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A 24-year-old Ansari worked as a worker and welder in Pune and had come home to celebrate Eid when he was took by locals at Dhatkidih village on the night of June 17 over mere suspicion of him stealing a motorcycle. He was tied to a pole and beaten by a mob with sticks and iron rods brutally for eighteen hours straight. A video of the scene that went viral and was rushed across TV networks showed he was forced to chant ‘Jai Shri Ram’ and ‘Jai Hanuman’ by his oppressors.
Though, there was no evidence of the offenders’ link to any hindu rightist organisation, the Vishwa Hindu Parishad activists had complained on their arrest. Tabrez Ansari’s family had shared the video, which went viral and stimulated a nation-wide outrage. Protest demonstrations were held in many cities and towns. Police reached Dhaktidih the next morning, arrested Tabrez Ansari and sent him to jail after providing him with first-aid. His family appealed that he had a deep gash on his head and multiple injuries all over his body. As Ansari’s condition deteriorated, he was shifted to the district government hospital the same day. With no signs of improvement, he was referred to the Tata Main Hospital, where he was declared brought dead on June 22. His wife Shahista, who was pregnant at the time of her husband’s death, suffered a miscarriage soon after.
Shock wave throughout the country
There are many things that worry us about India today. One is our ever-mounting broad-mindedness to the open and profound injustice done to ‘other people’. A boy wounded to death on a train does not trouble us because he was a Muslim; a little girl brutally gang-raped does not stir our outrage because she is a Dalit; an entire state’s people are locked down for over a month yet we celebrate it and say they deserve it because they do not accept India to be their country; and nearly two million people are excluded in the citizens’ list in Assam does not trouble us because they are ‘infiltrators’ (even if they were born here and love our nation as much as we do).
India’s criminal justice system has always been biased against deprived castes, women and minorities. Few people who organised and contributed in caste and communal exterminations and rapes have ever been punished. But in recent years, this official bias has become more open, brazen and impenitent. A Muslim charged with terror crimes can spend 14, or even 23 years in jail, before he steps out, declared innocent. A Hindu charged with terror is likely to soon walk free and might even be elected to the Parliament with majority votes. Criminal cases after the 2013 Muzaffarnagar riots collapse wholly with barely a whimper of protest.
This open bias of the criminal justice system is most visible in mob lynching cases these days. Lynch mobs, who in most cases record their own crimes triumphantly on mobile phones, roam fearlessly as heroes. The victim however, even after his death, is tainted as a criminal. The most recent example of this is the decision of the Jharkhand police to write down the crime of the lynch mob that attacked Tabrez Ansari from murder to culpable homicide.
Legal issues involved
- Is it murder or culpable homicide?
It is humbly submitted that in the instant matter its major issue is, that it will be falling under the purview of murder or not. According to the post-mortem reports the experts are saying that a new medical report on the death of lynching victim Tabrez Ansari has cast a shadow on the claim that he died due to a cardiac arrest. Hence, this case is not fulfilling the essentials of section 302. That is why the accused people will be convicted under section 304 of the Indian Penal Code,1860 and not under section 302.
Chargesheet filed by the Police : Section 302 v. 304
A document signed by five HoDs of the MGM Medical College in Jamshedpur recommend that while Tabrez Ansari did ultimately die of a cardiac arrest, the heart attack was the result of severe injuries sustained.
According to the report, Tabrez’s cardiac arrest was induced by a combination of skull fracture, pale organs and filling up of blood in his heart chambers.
“The collective effect of fracture of the bone, pale organs and heart chambers full of blood resulted into a cardiac arrest,” is the conclusion of the medical report.
“The post-mortem and the medical report did not support the charge of murder. They said he died of cardiac arrest. We had doubts and we went for a second opinion from higher-level experts from the forensic and pathological side and they also gave the same set of opinion. So, we had to charge them under section 304 instead of 302,” the officer said.
In the Vishakha case where the Supreme Court gave the guidelines for checking the essentials of murder, the prosecution must prove the following facts before it can bring a case under section 300, 3rd clause;
- First, it must establish, quite objectively, that a bodily injury is present.
- Secondly, the nature of the injury must be proved; These are purely objective investigations.
- Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and.
- Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under section 300, 3rd clause. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is adequate to cause death in the ordinary course of nature. It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury is actually found to be true, the rest of the enquiry is purely objective and the only question is whether, as a matter of virtuously objective inference, the injury is sufficient in the ordinary course of nature to cause death.
In the occurrence of a conviction, section 302 provides for life imprisonment or capital punishment. Under section 304, an offender can be sentenced to an imprisonment for 10 years which may extend to life imprisonment.
In the absence of any special law related to mob lynching at present, it would be difficult to establish the degree of intention requisite to satisfy the burden of proof for murder. In any instance, the Court can, if it so deems fit, under Section 216 (1) of Cr.P.C, alter or add to any charge at any time before judgment is pronounced, thereby investing in it, a comprehensive power to remedy the defects in the framing or non-framing of the charge, at a stage prior to the judgment, for the protection of justice, equity and good conscience.
A series of similar incidents occurred throughout the country after the reporting of the Tabrez case. As a response to the cry of justice in such cases two anti-lynching bills have been passed by the State Legislatures of Rajasthan and West Bengal respectively.
–This article is brought to you in collaboration with Vijay Sharma from ICFAI University, Jaipur.