SC rules Kathua rape accused an adult, raps court for casual approach

The Supreme Court on Wednesday held Shubam Sangra, a key accused in the sensational gang-rape and murder of an eight-year-old nomadic girl in Kathua in 2018, was not a minor at the time of the offence and ordered his trial as an adult, observing, ”a casual or cavalier approach” by courts in such cases cannot be permitted.

The top court gave credence to the medical board's report which estimated the age of the accused above 19 years at the time of commission of the crime and set aside the order passed by the chief judicial magistrate of Kathua in Jammu and Kashmir and the high court.

A bench of justices Ajay Rastogi and J B Pardiwala said though there was a "clear and unambiguous case” in favour of the accused person's juvenility on the basis of his birth certificate and school records, he cannot take shelter under such documents when a heinous crime has been committed.

It also chastised the CJM and the high court over their "casual and cavalier" approach while deciding the accused was a juvenile when the crime was committed.

”...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 court said.

Refusing to believe the birth certificate and school records which had established the juvenility of the accused, Justice Pardiwala, writing the 66-page judgment, said the medical reports cannot be brushed aside.

”It is held that the respondent accused was not a juvenile at the time of commission of the offence and should be tried the way other co-accused were tried in accordance with the law. Law to take its own course,” it said.

The judgment said the benefit of the principle of benevolent legislation attached to the Juvenile Justice Act would be extended to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence inspiring confidence regarding his minority as the benefit of the possibilities of two views in regard to the age.

”The crime that the respondent 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,” it said.

The alleged accused is involved in ”grave and serious offence” which was executed in a ”well-planned manner” reflecting his maturity of mind, the court said.

It said, ”The plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, and cannot be allowed to come to his rescue.”

The bench, however, clarified the guilt or innocence of the respondent accused shall be determined strictly on the basis of the evidence that may be led by the prosecution and the defence at the time of the trial. "All observations made in this judgment are meant only for the purpose of deciding the issue of juvenility,” it said.

The bench referred to a provision of the J and K Juvenile Justice (Care and Protection of Children) Act and the rules for juvenility and said the medical evidence cannot be brushed aside.

”There is no good reason why we should overlook or ignore or doubt the credibility of the final opinion given by a team of five qualified doctors, one from the department of physiology, one from the department of anatomy, one from the department of oral diagnosis, one from the department of forensic medicine and one from the department of radio diagnosis, all saying in one word that on the basis of the physical, dental and radiological examination, the approximate age of the respondent could be fixed between 19 and 23 years,” it said.

The minor girl was kidnapped on January 10, 2018 and was raped in captivity in a small village temple after keeping her sedated for four days. She was later bludgeoned to death.

The top court had on February 7, 2020, stayed the proceedings before the Juvenile Justice Board (JJB) against Sangra.

It had stayed the proceedings after the Jammu and Kashmir administration claimed the Jammu and Kashmir high court had erroneously affirmed the order of a trial court holding him as juvenile at the time of the offence in 2018.

The Union administration (UT) had said the medical board constituted by the high court by its order of February 21, 2018, had opined that the accused was aged between 19 and 23 years at the time of offence.

The JJB had in 2019 framed charges against the 'minor' and continued with the proceedings of examination of prosecution witnesses.

The top court had on May 7, 2018, transferred the trial of the case from Kathua in Jammu to Pathankot in Punjab and ordered  day-to-day trial after some lawyers prevented the crime branch officials from filing a charge sheet in the sensational case.

The special court had on June 10, 2019, sentenced three men to life imprisonment till last breath for the ghastly crime that shook the nation.

Sanji Ram, the mastermind and caretaker of the 'devasthanam' (temple), where the crime took place in January, 2018; Deepak Khajuria, a special police officer, and Parvesh Kumar, a civilian -- the three main accused -- were spared death penalty, a punishment sought by the prosecution during the year-long in-camera trial.

The three given life term were convicted under Ranbir Penal Code (RPC) sections relating to criminal conspiracy, murder, kidnapping, gang-rape, destruction of evidence, drugging the victim and common intention.

The other three accused -- sub inspector Anand Dutta, head constable Tilak Raj and special police officer Surender Verma -- were convicted of destruction of evidence to cover up the crime and handed down five years in jail and Rs 50,000 fine each.

The trial court had acquitted the seventh accused Vishal Jangotra, son of Sanji Ram, giving him the benefit of doubt.