Kathua Case Verdict: What Were the Charges Against the Accused?

We break down the Crime Branch chargesheet to assess the likelihood of convicting the accused.

The Kathua rape and murder verdict was delivered by special court judge Tejwinder Singh on Monday, 10 June 2019. Six of the seven accused have been convicted of the charges against them, while one of them, Vishal Jangotra, was acquitted on the basis that he had an alibi. One more person was accused in the case, but was not on trial in this court as he was a juvenile at the time.

This article (originally published on 18 April 2018) sets out the details of the chargesheet filed by the police in the case that was the basis of the prosecution case. Read on for more details, including which exact charges were made against each person, what the evidence was against them, and a pre-trial assessment of the strengths and weaknesses of the case.

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The Accused

1. Sanji Ram – Former revenue officer, caretaker of the Devisthan, alleged chief conspirator
2. The juvenile – Sanji Ram’s nephew; living with Sanji Ram after allegedly running into trouble at home, including being expelled from Modern Public School Sikdi Hiranagar because of “unruly behavior with girls” of the school
3. Vishal Jangotra alias Shamma – Sanji Ram’s son, BSc Agriculture student at Akansha College Mirapur, UP
4. SPO Deepak Khajuria – Special police officer, PS Hiranagar, alleged co-conspirator of Sanji Ram from the beginning
5. SPO Surinder Kumar – Special police officer, PS Hiranagar
6. Parvesh Kumar alias Mannu – Juvenile’s friend, informed by juvenile of conspiracy in advance of kidnapping
7. Sub-Inspector Anand Dutta – Headed initial investigation into death of victim, alleged to have been aware of conspiracy and accepted bribes to cover up the crime
8. Head Constable Tilak Raj – Part of investigating team and search party for victim, alleged to be go-between for transfer of bribes between Sanji Ram and SI Dutta to cover up the crime

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Because of J&K-Specific Laws, Juvenile Cannot be Tried as Adult

The exact age of the juvenile is currently a matter of dispute. A medical board in March reported that he was 19 years of age or older, which would have meant he would have been tried as an adult. However, the final chargesheet filed in April accepts that he is a ‘Juvenile in Conflict with the Law’, rather than an adult.

His exact age under 18 does not matter here either, since there is no equivalent in Jammu and Kashmir of the Juvenile Justice Act 2015, which allows for children aged 16-18 anywhere else in India to be tried as adults.

The lack of application of general Indian laws to Jammu & Kashmir is also why the Indian Penal Code and Code of Criminal Procedure don’t apply. However, the local equivalents – the Ranbir Penal Code and J&K Code of Criminal Procedure – are nearly identical. The relevant provisions in this case are in fact identical, so we can use our understanding of general Indian criminal law to understand the charges.

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Charge I – Conspiracy to Commit Offences to Drive Out Bakarwals (Section 120-B of Ranbir Penal Code)

Who Committed the Offence?

• Sanji Ram was the architect of the conspiracy.
• SPO Deepak Khajuria, Head Constable Tilak Raj and Sub-Inspector Anand Dutta were aware of the planning of the offences and the cover up.
• The juvenile and Parvesh Kumar were to carry out the plans with the involvement of others when necessary.

Will the Charge Stand?

The reason why this crime is even more disturbing is that it allegedly involves a conspiracy to use the attack on the victim to drive the Bakarwals out of Rasana in fear. It is because of this that the whole crime allegedly occurred, and is how Sanji Ram is involved – he did not take part in any of the actual physical acts of kidnapping, rape or murder, though he gave instructions for all of these in pursuance of the conspiracy.

If the charge of conspiracy can’t be shown, then to convict Sanji Ram, the prosecution will need to show common intention under Section 34 of the RPC – which may be more difficult.

The key to proving this sort of conspiracy will be statements from the conspirators, which the investigators already appear to have. Of course, such statements, even if recorded in front of a Magistrate under Section 164 of the J&K Code of Criminal Procedure, could potentially be retracted, or the witnesses could turn hostile, in which case the corroborating evidence assumes more importance.

The police are relying on Sanji Ram and other conspirators’ previous problems with the Bakarwals for this, though these will not be sufficient on their own.

Conspiracy is obviously not an offence in isolation, it requires an agreement to commit some other criminal offence, and/or the commission of that offence. It is always read with other offences – which of course have taken place in this case, though it remains to be seen if the prosecution will be able to show that these offences were committed in furtherance of the conspiracy.

The important point to note is that even if certain aspects of the offences are not committed by particular individuals, they will still be liable to be punished to the same degree as those who actually committed the offences, whether rape or murder or both.

This means that even though Sanji Ram, for instance, didn’t murder the victim himself, he could still face the death sentence for his involvement in the conspiracy.

For example, Afzal Guru was hanged for his involvement in the Parliament terror attack, even though he wasn’t physically involved in the attack. Attempts may no doubt be made to argue for mitigation from death penalty for those who didn’t commit the murder, but if the conspiracy is proved as per the chargesheet, it is difficult to see Sanji Ram getting a lesser punishment as he is alleged to have planned and directed everything.

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Evidence Mentioned in Chargesheet

• Statements of the juvenile and the other accused when arrested and questioned;
• Corroborations from statements made by other witnesses (more than 130 in total);
• Sanji Ram’s attempts to motivate members of the community not to provide the Bakarwals with land for grazing or any other assistance;
• Sanji Ram’s attempt to block sale of land from one Harnam Singh to a Bakarwal – failed after appeal to High Court;
• Seizure by Sanji Ram of goats of a Bakarwal herder, charged him Rs 1,000 to release the goats;
• Sanji Ram’s levy of a Rs 1,000 fine against victim’s father for grazing cattle in the forest pasture behind Sanji Ram’s house;
• Tilak Raj and Khajuria’s issues with Bakarwals over land occupation and crop damage, Khajuria’s previous “scuffles” with Bakarwals;
• Impression in the community that Bakarwals indulge in cow slaughter and drug trafficking; and
• Registration of FIRs and counter-FIRs between locals and Bakarwals.

Charge II – Kidnapping of Victim (Section 363, Ranbir Penal Code)

Who Committed the Offence?

• The juvenile and Parvesh Kumar kidnapped the victim, and took her to the Devisthan.
• Instructions were allegedly given by Sanji Ram.
• Deepak Khajuria is alleged to have induced the juvenile to commit the kidnapping in exchange for assistance in passing exams.

Likelihood of Success?

Again, the key evidence in relation to this is the testimony of the juvenile and the other accused. If the testimony of at least the juvenile remains unchanged at trial, this should be sufficient to prove that the juvenile kidnapped the victim.

The corroborating evidence of the witness, Veena Devi, will also be important here as she is the last person to have seen the victim before she went missing. It is unclear from the chargesheet if she saw the victim with the juvenile, but if so, that would be a very strong piece of evidence not just for the charge of kidnapping, but also for the other charges.

Even if she did not see the juvenile with the victim, Veena Devi’s testimony will be important. While this would be circumstantial evidence, it would be a crucial link in the chain that could lead to conviction.

See, for instance, a case in October 2017 where the Supreme Court convicted a man of raping a minor of unsound mind based on the circumstantial evidence that he had been the last person to be seen with the victim before she was subsequently discovered after being raped.

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Evidence Mentioned in Chargesheet

• Statements of the juvenile and the other accused when arrested and questioned;
• Corroboration of elements of the story by witness Veena Devi, who had been approached by the victim regarding the whereabouts of her horses before the juvenile met her on the day.

Charge III – Wrongful Confinement and Gang Rape of Victim (Sections 343 and 376D, Ranbir Penal Code)

Who Committed the Offence?

• The juvenile and Deepak Khajuria administered the sedatives to the victim, and checked on her status.
• SPO Surinder Kumar allegedly provided Khajuria with information about the movement of Bakarwals near the Devisthan and the condition of the victim.
• Instructions to hide the girl in the Devisthan were allegedly given by Sanji Ram, who also provided misleading information to the search party.
• The juvenile, Khajuria and Vishal Jangotra gangraped the victim, Parvesh Kumar tried to do so but failed.

Likelihood of Success?

The post-mortem report clearly seems to show that the victim was raped (which busts the fake news being spread to claim that rape hasn’t been proved in the case), and the combination of lack of food and sedatives supports the theory of confinement. However, the chargesheet does not mention any forensic evidence of rape with reference to the accused.

If the prosecution is unable to use DNA evidence or some other such forensic evidence to tie each of those accused of rape – juvenile, Vishal, Khajuria and Parvesh (attempted) – then it may be possible for the others apart from the Juvenile to claim that they didn’t rape the victim.

Of course, if it is still shown that they were present and/or aware of what was being done, the conspiracy charges would still stand, as does the charge of common intention – though if this is so, the charge will have to be downgraded from gangrape to rape.

Vishal’s involvement has been countered by his family, which claims he was in Muzaffarnagar at the time to take an exam. It is possible to reach Kathua from Meerut in around 9.5 hours by train (which would allow him to be there around 6 am as per the investigation, depending on the varying departure times), but if there is strong evidence that he was in Muzaffarnagar at the time, this could be a problem for the prosecution.

The chargesheet claims that the college/university authorities have been paid off by Sanji Ram. They are awaiting expert opinions on documents from the authorities, and of the video recordings from the exam centre where Vishal was supposed to have appeared. If Vishal’s presence is disproved, this could be a blow to the case, as he was supposed to have been present for several instances of rape (and the murder) not just by himself, but also with the juvenile and Khajuria.

The chargesheet contains a lot of minutiae in relation to the events of this time, which acts as a double-edged sword. On the one hand, it shows a great attention to detail and clearly ties bits of evidence discovered to the key allegations.

For instance, the detail that the strip of sedative tablets included 10 of them ties with the medicine strip allegedly purchased by Khajuria on 7 January. The exact numbers of tablets administered on 11, 12 and 13 January and the location of where the tablets were kept fits in with the number of tablets in the strip later recovered by the investigators.

On the other hand, some of these details seem a bit strange, such as the fact that the tablet strips were kept under a pile of leaves and garbage near an electric pole outside the Devisthan. If any of these details is disproved or shown to be implausible, it could throw doubt on the whole narrative. One such detail which could prove problematic is the mention that Sanji Ram “exclusively manned” the Devisthan “to the exclusion of any other person of the area.” The Quint has been informed that representatives from two other villages are also supposed to have keys to the Devisthan.

Evidence Mentioned in Chargesheet

• Statements of the juvenile and the other accused when arrested and questioned;
• Post-mortem report (conducted on 17 January, the same day the body was found) of the victim which said that her virginity was not intact, there were lacerations on her vulva, and there was blood-stained discharge inside her vagina – all of which are consistent with signs of rape;
• Post-mortem report also indicates that the victim was kept without food, and that she was given sedatives;
• Potency tests of the juvenile, Vishal and Pravesh were conducted, which showed that they were capable of performing sexual intercourse;
• Strands of hair were discovered in the Devisthan – DNA profiling experts in New Delhi confirmed these included hairs from the victim;
• DNA profiling established the victim’s blood on vaginal smears;
• Strip of sedative tablets recovered with two tablets remaining;
• Call Data Records of the accused persons’ mobile phones which prima facie indicate they were at the locations they were supposed to be as per the above account.

Charge IV – Murder of Victim (Section 302, Ranbir Penal Code)

Who Committed the Offence?

• SPO Deepak Khajuria attempted to strangle the victim, but failed.
• The juvenile killed the girl by pressing his knees down on her back while strangling her with her chunni. He then hit her twice on the head with a stone.
• Parvesh and Vishal were present for both attempts.
• Further to his original plan, instructions to kill the girl were allegedly given by Sanji Ram. The instructions were given when they were because he was concerned that there would be visitors to the Devisthan the next day.

Likelihood of Success?

The post-mortem report’s finding on cause of death is consistent with the alleged method by which the victim was killed. However, there is once again no mention of forensic evidence like fingerprints or DNA from the dead body that would point to the accused, apart from the hair of the juvenile.

It may well be that there is additional forensic evidence which has not been mentioned in the chargesheet, but till we know more, the key direct evidence to prove that the accused committed the murder will be the statements of the accused.

Of course, there appears to be reasonably strong circumstantial evidence in the case which ties at least the juvenile to the crime, including that he was the last person to be seen alive with the victim, and the presence of his hair where the body was found.

It should be noted, however, that the statements of the friends of one Amit (who the juvenile supposedly told about the murder) would be hearsay, and therefore inadmissible.

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Evidence Mentioned in the Chargesheet

• Statements of the juvenile and the other accused when arrested and questioned;
• Statements of friends of juvenile’s friend Amit;
• Post-mortem report says that the cause of death was asphyxia leading to cardio-pulmonary arrest;
• The Forensic Science Laboratory in Delhi was able to confirm the presence of blood stains on the frock/salwar of the victim, despite alleged attempts to clean up the clothes;
• Hair recovered from the site where the body was disposed has been found to belong to the juvenile by the FSL at Delhi.

Charge V - Tampering With Evidence and Giving False Evidence (Section 201, Ranbir Penal Code)

Who Committed the Offence?

• Sub-Inspector Anand Dutta agreed to cover up the crime and divert searches for the victim, in return for a sum of Rs 5 lakhs from Sanji Ram. Rs 4 lakhs were allegedly paid through Head Constable Tilak Raj.
• The juvenile provided a different version of events to the initial police investigation (headed by Dutta) in which he said he alone kidnapped and killed the girl, after keeping her in a cow shed. This version was allegedly given by him on the instructions of Sanji Ram and Dutta, who staged photographs to support it.
• Dutta and Tilak Raj allegedly washed the victim’s clothes with an intention to remove clay/blood/sperm from them. Other crucial pieces of evidence were either not seized or concealed/destroyed.

Likelihood of Success?

The failure to collect essential evidence presents compelling circumstantial evidence that SI Dutta and HC Tilak Raj were looking to conceal evidence, especially since they didn’t seize the chunni which was supposed to have been used to kill the victim even according to the initial story. The chunni and hairband were only seized later by the special investigation team.

The attempt to wash the victim’s clothes is also a significant piece of evidence. The findings of the Delhi FSL also corroborate the narrative by the Crime Branch.

The Crime Branch will need to disprove the initial version of events provided by the juvenile, which should be possible using the statements of the juvenile, other police officers, and the forensic evidence that shows the victim was kept in the Devisthan. They will also need to establish the presence and involvement of the other accused.

The conspiracy to commit these offences involving Sanji Ram will depend not just on the statements of the accused and other witnesses, but also on whatever proof the police have managed to obtain regarding the payments of bribes to facilitate this.

The chargesheet mentions exact dates, and how the cash was transferred (the first instalment was in fact paid by the juvenile’s mother, who had gone to school with Tilak Raj), so it is expected that they have good direct or circumstantial evidence of this. If proved, this would be very strong evidence.

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Evidence Mentioned in Chargesheet

• Call data records, confessional statements and statements of officials of the P/S Hiranagar;
• Delhi FSL report which found that attempts were made to wash the victim’s clothes;
• SI Dutta is noted to have deliberately not seized the chunni/dupatta, hairband and necklace of the victim, as well as the clothes of the juvenile even after his initial confession (based on the earlier version of the story as allegedly concocted by Sanji Ram);
• Blood sample of the victim wasn’t collected from the doctors who conducted the autopsy.