ThePrint takes a look at how the prosecution’s case crumbled in the face of several witnesses turning hostile.
Mumbai/Ahmedabad: Ninety-two of the 210 witnesses produced turned hostile, one complainant changed his statement, one never turned up in court despite multiple summons, and two witnesses requested to be re-examined a day before the judgment, claiming they had been under pressure earlier.
This, in a nutshell, is the story one of India’s most politically-sensitive criminal trials in recent times – the alleged ‘fake encounters’ of Sohrabuddin Sheikh and his associate Tulsiram Prajapati, and the killing of Sheikh’s wife Kausar Bi.
It ended Friday with a special CBI court in Mumbai acquitting all 22 suspects who were accused of committing the crimes in 2005 and 2006.
Sixteen other suspects, including senior IPS officers and politicians, among them now BJP president Amit Shah, had been discharged by the court earlier.
The larger story, however, is what happened to the high-profile case the premier investigation agency was so confident of nailing all along.
No evidence for CBI’s theory
In 2013, three years after it took over the case from the Gujarat CID at the Supreme Court’s behest, the CBI, armed with a 22,000-page chargesheet, set out to prove that Amit Shah, when he was minister of state for home in Gujarat, conspired with top police officers from his state, neighbouring Rajasthan and undivided Andhra Pradesh to kill Sheikh, Kausar Bi and Prajapati.
The chargesheet also named Gulab Chand Kataria, the then home minister of Rajasthan.
The CBI’s theory was that the accused got Prajapati killed in a fake encounter as he was a material witness in the alleged abduction of Sheikh and Kausar Bi, and their subsequent killing. The CBI said while the accused staged Sheikh’s killing as an ‘encounter’, his wife disappeared inexplicably as she was murdered.
Despite being ordered by the Supreme Court to ensure that the whole trial take place under a single judge, the case saw four judges — J.T. Utpat, who was transferred, B.H. Loya, who died in December 2014 in allegedly controversial circumstances, M.B. Gosavi, who presided over the case until being transferred in February 2017, and S.J. Sharma, who delivered the verdict.
Shah and 15 others were discharged by the trial court between 2014 and 2016, mostly for two reasons — lack of prosecutable evidence, and lack of prior sanction to prosecute public servants.
Why witnesses turned hostile
During the course of the trial, ThePrint spoke to 11 witnesses who turned hostile. While none of them agreed speak on record, all of them said that it was difficult for them to recollect crucial details of the case as it had been more than 12 years since the incident. This, they said, was the reason for the inconsistencies in their statements.
ThePrint spoke to several witnesses listed by the CBI and found that there was a pattern to them turning hostile.
The CBI recorded the statements of 710 witnesses in the multiple chargesheets it filed between 2010 and 2013. According to the law, statements made before the police are not admissible as evidence in court, so, after charges were framed against the accused, the trial court began recording statements of witnesses.
Twenty-five witnesses were supposed to prove the CBI’s theory that the Gujarat ATS abducted Sheikh from Hyderabad, brought him to Gujarat, and killed him in custody.
According to the chargesheet, Sheikh, Kausar Bi and Prajapati were travelling from Hyderabad to Ahmedabad by bus, and were accosted and forcibly picked up somewhere near Sangli, Maharashtra, by Rajkumar Pandian, SP, Anti-Terrorism Squad, Dinesh Kumar, SP of Udaipur (Rajasthan), and some other police personnel, under the direct supervision of D.G. Vanzara, the DIG of the ATS.
Twenty-five witnesses were to testify that this sequence of events indeed took place but only two police witnesses stood their ground while 23 were declared hostile.
– Sharad Krushnaji Apte, his wife Anjali Apte and son Amit Sharad Apte, residents of Sangli and passengers on the bus in which Sheikh, Kausar Bi and Prajapati were travelling, had told the CBI that the ATS walked in precisely to seats occupied by the deceased, identified them and asked them to step outside. They also claimed that after a brief altercation, the police took Sheikh and Kausar Bi with them, since she refused to let her husband be taken away. While only Sharad and Amit were called by the trial court to testify, they told the judge that they had slept throughout the bus journey, did not recollect any significant incident en route, and failed to identify the bus details.
– Three men from Hyderabad had corroborated the Apte family’s testimony — bus driver Misbah Hyder, cleaner Gaziuddin Chabuksawar and bus owner Mohammad Ahmed. They changed their testimony and the prosecution declared them hostile.
– Police witnesses Nathuba Jadeja, a constable with the Gujarat ATS who had earlier said he was driving the SUV that stopped the bus, and Gurudayal Choudhary, the Gujarat ATS driver ferrying SP Rajkumar Pandian, both claimed that they never travelled outside Gujarat for work.
– According to the CBI, Sheikh and Kausar Bi were then brought to Disha Farms, a farmhouse on the outskirts of Ahmedabad owned by Girishbhai Patel. Girishbhai, his nephew Naresh Patel and an employee Dineshbhai Patel, had all said that they handed over the keys of the farmhouse, where a “burkha-clad woman and a man” were kept, to the police. All three later denied knowing any of the policemen involved in the case and claimed in court that the farmhouse was not given for their use.
Same witness statements rejected earlier
Another common thread in the witnesses turning hostile was that the same testimonies were severely attacked by trial judge Gosavi while discharging several suspects. Three of the hostile witnesses ThePrint spoke to referred to orders in which their testimonies were held “contradictory” and “not reliable”.
In Gosavi’s 100-page order discharging Amit Shah, he tore into the testimony of Dasarath Patel and Raman Patel — two Ahmedabad-based builders. The judge noted that “it is somewhat opposed to common sense” that the testimony was the same on multiple occasions but also “contradictory” in several instances.
Many of those discharged had high-profile lawyers who attacked specific witness testimonies against them. For example, senior advocate Mahesh Jethmalani, appearing for senior police officer N.K. Amin, said that Nathuba Jadeja, the sole witness against Amin, had not turned hostile but “was telling the truth”.
Jadeja made the same statements in 2005 to the Gujarat CID, in 2010 to the CBI and in 2015 on oath to the trial court judge, but retracted his statement completely in 2018.
Witnesses also had to bear their own travel expenses and manage their stay in Mumbai, although the state provided for “diet money” — a basic reimbursement of expenses that was far less than minimum wages.
In 2015, the Maharashtra government doubled the diet money to induce more witnesses. However, the allowance for top witnesses was still only Rs 200 (earlier Rs 100), while for others, it became Rs 120.
In most instances, the court hearing spilled over for more than a day. In March, when accused sub-inspector Balkrishnna Choubey or his lawyer did not show up in court, the testimonies of two witnesses against him could not be completed.
One witness — a constable — had travelled by train, while the other — an IPS officer — had taken a flight to Mumbai. When the court recalled the witnesses to give their testimonies on 26 March, it directed Choubey to bear their travel expenses.
The judge had also issued non-bailable warrants against Choubey, cancelling his bail, but the CBI returned the warrants, saying the accused had changed his address.
The CBI did not offer protection to a single witness. Additional Solicitor General Anil Singh said no protection had been offered since “no witness has asked for it”.
However, one key witness told ThePrint, on the condition of anonymity, that having police protection was akin to “being under 24×7 surveillance”.
“Though CBI is the investigating agency, our protection in Ahmedabad would involve Gujarat Police. When you are testifying against its top officers, it is detrimental to ask for protection,” the witness said.
An officer who had once been part of the investigation team added: “Far from offering protection, the CBI was finding it difficult to keep track of change of addresses of a large number of witnesses and accused in the case to send summons and communicate.”