Exonerating all the accused in the controversial Sohrabuddin Sheikh encounter killing case, the special CBI court justified the policemen’s conduct by underlining that they would have been charged with “dereliction of duty” had they not acted against Sheikh and others.
“If the accused persons would not have acted against the individuals about whom there were inputs of they being involved in serious criminal activities, the discharged accused would have been charged for dereliction of duty,” said CBI judge SJ Sharma in his judgment.
Acquitting all the accused in the alleged fake encounter killings of Sohrabuddin Sheikh, his wife Kausar Bi and his aide Tulsiram Prajapa, the judge said 21 accused policemen “appeared innocent,” and have rather been implicated by the CBI in its zeal “to justify the script to implicate political leaders.”
Sharma further pointed out that all the 21 policemen were to be acquitted not only because the prosecution had failed to establish its case but also on the sole ground that there was no proper sanction obtained to try them as accused.
The court said that the police officials, who were found doing the act and deed in discharge of their official duty and under the orders of their superiors, were entitled for the benefit under Section 197 of Code of Criminal Procedure, which contemplates prior sanction from the competent authority before initiating criminal prosecution of public servants.
The judge said that the facts on record showed that it was incumbent on the prosecution to obtain sanction prior to prosecuting 21 policemen from Gujarat and Rajasthan even if it were to be assumed that they exceeded their authority.
“It was necessary for the investigation agency to obtain sanction of the competent authority before filing chargesheet. In absence of the sanction the accused are entitled for acquittal,” held Sharma in his 358-page judgment. The judgment was delivered on December 21 but its full text was made available only Monday.
The judge further noted that out of 210 witnesses, more than 90 turned hostile and several others failed to corroborate the CBI’s case against the 22 accused, including 21 policemen.
Judge Sharma highlighted that after the two persons cited as eye-witnesses by the investigators had turned hostile, the entire case had to depend on circumstantial evidence, casting a more rigorous duty on the prosecution to prove its case.
“It being so (case based only on circumstances), the 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,” said the judge.
The court, after examining the evidence and the witnesses, held that the CBI investigators as well as the CID Crime failed to prove any “larger conspiracy” or “politician-police” nexus in the encounter killings.
According to Judge Sharma, there was nothing to establish that Tulsiram was travelling with Sheikh and Kausarbi in the same bus in November 2005 and that he was killed because he was a witness to the crime. The judge also discarded that Tulsiram’s killing was in any manner connected with the encounter of the other two.
Concluding that all the accused deserved acquittal, Judge Sharma expressed regret that a serious crime was going unpunished, but, added, “the law does not permit the Court to punish the accused on the basis of moral conviction or suspicion alone.”
He reproached the CBI for carrying out a pre-mediated and faulty investigation, saying the agency was more concerned in establishing a particular preconceived and premeditated theory rather than finding out the truth.
“I have no hesitation in recording that the premier investigating agency like the CBI had before it a premeditated theory and a script intended to any how implicate political leaders and the agency thereafter merely did what was required to reach that goal rather than conducting an investigation in accordance with law,” said Judge Sharma.
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