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"The law, however, that is fully settled, is that, it is the duty of the prosecution to prove the case beyond reasonable doubt."
One does not need a law degree to know that this is the standard of proof required in criminal law, that a person can only be convicted of a crime if this burden of proof is met.
And yet, not only did a trial court in Bulandshahr convict four people and sentence them to death for a set of gruesome murders without any real evidence against them, the Allahabad High Court had upheld the conviction of three of them, and confirmed their death sentence.
Which was why the Supreme Court, on Wednesday, 16 December, had to restate this basic principle of criminal law when acquitting the three men, who have spent nearly six years on death row.
The judgment by a bench of Justices L Nageswara Rao, BR Gavai, and BV Nagarathna (authored by Justice Gavai) is an important reminder of the injustice prevalent in the criminal justice system, where a shockingly poor prosecution case can be successful because the courts forget to do their job properly.
WHAT WAS THIS CASE ABOUT?
On 23 January 2014, a village near Bulandshahr was rocked by the deaths of six members of a family in their home: Mausam Khan, his wife Asghari, his son Shaukeen Khan, Shaukeen's wife Shanno, the latter couple's children Samad and Muskan.
The alleged killers were Mausam's own son Momin Khan, along with his wife Nazma, cousin Jaikam Khan and Jaikam's son Sajid.
The four of them were identified as the killers by one of Mausam's other sons, Sher Ali Khan, and his brother-in-law Jaan Mohammad. Both claimed to have been at the house at around 8-8:30 pm when the four accused attacked the deceased with knives.
They claimed that there was bad blood over over the running of the family brick kiln business, which had been taken out of Momin's hands after money issues and was now being run by Mausam, Sher Ali and Shaukeen.
Following the murders, Sher Ali and Jaan Mohammad got an FIR registered against the four accused. Momin, Jaikam and Sajid were arrested at around 2 am in the night from a nearby public spot, while Nazma was arrested in the morning of the 24th.
The trial court in Bulandshahr convicted all four in January 2016, and sentenced them all to death. The Allahabad High Court acquitted Nazma in 2018, but confirmed the conviction and death sentence for Momin, Jaikam and Sajid. The case then went to the Supreme Court on appeal.
SHOCKING LAPSES BY TRIAL COURT & HIGH COURT
The Supreme Court in its judgment was "amazed" by the high court's decision, given the lack of evidence in the case apart from the testimony of Sher Ali and Jaan Mohammad – and the glaring flaws in their testimony as well.
The testimony of Sher Ali and Jaan Mohammad, as purported eyewitnesses, had been central to the prosecution case. However, their own testimonies on where the deceased were when they were killed, and what exactly happened, did not quite match.
Even more damningly, the site plans of the house and compound showed that even if one went by their statements, there was no way each of them could have seen all of the murders, as they had claimed, from the places at which they were hiding.
During cross-examination, the police officer who prepared the site plans admitted that the two key witnesses had not told him where they hid during the attack (Sher Ali later said in court that he hid in the kitchen, while Jaan Mohammad said he hid where the buffaloes were tethered).
The trial court and the high court had failed to appreciate these basic problems with the evidence even though they had been pointed out. This was particularly egregious since the two witnesses, as family members, were 'interested witnesses', whose testimony is to be subjected to more rigorous scrutiny than other witnesses.
Bizarrely, the high court had found that Sher Ali and Jaan Mohammad's testimony about Nazma was not reliable, and had acquitted her as a result. Despite this, it accepted their claims about the other three accused.
In addition to the eyewitness testimony, the police claimed to have found the murder weapons in a field behind the house, and also to have recovered the bloodstained clothes of all the accused from Momin Khan's house.
However, in a criminal trial, this can't just be accepted by the court based on the police's claims. The court has to look at the memos prepared at the time of the seizure, hear from the officers who were there, and also get statements from witnesses to the seizure. The same goes for arrests as well.
In this case, the prosecution failed to put any of the supposed witnesses to the memos on the stand, and didn't even put the officer who did the fingerprint analysis on the stand either. A dog sniffing squad had been brought to the scene but even their report was not placed on record.
On top of all this, even though the prosecution claimed that a crowd had gathered at the house when the murders took place, not one witness from the public was produced.
The prosecution's version of how they arrested the accused was also found to be implausible by the Supreme Court judges. The police claimed that they had received a tip-off from an informant that Momin, Jaikam and Sajid were at a nearby chowk at around 2 am in the night, but the informant was not produced as a witness, and it was found strange that they would remain in such close vicinity after supposedly running away.
It was also found to be implausible that they would run away, then return to Momin's house – which was in the same compound as where the murders happened – change into other clothes (which would have required pre-planning for Jaikam and Sajid) and then run away again.
Even the basic fact of who had lodged the complaint with the police hadn't been proved in this case. The prosecution claimed that both Sher Ali and Jaan Mohammad had gone to register the FIR, but the head constable of the police station said during testimony that only Sher Ali had been there.
The police also failed to take one of the most basic steps for proving the location of their two key witnesses: the CDRs of their mobile phones. Given they claimed to have been present at the scene of the murders at the time, it would have been basic practice to use the CDRs to prove this.
Not only did the trial court fail to question this when it was raised during the defence, it refused an application by the accused for the records to be produced. The Allahabad High Court also ignored this issue.
WHY IS THIS JUDGMENT SIGNIFICANT?
Advocate Amartya Kanjilal, who was part of the legal team which represented the three men acquitted by the Supreme Court, says that this judgment is significant because the kinds of lapses noted by the apex court here are commonly seen in cases involving the death penalty.
Because these cases tend to involve gruesome or heinous crimes, trial courts and the high courts (which have to confirm any death sentence) are often highly prejudiced towards finding the accused guilty, and fail to properly scrutinise the evidence.
The fact that there were two eyewitnesses here also, counter-intuitively, became grounds for the trial court and high court to ignore serious lapses by the police and the prosecution.
"In death penalty cases, you mostly tend to be dealing with circumstantial evidence, rather than direct evidence. So once there are eyewitnesses, the courts often just accept this as the best evidence, and so everything else pales into insignificance, including any lapses in the investigation. But the Supreme Court here looked into actual minutiae, which showed the prosecution case was improbable."Amartya Kanjilal, Associate with Project 39A
The Supreme Court also took the high court and the trial court to task for not following the correct legal standard when assessing evidence on the recovery of weapons, bloodstained clothes and even the motive for the murder.
The apex court judges were astounded by the way in which the trial court and high court were willing to accept "conjectures" and "surmises" that fit into the prosecution narrative, even though none of them had been proved beyond reasonable doubt.
Kanjilal, who is an associate with NLU Delhi's Project 39A, which works on death penalty cases across the country, says that this acceptance of claims on a 'preponderance of probabilities' rather than the strict criminal law standard, is not as rare as one might think.
"Actually you'll find this quite often. Especially in death penalty cases, it's quite sensational, and so the judges are often influenced even though they are supposed to be neutral," he says. "When a court makes up its mind, then everything will fall into place according to that."
This willingness to let probability rather than proven fact influence a case isn't restricted to the way the courts can look at these cases, but even affects the legal representation available to an accused – though in this particular case, their lawyers in the trial court and high court didn't miss out on anything.
Nonetheless, not all accused will have good representation in the lower courts, or have reputed lawyers like senior advocate Nitya Ramakrishnan (who argued for Momin) to fight their case in the Supreme Court.
While the Supreme Court may have eventually ensured justice for the three accused, this can't hide the fact that there had been a serious miscarriage of justice against them with the way they had been convicted, and even arrested in the first place.
The lackadaisical approach of the trial court in this case is unfortunately all too common, and even the high court failed to ensure adequate scrutiny here, even though, as the Supreme Court points out incredulously, people's lives were at stake.
Tragically, even the Supreme Court has not always got it right in these matters, as was seen when it acquitted six men in 2019 for whom it had upheld the death penalty in 2009.
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