No one lynched Pehlu Khan

On April 1, 2017, Pehlu Khan and six others were attacked by a mob on the national highway linking Jaipur to Delhi on the suspicion of cow smuggling. Pehlu Khan succumbed to his injuries a few days later. The incident became a matter of prime time news after videos of the attack went viral on social media.

The accused were arrayed in the case primarily based on the two videos of the incident which were recorded by bystanders. Two set of doctors examined Pehlu Khan. One, when he was admitted, and the other, who conducted the postmortem. They had diametrically opposite views. Three different investigators led the investigation. The prosecution examined 44 witnesses and submitted 118 exhibits. The accused did not lead any evidence. They did not deny their presence at the spot of crime, but pleaded that they were only bystanders in the mob.

A sessions court recently acquitted all the accused (allegedly members of Hindu outfits namely Vishwa Hindu Parishad and Bajrang Dal). The Court opined that the prosecution had failed to prove the guilt of the accused persons 'beyond reasonable doubt', entitling the accused persons to the 'benefit of the doubt'.

The Court refused to rely on the videos. Reliance on the first video was refused on the ground that the mobile phone which was allegedly used to record the video, was never seized by the police. The mobile phone was thus not sent to the Forensic Science Laboratory (FSL) to examine if the video was tampered with or not. The second video was also discarded after the person who witnessed the video being made turned hostile.

The Court also raised several objections with respect to the statement of Pehlu Khan which was recorded while he was in the ICU. It observed that Pehlu Khan's statement was recorded without a statement from his doctors about his mental and physical condition. Further, it also noted that the statement was presented before the concerned police station after a delay of 16 hours for lodging a complaint. The Court also said that since the names of the accused did not feature in the statement, it was imperative that they were identified by the victim during the investigation. However, the same was not done. The investigation clearly was not done efficiently and effectively.

The acquittal has lead to an uproar. Two important things are noteworthy at this juncture. Firstly, the incident occurred during the tenure of the Bharatiya Janata Party regime and, secondly, even the Congress government, which came to power subsequently, did not help the case. The state police failed to take custody of one of the accused and it did not seek further and detailed investigation of the matter, even while it was ascertained that the investigation conducted during the previous ruling establishment was shoddy.

Criminal machinery under our criminal justice system kicks off with reporting of a crime followed by investigation, collection of evidence, submission of the investigation report, cognizance, summoning of the accused, committal to competent trial court, framing of charges, leading of prosecution evidence, cross examination, defence evidence, statements of accused under section 313 of the CrPC, judgment on conviction/acquittal and finally proportionate sentencing. It is trite law that a defective and incomplete investigation vitiates the entire trial process.

This is the first step towards justice to the aggrieved. In a case of lynching by mob, the entire society is aggrieved. It generates a sense of fear amongst the citizens that if it can happen to Pehlu Khan, it can happen to anyone. It deflates the system as, one, it failed to protect a citizen and two, it further failed to even punish the culprits.

Supreme Court judge Justice DY Chandrachud, speaking about the case, pointed out that this is one of the great torments of being a judge because one has to decide on the basis of evidence as it stands and then one finds that police investigation has been so woefully inadequate that it is going to result in acquittal. He also added that cases where courts have been approached with a petition at an appropriate stage and courts have been able to monitor investigation have perhaps shown a better outcome.

Justice Chandrachud, however, cautioned that there was a limitation to the number of cases which courts could monitor. This is where the catch lies with such an approach. It will lead to a flow of petitions seeking monitoring by Constitutional courts at the threshold stage of investigation. Moreover, there is no filtering mechanism of picking and choosing as to which case the court can monitor. Most significantly perhaps, it is important to highlight that interference by appellate courts at the stage of investigation is not in conformity with the principles of the criminal trial process. The accused may be prejudiced as the Constitutional courts may proceed without making the accused a party and the trial court becomes bound to accept the investigation as it has been supervised by a higher court.

Further, the trial court need not only decide on the basis of evidence procured by the police alone. The trial court is empowered to order a further investigation at an appropriate stage if the facts of the case so warrant and investigation done is found to be inadequate. The appellate courts are also empowered to order a fresh investigation as well as a fresh trial in appropriate cases.

It is wrong to suggest that the trial courts are not properly equipped under procedural law to order further investigation. Having power and the exercise of such power function in a manner mutually exclusive to each other. In the Pehlu Khan case, the trial court could have ordered a further investigation at an appropriate stage but sadly this power was not exercised.

Pehlu Khan was lynched two years back on a day popularly known as the Fool’s Day. Perhaps, the criminal justice system has fooled all of us. Hope justice prevails in the appeal. Till then, no one lynched Pehlu Khan.

(Namit Saxena is Advocate, Supreme Court of India)

The views expressed above are the author’s own. They do not necessarily reflect the views of DH.