Guest Post: Loose Ends and Lingering Questions from the RG Kar Judgment

(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:

1. CCTV footage which shows Roy arriving on the third floor of the Emergency Building at 04.03 AM on August 09.
2. The victim’s nipple swab containing Roy’s DNA and Roy’s hair strands being seized from the crime scene.
3. Roy’s Bluetooth earphones being seized from the crime scene.
4. 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.

Guest Post: The SC Judgment in Patan Vali - Progressive Obiter, Regressive Ratio?

(This is a guest post by Vrishank Singhania)

On April 27, 2021, a two-judge bench headed by Chandrachud J., in the matter of Patan Jamal Vali v. State of Andhra Pradesh [‘Patan Vali’], rendered an important judgement on the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [‘SC/ST Act’]. The case pertained to the rape of a visually challenged woman belonging to the Scheduled Caste. The Sessions Court had convicted the accused under Section 376(1) of the Indian Penal Code, 1860 [‘IPC’] for rape, and under Section 3(2)(v) of the SC/ST Act. Section 3(2)(v) enhances the punishment to life imprisonment, for any offence under the IPC punishable with imprisonment for ten years or more, against a member of the SC/ST. Based on these two offences, the Sessions Court sentenced the accused to life imprisonment. 

An appeal was filed against this judgement in the the Andhra Pradesh High Court, which upheld the conviction. The orders of the High Court and the Sessions Court were then appealed to in the Supreme Court. The Supreme Court was satisfied that the conviction under Section 376(1) was proved beyond reasonable doubt and confined itself to the question of whether the offence under Section 3(2)(v) had been proved. 

In its judgement, the Supreme Court used the framework of intersectionality to critique and question the correctness of past interpretations of Section 3(2)(v). However, it stopped short of referring the matter to a larger bench, because in its opinion, the Section 3(2)(v) charge anyway failed on evidentiary grounds [paras 55-56]. Given the Court’s foray into intersectionality and critique of past precedent, the Court clearly sought to embody a spirit of caste-consciousness. However, I argue, that its application of the law to the present case belies this spirit. 

In the first section of this post, I look at some recent judgements of the Supreme Court on Section 3(2)(v) to contextualise the problems with the existing jurisprudence. While this issue has been discussed on this blog (here), I seek to go into greater detail – and in particular, examine the significance of the 2015 amendment to section 3(2)(v). In the second section, I analyse the Court’s critique of this jurisprudence in Patan Vali. In the third section, I critique the Court’s decision on the facts of the present case.

Judicial interpretation of Section 3(2)(v) of the SC/ST Act 

As mentioned above, Section 3(2)(v) provides for enhanced punishment of life imprisonment for certain offences under the IPC. While this provision was amended in 2015, earlier it provided that – 

"(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property, on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine."                                          (Emphasis supplied)

The judiciary, in its interpretation of this section, read-in a mens rea requirement: it required proof that the caste of the victim was the motive behind the accused having committed the offence. At the level of the Supreme Court, the first instance of the reading-in of such a requirement was seen in Masumsha Hasanasha Musalman v. State of Maharashtra. This interpretation of Section 3(2)(v) was then carried forward in the other cases, such as Dinesh v. State of Rajasthan and Ramdas v State of Maharashtra. None of these judgements, however, provided any reasoning as to why Section 3(2)(v) required proof of caste as motive – there is no attempt to source such a mens rea requirement to either the text or legislative history of the Act, nor to any past precedent. 

The National Coalition for Strengthening SCs & STs (Prevention of Atrocities) Act in its report noted that a mens rearequirement contradicts parliamentary intent, and a Ministry of Home Affairs note made clear that motive ought to be irrelevant. Further, in State of Karnataka v. Appa Balu Ingale, Ramaswamy J. observed that motive is irrelevant when it comes to untouchability and atrocities against SC/ST, and that social necessity requires dispending with evidence of mens rea. Despite these, courts continued to use mens rea as a ground to acquit persons accused under the SC/ST Act. 

Given the abysmally low conviction rates, various Dalit rights organisations issued a clarion call in 2010 to strengthen the SC/ST Act through necessary amendments (for more on why it is difficult to prove caste-based motive, see here). One of the recommendations was to remove the phrase “on the ground” in Section 3(2)(v) given its misinterpretation by the judiciary. In responding to these demands, Parliament amended the SC/ST Act in 2015. Section 3(2)(v) now provides that – 

“(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, 

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or Scheduled Tribe, or such property belongs to such member shall be punishable with imprisonment for life and with fine.” (Emphasis supplied)

The phrase “on the ground” was replaced by “knowing”, to reduce the burden that courts had (incorrectly) placed on the prosecution under this Act.

The Supreme Court in Ashrafi v. State of Uttar Pradesh held that there was a distinction between the standard, pre- and post-amendment. It held that after the amendment “mere knowledge” of the victim’s caste was sufficient to establish an offence under Section 3(2)(v). However, this lower standard would apply only in cases after the amendment came into force. In Ashrafi, the offence pre-dated the amendment. However, it was held that – 

"In the absence of evidence proving intention of the Appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the Appellant Under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained." (Emphasis supplied)

The Court thus increased the threshold under the erstwhile provision, by reading in “only”: It would have to be shown that the “only” motive of the accused was the victim’s caste – the presence of any other motive would mean that Section 3(2)(v) was not attracted. Given that other motives such as enmity, jealousy or lust could also be traced to the commission of an offence, this increased threshold then became a ground to acquit accused under the Act. 

At the very least, this judgement had recognized a lower standard under the amended section, even though it had increased the standard under the original section. However, even this distinction between the original and amended section has now been conflated by the Supreme Court. 

In Khuman Singh v. State of Madhya Pradesh, the Court was dealing with an offence committed in 2005 i.e., prior to the amendment. However, the Court reproduced the amended section and then held that “There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste.” (Emphasis supplied)

There is no mention of the amendment in this judgement nor of the holding in Ashrafi. Given the offence was in 2005 (before the amendment), it is likely that the Court intended to apply the pre-amendment clause, but erroneously reproduced the amended section instead. While there is some room for ambiguity here, the conflation is clear in Hitesh Verma v. State of Uttarakhand [for a criticism of the interpretation of s.482 CrPC in this judgement, see here]. This case pertained to an offence committed in 2019 i.e. post amendment. The judgement mentions the amendments to the SC/ST Act and even goes into the details of the social context and purposes of the Act. Nevertheless, it goes on to hold that "… [facts] would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe." (Emphasis supplied)

This conflation has also crept into some High Court judgements. For instance, consider the Delhi High Court’s decision in Danish Khan v. State (Govt. of NCT of Delhi), which has been criticised on this blog (here). As the author notes, the High Court applied the ‘only’ standard by relying on Dinesh and Khuman Singh. Interestingly, in Danish Khan, the offence took place in 2019 i.e. post amendment. The Court should have applied the new standard. Nevertheless, like the Supreme Court, the High Court conflated standards and applied the ‘only’ standard to the amended clause. A similar conflation is seen by the Chhatisgarh High Court in Pavas Sharma v State of Chhatisgarh.

Thus, after the 2015 amendment, enacted to strengthen the SC/ST Act, the Supreme Court in Asharfi first increased the standard under the pre-amendment section. It then in Khuman Singh and Hitesh Verma applied the higher standard even to the amended section, thereby destroying the purpose of the amendment itself. 

Critique of Existing Jurisprudence Based on Intersectionality

Intersectionality claims that “oppression arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone...” [para 14, Patan Vali]. In other words, the experiences of a SC/ST woman are different from the experiences of a savarna woman. Multiple sources of oppression (such as caste, gender and disability) operate together, and they cannot be isolated in silos. In contrast to the intersectional approach, a single axis approach to discrimination homogenizes the experience of a group of persons based on a single marker such as gender, caste or disability. It does not account for the differences in experiences of persons within these groups. Patan Vali uses the lens of intersectionality to make two critiques – first, of the original section 3(2)(v); and second, of the holding in Ashrafi.

In terms of the original section, the Court states that the phrase “on the ground” is an instance of a statute only recognizing a single-axis model of oppression which requires that a person prove a discrete experience of oppression suffered on account of their caste. However, the problem with such statutory formulations according to the Court is that when the oppression is intersectional, it is difficult to separate out various grounds for oppression because they operate together. When a disabled, Schedule Caste woman experiences sexual assault she does not know whether it was because she was a woman or disabled or Schedule Caste. Her experiences are not disjunctive, but a combination of all her identity markers. According to the Court, the amended section on the other hand, by doing away with “on the ground”, enables an intersectional approach. [para 50].

The Court then critiques Asharfi, which read-in the requirement – “only on the ground” into Section 3(2)(v). This the Court observes is an incorrect reading of the clause and amounts to introducing a restriction that the Act did not contemplate. Further, from an intersectional lens, such an interpretation fails to account for how oppression functions in a cumulative fashion, and a separation of the grounds of oppression is impossible. The Court states that the correct interpretation of the original section would be that an offence under the section is established, so long as it can be shown that caste was merely one of the grounds for the offence. [para 55].

This critique marks an important discontinuity from other Supreme Court judgements which have sought to validate the Asharfi interpretation and have even extended it to the amended SC/ST Act. However, in my opinion, its first criticism of the original section 3(2)(v), incorrectly identifies the problem as the wording of the section - in particular, the phrase “on the ground”. This phrase, according to the Court, indicates that a person needs to “prove a discrete experience of oppression suffered on account of” their caste [para 50]. This however is not possible because grounds of oppression operate together – thus according to the Court the amendment rectified a flaw in the statute by replacing “on the ground” with “knowing that”. But the Court provides no explanation for why it believes that the wording of the original section required a single-axis approach. In fact, it seems to contradict itself on this point later in the judgement. While critiquing Asharfi, it states that reading in “only” was incorrect because an offence under the original section is established, so long as caste is merely one of the grounds of the offence – i.e., an intersectional approach was possible [para 55]. On one place the Court holds that the original section embodies a single-axis approach, whereas in another, it holds that the section embodies an intersectional approach. 

Apart from this inconsistency, Patan Vali failed to identify a more fundamental problem with previous interpretations of section 3(2)(v) – the introduction of a mens rea (or motive) requirement. As mentioned earlier, this was without any textual or historical basis. The failure to recognize the problem of the judicial introduction of mens rea has two consequences. First, it led the Court to hold that the 2015 amendment was necessary because of a lacuna in the statute, and not because of judicial misinterpretation of the original section. Given that there are pending cases from before the amendment, Patan Vali only serves to fortify the judicial misinterpretation by characterising it as a legislative error. Second, as I argue below, the Court ends up requiring proof of mens rea – which is ultimately the reason why it finds that the charge under Section 3(2)(v) has not been satisfied.

Supreme Court’s Decision on The Facts of Patan Vali 

While the Court doubts the correctness of the ruling in Asharfi, it refrains from referring the matter to a larger bench. This is because the Court says that the case anyway fails on evidentiary grounds, and thus, it need not go into an interpretation of the section itself [paras 55-56].

The Court holds that the prosecution failed to establish that the offence was committed on the basis of caste, and in this regard, disagrees with the ruling of lower courts. The Sessions Court had inferred that the offence was committed on the grounds of caste on the basis of the circumstances surrounding the offence –the accused knew the victim’s caste, and he committed the offence in her own house, in broad daylight, with her mother around – highlighting the impunity he believed he had on account of his caste [para 7]. However, according to the Supreme Court, for a conviction under the section the prosecution must lead “separate evidence” that specifically establishes the intent or motive of the accused [para 58]. When the Court introduced a motive requirement in the past, it left room for lower courts to infer motive based on surrounding circumstances – as the Sessions Court did here. However, Patan Vali adds further restrictions by requiring prosecution to furnish “separate evidence” as to the accused’s intent. 

The Court holds that since the original section adopts a single-axis approach, but oppression is intersectional, it would be difficult to establish what led to the offence – “whether it was her caste, gender or disability” [para 58]. Intersectionality thus becomes a reason for why an offence under section 3(2)(v) cannot be established. 

Far from being progressive, the Supreme Court’s reasoning on facts ultimately creates two additional hurdles for a successful prosecution under section 3(2)(v) – first, that motive cannot be inferred from circumstances, but requires separate evidence; and second, intersectionality makes it harder to separate grounds for oppression, making it difficult to show that an offence was on the basis of caste. While the criticisms of the Act and past precedent constitute obiter and do not change the position of law (since the matter is not referred to a larger bench), the additional restrictions it introduces are part of the ratio, as they constitute the core of Court’s decision. Nevertheless, it is an important judgement in that it recognizes the challenges that plague the enforcement of the SC/ST Act. Only time will tell which aspects of this judgement are fortified in further rulings by courts across the country.

Bail Provisions of Section 45 PMLA Struck Down - Some Hits and Misses

Two days ago, a Two Judges' Bench of the Indian Supreme Court decided a batch of writ petitions led by Writ Petition (Crl) No. 67 of 2017 titled Nikesh Tarachand Shah v. Union of India & Anr. [Nikesh Shah] in which it struck down the parts of Section 45 of the Prevention of Money Laundering Act 2002 [PMLA] which concerned the grant of bail. The Court held that these parts violated Articles 14 and 21 of the Constitution - guaranteeing a right to equality, and protection against deprivation of the right to life and personal liberty by a procedure not established by law. The effect of this judgment is that bail petitions earlier subject to a stringent standard under Section 45 PMLA will now be tested on the less taxing standards of Sections 439 and 437 of the Criminal Procedure Code 1973 [Cr.P.C.]. This post has four parts - (i) explaining how money laundering and the PMLA work (which I'd urge you to skim through even if you're a lawyer, because at times the judgment reflects some lack of knowledge on the Court's part), (ii) charting out how the Court did what it did, (iii) showing where the Court goes wrong, and finally (iv) what this judgment might mean for the many other statutes with similar clauses that have not been examined by the Court yet. 

What is the PMLA, What are the Schedules, and What does Section 45 do?

The PMLA is India's answer to its global commitment to tackle money laundering, which (at the cost of oversimplification) means representing assets obtained through illegal acts as untainted. In line with global standards, the PMLA covers all kinds of conduct connected with this process of representing black as white (doing, aiding, abetting, attempting etc), as long as one knowingly did so [Sections 3 and 4]. The PMLA not only makes this is an offence but also triggers connected civil actions of attaching and confiscating the tainted assets themselves [Sections 5-8]. 

Notice how the entire idea of money laundering is linked to some underlying illegal act which results in generating some proceeds - cash or kind. While some countries don't require that illegal act to be a crime, India does, and the PMLA calls it a 'Scheduled Offence' [Section 2(y)] i.e. offences that are part of the Schedules to the PMLA. There are three Schedules - A, B, and C - and Schedule A contains the bulk of offences and Schedule C is basically the same thing applied in a transnational context. Schedule B contains only one offence - Section 132 of the Customs Act 1962 which criminalises making false declarations before customs officers. Importantly, when the underlying offence is one from Schedule B, the PMLA will only apply if the allegations involve a value of at least one crore rupees. There is no such minimum monetary limit for cases with Schedule A offences. It wasn't always like this, and the history behind these Schedules became quite important in Nikesh Shah which requires me to discuss it here.

When the PMLA came into force in 2005, Schedule A only had two paragraphs carrying offences punishable under the Indian Penal Code 1860 [IPC] for waging war against India and nine offences from the Narcotics, Drugs and Psychotropic Substances Act 1985 [NDPS Act]. Schedule B contained the bulk of offences, along with a lower minimum threshold of thirty lakhs for the value of allegations. Then around 2010 India wanted to join the Financial Action Task Force [FATF] as a member. The FATF is a global body created by the G-8 for money laundering and membership is a big deal [India is the only South Asian member state till today]. When the FATF conducted its evaluation of Indian money laundering laws, it heavily criticised the monetary limit for the cases in Schedule B [paragraph 167 of the linked report]. The logic was that the limit would allow money laundering to escape under the radar as people would just deal in smaller tranches over a slightly elongated period of time. So the FATF recommended the limit be abolished [paragraph 175]. The government sought to do this by simply moving all Schedule B offences to Schedule A, which was done through the 2013 Amendment, leaving Schedule B empty for the time being.

In all this moving around offences, nobody thought fit to look at what impact it would have on the rest of the PMLA - specifically, on Section 45 which spoke about bail. Since the money laundering offence was tied to the Scheduled Offence, Section 45(1) looked at that underlying offence and this decided how difficult it would be to get bail. If it was a Schedule A offence with a sentence of more than three years, the law placed two additional conditions for getting bail: (i) the public prosecutor had to be given a chance to oppose bail, and if the prosecutor chose to oppose bail, then (ii) the court had to satisfy itself that the defendant was "not guilty of such offence" and was not likely to commit any offence on bail, and the burden fell on the defendant to satisfy the court. For all other Schedule A offences, and all Schedule B offences, the regular bail clauses from the Cr.P.C. continued to apply. You can see how the 2013 amendments to the Schedules completely changed the look of Section 45 - the exceptional process became the norm. This new normal was under challenge before the Supreme Court in Nikesh Shah.

SC on Section 45 - Violates Articles 14 and 21
Petitioners argued that the constitutional protections of Articles 14 and 21 were violated by Section 45 PMLA, and the Court agreed to both contentions. Rather than address arguments first and then move to the Court's appreciation, I discuss both together for brevity.

Article 14
The Petitioners argued that linking the stringent bail clauses to offences in Schedule A that carried at least a three year maximum sentence was creating several irrational and arbitrary classifications which the Court encapsulated through examples [Paragraphs 24-27, and 35]. The Court found no basis to differentiate the harsh treatment meted out under Section 45 from the following hypothetical cases which according to the Court did not attract Section 45:

• When there is only the PMLA charge as the trial for the Scheduled offence was complete;
• When the PMLA allegation is based on a Schedule B offence;
• When the PMLA allegation is based on a Schedule A offence carrying a maximum sentence below three years;
• When a person is tried for a Part A offence with at least a three year term (versus a joint trial where the same person is tried together with the person with PMLA charges);
• When the person is released on Anticipatory Bail under Section 438 Cr.P.C. for allegations of the Scheduled Offence, before the PMLA charge was brought in. 

The Court was of the view that the seriousness of money laundering cases depended on the amount of money involved [Paragraphs 29-30]. Since Schedule A had no monetary limits, the Court concluded that the likelihood of being granted bail was being significantly affected under Section 45 by factors that had nothing to do with allegations of money laundering [Paragraphs 26-27]. When the Attorney General attempted to defend the scheme by painting the classification as a punishment-based one, the Court easily rebuffed his argument. First, the Court suggested there was no such scheme, but noted that even then, the idea should have something to do with the object of the PMLA. The Court showed how Schedule A had many offences that didn't seem related to money laundering [taking particular objection in Paragraph 34 to offences under the National Biodiversity Act being there], leaving out others that might have more rational connections to money laundering such as counterfeiting currency [Paragraphs 29-30]. The Court also adversely commented on how Schedule A had lumped different NDPS offences together, at the cost of ignoring how the parent Act treated those offences differently [Paragraph 32-33].

The Court noted also that Section 45 of the PMLA was different from other laws that carried similar requirements such as Section 20(8) of the Terrorism and Disruptive Activities (Prevention) Act 1987 [TADA]. The 'such offence' in TADA required a court to be satisfied that the defendant was not guilty of the TADA offence in question before granting bail. But in the PMLA, 'such' offence referred to the Scheduled Offence instead of the PMLA offence. So, the restrictions imposed by Section 45 PMLA were held to have no connection to the objects of the PMLA itself and thus the rational classification, if any, violated Article 14 [Paragraph 28].

Article 21
The Petitioners argued that requiring defendants to satisfy the court that they were not guilty of 'such' offence violated Article 21 by reversing the presumption of innocence and required the defendant to disclose her defence at the outset of the case. In the judgment the Court doesn't really address Article 21 independently - instead the Court suggest that because the provision violates Article 14 it cannot be 'procedure established by law' and therefore violated Article 21. Towards the end of the decision the Court begins discussing the argument though. It labels Section 45 a "drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence." [Paragraph 38]. In the same paragraph it goes on to observe that "before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling state interest for tackling serious crime. Absent any such compelling state interest, the indiscriminate application of section 45 will certainly violate Article 21 of the Constitution. Provisions akin to section 45 have only been upheld on the ground that there is a compelling state interest in tackling crimes of an extremely heinous nature."  

Hits and Misses
There are two questions that were at stake here: (i) did any part of Section 45 offend the Constitution, and if so, (ii) did the Court have no other option but to strike down the provision. Reading the decision, it seems like the Court felt there was so much wrong in the PMLA scheme it decided to throw the kitchen sink at one point rather than explain the issues. The Court answered both affirmatively but never explained to us whether any argument dispositive, or does every case need this sort of broad argumentation to succeed.

Classification and Article 14 first. After reading the legislative history behind the 2013 amendments and the FATF argument, do you think that the Court is right in concluding that higher the monetary allegations, more serious the PMLA case? I'm not so sure. Nor do I think there is much to be gained by placing emphasis (like the Court does) on how Schedule B today has a higher limit than the initial thirty lakhs to suggest that this is in fact the case. It is far more plausible that the one crore limit was placed keeping in mind the underlying offence (false declarations to customs officials in an enquiry) and the concerns of the export industry, which is already subject to Schedule A through Section 135 of the Customs Act 1962 (evading customs duty). Rather than attempt at answering what might be the basis for such a classification for the PMLA (and indirectly giving hints to the government on what might pass muster), the Court would have done well by restricting itself to answering whether the present classification between (i) PMLA allegations based on a type of Schedule A offences versus (ii) all other PMLA cases was intelligible and connected to the objects of the PMLA. As there was enough to show that the original intent (if any) behind Section 45 had not kept apace with the subsequent amendments to the Schedules in 2013, the Court could strike down this classification. But did that require striking down the whole clause?

This brings us to the other part of what did that classification achieve. If it sought to serve as a filter for PMLA cases when it came to administering a strict bail clause, we are left with no filter. Does that mean no PMLA case is serious enough to warrant an application of the clause, or will the clause apply to every PMLA case? Deciding this would need the Court to decide whether clauses such as Section 45 that required a court to find defendants 'not guilty' at the bail stage were constitutional. Rather than directly address this, the Court turned to how the text of Section 45 was flawed, as it referred back to the Scheduled Offence on deciding bail petitions. Since the scheduled classification had been struck down, there was nothing to refer to, and so the clause had to go. While there is little to fault this approach, I remain unconvinced that the Court had no option but to strike down the clause because of the text. The Court has performed far greater feats of legislative reconstruction than being asked to read 'such offence' in Section 45 PMLA as referring to the PMLA allegations rather than only the Scheduled Offence. After all, it stands to reason that a bail provision in the PMLA would want a PMLA special court to consider the PMLA allegations. In fact, many High Court decisions show this is how they were doing it. Heck, this is how the Court itself was doing it in Rohit Tandon at the start of November [Paragraphs 21-23 of the link]. I think this course was adopted as it helped secure two objectives. Not only did this take care of the PMLA clause which this bench of the Court clearly did not like much, it also helped to protect other statutes with similar clauses which the Court held met a 'compelling state interest' test.

This brings me to one last bit about Article 21 and the Eighth Amendment of the U.S. Constitution. The Court cites a previous decision in Rajesh Kumar v. State (NCT) of Delhi [(2011) 13 SCC 706] for the proposition that Article 21 of the Indian Constitution has incorporated the Eighth Amendment and its protection against excessive bail [Paragraphs 13, 19 of Nikesh Shah]. The Court also cites two American decisions [Paragraph 37] on bail for good measure. This is, unfortunately, wrong. Rajesh Kumar cited previous precedent in Sunil Batra to suggest that even though India did not have the Eighth Amendment or the 'Due Process' clause, the consequences were the same to prevent cruel and unusual punishment. Not only did both those decisions not mention the excessive bail clause, the references to the cruel and unusual punishment clause itself are highly contentious as an earlier bench of the Supreme Court had held it couldn't be pressed in India, and that decision continues to be cited. 

Conclusion
The slapdash manner in which the PMLA Schedules were amended in 2013 to appease the FATF had already caused some High Courts to address this issue of Section 45. The closest it came to striking down the clause was the Punjab & Haryana High Court's decision in Gorav Kathuria v. Union of India & Anr. where it held the bail provisions would not apply retrospectively to offences previously in Schedule B [Paragraphs 43-45 of Nikesh Shah]. When the Court declined to hear an appeal against the High Court order in Kathuria I thought that it had indirectly affirmed the validity of Section 45. The judgment in Nikesh Shah comes as a surprise, and marks the first occasion when the Court has looked at any part of the PMLA through a constitutional lens. There are other parts that are equally problematic - the asset forfeiture scheme and the compulsion on witnesses to make truthful declarations, for instance - that litigants may take to the Court being encouraged by this judgment.

As for the future impact of Nikesh Shah on other statutes that carry the same 'drastic provision', the stage is set for some litigation on that front as well. The Supreme Court has only approved of the TADA and the MCOCA provisions in the past, leaving the many others open to scrutiny on this new test of whether the provision furthers a 'compelling state interest'. The Court never answered that for the PMLA context while deciding the petitions in Nikesh Shah. Do you think it might conclude that the PMLA does not meet the test? What about the other statutes? I've re-pasted my list of statutes containing the clauses below after accounting for the ones that are not relevant anymore. Comments, as always, are welcome.

1. Section 437(1), Cr.P.C. (in cases of death and life imprisonment).
2. Section 12AA (inserted in 1981), of the Essential Commodities Act, 1955.
3. States of Punjab and Tripura inserted this provision as Section 439-A to the Cr.P.C. so applicable within their territory, in 1983 and 1993 respectively. This restricted bail to persons accused of certain offences, inter alia Section 121, 124-A IPC.
4. Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS].
5. Section 7A (inserted in 1994) of the Anti-Hijacking Act, 1982. 
6. Section 6A (inserted in 1994) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982. 
7. Section 8 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002.
8. Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972.
9. Section 43D (inserted in 2008) of the Unlawful Activities Prevention Act, 1967 [UAPA] (nearly identical).
10. Section 36AC (inserted in 2008) of the Drugs and Cosmetics Act, 1940.

Mahmood Farooqui's Appeal and a Problem of Labels

On 25 September 2017, a single judge of the Delhi High Court allowed an appeal filed by Mahmood Farooqui challenging his conviction under Section 376 for rape, where he was sentenced to undergo seven years rigorous imprisonment and pay a fine of Rs. 50,000/-. It comes in the wake of the Punjab and Haryana High Court suspending the sentence of three students convicted of gang-rape in another case that attracted significant media attention. The decision has garnered mostly negative criticism from what I gather (see here, and here), and I am certain more scrutiny of the opinion will come during the week. At the outset, while the fast pace of the proceedings must be applauded (the appeal has been decided around two years after filing of the complaint itself), it only reminds us of the other side of that coin which is, unfortunately, the only one that 'have-nots' unfortunate enough to be stuck in the Indian criminal justice shall ever see. How many regular hearings from past years suffered so that Mr. Farooqui's case could be heard, we shall never know.   

To have my two cents worth as a lawyer, I think the decision is questionable and there is a good case in appeal. I certainly do hope that an appeal will be filed soon by either the the State / Victim before the Supreme Court. The High Court decision does not, with certainty, tell us why the conviction is overturned beyond telling us that the prosecution case was not proved beyond reasonable doubt. What I mean is, that the Court does not fully commit to either saying that it (i) the entire allegation of sexual acts was not proven, or (ii) only the non-consensual nature of the sexual acts was not proven. Given the amount of time spent by the decision in explaining the idea of consent, one may think it is the latter. The Court has said in paragraph 102: "But, it remains in doubt as to whether such an incident, as has been narrated by the prosecutrix [victim], took place and if at all it had taken place, it was without the consent / will of the prosecutrix and if it was without the consent of the prosecutrix, whether the appellant could discern / understand the same." 

Because of this (and because I know that a lot will be said about this aspect by more competent commentators) I refrain from discussing in detail the lengthy discussion on consent that the High Court engages in. Suffice to say that everyone thought we had moved past a time when courts would tell us that "instances of woman behaviour are not unknown that a feeble 'no' may mean a 'yes'" [see paragraph 78]. Such inferences are precisely what the 2013 amendments to the Indian Penal Code sought to exclude when it added an explanation to state that 'consent' for the Penal Code required an unequivocal agreement. The court, instead, offers us another idea and suggests the consent definition may be flipped to requiring proof that there was not an unequivocal disagreement, in situations depending on various factors such as whether the parties are persons 'of letters' and 'not conservative'. 

All this should convince readers that the decision is very muddled and will make for good arguments in the Supreme Court. That appeal will not raise any discussion on what are, I think, deeper problems that this case highlights: a problem of labels and criminal conduct. Rape, Murder, Robbery, Extortion - all these are labels that have carried on in language to describe certain kinds of acts. Legislatures have the authority to change their meaning but don't do so easily, because they acknowledge the connotations of these labels. For instance, if a corporation dumps toxins polluting rivers which leads to death, calling it murder may not cut it, so you make a different label for that kind of act. The Indian legislature decided to change the meaning rape and expanded the kinds of acts amounting to rape in 2013 to include non-consensual oral sex. It could have done so differently, i.e., by adopting different labels for different kinds of acts (treat penetrative and non-penetrative acts differently, for instance). It could have also shed the label of rape altogether, as has been done in other countries. But it decided to stick to the old label, and in doing so it hoped that the condemnation the law had reserved for particular kinds of acts by labelling them as rape for a hundred years could be extended to other acts. It also hoped that judges who had been trained to not think of certain acts as rape, would change their minds simply because the law said that they had to now. I think Mr. Farooqui's appeal shows us that this experiment is not working, at least not yet with judges where (on an average) they seem to have distinctly different social mores than the parties. It might not have been the best idea to adopt an aggregator term and not adopt a more granular approach for sexual offences. The judgment conveys to me that faced with the binary choice between holding a person guilty of rape or not, the judge could not do it because of how serious the accusation is. Was that illegal? Perhaps. But do judges simply apply the law? Of course not, and pretending otherwise will not help. Judges have biases, and smarter laws should account for them. If we assume as a base position that most judges in India are male and hold gender biases (implicit or explicit), then why create an architecture that only gives them two options and stiffens how the bias operates? A better architecture would factor in that bias, and probably avoid decisions like this one.

(this post was updated on 27 September, 2017. The reference to Section 114-A Evidence Act earlier was erroneous, and has been corrected.)

Aarushi-Hemraj Murder Case and the Last Seen Theory

The events that took place at the Talwar household on 15-16 May, 2008 will probably remain a mystery forever. Four persons entered the house on 15th night, and presumably went to sleep in the house; in the morning 14 year old Aarushi Talwar was found murdered in her room. The parents said they were asleep and initially suspected the servant Hemraj, who was later also found murdered on the terrace that same day. It was the classic whodunit. The police, many believed, botched their investigation which led to several delays. Ultimately, though, we had a decision: the parents were found guilty of having murdered their only daughter. The court believed the prosecution case, that Mr Talwar found his daughter in a "compromising position" with the servant and killed them both and was aided by his wife. 

There are, sadly, many holes left in the lengthy decision of the Sessions Judge which will hopefully receive greater consideration at the appeal. Here, I am only concerned with the prosecution (and Court) placing great reliance upon the "last seen theory". The idea is simple: the victims were last seen alive by the accused person within closed bounds, so what happened to them is something they must explain. It doesn't require much thought to argue that such a theory can put the accused in a fix. Will the Court believe me if I say I don't know what happened?

The Last Seen Theory

Section 106 of the Evidence Act 1872 places a burden upon an accused to prove facts especially within his knowledge. Also look at the definitions of proved, disproved and not proved before you proceed. So, suppose you were seen going inside a room alone with your friend, who was murdered minutes later by an assassin who fled. The police don't believe you and charge you for murder. At trial, how the death occurred is a fact, within your special knowledge. The burden to prove that the death occurred in the way you allege rests upon you, but not to the standard of beyond reasonable doubt [Sawal Das v. State of Bihar, AIR 1974 SC 2276]. What if you fail to do so? If the Court believes the prosecution, then your fact is disproved. If neither party convinced the judge, the fact remains not proved.

This is at the heart of the last seen theory, a tool relied upon the the prosecution to shore up a case based on circumstantial evidence. The Prosecution must leave no other possibility open, to make "what happened" a fact "especially" within the knowledge of the accused, which must be explained by him. Only if the fact is proved or disproved can it become relevant to judgment, so mere failure to discharge the burden should statutorily be not enough to merit adverse inference. How does the Prosecution put forth the last seen theory? It must establish (a) the time when the accused was last seen with the deceased, (b) the time of death, and (c) strong link between the two to rule out possibility of any intervention from outside [See, Bodhraj v. State of Jammu & Kashmir, (2002) 8 SCC 45; Mohd. Azad v. State of West Bengal, (2008) 15 SCC 449; Shyamal Ghosh v. State of West Bengal, (2012) 7 SCC 646]. 

Applying it to the Facts

The prosecution case sought to establish a chain of circumstances so concrete, that it pointed to only one conclusion: the accused's guilt. A large hole was sought to be plugged by the last seen theory. Nobody else was in the house that night, so the accused must explain what happened.

Were initial requirements fulfilled though, for the last seen theory to be pressed? Everyone was last seen together at about 9.30 PM on 15 May 2008. There was a possible 3 hour gap between this and Aarushi's death. For Hemraj, an ambiguous time of death creates a possible 4-5 hour gap. This is huge, especially because the house had no security guard to check if anyone entered stealthily at night (nothing could show a break-in, but the possibility of entering by invitation was not considered). 

Even if this was sufficient, what about the explanation by the accused? They said they were asleep, and any noise was drowned out by the AC. The court chose to disbelieve this, perhaps because it made too much sense. Instead, it bought the story that a 14 year old had willingly opened her room to invite her 45 year old servant for intercourse, only to have been caught by her father in the act who killed them both. 

Mistaken as to Law?

The decision is overburdened by citing and discussing case law. In a rare insight into its approach, the Court explains at page 86: 

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would, undoubtedly, be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation [emphasis supplied].

I believe the Judge gives himself away here. He wrongly holds the prosecution to a lesser burden, simply because there were no witnesses barring the accused, Further, he confuses the persuasive burden to prove the charge and the burden under Section 106 to prove facts. If the accused proved the deaths occurred as per their story, its an acquittal. But, is a failure to prove your case always the end? No. The fact may remain not proved by either side. What that means here is that while the facts show the deceased persons were murdered, how this occurred remained not proven by either side. Such a conclusion would logically mean, that the accused persons could not be found guilty of murder.

Only time will tell how these issues are framed and decided in the pending appeal.