Pick and Choose? ‘Overlooking’ Cardinal Rule, How a Khandwa Court Sentenced 37 to 7 Years in Prison

Heavily relying on the statements of prosecution witnesses (all policemen) who deposed before the police, the sessions court in Madhya Pradesh’s Khandwa district sentenced 37 people to seven years in prison for allegedly disregarding prohibitory orders invoked under Section 144 of the Code of Criminal Procedure (Cr.P.C.), taking part in “unlawful assembly” and “attacking” police personnel with “stones, sticks, and axes” with a “premeditated” objective to cause injuries.

Following the murder of a person at Bangladesh Colony in the district’s Ghaspura locality, limited restrictions were imposed on movements to maintain peace and order. When the accused, as per the prosecution’s case, were asked to go back home, respecting the orders passed by the district magistrate, they allegedly indulged in stone pelting and brick-batting. It allegedly resulted in injuries to the police personnel, including Town Inspector Anil Sharma whose helmet had got damaged.

Medical reports suggest that none of the police personnel suffered any grievous or life-threatening injuries. They had minor swelling and scratches (in some cases) on their fingers, arms and shoulders. There was no case of fracture or blood loss.

It is also the case of the prosecution that one of the accused persons was dressed as a police official so as to give the illusion that they are cops.

The prosecution claimed to have seized various “incriminating” objects such as sticks, axes, stones, and a police uniform from the possession of the accused. Subsequently, a case was registered under Aections 188, 147, 148, 149, 353, 332, 294, 323, 506, 427, 171 and 307 of the Indian Penal Code (IPC), and the accused were taken into custody.

A memorandum was prepared under Section 27 of the Evidence Act; and thereafter, statements of witnesses were recorded under Section 161 of the Cr.P.C. The case had 37 witnesses (all policemen) who were examined and cross-examined by the prosecution and the defence respectively during the trial.

Statements of the accused were also recorded under Section 313 of the Cr.P.C.

The main defence of the accused is that they have been “falsely implicated” and have “nothing” to do with the story of the prosecution, which is “baseless and unfounded”.

Defence counsels argued that most of the injured police personnel suffered injuries because of falling or scratching, but the prosecution “concocted” a story with an “ulterior motive”. They further argued that the doctors who had attended the cops also accepted falling and scratching as the possible reasons behind the injuries.

But the court rejected the submissions, noting that there was no inconsistency in the statements of the injured cops even during cross-examination. They maintained, the court pointed out, that assault by a “murderous mob” caused them the injuries they suffered.

Thus, the court concluded that the defence failed to establish its claim and held the accused guilty of attacking the police officials with the intention to kill them.

It was also argued on behalf of the defence that the witnesses and supporting witnesses are all police personnel. And therefore, their statements cannot be wholly relied upon.

But the court said there is no law that says the police witnesses cannot be believed in the absence of statements of independent witnesses. “If the court finds the statements of such witnesses to be reliable, then their testimonies cannot be rejected merely on the ground that they are prosecution witnesses,” the court noted.

But going by the statements given by the witnesses during the investigation and while deposing before the court, there appear to be various improvements and contradictions in the testimonies of the witnesses. But the court apparently overlooked the fact.

The court seems to have heavily relied upon the witness statement recorded under Section 161 Cr.P.C. — apparently overlooking the cardinal rule that statements recorded by the police are not substantive evidence and that it is the testimony that is recorded in the court under Section 164 of the Cr.P.C. that holds weight.

In addition, no weight seems to have been given to the prosecution’s argument that the “test identification parade has not been conducted in accordance with law” to ascertain the identity of the accused.

The court here relied upon the Subal Ghorai Vs State of West Bengal case, wherein the Supreme Court had held, “We have no hesitation in rejecting this submission. The attack was dastardly. It is difficult to forget such a heinous episode. The injuries suffered by the deceased show how brutally they were attacked. The eye-witnesses had seen the accused from close quarters. There is, therefore, nothing unusual if the eyewitnesses identified some of the accused in the court. This court has accepted the evidence of identification in the court in several cases.”

The top court in the judgment had further said it is pertinent to note that some witnesses have honestly stated that they could not identify some of the accused. “That shows that they were not tutored,” the apex court had noted.

However, in the present case, neither the attack was “dastardly” nor the injuries suffered by the policemen were grievous in nature.

Not appreciating the material brought on record by the defence, the 3rd Additional Sessions Judge, Khandwa, by his judgment dated December 20, 2022, convicted the accused (all Muslims) under Sections 147, 148, 188, 353, 332 read with Sections 149, 323 read with section 149, 427 and 307 of the IPC.

They have been sentenced to concurrent and rigorous imprisonment of seven years. For committing an offence under the IPC Sections 188, 148, 307 read with 149, 332 read with 149, 427 and 171 (only one of the convicts), they have been punished with imprisonment of one month and a fine of Rs 200, two years and a fine of Rs 500, seven years with a fine of Rs 2,000, two years with a fine of Rs 3,300, one year with a fine of Rs 500 and three months with a fine of Rs 200 respectively.

THE VERDICT — A PRECONCEPTION

Advocate Nafees Qureshi, who defended a few of the applicants, described the judgment as a violation of the traditional principle of the criminal law — every accused person is presumed innocent until proven guilty by the State.

“This is a biased decision, which seems to be influenced by a preconceived notion. The honourable judge had perhaps decided to hold them guilty of the alleged offences even before the trial. And therefore, he overlooked crucial facts that the main complainant (a policeman) failed to identify any of the accused (whom he had named in the FIR, specifying their alleged role in the said offence) by face during an identification parade and cross-examination,” he alleged while talking to NewsClick.

He further said even the Town Inspector (Anil Sharma), who had claimed to be hit by a stone thrown by one Farooq and if he hadn’t worn a helmet he would have died, could not recognise the accused and provide any of his details.

“Neither he could identify his alleged assaulter whom he had named in the FIR, nor did the helmet (which was allegedly damaged during the assault) had any sign of the so-called assault. It means that an offence under Section 307 of the IPC is not made out. But despite the fact that the prosecution measurably failed to establish the charge of attempt to murder, the court convicted the accused for the same,” he alleged.

Qureshi said the prosecution claimed that the accused were armed with sharp-edged weapons such as axes and swords, but the MLCs brought on record had no injuries that might have been caused by the alleged weapons. 

Asked what was the incident and its trigger, he said, “It was around 1 pm when the area was put under curfew or prohibitory orders. Few people had gone to offer prayers in the local mosque. There was a huge police deployment. The devotees demanded that they be allowed to return home. When the police refused, a few people gathered near the mosque and a heated verbal exchange ensued. Meanwhile, a policewoman (Gita Jatav) misbehaved with the imam (prayer) who was leaving the mosque riding on someone’s motorbike. This angered people, and more people joined in. This led to a mild clash between the locals and the policemen.”

After the people returned home, he alleged, a massive crackdown was launched by the police who “broke into” homes and picked up all the males (who included youth and elderly people and even minors). “Five-six accused were above 65. Subsequently, an FIR was lodged that led to the conviction,” he added.

The Khandwa police could not be reached for comments.       

‘PICK AND CHOOSE’ APPROACH?

Aggrieved by the verdicts, the convicts, through the Association for Protection of Civil Rights (APCR), have filed an appeal in the Madhya Pradesh High Court — alleging that the judge has “erred in law and also on facts” while convicting the appellants.

“The investigating officer has not seized the various articles that were a prerequisite to prove the case of the prosecution nor have various witnesses who were present on the spot were cited as prosecution witnesses, despite having every opportunity to do so. If those persons would have been examined and the seizures would have been made, the innocence of the accused had been established. The learned 3rd Additional Sessions Judge ought to have drawn an adverse inference, which he did not. Thus, the investigation and the subsequent trial was not a fair one,” reads their petition.

Alleging that the judge has acted “erroneously and adopted a pick and choose approach of certain facts without taking into account the entire evidence and the ratio”, the appeal says, “He (the ASJ), on very hypothetical considerations, rejected the defence version on flimsy grounds. He has overlooked serious lapses in the investigation.”

The appeal submitted an analysis of the evidence on the record coupled with the “infirmities” that are sufficient to create an impression that the prosecution has not been able to bring “home guilt” to the appellants beyond a reasonable doubt.

“The 3rd Additional Sessions Judge even after noticing the infirmities, fell in error in convicting of the appellants. The reasons given by the 3rd Additional Sessions Judge are neither sufficient nor cogent much less compelling to uphold the impugned judgment,” it said.

The testimony of prosecution witnesses who turned hostile, according to the appeal, has not been appreciated by the trial court. Their statements, claims the petition, was full of “material contradictions” and in fact, he was one of the main witnesses of the prosecution.

“Without any independent application of mind, the learned trial court committed a grave legal error in treating the confusing and unreliable version put forth by the various witnesses as a gospel truth in order to convict the appellants,” reads the appeal.