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Above: A man beats an effigy of one of the Kathua rapists at a protest in Ahmedabad/Photo: UNI

The J&K government and the Kathua victim’s family have challenged the judgment of the trial court and moved the Punjab and Haryana High Court for greater punishment for the perpetrators of this crime 

By Pushp Saraf

The wheels of justice turn slowly but grind exceedingly fine. This proverb appears to be coming true in the shocking case of the gang rape and murder of an eight-year-old girl in Kathua district of J&K. The heinous crime rocked the nation in 2018 and evoked the concern of United Nations Chief Antonio Guterres who described it as “horrific”. The concerned parties have now taken the battle to the Punjab and Haryana High Court in Chandigarh after they challenged the otherwise widely hailed judgment of Pathankot’s district and sessions judge Tejwinder Singh, who sentenced six of the…

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Above: A man beats an effigy of one of the Kathua rapists at a protest in Ahmedabad/Photo: UNI

The J&K government and the Kathua victim’s family have challenged the judgment of the trial court and moved the Punjab and Haryana High Court for greater punishment for the perpetrators of this crime 

By Pushp Saraf

The wheels of justice turn slowly but grind exceedingly fine. This proverb appears to be coming true in the shocking case of the gang rape and murder of an eight-year-old girl in Kathua district of J&K. The heinous crime rocked the nation in 2018 and evoked the concern of United Nations Chief Antonio Guterres who described it as “horrific”. The concerned parties have now taken the battle to the Punjab and Haryana High Court in Chandigarh after they challenged the otherwise widely hailed judgment of Pathankot’s district and sessions judge Tejwinder Singh, who sentenced six of the seven accused on June 10 this year.

The J&K government and the victim’s family have taken separate but almost identical stances. Among about half a dozen petitions, three appeals filed by the J&K government are considered most significant. The state government has sought the death penalty for the three main convicts (Sanji Ram, Deepak Khajuria and Parvesh Kumar who were awarded life sentence by the trial court), conviction of an acquitted accused, Vishal Jangotra, and three police officials—former sub-inspector Anand Dutta, special police officer Surinder Kumar and head constable Tilak Raj. The three uniformed men were sentenced to five years in prison for destruction of evidence and the additional charge of conspiracy has now been put on them.

Only the State can seek enhancement of a sentence slapped on a convict, deriving its power from Section 377, CrPC, which says, among other things: “The state government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy” and “when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence”.

The victim’s family too has raised nearly the same demands, with the knowledge that while under Section 372, CrPC, it can’t ask for enhancement of punishment for the convicts, it has the right to challenge the acquittal. Section 372, CrPC, says: “The victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”

The victim’s family has described it as a “rarest of rare case” in accordance with “the standards set by the Supreme Court”, further driving home the point that the “case of rape and murder of a minor child by a gang comes under this category more so when the manner of committing the crime exhibits complete insensitivity, cruelty, depravity and perversion. The motive itself is shocking. The accused wanted to teach a lesson to a community by killing and raping a young member of the community, a nearly eight-year-old innocent helpless girl child”.

During investigation, the Crime Branch of J&K police came to the conclusion that the eight-year-old belonging to the Bakerwal community in Kathua’s Rasana village was raped and murdered in January 2018 as part of a conspiracy to “dislodge” the nomadic community from the village.

The convicts too have approached the High Court. The appeal filed by Tilak Raj was admitted on June 25. It challenges the trial court’s verdict on the ground that there is only oral evidence against him and no recovery has been made from him. The Court has stayed till the pendency of appeal the recovery of a fine of Rs 50,000 that has also been imposed on him. Anand Dutta too has filed an appeal against his conviction.

The case is being heard in Punjab at the behest of the Supreme Court so as to ensure a fair trial, which seemed impossible in Kathua because of attempts to cause obstruction of justice (“A beacon for all”: India Legal, June 24, 2019 issue).

All the appeals were expected to come up for hearing before a division bench headed by Justice Rajiv Sharma on August 7. When contacted at his hometown in Malerkotla (Punjab), Mubeen Farooqi, an advocate associated with the case on behalf of the victim’s family, told India Legal that the matter could not be taken up on the scheduled date because of a lawyers’ strike and has now been listed for September 11. He hailed the trial court’s judgment as a “victory of truth” and the “victory” that “belongs to all the communities, Hindus, Muslims, Sikhs and Christians”. He is associated with the application filed in the High Court on behalf of the victim’s family through well-known advocate and human rights activist Rajvinder Singh Bains.

Their petition asserts that even though under Section 372, CrPC,  the enhancement of sentence is not covered, “an appeal can be made to the conscience of the court” to “suo motu” enhance the sentence of three convicts to “death penalty in the interest of justice” to be “commensurate with the crime committed”.  It recalls: “In this case, there is a disturbing indication of political and communal tinge by granting protection to the perpetrators of crime, elected officials coming to the aid of the accused, and lawyer after lawyer eager to represent the accused.” Senior advocate Rajinder Singh Cheema, a prominent lawyer, is representing the state government.

In its pleas, the J&K government has stated, inter alia: “It is not a case of any spur of the moment provocation or even a case where the accused gets overcome by lust. This is a case where a calculated and meticulously planned conspiracy was hatched, the victim was identified and targeted, and what disturbs the moral fibre of the society is that the same was done due to enmity between the two communities, for which an innocent girl of eight years paid the ultimate price.”

The state and the victim’s family have relied on almost similar evidence to challenge the acquittal of police officials on the conspiracy charge and the exoneration of Vishal Jangotra. The former has quoted the trial court which held that the three policemen played a part in misdirecting the search party from visiting the area where the victim was confined. Yet, according to the petition, it failed to draw the inference that this misdirection was not only to shield the culprits but was “in pursuance of the conspiracy hatched to execute the plan”.

The appeal states: “The trial court, on one hand, has come to the conclusion that the accused were in connivance with the other main accused, but has erroneously acquitted the accused of other charges framed against them, which stands proved beyond any shadow of doubt.”

In the case of Jangotra, the following arguments were advanced: the trial court has “erred gravely” while accepting his alibi that he was in Uttar Pradesh to take an examination when the crime occurred; it has ignored the confessional statement of convict Parvesh Kumar and the testimony of three witnesses regarding Jangotra’s presence at the crime scene besides misreading evidence of the handwriting expert regarding the attendance sheet of the examination Jangotra purportedly took; and  “an interested witness”, his sister, has been relied upon to show that he had used a debit card at an ATM in UP while the card could have been used by anyone.

The ball is now in the Punjab and Haryana High Court.

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