Editors note: Firstpost had put out the CBI chargesheet in the Ishrat Jahan case. The full chargesheet is available here. The law students from NALSAR University, Hyderabad have analysed the chargesheet with some arguing for the document, and others against. This article is by the students who said the CBI chargesheet was not convincing.
By Kartik D Monga, Noel Johns and Preeti Kolluri
The CBI's story rests almost solely on witness testimonies. The chargesheet does not rely on any forensic evidence to show that the encounter was staged. The testimonies are recorded under Section 161 of CrPC in front of a police officer and thus inadmissible in a Court. It is to be noted that most of these witnesses are police officials who are themselves party to the alleged crime and had given contradictory statements during earlier investigations by the SIT and the State Police. Thus, there is a high likelihood that these witnesses might turn hostile during the trial.
Abduction of Ishrat and Javed
According to the chargesheet, on 12 June 2004, NK Amin, Tarun Barot with the assistance of MK Sinha and Rajeev Wankhede abducted Ishrat Jahan and Javed from the Vasad Toll booth in Anand district while they were travelling in a blue Indica car bearing the registration number MH 02 JA 4786. Further, they were taken to Khodiyar farm where they were allegedly subjected to illegal confinement.
Using the statements provided by Ishrat’s mother and Javed’s father, wife and brother-in-law, it has been established that Ishrat was employed by Javed for some unspecified purpose ( pp 45, 51 of the chargesheet)
On 11 June, 2004 Javed had left for Mumbai in his blue Indica car and Ishrat informed her family that she would be accompanying him.
Post this, while trying to establish the sequence of the abduction that occurred at the Vasad toll booth, the chargesheet heavily relied on hearsay evidence which is inadmissible in court. Barring the evidence of Kannubhai Shrimali who works as a driver for the construction company involved in the building of the toll bridge, the rest of the statements taken concerning this incident are all of a hearsay nature (page 147 of the chargesheet).
For instance, the toll booth clerks, Rajubhai Dayabhai Patel, Miteshbhai Patel and Nileshbhai Patel only heard of the abduction from unspecified sources. A similar set of statements was given Shailesh Barwad and Rajubhai Solanki who were employed as supervisors at the toll booth and Vipulbhai Patel who owned a shop in that area (pp 152 to 162 of the chargesheet).
Abduction of AmjadAli aka Salim aka Chandu aka Rajkumar
The CBI chargesheet claims that on 26.05.2004, a team of DCB, Ahmedabad City comprising of accused NK Amin, Tarun Barot and IK Chauhan with the assistance of Shri MK Sinha and Rajeev Wankhede, ACIOs of SIB, Ahmedabad abducted the deceased Amjadali from Gota Crossing on the outskirts of Ahmedabad.
The only mention of this incident is there in the statement given by IK Chauhan to CBI on 04.03.2013 (pp 200 to 205 of the chargesheet). In his statement Chauhan accepts that the above named accused have taken a man in custody on the said date but he doesn't name the person. Instead of saying that Amjadali was being taken in custody, Chauhan only describes the man as young and lean.
The chargesheet claims that Amjadali was kept at the Arham farmhouse. BA Chavda who was posted as a guard at the Arham farmhouse describes an incident of firing which happened there. Generally the guards were forbidden from entering the house but at this particular incident BA Chavda entered the house and saw NK Amin struggling with a man of strong build, who was handcuffed.
Later in their statements both IK Chauhan and BA Chavda say that this person was the one killed next to the divider in the encounter. These discrepancies in the description of same person creates a huge doubt about the genuineness of these admissions.
Also the guard at Arham farmhouse also mentions only 6 policemen and not Amjadali when he handed over the house to the police (page 216 to 217 of the chargesheet).
Abduction of Jishan Johar aka Jaanbaz aka Abdul Gani
The CBI chargesheet offers little evidence to prove that Jishan Johar, the third deceased in the case was abducted by the accused police officers before the alleged fake encounter. The evidence put forward is inconsistent and contradictory to each other. In the story made out by the chargesheet, Jishan Johar was abducted and kept in illegal confinement by IB officials at the Gota Housing. But there is no concrete statement made which throws a light as to when or how Jishan Johar was abducted. BA Patel and RI Patel who were the two police officers made to keep a watch on the Ahmedabad Railway Station to apprehend him never came in contact with him (pp 316 to 321 of the chargesheet). BA Patel’s statement says that later he came to know of the identity of a person housed in Gota Housing as Jaanbaz. However this is just hearsay evidence which is not admissible as per the Indian Evidence Act. The statement of RI Patel also does not offer any further information as to the identity of this person placed in Gota Housing.
The other statement which could possibly incriminate the accused in the alleged abduction is that by CJ Goswami who along with Zaheer Ahmed Hussain had kept a watch outside Gota Housing (pp 191 to 196 of the chargesheet). He states that he had seen this suspect and later identifies him as Jishan Johar. However this statement can be refuted by that of Zaheer Ahmed who denies having ever seen any man in custody in the said house (pp 206 to 207 of the chargesheet). Further he does not identify Jishan Johar after the encounter also.
The inconsistencies in the statements made by Nizam Saiyed and Avnishkumar Thakur further weaken the CBI case that Jishan Johar was illegally detained and tortured at the Khodiyar farmhouse. While both of them were present at the farmhouse on the days preceding the encounter, Avnish Kumar states that there was a third person detained in the farmhouse whom he later identifies in the back seat of the car as Jishan Johar (pp 186 to 189 of the chargesheet) but Nizam Saiyed completely denies knowledge of any third person in the farmhouse and categorically states he did not recognise the person sitting in the back seat of the car (pp 181 to 185 of the chargesheet). Thus it is evident that Jishan Johar was never abducted, illegally detained or tortured by the accused in this case.
In any criminal investigation the burden of proof is on the investigative authority to prove beyond reasonable doubt the role of the accused in committing the crime. Important evidence like those of weapons found on the deceased have not been conclusively traced back to either the SIB or the Gujarat State Police. Moreover all the evidence presented by the CBI is in the form of statements to police officers made under Section 161 of the CrPC which have very little evidentiary value and can vary widely during the trial. Further it has been already shown that there is abundant doubt as to conclusive proof of the deceased being abducted at all in the first place. All of these questions show that the CBI has failed to prove a continuous chain of events thus not establishing their case beyond reasonable doubt.
The Wider Conspiracy:
The chargesheet filed by CBI in the Ishrat Jahan encounter case leaves many questions open and unanswered. The story put forward by CBI only begins with the arrival of all the four deceased in Gujarat but does not give any coherent explanation as to their background or motive of coming to Ahmedabad. These are some major questions which needs clearer answers from the investigative agencies.
• From whom did Javed receive Rs 2.5 lakhs and a satellite phone in Oman when it is illegal to use a satellite phone in India?
• Who was Bunty aka Amjadali? Why was he staying with Javed?
• Why were Ishrat, Javed and Amjadali travelling together using fake names? What was the nature of Javed's business? What was Ishrat's relation to Javed?
• Why were Javed and Amjadali trying to acquire pistols in Ibrahimpur just before the Gujarat election? (pp 121 to 125 of the chargesheet)
• Who was Jishan Johar? What was his background and his motive of coming to Ahmedabad?
• Who are C1 and C2 and why is their role not being investigated or being questioned by the CBI?
The CBI has said it will file further chargesheets in the case, which may have more evidence. In our view, though, it's case so far just doesn't stand up.
The authors are students of BA LLB (Hons) at the NALSAR University of Law, Hyderabad.
Updated Date: Aug 04, 2013 16:40:47 IST