High Court upholds acquittal in encounter case as prosecution failed to establish conspiracy and abduction.

The appellants, brothers of the deceased Sohrabuddin Shaikh, challenged the 21st December 2018 acquittal of 22 accused persons (respondent Nos. 2–23) by the Special Sessions Court, Mumbai.

The prosecution case alleged that in November 2005, Gujarat and Rajasthan police intercepted a luxury bus near Zahirabad, abducted Sohrabuddin, his wife Kausar Bi, and Tulsiram Prajapati, and subsequently killed them in fake encounters.

Following Supreme Court directions, investigation was transferred from the Gujarat CID to the CBI in 2010, and the trial was moved to Mumbai in 2012 to ensure impartiality.

During the trial, 92 out of 210 prosecution witnesses turned hostile, and 13 accused persons were discharged prior to the final judgment.

The Special Court acquitted the remaining respondents, citing a lack of evidence regarding a "politician-police nexus" or proof that the encounters were staged.

The Court applied Section 378 of the Cr.P.C. regarding the limited scope of interference in appeals against acquittal, emphasizing the "presumption of innocence".

It relied on the "two-views theory" from Mallappa v. State of Karnataka, holding that if the trial court’s view is plausible, it cannot be reversed simply because an alternative view exists.

On circumstantial evidence, it applied the "complete chain" test from Hanumant v. State of M.P.

Regarding hostile witnesses, the court followed Sat Paul Singh v. Delhi Administration and Bhajju v. State of M.P., noting that while such testimony is not entirely effaced, it requires corroboration.

It applied the "reasonable nexus" test for official duty under Section 197 Cr.P.C. as per D.T. Virupakshappa v. C. Subhash.

The Court found that the prosecution failed to establish the foundational facts of abduction and illegal detention.

It noted that the primary witnesses—passengers and bus staff—did not identify the accused or confirm the abduction during trial.

Forensic evidence failed to link the seized weapons to the injuries; specifically, ballistic reports did not match service pistols to recovered cartridges.

The testimony of PW-207 (a co-accused) was deemed unreliable due to criminal antecedents and contradictions with the prosecution's own narrative regarding the location of the killings.

The court held that Section 106 of the Evidence Act (burden of proof for facts especially within knowledge) did not apply because the prosecution failed to first prove the victims were in police custody.

Furthermore, the court upheld the Special Judge’s finding that the police officers were acting in the discharge of official duties, thus requiring a mandatory prior sanction for prosecution under Section 197 Cr.P.C., which was absent.

The court concluded that the prosecution failed to prove the conspiracy to murder or the fake nature of the encounters beyond a reasonable doubt.

It further dismissed an impleadment application against a previously discharged accused, noting it was filed with "oblique motives" and suppressed material facts.

The final order confirmed the acquittal of Respondent Nos. 2 to 23.