by By Badrul Duja
The judgement raises a legal question of law which is, ‘Can conviction based on circumstantial evidence lead to life imprisonment? If yes, then the chain of events and circumstances has to be proved beyond reasonable doubt.
The proceedings in the horrible acid attack carried out in the central town of Hawal, Srinagar a few years ago concluded in a ruling by the Principal District and Sessions Judge Srinagar, imprisoning the now-convict for life and fining him Rs 40 lakh.
The judgement is still being debated among the legal and public intellectual circles of Jammu and Kashmir, who seem to be gratified with it and believe that such a punishment would prevent crimes of such bestiality in the future.
However, as a legal researcher, for me, the judgement raises important apprehensions that merit further assessments from a legal glare in the form of discreet analysis, discussions and constructive criticism. It is crucial to evaluate the decision to present a differing point of view on the legality of life imprisonment, which remains one of the most debated issues in international law of the contemporary world.
Speedy Trial
The 330-page judgement on the conviction along with the 15-page judgement on the quantum of punishment and sentence, originated from a trial before Principal District and Sessions Judge Srinagar. The entire trial was completed within less than 2 years. A long list of witnesses on both the sides of prosecution and defence were examined, and the principle of natural justice was followed in letter and spirit. This record-breaking judgement has strengthened the speedy justice principle of law and has set a precedent for trial courts in the country to replicate the same procedure in such sensitive cases.
Disclosure of victim’s identity
The 330-page judgement is available online and its legal posturing is being discussed that governs the law on acid attack. A flurry of conversations, arguments and counterarguments have set off regarding the indifferent and insensitive approach on the part of the Court in not protecting the victim’s identity in the judgement. The name of the victim is mentioned in the judgement and not withheld, which goes against the spirit of the victim’s non-disclosure principle in acid or rape matters. Hence, the lid around the confidentiality of the victim here seems to be blown off.
In our deeply rooted patriarchal society, customs, traditions and cultures breed patriarchy As a result, majority of rape, and acid victims are often stigmatised and socially excluded. Numerous Apex Court and High Court judgements are imploring and commanding upon police and the public to keep all documents including the name of the victim in a sealed cover and replace them with identical documents by omitting the victim’s name from all records that can be viewed, studied, published or reported by the general public.
Accordingly, media houses have been cautioned to conduct sensitive reporting in such cases. Deplorably, this judgement has not regarded the sensitivity of protecting the victim’s identity and has committed a grave error in disclosing the name of the victim in an order/judgement which is considered a public document.
No action against Acid Seller
The police have not taken any action against the acid supplier, who supplied acid to the accused irresponsibly and unlawfully. The Court in its judgment has relied on statements of the Public Prosecutor that the District Magistrate has ordered sealing the said shop. However, the criminality of the shopkeeper has been ruled out and the owner is exculpated from criminal offence both by the police and by the court.
It was imperative for the Court to pass some observations against the acid supplier who sold the acid illegally as acid attacks are often linked to the availability of acid, and legal action could potentially deter such incidents. If the acid hadn’t been supplied acid to the accused, perhaps the attack could have been prevented.
Role of Investigating Officer
The role of Mr Taseer Hameed Khan, the then SHO Police Station Nowhatta as an investigating Officer is commendable. Through the joint efforts of the Special Investigation Team constituted by then SSP Srinagar Jammu Kashmir Police, police authorities arrested all three accused persons within a few hours after the crime.
The said case at its trial stage was presented through a charge sheet and the author of the charge sheet is Inspector Taseer Khan who fairly investigated professionally and competently. The gathering of evidence, recording of statements, deposing of witnesses in court against the accused, recording of disclosure statements of the accused persons, which lead to the recovery of clothes, vehicles etc, drafting of site plans and preparing of site and recovery memos, recording of independent witnesses-all was done in a professional way complying with procedural guidelines and safeguards. Speedy completion of this trial couldn’t have been possible without the Investigating Officer (IO) meeting the obligations of conducting investigations as per the Criminal Procedure Code. IO’s work as an investigator facilitated the conviction.
Life Imprisonment
In the quantum of punishment order the Court observes ‘accordingly, the convict is hereby sentenced to suffer imprisonment for life and a fine of Rs 40 lakhs for the commission of an offence punishable under Section 326-A IPC read with Section 34 IPC’. The Court further added “in default of payment of fine, a warrant for levy shall be issued to the District Collector, Srinagar in terms of Section 421 (1) (b) of Cr. P.C authorising him to realize the amount of fine as arrears of land revenue from the movable or immovable property or both of the convict. As and when the fine is recovered from the convict, the same shall be paid to the victim in terms of provision 2 to Section 326-A of IPC”.
The relevant sections under which convicts are convicted are listed below:
326A. Voluntarily causing grievous hurt by the use of acid, etc-
Whoever causes permanent or partial damage or deformity to, or burns or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim:
Provided further, that any fine imposed under this section shall be paid to the victim.
- Acts done by several persons in furtherance of common intention.—when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
The impracticality of the fine amount
The highlight of the judgement is the fine of Rs. 40,00,000 which the convict will pay towards the victim girl and failure of which will lead to attachment and selling of this property.
On the contrary, there are concerns about the unworkable nature of the order as the convict’s family will leave no stone left to gift or transfer their entire property both inherited and self-acquired towards any other person other than the convict himself only to defy this order. Certainly, the convict’s family aren’t in favour of paying the amount towards the victim girl the reason that their son will live in jail forever and the family have no impetus to pay the amount towards the victim. As far as the convict is concerned, someone in jail for the rest of his life won’t raise an amount of 40,000 lakh rupees nor is he capable to pay through his self-acquired property.
The convict paying the amount out of his inherited wealth will not operate till his parents are alive. As such recovery of the money through arrears of land revenue from his immovable and movable property is ruled out and can’t be enforced. The court has not imagined any alternative of actual or tangible materialising of the amount to be recovered from the accused.
Circumstantial Evidence
The judgment is based on circumstantial evidence and the Supreme Court of India has repeatedly held that a chain of events and transactions have to be established for convicting the accused for life imprisonment. In this case, the evidence regarding the CCTV footage is limited. The Juvenile accused in the offence has suffered a hand injury as a pillion driver. The failure of the accused person to explain his innocence in terms of Section 313 of the CrPC, which is an examination of the accused before the Court cannot be read against the accused person in a case of circumstantial evidence.
The judgement raises a legal question of law which is, ‘Can conviction based on circumstantial evidence lead to life imprisonment? If yes, then the chain of events and circumstances has to be proved beyond reasonable doubt.
Does acid judgment walk in the line of proving the case beyond reasonable doubt that imprisonment of life could have been awarded? Or 20 or 30 years of imprisonment along with a fine of Rs 40 lakh could have delivered retributive and compensatory justice in favour of the victim?
(The author is a practising advocate and transparency activist based in Srinagar. Ideas are personal.)
