(This is a guest post by Sri Harsha Kandukuri and Rahul Machaiah)
A gruesome rape and murder
The gruesome rape and murder of a post-graduate trainee doctor at R G Kar Medical Hospital in Kolkata on August 09, 2024, shook the nation. Shortly after the incident, protests erupted and the police came under fire for allegedly destroying evidence and attempting to protect the perpetrators of the heinous crime. On August 10, the Kolkata Police arrested Sanjay Roy-a civil defence volunteer, as the key suspect in the case.
Meanwhile, the parents of the victim, among others, filed a writ petition before the Calcutta High Court seeking a transfer of the investigation to the Central Bureau of Investigation (CBI). In a significant development, the High Court on August 13 directed the CBI to take over the investigation from the Kolkata Police. In its order, the High Court opined that the petitioners’ apprehensions pertaining to destruction of evidence and witnesses being influenced were justified. The High Court also observed that an investigation by the CBI was warranted in in the interest of a fair investigation and to retain citizens’ confidence in the State’s agencies.
On October 07, 2024, the investigation by the CBI culminated in the filing of a chargesheet against Sanjay Roy under Sections 64 (punishment for rape), 66 (Punishment for causing death or resulting in persistent vegetative state of a rape victim) and 103 [1] (punishment for murder) of the Bharatiya Nyaya Sanhita (BNS). Though the protesters and the petitioners before the Calcutta High Court suspected gang-rape and the involvement of several offenders, the CBI concluded that Sanjay Roy was the lone offender.
The Court of the Additional Sessions Judge, Sealdah, South 24 Paraganas tried Sanjay Roy under Sections 64, 66 and 103 [1] of the BNS. The prosecution examined 50 persons as prosecution witnesses, marked more than 300 documents as exhibits and produced 75 material objects. The accused on the other hand, did not examine defence witnesses.
On January 20, 2025, the Court convicted Roy under Sections 64, 66 and 103 [1] of the BNS and sentenced him to rigorous life imprisonment for the remainder of his natural life.
This piece is an analytical critique of the judgement of the Additional Sessions Court. The authors do not express any opinion on the merits of the case or claim that Roy was wrongly convicted. Instead, the critique is confined to the reasoning of the Court and highlights the passive role played by the defence and the Court in a manner contrary to criminal jurisprudence.
The prosecution’s case
Based on circumstantial evidence, the prosecution’s case was that during the intervening night between August 08 and August 09, 2024, the victim was sleeping in the seminar room on the third floor of the Emergency Building in R G Kar Hospital. A doctor had seen her asleep in the seminar room at 2.50 AM on August 09. An intoxicated Roy arrived on the third floor of the Emergency Building at 04.03 AM on August 09. He entered the seminar room and had a sudden impulse to rape the victim. He raped the victim by inserting a hard blunt object into the victim’s vagina and killed the victim by throttling and smothering her. After committing the crime, he left the Emergency Building at 04.31 AM. The prosecution primarily relied on the following pieces of evidence to prove Roy’s guilt:
- CCTV footage which shows Roy arriving on the third floor of the Emergency Building at 04.03 AM on August 09.
- The victim’s nipple swab containing Roy’s DNA and Roy’s hair strands being seized from the crime scene.
- Roy’s Bluetooth earphones being seized from the crime scene.
- Clothes and footwear containing the victim’s blood stains being seized from Roy’s residence
Roy’s explanation regarding incriminating material
When the Court examined Roy under Section 351 of the BNSS by seeking his response to the incriminating material, he categorically admitted his presence at the Emergency Building between 04.00 AM and 04.30 AM on August 09. He further admitted that the person seen in the CCTV footage produced by the prosecution was him. However, he claimed that as a civil defence volunteer, he was assigned the task of helping police officers’ family members when they were admitted to R G Kar Hospital. Furthermore, he visited the Hospital along with one Sourav Bhattacharya (Prosecution Witness No. 33) to meet Sourav’s brother who had been admitted for surgery and few other patients. It is highly relevant that Sourav had deposed that his brother Sagar Bhattacharya had been admitted to R G Kar Hospital and that Roy had accompanied him to the Hospital.
Roy further admitted that when he entered the hospital, as seen in the CCTV footage, Bluetooth earphones were handing around his neck but the earphones were missing when he left the hospital. However, his explanation was:
“I went to the Trauma Centre as the operation of one of Civic Volunteer was going on. Then I went to the Emergency Building and straight went to the fourth floor but I did not find the patient there and somebody informed that the patient might be at 3rd floor and then I came to 3rd floor and went to the Male Ward but did not get my patient there and as I was very much tired, I started to wait there but as no patient came, I put my helmet and Bluetooth earphone over a bed there at the 3rd floor of Emergency Building (male Ward) and when I came out the helmet was with me but I forgot to bring my Bluetooth tooth ear-phone”
Roy categorically denied that the ‘Luma’ Bluetooth earphones seized from the crime scene belonged to him as his earphones were manufactured by ‘Boat’. When the Court sought Roy’s explanation regarding the victim’s nipple swab containing his DNA, Roy did not offer an explanation. However, when questioned about the presence of the victim’s blood on the clothes and footwear seized from him on August 12, he claimed that these articles were ‘planted’.
The Court’s reasoning
The Court held that the circumstantial evidence was sufficient to establish Roy’s guilt. In page 157 of the judgment, the Court referred to the following chain of evidence to conclude that Roy was guilty:
“(a) The accused was last seen in the CCTV footage on the way which led to the PO (Place of Occurrence”(b) Cumulative reading of post mortem report, inquest report, report of MIMB created a chain of circumstances to establish that the death of the victim was homicidal and was due to the effects of manual strangulation (throttling) associated with smothering and that there was evidence of forceful penetration/insertion in the genitalia of the victim.(c) There was forensic matching of DNA of nipple swab, hair as well as blood of the victim found over the wearing of the accused.(d) The mobile tower location of the accused showed that he was within the proximity of R.G Kar Hospital.(e) Admission by the accused about his presence in the CCTV footages proved by the prosecution.(f) Baseless explanation of the accused during his reply U/s 351 BNSS.”
Critique of the reasoning and the lingering questions
With due respect to the Court and its decision, the Court ought to have assigned reasons as to why certain lapses in the prosecution’s case would not have a bearing on the case.
Firstly, the prosecution and the Court were convinced that Roy had raped the victim by inserting a hard blunt object into the victim’s vagina and there were no signs of a penile intercourse. However, the hard blunt object was not seized by the Kolkata Police or the CBI. Furthermore, the prosecution failed to establish what the hard blunt object was and why it could not be seized. Roy was not charged with destruction of evidence for destroying the object, either. Though the Court repeatedly observed that the medical evidence suggested that the victim was raped using a hard blunt object, it has not assigned reasons as to why the failure to seize the object, describe it or even explain why it could not be seized, would not have a bearing on Roy’s guilt. It also failed to notice that the CCTV footage did not indicate that Roy arrived with such an object or was seen leaving with it.
An important question that the Court ought to have categorically answered is whether the presence of Roy’s DNA in the victim’s nipple swab is sufficient to convict him for rape when the prosecution’s case was that the accused inserted an unrecovered and unexplained blunt object into the victim’s vagina. While the presence of the accused’s DNA in the nipple swab may conclusively establish sexual harassment and non-penetrative sexual assault (Section 74 of the BNS), would it conclusively establish rape by insertion of a hard object?
Secondly, in paragraphs 617 and 642, the Court records that officers of the Kolkata Police and the CBI admitted during their cross-examination that they had not obtained Roy’s fingerprints. It was also admitted that fingerprints were not collected from the Bluetooth earphones seized from the crime scene. The Court ought to have recorded findings and reasons as to why the failure to obtain Roy’s fingerprints and the failure to obtain fingerprints from the Bluetooth earphones would not weaken the prosecution’s case. This assumes significance as Roy denied that the earphones belonged to him and in light of the fact that obtaining Roy’s fingerprints and matching it with the chance prints in the crime scene may have yielded crucial results regarding his presence in the seminar room (crime scene).
Thirdly, although the ‘Luma’ Bluetooth earphones recovered from the crime scene was found to have paired with Roy’s phone, his phone was not seized in a scrupulous manner. From the testimony of Inspector Mukherjee, it appears that Roy’s phone was seized from him when he was detained on August 09 but the police proceeded to charge the phone as the battery was low! Thereafter, it was returned to Roy and seized from him afresh when he was formally arrested on August 10. Therefore, the chain of custody lacks sanctity. Although the Court criticized Inspector Mukherjee for the lapses described above, it did not assign reasons as to why these lapses would not vitiate the evidence that there was ‘continuous pairing’ between the earphones and Roy’s phone. Instead, the Court merely observes that it was Inspector Mukherjee’s “good luck” that the defence did not ask “twisted questions” regarding the lapses.
Fourthly, the Court observed that Roy had failed to provide details of the patient/patients who he wanted to visit at the hospital or summon witnesses to prove his claim. However, Prosecution Witness Sourav (a former civil defence volunteer) deposed that his brother Sagar Bhattacharya had been admitted to R G Kar Hospital and that Roy had accompanied him to the hospital on August 08. In his examination under Section 351 of the BNSS, Roy claimed that on the night of August 08 he wanted to visit Sourav’s brother and other patients. An Assistant Sub-Inspector called Anoop Dutta had deposed that there were police personnel admitted at RG Kar Hospital when the incident occurred and that under his instructions Roy used to visit hospitals including R G Kar Hospital when police personnel and their family members availed treatment at these hospitals. In paragraph 621, the Court records that the Inspector from Kolkata Police admitted that there was a relative of a civil defence volunteer who had been admitted for surgery at the hospital but she did not interrogate the patient or the patient’s relative.
Thus, it is clear that prosecution witnesses admitted that Roy’s job required him to visit R G Kar hospital when police officers or their family members availed treatment. They also admitted that when the incident occurred, few police personnel and a brother of an ex-civil defence volunteer were admitted to the hospital. This being the case, would Roy’s failure to lead defence evidence regarding the identity of the patients and him having met them, prove fatal?
Fifthly, to convict an offender for the offence of murder under Section 103 (1) of the BNS, the prosecution has to prove that the offender intentionally caused death or intentionally caused bodily injury which the offender knew was likely to cause death or intentionally caused bodily injury that was sufficient in the ordinary course of nature to cause death. However, although the Court has discussed how throttling and smothering led to the victim’s death, the Court has not recorded detailed findings and reasons that lead to the conclusion that it is Roy alone who could have throttled or smothered the victim to death, thereby attracting the offence or murder. As pointed out earlier, while the presence of Roy’s DNA in the nipple swab may conclusively establish sexual harassment and certain forms of sexual assault, would it conclusively prove throttling and smothering as well?
It may be argued that proving murder separately is not necessary as a homicidal death as a result of rape is sufficient for a conviction under Section 66 of the BNS. However, as discussed earlier, the prosecution could not establish penile intercourse by Roy and instead contended he raped the victim using a hard blunt object. When the prosecution could not recover the hard blunt object or explain its nature and why it could not be seized, would it be safe to dispense with proof of murder and instead rely on Section 66 of the BNS?
Sixthly, the Court has extensively relied on the recovery of footwear and clothes containing the victim’s blood from Roy’s residence. It is pertinent to note that these articles were seized on August 12 i.e. 2-3 days after Roy was arrested. Roy claimed that these articles were planted at his place of residence and seized through an orchestrated seizure. In page 97 of the judgment, it has been recorded that Roy claimed that his ‘wearings’ (clothes) were taken off when he was detained on August 09 and were seized from his residence on August 12 in an orchestrated manner. Even if the seizure was not disputed, would the presence of the victim’s blood on Roy’s clothes conclusively establish rape and murder by him alone or would it at best lead to an inference of unlawful contact with the victim? These questions ought to be analysed in the context of absence of direct evidence regarding Roy’s involvement.
By raising these six points, the authors do not claim that Roy was wrongly convicted. Instead, the point being made is that the Court’s reasoning does not adequately address these critical aspects of the case.
A criminal trial is a voyage of discovery
The Supreme Court has explained the role of a trial judge in the following words:
“19. In Ram Chander v. State of Haryana, while speaking about the presiding judge in a criminal trial, Chinnappa Reddy, J. observed that if a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth..Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose, he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses.” (Emphasis supplied)
In the judgment, the Court has made multiple observations regarding the defence counsel’s failure/decision not to raise certain pertinent questions during cross-examination. Citing this failure, the Court has proceeded to treat certain pieces of evidence as unimpeached. For instance, in page 151, the Court observes that it was Inspector Mukherjee’s “good luck” that the defence did not ask “twisted questions” regarding the lapses pertaining to seizure of Roy’s phone and the consequent pairing of the phone with the Bluetooth earphones found at the crime scene.
Yet another crucial observation is found in page 149 wherein the Court observed
“Questions were put to the relevant witnesses of the said hospital about the existence of ramp, other elevators, stair case to go to the said Seminar Room. The answers were affirmative but ultimately no suggestive question was put to any witness that any other person(s) entered into the said Seminar Room.” (Emphasis supplied)
Curiously, the victim’s nipple swab contained a ‘poor percentage’ of female DNA other than the victim’s DNA. When the defence counsel raised this issue while addressing arguments, the prosecutor explained that the presence of female DNA was perhaps due to contamination. The Court eventually accepted the prosecutor’s contention but observed:
“It is fact that during cross-examination of the PW-17 this point of mixed DNA profile was not raised by the defence for the reason best known to the Ld. Defence Counsel and it was argued by the defence for the first time on getting the written notes of argument filed by the complainant”
These are vital factual dimensions of the case which ought to have been probed further by the Court under Section 168 of the Bharatiya Sakhya Adhiniyam, 2023 even if the defence counsel did not raise the required questions and objections.
Does the judgment satisfy cardinal principles?
It is a cardinal principle of criminal jurisprudence in India that suspicion, however grave, cannot take the place of proof. Furthermore, it is settled law that for a conviction to be based on circumstantial evidence, the chain of facts should be consistent only with the hypothesis that the accused is guilty and ought to exclude any reasonable possibility of the accused not being guilty. A lingering question is whether the judgment has conclusively excluded alternative hypotheses such as Roy being guilty of non-penetrative sexual assault alone as opposed to rape and murder. Ruling out alternative hypotheses assumes significance in the context of the prosecution’s burden to prove the accused’s guilt beyond reasonable doubt, as well. It is perhaps needless to state that a presumption may not be drawn mechanically that all the offences committed in the course of a crime may be attributed to an offender against whom one of the several offences are proved.
In light of these principles, the Court ought to have played an active role in the trial and discovered all the facts necessary to record a conclusive finding of guilt. While the ultimate finding of guilt may be correct, the reasoning which led to such a conclusion appears to be deficient. Courts expecting the defence counsel to pursue loose ends can be detrimental to the fundamental right to a fair trial.
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