BEFORE THE HONBLE SESSIONS COURT AT MUMBAI

IN

SESSION CASE NOS.177 OF 2013 @ 178 OF 2013

@ 577 OF 2013 @ 312 OF2014.

BALKRISHAN CHAUBEY Applicant (A-6)

Versus

C.B.I. SCB

Belapur Mumbai Respondents

NOTES OF WRITTEN SUBMISSION

ON APPLICATION UNDER SECTION
227 OF THE CODE OF CRIMINAL
PROCEDURE, 1973

MAY IT PLEASE YOUR HONOUR:

It is most respectfully submitted as under:

1) The present applicant is arrayed as an

accused No.6 and being arrested and tried in
connection with offence being C. R. I 05/2005
originally with A.T.S. Police Station, Ahmadabad in
respect of the encounter of one known criminal
Sohrabuddin Shaikh which took place on/or about
26.11.2005. The investigating authority submitted
their final report before the concerned Metropolitan
Magistrate as being abetted summary and
accordingly the competent court accepted the
report.

2) Further the brother of the deceased

suspected the said encounter and upon his
initiation the further investigation was undertaken
by the state C.I.D (Gujarat) under the provision of
section 173 (8) of Cr. P. C. and in pursuant thereof,
all together arrested with thirteen persons alleging
of non genuine encounter and submitted their
1
report being a two distinct charge sheets dated
16.07.2007 & 10.12.2007 respectively.

3) Further the brother of the deceased move the

Honorable Apex Court for the transfer of
investigation and pursuant thereof, investigation
came to be transfer to the C.B.I and in furtherance
thereof, C.B.I.S.C.B. Mumbai registered an
administrative F.I.R. being R.C.B. /S/2010/004
dated 1.02.2010 and undertaken the further
investigation u/s 173 (8) of Cr.P.C. and accordingly,
on 23.07.2010 filed the first final report being
charge sheet and subsequently thereafter on
22.10.2010 again a supplementary charge sheet
was filed. Thereafter C.B.I. also filed further third
charge sheet. The particular of event of the progress
of the investigation in Sohabudin Case in
Chronological order:-

Sr. Dates Particulars

No.
1. 26.11.2005 5.00 a.m. encounter of Sohrabuddin
took place .
2. 26.11.2005 C.R. No. 5 of 2005 registered at the
ATS Police Station, Ahmedabad.
3. 20.06.2006 Sohrabuddins brother made a
representation before the Honble
Supreme Court of India alleging the
encounter was fake pursuance to
which the D.G.P., State of Gujarat
was ordered to hold a preliminary
enquiry that in turn ordered an
enquiry to the said allegation and
handed over the enquiry to the C.I.D.
(Crime and Railways). This enquiry
was numbered as 66 of 2006.
4. 24.04.2007 Three I.P.S. Officers came to be
arrested in the matter.
5. 22.06.2007 Applicant surrendered himself before
the Learned Chief Metropolitan
Magistrate, Ahmadabad. Thereafter,
he came to be arrested.

2
Sr. Dates Particulars
No.
6. 16.07.2007 Main charge sheet came to be filed
by CID Gujarat before the Learned
Additional Chief Metropolitan
Magistrate, Ahmadabad and the
matter was carried to City Sessions
Court, Ahmadabad being No. 256 of
2007.
7. 10.12.2007 Additional supplementary charge
sheet was filed by the C.I.D. Crime
Branch, Ahmadabad.
8. 05.09.2008 Sessions Court, Ahmadabad allowed
the application preferred by the
brother of Sohrabuddin and directed
the investigating officer to further
investigate the case and to submit
the report within 90 days.
9. 30.09.2008 Vide an order passed in Writ Petition
No. 6 of 2007; the Honble Supreme
Court of India stayed further
proceedings pending before the
Sessions Court, Ahmadabad.
10. 08.12.2008 C.I.D. Crime Branch, Gujarat filed
an investigation report in a sealed
cover to the Honble Court, but the
same was not accepted by the
Honble Court as the Honble
Supreme Courts stay order was in
effect.
11. 12.01.2010 The investigation was transferred
from Gujarat Police to the C.B.I. by
the Honble Supreme Court of India.
12. 01.02.2010 Fresh F.I.R. was registered by the
C.B.I.
13. 23.07.2010 C.B.I. Submitted the charge sheet-I
14. 22/10/2010 C.B.I. submitted the charge sheet-II
15. 25.11.2010 C.B.I. submitted final report to the
Honble Court.
16. 13.01.2011 C.B.I. filed the Transfer Petition
before the Honble Supreme Court of
India.
17. 27.09.2012 The Honble Supreme Court of India
transferred the matter from Gujarat
Sessions Court to Mumbai.
18. 14.05.2013 Final charge sheet submitted by CBI
in Sohrabuddin Case.

3
4. The applicant prefer the presented
application for his discharge on the backdrop that
upon considering the whole charge sheet as it is
even though there is no sufficient material or
evidence to proceed further on following amongst
the other grounds which are set out herein under:

A. Applicant has been falsely implicated in

the aforesaid offence and there is no
incriminating or discriminating evidence to
proceed with the trial.The applicant is
absolutely innocent and he has acted
absolutely in discharge of his official duty and
perform his duty an obligations with utmost
responsibility and devotion which is now been
termed and been called as the fake encounter.

B. Even upon considering the whole charge

sheet there is no material or evidence on
record to show that the applicant is in any
manner part of criminal conspiracy and he has
acted in furtherance of the criminal
conspiracy.

C. Further, the most basic and pivotal part

which require being consider and there is no
apparently any reason for the present
applicant to involve in any as such alleged
illegal activity.

D. There is no mens rea for committing any

such alleged offence for the present applicant.

E. It is important to point out at this

juncture that this whole case is consist of

4
three set of Investigations which is set out
herein under:

i. The Investigation done By the A.T.S

Ahmadabad in which Investigation Officer
Filed A Summary along with the
Abated Summary which claims that the
encounter is genuine & none of the
scientific evidence are still disputed and
is the only Document which is judicially
scrutinized & accepted.

ii. The Investigation done by CID Crime

Gujarat State claiming the encounter
being fake. This Investigation was heavily
criticized by Honble Apex court in his
judgment dated 12.10.2010 in Writ
Petition (CRL) No. 6 of 2007 while
Transferring the case to CBI. In this
judgment the Honble Apex court
observed that

55. Keeping this discussion in

mind, that is to say, in an
appropriate case, the court is
empowered to hand over the
investigation to an
independent agency like the
CBI even when the charge
sheet has been submitted, we
now deal with the facts of this
case whether such
investigation should be
transferred to the CBI

5
Authorities or any other
independent agency in spite of
the fact that the charge sheet
has been submitted in court.
On this ground, we have
carefully examined eight Action
Taken Reports submitted by
the State Police Authorities
before us and also the various
materials produced and the
submissions of the learned
counsel for both the parties.
From a careful examination
of the materials on record
including the eight Action
Taken Reports submitted by
the State Police Authorities
and considering the
respective submissions of
the learned senior counsel
for the parties, we are of the
view that there are large
and various discrepancies in
such reports and the
investigation conducted by
the police authorities of the
State of Gujarat and also
the charge sheet filed by the
State Investigating Agency
cannot be said to have run
in a proper direction. It
appears from the charge sheet
itself that it does not reveal the
identity of police personnel of
Andhra Pradesh even when it

6
states that Soharabbuddin and
two others were picked up by
Gujarat Police Personnel,
accompanied by seven
personnel of Hyderabad Police.
It also appears from the
Charge sheet that Kausarbi
was taken into one of the two
Tata Sumo Jeeps in which
these police personnel
accompanied the accused.
They were not even among the
people who were listed as
accused. Mr.Gopal
Subramanium, Addl. Solicitor
General for India (as he then
was) was justified in making
the comment that an honest
investigating agency cannot
plead their inability to identify
seven personnel of the Police
Force of the State.

59. So far as the call records

are concerned, it would be
evident from the same that
they had not been analyzed
properly, particularly the call
data relating to three senior
police officers either in relation
to Sohrabbuddin's case or in
Prajapati's case. It also
appears from the charge
sheet as well as from the
eight Action Taken Reports

7
that the motive, which is
very important in the
investigation reports was
not properly investigated
into as to the reasons of
their killing. The motive of
conspiracy cannot be merely
fame and name. No
justification can be found for
the investigating officer Ms.
Johri walking out the
investigation with respect to
Tulsiram Prajapati's death
without even informing this
Court. That apart, the charge
sheet was filed in the court of
Chief Metropolitan Magistrate,
Ahmedabad against 13 persons
who were charge sheeted for
criminal conspiracy,
abduction, wrongful
confinement and murder etc.
13 were arrested. One of the 13
accused whose names had
been listed is one
Mr.N.V.Chauhan, PSI who in
the previous Action Taken
Report, was mentioned as yet
to be arrested. However, in the
5th Action Taken Report, the
name of Mr.Jadeja, driver
(Police Constable) who was also
supposed to be arrested as per
previous Action Taken Report
was not appearing among the

8
names of the accused who
were arrested. Evidently, he
had not been charge sheeted.
From the above factual
discrepancies appearing in
eight Action Taken Reports and
from the charge sheet, we,
therefore, feel that the police
authorities of the State of
Gujarat had failed to carry out
a fair and impartial
investigation as we initially
wanted them to do. It cannot
be questioned that the offences
the high police officials have
committed was of grave nature
which needs to be strictly dealt
with. We have observed that
from the record, it was found
that Mr.V.L.Solanki, an
investigating officer, was
proceeding in the right
direction, but Ms.Johri had not
been carrying out the
investigation in the right
manner, in view of our
discussions made herein
above. It appears that Ms.Johri
had not made any reference to
the second report of Solanki,
and that though his first report
was attached with one of her
reports, the same was not
forwarded to this Court.
Therefore, we are of the view

9
that her mentioning the
criminal background of
Sohrabbuddin and the
discussion among the accused
officers concerning
Sohrabbuddin was meant to
obfuscate the enquiry.

60. In our view , the

investigation of crime was
carried out de hors the
mandate contained in the
Cr.P.C. and particularly
Chapter XII containing
Section 154-176 of the Code.
There had been no fresh FIR
filed despite primary
investigation No. 66 to make
the same the basis for
investigation and trial. In the
case of Sheikh Hasib alias
Tabarak v. The State of Bihar
[(1972) 4 SCC 773], it was held
that the object of FIR, from the
point of view of the
investigating authorities, is to
obtain information of the
alleged criminal activity so as
to take suitable steps for
tracing and bringing to book
the guilty party. Admittedly,
the FIR dated 16th of
November, 2005 which was
filed following the alleged
encounter was a fabricated one

10
and, therefore, it could not
have formed the basis of the
real investigation to find the
truth. Ms. Geeta Johri herself
in her report dated 7th of
December, 2006 had conceded
that ATS was not a regular
police station in which FIR
should have been filed. It was
further submitted that the
investigation and charge
sheet were silent on the
motive behind the `killings'.
The only motive stated is
fame. In the cases of Babu
Lodhi v. State of UP (1987) 2
SCC 352 and Prem Kumar
and Anr. v. State of Bihar,
(1995) 3 SCC 228, it was
held that motive assumes
greater significance in case
where the case rests on
circumstantial evidence, as
in the present case. That
apart, from the Action Taken
Reports submitted by the State
Police Authorities, we also find
that the State Police
Authorities of the Gujarat had
to take help from the other
police officials of other States,
namely, Andhra Pradesh and
Rajasthan. If the investigation
is transferred to the CBI
Authorities it would be fair and

11
proper that the other State
police officials should also help
the CBI Authorities in coming
to a final conclusion on the
allegations made by the writ
petitioner and also on the
offences alleged to have
committed by some of them.

65. In view of our discussions

made herein earlier and the
submissions of the learned
senior counsel for the parties
and the Amicus Curiae and
keeping in mind the earlier
various directions given by this
Court to the Police Authorities
of the State of Gujarat and the
materials on record, we are
of the view that although
the charge sheet was
submitted but considering
the nature of crime that has
been allegedly committed
not by any third party but by
the police personnel of the
State of Gujarat, the
investigation concluded in
the present case cannot be
said to be satisfactorily
held. We have already
discussed the decisions cited
from the Bar on the question
that after the charge sheet
being filed whether the

12
investigation could be handed
over to the CBI Authorities or
to any other independent
agency from the State police
authorities. We have already
distinguished the decisions
cited by the State that they
related to the power of the
court to monitor the
investigation after the charge
sheet was filed. The scope of
this order, however, cannot
deal with the power of this
Court to monitor the
investigation, but on the other
hand in order to make sure
that justice is not only done,
but also is seen to be done and
considering the involvement of
the State police authorities and
particularly the high officials of
the State of Gujarat, we are
compelled even at this stage to
direct the CBI Authorities to
investigate into the matter.
Since the high police officials of
the State of Gujarat are
involved and some of them had
already been in custody, we
are also of the view that it
would not be sufficient to
instill confidence in the minds
of the victims as well as of the
public that still the State Police
Authorities would be allowed to

13
 continue with the investigation
when allegations and offences
were mostly against them. In
the present circumstances and
in view of the involvement of
the police officials of the State
in this crime, we cannot shut
our eyes and direct the State
Police authorities to continue
with the investigation and the
charge sheet and for a proper
and fair investigation, we also
feel that the CBI should be
requested to take up the
investigation and submit a
report in this Court within six
months from the date of
handing over a copy of this
judgment and the records
relating to this crime to them
MOTIVE OF THE ALLEGED CRIME
It is pertinent to note that the state CI.D
while concluding their final report
concluded motive behind the alleged
offence as being NAME AND FAME.
However the Honorable Apex Court has
heavily criticized the manner of
investigation of the state C.I.D and
opined that name and fame cannot be the
motive of crime. The Honorable Apex
Court has already concluded that the
whole investigation is misdirected and the
order of the Apex Court is self
explanatory and binding upon this
Honorable Court. The Honorable Apex

14
 Court was upon disagreeing with the
charge sheet and doubting the credibility
and authenticity of the investigation by
the Gujarat state CI.D Crime transferred
the investigation to C.B.I. Hence the
Investigation Done by the CID Crime
could not be the Ground For Prosecuting
the present applicant.

iii. Third set of investigation undertaken

conducted by the C.B.I.

F. Further, upon the undertaking the

investigation the C.B.I has carried out further
investigation on the basis of evidence and
charge sheet which was filed by the state
C.I.D. The Honble Apex Court has ordered
CBI to investigate the larger Conspiracy in this
crime as claimed by CBI they took the
investigation u/s 173(8) of Cr.Pc. Which
means further Investigation but CBI
Maliciously did the reinvestigation on the
Same line & theory as done by CID Gujarat
State & upon considering the charge sheet
filed by the state CI.D as well as the C.B.I in
respect of the applicant and the other accused
of the C.I.D it is nothing but just extended
replica of the previous charge sheet, what
further C.B.I has investigated is just inducted
all together 10 persons as an accused
ascribing the motive of the crime is to
eliminate the gangster on the behest of the
Request of the Vimal Patani (A-20) R.K.Marbles
along with the then home minister of

15
Rajasthan Shri Gulabchand kataria.(A-21) CBI
charge also alleges that The A-1,A-2,A-15 &A-
16 where involved in extortion racket operated
by A-16. Though this court has concluded in
various order passed by this Honorable Court
that this cannot be the motive as the alleged
nexus has no evidentiary proof and this
Honorable Court has without any hesitations
has disagreed with this part of charge sheet.

G. It is also pertinent to note that

accused which were got arrested by the C.B.I
in this case now most of them has been
discharged by this Honorable Court. Therefore
credibility of the investigation by the C.B.I is
also been shaken in pursuant to the
observations of this Honorable Court.

H. Therefore, the motive which is

essential part of ingredient in case which is to
be preceded on basis of circumstantial
evidence is lacking And all the set of
Investigations are contrary to each other and
there by loses its affinity for conduction of
trial.

I. Further, though the prosecution has

relied upon the so called retracted statement of
various witnesses to show the participations of
the applicant is of no value. The prosecution
has only relied upon the statement
of P.W.105 Nathuba Jadeja, P.W. 106
Gurudayal Singh, P.W. 107-
Bhailal Rathod, P.W. 156 Kamlesh, P.W. 157
Irfatbhai, P.W. 188

16
Jahir Abbas, P.W. 149 Girish patel
alongwith statement of Late Satish Sharma (D
188 and D189) Lately P.W. No. 26 . But this
statement cannot be basis for proceedings with
the trial as the said statement are insufficient
for the various reasons. It is most pertinent to
note that this statement has been retracted at
various stages before the Court by the
deponent the veracity of this statement are
dubious in nature. Moreover even if we take
this statements as it is then also this evidence
are not sufficient & evidence are also not been
supported by any other cogent evidence of any
nature.

J. The main important ingredient of the

whole of the investigation is that in case which
is relied only on circumstantial evidence all the
phases of the case should be interlinked
Beyond reasonable doubt But in this case The
victims are Identified by Photos that to after
the duration of eight months which as per the
Honble Apex court cannot be relied upon
further the prosecution failed in establishing
that Gujarat Police i.e The Team headed by A-2
Shri Rajkumar Pandian has abducted the
diseases from the Bus in Hyderabad ,also the
team as claimed by the CBI, of Andhra
Pradesh Police is not identified .As far as the
Transportation is concerned of diseases From
Bus going towards Sangali The prosecution
Relies on the Statements Of PW 105 Driver
Constable Nathubha.P.Jadeja & PW 106
Driver Constable Gurudayal Singh i.e the
witness which by this Honble Court is

17
declared as an accomplish in the alleged act of
crime & cannot be believed without any
corroborative piece of evidence which is
absent. Further the vehicles used Two Sumos
are still not recovered or identified till date
today and the third vehicle Qualis No GJ-25-A-
7007 as observed By this Honble Court was
lying in garage In Ahmadabad Gujarat.

K Further, the investigation is apparently

suspicious and incomplete. There is also
incomplete chain of circumstantial evidence in
other phases too. As alleged that this applicant
took the diseases from Arahem Farm House
to the spot of encounter but is not able to
establish that how victim reached Araham
farm house. Further there cannot be two
standard of the treatment with the persons
involved in alleged crime. Moreover, from the
nature of the duty and alleged role of the
applicant it cannot be said that he is
conspirator in any manner.

L. The present case can be further

bifurcated in multiple phase wise as
mentioned herein undee:

1. Conspiracy of the Alleged

Crime.

2. Abduction of the deceased

from Hyderabad.

3. Transportation of deceased
from Hyderabad to Gujarat
Ahmadabad.

18
 4. Confinement in Desa &
Areham Farm House

5. Encounter/Killing of
Diseased

6. Disposal of evidence at illol

village Himatnagar Gujarat.

7. Encounter of Tulsi Prajapati

M. The present applicant is alleged shown to

be involved in fourth phase confinement i.e. as
alleged the applicant brought the diseased
from Koba circle to Desa Farm House along
with the other senior Police officer of ATS
Gujarat & Andhra Pradesh Police who came in
the Qualis jeep No GJ-25-A-7007 as alleged
by prosecution was arranged by then S P ATS
Gujarat State Shri Rajkumar Paindian (A-2),
stayed on Farm house , brought the disease
from farm house to the spot of encounter &
was present on Encounter spot and lastly took
the dead body in a ATS Gujarat state jeep
along with Dr Narendre Kantilal Amin (A-12) at
the village illole alleged spot of disposal of
corpus of kasurbe.

N. The Alleged allegations are based on the

below mentioned prosecution witness
statement & scientific Documents. In order to
appreciate the value of the statement of
witnesses, there statement is classified in
three part.

19
a. the statement of witnesses accomplice
to alleged crime

1. P.W.105 Nathuba Jadeja,

2. P.W. 106 Gurudayal Singh,

3. P.W. 107 Bhailal Rathod,

4. Vijar Arjun Rathode (Now Accused

No14).
Prosecution has attempted to established
that Gujarat Police Abducted the Victims
and Brought them to Gujarat By virtue of
the Statements of PW 105 Shri Nathubha
Pravin Singh Jadega & PW 106 Shri
Gurudayal Singh Police Drivers & these
statements were not accepted by This
Honble court In His order Dt:
28/07/2015 (Exh.562) & has observed
that:

35. Statement of P.W. 105-Nathuba

Jadeja and P.W. 106-Gurudayal
Singh are heavily relied on by the
prosecution to charge this accused.
This court would have accepted
above evidence as it is as the law
requires that the statement of
witnesses to be accepted as they
stand and no rowing enquiry shall
be made to consider their
truthfulness or otherwise. However,
the prosecution itself made it
difficult for this court to rely their
statements for more than one
reasons. They are ;

20
1) PW 105-Nathuba Jadeja, P.W.
106 Gurudayal Singh appears to be
evidence of accomplice. Both of
them drove private vehicle in which
the abductors were allegedly
brought. They did not make entry of
their out station journey in duty
diary. In fact their office attendance
register produced before the court
show that they had attended the
duty from 21/11/2005 to
25/11/2005 onwards. Ld. defense
counsel brought to the notice of this
court that this court observed in
order Para 21 of discharge
application of Mr.N.K. Amin Exh.
606 that, P.W. 105 Nathuba Jadeja
is one of the conspirators. I make it
clear now that this court intending
to describe him as accomplice and
not conspirator.

2) Both of them had filed affidavits

in the Court at Ahmadabad on
22/5/2007 itself that they do not
want to give any statement. They
appeared as the accused and made
application for anticipatory bail but
no order was passed on their
application. However, their
statements were shown to be
recorded on 26/5/2007. They again
retracted from the statements. That
was prior to filing of the charge-

21
sheet against this accused by C.I.D.
Crime.

3) Their statements were shown to

be recorded afresh by CBI in
October 2010. They again
approached CBI Court at
Ahmadabad and filed affidavit
stating that they did not give any
statements to CBI. Their statements
before Ld. Magistrate were recorded
under the threats. It was again prior
to filing supplementary charge-sheet
against this accused by CBI.

4) Interestingly their statement

recorded in 2007 and further
statement recorded in 2010 are
almost ad-verbatim. In fact during
their statements recorded in 2010
they gave exact date, time of
incident in precise manner which
they had not stated in their
statement to CID Crime in 2007.

5) From their statement they appear

to be accomplice but not made as
accused and treated as witnesses.
This court by its order dated
28/07/2015 (Exh.578) allow CBI to
treat them as witnesses, that does
not mean that this court has to
accept their evidence without
corroboration.

22
The Status of the PW 107 is
identical to that of PW-105,& PW-
106 since he has also actively
participated in the alleged act of
crime as per his own statements &
subsecuintly has retracted more
over he has also filed an Application
ExBh No : 1205 &1213 which again
claims that all his statements taken
by the prosecuting agency are false
and are taken under duress and
pressure hence this statement can
not be believed without any
corroborative evidence .

Moreover Bringing the diseases from

Hyderabad up to koba Gujarat by
the quails jeep arranged by the Then
S.P. ATS Gujarat Shri Rajkumar
Pandiyan (A-2) is concerned This
Honble Court in order Dt:
28/07/2015 (Exh.578) has
categorically observed that:

32. It is alleged that Mr. Pandiyan

had arranged the Jeep bearing No.
GJ 25-A-7007 for a police team to
go to Hyderabad for bringing
Soharabuddin and others. For this
the prosecution relied on statements
of P.W. 144- Premjibhai Cham, PW
145-Madhobhai Bandiwala and PW
146- Mr. Malde. I have perused their
statements. What could be gathered
there from is that on 18/11/2005

23
Mr. Pandiyan had requested PW
144- Premjibhai to give him the
Qualise Jeep. P.W. 145-Madhavbhai
stated that he came to know from
his driver PW 147- Malde that the
Qualise Jeep had came back at 8.00
pm. on 23/11/2005. From above
evidence the prosecution wants this
court to draw inference that Mr.
Pandiyan had arranged the Qualise
Jeep bearing No. GJ-25-A-7007 for
policemen to go to Hyderabad.

33. As against this CBI itself

collected evidence to show that prior
to 24/11/2005 Jeep No. GJ-25-A-
7007 was lying in authorized Service
Centre of Toyata by name M/s.
Infinity Cars at Ahmadabad. None of
the prosecution witnesses including
P.W. 105-Nathuba Jadeja and P.W.
106- Gurudayal Singh stated that
Qualise Car bearing No. GJ-25-A-
7007 was Order below Exh.562. 16
with them in which Soharabuddin
and others brought to Ahmadabad.
There is evidence on record to
indicate that Mr. Pandiyan used the
vehicle of Andhra Pradesh passing
when he visited Hyderabad. In
short this evidence is too weak
even to hold prima facie that Mr.
Pandiyan had arranged Qualise
bearing No.GJ25-A-7007 for
police team to go to Hyderabad.

24
 Since other two Vehicles i.e Sumos
were not recovered and this Qualise
jeep was lying I Ahmedabad That
means prosecution does not have
sufficient evidence that how
diseases was brought to koba since
no other vehicles is being recovered
and prosecution does not have any
evidence to establish that the
Disease was brought to Koba Circle.
Similarily, this honble disbelieved
or negated the statement of the
aforesaid witnesses in order dated
1.08.2017 on exhibit No.912 passed
by this honble court and therefore
same parity shall also been applied
while taking into consideration of
the application of present applicant.

b. the statement of witnesses to alleged

crime which are to be termed as hearsay
evidence:

1. Girish patel (Owner of Desa

Farm house) alongwith statement of
Late Satish Sharma (D188 & D189)
2. P.W. 188 Jahir Abbas
3. P.W. 156 Kamlesh,

4.P.W. 157 Irfatbhai,

5. P.W. 149

6. P.W. No. 26

25
 The evidences of the aforesaid witness
can be sumrized as under :

i. Late Satish Sharma has died and his

statement cannot be cross examined
during the course of trial hence cannot be
given much weight-age More over in his
whole statement which CBI has taken as
D-188 has said some one at farm
house called chaubey shaeb come this
side So I know that someone name
chaubey is present Prosecution failed in
performing Identification pared which is
very important to established the
presence of alleged accuse at the spot of
crime As observed by Honble Apex court
in several judgments. Hence this witness
can be discarded as far as this applicant
is concerned. Moreover, it is apparent
that the statement of said witness is
hearsay evidence.

ii. Girish Chotabhai Patel the owner of

Desa farm house is concerned he
himself is a co-conspirator from the
evidences discussed as below

a. He did meeting with the Dysp

Shri M L Parmar of ATS Gujarat
prior to the encounter & accepted to
lend his farm house to confined the
diseases, statement of satish
Sharma, His own statement &
statement of PW-107 Bhailalbhai
koderji Rathode driver of Shri
M.L.Parmar (A-4) confirms the above

26
b. He instructed his guard PW
Dinesh kodi Patel at the farm house
stating that Give this keys of the
rooms to Shri Parmar Sir when he
will come his own statement & the
statement of Dinesh Kodi Patel.

c. On the next day he comes at the

farm house & inquires with his
guard PW Dineshbhai that any
one has come & Dineshbhai briefs
him that at night two vehicles came
and few persons alighted from the
vehicle and has kept someone in
farm house

d. Then he tried to enter in the

rooms of farm house where he was
blocked & was not permitted to go
inside as per his own statement

e. Next date again he visited farm

house and inquires about the status
with his guard Mr Dinesh Kodi Patel
who told him that late night some
one took one person face covered .
and other person is still in Farm
House i.e he is aware of all the
developments

f. Next day there was court

commission to be conducted at his
farm house so he requested Mr
Satish Sharma to inform the
authorities (Mr Parmar) to vacant
his Farm house since there is a
court commission and government

27
officials are visiting the site and
there is possibility of an dispute, on
the behest of his request, Mr Satish
Sharma informed Mr Parmar (A-4) &
he managed to shift the detainees
disease to another Farm house (as
per his own statement & statement
of Satish Sharma. (Araham Farm
house, owner of Arham farm house
is Accused No 19)

g. Then lastly he sends Mr Naresh

Patel his friend who visited him in
Court commission as witness, called
by Mr M.L. Parmar knowing all facts
of the case alleged to cover the story
by Investigating authority of ATS
Gujarat state Shri M.L.Parmar

More over this prosecution witness

has submitted statements

i Statement in 66/06 in preliminary

inquiry and after his statement he
submitted an application before the
ATS authority that Shri V L Solanki
has taken his statement under
duress & pressure which is a part &
parcel of charge sheet.

ii. Then again his statement was

taken by CID Crime Gujarat state
During the further investigation of
the above crime on Dated :
under sec161 of CrPC.

28
iii. Then again his statement was
taken by CBI SCB Mumbai
investigation in the above crime

iv. Lastly, before the Metro

Magistrate Court CBI Ahmedabad
under sec164 of CrPC.

All the three statements of the

Prosecution Witness are identical &
as far as this applicant is concerned
in his previous statements he Says
when he reached on his farm house
& he tried to enter in the room a
person sitting there said chaubey
sahib dont let him go inside so I
can say someone named chaubey is
present. Nothing else is said in
whole of the statement regarding
this applicant. Again prosecution
failed to perform the Identification
Pared which is very important
Ingredient to establish the
applicants presence at the spot
since the facts were not true. So in
his statement before Metro
Magistrate CBI court Ahmedabad
He did not uttered the name of
the applicant in his whole of the
Statement.

From all above sequence of acts its

very much clear that he is co
conspirator and assisted in alleged
Crime and hence should be treated
as an accused and his statement
loses its vicinity against this
29
 applicant. Even Though for the sake
of accepting the statements of PW
Satish Sharma & Girish Sharme is
accepted as it is then also Both
these witness claims that they have
heard the name applicant when
someone called the name of the
applicant but prosecution failed in
timely performing the Test
Identification Parade. The witness of
aforesaid are nothing but hearasay
evidence is not sufficient to
prosecute the applicant. The
opinion cannot take place of the
evidence the evidence should be
clear & cogent to establish an act of
Crime CBI fails in providing any
cogent clear evidence against this
Applicant.

iii. P.W. 188 Jahir Abbas

Even the statement of aforesaid
witness is also hearsay statement
and in absence of identification
parade can not be considered. More
Over without any Identification
parade of the Applicant its not
possible to confirm the involvement
of this accused even after complete
trial & both the investigating
agencies has failed in timely
performing the Identification Pared
of the Accused. The Honble Apex
Court In his several judgments Has
Categorically observed the
Importance of Timely Performing
30
Identification Pared. In the matter
of Shailendra Zolu Sahare And
Etc. vs State Of Maharashtra
MUMBAI HIGH COURT held which
runs as under:
PARA (6).
PARA (6).

6. After perusal of these judgments

relied upon by the appellants, what
reveals as a dictum governing the
issue of identification could be
summarized without discussing
each judgment. What emerges on
well settled position of law after
perusal and careful reading of all
the precedents cited at bar by both
sides is as follows :

(a) That the identification of the

accused before the Court is of prime
Importance.

(b) Delay in conducting

Identification parade or
identification before the Court would
constitute a ground for suspicion.

(c) Further sole reliance on test

identification parade conducted
during investigation would not be
permissible.

(d) If the complainant of witness had

in his memory the identity of the

31
accused engraved or embossed
because of the circumstances of the
case, identification before the Court
alone even if done after years of
incident could be sufficient.

(e) Identification of unknown

accused unless is supported by
such engraved impression about the
identity could create a suspicion.

(f) Identification during test

identification parade or even before
the Court shall get vitiated and
would be unreliable if photographs
of accused so identified were
published in newspapers before
such identification.

(g) Whether identification done

before Court should be ultimately
trusted on objectively guided
opinion that the trial Court forms
after hearing the evidence, and any
rigid rule in this Court cannot be
formulated or laid down, and it
would depend upon facts of each
case.

In present case the alleged act of

crime took place in 2005 and till
date Prosecution failed in
Performing identification Parade
and more over now his photo is been
posted in major news papers
several time so his presence cannot
be established either way &
32
deserves to be discharged There are
several decisions of the Apex Court
to the effect that it is not at all safe
to base a conviction on the first time
identification of the accused in the
Court. In Kanan v. State of Kerala :
1979 Cri LJ 919 (supra) the Apex
Court held that where a witness
identifies an accused who is not
known to him in the Court for the
first time, his evidence is absolutely
valueless unless there has been a
previous test identification parade
to test his powers of observations
and that the idea of holding test
identification parade under Section
9 is to test the veracity of the
witness on the question of capability
to identify an unknown person
whom the witness may have seen
only once and that if no test
identification parade is held then it
will be wholly unsafe to rely on his
bare testimony regarding the
identification of an accused for the
first time in Court. In another
decision in Mohanlal Gangaram
Gehani's case (1982 Cri LJ 630 (3))
(supra) the Apex Court held that
when the witness did not know the
accused before the occurrence and
no test identification was held to
test his power of identification, his
evidence becomes valueless and
could not be relied upon and on that

33
 ground alone the accused is entitled
to be acquitted.

3. Even the statement of witness

P.W. 156 Kamlesh, P.W. 157
Irfatbhai, P.W. 149 is also
hearsay statement

o. As far as existence of Kauserbe is

concerned Its a mere a imaginary identity
accompanying the Diseases Since only PW 105
&106 claims that she was brought in Gujarat
at farm house after that in all the episodes No
one has seen his Lady , further How where
and by whom she was eleminiated is not
specified in charge sheet the
Transportation of the Corpus By jeep ia
only claimed By Driver Police Constable
Shri Nathubha P. Jadeja PW 105 whos
statement is discarded By this Honble
Court & Police Inspector Shree Vijay
Arjum Rathode Now Accuse NO 14 in this
charge sheet This Honble Court has taken
Cognizance against this PW in Exbhit NO :3
Shri Vijay Arjun Rathode Deputy
Superintendent of police is arrayed as accuse
By this Honble court on the Application of
Shri D.G.Vanzara (A-1) in Exbhit No: Hence
his all the statements become the statement of
co-accused and his statements cannot be
relied without corroboration Of direct evidence
which is missing in the case.

34
p. Further there is Major contradiction
in facts stated by witness, that as per
statement & all other major witness only two
persons are brought at Desa Farm House and
the third person was taken away by Rajasthan
Police How and by Whom is still not defined by
prosecution, the statement of PW Dinesh
Kodi Patel clearly says that the persons
stationed at farm house took some one late
night Face covered prior the date of encounter
& statement of this witness says that he took
the diseases from the "Araham Farm House"
which is far away from Desa Farm House
how come victim reached there , such major
discrepancy in the alleged fact and
simultaneous his submission that his
statement was recorded under Duress &
pressure makes it non reliable as the same is
observed in previous judgments of discharge
of the accused of this case. The Hon'ble Apex
Court in Narendra Singh and Anr. v. Slate of
M.P. 2004 SCC (Cri) 1893 : 2004 Cri LJ
2842 wherein it is held that suspicion,
however, grave may be cannot take place of
proof and there is a long distance between
"may be" and "must be". The prosecution
cannot deny its liability to prove the case
beyond reasonable doubt against the
accused. It is important to mentions some of
the important observations done by this
honble Court in the Discharge of Shri

35
D.G.Vanzara IPS in Exbhit No: order
Dt:1/08/2010

28. According to the prosecution, a

team of police officials headed by Dr.
Rajkumar Pandian (A2) had been to
Hyderabad.The statement of
witnesses namely: PW144
(PremjiCham), PW145(Madhubhai),
PW146 (Nathabhai), PW147 (sajan),
PW148 (Chandrasingh), PW105
(Nathuba), PW106 (Gurudayal)
point out that Qualis and Sumo
vehicles were taken to Hyderabad by
the said police party. What could be
gathered from statement on record
is that on 18/11/2005, Rajkumar
Pandian (A2) had requested PW144
(Premjibhai) to give him Qualis Jeep
bearing no. GJ25/ A7007. PW145
(Madhavbhai) stated that he came to
know from his driver (PW147
Malde) that the Qualis Jeep had
returned back to Ahmadabad at
8:00 pm on 23/11/2005. On the
basis of such statement,
prosecution wanted this court to
draw inference that Mr. Pandian
(A2) arranged the said Qualis Jeep
to go to Hyderabad. It will not be out
of place to mention here that
prosecution (CBI) itself collected
evidence to show that prior to
24/11/2005, the said Qualis Jeep
was lying in authorized service
centre of Toyata by name M/s.
36
Infinity Cars at Ahmadabad. It is
further to be noted that key
witnesses namely PW105 (Nathuba)
and PW106 (Gurudayal) did not
state that this Qualis Jeep was with
them in which Sohrabuddin and
others were brought to Ahmadabad.
On the contrary, there is sufficient
evidence on record to indicate that
Mr. Pandian (A2) used the vehicle of
Andra Pradesh passing when he
visited Hyderabad. Thus, the
evidence that Mr. Pandian (A2)
arrange Qualis Jeep to go to
Hyderabad is not prima facie worth
of reliance. 29.
PW83 (Sheikh Gaziuddin
Chabuksawar), a cleaner in the bus
of M/s. Sangeeta Travels stated
that police persons made to stop the
bus at about 1:30 hour on
23/11/2005 when it left Zahirabad.
Police personals order the driver to
switch on the light of the bus. One
person and his companion lady
passenger in burkha were asked to
get down. Another passenger was
alsotaken in custody by police. He
has not whispered about names of
those passengers and police
personals much less against this
applicant. Same is the statement of
PW84 (Misban Haidar),driver of the
said bus.

37
30. PW100(Sharad Aapte), who was
proceeding inthe said bus of M/s.
Sangeeta Travels stated that in the
nightbetween 22/11/2005 and
23/11/2005 police personals in
civildress made the said bus to stop
and there from two persons anda
lady in burkha were taken in
custody. He has not referred
thename of any of the police
personals and those two persons
and lady in burkha. His previous
statement was also recorded
inwhich he did not whisper about
identification of police officials and
the persons who were asked to get
down from the bus. Same is the
statement of PW101 (Amit Aapte)
and PW102 (Manjusha Aapte).

31. PW105 (Nathuba) and Pw106

(Gurudayal) were drivers of ATS
Ahmadabad. Both these witnesses
in their statements firstly before CID
crime recorded on 04/04/2007 and
thereafter before CBI, recorded on
11/05/2010 stated that on
22/11/2005, they along with Police
Inspector Dabhi, Police Sub
Inspector Ajay Parmar, had gone to
meet Rajkumar Pandian (A2) at IPS
officers mess Hyderabad. Thereafter
Ajay Parmar went to airport to book
ticket for Mr. Pandian to go to
Ahmadabad. These witnesses

38
further stated that at 7:00 pm they
along with Mr. Pandia, Mr. Dabhi,
Mr, Shantaram and two unknown
persons started chasing one luxury
bus. P.C. Nathuba was driving the
Qualis Jeep. At 12:00 mid night, the
luxury bus was made to stop on
high way. Mr. Pandian, Dabhi and
others alighted from his Jeep. They
went towards luxury bus and
brought two men and one female
and thereafter they came to
Ahmadabad by overnight journey.
These witnesses further stated that
the person who was made to sit in
Tata Sumo was taken towards
Rajasthan whereas one male and
lady in his Jeep was taken to
Ahmadabad. It is pertinent to bear
in mind that evidence of both these
witnesses is that of accomplice.
They both drove private vehicle in
which the abductors were allegedly
brought. They did not make entry of
their outstation journey in station
dairy. The office attendance register
points out their attendance from
21/11/2005 to 25/11/2005. This
fact will brush aside their entire
story about alleged abduction.

32. PW105 (Nathuba) and PW106

(Gurudayal) filed affidavits in the
court at Ahmadabad on
22/05/2005 itself that they do not

39
want to give any statement. They
were implicated as accused. They
filed anticipatory bail application,
however, order was not passed on
bail application. Their statements
were shown to be recorded on
26/05/2007. They again retracted
from their statements. Their
statements were recorded afresh by
CBI in October 2010. They again
made statement by filing affidavit
before CBI court, Ahmadabad
stating that they did not give any
statement to CBI and further that
their statements before Ld.
Magistrate were recorded under the
threats. Interestingly, their
statements recorded in 2007 and
thereafter in the year 2010, are
almost adverbatim. It is further
interesting to note that in their
statements recorded in 2010, they
gave exact date, time of incident in
precise manner which they had not
stated in their statement to CID
crime in 2007. This prima facie
points out the fact that they have
deliberately exaggerated the
prosecution case merely on the say
of CBI.

33. It will be apparent from their

statement that they are accomplice,
however, prosecution has not made
them accused and treated them as

40
witnesses. Even though they are
cited as witnesses still in absence of
corroboration to their statements,
their evidence/statement is not
prima facie worth of credence.

34. As against this, there is

documentary evidence which will
falsify statement/evidence of these
two witnesses. CBI during
investigation collected evidence to
establish that Mr. Pandian (A2)
travelled from Hyderabad to
Ahmadabad on 23/11/2005 by
Indian Airlines International flight
no. IC563. This international flight
had takenoff from Hyderabad airport
at 7:00 pm. PW198 (Simanta Bordoi
Traffic Assistant), then working
with Indian Airlines Hyderabad
Airport provided a list of passengers
who boarded in the said plane on
23/11/2005 at 17:50 hours. A
perusal of said list will point out
that Rajkumar Pandian (A2) was one
of the passenger. PW99
(M.S.Shivraman) stated that on
23/11/2005, passenger by name
Rajkumar Pandian (A2) made
declaration in presence of Custom
Officer that he did not carry goods of
foreign origin and cash more than
Rs. 5,000/. These documents prima
facie establish that on 23/11/2005
at 7:00 pm Mr. Pandian left

41
Hyderabad to go to Ahmadabad by
said airlines. This piece of evidence
will take away the prosecution story
to its extreme extent to say that
Sohrabuddin was abducted by said
police officer and was brought to
Ahmadabad by overnight journey. If
these witnesses make such false
and baseless statement with only
ulterior motive to implicate any
police officer then the
evidence/statement of such
witnesses needs to be thrown away
for all respect inclusive of alleged
conspiracy of applicant in abduction
of Sohrabuddin, Kausar Bi and
Tulsiram Prajapati.

35. To sum up, it is seen from the

entire record of the case that there
is no sufficient evidence on facts to
indicate that there was meeting of
minds in between the
Applicant/accused and the other
coaccused to abduct and then to kill
Sohrabuddin, Kausarbi and/or
Tulsiram Prajapati. The CBI mostly
relies chiefly on the statements of
witnesses which are hearsay in
nature, which witnesses just state
facts which they have learnt from
the other coaccused and somewhere
else.Even the statements of
coaccused do not in any way directly

42
implicate the Applicant/accused to
the fake encounters.

36. Section 10 of the Indian

Evidence Act, 1861 allows the Court
to consider co accused's statements
about conspiracy only as a
corroborative piece of evidence,
provided that by way of legal
evidence it is shown that there was
an agreement in between them to
carry an illegal act or a legal act by
illegal means. It would be proper to
reproduce Section 10 of the Indian
Evidence Act, 1861, which reads as
under: 10. Things said or done by
conspirator in reference to
common design Where there is
reasonable ground to believe that
two or more persons have conspired
together to commit an offence or an
actionable wrong, anything said,
done or written by any one of such
persons in reference to their
common intention, after the time
when such intention was first
entertained by any one of them, is a
relevant fact as against each of he
persons believed to be so conspiring,
as well for the purpose of proving
the existence of the conspiracy as
for the purpose of showing that any
such person was a party to it.

43
37. The scope and applicability of
this section is considered by the
Honble Apex Court in the case of
State of Gujarat v/s Mohammed
Atik ((1998) 4 SCC 351), where the
Honble Apex Court states in para
13: We have to see the amplitude of
the expression in reference to their
common intention as used in
section 10 of the Evidence Act. It
was once considered that the
expression is as good as saying in
furtherance of the common
intention. Almost seven decades
ago a Full Bench of the Patna High
Court had held it like that in Indra
Chandra Narang v. Emperor The
object of this section is merely to
ensure that one person shall not be
made responsible for the acts or
deeds of another until some bond in
the nature of agency has been
established between them and the
act, words, or writing of another
which it is proposed to attribute
vicariously to the person charged
must be in furtherance of the
common design and after such
design was entertained. It is further
observed in para 14 that: But a
three Judge bench of this Court in
Bhagwan Swarup Lal Bishan Lal v.
State of Maharashtra said that the
expression (in reference to their

44
common intention) is wider than the
words in furtherance of their
common intention and is very
comprehensive and it appears to
have been designedly used to give it
a wider scope than the words in
furtherance of in the English law.
Even if it is wider, would its width
go beyond the period of conspiracy?
It is wellnigh settled that Section 10
of the Evidence Act is founded on the
principle of law of agency by
rendering the statement or act of one
conspirator binding on the other if it
was said during subsistence of the
common intention as between the
conspirators. If so, once the common
intention ceased to exist any
statement made by a former
conspirator thereafter cannot be
regarded as one made in reference
to their common intention. In other
words, a postarrest statement made
to a police officer, whether it is a
confession or otherwise, touching his
involvement in the conspiracy, would
not fall within the ambit of section 10
of the Evidence Act. 38. In Yogesh
alias Sachin Jagdish oshi v/s
State of Maharashtra ((2008) 10
SCC 394), it has also been held
that: By and large, however, if two
views are equally possible and the
Judge is satisfied that the evidence
produced before him gives rise to

45
suspicion only as distinguished from
grave suspicion, he will be fully
within his right to discharge the
accused. At this stage, he is not to
see as to whether the trial will end in
conviction or not. It has further been
held that: The wellknown rule
governing circumstantial evidence is
that each and every incriminating
circumstance must be clearly
established by reliable evidence and
'the circumstances so proved must
form a chain of events from which
the only irresistible conclusion about
the guilt of the accused can be safely
drawn and no other hypothesis
against the guilt is possible. 39. In
Saju v/s State of Kerala ((2001) 1
SCC 378), while considering the
scope of section 10 of the Act, it has
been held that: This section mainly
could be divided into two: the first
part talks of where there is
reasonable ground to believe that
two or more persons have conspired
to commit an offence or an actionable
wrong, and it is only when this
condition precedent is satisfied that
the subsequent part of the section
comes into operation and it is
material to note that this part of the
section talks of reasonable grounds
to believe that two or more persons
have conspired together and this
evidently has reference to section

46
120A of the IPC, where it is provided'
when two or more persons agree to
do, or cause to be done'. 40. In view
of the above principle of law as
stated by the Apex Court in the
rulings cited supra, if the facts of
this case and evidence on record on
the point of involvement of this
applicant /accused no. 1 in
abduction of Sohrabuddin, Kausar
Biand Tulsiram Prajapati are to be
considered which are elaborately
discussed in the foregoing
paragraphs, I am of the view that
there is no prima facie sufficient
material against this
applicant/accused no. 1.
41. The prosecution came with a
case that after abduction of
Sohrabuddin, his wife Kausar Bi
and Tulsiram Prajapati, they were
brought to Ahmadabad, where from
Rajasthan police took custody of
Tulsiram Prajapati. Who had taken
custody of Tulsiram Prajapati is not
brought on record during
investigation and thus there is a
lacuna on material fact. According
to prosecution Sohrabuddin was
taken to Disha farm house near
Ahmadabad till 25/11/2005. 42. It
is further alleged by the prosecution
that on 25/11/2005, Sohrabuddin
alone was taken to Arham
FarmHouse and thereafter lastly he

47
was taken towards GSB pole
situated between Narol and Vishala
Circle. Soharbuddin was killed in a
fake encounter in the morning of
26/11/2005 at about 5:20 am. After
about 3 days thereafter, his wife
Kausarbi was also killed by police
and her dead body was burnt and
disposed of on the river bed near
village Illol on 29/11/2005. After
about one year there from, more
specifically on 27/12/2006,
Tulsiram Prajapati was also shot
dead by Gujarat and Rajasthan
police in a stage managed encounter
near Sarhad Chapri on border of
State of Gujarat and Rajasthan.
Crime no. 115/2006 was registered
by Rajasthan police that Tulsiram
Prajapati has been killed in
encounter. 43. To substantiate
allegations as regard to alleged fake
encounter of Sohrabuddin,
prosecution has mainly relied upon
the statement of PW105 (Nathuba
Jadeja) and PW107 (Bhailal Rahtod).
According to PWPW107 (Bhailal
Rahtod), a driver in Maruti Fronti,
on 26/11/2005 at about 2:30 3:00
am he took M.L. Parmar (Dy.S.P.),
Shri Dabhi (P.I.), Ajay Parmar (Police
Constable) in the said vehicle
bearing no. GJ18/G1816, to Koba
Circle near Arham Farm House.
After 10 minutes, PSI Choube and

48
two persons (one of them was
probably police constable and
another person had covered his face
by handkerchief) reached there.
Dy.S.P. Parmar got down there
whereas PSI Choube and those two
persons seated on the back side seat
of Maruti Fronti. They then reached
up to Narol Circle and thereafter
proceeded towards Vishala, where
as per direction of Dy.S.P. Parmar
Maruti Fronti was stopped. He
thereafter took the vehicle 5060 Gaj
away from that spot in the mean
while another vehicle reached there,
however, he does not know who
were present in that vehicle. After
some interval he heard sound of
firing. Thereafter on the say of P.I.
Dabhi, he took Maruti Fronti,
however, another vehicle had
already left the spot. He noticed that
a motor cycle was found lying on the
spot near electric pole and a person
having bleeding injuries was also
found lying near the spot. That
injured person was taken in the
vehicle and was reached to civil
hospital. He has not whispered that
he had occasioned to see encounter
of Sohrabuddin with his naked eyes.
He has not even stated about
presence of applicant at the spot.
Therefore, the statement of this
witness prima facie does not

49
connect applicant as regard to his
involvement in alleged fake
encounter much less even as a
conspirator.

44. PW105 (Nathuba Jadeja), a

police constable driver stated that
on 25/11/2005 at about 1:30 2:00
am, he was driving a Maruti Fronti.
Police Inspector Dabhi was seated in
front seat whereas three officers of
Rajasthan police seated on the back
seat of the car. Vehicle was taken as
per direction of P.I. Dabhi from
Narol Circle to Vishala Circle where
all the four police officials got down.
In the meanwhile another Maruti
Fronti came from Narol Circle and
stopped near electric pole. One
Bhailal (PW107) was driving that
Maruti Fronti. Persons present in
that Maruti Fronti alighted. After
some interval he heard firing sound.
In the Fronti of driver Bhailal
(PW107), wherein Dy.S.P. Parmar
and police inspector Dabhi were
present, one seriously injured
person was taken to hospital. He
further stated at this place, Vanjara
Saheb, Pandian Saheb, S.P.
Udaipur, Choube Saheb, Shantaram
Sharma and S.P. of Udaipur who
came into my Fronti, were seen.
Thus, according to this witness
Vanjara saheb (this applicant) was

50
seen for the first time by this
witness at the hospital. He has not
whispered anything against this
applicant involving him in alleged
fake encounter of Sohrabuddin
much less even as a conspirator.
Even assuming that this witness
wanted to say presence of applicant
near the place of fake encounter
that is to be read between the lines
that this applicant did not reach to
the spot even in the vehicle which
was being driven by driver Bhailal
(PW107). As per both witnesses
namely PW105 (Nathuba Jadeja)
and PW107 (Bhailal) only two
Maruti Fronti reached to the spot.
Both these witnesses did not
whisper about presence of applicant
in those two vehicles. They have not
even stated that any other vehicle
than these two Maruti Fronti
reached to the spot. A careful
scrutiny of the statement of PW107
(Bhailal), it will reveal that prior to
the time his Maruti fronti reached to
the spot there was no other vehicle
present. This is inconsistent with
the statement of PW105 (Nathuba).
Further PW107 (Bhailal) stated that
the persons who reached to the spot
in another Fronti, alighted but he
specifically stated that he does not
remember their number and their
identity. He also stated that prior to

51
the time he reach near the spot after
encounter, on the call of Mr. Dabhi
(P.I), the other vehicle had already
left the spot. He has not stated
presence of applicant along with
Pandya (S.P.) and S.P. Udaipur at
the spot. In short, in such
circumstance presence of Vanzara
(this applicant) at the spot therefore
in absence of any specified
statement about details as to when
and how applicant reached there, is
not worth of acceptance.

45. Thus as regard to the alleged

fake encounter of Sohrabuddin
there is no even prima facie material
against this applicant to point out
his involvement in any manner.
Even otherwise, the evidence of
accomplice PW105 (Nathuba Jadeja)
is not worth of credence as
elaborately discussed above. The
statement of this witness also does
not find any corroboration to
connect applicant in alleged fake
encounter of Sohrabuddin.

46. Now coming to the story of

prosecution as regard to killing of
Kausar Bi, it is alleged that she was
also abducted along with her
husband Sohrabuddin and Tulsiram
Prajapati from bus of M/s. Sangeeta
Travels at about 1:30 am between

52
night of 22/11/2005 and
23/11/2005. Since then Kausar Bi
was in custody of ATS Ahmadabad.
She was kept in Disha Farm. It is
also alleged by the prosecution that
she was killed and her dead body
was taken to the bed of river at
village Illol, where her dead body
was kept on wooden pyre and
applicant then burnt her to ashes.
The dead body was taken in a jeep.
Wooden stumps/hey were collected
from the nearby place by all police
officials and while bringing the same
in auto, it stuck into the sand of
river bed. A crane was arranged for
removing stuck tempo. Firewood
was brought in a matador.
Ultimately, because of stuck of auto
into the sand, they arranged
firewood at that place and kept the
dead body of Kausar Bi and lit
matchstick.

47. To establish prosecution story,

prosecution has relied on the
statement of PW105 (Nathuba
Jadeja), PW162 (Vijaykumar
Rathod, A14),PW156(Kalpesh bhai),
PW157 (Irfan Bhai), PW188 (Zahir
Abbas), PW153 (Gurbatsingh),
PW154 (Kanti Singh), PW155
(Allarkha @ kalumiya) and also
relied on documents viz.
Pnchanama dated 01/05/2007

53
(D35), Panchanama dated
26/04/2007 (D48), CDR of cell no.
9426233679 of V.A. Rahtod (D149),
weekly dairy (D155), latter dated
21/06/2007 of V.A. Rathod (D
114), disclosure memo dated
23/05/2010 (D129). 48. PW105
(Nathuba Jadeja) stated that as per
the direction of Vanzara Saheb (this
applicant), he along with PSI
Chauhan collected firewood 700800
kg and proceeded via Gandhinagar
Chiloda Ciricle himmat Nagar to
village Illol. From Chiloda circle, in a
jeep of ATS, one Choubey saheb was
proceeding ahead of tempo. As the
said Tempo could not go ahead
because of mechanical defect,
another tempo was arranged and
the firewood was then shifted in the
second tempo. That tempo stuck in
the sand of river at about 10:00 11:
00 pm and therefore wood were
unloaded there itself.Thereafter
Vanzara Saheb (this applicant),
Rajkumar Pandian, Dy.S.P. Amin
reached there. Wood was staked. In
a jeep dead body was brought
which was kept on the firewood. He
stated that as per his remembrance
dead body was burnt by Vanzara
(this applicant). It is pertinent to
mention here that he has not firmly
stated that dead body was burnt by
applicant. As stated above, PW105

54
Nathubas evidence appears to be
evidence of accomplice. He had filed
an affidavit in the court at
Ahmadabad on 22/05/2007 that he
does not want to give any statement.
He was arrayed as accused and
therefore filed application for
anticipatory bail. His statement was
shown to be recorded on
26/05/2007 i.e. after filing of
affidavit dated 22/05/2007. He
again retracted from his earlier
statement. Subsequently in or about
October 2010, CBI again recorded
his statement, wherein he attempted
to make statement against
applicant. It is to be noted here that
he again in CBI Court at
Ahmadabad filed affidavit stating
that he did not give any statement
to CBI. His statement before the Ld.
Magistrate came to be recorded
under threats. This will
consequently point out that this
witness was changing his stand
from time to time. It will therefore be
difficult to give any weightage to the
evidence of such accomplice. It is
also to be noted here that his
evidence is not corroborated by any
reliable material pointing out
involvement of the applicant in
killing of Kausar Bi and setting her
dead body to fire.

55
49. Disclosure memo dated
23/05/2010 without discovery of
any fact is not admissible in view of
section 27 of the Evidence Act. The
statement of PW288 (Hari Narayan),
PW289 (Dhaibhai) and Pw290
(Jaindra), employees in Bharat
Sanchar Nigam Limited are
witnesses on the call detail records.
They have not stated about
conversation between the persons
who used cells mentioned in the
information supplied by them.
Merely filing CDR would be of no
consequence in absence of detail
conversation. It is held in citation
Babubhai Bhimabhai Bokhiria Vs.
State of Gujarat 2014 (5) SCC 568
that The other evidence sought to be
relied on for summoning the
appellant is the alleged conversation
between the appellant and the
accused on and immediately
between the day of occurrence. But,
nothing has come during the course
of trial. Regarding the content of
conversation, and call record alone,
the appellants complicity in the
crime does not surface at all. The
other documents like weekly dairy,
letter, panchanama as regard to the
spot where dead body was burnt
does not prima facie connect
applicant in alleged killing of Kausar
Bi. In fact, there is absolutely no

56
 iota of material as to when, where
and who killed Kausar Bi. There is
also no material collected from the
spot like sand, ash, etc to say that
dead body was burnt. It was
obligatory for the investigating
agency to collect such material to
establish the story of burning the
dead body in the bed of said river.

50. PW156 (Kalpesh) stated that

firewood was transferred from one
tempo to his tempo. PW157 (Irfat
Bhia) stated that firewood was
loaded in his tempo and there from
it was transferred to another tempo.
Same is the statement of PW188
(Zahir Abbas) who was a driver on
tempo. As regard arrangement of
crane to remove stuck tempo,
prosecution relied on statement of
PW153( Gurbatsingh), PW154 (Kanti
Singh) and PW155 (allarkha).
Statements of these witnesses do
not even suggest involvement of the
applicant in killing and disposing of
dead body of Kausar Bi. There is no
prima facie reliable and acceptable
material against applicant to
establish the fact that he killed
Kausar Bi or participated in killing
of Kausar Bi and disposing of her
body.
This whole set of observations by this Honble
Court clearly emphasizes on the fact that the 1

57
phase of abduction of Shaurabuddin
,kausebee 2. Transportation of Diseases From
Hyderabad to Gujarat 3 Confinement of
Diseases in Disa Farm house and again
Shifting it to Arham Farm House & lastly
burning of the Corpus of Kuasarbee
.Prosecution fails in establishing this facts
beyond reasonable doubt since on Statements
of the Witness can not be partially accepted
and [partially discarded it can be either fully
accepted or discarded.

q. As far as the scientific evidence

collected by the investigating agency all FSL
REPORTS no evidence is present to
substantiate claim of prosecution:

1 Encounter Spot
2 Desa farm house &
Araham Farm house
3 Jeep No used to carry alleged
dead body of Kasurbe .

4 Village Illol Himatnagar River Bed

favouers the applicant

5. As far as CDRs are concerned this Honble

court Court has Observed that

It is not in dispute that Mr.

Pandiyan was then having cell
number 9825049395. P.W. 3
Tejus Patel the nodal officer of
Vodaphone service provider
stated that on 23/11/2005
location of this cell number is

58
detected in city of Ahmadabad.
In short this evidence also
rules out possibility that Mr.
Pandiyan was on the way in
between Hyderabad to
Ahmadabad on 23/11/2005
from 12.30 to 23/11/2005 at
8.00 pm. As far as CBI's
contention that on the basis of
CDR of cell phone of
Mr.Pandiyan, he was in
contact with other accused at
material time.

How ever, it is settled law that

only on the basis of CDR no
one can be prosecuted for
serious crime without there
being details of conversation.

It is settled proposition of
criminal law that
prosecution is supposed to
prove its case on the judicial
file by leading cogent,
convincing reliable and
trustworthy evidence beyond
reasonable doubts. The case
of prosecution has to fall or
stand on its own legs and it
cannot drive any benefit
from the weakness if any, in
the defense of the accused.
It is not for the accused to
disprove the case of the
prosecution and onus to

59
 prove the case against the
accused beyond reasonable
doubts never shifts and it
always remains on the
prosecution. Further, benefit
of doubt in the prosecution
story always goes to the
accused and it entitles the
accused to acquittal.

5. The applicant submit that for the reason

stated herein above applicant is entitle to get
discharge as there is no sufficient material for
proceeding with the trial in absence of cogent
evidence and also . In view of such weak
evidence applicant ought not to have been
prosecuted without sanction from the State
Government under section 197 of Cr. P.C.

6 . However, the presence Of the applicant at

the spot where Soharabuddin was encountered
is not enough to hold him as one of the
conspirators. It has been held by Hon'ble
Supreme Court in case of Manorama Tiwari
and others Vs. Surendra Nath Rai reported in
(2016) 1 S.C. Cases 594, after taking note of
constitutional bench ruling in case of Matajog
Dobey Vs. H.C. Bhari that; Public servants
have to be protected from harassment in the
discharge of official duties while ordinary
citizens not so engaged do not require this
safeguard. It was argued that Section 197 of
the Criminal Procedure Code vested an Order
below Exh.562.23 absolutely arbitrary power
in the Government to grant or with hold

60
sanction at their sweet will and pleasure, and
the legislature did not lay down or even
indicate any guiding principles to control the
exercise of the discretion. There is no question
of any discrimination between one person and
another in he matter of taking proceedings
against a public servant for an act done or
purporting to be done by the public servant in
the discharge of his official duties. No one can
take such proceedings without such sanction.
In another ruling in State of H.P. vs. M.P.
Gupta (2004) 2 SCC 349) the Hon'ble Apex
Court held that ultimately quality of evidence
appearing against public servant is required to
be looked into by the Court. It has been held
that ; It is the quality of the act which is
important and the protection of this section is
available if the act falls within the scope and
range of his official duty. There cannot be any
universal rule to determine where there is a
reasonable connection between the act done
and the official duty, nor is it possible to lay
down any such rule. One safe and sure test in
this regard would be to consider if the
omission or neglect on the part of the public
servant to commit the act complained of could
have made him answerable for a charge of
dereliction of his official duty; if the answer to
this question is in the affirmative, it may be
said that such act was committed by the
public servant while acting in the discharge of
his official duty and there was every
connection with the act complained Order
below Exh.562. 24 of and the official duty of
the public servant. This aspect makes it clear

61
that the concept of sec.197 does not get
immediately attracted on institution of the
complaint case. While answering the question
whether police officers involved in encounter
case can claim protection. The Apex court held
in It is in the case of Omprakash vs. State of
Jharkhand (2012) 12 SCC 72) (supra) in para
29 of said ruling that; 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. 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... It has been further held by the
Hon'ble Apex Court in this ruling that:-
Unless unimpeachable evidence is on record
to establish that their action is indefensible,
mala-fide and vindictive, they cannot be
subjected to prosecution. Sanction must be a
precondition to their prosecution. It affords
necessary protection Order below Exh.562. 25

62
 to such police personnel. Plea regarding
sanction can be raised at the inception.

7. Further More this Honble court Has also

observed in Order DT:1/08/2010 In Exbhit NO:913
M.N.Dinesh IPS and observed I para 47 about
quality of evidences which is not available

8. Applicant also deserved to be released on the

ground of PARITY since in the same case major
of the Accused are Being Discharged By this
Honble court who is much more Role & were the
Deciding authorities The following Accused has
been granted discharge by the Honble Session
Court Mumbai mentioned there under with there
respective role alleged by the officer of the
Respondent:

S. Name of Accused Applicatio Discharge Allegations

No n No / Granted by CID and
. exbhit no by court CBI
(Prosecution)

1. Amit Shah Discharge Honble Main

Ex. Mos. Home Applicatio Session Conspirator

Gujarat n No Court of in killing of

(EXHIBIT- Mumbai Sohrabuddin
(Present MLA)
232) (Trial , Kausorbi,
A-16 (Sohrabuddin Tulsiram
Court)
case) u/s
A-1 (Tulsiram case) (364,365,36
8,
341,342,302
,384, 201,

120-B IPC

63
S. Name of Accused Applicatio Discharge Allegations
No n No / Granted by CID and
. exbhit no by court CBI
(Prosecution)

2 GulabChand Kataria Discharge Honble Main

Ex. Home Minister Applicatio Session Conspirator

(Raj.) n No Court of u/s

(EXHIBIT-) Mumbai 302,201,120
Present MLA
Trial -B IPC
A-21
Court

3. Smt Geeth Johri IPS Discharge Honble

Present DPG Gujarat Applicatio Session
State n No Court of
(EXHIBIT-) Mumbai

(Trial
Court)

4. Ex Additional DGP Discharge Honble

Gujarat State Shri d By This Session
O P Mathur IPS Honble Court of
Trial Mumbai
Session (Trial
Court vide Court)
EXbhit No

5. Ex DGP Gujarat Discharge Honble

State Shri Applicatio Session
P.C.Pandey IPS n No Court of
(EXHIBIT-) Mumbai

(Trial
Court)

64
S. Name of Accused Applicatio Discharge Allegations
No n No / Granted by CID and
. exbhit no by court CBI
(Prosecution)

6. N.K. Amin Dy.SP Discharge Honble Killing of

A-12 Applicatio Session Kouser Bi

n No Court of and
(EXHIBIT-) Mumbai Disposal of

(Trial Corpus u/s

Court) 302,201,120
-B IPC

7. Vimal Patni A-20 Discharge Honble Main

Owner of Applicatio Session Conspirator

R.K.Marbels n No: Court and

Exhibit- Mumbai beneficiary

(Trial of encounter

Court) u/s
302,201,120
-B IPC

8. IGP Narsimahalu Discharge Honble Main

Bala Subramaniyam Applicatio Session Conspirator
IPS n No Court of of abduction

(Andhra pradesh) (EXHIBIT-) Mumbai of

(Trial Sohrabuddin
A-22
Court) , Kauser bi,
Tulsi Ram
and murder
u/s
302,364,
365,368,341
,342,
201,120-B
IPC

65
S. Name of Accused Applicatio Discharge Allegations
No n No / Granted by CID and
. exbhit no by court CBI
(Prosecution)

9. Yashpal Discharge Honble Destruction

Chudashama Applicatio Ad. of evidence

A-18 n No Session and Witness

(EXHIBIT-) Court of Tempering
Mumbai u/s

(Trial 302,364,365

Court) ,368,341,34
2,384,120-B
IPC

10 Ajay Patel Discharge Honble Destruction

A-19 Applicatio Ad. of evidence

n No Session and Witness
(EXHIBIT-) Court of Tempering
Mumbai u/s

(Trial 302,364,365

Court) ,368,341,34
2,384,120-B
IPC

11 Raj Kumar Pandian Discharge Honble 1. Kidnaping

. IPS Applicatio Ad. of

A-2 (Sohrabuddin n No Session Sohrabuddin

case) (EXHIBIT-) Court of , Kousrer bi

Mumbai and
A-3 (Tulsiram case)
(Trial Tulsiram

Court) 2.
Participated
in
Sohrabuddin
encounter

66
S. Name of Accused Applicatio Discharge Allegations
No n No / Granted by CID and
. exbhit no by court CBI
(Prosecution)

3. Killing of
Kouserbi
and
disposed of
her body

4. Killing of
Tulsiram

u/s 302,
364, 365,
368, 341,
342, 384,
201, 120-B
IPC

12 Abhay Singh Discharge Honble 1. Kidnaping

Chudasama IPS Applicatio Ad. of

A-15 n No Session Sohrabuddin

(EXHIBIT-) Court of , Kousrer bi
Mumbai and

(Trial Tulsiram

Court) 2. Main
conspirator
of Killing of
Sohrabuddin

u/s 302,
364, 365,
368, 201,
120 B IPC

67
S. Name of Accused Applicatio Discharge Allegations
No n No / Granted by CID and
. exbhit no by court CBI
(Prosecution)

13 Dinesh M.N. IPS Discharge Honble 1. Main

A-3 d By This Ad. conspirator

Honble Session In
Trial Court Court of Sohrabuddin
Exbhit No Mumbai encounter &
(Trial Tulsiram
Court) encounter

u/s 302,
364, 365,
368, 201,
120-B IPC

14 Dahyaji Gobarji Discharge Honble 1.Kidnaping

Vanjara I.P.S A-1 d By this Ad. of
Honble Session Sohrabuddin
before Court of , Kousrer bi
Trial Mumbai and
Session (Trial Tulsiram
Court Court) 2.
Exbhit No: Participated
in
Sohrabuddin
encounter
3. Killing of
Kouserbi
and
disposed of
her body
4. Killing of
Tulsiram

68
S. Name of Accused Applicatio Discharge Allegations
No n No / Granted by CID and
. exbhit no by court CBI
(Prosecution)

u/s 302,
364, 365,
368, 341,
342, 384,
201, 120-B
IPC

9. This applicant further submits that this alleged

act of crime is an act Done by the Government
Machinery headed by The Then Home Minister of
Gujarat state A- Amit Anilshah , The Then Home
minister of Rajasthan State Shri Gulab Chand
Kataria & the Senior Police officers involving the
State police head DGP to the Police constable .hence
it can not be viewed as an individual act of an
Accuse as act done junior officers in presence of the
senior officers or as per the instruction of the senior
officer ,vicarious liability of the of equally makes
senior officer libel for the act done .

10. The applicant also submitted that even

otherwise as per section 161 of Bombay Police Act,
the Court ought not to have taken cognizance of the
case against the accused in respect of incident
which had allegedly taken in 2005 of which charge-
sheet came to be filed in 2007 i.e. one year after
alleged offence..

11. The applicant craves leave to add, amend

and/or to alter the grounds and/or facts of the

69
present discharge application as and when
anticipated or necessary.

12 Hence application of Applicant be allowed and

this Honorable Court be pleased to discharge the
present applicant from the above case u/s 227 of
CrPc and allow the application of the applicant.

AND FOR THIS ACT OF KINDNESS, THE

APPLICANT/ACCUSED AS IN DUTY BOUND SHALL
PRAY.

Dated this day of October, 2017.

Advocate for Applicant/ Accused.

70
 IN THE COURT OF HONBLE
SEPICAL JUDGE AT MUMBAI

C.B.I. SPE. CASE NO. 177/178/

OF 2013

SHRI BALKRISHNA CHAUBEY

. Applicant/
(Original Accused No.6)
V/s
C. B. I. (S. C. B. )Mumbai
Respondents

NOTES OF WRITTEN SUBMISSION

ON APPLICATION UNDER SECTION
227 OF THE CODE OF CRIMINAL
PROCEDURE, 1973

Dated this day of October,2017

Shri D. B. Shukla
Advocate High Court,
45, Maharashtra Bhavan,
Bohari Masjid Lane,
Fort, Mumbai-400001

71