16, Aug 2019 | Teesta Setalvad
It is a question that Indian courts will have to answer. On the eve of India’s 73rd Independence Day, a travesty of a verdict blotted India’s jurisprudential landscape. Rejecting the weak links in the process of collection of evidence during investigations –which included a video that was not forensically tested by the state’s prosecution—but which clearly could identify the assailants of a 55 year-old cattle trader, Pehlu Khan, an Alwar Court has acquitted all six accused.
The entire judgment may be viewed here. While undoubtedly there will be an appeal, serious questions on the conduct of the trial arise. Especially since the issue relates to the administration of public justice. A haunting question before our courts is, did no one kill Pehlu Khan then?
Though this is certainly not the first time we have seen such a reluctance to punish those guilty of brute crimes, what makes this denial of justice starker, is the prevalent political and social environment, conducive to mob violence that surrounds us. India a spiral in cases of lynchings over the past six years. While many of those who have been mercilessly attacked by ‘the mob’ –that enjoys undoubted political patronage if not outright sanction—have been Muslim cattle traders, several have also been Dalits or belonged to other marginalised sections. On test then is how insulated are our institutions of justice from this pervasive mob psyche.
Indian courts have in the past, in those rare moments of judicial vindication transferred cases, stepped in to ensure the integrity of the investigation, questioned the lapses in the prosecution and most crucial of all actually used the expanse of powers for re-investigation and further
investigation given to the trial court in our Code of Criminal Procedure (Crpc). To ensure that justice is done and the guilty are punished.
Epic pronouncements by the Supreme Court, have made these crucial pronouncements on the role of the trial court when faced with gross public crimes made worse by a deliberately botched-up investigation and weak kneed prosecution. Tragically, the absence of a systemised institutional memory within even our courts has reduced these significant pronouncements to glimmers of hope within the broader normal of a low conviction rate coupled with a dulled and hollowed out jurisprudence.
Six of the accused named by Pehlu Khan in his dying declaration (Om Yadav, Hukum Chand Yadav, Sudhir Yadav, Jagmal Yadav, Naveen Sharma and Rahul Saini) were actually dropped as accused when the CBI Crime Branch was brought in to head the investigation. Efforts to arraign them as accused through a Section 319 of the Criminal Procedure Code (CRPC), before the same trial court that finally acquitted the six other accused, were rejected by the judge. The application under section 319 was argued over two days by advocates for the family of the deceased in July 2019.
While the judge has ruled that the Rajasthan crime branch did not produce before it, in court, the video or the phone on which the video was shot, 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. Lawyers in the case also claim the police did not get the video analysed and certified by a forensic science laboratory. What was the court doing when it saw these obviously weak links in the prosecution case? Conversely, 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 copious verdict expresses ‘surprise’ over the fact that the videos and photographs on the basis of which accused were identified were not taken on record as evidence. The court, in its judgement, even pulls up the police for a delay in the registration of the FIR 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 in duty. In fact, they are not punished by the court at all.
What was the trial court doing through this process, as it presided over this sham of a prosecution and investigation? Sections in the Code, section 311 with 165 of the Evidence Act give powers to the presiding judge to summon witnesses, and pro-actively intervene during trial. Section 173(8) empowers the court to ensure that the agencies investigating the case leave no stones unturned to tie up the loose knots in criminal cases.
“..In the case of a defective investigation the Court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
Karnel Singh v. State of M.P. (1995 (5) SCC 518.
The lapse or omission is committed by the investigation agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of the Courts getting at the truth by having recourse to Section 311, 391 of the Code and Section 165 of the Evidence Act at the appropriate and relevant stages and evaluating the entire evidence;
…It is no doubt true that the accused persons have been acquitted by the trial Court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on legal process.
Paras Yadav and Ors. v. State of Bihar (1999 (2) SCC 126
Justice has no favourite, except truth. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.
Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble: (2003) 7 SCC 749.
In the especially the famed Zahira Shaikh case, Zahira Habibulla Sheikh v.s State of Gujarat, (2004) 3 SCC has made several serious observations on the role of the Trial Court:
“ ..Discovery, vindication and establishment of truth are the main purposes underlying existence of courts of justice;…
“In a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice – often referred to as the duty to vindicate and uphold the ‘majesty of the law’”…….
“…The trial Court should have exercised power under Section 311 of the Code and recalled and re-examined witnesses as their evidence was essential to arrive at the truth and a just decision in the case. The power under Section 165 of the Indian Evidence Act 1872 (in short the “Evidence Act”) was not resorted to at all and that also had led to miscarriage of justice.
“..The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court
(If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a more recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.( Zahira Habibulla Sheikh v.s State of Gujarat, (2004) 3 SCC 158)
Section 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the power conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice.
“The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to courts of law. …… It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson’s eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm…… “ (Zahira Habibullah Sheikh supra….)
The court “has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself….. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the frame work of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. (Zahira Habibullah Sheikh supra, pp.182 to 184, paras 30 to 36, page 192, paras 55 & 56.)
The Trial/First Appellate Courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself. (Zahira Habibullah Sheikh supra)
Section 173(8) is a crucial section under the Code that gives the court and the prosecution the legal say in ordering further investigation to actually strengthen the case.
Section 173 (8) provides for new accused to be charged with the offence if the Magistrate thinks so to be fit during the trial of one accused for an offence. So, if A is being prosecuted and during the prosecution the Magistrate believes that B might be another accused in the offence he may charge B with the offence and summon him as an accused. The proceedings against B will start afresh with witnesses giving fresh statements. It must be noted that this provision may be invoked only and only after the court has taken cognizance of the offence. This is the provision for reinvestigation as prescribed in the stage where the prosecution is still in the Sessions Court. “The Code of Criminal Procedure is an exhaustive Code providing a complete machinery to investigate and try cases, appeals against the judgments. It has provisions at each stage to correct errors, failures of justice and abuse of process under the supervision and superintendence of the High Court as would be evident from the following: (i) The Court has the power to direct investigation in cognizable cases under Section 156(3) read with Section 190 of the Code of Criminal Procedure. (ii) A Magistrate can postpone the issue of process and inquire into the case himself under Section 202 (1) of the Code of Criminal Procedure.
From October 2017 at least when a widely publicised investigation by Ajit Sahi pointed to the serious lacunae in the probe, the Court was not unaware of the deliberate weak links in the probe. For instance, the nine hour delay in the registration of the FIR when the crime scene was a mere two kilometres from the police station; while the police’s own Final Report admits to recording the statement of a badly injured Pehlu Khan at 11.50 a.m. on April 1 (the day of the attack), the FIR was registered only 4:24 am on April 2.
The vacillations of the police go further when they claim they got to know of the crime only at 3.54 am on April 2 (four hours after they have recorded the statement that is thereafter treated as a dying declaration) How, and more importantly why, then does the court allow the police to get away with this contradiction when it amounts to shielding the accused from conviction? There is worse. The police manipulates evidence, destroys records. On the day he was brutally assaulted, Pehlu Khan was carrying proof of the purchase of cattle, legitimately from a cattle fair. These documents are snatched and torn by the accused, who are however not charged with the serious offence of destruction of evidence. Medical records are also manipulated: Pehlu Khan’s autopsy was conducted by three government doctors from the Community Health Center, Behror.
The post mortem report says, “After careful examination of dead body by medical board, the fact[s] reveals that cause of death is shock brought as a result of antemortem thoraco-abdominal injuries mention[ed] in PMR [post-mortem] report sufficient to cause of death as ordinary course of nature.” Ignoring this medico-legal evidence from the state health centre, the police choose to bring in doctors from a privately run Kailash Hospital. Who owns Kaislash Hospital? A company named Healthcare Ltd., a company said to be founded and owned by Dr. Mahesh Sharma, who is the Union Minister of State for Culture, Environment, Forests and Climate Change. A BJP leader, Dr Sharma has been a member of the Rashtriya Swayamsevak Sangh (RSS) since the age of 14 years according to his own website www.drmaheshsharma.com He is also a known sympathizer of cow vigilantes and even attended the funeral of one of the accused in the Dadri Lynching Case, where Mohd Akhlaq was killed by a mob for allegedly consuming beef. All these things point to the wilful, deliberate and gross mismanagement of the case and suggest that a miscarriage of justice is possible in this matter. The icing on the cake for the police-criminal nexus is witnesses when a ‘General Surgeon V.D Sharma’, from this Kailsash hospital, under whose care Khan was placed, gave a statement to the police claiming that Khan was absolutely fine on April 2 and died after suffering a heart attack on April 3. He further claimed that Pehlu could not have died due to his injuries. Though the Kailash Hospital is only 2.9 kms away from the Behror Police Station, why did it take more than four hours before even an entry could be made in the general diary? According to details in Khan’s dying declaration, policemen were present at the crime scene. However, neither their names not their statements have been included in the FIR.
The police, in fact gave a clean chit to several accused based on statements from the staff of a local cow shelter and phone records. What the police failed to highlight was that Jagmal Yadav, one of the accused, was also the manager of the cowshed whose employees testified that he and the other accused were present at the cowshed at the time of the crime. Relevant and harsher IPC sections ignored: the police charged the Gau Rakshaks under section 147 (rioting), 143 (unlawful assembly), 323 (voluntarily causing hurt), 308 (culpable homicide) and 379 (theft). These are mild sections and amount to nothing more than a rap on the wrists. If the police really wanted to build a strong case against the perpetrators, they would have charged them under section 120-B (criminal conspiracy).
The men were already present at the crime scene when Khan and his companions reached the spot. This shows prior knowledge and planning. The police should have charged the Gau Rakshaks with 307 (attempt to murder) instead of 308. In fact, it was only when Pehlu Khan died that the police were forced to add a serious section 302 (murder) to the list. Given how the Gau Rakshaks tore up the documents proving the cattle were being transported for dairy farming section 204 (destruction of evidence) should also have been applied. It is implicit that Khan’s religion made him a soft target. Thus setion 153-A (promoting enmity on grounds of religion) should have also been applied.
There are several other questions that should haunt our system especially allegations of the links of the accused to ultra-right organisations which were also left un-investigated in the probe.
It is not as if the court of Judge Sarita Swamy not made copious note of the weak charge sheet. For instance the judge also observed, “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 was not taken on record and neither was the mobile which contained the video, confiscated,” noted the court in its judgment. The tragedy is that the court stops at making this observation doing little in the two long years while the case was being heard, to ensure that this evidence was both verified and brought on board.
Sinsinwar was the then SHO 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 hadn’t sent the video to the forensic science laboratory (FSL). He also accepted that he didn’t 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 didn’t 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 to punish the SHO for this lapses that show a wilful even criminal negligence?
“By studying the statement (of Pehlu Khan) it becomes clear that it was recorded on 11:50pm on 01.04.2017 but in order to lodge a case, that statement has been given to the police station next day 02.04.2017 on 3:54pm in the afternoon, after around 16 hours, which reflects the serious negligence of police official Ramesh Sinsinwar in the matter,” says the judgment.
The court also noted that the investigating officer, before recording Khan’s statement in the hospital, didn’t take a certificate from doctors on whether he was in a state to record his statement or not, and that the statement was not attested by the doctor treating Khan.
Observations apart, the judge has done little to ensure that officers like Sinsinwar do not get away with such criminal negligence in the future.