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Wednesday, May 31, 2023

SC acquits three death row convicts; berates trial court, Allahabad High Court

The Supreme Court has acquitted three murder accused who were sentenced to death by the Trial Court and the Allahabad High Court. A bench comprising Justices L. Nageswara Rao, BR Gavai and BV Nagarathna observed that the prosecution “utterly failed to prove the case beyond reasonable doubt”, reports LiveLaw.in.

The 3 accused are – Momin Khan accused of murdering his parents, brother and other relatives following a property dispute; Jaikam Khan, a cousin of Momin Khan; Sajid, Jaikam Khan’s son.

Nazra, wife of Momin Khan was also sentenced to death by the Trial Court. But the Allahabad High Court had set aside the conviction recorded against her.

Senior Advocate Nitya Ramakrishnan appearing on behalf of the appellant­ Momin Khan (A­1) submitted that the entire case rests on the ‘ocular testimony of interested witnesses’ aka eye-witnesses, and that an adverse inference needs to be drawn on account of non-­examination of ‘independent witnesses’, though they were very much available. Advocate Dama Seshadri Naidu, appeared on behalf of the other two accused and submitted that insofar as the said accused are concerned, the prosecution story is ‘totally unbelievable’.

The court noted that the prosecution witnesses are closely related to the deceased and the accused. These two witnesses cannot be considered to be ‘wholly reliable’ to base an order of conviction solely on their testimonies, the court said after referring to evidence on record.

While allowing the appeal, the court observed: “We are at pains to observe the manner in which the present case has been dealt with by the trial court as well as by the High Court, particularly, when the trial court awarded death penalty to the accused and the High Court confirmed it. The trial court and the High Court were expected to exercise a greater degree of scrutiny, care and circumspection while directing the accused to be hanged till death.”

The Supreme Court observed that it was ‘amazed’ by the manner in which the High Court dealt with the matter, claiming it ignored the principles under Section 27 of the Evidence Act. The SC held that the findings of the trial court and High Court were based on “surmises and conjectures”.

The crime occurred on January 23, 2014 when 6 people were murdered – Momin’s father, mother, brother Shaukeen Khan, sister-in-law Shanno, nephew and his brother’s niece in Bulandshahr, UP. The prosecution had recovered the alleged murder weapon, bloodstained clothes worn by accused, arrested the accused immediately after the crime, and established motive.

Lawyers and judges

Senior Advocate and author Nitya Ramakrishnan is an ardent opponent of the death penalty. After 26/11 terrorist Ajmal Kasab’s death penalty was upheld by the SC in 2012, she had told an Australian news outlet – “the death penalty is an extreme measure and a fundamental revulsion against society.”

Ramakrishnan was also part of the group of defence lawyers which had managed to secure a last-minute Supreme Court hearing in the wee hours (3.20 AM), to save 1993 blasts convict Yakub Memon from the death penalty, hours before his execution.

Other lawyers who fought for Yakum Memon – Anand Grover, Prashant Bhushan, Vrinda Grover, Paarivendhan, S Prabhu, Siddharth Sharma, Rishabh Sancheti, Anindita Pujari and NLU Delhi’s death penalty litigation clinic’s Nishant Gokhale, Maitreyi Misra, Shreya Rastogi, Lubhyathi Rangarajan and Anup Surendranath.

Ramkrishnan has also defended accused in the 2001 Parliament Attack Case.

During a conference on ‘feminist lawyering’, attended by Indira Jaising and others, Ramakrishnan had said, ““Women have held up the sky ever since recorded history…the history of civilisation can be seen as the history or as the charting of the indomitable feminine spirit.” Misogyny is deeply rooted in social media, institutions and so on, and the challenge for feminist lawyers is to deal with it (misogyny) not just in courts, but at an attitudinal level, she stated.

The same Nitya Ramakrishnan defended Peepli Live co-director Mahmood Farooqui when he was accused of raping an American researcher. Farooqui was convicted by a trial court and sentenced to 7-years imprisonment, but the decision was overturned in Delhi HC and SC had upheld the HC decision.

Justice L. Nageswara Rao is a former ASG and was directly elevated from the Bar to the Supreme Court in 2016 after nomination by then CJI TS Thakur. Justice BR Gavai’s comes from an Ambedkarite family – his late father, one of the chosen volunteers of Ambedkar when the latter embraced Buddhism, was a veteran leader of the Republican Party of India and former governor of Bihar, Sikkim and Kerala.

Justice BV Nagarathna is the daughter of former CJI  E. S. Venkataramiah. In 2009, when she was a judge in Karnataka high court, she along with chief justice PD Dinakaran and justice V Gopala Gowda were assaulted and locked up by advocates who were protesting justice Dinakaran’s decision to continue to attend court hearings despite him not being cleared of allegations of amassing huge assets, of corruption and of serious irregularities while disposing of cases. She is in line to become the first female Chief Justice of India in 2027.

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