While taking a very grim view of the most reprehensible incidents of police officers tampering with evidence even in heinous cases of crime as in rape cases, the Madhya Pradesh High Court in a noteworthy judgment titled Ajay Sahu v. The State Of Madhya Pradesh And Anr. in Criminal Appeal No. 379 of 2022 delivered just recently on April 21, 2022 has directed the State Level Vigilance and Monitoring Committee to take appropriate action against the police officers concerned for tampering with forensic evidence in a rape case, to allegedly shield the appellant/accused who also happened to be a police officer. The single Judge Bench comprising of Justice Vivek Agarwal of Madhya Pradesh High Court at Jabalpur further lamented that the Court would’ve directed that the case be handed over to the CBI for further investigation but the same, prima facie, would not help the victim as the delinquent officers had ‘already played their role’ by tampering with the evidence. We thus see that the Court denied bail to the appellant and the appeal was dismissed.
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench comprising of Justice Vivek Agarwal first and foremost puts forth in para 1 that, “This appeal is filed by the applicant Ajay Sahu S/o Shri Ramesh Kumar under Section 14(A) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Amendment Act, 1989 as amended upto date.”
Simply put, the Bench then states in para 2 that, “Case Crime No.05/2021 is registered at Police Station A.J.K., District Chhindwara (M.P.) for offence under Section 376(1), 294, 323, 506 of IPC and Section 3(2)(va), 3(1)(w)(i) (ii) of SC/ST, Act 1989. Date of arrest is 13.11.2021.”
Of course, the Bench then points out in para 3 that, “It is submitted that the appellant is innocent, he be enlarged on bail. DNA report is negative, inasmuch as Forensic Science Laboratory has opined that since sample of the fetus was preserved in Formalin Saline, therefore, DNA testing is not possible.”
Briefly stated, the Bench then discloses in para 4 that, “In this regard, I have perused the report dated 20.04.2022 forwarded by Shri Umesh Joga, Additional Director General of Police, Jabalpur, Zone Jabalpur. It is evident from the report that Civil Surgeon of the Hospital Dr. Shikhar Surana had earlier given a casual report saying that sample was preserved in the Formalin at the hospital as it is available in the OT. This opinion has been changed by the Civil Surgeon which clearly points out that Civil Surgeon is guilty of furnishing incorrect information to the High Court. Vide report dated 24.03.2022 forwarded to the D.S.P. Women Safety, Chhindwara vide letter No. /2022/830.”
While mentioning about the Additional Director General of Police, the Bench then reveals in para 6 that, “He has concluded that Staff Nurse Sudha Dhurve admitted that in O.T. Normal and Formalin Saline is available, therefore, there is a possibility that on 13.12.2021 Smt. Radha Boniya (O.T. Technician) might have by fault handed over the container in place of Normal saline filling it with Formalin. After coming into notice of this fact, Hospital Administration is trying to suppress the facts. However, it is evident from the list of persons whose statements were recorded that statement of Sudha Dhurve, Staff Nurse was not recorded. Only statements of 10 persons mentioned above were recorded.”
No doubt, the Bench then concedes in para 7 that, “Dr. Shikhar Surana, Civil Surgeon admitted that for last one and a half year no Formalin was supplied to Prastuti Vibhag.”
As we see, the Bench then states in para 8 that, “Dr. Disha Lamba in her statement stated that Dr. Pathak had directed Sister Kavita to prepare a pack of Normal Saline in which product of Conception (fetus) can be kept. On this instruction, Sister working in Secrolatory had brought a box of Normal Saline in which Dr. Pathak had preserved product of Conception which was handed over to the police authority.”
It also must be mentioned that the Bench then lays bare in para 9 that, “Dr. Shweta Pathak has admitted that Radha Bonia, Staff Nurse was helping Kavita. She has categorically mentioned that she had not paid attention as to whether N.S. was filled in the container by Ms. Kavita or Ms. Radha but container given to her by Ms. Kavita was filled with N.S. because it was not emitting any smell of Formalin. That container was handed over by Dr. Diksha Lamba to the police authority.”
While continuing in a similar vein, the Bench then brings out in para 10 stating that, “Dr. Shobha Moitra has also given similar statements clearly mentioning that Normal Saline in which fetus was preserved was supplied by Store Keeper Manish to the O.T.. For last two years no Formalin has been supplied to the Operation Theater. As per her memory, in last 12 years, no human organ has been preserved in Formalin.”
It must be noted that the Bench then mentions in para 11 that, “Statements of Smt. Kavita Bele are on record in which she has categorically mentioned that Radha Bonia had filled Normal Saline, it was Radhe who had sealed the container.”
It deserves mentioning that the Bench then while mentioning about the statement of Radha Bonia which is important notes in para 13 that, “Reading this statement, it is evident that Ms. Radha Bonia has not admitted that she had filled Formalin in place of Normal Saline. There are no statements of Ms. Sudha Dhurve which Additional Director General of Police has mentioned that she has admitted that in O.T. Normal and Formalin saline are available.”
Needless to say, the Bench then states in para 14 that, “First of all Formalin is not a Saline. Additional Director General of police has not applied himself to the fact situation. It appears that he signed the report and has not taken into consideration the fact that there are no statements of Staff Nurse, Ms. Sudha Dhurve.”
Without mincing any words, the Bench then acknowledges in para 15 that, “Accused appellant is a Police Personnel, thus there is good probability of he being shielded by the higher Police Officials for the reason best known to them.”
Adding more to it, the Bench then also alarmingly points out in para 16 that, “It is prima facie apparent that sample is tampered with and only beneficiary from the tempering of the sample is the present appellant. It also appears that now Police Officers are trying to save him.”
Be it noted, the Bench then enunciates in para 17 that, “Section I5(A) under chapter IVA of the SC/ST (Prevention of Atrocities) Act, 1989 as amended upto date deals with Rights of Victims and Witnesses. Section 15-A(8) provides as under:-
“(8) Without prejudice to the generality of the provisions of sub-section (6), the concerned Special Court or the Exclusive Special Court may, on an application made by a victim or his dependent, informant or witness in any proceedings before it or by the Special Public Prosecutor in relation to such victim, informant or witness or on its own motion, take such measures including :-
(a) concealing the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to the public;
(b) issuing directions for non-disclosure of the identity and addresses of the witnesses;
(c) take immediate action in respect of any complaint relating to harassment of a victim, informant or witness and on the same day, if necessary, pass appropriate orders for protection;
Provided that inquiry or investigation into the complaint received under clause (c) shall be tried separately from the main case by such Court and concluded within a period of two months from the date of receipt of the complaint;
Provided further that where the complaint under clause (c) is against any public servant, the Court shall restrain such public servant from interfering with the victim, informant or witness, as the case may be, in any matter related or unrelated to the pending case, except with the permission of the Court.””
Furthermore, the Bench then states in para 18 that, “Rule 16 provides for Constitution of State Level Vigilance and Monitoring Committee. Sub Rule 2 of Rule 16 provides that the high power Vigilance and Monitoring Committee shall meet at least twist in a calendar year in the month of January and July to renew the implementation of the provisions of the Act, Relief and Rehabilitation facilities provided to the victims and other matters connected therewith, prosecution of cases under the Act, Role of different Officers/Agencies responsible for implementing the provision of the Act and various report received by State Government.”
On the face of it, the Bench then states in para 19 that, “Similarly, Rule 17 provides for Constitution of District Level Vigilance and Monitoring Committee.”
Most damningly, the Bench then hastens to add in para 20 that, “In the present matter it appears that none of the Committees be it State Level Vigilance and Monitoring Committee for a District Level Vigilance and Monitoring Committee have taken pains to do the needful as is provided in Rule 16(2), Rule 17 and Section 15-A(8) of the Act.”
Truth be told, the Bench then concedes in para 21 that, “Appellant should have been transferred out of the local area to a far flung area so that he is not able to influence the witnesses.”
Most significantly, what forms the cornerstone of this notable judgment is then encapsulated in para 22 wherein it is held that, “This Court would have handed over this case to the Central Bureau of Investigation (CBI) in view of the conduct of the Police Personnel which includes the appellant, Superintendent of Police, Chhindwara, and Additional Director General of Police, Jabalpur but at this distance of time when Civil Surgeon of District Hospital, Chhindwara and concerned Police Personnel have already played their role, and it is not possible to retry the sample, therefore, any indulgence of the CBI prima facie does not appears to be of immediate help in protecting the rights of the victim. Therefore, instead of handing over the investigation to the CBI, it is directed that concerned Officials be transferred specially the appellant to a far flung place in Madhya Pradesh so that he is not able to influence the witnesses as now case is to be decided on its own merits in view of the available ocular evidence.”
No less significant is what is then stated by the Bench in para 23 wherein it is held that, “As far as, merits of the present appeal is concerned, it is evident that forensic evidence has already been tempered with and now case is dependent on the ocular evidence, therefore, for the present when the appellant appears to be wielding sufficient influence on various authorities who are suppose to be independent, probability of tempering with the evidence cannot be ruled out thus unless important prosecution witnesses are examined it cannot be said that the appellant is entitled to be enlarged on bail.”
As a corollary, the Bench then holds in para 24 that, “Application fails and is dismissed.”
Finally, the Bench then concludes by directing in para 25 that, “Let a copy of this order be forwarded by the Registry along with reports dated 01.04.2022 and 20.04.2022 to the State Level Vigilance and Monitoring Committee through the Chief Secretary for taking appropriate action against the delinquent persons within 15 days from today. Let record be kept in a sealed cover.”
In conclusion, the Madhya Pradesh High Court has taken a very strong exception to police officers tampering with evidence in rape case to help the accused police officer to get himself exonerated from the court. This is nothing but trampling upon justice and due process of law. How can this sabotaging be allowed? This no court can ever afford to allow at any cost and under any circumstances. No denying it!
