Jaipur: There has been no advancement in the lynching case of dairy farmer Pehlu Khan after a trial court in Rajasthan’s Alwar district acquitted six of the accused in 2019 for lack of evidence. In 2020, the Ashok Gehlot-led Congress state government and Khan’s son had filed an appeal in the high court, but so far there has been no response from the court regarding the acceptance of the appeal.
However, as per advocates in the case, the hearing of the appeal is expected next month. “We are hopeful that the high court will take this matter on April 15,” advocate Nasir Ali Naqvi told The Wire.
The acquittal order had drawn wide criticism on the grounds that the witnesses were not duly cross-examined, apart from additional evidence not being admitted. The trial court also did not appreciate crucial evidence and did consider the testimony of key eyewitnesses, critics say.
With the case expected to be heard by the high court, The Wire takes a look at some of the key facts that were apparently not appreciated at the trial stage.
Alibi of accused was not thoroughly cross-examined
The controversy began when the six men – associated with a local right-wing group – who were named by Khan in his dying declaration were discharged by the police. The police had concluded that these persons, namely, Om Yadav, Hukum Chand, Naveen Sharma, Sudhir Yadav, Rahul Saini and Jagmal, were at a nearby gaushala (cow shelter) at the time of the incident.
However, during the trial, this claim could not be established. The witnesses presented by the defence stated in their testimonies that the accused persons had come to the cow shelter on the day of the lynching with cows along with two policemen namely, Vikram Singh and Raghubir Singh. On the other hand, these policemen didn’t specifically state that the accused were with them. Even then, they were not cross-examined to establish the presence or absence of the accused at the cow shelter at the time of the lynching.
The extrajudicial confession of one of the accused, Vipin, to NDTV, was not appreciated by the trial court even as he had revealed, on air, how they assaulted Khan, resulting in his death consequentially. His confession was aired on August 6, 2018.
As per the Indian Evidence Act, 1872, a confession made to a person other than a judicial magistrate is not strong evidence to establish the criminality of the person. However, it still is a better piece of evidence than a confession made in police custody.
Crucial electronic evidence not included
The lynching was filmed on the mobiles of the mob which attacked Khan and his son. It was supposed to be cogent proof of the culpability of the accused. However, the trial court refused to admit this evidence on record, merely on technical grounds.
As per the investigation officer in the case Parmal Singh, a mobile phone was confiscated from the accused named Ravindra and photographs out of the filmed video were developed. However, it was not admitted as evidence due to lack of certificate, a condition mandated under section 65 B of the Indian Evidence Act, 1872. The said clip was also not sent for forensic examination.
It is interesting to note that the defence didn’t raise any objection over the certificate compliance of the developed photographs exhibited in the court. It only objected that the record of the call details record was not a certified copy.
In a slew of cases, the Supreme Court has laid down a varied interpretation of the obligation to produce a certificate for electronic evidence under the said section. In 2005, the Supreme Court in State (National Capital Territory of Delhi) vs Navjot Sandhu, held that e-records furnished without a certificate will still be made admissible as secondary evidence. The idea was to consider this obligation as only a procedural measure.
However, in 2014, the apex court in Anvar P.V. vs P.K. Basheer overturned the Navjot Sandhu ruling stating, “Generalia specialibus non derogant.” This meant special law will prevail over general law. In this context, it means that the modes of proving secondary evidence will not have any application in the case of electronic evidence.
Again, in Shafhi Mohammad vs State of Himachal Pradesh, the Supreme Court had specifically stated that the certificate for electronic records is only a procedural provision. It is applicable in cases when electronic evidence is produced by the person who is in control of the device and hence, able to provide a certificate. In cases when the person is not in possession of the device, the electronic evidence can be accepted as secondary evidence.
In the latest judgment of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal and Ors, the apex court has restored the Anvar P.V. decision. Therefore, the present status is in the favor of mandatory certification of electronic evidence for admissibility.
Witness who turned hostile not thoroughly cross-examined
During the trial, one of the witnesses named Ravindra Yadav had turned hostile. Still, the trial court didn’t consider his statement even after he was cross-examined by the public prosecutor. He had said earlier, “I saw thousands of people gathered on the other side of the road. I filmed them for a few seconds and went away. I didn’t recognise any person among the crowd.”
After turning hostile, he stated, “People from the pick-up [Pehlu Khan and his sons] were standing on the road and some persons including Dayanand and others from the village were beating them. I asked them to stop but they didn’t listen to me and continued beating them.”