Investigate the Investigators OR God, save the Motherland!
We are trained to adjudicate without taking sides, and without being mindful of the consequences. We are required to adjudicate on the basis of well drawn parameters. We have done all that. Despite thereof, we feel crestfallen, heartbroken and sorrowful. We could not serve the cause of justice, to an innocent child. We could not even serve the cause of justice, to her immediate family. The members of the family of Gomi must never have stopped cursing themselves, for not adequately protecting their child from a prowler, who had snatched an opportunity to brutalise her, during their lapse in attentiveness. And if the prosecution version about motive is correct, the crime was committed for a mere consideration of Rs.1,000/-.’ The poignancy permeating through the above is indicative of the heartfelt feelings expressed by the learned Judges of the Hon’ble Supreme Court of India in State of Gujarat v. Kishanbhai, etc., Criminal Appeal No. 1485 OF 2008, decided on 07-01-2014. The case was that of rape and murder of a little girl living in the slums of Ahmedabad. The gaping flaws in investigation and in prosecution are found from the following excerpts from the judgment :
‘It is apparent from the prosecution
story, that the victim Gomi was raped. In establishing the factum of the rape
the prosecution had relied upon the note prepared at the time of conducting the
post-mortem examination of the deceased Gomi. The same inter alia reveals, that
dry blood was present over the labia, and deep laceration of subcutaneous
tissues was present on the left margin of the vaginal opening, just above the
posterior commission. The hymen was also found ruptured at 3 and 6 o’clock. It
is therefore, that the accused was deputed for being subjected to medical
examination, during the course of investigation. For the above purpose he was
examined by Dr. P.D. Shah. In fact Dr. P.D. Shah was a cited witness before the
Trial Court. Despite the above Dr. P.D. Shah was not examined as a prosecution
witness. Clearly a vital link in a chain of events, to establish the rape of
the victim Gomi came to be broken consequent upon by the non-examination of Dr.
P.D. Shah as a prosecution witness. (e) The High Court has also noticed, that
even the report/certificate given by the medical officer relating to the
medical examination of the accused Kishanbhai was not produced by the
prosecution before the Trial Court. It is apparent, that the lapse in not
producing Dr. P.D. Shah as a prosecution witness, may have been overcome if the
report prepared by him (after examining the accused Kishanbhai) was placed on
the record of the Trial Court, after being proved in accordance with law. The
action of prosecution in not producing the aforesaid report before the Trial
Court, was another serious lapse in proving the case before the Trial Court.
This had also resulted a missing vital link, in the chain of events which could
have established, whether or not accused Kishanbhai had committed rape on
victim Gomi. (f) The High Court having noticed the injuries suffered by Gomi, a
six year old girl child on her genitals, had expressed the view, that the same
would have resulted in reciprocal injuries to the male organ of the person who
had committed rape on her. It was pointed out, that if the accused Kishanbhai
had been sent for medical examination the testimony or the report of the
medical officer would have revealed the presence of smegma around the
corona-glandis, which would have either established innocence or guilt of the
accused, specially if the accused had been medically examined within 24 hours.
In the instant case the sequence of the events reveal, that the occurrence had
been committed between 6:00 p.m. to 8:00 p.m. on 27.2.2003. At the time of
recovery of the body of deceased Gomi from Jivi’s field, at about 9:00 pm, it
came to be believed that she had been subjected to rape. The accused Kishanbhai
was shown to have been formerly arrested at 6:40 a.m. on 28.2.2003 (even if the
inference drawn by the High Court, that the accused Kishanbhai was in police
custody since 9:00 p.m. on 27.2.2003 itself, is ignored). The accused could
have been medically examined within a period of 24 hours of the occurrence. The
prosecution case does not show whether or not such action was taken. This lapse
in the investigation of the case, had also resulted the omission of a vital
link in the chain of events which would have unquestionably established the
guilt of the accused Kishanbhai of having committed rape (or possibly his
innocence). (g) It needs to be noticed, that when the accused Kishanbhai was
arrested, there were several injuries on his person. The said injuries were
also depicted in his arrest panchnama. At 7:15 am on 28.2.2003, the accused
Kishanbhai filed a first information report alleging, that he was beaten by
some of the relatives of the victim Gomi, as also, by some unknown persons
accompanying the search party, under the suspicion/belief, that he was
responsible for the occurrence. In the above first information report, the
accused Kishanbhai had also depicted the nature of injuries suffered by him.
The statement of the investigating officer Ranchodji Bhojrajji Chauhan PW14
reveals, that the accused Kishanbhai had been sent to Civil Hospital,
Ahmedabad, for his medical examination. Neither the doctor who had examined the
accused was produced as a prosecution witness, nor the report/certificate given
by the medical officer disclosing the details of his observations/findings was
placed on record. This evidence was vital for the success of the prosecution
case. According to the High Court, blood of group “B +ve” was found on the
clothes of the accused Kishanbhai. The important question to be determined
thereupon was, whether it was his own blood or blood of the victim Gomi. The
statement of the medical officer who had examined the accused Kishanbhai, when
he was sent for medical examination to Civil Hospital, Ahmedabad, would have
disclose whether or not accused Kishanbhai had any bleeding injuries The
importance of nature of the injuries suffered by the accused Kishanbhai emerges
from the fact, that both the accused Kishanbhai and the victim Gomi had the
same blood group “B +ve”. An inference could have only been drawn that the
blood on his clothes was that of the victim, in case it was established that
the accused respondent
Kishanbhai
had not suffered any bleeding injuries, and therefore, the possibility of his
own blood being on his clothes was ruled out. This important link in the chain
of events is also missing from the evidence produced by the prosecution, and
constitutes a serious lapse in the investigation/prosecution of the case. In
view of the above factual position, the High Court made the following
observations “Looking to the advancement in the field of medical science, the
investigating agency should not have stopped at this stage. Though ABO system
of blood grouping is one of the most important system, which is being normally
used for distinguishing blood of different persons, there are about 19
genetically determined blood grouping systems known to the present day science,
and it is also known that there are about 200 different blood groups, which
have been identified by the modern scientific methods (Source: Mc-Graw-Hill
Encyclopedia of Science and Technology, Vol.2). Had such an effort been made by
the prosecution, the outcome of the said effort would have helped a lot to the
trial Court in ascertaining whether the accused had in fact visited the scene
of offence.” This also constitutes a glaring lapse in the investigation of the
crime under reference. There has now been a great advancement in scientific
investigation on the instant aspect of the matter. The investigating agency
ought to have sought DNA profiling of the blood samples, which would have given
a clear picture whether or not the blood of the victim Gomi was, in fact on the
clothes of the accused-respondent Kishanbhai. This scientific investigation
would have unquestionably determined whether or not the accused-respondent was
linked with the crime. Additionally, DNA profiling of the blood found on the
knife used in the commission of the crime (which the accused-respondent,
Kishanbhai had allegedly stolen from Dinesh Karshanbhai Thakore PW6), would
have uncontrovertibly determined, whether or not the said knife had been used
for severing the legs of the victim Gomi, to remove her anklets. In spite of so
much advancement in the field of forensic science, the investigating agency seriously
erred in carrying out an effective investigation to genuinely determine the
culpability of the accused-respondent Kishanbhai. (h) The defects in
investigation and the prosecution of the case, as also, the inconsistencies
were highlighted by the High Court in the evidence produced by the prosecution
to establish the guilt of the accused-respondent, who was sentenced to death by
the City Sessions Court, Ahmedabad.’.
The flaws
highlighted above in investigation and prosecution are such, as would show utter
incompetence on the part of the investigative agency and the prosecution. The
moot and disconcerting question is as to how the investigation was carried out
in a cavalier manner and as to how the prosecution had been conducted in a
matter, which did require all the care and competence in investigation and
prosecution of a case of rape and murder of a young child or rather a baby. The
society needs to be told as to who
selected the investigator and also, the prosecutor and what yardstick
was used for the same and what action was taken once the High Court highlighted
the obvious flaws in investigation and prosecution. The modern methods apart,
the case depicts, though the same would cause anguish and indignation in any
and every right thinking person. Once an F.I.R. is filed, the police has what
may be said to be the monopoly and the complainant is virtually told that he
has no locus whatsoever, even
if he is the one vitally interested in investigation and prosecution. It is
common knowledge that policing is many a time, barring notable exceptions, is
done for reasons, which are known to aam
admi, though those in seats of power, mostly turn a blind eye to the
same. In the case in hand, the accused too is a person from the lower strata of
society and therefore, he may be presumed not to have any clout, political or
monetary, with the politicians or directly with the police. Even then, the
manner of investigation and handling of the prosecution would make any one sit
up and say that justice need not be made a casualty by shoddy and shady
investigation and prosecution! One would
wash his hands in despair and utter ‘God save the motherland.’ As justice could
not be given to a little soul, the accountability of those, who selected the
investigator and prosecutor, needs to be fixed. The monopolistic power in these
fields needs to be dispelled at least by the complainant, who has a vital
stake, to have his say at various stages of investigation and also, of
prosecution and in deciding or dropping the witnesses at the trial. The bogey
of the complainant having no locus
whatsoever needs to be put an end to. It would be an innovative step in the
right direction. While training the investigator would go some way, the real
question is the integrity or rather the lack of it in investigation. It is
trite to state that investigation was rather simple and no complexities, as
would be seen from what the High Court observed. Nevertheless, the same did
leave such flaws, as are incomprehensible. The cases, where powerful persons are
concerned, the investigation is carried out, as every one is aware, as dictates
of the political masters. Most of the fake encounters were related to matters,
wherein Gujarat police had given clean chit, some times more than once, to the
alleged perpetrators of the same. The pithy saying that ‘who will police the
police’ is one, which is reality in Indian scenario. Our police is not only
rude by and large, unlike that in civilised countries, it is totally
unaccountable on the whole and if anyone wants to ask or inquire about the
ongoing investigation, he would not only be turned away, he would be humiliated
to no end and threatened with intentional interference in the work of police.
The legislators are presumably aware of the harsh ground realities, but would
like to sit tight over the same, as they are in a position to manoeuvre the
investigation, some times as a favour and mostly, for a price. While there are
bound to be notable exceptions, our ethical values have been eroded beyond
redemption, though almost every one of us would not miss an opportunity to
boast about our spiritual values and ancient culture. The fact is that we are a
nation, which is rather in the process of development and wherein, the rights
of the common men and women, generally remain on paper only, Of course,
glimpses of real justice are some times found. To illustrate, the High Court of
Gujarat has rendered yeoman’s service in certain matters, wherein the authority
of the law is asserted and the delay or lapse of long time gap has not resulted
in denying justice in cases of fake encounters of Ishrat Jahan & 3 others,
Sadiq Jamal Mehtar encounter. The High Court has shown great sagacity and
passed orders, which show robust judicial independence and an urge to do
complete and substantial justice. A recent decision in Bhikhalal Kalyanji Jethva versus State of Gujarat & 5, Spl.
Cri. Appln. No. 1925 of 2010, rendered in Septemebr, 2012 is also an important
milestone to depict as to how police investigation needs to be carried out
objectively. As and when a powerful politician faces prosecution, the police
investigation is engineered in a manner, which militates against the well known
canons of fairness and justice. The politician is sought to be helped in every
conceivable or rather contrived manner and is bailed out even without being
charge sheeted. Even when the judiciary is faced with such a situation, there
are judges, who with their indomitable courage, administer justice without fear
or favour and do not buckle down by the presence, direct or indirect, of
powerful persons. Even the subordinate judiciary has shown exemplary courage in
punishing powerful elements with clout and have imposed punishments to them
irrespective of their clout as politician[s], to the good fortune of the common
man [aam
admi]. It is well to remember
that many of the matters are sub judice and the purpose of this article is not to shut the doors of
justice for those, who may be charged with criminal offences.
While much
may be said about the said case, one is reminded of the decision of the Hon’ble
Supreme Court of India in Zahira Habibulla H. Sheikh v. State of Gujarat,
reported in AIR 2004 S. C. 3114. It is, also known as the Best Bakery
Case, verily a land mark decision in
that it ordered re-trial of a case of a ghastly crime of causing death of 14
persons by burning them. Some paragraphs
therefrom deserve reproduction :
‘56. In the ultimate analysis whether it is a case covered by Section 386
or Section 391 of the Code the underlying object which the Court must keep in
view is the very reasons for which the Courts exist i.e. to find out the truth
and dispense justice impartially and ensure also that the very process of
Courts are not employed or utilized in a manner which give room to unfairness
or lend themselves to be used as instruments of oppression and injustice.
57. Though justice is depicted to be blind-folded, as
popularly said, it is only a veil not to see who the party before it is while
pronouncing judgment on the cause brought before it by enforcing law and
administer justice and not to ignore or turn the mind/attention of the Court
away from the truth of the cause or lis before it, in disregard of its duty to
prevent miscarriage of justice. When an ordinary citizen makes a grievance
against the mighty administration, any indifference, inaction or lethargy shown
in protecting his right guaranteed in law will tend to paralyse by such
inaction or lethargic action of Courts and erode in stages faith inbuilt in
judicial system ultimately destroying the very justice delivery system of the
country itself. Doing justice is the paramount consideration and that duty
cannot be abdicated or diluted and diverted by manipulative red herrings.
58. The Courts at the expense of repetition we may state, exist for doing
justice to the persons who are affected. The Trial/First Appellate Courts
cannot get swayed by abstract technicalities and close their eyes to factors
which need to be positively probed and noticed. The Court is not merely to act
as a tape recorder recording evidence, overlooking the object of trial i.e. to
get at the truth. It cannot be oblivious to the active role to be played for
which there is not only ample scope, but sufficient powers conferred under the
Code. It has a greater duty and responsibility i.e. to render justice, in a
case where the role of prosecuting agency itself is put in issue and is said to
be hand in glove with the accused, parading a mock fight and making a mockery
of the criminal justice administration itself.’
Paragraph 73, which
deals with re-trial, is as follows:
‘73. In the background of principles underlying Section 311 and Section
391 of the Code and Section 165 of the Evidence Act it has to be seen as to
whether the High Court's approach is correct and whether it had acted justly,
reasonably and fairly in placing premiums on the serious lapses of grave
magnitude by the prosecuting agencies and the Trial Court, as well. There are
several infirmities which are tell tale even to the naked eye of even an
ordinary common man. The High Court has come to a definite conclusion that the
investigation carried out by the police was dishonest and faulty. That was and
should have been per se sufficient justification to direct a re-trial of the
case. There was no reason for the High Court to come to the further conclusion
of its own about false implication without concrete basic and that too merely
on conjecture. On the other hand, the possibility of the investigating agency
trying to shield the accused persons keeping in view the methodology adopted
and outturn of events can equally be not ruled out. When the investigation is
dishonest and faulty, it cannot be only with the purpose of false implication.
It may also be noted at this stage that the High Court has even gone to the
extent of holding that the FIR was manipulated. There was no basis for such a
presumptive remark or arbitrary conclusion.
As far as
the recent case is concerned, it is amazing as to how the Trial Court, which is
presided over by a senior member of subordinate judiciary, could come to the
conclusion it did and awarded death sentence. It is also beyond doubt that the
investigation has been full of crudities in the twenty-first century The observation in Zahira’s case [supra]
that there are several infirmities which are tell tale even to the naked eye of
even an ordinary common man. The High Court has come to a definite conclusion
that the investigation carried out by the police was dishonest and faulty,
appears to be aptly applicable to the recent case, which resulted in acquittal,
though if the investigation and prosecution were conducted properly, the result
would have been different. While Gujarat boasts of development and has a well
acclaimed Forensic Science Laboratory, which is approached from other States too,
it is inconceivable, as to why the investigation was carried out as it was and
that too, in what may be said to be a mega city. The State professes to be a
welfare one, but no consideration appears for the family of the victim. It is
also not clear as to whether any compensation was given to the family of the
victim. Be that as it may, non-examination of important witnesses and of
getting proper blood samples and their analysis, etc. would have resulted in
conviction in all probability. Actually, such a case of rape and murder would
also require DNA testing and if such tests were carried out, the same would
have shown as to whether the accused had committed rape, The primitive
crudities are glaringly shocking and show the insensitivity of the State and its
machinery in what is considered to be an advanced state in the country. It is well said and has been held to be a
settled law that life means more than mere animal existence, It is not clear as
to why the High Court, which rightly acquitted the accused, did not direct
re-trial, as held in the case of Zahira [supra]. Even the Supreme Court
could have directed direct re-trial and further investigation, as there is duty
to ensure that that faulty investigation was and should have been per se
sufficient justification to direct a re-trial of the case. It may not be ruled
out that there is the possibility of the investigating agency trying to shield
the accused, as is wont for it to do. The investigating agency is apt to
consider that it has no accountability and does not brook any query from even
the kith and kin of the victim, who are generally treated as pariah.
It is
germane to point out that the trial Court is not merely to act as a tape
recorder recording evidence, overlooking the object of trial i.e. to get at the
truth. It cannot be oblivious to the active role
to be played for which there is not only ample scope, but sufficient powers
conferred under the Code. It has a greater duty and responsibility i.e. to
render justice, in a case where the prosecuting agency fails to examine vital
witnesses and investigation is apparently shockingly shoddy. It is hoped that
even now, the learned Judges, who decided the matter, are not without powers,
to ensure that real justice is done by directing re-trial and if necessary,
re-investigation or further investigation. The powers of the highest Court are
rally unfettered and the exercise of the same to do complete and real justice
is the crying need, so that the victim gets justice, by adopting an
imaginative, albeit novel approach in the case of Zahira [supra]. The
expression of feelings of shock and righteous indignation need to be followed
by one of directing re-trial that than pleading helplessness. One may merely say
now God save the motherland!
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Mr K R Mishra has been a practicing lawyer in the High Court of Gujarat and while I am trying to get more information about him, he has been practicing in the High Court in Ahmedabad and also in other courts in Gujarat State and obviously, is interested in research of law and write articles. My salute to Mr Mishra for joining hands with Mr Trivedi and create an article which I have come to like about "Investigations and Investigators" in Indian conditions at present and the judicial pronouncement which made the authors' soul stir and this Article has been a direct result of their agitated souls and minds as it is about a 3 year old girl who was raped and murdered and the Court expressed its "helplessness" instead of being proactively giving proper orders of re-investigation, which it was not powerless to do.
About the blogger - Himanshu Trivedi
An admitted/enrolled solicitor and barrister in the High Court of New Zealand, a student of law all throughout my life - I was a lawyer in India since 30th April 1987 (registered/enrolled with Bar Council of Gujarat) and practiced with my father in his office and later starting my own law practice (and also having worked in M/s. Nanavati & Nanavati as a Senior Associate during July 2003 to March 2004, before immigrating to New Zealand with my family. The blogger was a judicial officer in the Gujarat State Judicial services and served as a judge, Ahmedabad City Civil and Sessions Court from 11 October 2002 to around 3rd May 2003, prior to resigning to uphold and cherish the highest ideals in the field of law and legal profession i.e. ethics, morals, principles and professionalism. There were reasons for resigning, which were mainly related to corrupt practices surrounding judicial work in Gujarat and India against which the Blogger had raised his voice and took actions on many occasions and then, post-Godhra (2002) riots, there were expectations of the "right winged" Bharatiya Janata Party government and the Chief Minister and ministry of the State of Gujarat expecting judicial officers to be acting against a "particular minority community" and messages were being delivered in a covert manner to every judicial officer (orally of course, never in writing). The blogger decided to resign and then quit the country and settle for the benefit of blogger's only child so as to be away from such hate and monstrosities in the name of religion.
After coming to New Zealand, blogger has completed New Zealand Law Society - Legal Executive Diploma in year 2009 from AUT University, completed studies of necessary papers to be qualified to be enrolled as a solicitor and barrister and has been interested in legal research and law practice, apart from teaching legal subjects to NZLS Legal Executive Diploma Students for Bay of Plenty Polytechnic during years 2012 and 2013 in Auckland, New Zealand.
The other areas of interest and study of bloggers are - Mediation, Alternative Disputes Resolution processes, Civil and Criminal justice systems in the world and legal aid - approachability of the justice systems by downtrodden and disadvantaged of the society, Vedic Mathematics, theatre and films/movies, acting and production of plays, music and Indian cooking, with emphasis on experimenting with various cuisines and ingredients.
