25 witnesses hostile, key witness not credible — HC order acquitting ex-MP, others in Jethwa murder

09/05/2024

New Delhi: Twenty-five of the 26 key prosecution witnesses turned hostile during the trial, the Gujarat High Court has noted in its order acquitting seven accused, including former BJP MP Dinubhai Solanki, in the 14-year-old murder case of Right to Information (RTI) activist Amit Jethwa.

The seven were sentenced to life imprisonment in July 2019 by a special CBI court.

Overturning the trial court’s order Monday, the HC observed that there was no credible evidence connecting Solanki and the six others to the murder.

Going a step further, the bench of Justices A.S. Supehia and Vimal Vyas initiated criminal proceedings for perjury against eight of the 25 hostile witnesses and observed that the subordinate court had “conducted the trial with a preconceived notion of conviction”.

“We are conscious of the fact that the prosecution for perjury should be sanctioned only in those cases where the perjury appears to be deliberate and conscious, and conviction is reasonably probable or likely,” the bench said, giving reasons for initiating perjury action against the eight witnesses.

A prominent RTI activist and social worker, Jethwa was shot dead 20 July, 2010, in Ahmedabad opposite the Gujarat High Court by two motorcycle-borne men. The assailants attacked him around 8.30 pm and fled the scene on foot.

With regard to the sole witness who did not turn hostile, the high court declined to treat him as credible because the prosecution had failed to establish his stellar character.

According to the prosecution, this witness was Solanki’s employee and had overheard the conspiracy hatched by him at his farmhouse. But in the absence of any documentary evidence to prove that this witness worked with Solanki, the HC, unlike the trial court, refused to rely on his testimony to hold the accused guilty.

The high court further reprimanded the Gujarat Police for allowing the culprits to escape from the city limits and said the “truth is buried forever”.

It noted that the head police constable had reached the crime scene within 55 seconds, followed by a team of top police officials in the next 20 minutes.

“The entire investigation, right from the inception of the offence, appears to be perfunctory and prejudiced. The prosecution failed to secure the confidence of witnesses,” the HC observed.

Trial of witnesses

Jethwa’s death had led to huge outrage among the RTI activists who blamed the state government for the murder.

The Gujarat Police commenced the probe soon after and arrested six persons in connection with the killing, including a constable and Solanki’s nephew Shiva.

Dissatisfied with the police probe, Jethwa’s father approached the HC with a request for an independent and impartial probe. Given that there were apparent gaps in the police probe, the HC allowed the plea and transferred the case to the Central Bureau of Investigation (CBI), which later filed a chargesheet against Solanki and the others.

The chargesheet claimed that Solanki had a motive to eliminate Jethwa since he, through his RTI applications, was highlighting “illegal mining operations” undertaken by the BJP leader.

During the course of the trial, out of a total of 195 witnesses, 105 reportedly turned hostile in the first round of trial because of threats. This prompted Jethwa’s father to launch another round of litigation in the HC, which allowed his request for a fresh trial.

Dissatisfied with the order, Solanki moved the Supreme Court, which permitted the retrial but allowed the lower court to recall only 26 witnesses for fresh examination.

After the completion of the second round of trial, a special CBI court in Ahmedabad convicted all accused in July 2019, sentencing them to life imprisonment. Solanki and the others appealed against the order in the HC the same year.

In the HC, the prosecution accused Solanki of threatening Jethwa as well as his father.

The prosecution contended the BJP leader’s claim that Jethwa was his political rival, and said he was a neutral undefined RTI activist and social worker, and that gave Solanki reason to commit his murder.

Witness Rambhai

The HC rejected the statements of the 25 witnesses as they retracted their earlier words recorded before a magistrate under Section 164 of the Code of Criminal Procedure (CrPc). A statement recorded under this section is admissible under law, while the one given to the police under Section 161 is not.

The only prosecution witness who stood firm on his statement recorded under Section 164 was Rambhai Solanki who, according to his own testimony, was a worker at the farmhouse of the BJP leader.

The CBI had projected him as the link to establish the criminal conspiracy that was allegedly hatched at Solanki’s farmhouse.

On examination of Rambhai’s statement, the HC found gaps in his testimony to infer that he stated incorrectly about his employment with Solanki and his presence at the farmhouse.

It also questioned Rambhai about not approaching the police if he had heard the conspiracy. The CBI had recorded his statement 2 years and 10 months after Jethwa’s murder.

Rambhai’s silence was surprising because he had good relations with Jethwa’s father, the court noted in its order, also observing that Rambhai was purportedly the only person who had heard the alleged conspiracy.

The HC factored in all these associations of Rambhai and his silence for almost three years to state that the prosecution’s case was dented due to such gaps.

Rambhai’s evidence was also discarded on the ground that the prosecution had not presented any documentary evidence to show that he worked at Solanki’s farm as a supervisor and was being paid a monthly remuneration.

Rambhai was included as a witness after another witness took his name. According to this witness, Rambhai paid him whenever he did an errand at Solanki’s farm and also put his signature on the payment receipts, the HC said.

However, the prosecution, the HC noted, could not support this witness’s statement with any other evidence, especially documentary proof like producing the said receipts, hence casting doubt over Rambhai’s credibility.

‘No proof’

In the HC’s view, the CBI could also not sufficiently prove that Jethwa received threats from Solanki. The investigating agency had made this allegation on the basis of an advocate’s statement, who claimed that Jethwa met him a few days before he was killed and spoke about Solanki’s “threat”.

The HC did not repose faith in this lawyer’s statement because there was no evidence to prove his meeting with Jethwa. The meeting, it added, took place in the lawyer’s chamber, for which Jethwa would have got a gatepass made. But the prosecution had produced no such document.

Jethwa’s father’s statement was also considered by the HC in its acquittal judgement. His testimony highlighted that the relationship between Solanki and Jethwa deteriorated after they contested elections against each other in 2007.

Jethwa’s father’s statement in the trial court was seen as a diluted one. While before the CBI he had pointed fingers at Solanki, he did not make a firm statement against the BJP leader in court.

The father stated that since his son had filed several RTI applications, there was a possibility of involvement of other “high-profile” persons in his son’s killing.

The court noted that while his relationship with Jethwa wasn’t “cordial”, it couldn’t amount to Solanki being convicted of a serious offence like murder. “The instant case will be reminisced as an antithesis to the quote Satyameva Jayate (truth alone triumphs),” it said, acquitting the accused.

(Edited by Nida Fatima Siddiqui)

(Uttkarsh Mishra is a first-year law student with NALSAR and is interning with ThePrint)