8 reasons why court let off Gulzar Peer

The rape accused ‘faith-healer’ from Central Kashmir’s Budgam district was acquitted by the Principles and District Judge Budgam, Syed Tauqeer Ahmed after hearing 8 arguments from the lawyer of the accused Gulzar Bhat alais Gulzar Peer and his three associates.

Principles and District Judge Budgam, Syed Tauqeer Ahmed maintained that the prosecution miserably failed to prove the guilt against the accused persons beyond any shadow of doubt as is mandatory under criminal jurisprudence.

As per the judgment copy, the number of contentions (8) were raised by the prosecution in support of the case, whereas, number of contentions were also raised by the defence in favour of the accused Gulzar Bhat and his three associates. 

Delay in lodging the FIR and its effect:

The first and foremost contention raised by the defence was that there had been inordinate delay in lodging of FIR. The FIR was lodged after a delay of more than 160 days and as per the defence this unexplained delay in lodging the FIR is fatal for the prosecution and its benefit must go to the accused Gulzar Bhat.

“It was contended by the defence that initially when this fact came into the lime-light that the prosecutrix were allegedly raped by the accused under the deceitful means and after exercising magical spells upon them. The four prosecutrix referred the matter to their parents who raid the institution created a scene there and thereafter the victims and their families approached some religious Clerics such as Molvi Nazir Ahmad of Darul-Uloom Bandipora and also approached some political leaders such as Asiya Andrabi who promised the victims and their families to intervene into the matter and take the adequate action against the accused but despite waiting them to take the action for about six months, no action was taken by said Islamic Clerics and other Organizations and ultimately when no action was taken by these persons , the complainant’s side approached Mufti Muhammad Amin of Anantnag  who advised them  that the matter should be referred to the police. Accordingly,   they approached the Dy.S.P.Budgam who referred the matter to concerned SHO for lodging FIR. Presuming for a while that the families have taken up the matter with the public authorities  i,e political leaders and religious cleric’s as mentioned by all the witnesses then  these political leaders  and religious clerics  should have been cited as  witnesses who would have substantiated the fact that these girls with their families approached them for justice . So in case the families have chosen to refer the matter to Religious as well as Political Institutions and they have not taken any action then the FIR should have been lodged immediately after the occurrence and they should not have waited for about 6 months. What emerges is that the delay in lodging FIR has not been explained by the prosecution and this unexplained delay causes a very serious infirmity over the case of the prosecution,” the judgment reads citing a many landmark judgments of Supreme Court of India including, “A delay of one month has been adjudged by the Hon’ble Supreme Court of India as fatal for the prosecution. “

Seizure of articles from the house /room of the accused:                     

The next contention according to CNS which was raised by the defence is that, “although it has been alleged by the prosecution that after the FIR was lodged, the investigation was conducted and during the course of investigation the bedding on which the alleged occurrence of rape used to take place was seized and the seizure memo was prepared. It has been alleged that the seizure memo has been prepared in presence of the prosecution witnesses. It has been alleged that the bedding such as, Mattresses were seized on which the semen stains were found and the bedding along with the semen stains was sent to FSL for medical analysis. It has been alleged by the prosecution that the bedding was seized in presence of three  independent witnesses and the statement of all the three independent witnesses have been recorded but they have denied to be the witnesses of any such seizure of bedding seized from the house/room of the accused. They have only stated that at Police station some rolled cloth was shown to them and they were asked to put their signatures on seizure memo. They have denied the fact that any bedding or mattress was seized from the house/room of the accused.  Since the seizure memo has not been proved and the witnesses have categorically denied, it appears that the prosecution in order to make their case strong a false seizure of articles have been shown. This is one more aspect of the case has not been proved and goes against the prosecution.”

Sealing of the articles by the Executive Magistrate:

As far the prosecution case is concerned, it has been contended by the prosecution that after the case was registered, investigation was conducted, the IO seized the bedding/mattresses from the room/house of the accused which was witnessed, but all these witnesses who have been examined in the court have denied the fact that any bedding was seized from the house/room of the accused. These seized articles were produced before the Executive Magistrate for sealing so that they could be sent to FSL. To this effect a document is on record showing that the Executive Magistrate Ist.Class Khansahib sealed these items and sent them to FSL for expert opinion. Unfortunately the said Executive Magistrate has died prior to his statement being recorded by the court. Therefore, the sealing of these articles by the said Executive Magistrate was not proved. No effort was made by the prosecution to prove the sealing by secondary evidence as provided under law.

Medical Evidence:

“So far medical evidence aspect of the case is concerned all the four girls were referred for medical examination. The prosecution witness Dr. Shaheen Mir who has examined the girls has stated that she has examined the girls on 20.5.2013.  On examination it was found that no spermatozoa was found, secondary sexual characters were well developed. No mark of violence was found on the person of these girls. Velocity test was found negative though the hymen was not found intact. The girls were referred to Radiological and dental examination for age determination. The perusal of the record on file reveal that no such radiological or dental examination is on record. Once the prosecutrix has been referred for radiological and dental examination and failure of prosecution to do so is serious flaw in the prosecution case.”

FSL and Expert Opinion:

The next contention which was raised by the defence is that it has been alleged by the victims that the accused before allegedly committing rape upon them would exercise some magical spells upon them and would give them something to drink and the moment they would drink that liquid they would become unconscious and thereafter could not resist the attempts made by the accused. But the prosecution has failed to prove this fact with cogent evidence that any such magical spell was being castled or exercised by the accused upon the prosecutrix or any such liquid was given to them which render them unconscious. During the course of investigation, the prosecution has recovered the liquid which allegedly was administered by the accused upon the prosecutrix before allegedly committing rape upon them. The said liquid has been analyzed by the FSL expert who has opined that the said liquid is nothing but mixture of Sugar-Cane juice. It is not the case of the prosecution or report of the FSL that such sugar-cane juice was having the effect of rendering the person who drinks it unconscious.

“The reciting of Mantras by the accused Gulzar Bhat which would effect the unconsciousness of the girls is not acceptable to the Modern Science nor the prosecution has been  in a position to establish that the accused Gulzar Bhat was having any Mantras the recital of which will make a person unconscious. It is also on record that the police concerned seized mattresses, tape recorder and some medicinal tubes from the room of the accused though the seizure has not been proved .So far as the mattresses are concerned it is the positive case of the prosecution that these mattresses were containing semen stains but it is astonishing to observe that the said semen stains has not been compared with that of the accused. The prosecution witness Manzoor Qadir Scientific Officer while appearing in the court has stated that as per the Medical Science it  was possible to ascertain whose spermatozoa was present on mattress through DNA but they have not conducted the said examination . The semen stains on the mattress even if seized has not been proved to be of the accused.”

“It is also on record that when the accused used to commit the alleged act he was playing the tape recorder loudly so that nobody could hear the cries of the victim. Though the seizure of the tape recorder has not been proved still it is a mystery that even if the tape recorder was seized whether it was in the playing condition or not. The prosecution has not made any effort to send this tape recorder for expert opinion and establish that the same was in working condition.”

“As per the seizure memo the police has also seized some medicinal tubes i.e, Betsalic-3. The said tubes were not sent to FSL for expert opinion and its connectivity with the sexual acts. As per the Medical Science it is simply anti-inflamatory cream and nothing else.”    

Non-citing of independent witnesses:

One more contention which was raised by the defence and alleged to be fatal for the case of the prosecution is that prosecution has not examined all the material witnesses who have the knowledge about the occurrence, as such, the non-citing of such material witnesses is fatal for the case of the prosecution.

The victims approached the political leaders as well as the religious Clerics but none of them has been cited as witnesses by the prosecution. It has been contended that the prosecution has deliberately omitted to cite them as witnesses so as to implicate the accused in a false and frivolous case. It has been contended by the Public Prosecutor that it is not necessary for the prosecution to examine all the witnesses who are eye witnesses of the occurrence or who have the knowledge about the occurrence, the prosecution has a right to pick and chose the witnesses and in case the witnesses are not forthcoming, the prosecution cannot force their production before the Court. As far as this contention of the prosecution that prosecution is not required to cite all the persons as witnesses who have the knowledge about the occurrence  is correct  in the circumstances  where there are large number of witnesses who have  seen the occurrence but  when we go through the present case  not a single witness except the complainants and their families have been cited as witnesses and none of the independent witnesses. Thus this contention of Public Prosecutor is against the baic structure of the criminal jurisprudence.

It is also on record that at the time of quarrel in the institute many people assembled there including some of the persons who were from out Districts. It is also on record that about 80-100 girls were also present in the institution but none of them has been cited as a prosecution witness.

Test identification parade:

The complainants who are  4 in number approached the police  with an application submitting therein that the accused Gulzar Bhat was calling them separately in his  room for the purpose of teaching during night hours and then committing rape upon them. This has come on record that many girls were studying in the institution and even at the time of quarrel 80-100 girls were present in the institution. It is also on record that these girls were sleeping in two three halls .The complainants have not named any girl in whose presence they were called. It has been stated by these girls in their statement recorded under Sec.164-A of Cr.P.C that some of the girls were calling and telling them that accused Gulzar Bhat has called them in his room and this fact has not been disclosed by these girls in the application submitted to the police. It is true that the FIR is not encyclopedia of the prosecution case but once they have named certain girls it was incumbent upon the investigating agency to conduct the test identification parade of the girls mentioned in their statements. No such test identification parade has been conducted.

False implications:

“The perusal of the record on file reveals that there has been enmity between the groups and all the defence witnesses have stated that these four girls who have lodged the report in the police were close friends. Their activity in the institution was not liked by the other students who in unequivocal terms have stated that they were talking on the phone during late hours and were disturbing them. The management of the institution has also taken note of the same which was not taken in good taste by these girls. All the defence witnesses have stated that on 6th of Dec.2012 there was some quarrel & these witnesses openly stated that they will teach the accused Gulzar Bhat a lesson, therefore, their statement is to be scrutinized minutely and presence of false implication cannot be ruled out.”   

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