SC is wrong to summon Katju, a former judge

The Supreme Court has requested a former judge of the court, justice Markandey Katju, to assail in open court it judgment (in the Soumya rape-murder case) which had been criticised by the retired judge in his blog.

While it is praiseworthy that the court decided to hear review petitions against its much criticised verdict in open court, it may have set a wrong precedent by calling upon the former judge to participate in the proceedings to virtually defend his stand that the court erred in holding accused Govindachamy "not guilty of murder but only guilty of rape".

With justice Katju having already given reasons for the conclusion drawn by him in his blog, the court would have done better by considering his arguments while deciding the pending review petitions, instead of calling for a direct debate with him.

Though the decision may be well intended, such a course may deter fair, reasoned criticism of judgments by writers who may not want to participate in court proceedings or assail a verdict before the judges who scripted it.

While there are a number of loose ends in the judgment, Katju's interpretation of Section 300 (murder) of the Indian Penal Code (IPC) and his opinion questioning reliance on hearsay evidence is based on legal reasoning.

In my view, the elaborate arguments in support of his view in his blog need no further elaboration so as to justify the request by the court, particularly when it was already considering two review petitions.

The review petitions came in the backdrop of extensive criticism over Govindachamy being acquitted of charges of murdering a 23-year-old Kerala girl (who had 24 injuries on her body) while upholding conviction for rape.

The accused had assaulted the victim while she was alone in a train compartment and had raped her after she fell/jumped from the train on February 1, 2011.

With the post-mortem report stating that death was caused by injuries on the head with blunt impact (Injury 1) and fall (Injury 2), the Supreme Court said the accused could not be held liable for Injury No 2 if she had jumped rather than pushed from the train.

The court also drew criticism for observing that the injuries caused were not with the intent to cause death.

The court noted in the judgment that evidence of PW 4 and PW 40 who stated that a middle-aged man told them that the girl had jumped out could not be ignored.

Justice Katju rightly questioned the reliance on hearsay evidence as the two witnesses had not seen the girl jump out of the train.

While there is no reason why the person who caused the jump should not be responsible for the injuries, medical evidence shows she could not have jumped on account of "absence of natural reflex".

On the injuries caused as a result and during the rape, the Supreme Court observed that to hold him liable "under Section 302 IPC what is required is an intention to cause death or knowledge that the act of the accused is likely to cause death".

This may be on account of misreading of Section 299 and 300, as justice Katju pointed out.

It is not just intention to cause death but intentionally causing injury (though without intention to cause death) also attracts homicide charges.

If the injury is sufficient to cause death, it is murder and it is culpable homicide not amounting to murder under Section 299 if likely to cause death.

The court cited death of the victim after a couple of days as a factor "which clearly mitigate against any intention of the accused to cause death".

Ironically, evidence by a number of doctors suggests she was near dead and survived on ventilator. Injuries caused during raping an already injured victim should not have been ignored.

Knowledge of causing death could be imputed in the circumstances she was raped. "Thereafter, the accused jumped out of the train, approached her, and brutally raped the almost unconscious victim, who was about to die. Blood aspirated into her airways. When the accused applied pressure on her body, the aspiration became severe and faster. One of her teeth even went to her stomach in that process," the high court records.

Katju pointed to these flaws while calling for a review, but there are other gaping holes in the judgment as well.

The court, while ruling out Section 300 (murder), did not consider if the case attracted less grave offence of culpable homicide not amounting to murder under Section 299.

(Courtesy of Mail Today.)

Also read - Why women like Monika Ghurde pay with their life for speaking up