Accused in Kathua case to be tried as adult: Supreme Court

A bench of justices Ajay Rastogi and JB Pardiwala directed the accused, Shubham Sangra, to be tried as an adult setting aside the October 11, 2019 decision of the J&K high court which held him to be a juvenile at the time of the incident.

Leniency towards juveniles is emboldening them to commit heinous crimes, the Supreme Court said on Wednesday, as it sounded a note of caution for the government to consider whether the benevolent legislation under the Juvenile Justice (Care and Protection of Children) Act has served to be effective, or if the law should be re-examined in the light of increased role of juveniles in brutal crimes.

A trial court in June 2019 held six out of seven people guilty, while the eighth accused, who claimed to be a juvenile, was tried separately. (HT Archive)

The court’s observations came in a judgment dealing with a plea by one of the eight accused in the brutal murder and gang rape of an eight-year-old tribal girl in Kathua, Jammu & Kashmir, in 2018.

A bench of justices Ajay Rastogi and JB Pardiwala directed the accused, Shubham Sangra, to be tried as an adult setting aside the October 11, 2019 decision of the J&K high court which held him to be a juvenile at the time of the incident.

The 66-page judgment authored by Justice Pardiwala said, “The manner in which brutal and heinous crimes have been committed over a period of time by the juveniles and still continue to be committed, makes us wonder whether the Juvenile Justice Act, 2015 has subserved its object.”

The bench said, “We have started gathering an impression that the leniency with which the juveniles are dealt with in the name of goal of reformation is making them more and more emboldened in indulging in such heinous crimes. It is for the Government to consider whether its enactment of 2015 has proved to be effective or something still needs to be done in the matter before it is too late in the day.”

The comments came in the backdrop of the barbaric Kathua rape and murder case where the minor girl belonging to the nomadic Bakarwal community in Rasana village was abducted by eight people, taken to a place of worship, drugged, and raped for several days. Later, she was strangulated and her head was smashed with a stone. Her swollen body with bite marks and injuries was discovered by police a week later.

A trial court in June 2019 held six out of seven people guilty, while the eighth accused, who claimed to be a juvenile, was tried separately.

“The crime that the accused herein has been charged with is heinous, its execution was vicious and cruel, by any stretch of imagination. The entire crime was calculated and ruthless. This case captured the attention and indignation of the society across the country, more particularly, in the state of Jammu and Kashmir, as a cruel crime that raised alarm regarding safety within the community,” the bench said.

Within months of the incident taking place, the Supreme Court in May 2018 shifted the trial of the case to Pathankot in Punjab where the trial was conducted in-camera. The police faced resistance from lawyers in the Kathua court who prevented police from filing a charge sheet before the local court. Three of those convicted were sentenced to life imprisonment, while the other three were sentenced to five years of rigorous imprisonment.

Sangra approached the J&K high court, which directed the state to form a medical board. This board, consisting of five qualified opined that on the basis of the physical, dental and radiological examination, the approximate age of the accused could be fixed between 19 and 23 years.

He then approached the J&K Juvenile Justice Board for determination of his claim under Section 8 of the Act to be declared a juvenile. He claimed that he was born on October 23, 2002 relying on his school records. By his claim, he was less than 16 years old at the time of commission of crime. The claim of juvenility was held to be in his favour by the Chief Judicial Magistrate, Kathua, in March 2018. Against this decision, the state government approached the high court, which upheld the district court’s finding.

The top court noted that this was a case where documentary proof such as birth certificate, hospital records did not give a clear finding on the age of the accused. “When we have reached to the conclusion that there is no cogent and convincing documentary evidence on record as regards the date of birth or age of the accused on the date of the alleged crime then there is no good reason for us not to look into or ignore the medical report prepared by the Special Medical Board which is on record.”

The court further stated, “When an accused commits a heinous and grave crime like the one on hand and thereafter attempts to take the statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of a common man in the institution entrusted with the administration of justice.”

The bench also found that the Special Medical Board formed by the state had doctors drawn from specialised fields of Physiology, Anatomy, Oral Diagnosis, Forensic Medicine and Radio Diagnosis, who unanimously concluded that the accused was not a juvenile.

Setting aside the HC order, the bench said, “We have made ourselves very clear that the documents evidencing date of birth does not inspire any confidence and there is no other option but to fall back on the report of the Special Medical Board in the interest of justice.”