‘We hang petty thieves, appoint great ones to office’

Over 2,500 years ago, Aesop wrote, “We hang the petty thieves and appoint the great ones to public office.” This adage comes to mind in the context of the acquittal of all accused in the encounter deaths of Sohrabuddin Shaikh and his friend Tulsiram Prajapati and in the abduction and murder of Kausar Bi, Sohrabuddin’s wife.

The barebones story is as follows: Sohrabuddin was allegedly an extortionist who was threatening some Rajasthani marble traders. There are indications that he was also in some manner connected with the murder of former Gujarat home minister Haren Pandya. In November 2005, Sohrabuddin, his wife Kausar Bi and Tulsiram Prajapati were picked up by police officers from Gujarat. Sohrabuddin was killed three days later in an encounter. His wife Kausar Bi was never seen again -- she was killed in a farmhouse in Sabarkantha, Gujarat, and her body cremated. Prajapati was put in jail and was killed a year later, in another encounter by the Gujarat police.

Ian Fleming famously wrote, “Once is happenstance. Twice is coincidence. The third time, it’s enemy action.” Sohrabuddin could have happened, Kausar Bi could have coincidentally died, but Prajapati, dying a year later, just as he was about to depose on the deaths of the other two, was definitely planned action. Despite everything, those police officers and others accused of being parties or conspirators to the three killings have now seemingly got away scot free.

Also read: Who killed Sohrabuddin?

This, despite the Supreme Court transferring the investigation of the case from the Gujarat police to the CBI and the trial from Gujarat to Mumbai after the court recorded on January 12, 2010, that it was “satisfied that an attempt was made by the investigating agency of the State of Gujarat to mislead the Court.”

On July 23, 2010, the CBI filed a charge-sheet naming Amit Shah, the then home minister of Gujarat, and 18 others, including several police officers, as accused. By its order of September 27, 2012, the Supreme Court transferred trial of the case from Gujarat to Mumbai. It observed that “in order to preserve the integrity of the trial, it is necessary to shift it outside the State.”

Ultimately, the trial commenced in Mumbai. The ruling party at the Centre had changed and come in with an unprecedented majority. Shah became the head of the ruling BJP. The CBI was set to examine 210 witnesses in the case. Witness after witness turned hostile.

The case was originally assigned to JT Utpat, Special Judge, CBI, Mumbai. He was transferred from the court after he reprimanded Shah in court for not showing up for the hearings. The transfer was in contravention of a September 2013 directive of the Supreme Court that the case had to be heard by the same judge from start to finish. Judge Utpat was replaced by Judge BH Loya in June 2014.

Judge Loya directed Shah to appear in the case and warned that no further adjournments would be given. On the night of November 30-December 1, 2014, the 48-year-old judge died suddenly in Nagpur. The death caused a furore and led to the filing of a slew of petitions before the Supreme Court. The court found nothing worthy of directing a criminal investigation.

Soon after Judge Loya’s death, Shah was discharged from the trial. The CBI, which had earlier pointed to Shah being the “lynchpin in the conspiracy”, spent only a few minutes opposing his application for discharge. It did not file an appeal for review. An appeal was filed by Sohrabbudin’s brother in November 2015. However, the petition was withdrawn when Shaikh told the court that he did not wish to pursue the matter.

The trial concluded in December 2018. In the end, 92 of the 210 witnesses had turned hostile. In its conclusion, the court records, “I am not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the deceased in particular by the fact that a serious crime of this nature goes unpunished, but then the law does not permit the court to punish the accused on the basis of moral conviction or suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It is no doubt a matter of regret that there is reported the killing of Sohrabuddin and Tulsiram Prajapati which is going unpunished. So also Kausarbi, who was the wife of Sohrabuddin disappeared and the script of the CBI during investigation that she was killed and set ablaze is lacking in evidence and is also going unpunished. However, just for the sake of record, the accused cannot be punished holding them guilty on moral or suspicion ground. I have therefore no option but to conclude that the accused are not guilty and are to be acquitted.” Rubabuddin Shaikh, speaking to reporters after the judgement said that since the court had found no one guilty of the murder, it would appear that Sohrabbudin had killed himself.

It is not only Sohrabuddin, Kausar Bi and Prajapati whose deaths have gone unpunished. Haren Pandya and Judge Loya, too, feature in this series of unexplained deaths. Along with all of them, what has also probably died in India is the idea of honest police investigation followed by just punishment under the law. Never before have the powerful seemed to be so beyond the long arm of the law.

However, the only remedy is the passage of time and the diminution of power. Sajjan Kumar, who was acquitted in 2013 when his party was in power, finds himself being convicted on appeal. L K Advani and others, who were not prosecuted for demolishing the Babri Masjid, find themselves facing a day-to-day trial. The law may be seemingly blind at times, but it is also capable of recovering its sight. Like the truth, murder will always out. The tales of the unquiet dead may yet come to haunt from beyond the grave.

(The writer is a Supreme Court lawyer)