Kathua verdict breaks impunity criminal-politician nexus offers

Published : June 12, 2019 13:02 IST

Where the accused enjoy extraordinary influence and clout to threaten and intimidate witnesses from deposing against them, it requires effective confidence-building steps on the part of the judiciary to protect witnesses. On June 10, the District and Sessions Judge, Pathankot, Punjab, Tejwinder Singh, pronounced his judgment convicting six of the seven accused in the Kathua rape and murder case, which shook the conscience of the nation in January 2018.  The incident, which happened in Kathua, Jammu and Kashmir, came to light when the police discovered the child-victim’s body on January 17 last year, days after her father, Mohd. Akhtar, had reported her missing. Reports alleged that she had been drugged and raped over several days before she was strangled to death.

In Mohd. Akhtar vs The State of Jammu and Kashmir, the Supreme Court bench of the then Chief Justice of India, Dipak Misra, and Justices D.Y. Chandrachud and Indu Malhotra, held on May 7 last year that a fair trial was a sacrosanct principle under Article 21 of the Constitution and a “fair trial” meant fair to the accused persons and to the victims of the crime. Mohd. Akhtar had approached the Supreme Court for the transfer of the trial outside Jammu and Kashmir.

The Kathua case had acquired a communal colour and reflected the deep polarisation of the area. Apprehensions that the trial could suffer because of the political support the accused enjoyed locally persuaded the Supreme Court to transfer the trial to Pathankot in Punjab and direct that it be held in camera and on a day-to-day basis without adjournment to ensure speedy completion.   

The Jammu and Kashmir Crime Branch, which took over the investigation of the case on January 22, 2018, from the local police, filed its charge sheet on April 9, 2018, in the court of Chief Judicial Magistrate, Kathua. The Supreme Court had observed in its order on May 7, 2018, citing a report of the District and Sessions Judge, Kathua, that there had been some obstruction of judicial proceedings by the Bar Association at Kathua. The bench did not want to go into the details, which had been reported in the media. The local lawyers had created a ruckus and prevented the police from filing the charge sheet at Khatua.

To ensure fair and speedy trial, the Supreme Court directed the District and Sessions Judge, Kathua, to send all the materials relating to the charge sheet and other documents in sealed covers through special messengers with the assistance of the police force to the District and Sessions Judge, Pathankot. The court in Pathankot was directed to proceed under the Ranbir Penal Code (RPC) applicable to Jammu and Kashmir.  The Supreme Court also ordered the translation of statements of witnesses from Urdu into English to facilitate the proceedings in Pathankot. It asked the Jammu and Kashmir government to transport the witnesses and the accused to Pathankot and provide all facilities to them.

Relying on a previous judgment, the Supreme Court bench observed: “The central criterion for the court to consider when a motion for transfer (of a trial from one State to another) is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer.”

The bench cited another passage from that judgment: “It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of toughs and street roughs to violate the serenity of court is obstructive of the course of justice and must surely be stamped out.… It is the duty of the court to assure propitious conditions which conduce to comparative tranquillity at the trial…. If there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate, vitiating the necessary neutrality to hold a detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer….”

The bench added: “[F]air trial commands that there has to be free atmosphere where the victims, the accused and the witnesses feel safe. They must not suffer from any kind of phobia while attending the court. Fear and fair trial are contradictory in terms and they cannot be allowed to co-exist.”

The concept of “fair trial”, the bench noted, needs no special emphasis and it takes within its sweep the conception of a speedy trial and it meets its purpose when the trials are held without grant of adjournment as provided under the provisions contained in Section 309 of the Code of Criminal Procedure.

Conviction and sentence

Among the accused were 61-year-old Sanji Ram, a former official of the State government and village head; Deepak Khajuria, a Special Police Officer; and Parvesh Kumar, a friend of Sanji Ram’s nephew who is a minor. All three have been convicted and sentenced to life imprisonment.

The other three—Special Police Officer Surinder Kumar, Head Constable Tilak Raj, and Sub-Inspector Anand Dutta—were given a five-year prison term each, for destruction of evidence. Sanji Ram’s nephew is facing trial in a juvenile justice court. Sanji Ram’s son, Vishal Jangotra, was acquitted.

In its charge sheet, the Crime Branch of the Jammu and Kashmir Police alleged a plot to dislodge the Bakarwal community in Rasana, the village in Kathua district where the girl’s family lived. The nomadic Gujjar-Bakarwals, who are mostly Muslims and constitute a minority in the district, frequently face allegations of their livestock damaging crops and of cow slaughter. The child-victim became a “soft target” in the tensions between Muslims and Hindus, the charge sheet added. The charge sheet alleged that at least two of the accused held personal grudges against the Bakarwal community.  

Sanjhi Ram’s nephew, a juvenile, who met the victim first, became the lead prosecution witness. The victim was searching for her missing horses when the boy took her to Sanji Ram’s cattle shed, where she was kept captive and raped by him. The accused harmed the girl to take revenge against the Bakarwal community for minor skirmishes which each of them had with them earlier. Sanjhi Ram and others also entertained the grievance of crop destruction allegedly by Bakarwals and their growing presence in their area.

What followed was her gruesome murder and bribing of police officials to suppress the evidence. The police relied on DNA evidence, details of call records of the accused and testimonies of 130 witnesses to prove the guilt of the accused.  

On May 13 last year, the person who provided land for the victim’s burial after the family was denied the right to bury her in the local graveyard, alleged that he was threatened by a leader of the Hindu Ekta Manch, the right-wing organisation that organised a rally in Jammu in support of the accused.

In July last year, the Jammu and Kashmir government appointed Aseem Sawhney, the lawyer who represented some of the accused in the case, as Additional Advocate General of the State. Defence lawyers alleged that “jihadis” were behind the horrific incident and the victim’s body was planted to change the religious demography of the State. A demand to hand over the case to the CBI was rejected by the Supreme Court, which perhaps understood that its purpose was to dilute the case’s outcome.

While the prosecution may appeal against the trial court’s acquittal of one accused, those who have been convicted are likely to challenge it in the high court. Whatever the denouement in the case, the trial court’s judgment has helped to break the impunity of the criminal-politician nexus, which often distorts the results of a criminal investigation and trial.