Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., decided on a petition which was filed seeking transfer of investigation in the case arising out from FIR No. 261 of 2021, under Section 302 Penal Code, 1860, Police Station Haldwani, District Nainital from Police to Central Bureau of Investigation (“CBI”).

The petitioner, on 03-03-2021, had lodged a report under Sections 323, 504, 345 IPC and Section 9 read with 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) against her husband and pursuant to which he was arrested and lodged at Police Station. He was remanded to judicial custody on 05-03-2021 by the court of Additional District Judge/FTC/Special Judge, POCSO. On 06-03-2021, in the hospital of Sub-Jail, Haldwani, in its OPD register an entry was made that he suddenly fell down on the ground and he was referred to Base Hospital and later it was recorded that he was brought dead. His post mortem report suggested that there were ten injuries on his body which was not the case when he was taken into custody.

The petitioner was informed about the death but the reason for injury was not explained to her.

Petitioner thereafter moved an application to the Secretary, District Legal Services Authority (for short, “DLSA”), Nainital giving details as to how her husband died in judicial custody, who killed him and how the petitioner came to know about it. The Secretary, DLSA forwarded the application to SSP for taking necessary action at the earliest. Instead of lodging an FIR, the SSP, Nainital got an inquiry conducted by Circle Officer Police, Haldwani and thereafter, informed the Secretary, DLSA that since Magisterial inquiry is underway, any further action may be taken only after the perusal of the Magisterial inquiry.

The petitioner again approached the Magistrate of competent jurisdiction under Section 156 (3) of the Code of Criminal Procedure, 1973 and an order was passed, thereafter, FIR under Section 302 IPC at Police Station has been lodged against four named Guards of Sub-Jail, Haldwani. In this case, the petitioner seeks transfer of the investigation to CBI.

Advocate General argues that there is no provision of law that authorizes SSP to get an enquiry conducted by C.O. Haldwani. He further argued that investigation in accordance with law is underway, therefore, the Court should be slow in interfering at this stage and after the outcome of the investigation, if occasion arises, the matter may be considered.

The Court observed that the FIR in the instant case was lodged after directions under Section 156 (3) of the Code on 26.05.2021. More than 45 days after death of a person in judicial custody. How can a fair investigation be ensured?

Fair investigation and fair trial are necessary ingredients of right to life. It is true that a party may not choose investigating agency at the drop of a hat.

The Court in this aspect relied on the Supreme Court rulings of State of M.P. v. Shyamsunder Trivedi, (1995) 4 SCC 262, D.K. Basu v. State of West Bengal, (2015) 8 SCC 744, Sube Singh v. State of Haryana, (2006) 3 SCC 178, Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1 and Mehboob Batcha v. State, (2011) 7 SCC 45.

The Court stressed that it was needless to say that incidences of custodian violence and deaths have come up again and again for adjudication before the higher Courts.  The Court quoted the part of judgment in the case of Inhuman Conditions in 1382 Prisons, In Re., (2017) 10 SCC 658.

“Like most societies, we are not strangers to custodial violence and unnatural deaths but our vibrant democracy permits us to debate and discuss these issues with rational arguments. However, right sounding noises critical of custodial violence (in any form) cannot achieve any useful purpose unless persons in authority hear the voices of the victims or the silence of the dead and act on them by taking remedial steps. There must be a greater degree of sensitivity among those in authority with regard to persons in custody and it has been the endeavour of the constitutional courts in our country, over several decades, to consistently flag this issue.”

The Court relying on Dr Naresh Kumar Mangla v. Anita Agarwal, 2020 SCC OnLine SC 1031 stated that the power which is vested in the superior court to transfer the investigation to another agency, such as the CBI, must be wielded with caution.

The Court finally opined that the instant case was not an ordinary case. Allegations were of custodial death. Having considered the manner in which police proceeded in the case, the Court found that it is a case in which definitely investigation should be transferred to CBI. The Court further issued some directions:

  • Investigation in FIR No.261 of 2021 under Section 302 IPC, Police Station Haldwani, District Nainital be immediately transferred to S.P., Central Bureau of Investigation, Dehradun.
  • The Investigating Officer shall ensure that all the documents relating to investigation are handed over to S.P., CBI, Dehradun within a period of three days.
  • The named accused Devendra Prasad Yadav – Head Guard, Kriti Nainwal – Guard, Devendra Rawat – Guard, Harish Rawat – Guard, at Sub-Jail Haldwani be immediately transferred from Sub-Jail Haldwani to some place outside the district, so as to ensure fair investigation otherwise within those four walls of Sub-Jail Haldwani perhaps nobody would dare to speak the truth and only witness would be those stone walls which unfortunately cannot speak as to what had happened on 06.03.2021, which resulted in the death of deceased Pravesh Kumar.
  • SSP Nainital and CO Police Haldwani be considered for their transfer immediately from district Nainital.
  • Departmental action, as may be deemed appropriate, be considered to be taken against SSP Nainital who despite under legal obligation to lodge an FIR promptly did not lodge FIR and also without any authority under law directed an enquiry by CO Haldwani in a case of ‘custodial death’.

[Bharti v. State of Uttarakhand, 2021 SCC OnLine Utt 767, decided on 22-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates before the Court:

Advocate for the petitioner: Mr Sanjay Kumar

Advocate for the respondent: Mr S.N. Babulkar, Advocate General

Case BriefsSupreme Court

Supreme Court: In a case relating to brutal custodial violence dating back to 1985, the bench of Ashok Bhushan* and Ajay Rastogi, JJ has held that

“The custodial violence on the deceased which led to the death is abhorrent and not acceptable in the civilized society. The offence committed by the accused is crime not against the deceased alone but was against humanity and clear violations of rights guaranteed under Article 21 of the Constitution.”

Background

In the year 1985, the deceased was brutally assaulted in the Police Station when he went there along with the informant to register a case. As per the facts of the case, when in-charge of the Police Station saw the deceased, he threatened him and said on the next time, he would cause fracture of the hands and legs of the son of the deceased by assaulting him as the later had filed a case against him before the Legal Aid.

When the deceased replied that on being assaulted, his wife and son had filed the case before the Legal Aid and that he did not know anything in that respect, in-charge of the Police Station as well as the Senior Inspector, mercilessly assaulted the deceased with sticks, leaving him unable to walk. The informant, who was the prime witness to the case, was also assaulted and was not allowed to help the deceased and later, when the Police Officers forcefully took the deceased to the hospital, he was kept chained to a chair for the entire night.

Next day, the sweeper had cleaned the blood and stool from the Veranda of the Police Station where the deceased was mercilessly beaten. The deceased succumbed to his injuries after he was taken to the hospital.

Analysis

On the guilt of the accused

The Court took note of the following factors and affirmed the guilt of the accused Police Officers:

  • In spite of Varandah of the Police Station washed in the morning by the sweeper, the scientific officer, who visited the police station found the blood stains in the Varandah.
  • The evidence of PW.1 i.e. the informant could not have been discarded merely because he was an agnate of the deceased. In the long cross-examination, PW.1 could not be shaken.
  • Wooden lathi and batten are the weapons which are usely possessed by the police and the submission cannot be accepted that the injuries cannot be caused by wooden lathi and batten which may cause death. It depends on the manner of use of the wooden lathi and batten.

On whether the offence committed in the present case is compoundable or not

It was submitted before the Court that on the date when the offences took place, i.e. 04.5.1985, offences under Section 324 IPC were compoundable which subsequently have been made non-compoundable. Further, both the appellants were now more than 75 years of age and acting under the order of this Court dated 17.12.2020, the appellants had deposited amount for compensation  to be paid to the legal heirs. Hence, it was the offences be compounded.

In the present case, the accused was already convicted for offence under Section 324 IPC. By Cr.P.C. (Amendment) Act, 2005, offence under Section 324 IPC has been made non-compoundable offence. Prior to the aforesaid amendment, offence under Section 324 was compoundable.

The Court, hence, agreed that on the date when offence was committed, i.e., 04/05.05.1985, the offence under Section 324 IPC was compoundable. It was, however, of the opinion that the offence under Section 324 in the facts of the present case can be compounded only with permission of the Court.

Sub-Section (5) of Section 320 provides that “no composition for the offence shall be allowed without the leave of the Court.”

Thus, the composition of the offence in the facts of the present case is not permissible only on the agreement on the request of the appellant which may be also accepted by the legal heirs of the deceased but composition is permissible only by the leave of the Court.

The grant of leave as contemplated by sub-section (5) of Section 320 is not automatic nor it has to be mechanical on receipt of request by the appellant which may be agreed by the victim. The statutory requirement, makes it a clear duty of the Court to look into the nature of the offence and the evidence and to satisfy itself whether permission should be or should not be granted. The administration of criminal justice requires prosecution of all offenders by the State.

“The prosecution by the State is the policy of law because all the offences are against the society. The offenders have to bring to the Courts and punish for their offences to maintain peace and order in the society. It is the duty of the prosecution to ensure that no offender goes scot-free without being punished for an offence.”

The Court, hence, clarified that the nature of offence, and its affect on society are relevant considerations while granting leave by the Court of compounding the offence. The offences which affect the public in general and create fear in the public in general are serious offences, nature of which offence may be relevant consideration for Court to grant or refuse the leave.

“When we look into the conclusion recorded by the trial court and the High Court after marshalling the evidence on record, it is established that both the accused have mercilessly beaten the deceased in the premises of the Police Station. Eleven injuries were caused on the body of the deceased by the accused. As per the evidence of PW-1, which has been believed by the Courts below, the victim was beaten mercilessly so that he passed on, stool, Urine and started bleeding.”

Hence, present is a case where this Court is not to grant leave for compounding the offences under Section 324 IPC as prayed by the counsel for the appellants. The present is a case where the accused who were police officers, one of them being in-charge of Station and other Senior Inspector have themselves brutally beaten the deceased, who died the same night. Their offences cannot be compounded by the Court in exercise of Section 320(2) read with subsection (5).

“The Police of State is protector of law and order. The people look forward to the Police to protect their life and property. People go to the Police Station with the hope that their person and property will be protected by the police and injustice and offence committed on them shall be redressed and the guilty be punished. When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station, it is a matter of great public concern. The beating of a person in the Police Station is the concern for all and causes a sense of fear in the entire society.”

Sentencing and compensation

Looking to the facts that both the appellants are more than 75 years of age now, the Court reduced the sentence awarded for conviction under Section 324 IPC to six months instead of one year and a compensation of Rs.3.5 Lakhs each be paid to the legal heir of the deceased in addition to the compensation awarded by the High Court.

[Pravat Chandra Mohanty v. State of Odisha, 2021 SCC OnLine SC 81, decided on 11.02.2021]


*Judgment by: Justice Ashok Bhushan

Appearances before the Court by

For appellants – Senior counsels R. Basant and Yasobant Das,

For State of Odisha – Advocate Ravi Prakash Mehrotra

For the legal representatives of the deceased – Advocate Priyanka Vora

Case BriefsHigh Courts

Madras High Court:  G.R. Swaminathan, J., observed that,

What the government does must inspire the confidence of the people. Every time a custodial death occurs, the legitimacy of the State suffers a big dent.

Factual Matrix

Petitioner a permanent resident belonged to a scheduled caste community. His elder brother fell in love with a relative namely, Punitha and in view of the objection raised by her parents, he started residing elsewhere. Punitha’s family complained as if had been abducted.

Since the elder brother and Punitha could not be traced, petitioner and other members of the family were periodically directed to appear for enquiry before the investigating officer. Further, petitioner alleged that all the family members were subjected to physical abuse.

It was further stated that, local police arrived at the petitioner’s house and several times and had beaten up the petitioner, his youngest brother i.e. Ramesh on the next visit. The younger brother of the petitioner was taken in custody and later he did not return home.

Suicide

Ramesh was found hanging, according to the petitioner he was tortured by the local police and he died as a result.

In order to cover up the crime, police made the above-stated incident appear as if he had committed suicide.

A complaint was registered under Section 174(3) of CrPC.

The petition had been filed seeking a direction to the respondents to exhume the body and conduct a second postmortem.

Court had directed for conducting the second postmortem at the burial itself. The entire second postmortem was also directed to be videographed. Hence, the second post-mortem was done accordingly.

The entire autopsy had been duly videographed and even a statement was made in writing to that effect in the status report, it turned out that what was recorded were only brief clippings.

Custodial Death

It has been stated that a proper videograph was not taken at all and in view of the same petitioner’s counsel insisted that appropriate directions will have to be issued for the future observance and strict compliance in cases of custodial death or where it is alleged that the death is due to police torture.

Bench referred to the Division Bench of this Court in a PIL in WP (MD) No. 78 of 2019, decided on 28-09-2020.

Further, the Court stated that,

“…foundations of any democratic government rest on popular acceptance. Though State primarily functions through its coercive apparatus, its actions must be perceived as proper by the people.”

“A dead person is equally entitled to justice. I would call it posthumous justice.”

Court also observed that, Whenever someone suffers an unnatural death, the circumstances that led to it will have to be unearthed. Otherwise, there would be no closure.

To ensure the above stated, Court issued the following directions:

(i) The Judicial Magistrate conducting the enquiry under Section 176(1)(A) CrPC shall ensure that the family of the deceased or its representatives are given access to see the body both front and back and are also allowed to take video and photos.

(ii) No autopsy shall take place or commence without the next of kin having seen the body. Of course, if the family of the deceased refuses to see the body, even after so being permitted by the concerned Judicial Magistrate conducting the enquiry, the Judicial Magistrate can, in writing, permit the conducting of postmortem.

(iii) The autopsy shall be carried out by a team of two doctors who have a master’s degree in forensic medicine and are attached to a Medical College and Hospital in the State. In other words, what is called forensic autopsy must be conducted.

(iv) The autopsy shall be done by adhering to the norms laid down by the Hon’ble Division Bench in V. Eswaran v. Government of Tamil Nadu, dated 16-04-2019 in W.P. No. 10694 of 2019 and in W.P.(MD)No. 78 of 2019, dated 28-09-2020.

(v) The whole body shall be x-rayed in order to find out if there are any fractures. The entire autopsy should be videographed from the start of the examination till its completion by adhering to the following six phases set out in Modi ‘a Textbook of Medical Jurisprudence and Toxicology’ 26th Edition edited by Justice K.Kannan.

vi) The autopsy report should be prepared expeditiously and handed over to the investigating officer in the case so that the filing of the final report is not delayed. A copy of the autopsy report as well as video should be simultaneously given to the legal heir or representatives of the family of the deceased. This alone will enable them to take recourse to legal remedies immediately. 

If after receipt of the autopsy report, the legal heir/representatives of the deceased family give in writing that they intend to move the High Court, the body shall be preserved in the mortuary for at least 48 hours. If the body is disposed of either by cremation or otherwise in the meanwhile, the very purpose of holding a second post-mortem will be rendered infructuous.

While parting with the decision, Court stated that:

All of us know that hasty cremation in the tragic Hathras gang rape case led to controversy. It is in the interest of the police to take the family of the deceased into confidence and avoid rushing things through. They are stakeholders in the process and the police have to treat them accordingly.

Court allowed the petition with the aforesaid directions. [Santhosh v. District Collector, Madurai District; 2020 SCC OnLine Mad 5541, decided on 02-12-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Sonia Gokani and N.V. Anjaria, JJ., on 28-09-2020 during the proceedings of the Vadodara Custodial Death matter once again made sure that no stone was left unturned to go to the root of the matter stating that,

            “Let no stone be left unturned and every possible attempt be made to go to the root of the matter. There must not be any scope of either laxity or soft paddling at any stage of investigation which is not only impermissible, but would also prove to be deleterious for the system.”

The petitioner had filed the petition aggrieved by the fact that his father was missing since 10-12-2019. He had further stated that he had repeatedly approached the respondent-police authorities and also gave written applications, but no heed was paid to his requests and not a single reply was received with regard to the whereabouts of the corpus, till date. He was said to have a retail business of clothes and by obtaining a parking pass from the Western Railway cycle stand, he was doing his business. It was alleged that on 09-12-2019, his father had gone to Vadodara Railway Station to get his bicycle and from there he was taken to Fatehganj Police Station for interrogation and since then, they had not heard of him. The Court on 19-06-2020 had ordered that the corpus be PRODUCED before the court, on the returnable date; however, the police could not trace the missing person. Consequently, a Fir was filed for the offences punishable under Sections 302, 201, 203, 204 and 34 of the Penal Code, 1860 against some police officers. The Court had ordered that the investigation be handed over to the CID Crime so that there was no loss of vital evidence on 05-08-2020.

The Court on 28-09-2020 in the presence of a senior officer from State CID Mr Girish Pandya assessed the road map of investigation provided by the officer where he also informed that once the Court of JMFC permits the Lie Detection Test, as and when deemed appropriate during the course of the investigation, further scientific tests also shall be requested for. The Court further said that periodical reporting shall also be needed till the whereabouts of the corpus was found with substantive and scientific proof. The specifically reminded the investigation officer that,

            “truth is the motto and object of every investigation and in the instant case, all the accused are police personnel who are supposed to be well versed with all possible tactics to overreach the process of law, extraordinary care would be expected on his part.”

The matter is scheduled to be heard on 15-10-2020 where the case diary shall be shared with the Court along with the progress in the investigation, 24 hours advance.[Sheikh Salim Shekhbabu v. State of Gujarat, R/Special Criminal Application No. 2595 of 2020, order dated 28-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madras High Court: A Division Bench of P.N. Prakash and B. Pugalendhi, JJ. had directed the Judicial Magistrate (I), Kovilpatti, to go to Sathankulam for conducting enquiry into the custodial deaths of a father-son duo. The Madurai Bench of the Madras High Court has taken suo motu cognizance of the act.

The incident

Jayaraj and his son Bennicks were taken into custody by the police and brought to Sathankulam Police Station, Tuticorin, for allegedly they had not closed their mobile shop even after the permitted time and thereby violated general prohibitory orders passed during the COVID-19 lockdown period. In the status report filed by the Superintendent of Police, Tuticorin, it has been further reported that when the Beat Police Officer asked the now deceased prisoners to close the shop, they abused the police constables, prevented them from discharging their official duty and threatened them with dire consequences. This status report was filed by the SP, Tuticorin, pursuant to the directions of the High Court in its earlier order dated 24th June 2020.

The said incident happened on 19th June. The deceased father-son were brought to the police station the same night. They were produced before the Judicial Magistrate, Santhankulam, the next day, i.e. 20th June, and remanded to custody at the Sub-Jail, Kovilpatti. On 22nd June, Bennicks was admitted to the Government Hospital, Kovilpatti, at 7:45 p.m., and Jeyaraj at 10:30 p.m. While undergoing treatment, Bennicks expired on the night of 22nd June at 9 p.m. and Jeyaraj expired in the morning of 23rd June at 5:40 a.m. Two FIRs into the said incident have been registered at the Kovilpatti East Police Station. On this account, the Judicial Magistrate (I), Kovilpatti, assumed charge to conduct enquiry under Section 176(1)(1-A) CrPC. As directed by the High Court in its previous order, the post-mortem was done at the Government Hospital, Tirunelveli, by a panel of three experts in the presence of the Judicial Magistrate (I), Kovilpatti. The post-mortem was also videographed. 

Directions

Having regard to the said facts, the Court noted that in this charged and tensed atmosphere, the Judicial Magistrate (I), Kovilpatti, would not have been in a position to examine the family members of the deceased as they would have been under untold stress. Sathankulam is about 100 kms from Kovilpatti. Therefore, to serve the interests of justice, the following directions were issued:

(a) The Judicial Magistrate (I), Kovilpatti, may go to Sathankulam for conducting the enquiry, so that the witnesses will be in a position to appear before him and their statements can be recorded.

(b) The Judicial Magistrate is also at liberty to visit the family members of the deceased for the purpose of recording the statements of the womenfolk, who may not be in a position to come out, as they will be in the period of mourning.

(c) The Judicial Magistrate may also conduct local inspection under Section 310 CrPC, visit the Sathankulam Police Station and take photocopies of all the records relating to Sathankulam PS Cr. No. 312 of 2020, including the Case Diary in Sathankulam PS Cr. No. 312 of 2020 and the Station General Diary. He may also record the statements of the policemen in the Sathankulam Police Station itself, so that he may get an idea as to where all the deceased were kept during their detention.

(d) The Judicial Magistrate shall also take a photocopy of the case diary in Sathankulam PS Cr. No. 312 of 2020 and the original case diary shall be handed over to the Chief Judicial Magistrate, Tuticorin, for safe custody.

(e) The Judicial Magistrate may also visit the place of occurrence in Cr. No. 312 of 2020 for better appreciation of the facts and may also take videographs of the place of occurrence wherever he finds it necessary.

(f) The Judicial Magistrate may use the Sathankulam Court premises as camp office for conducting the enquiry and the staff members of the Sathankulam Court premises shall be at his disposal, till the enquiry is completed.

(g) The Judicial Magistrate may visit the Sub-Jail, Kovilpatti, and take photocopies of all the records, including the admission register and other medical records, duly attested by the Superintendent of the Sub-Jail.

(h) The Judicial Magistrate shall also collect the CCTV footages wherever they are available and have them preserved.

(i) The Tuticorin district administration shall provide all necessary facilities and protection to the Judicial Magistrate thereby enabling him to discharge his functions.        

The aforesaid directions issued by the Court are primarily in the nature of guidance to the Magistrate for him to follow. The Court made it clear that by issuing the aforesaid slew of directions, it is not interfering with the manner in which the Judicial Magistrate should conduct the enquiry and the Court left it open to his discretion to understand the ground reality and act accordingly.

The Court said that it earnestly hope and trust that the family members of the deceased, local Bar, fourth estate, public, political parties and NGOs would provide a congenial atmosphere for the Magistrate to conduct the enquiry, so that ultimately, justice is done to the parties.

Until further orders, two cases filed pursuant to the FIRs in the death of Jeyaraj and Bennicks will be dealt with by the Deputy Superintendent of Police, Kovilpatti Range.

The Principal District Judge, Tuticorin, is also personally monitoring the case and is briefing the High Court from time to time in this regard.

Pursuant to the observation made by the Court in the earlier order dated 24th June 2020, the Director General of Police, Chennai-4, has issued a circular memorandum dated 25th June 2020, setting out the Standard Operating Procedure for dealing with persons who violate the lockdown regulations. The High Court took on record the said Circular Memorandum and placed on record our appreciation to the Director General of Police for the efforts taken in this regard. However, it was made clear that the Standard Operating Procedure should not remain on paper alone, but, should be implemented in spirit as well. In this regard, it was suggested that the Police Department engage the services of counsellors and NGOs for providing counselling to the police personnel and their family members during this testing period.

The matter is posted for 30th June 2020. [High Court of Madras v. State of T.N., 2020 SCC OnLine Mad 1249 , dated 26-6-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Aniruddha Bose, JJ has refused to entertain the plea seeking SIT probe in the custodial deaths of two men in Bihar’s Sitamarhi.

The order reads,

“We are not inclined to entertain these petitions under Article 32 of the Constitution of India. The writ petitions are, accordingly, dismissed. The petitioners may move the High Court under Article 226 of the Constitution, if so advised. We make it clear that we have not expressed any opinion on the merits of the case.”

The petition was moved before the Supreme Court by NGO “Citizens Against Hate” through advocate Fauzia Shakil demanding an SIT probe monitored by a former Director General of Police of another State and a magisterial inquiry into the death of two Muslim men – Taslim Ansari and Ghufran Ansari. Both of them were taken into custody on March 5 for allegedly killing a man while stealing his motorbike.

When their families reached the police station the next day, they were told that the men were already dead. However, the families discovered wounds on the bodies of both the men and filed an FIR for their custodial deaths. Consequently, 5 policemen were suspended but no one has been arrested yet.

The Court, however, held that it was not inclined to entertain the petition and that the petitioners had the right to move the High Court.

[Citizens Against Hate v. State of Bihar, Writ Petition (Criminal) No.130/2019, decided on 02.07.2019]

(With inputs from The Leaflet)

Case BriefsHigh Courts

“Prolongation of the trial for over two decades, compounded by the endemic systematic delays, have frustrated the attempts at securing effective justice for the victims.”

Delhi High Court: The Division Bench comprising of S. Muralidhar and Vinod Goel, JJ. while witnessing an appeal in the case of “targeted killings of persons belonging to one minority community” known as the ‘Hashimpura Tragedy’ convicted the 16 accused PAC personnel who were acquitted 28 years after the incident by the trial court and now convicted after 31 years of injustice served to the families of the victims left behind.

The cold-blooded murder despatched to the watery grave of around 42 to 45 men of which 38 did not survive, old and young, all Muslim by the Provincial Armed Constabulary (PAC) was the tragedy of Hashimpura, Meerut. These men were all taken by the PAC personnel in a truck by dividing them into two separate groups which resulted in two different incidents, one taking place at the Ganga Nahar and other at Hindon. In 1987, the said incident took place when paramilitary and military forces had been posted due to the occurrence of riots in Meerut district for riot control and security. Survival of 5 men who witnessed the horrific tale is the reason for the justice served in the present case.

The criminal justice process concerning the murders commenced with the registration of two FIR’s and further, the investigation being handed over to the Crime Branch, Criminal Investigation Department (CB-CID), Uttar Pradesh. Supreme Court by its orders in 2002 and 2007 had transferred the trial of the cases to Delhi. Trial meandered for over 8 years and finally, the judgment on 23-3-2015 was pronounced in which the 16 remaining accused were acquitted. Aggrieved by the acquittal, 3 appeals were filed.

The High Court on noting the submissions including the intervenors (NHRC) along with the trial court’s judgment, concluded its decision by convicting the 16 accused PAC personnel who were acquitted by the trial court due to the non-identification of both the trucks in which 42-45 men were abducted and killed.

“This case points to the systematic failure that results, not infrequently, in a miscarriage of justice.”

The Court stated that “we are conscious that for the families of those killed, this is perhaps too little, too late. They have had to wait for 31 years for justice.” The only basis on which the trial court had acquitted the accused was due to no proof for the truck URU 1493 being used in the incident. The trial court was also not at fault as the benefit of additional evidence as attained by the High Court was not with the trial court and therefore the trial court held that:

“No clinching evidence on record without infirmities on the circumstance relating to identity of the truck and accused persons and therefore, the accused persons cannot be convicted on the basis of scanty, unreliable and faulty investigation which has gaps and holes.”

Nonetheless, the High Court now with the benefit of additional evidence convincingly established the accused persons were very much present with the truck URU-1493 in which the victims were abducted and taken away. Accepting the suggestion of NHRC, the court recommended that every SLSA should designate a Nodal Officer to address the needs of the victim families in the case of custodial killings or state excesses.

Accordingly, the appeal was disposed of by convicting the abovesaid accused and sentenced them to life imprisonment for the offence punishable under Section 302 read with Section 120-B IPC along with Sentence for other offences which were directed to run concurrently. [Zulfikar Nasir v. State of U.P.,2018 SCC OnLine Del 12153, decided on 31-10-2018]