Bombay High Court
Nayabuddin Shaikh vs The Central Bureau Of Investigation And … on 7 May, 2026
2026:BHC-AS:21958-DB
Cri. Appeal Nos.641 & 656 of 2019.doc
JVS.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 641 OF 2019
Rubabuddin Shaikh } Appellant
versus
Central Bureau of Investigation }
& Ors. } Respondents
WITH
CRIMINAL APPEAL NO. 656 OF 2019
Nayabuddin Shaikh } Appellant
versus
The Central Bureau of Investigation }
& Ors. } Respondents
Mr. Gautam Tiwari with Ms. Tasneem Khatau, Mr. Suraj
Jagtap, Ms.Nidhi Mishra, Ms.Vaishnavi Dubey & Mr.Bhavesh
Thakur i/by Probus Legal for the Appellants.
Mr. Anil C. Singh, Additional Solicitor General a/w
Mr.Kuldeep Patil, Mr.Aditya Thakkar Mr. Chaitanya Chavan,
Mr. Adarsh Vyas, Mr. Krishnakant Deshmukh, Mr. Rajdatt
Nagre, Ms.Saili Dhuru, Mr.Anay Joshi, Mr. Sumitkumar
Nimbalkar, Mr.Digvijay Kachare and Ms.Sanika Joshi of
Respondent No.1-CBI.
Mr. Amit Desai, Senior Advocate with Mr. Madhusudan
Pareek, & Mr.Gopal Shenoy Advocates for Respondent Nos.2,
3 & 8 to 11.
Mr.Devendra Shukla a/w Mr.Harekrishna Mishra &
Mr.Shabi A. Moulvi for the Respondent No.4.
Mr.Khan Abdul Wahab, Ms.Shifa Khan, Mayanka S.R.,
Fardin Shaikh, Abdul Hafeez Kotawala, Nitin Mane &
Shahabuddin Shaikh for the Respondent No.5.
Mr.Ishan Jani a/w Mr.Farhad Panthaki for Respondent No.6
& 7.
Mr. Maitreya G. Shukla for Respondent No.12.
Mr.Hitesh P. Shah for the Respondent No.14 & 23.
Mr.Sachin R.Pawar a/w Mr.Devang S.Mhatre i/b Mr.Sagar
S.Patil for the Respondent No.18 to 22.
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Mrs.M.M.Deshmukh, I/C PP with Mr.J.P.Yagnik, Addl.PP for
the Respondent No.24 - State.
CORAM: SHREE CHANDRASHEKHAR, CJ. &
GAUTAM A. ANKHAD, J.
RESERVED ON : 16th JANUARY 2026
PRONOUNCED ON : 7th MAY 2026
JUDGMENT
Per, Shree Chandrashekhar, CJ.:
The judgment of acquittal rendered on 21 st December 2018 in
Sessions Case Nos. 177 of 2013, 178 of 2013, 577 of 2013 and 312
of 2014 by the Additional Sessions Judge, City Civil and Sessions
Court, Greater Mumbai has been challenged by Rubabuddin
Shaikh and Nayamuddin Shaikh who are the brothers of
Sohrabuddin Shaikh.
2. Crime No. 5 of 2005 was registered on 26th November 2005 by
Ravindrabhai Laxmanbhai Makwana who was a Police Head
Constable with the Anti Terrorist Squad at Ahmedabad in respect of
the police encounter of Sohrabuddin Shaikh. However, pursuant to
an order passed by the Hon’ble Supreme Court on 14 th January
2006, a preliminary enquiry vide PE No.66 of 2006 was registered
on 27th June 2006 by the Criminal Investigation Department (CID),
Gujarat Police. Later on, a charge-sheet was laid against certain
accused persons in the Court of Additional Chief Metropolitan
Magistrate, Ahmedabad. Rubabuddin Shaikh who is the brother of
Sohrabuddin Shaikh being dissatisfied by the investigation carried
out by the Gujarat CID Police approached the Hon’ble Supreme
Court in Criminal Writ Petition No. 6 of 2007 for transfer of the
investigation to the CBI. By an order dated 12th January 2010, the
CBI was directed to conduct further investigation and, in
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compliance thereof, it registered Crime Nos.4/S/2010 and
3/S/2010. The investigation in these cases was conducted by
several officers of the CBI and charge-sheets were laid against 38
accused persons. Still not satisfied, Rubabuddin Shaikh raised a
serious objection to the trial being conducted at Ahmedabad as the
Gujarat Police officers were involved in the case. In Transfer Petition
(Criminal) No. 44 of 2011, an order was passed on 27 th September
2012 by the Hon’ble Supreme Court for transfer of the case from
Ahmedabad to Mumbai. Thereafter, these cases were clubbed
together by virtue of an order passed on 8 th April 2013 by the
Hon’ble Supreme Court in Writ Petition (Criminal) No. 149 of 2012.
3. In the trial of these cases, the prosecution examined 210
witnesses and relied on circumstantial evidence but the prosecution
could not establish the charges framed against the accused
persons. As many as 92 witnesses turned hostile and did not
support the prosecution story of the killing of Sohrabuddin Shaikh,
his wife Kausar Bi and Tulsiram Prajapati in a fake encounter in
furtherance of a criminal conspiracy between the police officers,
politicians etc. During the trial, 13 accused persons were
discharged by separate orders dated 30th December 2014, 26th
February 2015, 31st March 2015, 27th April 2015, 28th April 2015,
29th April 2015, 13th July 2015, 24th July 2017, 1st August 2017,
18th August 2017 and 10 th September 2018. The charges against
three accused persons were dropped by the orders passed on 25 th
August 2016, 4th February 2015 and 2nd March 2015. And, the
respondent nos.2 to 23 have been acquitted by the Special Court by
the judgment under challenge.
4. The trial Judge painstakingly examined the testimony of the
prosecution witnesses, most of whom had though turned hostile.
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The trial Judge held that there was no iota of evidence that the
prosecution could adduce to prove that any politician was involved
in the conspiracy or there was a politician-police nexus which led to
fake encounters in which Sohrabuddin Shaikh, Kausar Bi and
Tulsiram Prajapati were murdered. The trial Judge held as under: –
“242. The court has heard both the sides at length and sufficient
opportunity have been given to both the side to put their case at
length. I have discussed the evidence of almost all the witnesses as
referred herein above and while discussing I have also tried to
appreciate the evidence given by those witnesses. But I would like to
discuss little further by saying that so far as two most important
witness namely PW No. 15 Nathubha and PW No. 31 Bhailal who are
witness to incident which took place at Vishala Circle, Sarkhej has
not supported the case of prosecution. Cross examination conducted
by prosecution of this two witnesses do not bring anything to
substantiate the credibility of these two hostile witness and therefore
I have no hesitation to conclude that as this two witnesses are hostile
case now is only based on circumstances. It being so prosecution is
now burden with proving every link and circumstance leaving no
doubt about involvement of an accused in any of the link forming
change of circumstance. Considering this aspect if I further appreciate
in addition to what I appreciated for each witness as referred above I
would say that so far as medical evidence is concerned there is no
doubt to come to the conclusion that Sohrabuddin and Tulsiram
succumbed to fire arm injuries. At the same time considering evidence
of ballistic opinion along with other evidence prosecution has unable
to firstly established that fire arm seized by prosecution were
actually used by accused persons as there is no evidence to link
seized fire arms being used by accused persons for the purpose of
firing of Sohrabuddin. As a matter of fact the cartridges alleged to be
seized from accused no.7, 8 and 9 in C.R. No.5/05 were not
examined by the ballastic expert to match the same with the service
pistol and revolver collected by Dy.S.P. Shri. Padheria from the Arms
and Ammunition Section of Reserve Police Udaipur, alleged to be
allotted the accused no. 7, 8 and 9. Therefore, there is also failure of
investigation so as to establish empties recovered from scene of
offence with concerned fire arms as well as imprint on empties etc. as
narrated by witness and discussed herein above so as to establish
that particular fire arm was used for particular fire arm injury as well
as empties recovered from scene of occurrence. It is also pertinent to
note here that one of the accused i.e. accused No. 25 had fire arm
injury on his person to establish that encounter was fake it was4
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Cri. Appeal Nos.641 & 656 of 2019.docalleged that it was a self inflicting injury but medical evidence more
particularly Dr. Bhojak clearly establishes that fire arm injury of
accused No. 25 was not self inflicting that itself is sufficient to
discard the case of prosecution so far as fake encounter of Tulsiram
is concerned.
243. If one looks to material of investigation carried out by local
police which implicates Gujarat and Rajasthan Police and purpose of
implicating police of both states was to allege that encounters were
fake but somehow element of police politician nexus was brought by
certain witness by placing certain facts about influencing witnesses
by tempting them and by offering huge amount of Rs. 50 lacs also by
alleging that third person in the bus travelling with Sohrabuddin and
Kausarbi was Tulsiram also alleging that politician were interested in
murdering Sohrabuddin as he was extorting money from marble
lobby of Rajasthan and Tulsiram was murdered as he was witness
to abduction of Sohrabuddin and Kausarbi. On the basis of improved
version of almost all witnesses who in their earlier had not said
anything about politician and political nexus but somehow after year
they come out with such nexus theory. And they also came out with
further theory that this incident of Sohrabuddin, Kauarbi and
Tulsiram having taken place pursuant to incident of firing at the office
of popular builder at Ahmedabad. I have no hesitation to conclude
that the evidence which has been laid and adduced and as
discussed and appreciated vividly prosecution has though tried but
has failed to prove any such politician police nexus as allegation of
influencing witness for withdrawing petition filed before Hon’ble
Supreme court by offering Rs. 50 lacs is not only proved by
prosecution but there appears to be conflicting and contradictory
version about it. Further there is no material much less anything to
whisper even about proving even prima facie element of extortion
from marble lobby of Rajasthan by politicians who were initially
arraigned as accused by CBI investigators. I also do not find any
connection with popular builder office firing case with the present
case of Sohrabuddin, Kausarbi and Tulsiram. prosecution had
vehemently argued about larger conspiracy by connecting the case of
Tulsiram with the case of Sohrabuddin and Kausarbi as Tulsiram
was witness to case of Sohrabuddin and Kausarbi but certain
witness more particularly PW No. 181 had denied the aspect of third
person being Tulsiram and according to him third person was
Kalimuddin. Further certain witnesses on whom heavy reliance has
been placed by prosecution their evidence scrutinized minutely is
fully based on their hearsay evidence which is of no use. Therefore
the exercise undertaken by CBI investigators and CID Crime and the
evidence as adduced by prosecution and even the investigator
themselves if look in its totality do not either prove nor even prima5
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5. Mr. Gautam Tiwari, the learned counsel for the appellants
contended that there are witnesses who tendered evidence on
several important aspects of the prosecution case but the trial
Judge did not consider their testimony in the right perspective. He
further contended that the judgment of acquittal delivered on 21 st
December 2018 is perverse and based on unwarranted
assumptions and manifest erroneous appreciation of evidence. The
Special Judge ignored the relevant materials, rendered
contradictory findings and failed to appreciate the prosecution
evidence against the respondent nos. 2 to 23 in a judicious manner.
The learned counsel relied on the judgments in “M.G. Agarwal”1,
“Zahira Habibulla H. Sheikh,”2 “Chandrappa”3 and “Banne” and
contended that the appellate Court has full power to review,
reappreciate and reconsider the evidence and it is entitled to reach
its own conclusions regarding the guilt or innocence of the accused.
He referred, in particular, to “Banne”4, wherein the Hon’ble
Supreme Court indicated a few circumstances in which the
appellate Court would be justified to interfere with the judgment of
acquittal. The paragraph 28 of the said judgment reads as under:-
“28. Following are some of the circumstances in which perhaps this Court
would be justified in interfering with the judgment of the High Court, but
these are illustrative not exhaustive:-
(i) The High Court’s decision is based on totally erroneous view of
law by ignoring the settled legal position;
(ii) The High Court’s conclusions are contrary to evidence and
documents on record;
(iii) The entire approach of the High Court in dealing with the
evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court’s judgment is manifestly unjust and
1 M. G. Agarwal v. State of Maharashtra: 1962 SCC OnLine SC 22.
2 Zahira Habibulla H. Sheikh v. State of Gujarat: (2004) 4 SCC 158.
3 Chandrappa v. State of Karnataka: (2007) 4 SCC 415.
4 State of U. P. v. Banne: (2009) 4 SCC 271.
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unreasonable based on erroneous law and facts on the record of the
case;
(v) This Court must always give proper weight and consideration to
the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a
case when both the Sessions Court and the High Court have
recorded an order of acquittal.”
6. Per contra, Mr. Amit Desai, the learned senior counsel
appearing for the respondent nos. 2, 3 and 8 to 11 contended that
the High Court in exercise of the powers under section 378 of Cr.
P.C. can interfere with the judgment of acquittal where the only
possible conclusion after re-appreciation of the evidence is that the
guilt of the accused persons has been established beyond a
reasonable doubt. It is further submitted that appreciation of only a
part of the materials before the trial Court is not re-appreciation of
evidence at all and the High Court must bestow its consideration to
the reasons which weighed with the trial Court in acquitting the
accused. Mr. Amit Desai, the learned senior counsel contended that
this is not a case for interference because the trial Court
appreciated the evidence of each witness piece by piece and arrived
at its decision after a thorough appreciation of the evidence. Mr.
Amit Desai, the learned senior counsel referred to “Logendranath
Jha”5 and contended that the power to direct a retrial is to be
exercised only in exceptional cases. The learned senior counsel
further submitted that there was no suggestion before the trial
Court of unfair trial and there is no concept of derivative
conspiracy. The remand of the matter for fresh trial is not legally
permissible and the witnesses if they re-affirm their statements
under section 161 of Cr.P.C. on their re-examination shall be
labeled as unreliable witness who made two contradictory
statements on oath. Supporting him, the learned counsel for the
5 Logendranath Jha v. Polailal Biswas: 1951 SCC 856.
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other accused persons contended that the prosecution story of fake
encounter was a politically motivated attempt to frame a political
figure and certain police officers. The prosecution, however, failed
in its attempt and the witnesses who were set up by the
prosecution did not support it in the Court. It was submitted that
the decision of the trial Judge is a well reasoned judgment which is
required to be affirmed by the High Court.
7. This is the prosecution story that Sohrabuddin Shaikh took
his wife Kausar Bi to Hyderabad for her medical treatment and Eid
celebrations. They were travelling with Tulsiram Prajapati on
22nd November 2005 from Hyderabad to Sangli in a luxury bus
bearing No. KA-05-5051 which was owned by M/s. Sangita Travels.
They were going to Sangli for a surgical operation of Kausar Bi by
Dr. Vinay Jayaram Pataki but before they could arrive in Sangli
and, more precisely, about 15 km away from Zahirabad a few
policemen travelling in Tata Sumo and Qualis Jeep intercepted the
said bus and abducted Tulsiram Prajapati who was occupying Seat
No. 31, Sohrabuddin Shaikh who was on Seat No. 29 and Kausar
Bi who was sitting by his side on Seat No. 30. The policemen then
proceeded with them and headed towards Bharuch. After travelling
about 2 kms., Kausar Bi was asked to sit in Qualis Jeep with her
husband and they were taken to Ahmedabad. The Rajasthan Police
brought Tulsiram Prajapati to Udaipur in another vehicle. This is
the further case of the prosecution that Sohrabuddin Shaikh and
Kausar Bi were brought to Disha Farmhouse in the night of 23 rd
November 2005 which was owned by Girishbhai Chotabhai Patel. At
that time, they were accompanied by the accused persons, namely,
Narainsinh Harisinh Dabhi, Balkrishna Rajendraprasad Chaubey
and Ajaykumar Bhagwan Das Parmar. In the evening of 25 th
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November 2005, Sohrabuddin Shaikh was taken to Arham
Guesthouse and then was moved towards GSB Pole which was
somewhere between Narol and Vishala Circle where he was shot
dead at around 1:30 a.m. to 2:00 a.m. and the incident was
projected as an encounter. Kausar Bi is traceless and her dead
body has not been recovered. However, the prosecution claims that
she was taken out from Disha Farmhouse and killed on
26th November 2005. Her dead body was burnt near Ilol village in
Gujarat and her remains were disposed in Narmada river. On
28th December 2006, Tulsiram Prajapati was also killed in a fake
encounter near Himmatnagar Railway Station in Gujarat. This is
the defence of the accused persons that the incident happened
when Tulsiram Prajapati was brought to Ahmedabad for a Court
appearance. While going back to Udaipur, he attempted to escape
from the police custody by throwing chilli powder at the face of the
escorting guards and it was in an attempt to apprehend him that
the police was constrained to fire at him.
8. Mr. Gautam Tiwari, the learned counsel for the appellants
relied on the testimonies of 77 prosecution witnesses which are
sufficient to convict the respondent nos.2 to 23. The learned
counsel stated that the passengers of the luxury bus bearing no.
KA-05-5051 owned by M/s. Sangita Travels, its employees and
cousin of the owner of the Qualis Jeep were examined by the
prosecution on the point of abduction of Sohrabuddin Shaikh,
Kausar Bi and Tulsiram Prajapati and it can be inferred that they
supported the prosecution case. PW-2 Sharad Krushnaji Apte and
PW-3 Amit Sharad Apte were passengers in the bus bearing No.KA-
05-5051. PW-7 Gaziuddin Jamaluddin Chabuksawar was the
cleaner of the said bus. These witnesses were examined by the
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prosecution to establish that two male and one burka-clad female
were traveling together in the bus which started from Hyderabad to
Sangli. PW-2 Sharad Krushnaji Apte stated that he visited
Hyderabad in November 2005 to attend the function organized on
the occasion of the publication of a book. He stated that on his
journey back by the said bus, he reached Miraj at around 8:00 am
or 9:00 am. He stated in the Court that he cannot remember any
details about the journey and the CBI asked him to sign a
statement which was in Gujarati. He further stated that Mr. A.D.
More who was from CBI brought him to a Court at Sangli and took
his signature over his statement, the contents of which he was not
knowing. In cross-examination by the prosecution, PW-2 denied
that he gave any statement to the CBI about the incident in the
night when he was traveling back from Hyderabad. He denied that
his statement in Gujarati was translated to him by his son. He
further denied that he identified the lady in burka and her two
companions from the picture shown to him by the police. He further
denied that he made a voluntary statement before the Chief
Judicial Magistrate, Sangli and narrated the entire incident of the
night of 22nd and 23rd November 2005. PW-3 Amit Sharad Apte
stated in his examination-in-chief that the CBI officer recorded his
statement and took his signature on the back of the photographs
shown to him. He further stated that the Gujarat CID Police had
previously made enquiry from him and took his statement in
Gujarati. In the cross-examination by the prosecution, PW-3 Amit
Sharad Apte denied that he visited Hyderabad with wife and
parents to attend a book publication function in November 2005 or
that they came back to Sangli on 23 rd November 2005. He further
denied that they traveled through Sangita Travels from Hyderabad
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to Sangli on the night of 22 nd November 2005 and they were
occupying the Seat Nos.13 to 16. He denied the suggestion from the
prosecution that the bus took a halt at a Dhaba for half an hour
around 11:00 pm and they took snacks and tea and at that time he
had seen the face of a lady in burka who was sitting across the
table. He further denied that the bus was abruptly stopped by a
Qualis around 1:30 am and three persons entered the bus on the
pretext of a checking and claiming that they were police officers.
He also denied that three persons were taken out of the bus and
then the bus proceeded for Miraj where it reached in the morning.
He denied that he gave another statement to the Gujarat CID Police
either on 22nd September 2006 or 31st March 2007. He further
denied that he could recognize the woman in burka and two other
persons who were travelling with her. PW-7 Gaziuddin Jamaluddin
Chabukswar stated in the Court that he was a cleaner but denied
that he was travelling on the bus. The prosecution sought
permission of the Court to declare him hostile when he said that no
enquiry was made by the police from him. In the cross-examination
by the prosecution, PW-7 denied that he was working as a cleaner
on the bus bearing No.KA-05-5051 which was traveling from
Hyderabad to Belgaum. He denied the suggestion that there were
35 passengers including a lady in burka travelling in the said bus
which had started from Hyderabad at 5:00 pm or that the bus
stopped at G.M.Rao Dhaba for dinner. He denied that the bus was
intercepted by a Qualis near Talola village and three persons
entered the bus saying that they were police officers and wanted to
conduct a check. He further denied that three passengers
including a lady in burka were taken out from the bus by the police
officers or he was shown photograph of the lady and her companion
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passengers whom he could recognize. He further denied that the
bus driver asked him to count the number of passengers and he
found that passengers on Seat Nos. 29, 30 and 31 were missing.
Mr. Gautam Tiwari, the learned counsel contended that the
testimony of PW-7 who admitted his signature over his statements
made on 1st April 2004, 11th July 2006, 13th July 2006 and 10th
January 2007 cannot be ignored and such statements made by him
under section 164 of Cr.P.C. could not have been ignored by the
trial Judge. However, this is pertinent to note that PW-7 denied that
CBI recorded his statement on 17th February 2010 and 10th
February 2012. He flatly refused in the Court that he was a
witness of the incident which took place near village Talola or that
he had narrated the entire incident to the Gujarat CID police or the
CBI.
9. P.W.-20 Saleema Begum @ Appa who is the sister of
Sohrabuddin Shaikh also resiled from her statement allegedly made
by her before the police under section 161 of Cr.P.C. Her evidence
was recorded through video conferencing in presence of the
prosecutor and the counsels for the accused persons. She has stated
in her cross-examination that her elder brother Nayamuddin was a
property broker. He was facing a charge for the murder of the DIG
Shri Vyas. She denied any knowledge about the friends of her brother
and stated that none of her brother’s friends ever visited her
residence. In the cross-examination by the prosecution, PW-20
denied that Shri Shankar Shamal Giri, the Deputy Superintendent of
Police (CBI), visited on 2 nd March 2010 at Hyderabad and enquired
from her about the police encounter of Sohrabuddin Shaikh and
Kausar Bi. She denied her statement which according to the
prosecution she had given before the CBI and stated that
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Sohrabuddin Shaikh and Kausar Bi did not visit her in 2005.
10. PW-208, Rubabuddin Shaikh is the brother of Sohrabuddin
Shaikh. He stated in the Court that Sohrabuddin Shaikh, Kausar Bi
and Tulsiram Prajapti traveled from Jharania to Indore for medical
treatment some time in mid-November 2005. They had gone there for
Eid celebrations before leaving for Sangli. He stated that he tried to
contact Sohrabuddin Shaikh through mobile phone between 23 rd to
25th November but his attempts were met with suspicious responses
from unknown persons including a person named Rajesh who
answered the phone call. His subsequent attempts to reach
Sohrabuddin Shaikh were not successful and he received out-of-
coverage messages. On 26th November 2005, he received a news from
his brother that Sohrabuddin Shaikh was killed in police encounter
in Ahmedabad. His brother Nayamuddin informed him that it was a
fake encounter in which Sohrabuddin Shaikh was murdered but in
the initial news reports Sohrabuddin Shaikh was labeled as a
member of Lashkar-e-Taiba. He met Mr. Parmar at ATS office for
claiming the body of Sohrabuddin Shaikh on 27 th November 2005 at
Ahmedabad where he had visited with his relatives. He examined the
body of Sohrabuddin Shaikh and observed eight bullet wounds which
appeared to have been shot from a close distance. He further stated
that Mr. Parmar did not provide any information or clue about the
reason for the killing of Sohrabuddin Shaikh and whereabouts of
missing Kausar Bi. He also stated that the family returned to
Jharania to perform the last rites of Sohrabuddin Shaikh but Kausar
Bi’s status remained an unresolved mystery. PW-181 who is another
brother of Sohrabuddin Shaikh deposed in the Court on the similar
lines as spoken of by his brother Rubabuddin Shaikh. He stated in
the Court that he heard about the abduction and killing of
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Sohrabuddin Shaikh and disappearance of Kausar Bi.
11. PW-34 Dr. Dharmesh Somabhai Patel stated in the Court that
he observed the following injuries on the dead body of Sohrabuddin
Shaikh:-
“5. No injury was found on external genitalies and penis found
circum size. On external examination we found the following external
injuries on the body:
1. One firearm oval shape entry wound of size 0.5 x 0.8 cm
surrounded by read color abrasion collor extend more on upper
half of width 0.5 cm and width of lower half of abrasion collor
of 0.2 cm was present over right side of forehead, 13 cm above
angle of right mandible, 9 cm right to mid line and it was 173
above right heal.
2. One horizontal spindle shape firearm exit wound of size 1.2
x 0.5 cm present on left temporal region 11.5 cm above left
angel of mandible, 15 cm left to mid line of head (superior
surface), 5 cm above tragus of left ear. It was 171 cm above
left heel.
3. One firearm entry wound of size 0.8 x 0.8 cm and of 0.6 cm
diameter and surrounded by red colour abrasion collor of size
1 mm on left side of chest 3 cm left to mid line and 25 cm
above left anterior superior illiac spile and it was 126 cm above
heel.
4. Multiple red colour contused abrasion present in area of 8 x
8 cm size varying from 0.1 x 0.1 cm to 1 x 0.8 cm in left lower
chest 21 cm above left anterior superior illiac spile and it was 8
cm left to mid line and 122 cm above left heel.
5. One firearm exit wound of size 0.8 x 0.8 cm present in the
back of left lower chest 6 cm left to mid line and 123 cm above
left heel.
6. One firearm entry wound of size 0.4 x 0.4 cm with red colour
abrasion collor of size 0.3 cm present on back of right thigh 73
cm above right heel and 13 cm away to gluteal fold (mid line).
7. One firearm exit wound of size 0.6 cm diameter present on
medial and inner aspect of right thigh and was 78 cm above
right heel.
8. One firearm entry wound of size 0.8 * 0.5 cm present on
medial and inner aspect on left thigh and was 79 cm above left
heel.
6. No palpable fracture was found on limbs. All described external
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Cri. Appeal Nos.641 & 656 of 2019.docinjuries were antimorterm. After completing external examination. All
this external examination which I described above was taken note of
on the Post Morterm report at the time of examination. Thereafter a
dead body was sent to radiology department of Civil Hospital
Ahemadabad for X-Ray examination. The dead body came along with
12 X-Ray films and the report of radiologist.
7. Thereafter we conducted internal examination of the dead body
and found following injuries:
1. Red colour scalp contusion of size 4 * 4 cm present beneath
injury no. 1 of column no. 17 in right temporal region.
2. Red colour scalp contusion of size 6 * 5 cm present beneath
injury no. 2 of column no. 17 in left temporal region.
We found following fracture of scalp:
i) 0.3 cm circular perforating fracture of entry wound in right
temporal skull bone with haemetoma of size 3 * 3 cm beneath
injury no. 1 of scalp. It was over coronal suture and 7 cm
away from saggital suture (right side)
ii) Irregular perforating fracture of left temporal bone of size 2 *
2 cm present 2.5 cm behind left coronal suture and 12 cm left
to mid line corresponding to injury no. 2 in column no. 17. It
was surrounded by blood and blood clots.
On examination of the brain we found the following injuries:
i) Meninges and dura shows circular opening corresponding to
injury no. 1 of column no. 17 and irregular tear corresponding
to injury no. 2, in right and left imporal region of meninges
respectively. Red colour contisued laceration of brain from
right temporal lobe to left temporl lobe of brain perforating
intervening structure of brain, making 5 track corresponding to
injury no. 1 in column no. 17 and injury no. 2 in column no.
17, clotted blood found in the course of track.
On examination of internal chest we found the following
injuries:
i) 0.8 x 0.8 cm firearm entry wound in left 7 deg inter costal
space below left 7th rib beneath injury no. 3 of column no. 17.
ii) 0.8 x 0.8 cm firarm exit wound present 6 cm left to mid line
and 123 cm above left heel corresponding to injury no. 5 as
column no. 17 on left side of back of chest.
iii) Left lower pleura was teared corresponding to injury no. 3
and 5 of column no. 17 and was through and through, trachea
was conjusted, right lung was pale. Left side of chest cavity
contain around 800 ml of blood. Perforating injury of base of15
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injury no. 3 and 5 of column no. 5 17 respectively. Blood and
blood clots found in track about 10 CC of blood found in
pericardial sac with perforating injury of lower part of
pericardiam through and through corresponding to injury no. 3
and 5 of column no. 17 respectively. Endomyocardiam,
myocardiam heart valves were normal and coronaries were
patent.
We examined abdominal cavity and found about 100 CC of
blood in peritoneal cavity. Performation was present in left
diaphragm surrounded by blood and blood clots. Oral cavity
teeth and tongue were normal. Esophagus was normal.
On examination of stomach we found upper end of stomach
was perforated through and through corresponding to injury
no. 3 and 5 of column no. 17. Red colour contusion was
present in surrounding of upper end of stomach wall. Stomach
contained blood and blood clots. No abnormal smell was
present. Stomach contained semi digested food. Feaces and
flatus found in intestine. On examination of liver, upper part
was perforated through and through and surrounding areas
showed red colour contusion corresponding to injury no. 3 and
5 of column no. 17. Blood and blood clots found at side of
injury. Spleen and kidney were pale. Bladder was empty.”
12. PW-34-Dr. Dharmesh Somabhai Patel deposed in the Court
that a team of five doctors conducted postmortem over the dead
body of Sohrabuddin Shaikh. He found several bullet injuries on
different parts of the body. The cause of the death was shock and
hemorrhage due to injuries sustained by the victim. He stated in
the Court that no burn marks or smoke deposits were found, the
fire-arm injuries which would ordinarily be present if a person is
fired at close range. He further noted that no cadaveric spasm was
observed by him while conducting the postmortem examination
over the dead body of Sohrabuddin Shaikh, which generally may
occur when the death is associated with extreme physical or
emotional stress such as fear. These findings clearly rule out any
possibility of fake encounter of Sohrabuddin Shaikh.
13. PW-15 Nathubha Jadeja and PW-31 Bhailalbhai Rathod who
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are said to have witnessed the incident at Vishala Circle did not
support the prosecution case and their cross-examination by the
prosecution did not elicit any statement from them which could be
utilized to render a finding on the complicity of the accused
persons. The trial Judge held that the prosecution failed to
establish that the seized fire-arms were used in the encounter for
firing at Sohrabuddin Shaikh. The cartridges seized from the
accused persons were not examined by the ballistic expert and
there was no evidence to connect those cartridges with the service
pistol and revolver collected by Mr. G. B. Padheria who was the
Deputy Superintendent of Police with the Reserved Police, Udaipur.
PW-43 and PW-44 who are the Panch witnesses connected with
Sohrabuddin Shaikh’s postmortem etc. were declared hostile. They
stated in the Court that they were asked to sign the Panchanama.
The trial Judge further took note of the injuries suffered by the
accused no. 25 which was said to be the self-inflicted injury but the
medical evidence tendered by Dr. Pinalben Bhojak did not support
that the injury was self-inflicted.
14. PW-207 is a co-accused and jail-inmate of Tulsiram Prajapati
who was involved in Hamid Lala murder case and Popular Builder
firing case. He stated in the Court that Sohrabuddin Shaikh was
abducted on the information provided by him to Vanzara. After
abduction, they were kept in the farmhouse at Ahmedabad and he
heard sound of firing. He was detained at the farmhouse 2-3 days
and then handed over to Rajasthan police. PW-207 is not an eye
witness to the occurrence. He did not give any particulars of the
Farmhouse or any material information and made a parrot-like
statement in the Court. His testimony is full of omissions and
contradictions. In view of his criminal antecedents and implication
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in Hamid Lala murder and Popular Builder firing case, it was
contended that he had a motive to implicate the police. Moreover,
the story of firing at the Farmhouse as narrated by him is contrary
to the prosecution story that Sohrabuddin Shaikh and Kausar Bi
both were taken out from Disha Farmhouse and killed at different
places. Contrary to the prosecution case, PW-207 Mohd. Azam
Khan who is projected as an important witness stated in the Court
that Tulsiram Prajapati was in the adjoining room when he heard
the sound of firing. He was informed by Tulsiram that the dead
bodies of Sohrabuddin Shaikh and Kausar Bi were found in the
Disha Farmhouse. On the contrary, this is the prosecution case
that the mortal remains of Kausar Bi was found in a riverbed. It is
well settled that when the foundation of the prosecution case is not
proved, the entire case must fail and the accused person is entitled
for discharge or acquittal.
15. PW-1, PW-15, PW-30, PW-31 and PW-60 are the main
witnesses who were examined by the prosecution to establish its
theory that a team from the ATS, Ahmedabad traveled to Hyderabad
in a Qualis but these witnesses did not support the prosecution’s
case. According to the prosecution, Mr. Rajkumar Pandian who was
posted as Superintendent of Police with ATS of Gujarat Police also
arrived at Hyderabad by Air and took help of DIG Shri E.
Radhakrishnaiah, a DIG with CRPF, Hyderabad, and requested him
to make arrangements for his accommodation. He was put-up at
Police Mess and to establish his stay there the prosecution
produced Mess Register etc. PW-1 R. Nawal Kishor Rai was Police
Head Constable with the Telangana State Police, Kondapur and
working at the Police Officers’ Mess. This witness deposed in the
Court that his official duty included handing over the room keys to
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the allottee on the instructions of the Mess Manager. He stated that
there is a room service ledger maintained by the reception and the
Secretary of the Police Officers’ Mess used to be an officer in the
rank of Superintendent. He, however, stated that his statement was
not recorded by the police or CBI and he was deposing for the first
time in the Court. PW-60 Radhakrishnaiah was examined as the
person who had made arrangement for the stay of SP Rajkumar
Pandian on 21st November 2005. He stated that Rajkumar Pandian
requested him to arrange a room for his stay in the Officers mess.
He made certain statements regarding mess bill, gate entry and
mess register etc. at the CRPF campus. But his testimony does not
help the prosecution to establish any incriminating circumstance
against the accused persons or even against SP Rajkumar Pandian.
On the contrary, PW-60 stated in the Court that he observed
overwriting and additions in few pages in the gate register
maintained at the CRPF campus. PW-60 deposed in the Court that
there were interpolations in the entry gate register and the register
did not contain any reference to any vehicle with a Gujarat
registration. Moreover, Rajkumar Pandian who was arrayed as A2
has been discharged by the Court. PW-168 who was the supervisor
at police canteen in the CRPF premises at Hyderabad denied in his
cross-examination the entries in the register maintained at the
residence of DIG about the entry of SP Rajkumar Pandian,
Shrinivas Rao, Parmar and Shri Dhabi. He denied that he gave any
statement to Dy SP. S. S. Giri on 23 rd February 2010. PW-33 is a
police constable of Rajasthan Police who was attached with SP
Dinesh M. N. at Udaipur. He is another hostile witness whose
cross-examination was sought to be relied upon by Mr. Gautam
Tiwari, the learned counsel for the appellants. PW-33 denied in his
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cross-examination that he picked up the police officials of
Rajasthan Police and came to the ATS office at Ahmedabad or to
have brought four police officers from Ahmedabad to Udaipur on
26th November 2005. He denied that he made any statement to the
CBI on 20th May 2007 or that he learnt at the ATS office about an
encounter killing of Sohrabuddin Shaikh.
16. P.W.15-Nathuba Jadeja and P.W.30-Gurudayal Singh
Gangasahay Chaudhary were the drivers who drove the police team
to Hyderabad on 21st November 2005. They came by a Qualis car
bearing No.GJ-A-25-7007 which belonged to Premjibhai Kanjibhai
Cham. On 26th November 2005, PW- 15-Nathuba Jadeja brought
the officials of Rajasthan police and N.H.Dhabi, the respondent
no.3, who was from Gujarat police, in a Maruti car at a place
between Narol Circle and Visala Circle. Around 2:00 am,
Bhailalbhai Koderbhai Rathod came there in another car and the
police officials alighted there and staged a fake encounter killing
Sohrabuddin Shaikh in cold blood. PW-11, who was the watchman
and brought Qualis to the residence of PW-17, stated in the Court
that he brought Qualis to the residence of PW-17 on the
instructions of PW-12. The said vehicle was taken to Porbandar
later on at the residence of PW-17. PW-12 who is the cousin of PW-
17 stated in the Court that PW-17 owns residential properties at
Porbandar and Ahmedabad. He further stated that a Qualis bearing
GJ-25-A-7007 might have been purchased by PW-17. The said
vehicle was in his possession between 18 th to 23rd November 2005
and no one had asked the said vehicle from him. He denied in the
cross-examination that PW-17 called him in the night of 18 th
November 2005 and said that the Qualis has been requisitioned by
SP Rajkumar Pandian. He further denied that Rajkumar Pandian
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called him around 8:00 p.m. on 23 rd November 2005 and told him
that he was sending the Qualis at Judges bungalow. He further
denied that he called PW-11 and asked him to bring the Qualis
from Judges bungalow police chowki. He accepted that PW-17 had
acquaintance with Rajkumar Pandian since the time he was serving
as Deputy Superintendent of Police at Porbandar. He denied to have
made any statement before Gujarat CID police or the CBI. He
further denied that the Qualis was used by Rajkumar Pandian
between 18th to 23rd November 2005. PW-30 was posted as a driver
at the ATS office, Ahmedabad and attached to SP Rajkumar
Pandian. He did not identify any accused persons who were present
in the Court on the date of his testimony. He denied that the
logbook shown to him was for the Maruti Fronty and written in his
handwriting. He denied that he was asked by any ATS officer to
travel to another place for secret inquiry. He denied in the cross-
examination that the ATS Inspector, Shri Dhabi asked him around
7:00 p.m. on 20th November 2005 to accompany him for secret
operation and he started on the Qualis with Nathuba Jadeja as the
driver and Ajay Parmar, Santram Sharma and Shri Dhabi. He
denied having travelled from Surat to Aurangabad and reached to
Hyderabad around 9:30 p.m. on 21st November 2005 via
Aurangabad. He further denied that he was asked by Shri Dhabi to
change the numberplate of Qualis or that Ajay Parmar and
Santram Sharma brought a numberplate bearing AP-11 which was
affixed to the Qualis. He further denied that SP Rajkumar Pandian
met the group of police personnel including seven from Andhra
Pradesh police around 5:00 p.m. on 22 nd November 2005 and he
started on a Tata Sumo with three Andhra Pradesh policemen. He
denied every suggestion made by the Prosecutor in the cross-
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examination. He also denied that his statement was recorded by
Gujarat CID police on 19th January 2007 or 4th April 2007. He
further denied to have made a statement before the CBI on 4 th
March 2010 wherein he denied to have spoken about the incident.
He declined to own his video recorded statement and said that his
statements were obtained from him by pressurizing and threatening
him that he shall be removed from service.
17. PW-32 was working at ATS, Ahmedabad. He registered Crime
No.5 of 2005 and stated that he recorded the information of
Sohrabuddin Shaikh’s encounter in the Station Diary and
forwarded the same for investigation to M. L. Parmar who was the
Deputy Superintendent of Police. He brought the Muddemal
property to the FSL at Gandhinagar and obtained the
acknowledgment thereof. He denied that the CBI recorded his
statement at Gandhinagar. He stated that the ATS did not record
his statement. He stated that he did not communicate to the
Control Room the encounter of Sohrabuddin Shaikh and he had no
idea about the members of the police team which participated in
the encounter. The statement of PW-92 who was the owner of
motorcycle bearing No.GJ-01-DM-8039 in respect to which the theft
report was lodged vide C.R. No.757 of 2005 and the statement of
PW-138 who was the owner of the scooter No.RJ-27-3M-3523 to the
effect that the said motorcycle and the scooter were found
stolen/missing and later on recovered does not provide any chain in
the link of circumstances. Similarly, the statement of PW-123, who
provided information relating to the vehicle bearing registration
No.AP-12J-6364 to the effect that such registration number was not
allotted to any vehicle is also not worth for examination.
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18. This is the prosecution case that Sohrabuddin Shaikh had
spoken to PW- 5 Dr. Prakash Bandivadekar about the gynecological
problem of his wife Kausar Bi. Dr.Prakash Bandivadekar then
referred him to PW- 4-Dr. Dr. Vinay Jayram Pataki who was to
conduct the fallopian tube operation of Kausar Bi in the clinic at
Sangli. That is how, Sohrabuddin Shaikh and Kausar Bi had
planned to come to Sangli after visiting Kalimuddin at Hyderabad.
All these informations were supplied by Tulsiram Prajapati to the
Gujarat Police and they were made aware of the return plan of
Sohrabuddin Shaikh and his wife on 22 nd November 2005 for
Sangli. The team of Gujarat and Rajasthan Police had left
Gandhinagar on 20th November 2005. The prosecution examined
PW-4 Dr.Vinay Jayaram Pataki and PW-5 Dr.Prakash Bandivadekar
to establish a vital link in the chain of circumstances that Kausar
Bi was to be operated in the hospital of PW-4 at Sangli and that
was the purpose for which Sohrabuddin Shaikh, Kausar Bi and
Tulsiram Prajapati were travelling in a luxury bus owned by M/s.
Sangita Travels on 22nd November 2005.
19. PW-4 is a doctor who, according to the prosecution, was to
perform a surgery because Kausar Bi suffered from infertility and a
blockage in her fallopian tubes. He stated in his examination-in-
chief that he was practicing at Atpadi, Sangli and had known PW-5
Dr.Prakash Satappa Bandivadekar who was practicing at Indore
since 1992. He was in regular touch with PW-5, who contacted him
in November 2005 for the surgery of Kausar Bi. He admitted in the
cross-examination that he is not a Gynecologist and he did not
provide the telephone number of PW-5 to the CBI. He denied the
suggestion that he received any call from PW-5 about Sohrabuddin
Shaikh or Kausar Bi and that was the reason he did not share the
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call details of their alleged conversation with the CBI. He further
admitted in the Court that his statement recorded under section
161 of Cr.P.C. was not read over to him. The testimony of PW-4
does not take the prosecution story any further except that he had
discussion with the PW-5 regarding the operation of Kausar Bi. PW-
5, who stated that Sohrabuddin Shaikh, his wife and mother were
his patients, was examined by the CBI on the point that
Sohrabuddin Shaikh, his wife and Tulsiram Prajapati were taken by
him in Maruti Omni and dropped them on the highway. He has
stated that Sohrabuddin Shaikh wanted to travel to Hyderabad in
December 2005 and asked him to bring Maruti Omni to a petrol
pump where he arrived with his younger brother, Munna, wife
Kausar Bi and Tulsiram Prajapati. Sohrabuddin Shaikh had two
vehicles and one of which was Maruti Omni that he left with him
and Sohrabuddin Shaikh used to travel in another vehicle which
was Maruti Esteem. This witness further stated about the
gynecological problem of Kausar Bi and the planned visit of
Sohrabuddin Shaikh from Hyderabad to Sangli for her operation.
He further stated that Sohrabuddin Shaikh called him from
Hyderabad and asked him to inform PW-4 that he was planning to
come to Sangli from Hyderabad the next day. His statement was
recorded by the Gujarat Police and in the Court of Magistrate at
Kolhapur under section 164 of Cr.P.C. on 15 th May 2012. He
identified the photograph of Tulsiram Prajapati which was shown to
him in the examination-in-chief as the photograph of a person
which was shown to him by the CBI in Kalamba Jail at Kolhapur.
20. The testimony of PW-5 has been seriously challenged as laced
with oblique motive. PW-5 admitted in the cross-examination that
he has a formidable criminal past. He was accused in three murder
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cases and convicted for life in a murder case. He was accused of
attempting to commit murder and a case of police firing. All the
crimes were registered at Chandgad in the district of Kolhapur. His
family had filed three criminal cases against the persons who were
accused of killing his brother. He further admitted in the Court that
three Police Officers were made accused in the cross cases but they
were subsequently acquitted by the Court. His brother Ramchandra
Bandivadekar was a lawyer who had filed a cross case against the
police officers. In the said incident, the police fired in self-defence
and caused death of his brother. Shiva Gavade and Raja Gavare
were accused with him in a murder case. PW-5 was accused in two
other murder cases with his brother Adv. Ramchandra
Bandivadekar and Pundlik Bandivadekar. He was also an accused
along with Raja Gaware and Shivaji Gavade in the police firing case.
He further stated that the police implicated Sohrabuddin Shaikh
and Tulsiram Prajapati in a murder case in 2005 and police
referred them as Sohrabuddin Gang. It was Bandivadekar Gang
and known as rival gang since 1996. He was in jail for seven years
in connection to the criminal cases. He stated that Sohrabuddin
Shaikh called him from Hyderabad in 2005 and he gave his mobile
number to the Gujarat police but did not provide his number to the
CBI or stated before the Magistrate at Kolhapur. He denied any
telephonic conversation or that Nayamuddin ever met him at
Indore after December 2005. Pertinently, he stated in the Court
that he made an incorrect statement before the Magistrate at
Kolhapur. He stated that he gave his statement before the
Magistrate when he was produced by the CBI from jail on the basis
of his previous statement made before the Gujarat CID police and
as per the instructions of the CBI. He admitted long standing
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village political rivalry since 1996. He further admitted that there
were numerous cases registered against Sohrabuddin Shaikh and
he was a wanted accused person in many cases. He denied any
friendship with Tulsiram Prajapati or that he ever resided with
Sohrabuddin Shaikh at Indore. He admitted in the cross-
examination that he had no documentary proof to show that
Sohrabuddin Shaikh and his family were his patients. Quite clearly,
the prosecution miserably failed in its attempt to establish that
Sohrabuddin Shaikh, Kausar Bi and Tulsiram Prajapati had gone to
Hyderabad and were travelling to Sangli for the treatment of Kausar
Bi in a luxury bus of M/s. Sangita Travels.
21. Tulsiram Prajapati was traced out around 10.00 p.m. near
Ambaji. He was picked up by the Special Police escort team
comprising of S.I. Narayan Singh, Yudhvir Singh, Kartar Singh and
constable Dalpat Singh on 26th November 2005 around 3:00 pm
from the house of Chandan Kumar Jha. He was staying there in the
alias name Sameer. He was arrested in Crime Register No.214 of
2004 at Hathipole Police Station which was registered for the
murder of Hamid Lala. He was lodged at Udaipur Central Jail and
the Gujarat Police used to take him on production warrant to
Ahmedabad in Popular Builder firing case (Crime Register No.1124
of 2004). The specially formed police team boarded Ahmedabad-
Udaipur Train No.9944 around 11.15 p.m. on 26 th December 2006
for bringing Tulsiram Prajapati to Udaipur. However, he attempted
to escape by throwing chilli powder in the eyes of escorting parties
in the early hours of 27 th December, 2006 somewhere between
Raigad and Shamalaji Railway Stations, when the train was moving
at a very slow speed because some repair and maintenance work
were going on.
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22. PW-67 was the part of police team which arrested Tulsiram
Prajapati at Bhilwara. He stated in the Court that he received an
information on 29th November 2005 from Sudhir Joshi that
Tulsiram Prajapati who was suspect in Hamid Lala murder case
was hiding at Bhilwara. The police team was led by the informer to
the residence of Chandan and Komal Jha where Tulsiram Prajapati
was hiding in fake name of Sameer. He further stated that the
arrest of Tulsiram Prajapati was formally recorded in Crime No.214
of 2004. He gave his statement under section 164 of Cr.P.C. But he
stated in the Court that his statement under section 164 of Cr.P.C.
was recorded under intimidation and threat from Kandaswami and
Amitabh Thakur at the CBI office on 1 st July 2011. Under such
pressure, he made a statement on 4 th July 2011 that Tulsiram
Prajapati was arrested on 26th November 2005 and not on 29 th
November 2005 and, that, he had attended to D. G. Vanjara and
certain politicians at Jagmandir. PW-81 and PW-82 were part of the
escort team which brought Tulsiram Prajapati from Udaipur to
Ahmedabad. PW-81 denied that he made any voluntary statement
before the CBI on different dates or before the Magistrate at Navi
Mumbai. PW-81 denied that Abdul Rehman had informed him
about any statement made by Tulsiram Prajapati that he was
agitated on account of encounter of Sohrabuddin Shaikh and he
intended to seek revenge. He denied that ASI Narayan Singh
informed on 25th December 2006 that he was instructed by SP
Dinesh M. N. to escort Tulsiram Prajapati to Ahmedabad. PW-82
denied in his cross-examination that he was escorting the under-
trial prisoners Tulsiram Prajapati and Mohammed Azam for their
production before the Metropolitan Magistrate, Court No.13,
Ahmedabad on 27th November 2006. He further stated that he had
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made certain statements at the instance of the CBI which showed
him entries in the general diary maintained at the Reserve Police
Line, Udaipur. He further denied that the prisoners were taken from
Udaipur on 27th November 2006 and reached Ahmedabad on 28 th
November 2006 and returned to Udaipur on 29 th November 2006.
23. PW-120 Dr. Rakesh M. Patel stated in the Court that he
observed the following injuries on the dead body of Tulsiram
Prajapati: –
“5. The external injuries found on the body were –
1. A circle wound (1×1 cm) on left chest with inverted margin and
dried blood of dark red colour, it was located at 17½ inches
below scalp and 2 inches found left neeple and 2 inches lateral to
median plane.
2. A vertical ovel wound (1×0.75 cm) interior part with inverted
skin margin with dried blood of dark red colour in it. It was
located at 11 inches from scalp and 4 inches from shoulder tip
and 8 inches from left L-blow joint.
3. A circle wound (1×1 cm) on left loin with inverted skin margin
with dried blood in it. It was located at 24 inches from scalp and
7 inches from midline and 7 inches from umbilicus.
4. An irregular tranverse wound (3.5×1.4 cm) with everted skin
margin with muscle tendun protruded and dried red blood over it
on loin posterior part. It was located at 25 inches from scalp and
½ inch left from midline of vertebra and 42 inches from heel.
5. A swelling (2x1x0.5 cm) on left side on posterior part of lower
chest, 19 inches from scalp and 1 inches from midline.
6. A swelling of right eye with blackness (hematoma).
There was compound fracture humerus neck on palpation. All
these injuries were antemortem.
6. The internal injuries which were found during examination are
as under –
1. There was small hematoma on occipital region of scalp.
2. There was tranver liner fracture of occipital region of scalp
(7cm).
3. There was extradural and subdural minimal hematoma on
occipital region of brain with clotted blood.
No other abnormalities found in meninges and brain tissue.
a. There was no fracture on ribs pluera was normal a.
b. Larynx and trachea – normal
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c. Right lung – normal and collapse due to plenty of blood in
right plural cavity.
d. Left lung normal and collapse due to plenty of blood in right
plural cavity.
e. There was a tear on pericardium on left ventricle area with
blood in it.
f. Heart A vertical slit like hole (1×0.5) on left ventricle
penetrating septum and left atrium (1×0.5) cm with shifting of
heart from its original position.
g. Large vessels – Large vessels like Aorta and inferior and
superior venacava are empty due to profuse bleeding inside
and out side body.
24. PW-77 who was Deputy Superintendent of Police at Ujjain
interrogated Tulsiram Prajapati at Udaipur after his arrest. He gave
the criminal antecedents of Sohrabuddin Shaikh and Tulsiram
Prajapati and stated in the Court that Tulsiram Prajapati stated
before him that he had fired some person at Chandgad at the
instance of PW-5. The story of Tulsiram Prajapati writing an
application to NHRC is not supported by PW-96 who was a jail-
inmate of Tulsiram Prajapati. He admitted in his cross-examination
that he had not written or despatched any application to any
authority about Tulsiram Prajapati. PW-121 also denied drafting
application under the dictation of PW-96. He further denied that
the CBI ever showed him another application in this behalf or he
identified his handwriting. He also has criminal antecedents. The
prosecution witnesses did not support its case that Tulsiram
Prajapati was killed in cold blood and projected the same as a police
encounter. No prosecution witness came forward and deposed in
the Court that he saw the murder of Tulsiram Prajapati by the
Gujarat and Rajasthan policemen. There is no answer by the
prosecution to the fire-arm injuries suffered by Ashishkumar
Pandya to his upper left arm. There is no reason to disbelieve the
defence story that on 28th December 2006 at around 4:30 am
Aashish Arunkumar Pandya, PC Yuveersingh, ASI Narayansingh
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and PC Kartarsingh were searching for Tulsiram Prajapati. On
patrolling, they saw three persons in a Matador vehicle one of
whom was Tulsiram Prajapati. The patrolling party tried to stop
them but Tulsiram Prajapati fired a bullet which hit on the left side
of the mudguard of the police jeep. These persons started running
away and did not surrender. Tulsiram Prajapati again fired a shot
which hit Aashish Arunkumar Pandya and in return police party
fired shots which hit him and he was declared dead at Simji
Hospital. The prosecution failed to adduce any evidence to establish
a conspiracy between respondent nos.2 to 23 to eliminate Tulsiram
Prajapati when he was being taken back to Udaipur after his
production in a Court at Ahmedabad.
25. According to the prosecution, Kausar Bi was burnt to death
on 27th November 2005 and her body was disposed of on 28 th
November 2005 in Narmada river near village Ilol in Gujarat.
Tulsiram Prajapati was also shown as shot by the police at Ambaji
in Gujarat in the morning of 28th December 2006. The prosecution
set up a case that Kausar Bi was shifted from Disha Farmhouse on
26th November 2005 and murdered. They had decided to put the
dead body on fire and collected fire wood and arranged a Tata-407
vehicle bearing No.GJ-2V-5287 for carrying the fire wood but the
vehicle broke down and they arranged another Tata-407 vehicle
bearing no.GJ-A-25-7007 and proceeded to Ilol but the second
vehicle also got stuck in the river bed of Narmada at village Ilol. The
respondent no.4-Balkrishna Rajendraprasad Chaubey, the
respondent no.10-Naresh Vishubhai Chauhan and the respondent
no.11-Vijay Kumar Arjunbhai Rathod carried the fire wood and put
the dead body on pyre. The burnt remains of Kausar Bi were
collected and disposed of in Narmada river. Most of the witnesses
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produced by the prosecution in its attempt to establish that Kausar
Bi was burnt to death did not support its case. None of the
prosecution witnesses out of those seventy seven witnesses on
whom Mr. Gautam Tiwari, the learned counsel for the appellants
relied on in course of his arguments are eye witness. Any part of the
testimony of these witnesses does not establish any circumstance
which can be relied upon by the prosecution to establish an
unbroken chain of circumstances leading to the guilt of the
respondent nos.2 to 23.
26. Except Rajendrakumar Laxmandas Jirawala, the other twenty
accused persons were the public servants. The prosecution failed to
establish its story of fake encounter. The defence set up by those
twenty accused persons was a probable story and they shall deem
to have been discharging their official duty in course of which the
police fired at Sohrabuddin Shaikh and Tulsiram Prajapati. The
trial Judge referred to the decision in “D.T. Virupakshappa”6 and
held that the accused persons except Rajendrakumar Laxmandas
Jirawala were acting or purporting to act in discharge of their
official duty and, therefore, entitled to the protection under section
197 of Cr.PC. The trial Judge held that the Magistrate could not
have taken cognizance of the offence without previous sanction of
the State government and they cannot be convicted for that reason
also. The trial Judge further held that there was a reasonable nexus
between the alleged offending act and discharge of official duty by
the respondents who are public servants. The trial Judge discussed
this aspect of the matter and the relevant findings on this issue are
reproduced as under: –
“245. It is not in dispute that the 21 accused, except accused
6 D. T. Virupakshappa v. C. Subhash: (2015) 12 SCC 231.
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no. 19 Shri. Jeerawala, are public servants not removable from their
office save by or with the sanction of the Government. Procedure for
prosecuting a public servant for offences under Indian Penal Code, is
specifically provided for under Section 197 of Code of Criminal
Procedure. Section 197(1) specifically provides that “When any
person who is or was a Judge or Magistrate or a public servant not
removable from his office save by or with the sanction of the
Government is accused of any offence alleged to have been
committed by him while acting or purporting to act in the discharge of
his official duty, no court shall take cognizance of such offence except
with the previous sanction (a) in the case of a person who is
employed or, as the case may be, was at the time of commission of
the alleged offence employed, in connection with the affairs of the
Union, of the Central Government; (b) in the case of a person who is
employed or, as the case may be, was at the time of commission of
the alleged offence employed, in connection with the affairs of a
State, of the State Government.”
246. In as much as the word ‘shall’ has been used in Section 197 of
the Code of Criminal Procedure, it goes without saying that sanction
from the Competent Authority of the public servant is a sinequanon
and a condition precedent for prosecuting a public servant
accordingly nature. Sanction in this regard is and absolutely
mandatory in It hardly needs to be mentioned that an official act or
official duty means an act or duty done by an officer in his official
capacity. The official act can be performed in the discharge of official
duty as well as in dereliction of it. Therefore, the court is supposed to
focus on the ‘act’ of the public servant. If the ‘act’ is related to the
performance of the official duties of the accused public servant, then
sanction for his prosecution is necessary. For getting protection of
Section 197 of the Code of Criminal Procedure, the offence alleged to
have been committed by the accused public servant must have
something to do with the discharge of official duty. In other words, if
allegations against the accused public servant sought to be proved
against him relates to acts done or purporting to be done by him in
the execution of his duty, then bar of Section 197 of the Code of
Criminal Procedure applies at the threshold itself. If offence is
committed within the scope of official duty, then sanction is must.
Similarly, if the offence is within the scope of the official duty but in
excess of it, then also the protection of sanction under Section 197 of
the Code of Criminal Procedure can be claimed by a public servant. It
is well settled that if the act is done under the colour of office, in
purported exercise of official duty, then also for prosecuting the public
servant, sanction is must. If the act has been found to have been
committed by the public servant in discharge of his duty, then such
act is to be given liberal and wide construction, so far as its official
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nature is concerned. In the matter of D.T. Virupakshappa vs.
C.Subhash 22 , the Honourable Supreme Court (2015) 12 SCC 231
has held thus in paragraph 32 of its judgment :
“32 The true test as to whether a public servant was acting or
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 (K. Satwant Singh). 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
(Ganesh Chandra Jew). If the above tests are applied to the
facts of the present case, the police must get protection given
under Section 197 of the Code because the acts complained of
are so integrally connected with or attached to their office as to
be inseparable from it. It is not possible for us to come to a
conclusion that the protection granted under Section 197 of the
Code is used by the police personnel in this case as a cloak for
killing the deceased in cold blood. (Emphasis supplied) In our
view, the above guidelines squarely apply in the case of the
appellant herein. Going by the factual matrix, it is evident that
the whole allegation is on police excess in connection with the
investigation of a criminal case. The said offensive conduct is
reasonably connected with the performance of the official duty
of the appellant. Therefore, the learned Magistrate could not
have taken cognizance of the case without the previous
sanction of the State Government. The High Court missed this
crucial point in the impugned order.”
249. In the case in hand also, the twenty one accused were acting in
discharge of his official duty and the alleged offence was committed
while acting or purporting to act in discharge of their official duty by
the twenty one accused. The cognizance of the offence alleged
against him cannot be taken except with the previous sanction of the
Appropriate Authority.
27. Mr. Gautam Tiwari, the learned counsel for the appellants
contended that the testimony of a hostile witness cannot be
rejected altogether and the prosecution can rely on a part of the
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evidence tendered by such a witness. The vexed question as to
what is the worth of testimony of a witness, who did not support
the case of the party calling him, was settled by a Full Bench of
Calcutta in “Praphulla Kumar Sarkar”7 wherein Rankin, C.J.
expressed his opinion as under:
“In my opinion, the fact that a witness is dealt with under section
154 of the Evidence Act, even when under that section he is “cross-
examined” to credit, in no way warrants a direction to the jury that
they are bound in law to place no reliance on his evidence, or that
the party who called and cross-examined him can take no advantage
from any part of his evidence. There is, moreover, no rule of law that
if a jury thinks that a witness has been discredited on one point they
may not give credit to him on another. The rule of law, is that it is for
the jury to say.”
28. The testimony of a hostile witness is not rejected in entirety
and a portion of evidence of a hostile witness which is consistent
with the case of the prosecution or to the extent it probabilizes the
defence story can be relied upon by the parties. Under section 154
of the Evidence Act, the witness who does not support the party
calling him can be cross-examined with the leave of the Court. It
may so happen that the witness on account of lapse of time, loss of
memory or forgetfulness was not consistent or omitted or
completely resiled from his previous statement. The witness,
however, in his cross-examination may recollect his previous
statement and admit to have made such statement before the
police. But the difficulty arises in such cases where the witness
denies everything and takes a firm stand that he never made any
statement before the police in support of the prosecution case. The
Evidence Act does not provide any solution and rightly so, because
the statement of a witness before the police in course of the
investigation recorded either under section 161 or section 164 of
Cr. P.C. is not usable by the prosecution. There is no way to find
7 Praphulla Kumar Sarkar v. Emperor: 1931 SCC OnLine Cal. 7.
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out whether the witness was set up by the prosecution or his
statement as shown to have been recorded in course of the
investigation was ever given by him. This is also not possible to
ascertain whether such a witness was making a truthful statement
in the Court or he was lying. However, this shall not be a natural
consequence in such a case that the evidence of a witness who has
been characterized as a hostile witness is completely effaced. In
“Sat Paul Singh”8, the Hon’ble Supreme Court observed that in a
criminal prosecution when a witness is cross-examined and
contradicted with the leave of the Court his evidence is not washed
out of the record and a portion of his testimony can still be
believed. In “Anil Rai”9, the Hon’ble Supreme Court held that the
evidence of hostile evidence is not to be rejected in toto and the
portion of his testimony which is found to be credible and
corroborated by other evidence can be relied upon. The purpose of
cross-examination of its own witnesses by the prosecution was
elaborated upon in “Bhajju”10. The Hon’ble Supreme Court held that
it is admissible to use the examination-in-chief and cross-
examination of a witness by the prosecutor to the extent such
evidence supports the prosecution case. In “Bhajju”, the Hon’ble the
Supreme Court held as under:
“35. ….. Normally, when a witness deposes contrary to the stand of the
prosecution and his own statement recorded under Section 161 CrPC,
the prosecutor, with the permission of the court, can pray to the court for
declaring that witness hostile and for granting leave to cross-examine
the said witness. If such a permission is granted by the court then the
witness is subjected to cross-examination by the prosecutor as well as
an opportunity is provided to the defence to cross-examine such
witnesses, if he so desires. In other words, there is a limited
examination-in-chief, cross-examination by the prosecutor and cross-
8 Sat Paul Singh v. Delhi Administration: (1976) 1 SCC 727.
9 Anil Rai v. State of Bihar: (2001) 7 SCC 318.
10 Bhajju @ Karan Singh v. State of Madhya Pradesh: (2012) 4 SCC 327.
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examination by the counsel for the accused. It is admissible to use the
examination-in-chief as well as the cross-examination of the said
witness insofar as it supports the case of the prosecution.”
29. The statement of PW-10, PW-15, PW-30, PW-31 and PW-96
could have been used by the prosecution to a limited extent
provided these witnesses had stuck to their previous statements
made under section 164 of Cr.P.C. This is well settled that the
statements of a witness recorded under section 164 of Cr.P.C.
cannot be treated as substantive evidence. The statement of a
witness recorded in the course of investigation under section 161 or
under section 164 of Cr.P.C. can be used by the defence to
contradict a witness who makes a different statement while
deposing in the Court.
30. This is no ground to draw an inference that the trial was not
being conducted properly because 92 prosecution witnesses turned
hostile. These witnesses were cross-examined by the prosecution
and they flatly denied to have made any statement before the police
in support of the prosecution case. This is also not a significant fact
that the statement of a few witnesses such as PW-96, PW-205 and
PW-207 recorded under section 164 of Cr.P.C. were not shown to
them in their cross-examination. Even assuming for a moment that
these witnesses would have admitted their statements under
section 164 of Cr.P.C., they were liable to be held unreliable witness
in the face of the contradictory statements made by them in the
Court. The orders dated 21 st December 2018 passed in the
applications made under section 311 of Cr.P.C. were not
challenged. As the story in this case unfolds, it is difficult to infer
that such applications were bona-fide and, moreover, those
applications were opposed by the prosecution.
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31. The prosecution failed to establish that Sohrabuddin Shaikh
and Kausar Bi were abducted by the Gujarat and Rajasthan police
in the early hours of 23rd November 2005 from a luxury bus owned
by M/s. Sangita Travels from a place near Jahirabad. Tulsiram
Prajapati, who according to the prosecution, was allowed to go to
Bhilwara and later on taken into custody, did not make any
statement in the Court when he was produced in the Court. The
burden under section 106 of the Evidence Act shall not shift on the
respondent-accused persons to offer an explanation as to how and
when Sohrabuddin Shaikh and Kausar Bi parted company with
them. The reliance placed by Mr. Tiwari, the learned Counsel for
the appellant on “Balveer Singh”11; “Mir Mohammed Omar”12;
“Sucha Singh”13 and “Chaman”14 is clearly misplaced. In “Shambhu
Nath Mehra”15, the Hon’ble Supreme Court held that the burden of
proof in a criminal case is on the prosecution and it is not relieved
of that duty by virtue of section 106 of the Evidence Act. The
Hon’ble Supreme Court held as under:
“11. This lays down the general rule that in a criminal case the
burden of proof is on the prosecution and Section 106 is certainly
not intended to relieve it of that duty. On the contrary, it is
designed to meet certain exceptional cases in which it would be
impossible, or at any rate disproportionately difficult, for the
prosecution to establish facts which are “especially” within the
knowledge of the accused and which he could prove without
difficulty or inconvenience. The word “especially” stresses that. It
means facts that are pre-eminently or exceptionally within his
knowledge. If the section were to be interpreted otherwise, it
would lead to the very startling conclusion that in a murder case
the burden lies on the accused to prove that he did not commit the
murder because who could know better than he whether he did or
did not. It is evident that that cannot be the intention and the Privy
Council has twice refused to construe this section, as reproduced
in certain other Acts outside India, to mean that the burden lies on11 Balveer Singh v. State of Uttarakhand: (2023) 16 SCC 575.
12 State of West Bengal v. Mir Mohammed Omar & Ors.: (2000) 8 SCC 382.
13 Sucha Singh v. State of Punjab: (2001) 4 SCC 375.
14 Chaman & Anr. v. State of Uttarakhand: (2016) 12 SCC 76.
15 Shambhu Nath Mehra v. State of Ajmer: AIR 1956 SC 404.
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an accused person to show that he did not commit the crime for
which he is tried. These cases are Attygalle v. R. [Attygalle v. R.,
1936 SCC OnLine PC 20] and Seneviratne v. R. [Seneviratne v. R.,
1936 SCC OnLine PC 57]”.
32. Tulsiram Prajapati was accompanied by another inmate,
namely, Mohd. Azam. Whenever he was taken to Ahmedabad on
production warrant he expressed his apprehension to him that he
may be killed in fake encounter. He also informed Md. Azam that
Sohrabuddin Shaikh and Kausar Bi were killed in a fake encounter.
The prosecution produced a few witnesses who spoke before the
police in the course of the investigation that Tulsiram Prajapati had
disclosed to them that a conspiracy to kill Sohrabuddin Shaikh was
hatched and he also may be killed in a fake encounter case because
he was only eye witness. Tulsiram Prajapati had expressed the
apprehension of fake encounter by the police to kill him and made
written representations to the National Human Rights Commission,
District Collector at Udaipur and the Ahmedabad Court. According
to Mr.Tiwari, the learned Counsel for the appellant, the statements
made by PW-7, PW-9 and PW-11 should be treated as res gestae
and taken into consideration by the trial court in support of the
prosecution case. The doctrine of res gestae comes in to aid to the
prosecution to tie the loose ends in the case. Illustration (a) in
section 6 of the Evidence Act engrafts the principles of res gestae.
Res gestae evidence is admitted in evidence as an exception to the
rule of hearsay because it is thought that a statement made
naturally and spontaneously leaving no room for misunderstanding
and manipulation, would be true. In “Kamal Ahmed Mohammed
Vakil Ansari”16, the Hon’ble Supreme Court held that the test to
determine admissibility under the rule of “res gestae” is embodied
16 State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari & Ors.: (2013)
12 SCC 17.
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in words “are so connected with a fact in issue as to form a part of
the same transaction”. Mr. Tiwari submitted that the statements
made by Tulsiram Prajapati as to the death of Sohrabuddin Shaikh
and Kausar Bi to a few witnesses shall fall within the purview of
section 6 of the Evidence Act. Those witnesses, however, did not
support the prosecution case that Tulsiram Prajapati had made any
statement before them that Sohrabuddin Shaikh and Kausar Bi
were killed in a fake encounter. These witnesses were examined in
the Court about six years after the occurrence. This is not the case
of prosecution that these witnesses made statements about the
killing of Sohrabuddin Shaikh and Kausar Bi immediately after the
occurrence. The statements, if any, made by these witnesses to
Tulsiram Prajapati were not contemporaneously arising out of the
occurrence.
33. The prosecution failed to establish motive for staging a fake
encounter and this is a circumstance which shall weigh in favour of
the respondents. The Investigating Officer stated in the Court that
there was no material to show that any of the respondents received
political or monetary benefit. He further admitted that the Police
Officers facing trial were acting under the instructions of their
superiors and he had requested for the discharge of respondent
nos.10, 11 and 14 because he did not find any material against
them. The learned counsel for the appellants clearly misunderstood
and misinterpreted the scope of sections 6 and 32 of the Evidence
Act. The statements allegedly made by Tulsiram Prajapati to PW-
72, PW-96, PW-139, PW-174, PW-205, PW-207 and PW-208 that he
was providing information to the Gujarat and Rajasthan Police to
trace Sohrabuddin Shaikh and he feared that he would be
eliminated in a fake encounter cannot be treated as a dying
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declaration. Mr. Gautam Tiwari, the learned counsel for the
appellants contended that the time gap alone is not sufficient to
make statements made by Tulsiram Prajapati as irrelevant.
However, the prosecution witnesses did not confirm the story of
Tulsiram Prajapati making such statements before them. Such
statements even if made by Tulsiram Prajapati shall not fall under
the purview of section 32 of the Evidence Act as it does not relate to
the cause of death or exhibits circumstances leading to his death.
A mere statement that he would be killed in a fake encounter does
not exhibit any circumstance leading to the death of Tulsiram
Prajapati.
34. This is not a rule of law or rule of procedure that the
testimony of a witness having criminal antecedent should be
disbelieved. The Court, however, should be cautious to scrutinize
the testimony of a witness like PW-5, PW-75, PW-76, PW-205 and
PW-207 who have formidable criminal past. Sohrabuddin Shaikh
was a dreaded criminal wanted by Gujarat and Rajasthan Police in
several cases. He was projected as a master mind to eliminate
Hamid Lala in a fight of primacy. The appellant Rubabuddin Shaikh
had no personal knowledge of the events. He did not inform the
police about the presence of Tulsiram Prajapati with Sohrabuddin
Shaikh and Kausar Bi. Even after filing of the charge-sheet by the
Gujarat CID Police, he did not reveal that the third person with
Sohrabuddin Shaikh and Kausar Bi was Tulsiram Prajapati. In
cross-examination, he admitted that he made a statement before
the Inquiry Committee that Kalimuddin was the third person with
Sohrabuddin Shaikh and Kausar Bi. The appellant-Nayamuddin
Shaikh stated in the Court that Tulsiram Prajapati was not with
Sohrabuddin Shaikh and Kausar Bi in the Maruti van in which
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they proceeded from Indore to Hyderabad. He further stated that
Tulsiram Prajapati was not with them when Sohrabuddin Shaikh
and Kausar Bi started from Hyderabad to Sangli. He has also
admitted in his cross-examination that Sohrabuddin Shaikh and
Kausar Bi had no plans to visit Sangli when they had left from
Indore. He admitted that his statement made in the Court was
based on the information given to him by Kalimuddin, who was not
examined in the trial.
35. The case of the prosecution is based on circumstantial
evidence and there are several broken links in the chain of
circumstances. In a case based on circumstantial evidence, the law
requires that the circumstances relied upon by the prosecution
must be fully established and form a complete chain of
circumstances which point out only to the guilt of the accused
person and rule out any other hypothesis consistent with the
innocence of the accused persons. In “Hanumant”17, the Hon’ble
Supreme Court held as under :-
“12. It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of guilt
is to be drawn should in the first instance be fully established, and all the
facts so established should be consistent only with the hypothesis of the
guilt of the accused. Again, the circumstances should be of a conclusive
nature and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words, there must
be a chain of evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused and it
must be such as to show that within all human probability the act must
have been done by the accused. In spite of the forceful arguments
addressed to us by the learned Advocate General on behalf of the State we
have not been able to discover any such evidence either intrinsic within Ext.
P-3A or outside and we are constrained to observe that the courts below
have just fallen into the error against which warning was uttered by Baron
Alderson in the abovementioned case.”
36. Tulsiram Prajapati was an accused and the alleged
17 Hanumant v. State of M. P.: (1952) 2 SCC 71.
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information supplied by him to the prosecution witnesses does not
establish the conspiracy theory. The story of three persons
travelling together in a luxury bus and one of whom a “burka-clad
lady” does not establish that Sohrabuddin Shaikh, Kausar Bi and
Tulsiram Prajapati were travelling together in the night of 22 nd
January 2005. No prosecution witness came forward to say that he
knew Sohrabuddin Shaikh or Kausar Bi or Tulsiram Prajapati and
he had seen them travelling together from Hyderabad to Sangli.
Similarly, no witness claimed or identified Narainsinh Harisinh
Dabhi, Balkrishna Rajendraprasad Chaubey and Ajaykumar
Bhagwan Das Parmar in the dock and said that they were the
persons who had abducted Sohrabuddin Shaikh, Kausar Bi and
Tulsiram Prajapati in the night of 22 nd January 2005 near
Zahirabad. Simply put, the prosecution did not produce a single
witness who deposed in the Court that they had prior
acquaintances with the respondent nos.2 to 23 and they identified
them in the Court as the accused persons involved in the killing of
Sohrabuddin Shaikh, Kausar Bi and Tulsiram Prajapati.
37. The offence of criminal conspiracy emanates from an
agreement to commit an offence. However, mere intention of two or
more persons to commit a crime does not constitute a criminal
conspiracy. It is the agreement of two or more persons to do an
unlawful act by unlawful means and the Court must inquire
whether two persons were independently pursuing the same act or
they came together to pursue the same unlawful object. It is also
necessary to see whether some kind of physical manifestation of the
agreement is established. Some evidence regarding mere
transmission of thought or sharing of a desire to commit an
unlawful act is not sufficient. It is stated in the “Halsbury Laws of
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England” [4th edition, Vol. 11, paragraph no.58] that the essence of
the offence of conspiracy is the fact of combination by agreement;
the agreement may be express or implied, or in part express or in
part implied. In “Saju”18, the Hon’ble Supreme Court held that the
onus lies on the prosecution to prove affirmatively that the accused
was directly and personally connected with the acts or omissions in
commission of a crime. Section 10 of the Evidence Act provides that
the evidence of action or statement made by one of the accused
persons can be used against the other if there is a reasonable
ground to believe that two or more persons had conspired for
committing an offence. In “Sardar Shardul Singh Caveeshar”19, the
Hon’ble Supreme Court held that there should be a prima-facie
evidence that a person was a party to the conspiracy before his acts
can be used against the co-conspirator. In “Mirza Akbar”20, the
Privy Council rendered its opinion that section 10 of the Evidence
Act must be construed in accordance with the principle that the
thing done, written or spoken, was something done in carrying out
the conspiracy and was receivable as a step in the proof of the
conspiracy. The evidence receivable under section 10 must be in
reference to the common intention and the expressions used in
section 10 are not capable of being widely construed. In “Param
Hans Yadav”21, the Hon’ble Supreme Court held that it is difficult to
support the charge of conspiracy with direct evidence but a clear
link has to be established and the chain of circumstances must be
shown complete, if the prosecution relies upon circumstantial
evidence. We do not see any ground to hold that the prosecution
18 Saju v. State of Kerala: (2001) 1 SCC 378.
19 Sardar Shardul Singh Caveeshar v. State of Maharashtra: (1963) SCC OnLine
SC 26.
20 Mirza Akbar v. The King Emperor: 1940 SCC OnLine PC 27.
21 Param Hans Yadav & Anr. v. State of Bihar & Ors.: (1987) 2 SCC 197.
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has established by circumstantial evidence the complicity of the
respondent nos.2 to 23 in the conspiracy to murder Sohrabuddin
Shaikh, Kausar Bi and Tulsiram Prajapati by projecting a case of
fake encounter.
38. The discharge of 16 accused persons against whom the
prosecution relied on the same set of evidence cannot be
overlooked. That decision of the trial Court has now become final.
The very foundation of the prosecution case is demolished and the
conspiracy theory must be held not proved. Mr. Amit Desai, the
learned senior counsel submitted that from the very beginning the
prosecution theory aligned with a particular narrative with strong
political overtones and attempted to foist liability on a particular
political person and a select group of police officers. The
investigation was done by a different Investigating Agency which is
said to be highly skilled and equipped with scientific investigation
and the trial was conducted in a State where the ruling party was
different.
39. At no point of time it was stated before the trial Court that it
was an unfair trial. The investigation in the matter was transferred
to the CBI presumably to ensure fair investigation. A senior Public
Prosecutor was appointed to ensure that the prosecution case does
not falter and he rendered his fullest duty. The trial of this case was
transferred from the State of Gujarat under the direction of the
Hon’ble Supreme Court in Transfer Petition (Criminal) No. 44 of
2011 titled “CBI v. Dahyaji Gobarji Vanzara & Ors.“. The Hon’ble
Supreme Court observed that the decision to relocate the
proceedings is a prophylactic measure, specifically intended to
insulate the trial court from extraneous pressures and undue stress
that may arise from the high-profile nature of the case. The Court
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further observed that such a transfer is essential to uphold the
sanctity of the judicial process and to dispel any potential
misgivings or perceptions of bias in the public mind, thereby
ensuring that the principles of a fair and impartial trial are not only
followed but are seen to be followed.
40. The foundation of the prosecution story is not established at
all inasmuch as the prosecution failed to establish the abduction of
Sohrabuddin Shaikh, Kausar Bi and Tulsiram Prajapati, their
illegal detention at Disha Farmhouse and Arham Farmhouse and
the alleged fake encounter. There is no evidence to connect the
weapon which is said to be used in the crime with the bullet
recovered from the thigh of Sohrabuddin Shaikh. No record was
produced to establish that the said revolver was issued to a
particular accused person. The cartridge recovered from the thigh of
Sohrabuddin Shaikh is said to have been fired from one of the five
revolvers. The Panch witnesses stated in the Court that they put
their signatures as asked by the police officer. There is no direct
evidence of encounter of Sohrabuddin Shaikh or Kausar Bi or
Tulsiram Prajapati. There is also no evidence to establish the
presence of the accused persons at the place of occurrence and at
the time of occurrence. There is no evidence that the respondent
nos. 2 to 23 arrived at Hyderabad and stayed in the Officer’s Mess
with Rajkumar Pandian. The register in the Mess which could have
indicated bookings for the said accused was found tampered and
Rajkumar Pandian has been discharged from the criminal liability.
At best, it could be said on the basis of the testimony of the bus
passengers and two drivers that the victims had gone to or coming
from Hyderabad. The learned counsel for the appellants relied on
the testimony of 77 witnesses out of whom 39 persons are hostile
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witness. The appellants themselves are not the eye witnesses and
their testimony does not travel beyond hear-say evidence. Eight
prosecution witnesses spoke about the apprehension expressed by
Tulsimram Prajapati that Sohrabuddin Shaikh might be killed but
three persons out of them did not support the prosecution version.
The remaining 38 prosecution witnesses comprised of the
appellants, their friends, two doctors and panchas who do not
provide a foundation for the prosecution to establish the complicity
of the respondents in the crime. The hostile witnesses were put to
intense cross-examination but nothing material could be elicited by
the prosecution from them to support its case.
41. A judgment of acquittal cannot be interfered in a casual or
cavalier manner and it is not permissible in law to overturn the
judgment only on the ground that another view is possible. The
High Court must take a holistic view and not a myopic view of re-
appreciation of the evidence and render its judgment keeping in
mind the cardinal principle of criminal jurisprudence that there is
presumption of innocence in favor of the accused. Such
presumption continues at all stages of the trial and gets concretized
when the trial ends in the acquittal. The judgment of acquittal
strengthens the presumption of innocence of the accused and a
higher threshold is required to rebut the same in an appeal against
acquittal. In “D. Stephens”22, the Hon’ble Supreme Court
emphasized that the power of the Court against an order of
acquittal should be exercised only in exceptional cases where the
interest of public justice requires interference for the correction of
manifest illegality, or to prevent gross miscarriage of justice. In
22. D. Stephens v. Nosibolla : 1951 SCC 184
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“Mallappa”23, the Hon’ble Supreme Court observed that the first
thing that has to be seen in an appeal against acquittal is whether
the trial Court thoroughly appreciated the evidence on record and
gave its due consideration to all material pieces of the evidence.
Secondly, it should be examined whether the findings of the trial
Court are illegal or affected by such error of law or fact that
requires reversal of the judgment. But the judgment of acquittal
cannot be reversed on a mere difference of opinion and where it is
found that the view taken by the trial Court is a fairly possible view.
The judgment of acquittal cannot be set aside if the appreciation of
evidence by the trial Court does not suffer from any flaw and the
view taken by it was a reasonable view. In “Ramesh”24, the Hon’ble
Supreme Court observed that the High Court is required to deal
with various grounds on which the judgment of acquittal is based
and to dispel those grounds by cogent reasons. The Hon’ble
Supreme Court further held that even if it can be said in a
particular case that another view is possible that itself shall not be
sound ground to set aside the judgment of acquittal. In “Mallappa”,
the Hon’ble Supreme Court elaborated upon the position of law on
the scope of intervention with a judgment of acquittal observing as
under: –
“25. We may firstly discuss the position of law regarding the scope of
intervention in a criminal appeal. For, that is the foundation of this
challenge. It is the cardinal principle of criminal jurisprudence that there
is a presumption of innocence in favour of the accused, unless proven
guilty. The presumption continues at all stages of the trial and finally
culminates into a fact when the case ends in acquittal. The presumption
of innocence gets concretised when the case ends in acquittal. It is so
because once the trial court, on appreciation of the evidence on record,
finds that the accused was not guilty, the presumption gets
strengthened and a higher threshold is expected to rebut the same in
23 Mallappa & Ors. v. State of Karnataka: (2024) 3 SC 544.
24 Ramesh & Anr. v. State of Karnataka: (2024) 9 SCC 169.
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appeal.
26. No doubt, an order of acquittal is open to appeal and there is no
quarrel about that. It is also beyond doubt that in the exercise of
appellate powers, there is no inhibition on the High Court to
reappreciate or re-visit the evidence on record. However, the power of
the High Court to reappreciate the evidence is a qualified power,
especially when the order under challenge is of acquittal. The first and
foremost question to be asked is whether the trial court thoroughly
appreciated the evidence on record and gave due consideration to all
material pieces of evidence. The second point for consideration is
whether the finding of the trial court is illegal or affected by an error of
law or fact. If not, the third consideration is whether the view taken by
the trial court is a fairly possible view. A decision of acquittal is not
meant to be reversed on a mere difference of opinion. What is required
is an illegality or perversity.
27. It may be noted that the possibility of two views in a criminal case
is not an extraordinary phenomenon. The “two-views theory” has been
judicially recognised by the courts and it comes into play when the
appreciation of evidence results into two equally plausible views.
However, the controversy is to be resolved in favour of the accused. For,
the very existence of an equally plausible view in favour of innocence of
the accused is in itself a reasonable doubt in the case of the
prosecution. Moreover, it reinforces the presumption of innocence. And
therefore, when two views are possible, following the one in favour of
innocence of the accused is the safest course of action. Furthermore, it
is also settled that if the view of the trial court, in a case of acquittal, is
a plausible view, it is not open for the High Court to convict the accused
by reappreciating the evidence. If such a course is permissible, it would
make it practically impossible to settle the rights and liabilities in the
eye of the law.”
42. The trial Court applied the correct and settled legal principles
in law. Its conclusions are not contrary to the evidence and
documents on record. This also cannot be held that the judgment
of the trial Court is manifestly unjust and unreasonable based on
erroneous law and facts. The findings recorded by the trial Court
are not perverse. The judgment of acquittal by the trial Court on
21st December 2018 is rendered on consideration of the relevant
materials on record keeping in mind the fundamental principles of
criminal jurisprudence that the prosecution must establish its case
beyond reasonable doubt. We find no ground to interfere with the
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judgment rendered by the Special Judge on 21 st December 2018 in
Sessions Case Nos.177 of 2013, 178 of 2013, 577 of 2013 and 312
of 2014.
43. While the judgment in the Acquittal Appeals was under
Circulation, an application for impleadment vide Interim
Application No.1172 of 2026 was filed by Mr. Maniar Kalpesh
Kumar. Through this Interim Application, the applicant seeks to
challenge the discharge of A-16 Amit Anilchandra Shah by an order
dated 30th December 2014 passed in Discharge Application
(Exhibit-232) filed by A-16. This Interim Application has been
opposed by the CBI which has filed its written submissions through
the Additional Solicitor General of India. The CBI had brought on
record a copy of the order dated 30 th December 2014 passed by the
Special Judge in the aforementioned Discharge Application, a copy
of the order dated 23rd November 2015 passed in Criminal Revision
Application (Stamp) No. 413 of 2015 which was filed by
Rubabuddin Shaikh and a copy of the order dated 11 th March 2016
in Criminal Application No.1248 of 2015 which was filed by Harsh
Mander who is a resident of Vasant Kunj, New Delhi. The order
passed in Criminal Application No.1248 of 2015 was challenged
before the Supreme Court in Special Leave Petition (Cri) No.5000 of
2016 which came to be dismissed on 1 st August 2016. These
materials are suppressed by Mr. Maniar Kalpesh Kumar who is
aged about 53 years, engaged in business and a resident of
Goregaon (East), Mumbai. The applicant does not state how he
gathered information about the judgment in these cases having
been reserved. The applicant is not a witness in Crime No.5 of 2005
which was re-registered by the CBI. He does not indicate how he is
concerned with the pending Criminal Acquittal Appeals and why he49
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registered. We have, therefore, no hesitation to observe that
Interim Application No.1172 of 2026 has been filed with an oblique
motive and at the instance of some political adversary of A-16.
44. Criminal Appeal Nos.641 and 656 of 2019 are dismissed.
45. Interim Application No.1172 of 2026 is disposed of.
[GAUTAM A. ANKHAD J.] [CHIEF JUSTICE] Digitally signed by PRAVIN PRAVIN DASHARATH DASHARATH PANDIT PANDIT Date: 2026.05.07 22:35:06 +0530 50 ::: Uploaded on - 07/05/2026 ::: Downloaded on - 08/05/2026 15:08:02 :::
