18, Oct 2019 | Sanchita Kadam
The Rajasthan government and the family of Pehlu Khan filed two appeal petitions on Thursday before the Rajasthan High Court against the acquittal of all six accused in the Alwar lynching case. This came in wake of the August 14 order of a trial court at Alwar that had acquitted all six accused.
They had been charged with lynching Pehlu Khan while he and a few others were transporting cows from Jaipur. Completely ignoring the Section 319 application that named crucial accused named in the dying declaration of Pehlu Khan, the acquittals had sent shock waves throughout the country. While giving the “benefit of doubt” prosecution, the the trial court had made remarks on a botched investigation by the Alwar police and the prosecution which failed to furnish key documents in court to prove the charges.
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Pehlu Khan (55), a dairy farmer from Nuh district of Haryana, his two sons and some others were intercepted and attacked by cow vigilantes near Behror on April 1, 2017. Pehlu succumbed to his injuries on April 4 in a private hospital in Alwar.
A chargesheet against the accused — Vipin Yadav, Ravindra Yadav, Kalu Ram Yadav, Dayanand Yadav and Yogesh Kumar — was submitted before the trial court on May 31, 2017.
Subsequently, the police also accused Goliya and Bheem Rathi of the crime and presented a supplementary charge sheet against them. A case relating to the same crime was filed against two minors and they are facing trial in a juvenile justice court.
The acquittal two months ago had created an uproar, nationwide. It was only after these acquittals that the Congress-ruled state government had formed an SIT and decided appeal the decision. The government had designated additional advocate general R P Singh as the law officer to pursue the matter before the high court, under supervision of the ADGP (Crime). It was to identify lapses in investigation and fix responsibility on individual officers who had conducted the probe. The SIT later pinpointed many serious lapses in the investigation.
The 84-page SIT report now indicates the severe loopholes in the previous investigation: how each of the four investigating officers seriously erred. The question is will they now be prosecuted for dereliction of duty? The SIT report states that the first investigating officer visited the spot where Khan was allegedly assaulted only three days after the crime, failed to call the forensic team and didn’t order mechanical examination of the two vehicles in which Khan was transporting the cows. In all, the officer committed 29 mistakes, the report added. The SIT said the second investigating officer overlooked the “shoddy” investigation and failed to “supervise” the investigation properly. Further, the third investigating officer went to the crime spot but did not record the statements of the eyewitnesses, the SIT said. “He made no effort to correct mistakes in investigation by previous IOs (investigating officers),” the report added. Thereafter, the fourth investigating officer cleared six people named by Khan in his dying declaration without “any new or solid evidence”, the SIT added.
Finally, according to the SIT report, while the assistant director (prosecution) Vijay Singh, had pointed out holes in the investigation as far back as June 2017 (the date that the first charge sheet in the case was filed on June 3, 2017), the local police went against this legal opinion and proceeded to file first charge sheet.
It is clear now from the SIT’s re-investigation report that all six accused should also have been charged under IPC Sections 395 (dacoity), 147 (rioting) and 148 (rioting, armed with deadly weapon), in addition to those dealing with murder, voluntarily causing hurt, wrongful restraint and damage to property.
While the sessions court judge has commented on the fact that the Rajasthan crime branch did not produce either the video or the phone on which it was shot before the court, or even get these analysed in a forensic laboratory, the court itself did little to nudge the prosecution agency into covering the lapses in the probe as the CrPC empowers the courts to do. If the investigation was so shoddy, what should have been the role of the trial court that has been hearing the case for over two years?
The court, in its judgment, even pulls up the police for a delay in the registration of the first information report in the case and comments on the “serious negligence” on part of the investigating officer. However, these officers escape any legal consequences of this gross dereliction of duty. They are not punished by the court at all. It is not as if the court of the judge, Sarita Swami, did not not make copious notes of the weak charge sheet. “This way, in this case, according to the prosecution, the accused were identified on the basis of two videos of the incident shot on mobile. But surprisingly, the video cited by Ramesh Sinsinwar and the photographs prepared from it were not taken on record and neither was the mobile which contained the video, confiscated,” noted the court in its judgment.
Sinsinwar was the then station house officer of Behror police station in Alwar district, and the first investigating officer in the case. In his statement to the court, Sinsinwar said that he had received one of the videos from an informant, but accepted that he had not sent the video to the forensic science laboratory. He also accepted that he did not get a certificate from a nodal officer for the call details of the accused, nor were they verified from anyone. He told the court that he did not take any documents such as bills and SIM IDs from the accused which could show that the accused were the owners of the mobiles, and the phones were also not confiscated. But did the court in any way use its power under criminal law to punish the SHO for these lapses that show a wilful, even criminal, negligence? Observations apart, the court has done little to ensure that officers like Sinsinwar do not get away with such criminal negligence in the future.
Sections in the CrPC, Section 311 with 165 of the Indian Evidence Act, give powers to the presiding judge to summon witnesses, and proactively intervene during trial. Section 173(8) empowers the court to ensure that the agencies investigating the case leave no stone unturned to tie up the loose knots in criminal cases.
The moot question now is whether the state government will pursue prosecutions against errant officers.