New Delhi: Tutored witnesses, embellished testimonies, omissions and oversights by the prosecution, lack of a case diary, and insufficient evidence — these were some of the reasons cited by a bench of the Kerala High Court for acquitting 13 RSS workers in a 14-year-old murder case.
On 12 July, a bench of justices K. Vinod Chandran and C. Jayachandran overturned a 2016 trial court order that had convicted 13 RSS workers in the 2008 murder of CPI(M) worker Vishnu over a “political rivalry”.
However, the HC judgment declared that the prosecution had “miserably failed to prove the incriminating circumstances against the accused”, mounted “nonsensical” allegations of conspiracy, and “clearly tutored” the witnesses.
Acknowledging the “intrigue, spite, and deceit” of political rivalries, and the divisions between the “men in red and those saffron clad”, the court nevertheless rejected the prosecution’s case as reflecting a “deliberate attempt” to “project half-truths”.
The verdict came on the back of a 2016 appeal by the RSS workers against their conviction by the additional sessions court in Thiruvananthapuram. The court had sentenced 11 of the accused to double life imprisonment, one to life imprisonment, and one to three years of jail.
The 2008 murder
On 1 April, 2008, a CPI(M) worker called Vishnu was hacked to death near the passport office at Kaithamukku in downtown Thiruvananthapuram. He had previously been named in a “country bomb” attack on the city’s RSS office.
The FIR included the eyewitness account of a man who worked nearby, assisting passport applicants. He reported hearing a commotion and when he rushed out, he said, he saw Vishnu being attacked by four or five assailants wielding swords and choppers. After grievously injuring Vishnu, the attackers fled on three bikes, the eyewitness reported.
The case went to trial in 2016. The prosecution built its case on the allegation that, since 2001, there had been several instances of political violence. It was also alleged that the accused, all members of the RSS, had hatched a “criminal conspiracy” to murder Vishnu.
The trial was completed in seven months, in the course of which 77 witnesses were cross-examined, and 162 documents and 65 pieces of material evidence scrutinised.
In December that year, the accused were found guilty of various offences — including conspiracy, unlawful assembly, rioting with deadly weapons, murder, and possession of explosive substances.
The trial court held that both the conspiracy and motive were proven by the testimonies of the witnesses. Earlier instances of political strife between the two political outfits were also cited by the trial court.
An appeal to the HC
Following the conviction, the counsel of the RSS workers appealed to the Kerala High Court, arguing that the investigation had been “tainted” right from the outset. In the appeal, it was alleged that the prosecution “engineered” its case because Vishnu was a member of the ruling CPI(M) at the time of his death.
The appellants argued that the case put forth by the prosecution was riddled with inconsistencies and irregularities. They also pointed out “procedural flaws” in the test identification parade (TIP) and discrepancies in the statements of witnesses.
In its rebuttal, the prosecution explained the “three limbs” of its case — the conspiracy, the attack, and the getaway.
It told the court that the eyewitness testimonies, which included accounts that some of the accused went to the scene of the crime from the RSS karyalayam (office), were “natural and trustworthy”. Further, there was “reasonable inference of the conspiracy”, including by those not actively involved in the attack.
It was argued that there can be no direct evidence of a conspiracy since it is always hatched secretly.
The prosecution also maintained that it had conducted the TIP in accordance with guidelines and that “sufficient corroboration” for witnesses’ accounts was achieved by the recovery of the vehicles, weapons, and clothing of the accused.
The high court, however, picked several holes in the prosecution’s version.
‘No evidence worth its salt’
In its detailed verdict this Tuesday, the Kerala High Court pulled no punches.
“There is a deliberate attempt visible, from the commencement of the investigation, to project half-truths and cherry-pick witnesses so as to shape the case in a particular manner,” the court said.
It pointed out that “omissions and contradictions” in eyewitness testimonies raised questions about the veracity of the prosecution’s “story”.
Following an analysis of the evidence and arguments made by both sides, the HC felt that the police chargesheet did not clearly ascertain the scene of the alleged conspiracy.
“The scene of the conspiracy was said to be in an RSS karyalayam, the location of which is not clear from the final report. No scene mahazar or site plan was prepared and despite a search conducted inside the so-called karyalayam, nothing incriminating was detected,” the HC bench said.
It further alleged that, because of this, the prosecution “tutored” certain witnesses to speak about a gathering outside the RSS office, “realising that if the conspiracy is alleged to be inside closed doors, then the witness cannot speak of the identity of the persons, as has now been done”.
The HC said it could give no “credence” to testimonies of witnesses who could have only had a “fleeting glimpse” of the speeding bikes from the location they were said to be at. The court held that it was unlikely that they could have seen the “conspirators” clearly enough to identify them eight years later.
As for the test identification parade, the court maintained that no weight could be attached to it since proper procedures were not followed. There was “clear evidence”, the court said that the witnesses were summoned to the police station just before or after the request for a TIP was made.
“There was every possibility of the witnesses being given a description of the accused” or shown photos available at the police station ahead of the TIP, the court said.
The HC also noted that some witnesses’ descriptions of the weapons and the assailants’ clothes were different during their examination in the trial court from what they had previously said in their statements to the police.
Witnesses who were brought to speak on all “three limbs” of the cases were deemed by the court to be “tutored and planted for the purpose of bringing home the guilt against the accused”.
Sanjali Saxena is a student of the Campus Law Centre, Delhi University, and is an intern with ThePrint
(Edited by Asavari Singh)