Sohrabuddin Sheikh encounter | What are you doing to ensure witnesses testify properly, HC asks CBI

On a day two more witnesses in the Sohrabuddin Sheikh encounter case turned hostile, the Bombay High Court on Monday sought to know from the CBI the steps it was taking to ensure that the witnesses were able to testify "fearlessly".

The HC posed the question to the Central Bureau of Investigation (CBI) after noting that several of the witnesses in the case examined by a special court here had turned hostile, and maintained that the premier investigative agency can't be a "silent spectator".

A single bench, presided by Justice Revati Mohite-Dere, said it was the probe agency's duty to extend protection to its witnesses to ensure they faced no fear or coercion while deposing before the special court.

"Is it not the CBI's responsibility to ensure that its witnesses are protected so that they can depose against the accused fearlessly?

"Considering that several witnesses have turned hostile before the special CBI court, are you providing any protection to them? Your responsibility does not end simply at filing the charge sheet. It is your duty to protect your witnesses," Justice Mohite-Dere said.

The observations came while the court was hearing an appeal filed by the CBI challenging the discharge of former Gujarat IPS officer N K Amin, one of the 15 accused who have been discharged from the case by the special court.

The CBI has charged Amin with being a part of the conspiracy to kill Sheikh, an alleged gangster, his wife Kausar Bi and their aide Tulsiram Prajapati.

To prove its case against Amin, the probe agency has primarily relied upon the statement of Nathuba Jadeja, the driver of the private vehicles in which Sheikh and others were allegedly taken by the accused to the encounter spot in 2005.

As per the CBI's records presented before the HC, Jadeja gave a statement to the probe agency stating he had seen Amin at the encounter site and also at the spot where the accused allegedly burnt Kausar Bi's dead body in an attempt to cover up the incident.

Amin's counsel Mahesh Jethmalani, however, denied the charge against his client in the HC today.

Instead, the senior advocate pointed out that since recording his statement for the first time in the case- before the Gujarat ATS in December 2005 at the time of filing the FIR, Jadeja had gone on to amend his statement several times, and had finally retracted it.

"Jadeja's confessional statement that also incriminated Amin was never recorded by a magistrate to make it admissible as evidence. And recently, while being examined by the special CBI court in Mumbai, he turned hostile," said Jethmalani.

At this, the court asked the CBI whether it had taken any legal action on the charge of perjury against Jadeja and other witnesses who had repeatedly made false statements.

The CBI counsel, Additional Solicitor General Anil Singh, however, sought time to tender a reply to the questions on perjury and witness protection, leaving the court fuming.

"You cannot be a silent spectator. I (the court) am not getting the kind of assistance that I should have been getting from the CBI...If this is your attitude, then why are you even conducting the trial?" Justice Mohite-Dere asked.

The court has been conducting day-to-day hearing on the two pleas filed by the CBI and another three pleas filed by Sheikh's brother Rubabuddin, challenging the discharge of some of the accused police officers in the case.

Sheikh and Kausar Bi were killed in an alleged fake encounter by the Gujarat police in November 2005, while Prajapati was gunned down in another alleged stage-managed gunfight by the Gujarat and Rajasthan police in December 2006.

Of the 38 persons charged by the CBI in the case as accused, 15, including senior IPS officers D G Vanzara, Rajkumar Pandian, Dinesh MN, and BJP President Amit Shah were discharged by the special CBI court in Mumbai between August 2016 and September 2017.

In a related development, two more prosecution witnesses turned hostile in the case.

The witnesses did not support the CBI's case in the special court on the seizure of Shaikh's viscera samples.

Special CBI judge Sunilkumar J Sharma is conducting the trial in the case.