Pehlu Khan Lynching Verdict: Key Highlights & Unanswered Questions

Why were all six men accused of killing Pehlu Khan acquitted? Here’s what went wrong in the case.

On Wednesday, 14 August, a trial court in Rajasthan acquitted all six adult men who had been charged with the murder of Pehlu Khan. On 1 April 2017, Khan had allegedly been lynched by a mob for transporting cattle – the mob claimed he was smuggling them – and he died two days later. His sons, who were with him at the time, were also attacked.

The six accused who were let off by the court are Vipin Yadav, Ravindra Kumar, Kaluram, Dayanand, Yogesh Kumar and Bheem Rathi.

Alwar Additional District Judge Sarita Swami pronounced the verdict seven days after arguments concluded. The police had originally booked and arrested 15 people in the case, including the six who were acquitted by the court.

The CID-CB, which took over the case in June 2017, gave a clean chit to six of them when it filed a chargesheet in the case, three months later.

Of the nine who were finally charged, the remaining three juvenile accused continue to face proceedings before the Juvenile Justice Board.

Controversial Aspects of the Case

The case has been dogged by controversy from an early stage, with questions being raised over the fairness of the investigation by the family, threats and alleged attacks against Khan’s sons and other witnesses, and the clean chit given to six of the accused by the CID-CB.

The clean chit was particularly problematic as the six men who were let off, back in September 2017, had been specifically named by Khan himself in a statement to the police before his death.

A ‘dying declaration’ is normally one of the strongest pieces of evidence in a prosecution case, so it was surprising that the CID-CB decided to drop the case against the men. Qasim Khan, an advocate who has assisted Khan’s family, said that this weakened the case, as per a report in The Indian Express,

Speaking to The Quint after the verdict (but before the text of the judgment was available), Qasim identified four issues with the investigation and trial:

1. The use of the video evidence was botched. The lynching had shocked the public conscience because it had been captured on camera by members of the crowd and shared widely. However, not only did the prosecution fail to get this video certified by the forensic laboratory, one of the men who shot the video, who was supposed to be a police witness, turned hostile during the proceedings and claimed the video was fake.
2. There were significant differences between the police and CID-CB when it came to the investigation, for instance over the six men named in the dying declaration, leading to discrepancies in the prosecution case.
3. The witnesses were not asked to identify the accused, a procedural requirement in such cases.
4. The prosecution did not produce the extrajudicial confession of one of the accused – Vipin Yadav – as evidence against him. Yadav had admitted to beating up Khan in a video to an NDTV journalist in August 2018.

In addition to these issues, another major controversy here was the case filed against Khan’s sons under the Rajasthan Bovine Animal Act 1995 for cow smuggling. The case was registered in April 2017 itself, and a chargesheet was filed in May 2019.

Hukum Chand Sharma, one of the lawyers for the accused, told The Indian Express that he had used this information during the trial to try and prove that Khan was a cattle smuggler.

It should be noted that this should have made no difference to the verdict even if true, as at best this could mitigate the sentence, not the conviction itself.

Khan’s family has expressed dissatisfaction with the judgment, and lawyers for the State of Rajasthan have already confirmed to the media that they intend to file an appeal against the acquittals in the Rajasthan High Court.

Key Highlights From the Verdict

From a perusal of the judgment, which is now available, it appears that Qasim Khan’s apprehensions of what went wrong with the prosecution case were correct.

Judge Swami decided that the prosecution had not proved that the six men were guilty beyond reasonable doubt, and that the men had to be given the benefit of the doubt in the case.

While she did expressly hold that Khan died as a result of excessive bleeding from the injuries received, when he was beaten by the mob, she held that the prosecution had failed to conclusively identify the six men on trial as members of the mob who attacked Khan.

A number of factors lay behind this finding:

• The videos of the incident were not admissible evidence. FSL (Forensic Science Laboratory) reports were not submitted to the court to prove they were genuine, and the mobile phones used to record these videos were not seized either, which could have offered another way to prove the videos were real.
• The witness who recorded one of the videos turned hostile. Another person who had recorded a video of the incident did not testify.
• Witnesses had not been asked to identify the accused in an identification parade when they were in custody, or subsequently during the trial, which was required here since the accused on trial had not been identified by the victim in his dying declaration.
• The dying declaration itself had not been recorded in a proper format, and in any case, did not name the six accused on trial.
• There were discrepancies between the statements made by eyewitnesses in the case (including Khan’s son) during the trial and the statements they’d made to the police under Section 161 of the Code of Criminal Procedure during the investigation. They had not specifically identified the accused on trial in those initial statements but managed to do so during trial, which made the judge doubt their credibility.

Questions for the Prosecution

The key findings in the judgment seem to confirm the long-held suspicions of the family and some independent observers, that the investigation into this case was compromised, and the prosecution was not conducted properly.

• The problems appear to have started at the investigation stage itself, with the failure to seize the mobile phones used to record the video. This is an extremely basic step and one that should have been second nature for the police.
• The failure to properly record Pehlu Khan’s dying declaration is also damning, given the evidentiary value this would have held. This failure didn’t just mean that those first six men walked free, it also meant that information in the declaration that could apply to other accused has also been compromised.
• All people who had recorded the videos of the incident should have been made witnesses to the case and testified. This would have meant that if one of them turned hostile, this would not fatally weaken the case.
• The failure to get the videos certified by a forensic laboratory is nothing short of criminal negligence. Even if the accused could not be conclusively identified in the videos, if they had been certified to be true, things like the items of clothing the accused were wearing, etc could have been used to tie them to the scene of the crime.
• The failure to perform the basic procedural requirement of getting witnesses to identify the accused is bizarre and cannot possibly be explained. Even if it hadn’t been done in the form of an identification parade, when the men were arrested, there were other options to do so later in court, as has been held in previous cases.

The nature of these flaws may make it difficult for any appeal to succeed as well. For their appeal to succeed, the State of Rajasthan is going to have to show that the judge has made some errors in her appreciation of the evidence, and that the relevant evidence had, in fact, been submitted by the prosecution.

The difficulty of doing this aside, this does appear to be a dangerous trend that we are seeing in multiple cases, including the recent Samjhauta Express blasts case, where the prosecution made several glaring procedural errors while presenting their case, allowing the accused to be acquitted.

There needs to be a system of review of such cases established to identify these errors and take action against those responsible for them.