When I read in the newspapers that the Alwar trial court had acquitted the cow vigilantes accused of lynching Pehlu Khan – which, to me, had appeared an open and shut case from the newspapers – I was curious to find out on what grounds it had done so.
Having worked in the legal field where it is commonly believed that a judge who has written a perfect judgment is yet to be born, I did not expect it to be perfect. But most certainly, I expected to see from a senior judicial officer a judgment on a standard format supported with sound legal principles.
Without casting aspersions on the judge, I must say, on going through it, not only was I sorely disappointed, but I was also pained at the quality of justice. Hence, I wish to discuss it.
For this I propose to set out facts available in the judgment, and discuss the provisions of criminal law as I know them, in simple words, with due apologies to the knowledgeable. My main focus will be on the manner in which judicial officers have dealt with the case at different stages, and, whether or not it is in conformity with the principles governing criminal law, while pointing out the blatant instances of botched investigation which had a direct bearing on the case.
For the uninitiated in the basics of Indian criminal law, it must be told that various statutes define a group of acts which constitute an offence, while the Code of Criminal Procedure (CrPC) or specific statutes prescribes the manner of investigation and trial, whereas The Evidence Act sets out the mode of proof of statements and documents upon which alone a judgment can be delivered.
At the outset I must point out that the police exonerated the six accused named in the FIR and sent up only seven others whose involvement apparently appeared in the mobile videos. With this preamble let us look to the facts of the case in brief.
On April 1, 2017 one Pehlu Khan, son of Mohammed, gave a statement at the intensive care unit of Kailash Hospital, Behror that on the same day, he along with his sons Arif and Irshad, were returning to their village on a pickup van with two cows for sale.
On the way, at Behror, at 7 pm some 200 people stopped their pickup van and variously assaulted the three of them. While assaulting, they were calling out each others’ names – Om Yadav, Hukmchand Yadav, Navin Sharma, Sudhir Yadav, Rahul Saini, and Jagmal – and also saying they belonged to Bajrang Dal and Vishwa Hindu Parishad.
While they were being assaulted another pick up van arrived carrying Ajmat and Rafiq with three cows. They were also assaulted by the same mob.
He added that some persons were recording the happenings on their mobile phones. Having sustained several injuries on his chest and vital organs he died a couple of days later.
On this statement, a First Information Report (FIR) against six aforesaid accused persons was instituted and an investigation started.
The judgment reveals that several police officials probed this case for several months. The first investigating officer (IO) Ramesh Sinsiniwar received a video clip from a police spy which he transferred on his own phone and got photographs printed. On the basis of these, he seems to have arrested the trial-facing accused Vipin, Ravindra and Kalu Ram.
Thereafter, upon reading their discovery statements, he recovered three dandas or heavy sticks allegedly used for beating up the deceased and injured. A motorcycle was also recovered at the behest of Vipin from his house. The IO also procured the call detail records (CDR) of trial-facing accused Vipin, Dayanand, Kaluram, Ravindra and Yogesh, which he produced in court but without the mandatory certification of the telephone company nodal officer.
The next IO, Parmaal Singh, Vrittadhikari, Behror police station, took over investigation six days later and examined a number of witnesses including, importantly, one Ravinder Kumar (prosecution witness 3) who had recorded part of the assault on his mobile phone. Singh seized this phone and got photographs developed from them. Importantly, he also procured the CDR of the FIR-named accused persons but is silent as to what it revealed about their presence at the place of occurrence.
Jaipur district additional superintendent of police (SP) Ramswaroop Sharma stated that he had supervised the case and on looking at the records had concluded that the accusation against the six FIR-named accused persons was proved and as against the persons who were not named in FIR, further investigation was required. He then forwarded the file to the inspector general, Jaipur.
However what appears is that the file went to Crime Branch Additional SP Govind Detha after about three months since the crime. Detha summoned and questioned the six FIR-named accused persons, and was satisfied from their call details and location that they were not at the place of occurrence but at Rath Gaushala at the crucial time. This was a fact corroborated by an employee of the gaushala too. He thus exonerated the FIR-named accused persons and concluded the case to be true only against the seven arrested accused (including two juveniles) along with Bhim Rathi and Deepak, who faced trial.
Hence what appears is that the opinions of two police officers of the same rank ran absolutely counter to each other in respect to the six FIR-named accused, but then Detha’s opinion prevailed. A report was filed in the court that the six accused were innocent, seemingly on their plea of alibi (of being elsewhere), which was routinely accepted by the magistrate.
Here I will pause and point out that one of the basic principles of criminal law is that whenever an accused takes a special plea on his innocence, such as alibi, the onus shifts on him to satisfy the court, during trial, that his plea is justifiable. Since an alibi is a rebuttable question of fact, the police rarely gives a clean chit to an accused, and instead leaves it to the court to decide on the issue. So I am surprised as to how the police submitted a final report against the six on their plea of alibi, in a case of such a serious nature, and no one protested.
Now the question is whether the opinion of the police was binding upon the magistrate when the report came to him. According to the CrPC, at this stage, the magistrate has to look into the records and apply his judicial mind, evaluate the material appearing against each of the accused, and then independently decide whether to proceed against him or not.
From this stage onwards the judiciary takes control of the case. However, here, even when records revealed direct material against the six accused for causing the brutal death of Pehlu Khan and injuring four others, the magistrate blindly accepted the report.
In my experience, I have almost never come across an order of a magistrate accepting a final report when there is prima facie direct material against an accused in the FIR, most certainly not on a plea of alibi. According to me, the magistrate committed a gross dereliction of duty and apparently aligned with the police in depriving a citizen of his fundamental right to justice, for which there can be no adequate remedy or compensation .
There is another point which needs mention here. According to the CrPC, whenever police sends a report exonerating persons named by an informant (Pehlu Khan here) it is mandatory upon the magistrate to notice and hear the informant or victim, before proceeding further. I find no mention that the magistrate followed this procedure. If he did not, it is a patent illegality.
Now the curtains open and the stage is set for trial.
Courts in India are hierarchical and cases are tried before a particular level of court according to the severity of sentence prescribed in the offence. The present case being one of murder, the sentence of which is life or death, it was to be tried by a Court of Sessions so the case was transferred to the Additional Sessions Judge I, Alwar through the Sessions Trial No. 24 of 2019.
During trial, the prosecution examined 44 witnesses out of whom were the four injured eye witnesses Irshad, Ajmed, Arif, and Rafique.
They all consistently named the six FIR-accused, as well as those facing trial, with minor variations. In my considered opinion, at that stage, when four injured eyewitnesses consistently disclosed complicity of the six FIR accused, the trial court should have summoned them to face trial.
In such situations generally, a petition is filed by the public prosecutor who represents the state in criminal cases but evidently the state was not interested in prosecuting the six, for whatever reason, so the trial court, in order to prevent injustice, should have acted suo motu instead of being judicially apathetic.
On discussion of evidence the trial court concluded that:
- Pehlu Khan had died on account of the injuries inflicted upon him and not of heart failure as pleaded by the defence.
- Witnesses Irshaad, Ajmat, Arif and Rafique had sustained injuries in the same transaction.
- Whether the accused facing trial were involved was the next question it framed and discussed the evidence of the four eye witnesses and the investigating officers in the following manner.
It was of the opinion that the four eyewitnesses had not disclosed the names of any accused in their 161 statements (i.e. statements of witnesses recorded during investigation under this provision of the CrPC).
It noted that there were discrepancies in the names of the accused in court. Further, no test identification parade (TIP) was held and while Irshad had refused to identify anyone on account of lapse of time, the rest three were not asked by the public prosecutor to identify them at the dock.
In the 161 statements, witnesses had mentioned of only five miscreants on two motorcycles, whereas in court they mentioned that eight or nine miscreants had come on three or four bikes. It found it odd that they had not named the accused in 161 statements but named them in court after two years, also including such names which had not been mentioned by Pehlu Khan without explaining how they had learnt their names.
On investigating officers:
It noted that the persons named in the FIR had not been sent up since investigation had revealed that they were present elsewhere but it had not investigated as to how Pehlu Khan had learnt their names even though he belonged to Haryana and was not expected to know them.
The TIP was essential because the witnesses had not named the accused. Witnesses were unreliable because none of them identified the accused in court.
It castigated the IO for not taking the certificate of the doctor on Pehlu Khan’s statement and for instituting the FIR after a delay of 16 hours.
It finally concluded that prosecution had failed to prove its case against the accused beyond all reasonable doubt because;
i) they had not been named in the FIR,
ii) or in 161 CrPC statements,
iii) the mobile from which photographs were developed by PW 30 was not seized,
iv) the witnesses of PW 30 Ravinder’s mobile seizure had not supported the case,
v) the TIP was not conducted,
vi) the witnesses did not identify the accused in court.
To answer each of the points for acquittal:
i) Undoubtedly persons who are not named in the FIR can also be convicted since time and again a clichéd phrase that the ‘FIR is not an encyclopaedia’ has been used in various decisions.
ii) I am surprised the court started the discussion on complicity of the accused by examining statements U/S 161 (Exts D 11- D14) as though they were evidence and noting that the four witnesses had not named any of the accused in their statements recorded in U/S 161 CrPC.
I may briefly explain here that once trial begins, the judge proceeds to record statements of PWs, which, only when proved by the strict methods of the Evidence Act, translate to what we call ‘evidence’. Statements recorded during investigation under U/S 161 CrPC (loosely termed 161) are not evidence, for which reason no court can use them.
Their use in trial is limited to the extent that they can be used by any party to impeach credibility of a witness. In this case, I find that it was loosely suggested to the witnesses that they had disclosed the names of the accused in 161 statements but the attention of the IO was not drawn, so there was no way the court could have concluded that the accused were not named in 161, on the suggestions to witnesses alone.
Either the trial court was oblivious of the basic rules of the Evidence Act, or, much the worse, misinterpreted it in favour of the accused without legal sanction.
iii) I find that the trial court while discussing the evidence of the first IO Ramesh Sinsiniwar with regards to PW 30 noted that he did not disclose when he received the video clip from the spy, has not explained by which electronic medium he got it transferred, whether it was seized, or which photographer had developed those photos.
However, when it concludes it does so loosely saying the mobile was not seized by him.
iv) Where rejection of the evidence of PW 3 Ravinder, and photographer on the premise they had been declared hostile is concerned, it clearly is an error of record. PW 3 Ravinder had been declared hostile only on the point of him having named Dayanand earlier (which point was noted by the trial judge itself) and his evidence on the point of recording a video clip on a mobile he was holding and handing it over to the police had remained unshaken.
Similarly the photographer, initially said that he did not remember whether he had made any CDs or prints in the present case but later added that mobile phone had been brought by the police and he may have made prints or videos but he did not remember. So the statement was ambiguous.
Law on the evidentiary value of a hostile witness is that his evidence can be used by any party to the extent it supports it, so when PW 3 Ravinder supported the fact of recording the assault, handing over his mobile to the police, corroborated by the IO (PW 32), and seizure witness Daya Ram, it should not have been rejected on that ground.
v) The court castigated the police, amongst other things, for not having got conducted a TIP. The position in respect to investigation is that once some unknown accused are involved in a case the police, in order to clinch their identity, gets a TIP done where the witnesses are asked to identify the miscreant in the presence of a magistrate.
However it is of limited use and mainly for purposes of pointing out that the police is on the right track when it comes to the investigation. Having said that, I must add that the police should have held a TIP if not to connect the names with the faces then at least to ensure the certainty of the accused.
Though the reason why the court stressed on the importance of TIP was because it proceeded by placing implicit reliance on 161 statements, which it should not have done.
vi) The witnesses did not identify the accused in court.
No doubt witness Irshad said he was not in a position to identify the accused on account of lapse of time but no effort was made by the public prosecutor or the court to get the rest of the three witnesses to identify the accused at the dock.
The public prosecutor argued that when a large number of persons indulge in assault on a number of persons it is not possible to get them identified. And the court blamed the prosecutor for it, while royally abdicating its own responsibility.
Here I would hold the court as negligent as the public prosecutor since a trial judge is expected to be more than a ‘mute spectator’(another cliché).
We thus find that the trial court rejected the eyewitness account and photographic evidence but did not even care to discuss the evidence on recovery of murder weapons i.e. dandas and motorcycles used in the occurrence, by the accused Vipin, Ravinder and Kalu Ram, which was an incriminating circumstance.
Therefore in my understanding, acquittal of the six accused (one absconded during trial), and not putting the six FIR-accused on trial is plain injustice, against the established principles of law, and requires correction.
Now the question is who can initiate corrective measures.
According to procedure, the law department of the state can appeal against the acquittal and/or the high court can suo motu order a retrial of the acquitted accused along with the six who had been exonerated by the police and successive courts.
On a larger issue, I am truly intrigued why the courts did not do justice to the victims.
Was it lethargy, incompetence or pressure of the prevailing political climate or plain smugness?
In my opinion, even after more than 70 years of giving ourselves a Constitution which conceived of an independent judiciary, the judiciary has neither established itself as an independent organ of the state, and nor does it perceive itself as a protector of rights of a fellow citizen.
When rampant injustice has become order of the day and is likely to increase, we have to seriously think of ways to curb the absolute immunity which an erring judicial officer enjoys, at the cost of justice and the fates of his own countrymen.
Here I think the high courts need to take the first step and evolve a method of continuous supervision of the workings of subordinate judiciary, keeping in mind the objective of the uniform CrPC enacted in 1973, which noted that the main recommendations of the Law Commission was to provide for separation of the judiciary from the executive, to ensure quality judgments, citing that all judicial officers would be legally qualified and trained persons working under the close supervision of the high court.
I am aware that there is a method of scrutinszing judgments at the time of promotion of a judicial officer but when we see that the quality of judgments do more injustice than justice, I would suggest that inspecting judges of high courts routinely examine judgments and take immediate corrective measures, both administrative and legal to stem the rot which has set in.
No doubt it would mean a little extra work for a high court judge, but hopefully the results may then give us a cause, and, a right to hold our heads high.
Anjana Prakash has been a judge of the Patna high court and a senior advocate of the Supreme Court.
The judgment is available on services.ecourts.gov.in/ecourt (Court of DJ/ADJ Alwar District HQ date of judgment 14.08.2019)