What the Supreme Court has said about Witness Protection

The Supreme Court of India in Zahira Habibulla Sheikh vs State of Gujarat, 2004 (4 SCC 158) has stated the importance of victims in the following words:

Right from the inception of (the) judicial system it has been accepted that discovery, vindication and establishment of truth is the main accepted underlying existence of courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of (the) victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.”

In November 2005, then chairperson of the Law Commission, Justice M Jagannadha Rao had in his keynote address at a national conference in the capital, detailed the rights, needs and benefits of witnesses required to ensure effective victim testimony.

In this keynote address that may  be read here he had said that:

The victim of a crime is an important player in the administration of justice both as a complainant/informant and as a witness for the prosecution/state. His or her role is vital both at the stage of investigation and at the trial stage. Without the victim’s active support, the investigation of a crime may not come to a logical end. At the same time, the victim’s testimony in court, especially if the crime is a violent one, can be said to be the best piece of evidence that can be used against the accused. But despite being an important component of the criminal justice system, much attention has not been paid to the rights of victims.

The word ‘victim’ has not been defined either in the Indian Penal Code (IPC) or in the Code of Criminal Procedure, 1973 (CrPC). The General Assembly of the United Nations in its 96th plenary meeting on November 29, 1985 made a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The declaration defines victims as "persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are violations of criminal laws operative within member states, including those laws prescribing criminal abuse of
power.

We can say that the word ‘victim’ means the person or persons who have suffered physical, financial,
social or psychological harm as a result of an offence and in some cases it includes an appropriate
member of the immediate family of such a person.”

Who was Sohrabuddin Sheikh

Sohrabuddin Anwarhussain Sheikh was allegedly a criminal who extorted money from marble merchants. He hailed from Jharnia village in Madhya Pradesh and operated in Udaipur, Ahmedabad and Ujjain. He was alleged to have links with Sharifkhan Pathan, Abdul Latif, Rasool Parti and Brajesh Singh who were all members of the local organised crime network led allegedly by none other than Dawood Ibrahim. At the time of his killing 36 year old Sohrabuddin had as many as 60 cases registered against him. He had fled to Telangana with his wife Kausar Bi to avoid getting caught by the police. Police later claimed that he was also linked to terrorist outfit Lashkar-e-Taiba and Pakistan’s espionage agency ISI.

Brief background of the case

Sohrabuddin Sheikh was killed in what is believed to be a ‘fake encounter’ by the Gujarat police in November 2005. On November 23 he was travelling in a bus from Hyderabad to Sangli with his wife Kausar Bi, when the members of the Gujarat ATS stopped the bus, made them alight and whisked them away, never to be heard from again. On November 26, 2005 Sohrabuddin was gunned down by the police who accused him of hatching a conspiracy to kill ‘an important leader’ to spark communal violence. While his actual target was never actually disclosed, an impression appeared to have been created that it may have been then Gujarat Chief Minister.

DG Vanzara who was the ATS Chief at the time had said that a joint team of Rajasthan and Gujarat police were keeping watch near Narol circle on the outskirts of Ahmedabad when Sohrabuddin arrived on a bike. He refused to surrender and fired three shots at the police, who retaliated with gun fire.

Sohrabuddin’s wife Kausar Bi also went missing on the same day as his ‘encounter’. Sohrabuddin’s brother Rubabuddin Sheikh then moved a habeas corpus petition in the Supreme Court demanding his sister-in-law Kauser Bi be produced before the court. But, even before any orders to the effect could be passed, the Gujarat government filed a report stating that Kauser Bi was dead and her body had been cremated at Ellol village in Gujarat on November 25, 2005. Gujarat Government counsel KTS Tulsi had submitted the report in a sealed cover before the Supreme Court. Interestingly, Ellol is the village from where DG Vanzara hails. A year later on December 26, 2006, Sohrabuddin’s close associate Tulsiram Prajapati was also killed in another police encounter in Banaskantha. This too was allegedly a staged ‘encounter’.

The Accused: The Big Fish got away!

It is alleged that the extra-judicial killing was conducted at the behest of then Gujarat Home Minister Amit Shah. Senior BJP leader Gulab Chand Kataria from Rajasthan is also an accused in the case. Former Ahmedabad District Cooperative Bank director Yashpal Chudasma was also accused of attempting to “convince, coerce, threaten, and influence witnesses” in the case. Another accused Ajay Patel was accused of witness tampering. Both Chudasma and Patel were allegedly close associates of Amit Shah and acting at his behest.

Several policemen were also accused in the case. These include Gujarat ATS chief DG Vanzara, Gujarat IPS officer Rajkumar Pandian, Gujarat police officer NK Amin, Rajasthan IPS officer Dinesh MN and Rajasthan Police constable Dalpat Singh Rathod, who were all granted discharge by the trial court. This decision was also upheld by the Bombay High Court. Out of the 38 people originally accused in the case, 16 were discharged including Amit Shah, Gulab Chand Kataria and senior police officer Geeta Johri among others.

Only 22 accused faced trial. Most of them are junior police officers who claim to have been made scapegoats in a case of police and political rivalry and that they were merely following instructions from their superiors. While answering questions put to him by the Judge under section 313 of the CrPC, Narainsinh Dabhi, a retired police inspector from Gujarat who is an accused in the case, said, “I have not committed any crime as charged or alleged against me. The entire case is on account of political rivalry between two political parties and senior police officials. I have no personal grudge against the deceased.”

On November 19, investigating officer Amitabh Thakur had told the court that the men facing trial had no monetary or political motive to carry out the killing. However, Thakur named Amit Shah, IPS officers Rajkumar Pandiyan, D.G. Vanzara and Dinesh M.N., and police officer Abhay Chudasama as main “beneficiaries” of the crime. However, he was unable to show any evidence that they gained politically or monetarily from the killings. Meanwhile, Sandeep Tamgadge, the chief investigating officer in the Tulsiram Prajapati fake encounter case went on to call Amit Shah, and IPS officers D.G. Vanzara, Dinesh M.N. and Rajkumar Pandiyan the “principal conspirators” in the case. This was also mentioned in the chargesheet filed by Tamgadge in 2012.

The testimony of Tamgadge is startling also in its specificity:

The CDRs of Amit Shah, Dinesh M.N., Vanzara, Pandiyan, Vipul Agarwal, Ashish Pandya, N.H. Dhabi and G. Srinivasa Rao were available with us along with other substantial evidence to prove that there was a conspiracy hatched before the murders.”

Of those named, Pandya, Dabhi and Rao continue to face trial; the others have been discharged for lack of evidence. CDRs form a crucial part of the chargesheets filed by both Tamgadge and Thakur before him. The CBI had included calls between these men, before and after the alleged offence, in its chargesheet. However, the trial court, while discharging 13 of the 35 accused, had said there was insufficient evidence against them.

While Amit Shah had been named as an accused in Thakur’s investigation, it was Tamgadge who first questioned and arrested him. Shah was later discharged from the case by special CBI judge, M.B. Gosavi, on December 30, 2014. The fact that the CBI refused to challenge this decision added to the controversy. It is noteworthy that this happened after the new government took charge in New Delhi.

With so many alleged perpetrators holding various powerful positions and most of them discharged from the case, protection of witnesses should have become the prosecutions top priority. Alas this became what is probably the biggest reason behind nearly half the witnesses turning hostile.

Judicial Musical Chairs

In January 2011, the investigating agency told a Supreme Court bench comprising justices Aftab Alam and RM Lodha that given how powerful people were accused in the case a fair trial was not possible in Gujarat. Subsequently, the trial was moved out of Gujarat to Mumbai in September 2012. The SC order transferring the case may be read here. This progressive step taken in the interest of justice in the case was well before the new government came to power in May 2014.

It is noteworthy, however, that in just over a month of the new government coming to power at the center, JT Utpat, the CBI Special Court trial judge presiding over the case (after it had been transferred from Gujarat to Mumbai) was transferred on June 25, 2014. The transfer came just a week after Utpat, upset with Shah’s failure to appear in court, upbraided Shah’s lawyer for filing an exemption application without assigning any reason. Utpat had ordered Shah to remain present in court on June 26, but he was transferred to Pune on June 25, 2014! The case was adjourned and Brijmohan Loya took over the case.

Later that year in October, the party running the central government also came to power in Maharashtra. Judge Loya died in Nagpur under mysterious circumstances on December 1. According to his family, Loya had reportedly refused to accept a bribe of Rs 100 crores. In an interview to The Caravan, Judge Loya’s family alleged that former Bombay High Court Chief Justice Mohit Shah had made the offer for the bribe in exchange for a judgement in favour of Amit Shah. The family suspect foul play in Loya’s unnatural, untimely and unexpected death.

Loya’s replacement, MB Gosavi, heard Amit Shah’s discharge petition from December 15 to 17, 2014 and then dropped all charges against him and discharged Shah from the case on December 30, 2014. Subsequently Rabauddin challenged Shah’s discharge but withdrew his application, allegedly under pressure. the Bombay High Court dismissed two PILs including one by social activist Harsh Mander demanding that the CBI challenge Shah’s discharge.

The trial finally commenced in 2017 before a special CBI court with judge SJ Sharma presiding. But Sharma drew flak when he tried to ban the press from covering the trial. In November 2017, Sharma ordered, “Considering the sensitivity in the matter, likelihood of any untoward incident and likelihood of effect on the trial of this matter, in case of day to day publication of evidence. I am of the view not to allow media until further orders.” This was at the plea by the defendants whose lawyer Rajesh Bindra stated, “The media has raised issues over the death of judge Loya. This controversy has a serious impact on the trial in the sessions court and the lives of the accused.” However, this order was challenged by journalists in Mumbai and Justice Revati Mohite Dere of the Bombay High Court struck down the gag order in January 2018.

But shortly after this Justice Mohite Dere found that her assignment had been changed from hearing criminal revision applications to hearing anticipatory bail applications. This even as she had started daily hearings in a batch of applications related to the Sohrabuddin Sheikh case. These include revision applications filed by Sheikh’s brother Rubabuddin, challenging the discharge of IPS officers DG Vanzara, Dinesh MN and Rajkumar Pandian, and two revision applications filed by the CBI against the discharge of former Gujarat IPS officer NK Amin, and Rajasthan police constable Dalpat Singh Rathod.

Witnesses either went Missing or turned Hostile

Witnesses began deposing in court on November 27, 2017, the day that judge SJ Sharma passed the gag order. By the time the order was struck down on January 24, 2018, 30 witnesses had turned hostile. These include Mysbah Hyder and Gazuddin Chabukswar, the driver and cleaner respectively of the bus in which Sohrabuddin was travelling from Hyderabad to Sangli with his wife Kausar Bi and associate Tulsiram Prajapati. They had both initially claimed to have seen the trio being made to alight from the bus by policemen who came in an SUV. Sharad and Amit Apte, passengers who had also initially stated having seen the trio on the bus, later retracted their statement in court. Mohammed Ahmed, owner of MJ travels that owned the bus who had booked the tickets and given photo copies to the CBI also retracted his statement.

Girishbhai Patel, the owner of Disha Farms where the trio was taken by the police also retracted his statement along with his brother Naresh and an employee Dineshbhai. Two police drivers Nathuba Jadeja and Gurudayal Singh Chaudhry also retracted their statements.  Other witnesses who turned hostile at this stage include Madhubhai Bandiyawala, Malde Odedera, Sajjan Odedera,Chandresh Patel, Gurbansingh Sardar, Allahrakha Shaikh, Kalpesh Vaghela, Irfan Ghanchi, Jahir Abbas, Chandra Prakash Chopra and Pooranmal Meena.

But it was perhaps the retraction by Saleema Begum that proved to be most damaging. Saleema, sister of Kalimuddin, an associate of Sohrabuddin had initially claimed that her brother had hosted the couple at his home in November 2005 and it is from here that they had boarded the bus to Sangli. But during cross-examination she claimed to have never even met the couple!

Since the beginning of 2010 until now, it is noteworthy (and damning) that CBI, the prosecuting agency never made any applications or moved to protect the witnesses, especially given the power enjoyed by so many of the accused. The central agency was even pulled up for this fact.

On February 13, 2018, Bombay High Court judge Revati Mohite Dere observing that 30 witnesses had already turned hostile, pulled up the CBI for failing to provide protection to witnesses. “What protection are you offering to your witnesses? It is your duty to protect the witnesses, so they can depose fearlessly. You can’t file a chargesheet and not give your witness protection,” justice Mohite Dere had asked. She had also asked during a previous hearing, “What action are you taking in cases where witnesses have turned hostile? Are they being charged for perjury for giving false evidence?” But the CBI callously responded with a feeble explanation… that none of the witnesses had sough protection, so no protection was provided! Judge Mohite Dere was hearing three applications filed by Sohrabuddin’s brother Rubabuddin, challenging the discharge of former Gujarat DIG DG Vanzara, Rajasthan IPS officer Dinesh MN and Gujarat IPS officer Rajkumar Pandiyan. Mohite Dere was also hearing two applications filed by the CBI, challenging the discharge of Rajasthan police constable Dalpat Singh Rathod and Gujarat police officer NK Amin. Interestingly, it was on February 26, that the judge’s assignment was suddenly changed mid-way through these crucial hearing.

By May 2018, 73 witnesses had been produced and 50 declared hostile! Manjusha Apte, a passenger on the bus who had seen Sohrabuddin, Kausar and Prajapati being made to alight by the police, went back on her statement and claimed instead that she was asleep the whole time and did not see anyone. Her husband and father-in-law had turned hostile earlier.

Luckily Tulsiram Prajapati’s lawyer Saleem Khan stuck to his story. He said that when Prajapati was remanded to judicial custory Khan met him in jail with special permission of the court. “Prajapati told me that Shaikh was traced by police after obtaining his location from him. Shaikh was later killed in an encounter,” he told the court adding that Prajapati told him that feared for his life.

Meanwhile, Narmada Bai, the mother of Tulsiram Prajapati, who could have been an important witness in the case could not be brought before the court despite repeated summons and a non-bailable warrant being issued against her. Narmada Bai had moved the Supreme Court following her son’s 2006 death alleging that the encounter was staged and asked for a CBI investigation. But the prosecution has now told the special CBI court that she could not be traced. Interestingly, new reporters were easily able to find her. Speaking to Sukanya Shantha of The Wire, Narmada Bai said that she had received ‘innumerable threats’ over the last decade. She asked, “I have lived under tremendous pressure in the past 10 years. What is the point of pursuing the case when I know no amount of trying can get my son back?”

But midway through the interview a man who identified himself as Vinod Sharma, a relative of Narmada Bai, entered her home and began to threaten and intimidate the reporter. Vinod Sharma turned out to be Vinod Lala, a local BJP leader! The entire heartbreaking account of a mother who saw her son live in fear may be read here.

The Trial Court under Section 313 of the Code of Criminal Procedure (CRPC) is empowered to intervene whenever there are such misdemeanours in any case (but particularly in a sensitive case). No such steps were taken by any of the Judges hearing the case. This is not surprising given the suspicious nature of Judge Loya’s death.

By July 2018, 135 witnesses had been examined and 85 witnesses had turned hostile. These include Sharafat Ali who shared a prison cell with with Tulsiram Prajapati while lodged at the Udaipur jail in 2006. He had earlier told the CBI that Prajapati had told him that he and Sohrabuddin worked with the Gujarat Police. ALso, Prajapati’s other lawyer Krishna Tripathi went back on her statement that Prajapati had told her that he feared that the Guajara and Rajasthan police would kill him in an encounter. This retraction dealt a body blow to the prosecution’s case!

It was also revealed how Yashpal Chudasma and Ajay Patel engaged in witness tutoring. Patel allegedly conveyed a message to two witnesses Raman Patel and Dashrat Patel that the contents of what they were to say in their deposition before CBI would be given to them in writing by DCP Abhay Chudasama, who is also an accused in the case. Both witnesses had multiple meetings with Patel and they managed to discretely record two such meetings. Raman and Dashrath Patel are real estate developers who own Popular Builders that owned the property where a shootout took place in December 2008, in which Sohrabuddin was booked.

Eventually, of the total 210 witnesses in the case, 92 turned hostile!

Azam Khan: The Most Important Witness

It is alleged that Kausar and Prajapati were killed because they were witnesses to Sohrabuddin’s killing. According to Azam Khan, a key witness in the case, Sohrabuddin Sheikh was killed to cover up the murder of Gujarat Home Minister Haren Pandya in 2003. Khan says Sheikh had confessed to him about killing Pandya. Azam Khan has claimed that DG Vanzara was the person who declared a hit on Haren Pandya. He claims that Sohrabuddin got the contract to kill Pandya and his associate Tulsiram Prajapati executed the hit. Khan also claimed during his deposition before CBI Judge SJ Sharma to have met Prajapati in Udaipur jail said that Prajapati told him that the Gujarat Police had killed Sohrabuddin and Kausar Bi.

This makes Azam Khan one of the most important witnesses in the case who is still alive. But according to a recent petition by his wife Rizwana, his life is in danger. She says her husband was tortured for 20 days by the police before bringing his from Udaipur to Mumbai to depose in the case. In her petition Rizwana says,

The current phase of intimidation began on 7 June 2018 when Azam Khan, his two brothers and his uncles were picked up by the Udaipur police. Thereafter, the petitioner’s mother-in-law (Azam Khan’s mother) was threatened by Udaipur police that Azam Khan and others would not be let off unless Khan testified in Court as per their wishes. Within 4 days of receiving the threat, Khan’s mother filed an application against these errant police officers under Section 342 of IPC. Thereafter, Azam Khan’s brothers and uncles were let off by the police. Upon their return, they revealed that police had tortured them for seven days and forced them to sign concocted statements prepared by the police stating that they had gone to Ajmer Sharif dargah without informing their family members.”

Rizwana also claims to have been threatened, held captive and beaten. Further Rizwana says Abdur Rehman, a former Rajasthan police man, came to the Mumbai hotel on Syed Kazi Street where Azam Khan was being kept before his deposition in court, in a black SUV. Udaipur police personnel made Azam sit in this vehicle where Abdur Rehman threatened Azam. The entire petition by Rizwana may be read here.

Sohrabuddin’s brother Rubabuddin remains reasonably reliable witness, though he too changed advocates and rescinded on his stance once before the High Court of Bombay. He has stated that Tulsiram Prajapati had told him that he was present at the time of Sohrabuddin’s murder. On being asked why his life was spared, Prajapati reportedly told Rababuddin that he was not killed because he was a Hindu and it would have been difficult to pin terror charges on him.

Judgement in the Sohrabuddin case is expected to be delivered on December 21, 2018.

 

Related:

India’s Justice League: 4 judges defend democracy, question nepotism in SC

The 2004 Best Bakery Judgement and Its Significance

Witness Protection: A Pre-requisite to a Healthy Criminal Justice System

Victimology: A necessary advancement in Human Rights jurisprudence