Ms. Prerana Saraf, who writes at Legal Parley, has contributed this guest post on the Sowmya murder case and the recent order of the Supreme Court pertaining to Justice Katju. The guest post is reproduced below (with a few formatting changes).
Govindswamy v. State of Kerala came into the limelight after Markandey Katju, retired Supreme Court judge blamed the judges of making a grave error by acquitting the accused of murder on the basis of hearsay evidence in his personal blog, Satyam Bruyat.
In his blog post dated 17th September, 2016, Markandey Katju questions how Supreme Court could rely on hearsay evidence which is inadmissible as evidence. He also mentions Section 300 of IPC, which reads that an accused is guilty of murder even if he had no intention to kill, if he has caused grievous wound that is sufficient to cause death.
On the basis of what has been observed in paragraph 398 of the judgment, he says that the Court has erred in its judgment and requests the court to review the same.
On 1st February, 2011, the deceased boarded the Ernakulam-Shornur Passenger Train at 5:30 PM to go to her home at Shornur. She boarded the ladies division of the last compartment. However, when the train reached Mulloorkara, all other lady passengers alighted the bus. Therefore, the deceased also got down with them and entered the ladies coach just in front of the last compartment. The accused saw that the deceased was alone and entered the ladies compartment as soon as the train left the Vallathol Nagar Railway station. The prosecution alleged that the accused assaulted the deceased and repeatedly hit her head against the walls of the compartment.
It is then alleged that the victim was dropped/pushed by the accused from the running train to the track. The accused also jumped from the other side, after which he lifted the victim to another place by the side of the track and sexually assaulted her.
The prosecution in support of their case had examined 83 witnesses. Among them Witness No. 4 and 40 were travelling in the general compartment and had heard the woman crying and wailing. Even though witness No. 4 wanted to pull the chain, he was told by a middle aged man that the woman had jumped off the train and made good her escape and that he should not take the matter any further as they would all then be dragged to the court. The witnesses brought the incident to the attention of the guard as soon as they reached Shornur, which triggered the search for both the victim and accused. The victim was then found in badly injured condition by the side of the track.
On the basis of the forensic evidence, the court found the accused guilty of rape under Section 376 of IPC and confirmed the imposition of life sentence as awarded by Trial Court and confirmed by High Court. With respect to the charge of murder against the accused under Section 302 of IPC, it was observed that the death was a result of two sets of injury.
The court was of the opinion that the fact that first set of injury was caused by the accused did not need reconsideration, as it was already clear with the witnesses’ statement and the forensic report.
However, the second set of injury was caused due to the victim’s fall from the train. The court was of the opinion that unless the fall from the train can be ascribed to the accused on the basis of reliable evidence as against the possibility of deceased herself jumping out, the liability of the accused for the victim’s death cannot be determined.
In this connection, it was the state’s contention that owing to the first set of injury that had impaired her mental reflexes, the deceased could not have been in a position to jump off the train.
However, the court observed that the circumstances against the accused had to be weighed against the oral evidence of the witnesses. The statement wherein it is said that a middle-aged man told them that the girl had jumped off the train and made her escape.
Also, according to the forensic report, the death was caused due to the supine position (head and torso facing upwards) that the victim laid in. Here again, the court observed that the victim was kept in supine position only for the purpose of sexual assault and the fact that the victim was alive for a few days after the incident goes on to establish that the accused had no intention of killing the deceased.
The court, therefore held that the accused cannot be convicted of murder under Section 302 of IPC. The bench instead held him guilty under Section 325 of IPC, which provides punishment for voluntarily causing grievous hurt.
Suo motu notice by Supreme Court:
A three judge bench consisting of Justices Ranjan Gogoi, P.C. Pant and U.U. Lalit took suo motu judicial notice of Justice Katju's blog criticising the order and called for a debate on the case.
The order was passed after a review petition was filed by the state. The bench observed that it was not appropriate to take a decision until the debate with Justice Katju was over.
Justice Katju posted on his Facebook page that he has not received any official letter from the court. He has however, been informed by the Kerala State Advocate on record and he would be delighted to appear and discuss the case in the open court provided the Court feels that Article 124(7) does not debar him on account of him being a former Supreme Court judge.
Well, this would be one hearing to look forward to and hopefully the discussion would provide the victim and her family the justice she deserves.