The Kathua Rape-Murder Case, that rocked the nation in January 2018 causing enormous infamy and ignominy, was once again in news recently when the Chief Judicial Magistrate of a Jammu Court passed an order on 22 October 2019 to file first information report (FIR) against six policemen constituting special investigation team (SIT) at the behest of the then Jammu & Kashmir Chief Minister. The court order took cognizance of the circumstances and facts recorded in its order that the applicant witnesses were coerced, tortured and forced by the aforesaid investigating officers to give false evidence against the accused Vishal Jangotra during the investigation. Remarkably, the aforesaid accused was acquitted of all charges made against him in the verdict of a Pathankot court on 10 June 2019. Considering the nature of crime, role of investigating officers, socio-political interest evoked and unintentional or deliberate oversight of crucial points by agencies involved, it appears necessary and worthwhile to revisit the case for an objective and unbiased review.
Revisiting the Gory Events
According to the charge sheet, events of the alleged rape and murder of the eight years old minor girl revolved around a Devisthan (temple) where the victim was detained for six days, kept under the table over two plastic and cotton thread Mats, repeatedly drugged and raped by the accused including one Vishal Gangotra, and finally killed and body disposed of in the nearby forest. A number of celebrities, intellectuals and prominent politicians like Congress leader Sonia Gandhi, her family members and a host of the other leaders had vigorously voiced anger and protest over the incident. The fact of a Hindu temple reported as the venue of the crime had heightened communal disharmony and tension. Some noted celebrities including film actors displayed placards and slogans saying they were ashamed of being Hindu and living in Hindustan.
The gory details of the rape and murder of the minor innocent girl evoked a nation-wide horror, anguish and despair. The New York Times Editorial column made a scathing attack on the Indian Prime Minister Narendra Modi suggesting that he loses out his voice when it comes to speaking out about the dangers faced by women and minorities who are frequent targeted by the nationalist and communal forces in BJP. The British Broadcasting Corporation (BBC) too published somewhat similar critical reports mentioning religion and cast of the victim. Even UN Secretary-General has described the incident as "horrific" and the world body made a statement expressing hope that the Indian authorities will bring perpetrators to justice.
The trial for the Kathua rape-murder case began on 16 April 2018 before the Principal Sessions Court judge, Kathua, Jammu. Following many controversies suggesting it was not possible to hold an independent and impartial inquiry in the state, the Supreme Court decided to shift the case from Jammu to Pathankot in May 2018 with instructions to fast-tract the aforesaid trial. The trial was held in-camera under the Ranbir Penal Code, as per applicable laws in Jammu and Kashmir. In November 2018, victim’s family decided to drop their lawyer Deepika Rajawat quoting her security concerns and general lack of interest in the case. In a verdict delivered on 10 June 2019, three accused were sentenced to life imprisonment, another three were sentenced five years of jail term for destroying crucial evidence and aforesaid Vishal Jangotra was acquitted due to lack of evidence.
Loopholes in Investigation & Objections Raised
Initial police investigation had suggested the involvement of a juvenile accused, who abducted and detained the victim in the cattle shed, attempted to rape the victim and killed and later killed her fearing reprisal from the family. However, once the case was handed over to the crime branch, the scope, direction and narrative of crime completely changed. The SIT concluded that the rape and murder of the girl was a part of the deeply hatched conspiracy by main conspirator Sanji Ram in connivance with local police officials to dislodge the Bakarwal community from the Rasana, Kathua and it was essentially a hate crime by one community against the other wherein the innocent girl became a soft target.
The charge-sheet of the Crime Branch added following dimensions:
1) The crime was carried out in a Devisthan (temple);
2) People carrying out the misdemeanour were Hindus; and
3) The victim was a Muslim.
All along the investigation, the people complained and agitated on composition of the SIT drafting officers from the Kashmir Valley region and inclusion of an officer earlier charged with a murder and rape as also for his alleged relations with the Hurriyat (separatist) leaders. Then there were constant reports of people (mostly boys) in and around Rasana village being summarily picked up, beaten and tortured by the investigating officers of the Crime Branch team to give statements that suited police narrative. While both the accused and victim side demanded for an impartial CBI inquiry but the latter was reportedly persuaded by interested groups for the investigation by the state crime branch.
As pointed out by this author in his earlier piece “Kathua Victim: A Quest for Natural Justice”, the charge-sheet had many inconsistencies and lapses. The venue of the conspiracy and crime was identified as a temple where the victim was allegedly kept as hostage for six days, drugged, tortured and repeatedly raped before killing and dumping her body. This was also the most sensitive and sensational point that gave communal colour to the crime apart from raising many moral and ethical issues. It became a source of agitation and outrage and many videos and versions came out around that time contradicting the Crime Branch theory in the charge-sheet. The temple was actually a small one-room structure of deity for three surrounding villages with several open windows and doors, making it almost impossible for the victim remaining undetected for such a long period.
Then the SIT had also charged Vishal Jangotra, the son of the main accused Sanji Ram, for the rape, murder and creating alibi by forging documents, his father Sanji Ram allegedly bribed the chairman of the college, officials of the University concerned for the aforesaid job. As per the charge-sheet in one narrative, the accused juvenile went to Devisthan in the evening at about 5.00 PM for lighting jyoti and checking the girl. Thereafter, he telephonically informed the accused son of Sanji Ram to return from Meerut in case he wanted to satisfy his lust and the said accused reached Rasana from Meerut on 12 January by 6.00 AM. Considering the reaction time, distance (about 600 Km), poor connectivity, constraints of transport and other considerations, practically it was almost impossible for the accused to reach the crime scene within the timeframe reported by SIT.
Later, the investigative journalism of one private media group (Zee TV) categorically revealed that Vishal Jangotra was indeed present at Mirapur, Meerut on the dates of crime contrary to the allegation made by SIT in the charge-sheet. He was actually seen entering, present and identified drawing cash from an ATM in Mirapur in the CCTV footage there; the fact was also confirmed by the print out taken from the bank server and confirmed by his roommates, who were allegedly tortured by the investigating officers to give false statement to implicate Vishal in the case. This evidence provided by Zee TV exposed the fabricated lies of the SIT in the charge sheet during the court hearing and became the main alibi to prove his innocence and acquittal.
Developments Following Trial Court Verdict
Following significant developments after the trial court verdict have almost gone unnoticed. Politicians, media and civil society members who passionately held media trial of accused persons before the court trial and rejoiced conviction and punishment of six accused have ironically retained their silence and apathy while many other media groups have reported these developments as ordinary news items, except the one media group that explored the crucial evidence leading to prove innocence of Vishal. This author feels it important to take cognizance of these occurrences because he can perceive the pain, agony and harassment of the innocent person falsely implicated for the rape and murder in the same way as he earlier felt it for the ill-fated and innocent girl victim.
- In the Pathankot trial court verdict on 10 June 2019, the rape accused Vishal Jangotra was acquitted of all charges as the fabricated evidence of the prosecution could not stand scrutiny vis-a-vis sustainable evidence produced by the Defence to prove his presence at Mirapur, Meerut, Uttar Pradesh on the date(s) of crime.
- Based on material evidence produced before the local court, the chief judicial magistrate had adjudged one accused in the case as minor and directed the police to produce him before the Juvenile Justice Board. The SIT considered him as major and wanted to prosecute him as such, hence challenged the court order in the state High Court. The J&K Police Crime Branch’s plea to adjourn the trial was rejected by the aforesaid Board on 15 July 2019. Now the High Court too has declined the plea of the state crime branch for early hearing of the petition challenging the accused’s status as minor.
- Taking cognizance of the appeals filed by the convicts, a division bench of the Punjab and Haryana High Court admitted their plea in July 2019 for hearing. The High Court has also stayed recovery of fine imposed on these convicts by the trial court during the pendency of their appeal.
- The most bizarre setback to the prosecution case occurred on 22 October 2019 when a Jammu court ordered the J&K police to file FIR against six SIT members probing Kathua rape-murder case. The court order held that the applicants were coerced/tortured/forced by the SIT to depose and create false evidence against accused Vishal Jangotra and sought Jammu police to report compliance within the stipulated time.
Earlier the case received international publicity and attention due to communal angle involved and a Hindu religious place identified as the crime spot. Citing the crime as "devilish and monstrous" committed in the most "shameful, inhumane and barbaric manner" for which "poetic justice" needs to be done, the trial judge has mostly relied on the circumstantial evidence of strained relations of the convicts with the victim’s family. The judge also held that the circumstantial evidence had to be given due weightage in this case and, if at all there was a minor lapse in the investigation, the benefit of the doubt cannot be given to the accused in the present trial which is very serious in nature. Onlookers will now be curious to see how much credence is given by the higher judiciary to the prosecution conspiracy theory and stated circumstantial evidence.
Considering the nature and severity of crime, the entire nation was aghast and wished impartial inquiry and punishment to culprits but one section of politicians, media and intellectuals of this country remained hyperactive and passionate to give the communal angle to the case probably to embarrass the Central political leadership. Now from the verdict overwhelmingly rallying around the circumstantial evidences produced by prosecution and aforesaid subsequent developments, it is clear that there are still things under fog to unfold and the case is bound to be headed for a long legal battle in the Indian courts. Recent aforesaid developments also raise doubt on the wisdom and motive of the state crime branch in cracking the case.
Vicious Propaganda and Opportunism
(a) Vicious Media Group Reporting
Following few illustrations would reveal how a section of politicians, media and intellectuals of civil society have exploited the death of the victim of crime in furtherance of own vested interests. A famous anchor of a prominent private news channel known for their constant anti-government stand indulged in propaganda rhetoric somewhat as under much before court trial and verdict:
“…Eight years girl was raped in the temple thrice, thereafter the criminals did puja-path (worship), rituals too. One rapist was called from Meerut. The Girl was kept unconscious on drugs, she was repeatedly raped then strangulated. She died but to rule out any chance, her head was twice hit on a stone so that her death is assured. She died…did you listen? She died. Did you hear correctly that she died? It is very essential that you know that after giving anesthetic drug, raping, strangulating and hitting her head on the stone, she died. Then a police officer says, hold on…he wants to rape her once more…and all this was done to dislodge Bakarwala Muslims from Kathua, Jammu. All this is written in the charge-sheet, I am telling it from there…”
While the J&K police’s determination to prove the juvenile accused as adult has been futile so far and their fabricated charges against another accused Vishal Jangotra have been completely rejected by the trial court acquitting him of all charges, this media group has not shown even an iota of regret or remorse for their false reporting and malicious propaganda. Later the Delhi High Court took suo motu notice of the media group sensationalizing the issue by revealing the identity of the victim against the existing law and levied a fine of one million Rupees for disclosing the name of the victim and other details including her photograph.
As the special court verdict itself predominantly rallied around the circumstantial evidence with specific citations of past conflicts between the families of accused and victim, one wonders how much credibility should be attached to such evidence in the light of the fresh twist where another court has passed order for the FIR against all the six members of the SIT for torturing, coercing and forcing witnesses. Although only a higher court is competent to decide the jurisprudence of the lower court but circumstances of crime suggest a for cogent and prudent possibility of the victim being detained in the private cattle shed instead of temple, the juvenile killing her out of the fear of reprisal and his maternal uncle (now convicted main conspirator) trying to hush up the crime with local police with a natural urge to saving his nephew.
(b) Opportunist Advocate
Midway while the trial was on, the family of the victim decided to drop their key lawyer Deepika Rajawat for her general lack of interest in the case and skipping numerous hearing citing security concerns. According to reports, she had appeared only twice of about hundred hearings. Significant point in her case is that she was a less known advocate who received a lot of attention and publicity at national and international level because of her handling of the Kathua case and even received the Charkha fellowship and Ladli award for her work for the juvenile justice. She was widely criticized for her opportunist behaviour of gaining fame and recognition at the cost the Kathua victim and then quietly withdrawing citing frivolous reasons.
(c) Opportunist Fund Raisers
Some self-proclaimed organizations and individuals had started crowd-funding in the name of helping the victim’s family after the case assumed communal character and the name of one Jawaharlal University student leader Shehla Rashid received a lot of attention and limelight for her vocal support and raisings of funds for the cause of victim. Later a controversy broke out on the social media about the embezzlement of funds by Rashid and others collected in the name of victim’s cause. After a lot of hullabaloo, a little over eighteen lakh Rupees of crowd-funded money were reportedly transferred to the family account followed by another news of illegal withdrawal of ten lakh Rupees in multiple transactions by unidentified person from the same account. No one is sure about the exact money collected by different groups/organizations and final destination of funds thus raised. This is yet another case of opportunism seeking name, fame and money for a cause with dubious intention and interest.
(d) Hunger for Publicity
Normally, the government officers are expected to work without any publicity and public utterances unless so authorized and even police is no exception to this general principle. While most members of the SIT worked following the same order, the lone lady officer in the team appeared quite publicity hungry by being vocal in the press as also to a private e-magazine, which published her detailed interview before and after the court verdict. She described the bringing of ‘culprits’ to justice due to divine intervention of goddess Durga, declaration of an accused as juvenile by a judicial magistrate in contravention with law and justified arrest of Vishal Jangotra as he had returned from his B.Sc. Agriculture studies in Meerut to “satisfy his lust”. This is a classic case where ambitious officers have gone to an extreme of demonizing suspects by all means and now with the crime branch’s resolve to appeal against the acquittal of Vishal, one would wonder what SIT will do next to deny the CCTV footage and bank server print out available as an alibi to prove his innocence.
Blackstone's Formulation: Going by the Maxim
There is a famous maxim in law: ‘Let Hundred Guilty Be Acquitted But One Innocent Should Not Be Convicted’. This maxim is based on Blackstone's formulation (also known as the Blackstone ratio) that "It is better that ten guilty persons escape than that one innocent suffer". It was expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s. Although the ratio have varied in various quotes, but the message that prosecution and court must err, if at all, on the side of innocence has remained constant. Irrespective of its verbatim meaning, the author feels the underlining message of this maxim is that the trial should be objective and the evidence(s) produced must be convincing enough to prove the guilt of the accused. The law should not jump to conclusions in haste or under pressure without the reasonable basis for the same.
In actual practice in India particularly in high profile and politicized cases, the suspected accused is often declared culprit by a large section of biased politicians, media and intellectuals or civil society making the job of investigation and prosecution more difficult and biased much before the trial. As a result, the accused, who may often be innocent like Vishal Jangotra as in the instant case, has to undergo severe mental and physical torture besides being exploited and robbed of their money by their legal defenders, law enforcers (police), people in-between (say court staff), media, politicians and, at times, even by the lords of justice. Here Vishal was saved due to committed and sincere efforts of the journalists of one alert media group (Read Zee TV) else the law enforcers had left no stone unturned to falsely implicate and demonize the student staying almost 600 km away from home for a professional degree course. Only time will tell what more manipulations are awaited for the law enforcers to justify their earlier deed of falsly implicating an innocent person.
The charge-sheet had mentioned that one accused, a student of BSc Agriculture at Akansha College Mirapur, Meerut, UP who allegedly took active part in the rape and murder of the victim, has tried to create an alibi using heavy kickback from his father and main accused by resorting to the manipulation of records and creation of false evidence with the connivance and assistance of the college authorities and some other employees of Choudhary Charan Singh University Meerut. If the investigating officers of the state crime branch can go to this length possibly to shine self image and to please their political bosses, how does this guarantee that they were objective and unbiased towards other accused (now convicted) as well during investigation?
Flawed Investigation and Prosecution Case
The case which initially looked like a savage yet linear crime at a cattle shed due to the lust and perversion of a juvenile followed by the attempt of his guardian maternal uncle to hush up in connivance with the local police took the shape of a deeply hatched conspiracy to uproot another community from the area, a Hindu temple as the crime site and crime by one community against the other with involvement of several people including the main conspirator’s son studying far away at Meerut, once the case was transferred to the J&K Police crime branch under the specific direction of the then chief minister of the state.
From the observations of the trial judge widely reported (copy of verdict not readily available in public domain) in the media, it appears that he has largely relied upon circumstantial evidence produced by the prosecution to convict six men, awarding life imprisonment to three and five years rigorous imprisonment to another three convicts with one acquitted due to lack of evidence, citing the extraordinary nature and savagery of the case. The verdict was widely welcomed and hailed by the set of politicians, media, intellectuals and common man, who had vigorously carried out media trial of the accused men even before the court trial. Now the victim’s family has moved the Punjab & Haryana High Court for enhancing the punishment to capital punishment and life imprisonment of convicts besides challenging acquittal of one accused while the convicted men have appealed the same High Court against their conviction arguing there is no “admissible evidence” to fulfill the chain of circumstances to establish the motive.
From the above developments, it is pretty clear that the case will see a long drawn legal battle in time to come and one would only hope the complete truth comes out during higher judicial scrutiny, with High Court in all probability may consider all relevant facts including infirmities and loopholes of case so far ignored or overlooked during the trial in the Pathankot court. Some of such important points are briefly outlined:
- Whether the reported instances of disputes between the nomad Bakarwal family and Sanji Ram in the charge sheet are suffice to establish and prove the well hatched conspiracy theory put forth by the state crime branch!
- Sustainability of a Hindu temple as the main crime scene and detention of the victim for 6 days there before killing in view of the same being one room structure with three doors and four open windows, the festivals of Lohri and Makar Sankranti falling on 13th and 14th January, respectively, and another reported Bhandara on 15th January 2018, with many devotees and visitors bound to visit the place. The initial police investigation cited a cattle shed as the crime venue but final charge-sheet included Devisthan (temple) as the venue of the conspiracy and crime where the victim was allegedly drugged, tortured and raped. This is the most sensitive and sensational point in the alleged conspiracy giving a communal colour to the whole case.
- As per charge sheet, Vishal Jangotra raped the victim on 13 January in the Devisthan (temple) along with the juvenile accused. Now that even the trial court has rejected this allegation based on CCTV footage and other evidences establishing his presence at Mirapur, Meerut on the date as also another court has directed Jammu police to file FIR against the SIT for coercion and torture of witnesses, it will be interesting to watch how the higher judiciary looks at these developments.
- While initially both the accused and victim’s family constantly demanded CBI inquiry for a free and fair trial, the latter was reportedly persuaded by an interested group to favour the investigation by the state crime branch. In a largely political decision, the majority officers in the team were inducted from the Kashmir Valley and one officer Irfan (aka Urfan) Wani was particularly controversial and tainted with murder and rape charges, remained under judicial custody for long and was re-inducted in service only recently. How prudent was to assign an officer from Valley with such controversial background in a sensitive case?
- Having been denied the independent CBI inquiry, the accused personnel demanded self Narco Analysis Test but the test was not carried out.
- While the charge-sheet had completely demonized the crime as well as accused men but it is very difficult for any conscientious person to accept that a father would ask his own son and nephew to rape and murder a little girl just to dislodge a nomad family from the village that, in any case, stayed there only during winters and moved out to hills with the onset of summer negotiating one hill after another along with their livestock during most part of the year.
- The body of the victim was recovered very close to the house of Sanji Ram. This raises an obvious question why would a person dispose of the dead body near own house? The SIT held that the decision to dispose of the body in the canal was abandoned because a car could not be arranged. It indeed appears strange that Sanji Ram with at least two co-conspirating police officers having long experience of the criminal law could not anticipate the risk of abandoning body near own house. According to SIT, Sanji Ram could not manage means of disposing body of a small kid, then the same SIT found Sanji Ram and his son resourceful enough in manipulating the records, create false alibi with the alleged connivance and assistance of the college and university authorities almost 600 km away from home.
The court verdict has been generally taken with a detached interest by Indian masses but rejoiced by the section of politicians, media and civil society involved in earlier passionate media trial of the accused men. The traditional India bashers like the Washington Post was prompt to publish a long report following the verdict citing “…India has struggled with horrifying cases of rape and murder involving children in recent years, and authorities are taking increasingly harsh measures against the culprits.” Almost simultaneous appeals of the victim’s family and convicts in the High Court have broadened the scope of a long drawn legal battle and considering loopholes in the prosecution case and recent reverses indicated in the foregoing paragraphs, it is very difficult to say or predict the final outcome in the case.
The crime that initially appeared plain and simple to crack or explain logically based on some facts and circumstnces became very complex after the state crime branch’s deeply hatched conspiracy theory was put forth demonizing the accused (now convicts) with no known previous criminal background. Apparently, the entire prosecution case was built on the premise of communal motive of the accused belonging to the majority community to dislodge members of the minority community from the area by scaring them through brutal rape and murder of the minor girl. It remains a million dollar question whether even a fraction of the alleged motive has been achieved following the barbaric crime; if not, relying on the fertile minds of the slueths of crime branch, one may conclude that the conspirators were not only demonic and barberic but also totally brainless morons!
But then higher judiciary is also there and by all probability all related aspects will come for a greater and objective scrutiny now while dealing with the appeals of two sides. The trial judge has shown some wisdom in his so defined "poetic justice" by not awarding capital punishment in the case largely founded on the circumstantial evidence. Notwithstanding the constant use of “repeated rape” by the prosecution and media in this case, the two post mortem reports had only indicated the likelihood of a sexual assault on victim rather than giving a conclusive finding. Like any other conscious and conscientious person, the author was deeply pained and agitated over the alleged brutality and killing of the innocent girl but real tribute to put her soul in rest will only be by unraveling the true nature of crime and commensurate punishment to the guilty in due course.