Presume Guilt- Law Becomes Redundant- Republic Falls

REASON fails to comprehend the patterns of a person’s psyche so as to make him mercilessly quell an innocent life – devoid of any sin or avarice. Nonetheless, eminent Jurists of the past have observed it to be a dark day for any Republic – when an innocent takes fall for an offence not perpetuated by it.

Much has been said, resaid, examined, hypothesised, and at times even plainly said sans application of mental faculties. The author has no intentions of stooping to that level or even simply going over it or simply representing what was earlier said. Additionally, one witnesses loudmouths all over social media, devoid any semblance of legal knowledge, making tall claims and assertions on the factual matrix and culpability of the accused persons in the case based on their respective private and/or communal prejudices. The earnest efforts of author are merely directed towards sifting the evidence and facts available as of now, so as to enable him to provide to you – his beloved readers – with a legally educated opinion on the Kathua Case. Of course, the same is limited in scope due to lack of access to the official documents appertaining the said matter, as filed in the various courts of India. From the alleged say of prosecution as filed in chargesheet, which is being circulated; the Writ Petitions as filed in the Hon’ble Apex Court also being freely available online; and some simple yet quintessential facts as appearing on various media platforms – the author has attempted to formulate what seems to be the case of the prosecution as well as his earnest & honest observations on the same with regards to the obvious lacunae in the same.

The synopsis of the alleged case of the prosecution is

  1. On January 17, 2018 Sanji Ram, plans to kidnap the deceased, his accomplices being his son and juvenile in conflict with law (hereinafter referred to as JCL for the sake of brevity) being his minor nephew and some other local persons.
  2. On January 10, 2018 at about 1230 hours, the deceased girl was kidnapped by the JCL with assistance of Parvesh Kumar alias Mannu. Thereafter, the girl was held captive at the local Temple, i.e. ‘Devisthan’, where she was gang-raped.
  3. On January 11, 2018 son of Sanji Ram, studying B.Sc. Agriculture from Choudhary Charan Singh University Meerut, reaches Rasana from Meerut at 0600 hrs who was called home “to satisfy his lust.”
  4. On January 12, 2018 the father of the girl lodges a missing report in Hiranagar Police Station, on the basis of which FIR bearing No. 10/2018 under Section 363 of Ranbir Penal Code (RPC).
  5. On January 16, 2018 deceased killed by – firstly strangulating her, and thereafter hitting her head twice with a stone.
  6. On January 17, 2018 the dead body of the girl was recovered, on which autopsy was performed on the same day itself. Post-Mortem Report confirms rape and holds cause of death as asphyxia leading to cardio-pulmonary arrest.
  7. On January 19, 2018 JCL is arrested following which he gives a confessional statement on the basis of which a stone weighing around 1 kg used by him to hit the deceased was recovered and seized. JCL is produced before Learned Chief Judicial Magistrate, Kathua who orders him to be sent to Juvenile Home.
  8. During investigation it transpired that accused Sanji Ram had already taken the accused police officials into confidence by promising a sum of Rs. 5 lacs of which Rs. 4 lacs was paid by him to two police officers – including the Investigating Officer – and settled the deal with them to take care of the things which would ensue in the process of culmination of the conspired plan.
  9.  The angle of Religious animosity is sought to be presented before the Court by the prosecution, saying that the accused persons were not happy with Rohingya Muslims settling in Jammu and also with the fact that ‘Bakarwal people indulged in cow-slaughter’.

Now the author would attempt to bring out the lacunae and contradictions in the case of the prosecution which need to be brought out in trial court by the defense and dealt with by the Hon’ble Court adjudicating the said matter

  1. It is the claim of the prosecution that the alleged gang-rape took place in a ‘Devisthan’ (held in high reverence by the local Hindus), keys of which were exclusively in possession of Sanji Ram. However, it is the case of the inhabitants of the Kathua that at least 100 to 150 people visit the Devisthan (along with inhabitants of another village), to light the lamp twice a day, i.e. at morning and around sunset, as part of a religious ritual observed by them every day. Also, every Sunday devotees would flock to the ‘Devisthan’ in numbers as great as 300 to 400 to organize and prepare Bhandara (community feast), wherein it is their specific case that the food would not be prepared outside the temple (as would reason see fit) but inside the temple where there are a large number of utensils present. More so, on January 13 and 14, 2018 (when the girl was allegedly held captive in the ‘Devisthan’), it is the claim of the inhabitants of Kathua (some to the extent of claiming to be there in the ‘Devisthan’ on those days as per reports) that they celebrated Lohri and Makarsankaranti function in the ‘Devisthan’, where around 700 to 800 people were in attendance and that the said place was constantly being visited by devotees coming from nearby areas. Thereby, one would wonder as to how in a tiny ‘Devisthan’ comprising of one hall admeasuring roundabout 300 sq. ft. having 3 doors and 4 windows, not even one person would come across anything suspicious when such a large number of persons are in attendance. Hence, the case of the prosecution that she was kept inside ‘Devisthan’ under the table over two chatayees (plastic Mats) and then covered with two durees (cotton thread Mats), to justify that nobody saw or heard of the girl while she was in the ‘Devisthan’, does not seem to be reasonable as such a big crowd would have definitely come across or moved or used the said chatayees or table or durees, to accommodate the huge crowd.
  2. Prosecution is trying to prove the presence of the girl at the ‘Devisthan’ by alleging that hair strands have been recovered by them, some even from ‘Devisthan’ which have turned positive result for DNA of the girl. However, the prosecution will have to examine the panchas (independent witnesses of good repute) present during the time of seizure of such hair to prove the proper ‘chain of custody’ of evidence, to rule out any tampering of evidence (such as placing of hair at the ‘Devisthan’ by police themselves) by the Police to implicate accused (the same being a prominent practice observed by Police everywhere). It is not uncommon for the panchas to turn hostile in criminal cases, for oftentimes their signatures are taken on the panchnama without even reading them out the proper contents of the same or without even showing them what was packed or without showing them how the evidence discovered was sealed.
  3.  Prosecution has also alleged that blood-stained wooden sticks were recovered by them. However, apart from proving ‘the chain of custody,’ the onus will lie on prosecution to show that such injury was inflicted on the body of the girl (the said injuries should be clearly and conclusively spelt out in the Post-Mortem Report or else how would it be possible to have blood on the weapon without injury?) Also, it has to be proved that the nature of injury is such which could have been caused by the wooden stick so recovered and not by anything else. Of course none of this will be necessary if it turns out that the blood sample on the wooden sticks does not match with that of the girl.
  4. The son of Sanji Ram claims to have an alibi. His family claims that he was giving exams on January 9, 11, 12, 14, 15 and 17 when the minor girl was allegedly missing, going on to the extent of providing his Roll No. RD1701803471 for the said examination.
  5. Prosecution alleges that Rs. 4 lacs were paid in cash by Sanji Ram to the Police officers – who are also made the accused. However, prosecution provides no records of the ‘cash flow’ to corroborate the same and also shows no recovery of the said cash amount from the accused officers. Without rectifying the said infirmities, it would be very difficult for prosecution to prove that accused Police officers aided and abetted the crime; for reason would fail to see why a person would take such a risk without a promise of reward. Also, unknown amounts of cash are alleged to have been paid by Sanji Ram to the faculty of Choudhary Charan Singh University Meerut, to falsify records to create an alibi for his son so as to show him as attending an examination on the dates of incidence. This allegation too suffers from the same infirmities.
  6. The JCL has given a confessional statement before the Hiranagar Police claiming him to have acted on his own volition, without any aid or assistance from anyone else. If taken on its face value, the said confessional statement recorded by Hiranagar Police station proves that the murder was perpetrated by only JLC, without there being any other accused persons acting in pursuance of any criminal conspiracy. Thus, it is imperative for the Crime Branch to prove the said confessional statement as either false or to have been tutored. Sure, the Crime Branch has made the Police officers, who most probably recorded the said confessional statement, as accused, and leveled charges of tutoring the JCL against the said officers. But if the prosecution fails to prove the active participation of the said Police officers in conspiracy – by proving the ‘cash flow’ or by adducing any other clinching evidence – the courts shall be free to look into the same, and the defense case for the other accused persons apart from JCL, can surely be greatly bolstered by it.
  7. Allegedly, the investigation was taken away from the SHO Hiranagar, Suresh Gautam. A Special Investigation Team (SIT) was constituted under Additional SP. Hardly 10 days into the investigation had passed and curiously enough, even this team was relieved of the case, only to be handed over to the Crime Branch to investigate. Curiously enough, it was not any of the Crime Branch from the three jurisdictions of Jammu – the region where the crime took place – but from the Kashmir valley. The said team comprising of just one female police officer from Jammu. These facts, if true, should be put up by the defense counsels in the cross-examination of the Investigators from the Crime Branch to challenge their investigation and intent, as is the common practice in criminal courts.

In the recent light of events, it seems as if majority of loudmouth media personalities, communal politicians and dubious NGOs are hell-bent on making people sure of the guilt of the accused, as if we were following an ‘inquisitorial’ form of Criminal Justice System, wherein an accused is to be assumed guilty until proven innocent – one must not lose track of the fact that living in a Republic where criminal laws are formulated keeping in mind the natural Right of Liberty, Justice, Equity and Fair Trial – we follow the ‘accusatorial’ form of Criminal Justice System, wherein an accused is to be assumed innocent until proven guilty. Just a fact, which majority seem to have forgotten…

Author: Gaurav Chaubey (Gaurav Chaubey is a full-time ‘Bharatiya’ who just happens to have a specialized practice in Criminal Defence Law)

Published: April 18, 2018

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