RUBABUDDIN SHAIKH Vs. DAHYAJI GOBARJI VANZARA & OTHERS

JUDGEMENT

(1.) By this revision petition, petitioner/First Informant Rubabuddin Shaikh - brother of deceased Sohrabuddin Shaikh is challenging the order dated 1st August 2017 passed by the learned Special Judge for the CBI, Greater Mumbai, below Exhibit 912, thereby discharging respondent/accused no.1 D.G.Vanzara, the then Deputy Inspector General of Police, Anti Terrorist Squad, Ahmedabad, Gujarat, for want of evidence and absence of material under Section 227 of the Code of Criminal Procedure as well as for want of sanction as envisaged by Section 197 of the Code of Criminal Procedure. The claim for discharge was for offences punishable under Sections 120B, 364, 365, 368, 341, 342, 384, 302 read with 201 of the Indian Penal Code as well as under Section 25 of the Indian Arms Act.

(2.) In order to have a better understanding of the subject matter, it is necessary to state case of the prosecution against the accused persons in brief. The prosecution case is to the following effect :

(3.) I have heard Shri Tiwari, the learned counsel appearing for the revision petitioner Rubabuddin - First Informant and brother of deceased Sohrabuddin Shaikh. He argued that it was respondent/discharged accused no.1 D.G.Vanzara, who conspired with this accused person and devised modus operandi for abduction as well as killing of Sohrabuddin Shaikh and Tulsiram Prajapati. Motorcycle of one Shoksingh Yadav, who is cousin of Police Constable Ajaysingh Yadav, was used for making a show of encounter of Sohrabuddin Shaikh. This Ajaysingh Yadav, Police Constable, was close to respondent/discharged accused no.1 D.G.Vanzara. His presence on the scene of encounter of Sohrabuddin Shaikh is disclosed by PW105 Nathuba Jadeja. The learned counsel further argued that Village Ellol is native place of respondent/discharged accused no.1 D.G.Vanzara. After killing, dead body of Kausarbi was taken towards Village Ellol at the instance of respondent/discharged accused no.1 D.G.Vanzara. By imparting necessary instructions to PW105 Nathuba Jadeja as well as other police personnels, respondent/discharged accused no.1 D.G.Vanzara arranged for the tempo for transporting firewood to the river bed of the river at Village Ellol in order to dispose of dead body of Kausarbi after murdering her. The learned counsel relied on statement of PW Mohd.Azam Khan, PW37 Sharafat Ali, PW41 Sylvester Danial, PW42 Rafique @ Bunty, PW43 Firoz Khan and PW Raju Das to demonstrate activities of Sohrabuddin Shaikh and Tulsiram Prajapati, narrations of Tulsiram Prajapati regarding abduction of Sohrabuddin Shaikh and Kausarbi from the luxury bus while on the way towards Sangli, threat to his life from police personnel and his apprehension that he would be killed in an encounter. These narrations, in submission of the learned counsel for the revision petitioner, amount to dying declarations of Tulsiram Prajapati and as such, becomes relevant evidence for framing Charge. He placed reliance on statement of PW35 Advocate Salim Khan to demonstrate that Tulsiram Prajapati had even disclosed his apprehension regarding his life to his advocate. It is argued that statements of inmates of jail as well as that of PW35 Advocate Salim Khan show that Tulsiram Prajapati was used by Gujarat Police for tracing out Sohrabuddin Shaikh, and thereafter, instead of keeping Sohrabuddin Shaikh in custody, he was killed.