ASIFA RAPE & MURDER CASE, 2018

INTRODUCTION

Asifa Bano was an eight-year-old belonging to a nomadic Bakarwal community. Unlike an 8-year-old around the world she had a special fondness for the horses. She was especially fond of grazing them out in the lush green meadows. Unfortunately, on January 10, 2018, it was her last time, for Asifa never returned with the horses that day and her tiny lifeless body was recovered from the forest close to her abode.

It is only after two days, that Asifa’s parents approached police to file a complaint, when they couldn’t find her anywhere. After another five days, the body of the 8-year-old was found. The horrific sight of her parents and the rest of the Bakarwal community was one of a girl who had been drugged, kidnapped, raped and murdered. Her body was left abandoned in a forest close to the temple where the heinous crime was committed.

A few weeks later, the charge sheet was produced by Jammu & Kashmir Crime Branch narrating that the victim was sedated and raped multiple times by different men, kept in a local temple for 6 days, where she was forced to consume toxic substances, tortured to an extreme level and killed. This is yet another grave indictment of a society that seems to be losing all moral fibre. However, what is even graver is that the crime has huge socio-political connotations in a state already in turmoil and deep political divide. People of the right wing started defending the accused. This turn of events soon turned the case into a vortex of crime, identity politics and search for justice. Civil society and the media were put to the test in this scenario. The Kathua case exposed several cracks in India’s criminal justice system, including the lack of a fair inquiry, failure to protect witnesses, and the politicisation of even heinous crimes. This case brief chronicles the painful and traumatic case from the roots to its success in the court of law.

FACTUAL AND LEGAL IMPLICATIONS

In yet another appalling case of sexual assault, a gang of men, including a priest of a temple in UP, have been arrested for allegedly abducting a girl, confining her to a place, subjecting her to repeated sexual acts, and even hatching a conspiracy to abuse her. The accused gave her sedatives to be subjugated and also committed the offence from the premises of a place of worship.

The acts amounted to criminal intimidation, an attempt to abet a minor to indulge in sex, attempting to sexually assault, etc. All these acts were punishable offences under IPC sections 506, 201, 507, 509, read with 34. But the seven accused had been charged with attempted extortion, conspiracy, kidnapping, wrongful confinement, gang rape and murder under the Ranbir Penal Code, and the charges were framed against them. The said offence was organised sexual abuse and investigated based on circumstantial and forensic evidence. After the conviction of the accused for the above offences, he was also charged for attempting to destroy the evidence. Public servants shall also be made liable for not acting in accordance with the law to exonerate the said offenders.

Transfer of a trial under Section 406 CrPC is not unusual in criminal trials. However, in this case, the order assumes significance as it was a safeguard of the right to a fair trial guaranteed under Article 21 of the Constitution of India. Further, there were local animosities and a lot of pressure on the Trial Judge to deny the accused a fair trial.

COURTS ANALYSIS

The Kathua rape case became the subject of much controversy. All the accused belonged to same religion. So, the matter took communal colour. People were worried as to how trial would be conducted fairly and justices would be delivered to find out whether the accused were really guilty of that heinous crime. The Supreme Court of India transferred the trial from Kathua to Pathankot and also directed Monitoring of Investigation and measures for witness protection. Not a single day of hearing was allowed to be adjourned or taken stay application from defence side. After hearing final arguments trial court pronounced the verdict and found all the accused guilty of charge of murder and rape. On 10 June 2019, out of seven accused six were declared guilty and one accused was acquitted. Sanji Ram, Deepak Khajuria and Pravesh Kumar were awarded life imprisonment for rest of their life and also to pay fine of Rs 1,00,000. Three other accused of the case- Tilak Raj, Anand Dutta and Surender Verma were awarded five years of rigorous imprisonment for destroying important evidence. Sanji Ram’s son Vishal was acquitted due to want of evidence. The eighth accused was a juvenile nephew of Sanji Ram, was tried in a juvenile court. Even the higher courts have dismissed the majority of appeals with some modifications. This decision proved that in sensitive and “pressurised” cases, a trial can be held in any forum and all possible measures can be taken to ensure the safety and security of the witnesses so that the trial may be conducted in a fair manner. The judicial mind must remain isolated from various social and political pressures to uphold the dignity of the institution of justice.

CRITICAL ANALYSIS, GAPS & REFORMS

The Kathua rape case has exposed the cracks in the criminal justice system of the country. In an already failed system, this incident may turn out to be the last nail in the coffin. From a legal perspective, the case showed how the police could subvert the criminal law and alter the course of investigation by tampering with evidence and acting in violation of legal procedures. However, the Supreme Court of India intervened effectively by transferring the trial from Jammu and Kashmir to Pathankot and monitoring the same on a continuous basis. It was in furtherance of the well-established ratio that, in order to safeguard the right to a fair trial guaranteed under Article 21 of the Constitution, a trial could be transferred to another jurisdiction if it is being held in a place where the trial would not be fair because of extraneous reasons, such as communal pressures, etc. However, the case also exposed the failure of the civil society to demand speedy justice despite organised protests and pressure from socio-political elements preventing the investigation from proceeding at the desired pace.

The most important reform lesson that these despicable acts of child sexual violence teach us is the need to strengthen witness protection, independent investigation and insulated prosecution right from the whistle. Public outrage following the heinous child abuse and murder in Kathua is a good opportunity for us to revisit the child protection laws, especially the Criminal Law (Amendment) Act 2018 that had diluted the definition of sexual assault. We need to see the accused receive the sentence that they deserve. But that is only the beginning. An inquiry is also needed into the bungled investigation that was possible only due to communal intimidation. The police and investigation teams need to update their forensic skills to investigate such crimes. Child-friendly hearing trials and child-friendly trials are also essential. Provisions need to be made to address the special needs of nomadic/marginalised groups who are often left out of the trial process. Police and public officials need to be held accountable for distorting evidence in such heinous crimes.

CONCLUSION

This is truly shocking and disgusting, despite the existence of laws to deal with similar outrages against women in India. The problem is that these laws are not being allowed to function to their full potential. The issues of weak investigations, tampering of critical evidence and a clear bias on the part of some officials are a pointer to the deep-rooted fissures that exist within the overall operational architecture. While there has been much lamentation regarding the role of the judiciary in facilitating the transfer of the Batailona mass trial, from a hopeful perspective, it also meant that the right to a fair trial under Article 21 was respected in that the accused did receive a hearing before which all the evidence against them was adduced. This provides further evidence that our system of law, when properly applied, can achieve justice.

Once again, we are compelled to underscore the need for reforms such as independent inquiries, discipline of government officials for any abuse of power, reform of forensic agencies, trial by speedy courts and witness protection. These are some of the crucial steps that are necessary to prevent justice from becoming a mere farce.

Although this case was very painful and shocking, it served as a wake-up call to all of us, and demonstrated the potential of the legal system to become more effective, just and trustworthy if well implemented and monitored.

REFERENCE(S):

ONLINE SOURCES

1. BBC, https://www.bbc.com/news/world-asia-india-43722714
2. UNDOCS, https://docs.un.org/en/A/HRC/38/NGO/71
3. THE HINDU, https://www.thehindu.com/news/national/other-states/six-convicted-in-kathua-rape-and-murder-case/article27731989.ece
4. THE NEW YORK TIMES, https://www.nytimes.com/2018/04/11/world/asia/india-girl-rape.html

STATUTES

1. RPC (Ranbir Penal Code), 1932
2. The Constitution of India, 1950