JUDGMENT

Per, Shree Chandrashekhar, CJ.:

The judgment of acquittal rendered on 21st 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 14th 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 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 27th 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 8th 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 10th September 2018. The charges against three accused persons were dropped by the orders passed on 25th 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. 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