After news that police dropped the murder charge in the Tabrez Ansari lynching case – first reported by The Quint – made headlines, there was uproar that the police had dropped the charge to protect the accused. Police had cited the doctor’s opinion from the post-mortem report as the rationale for these dropped charges.
The Quint has now accessed the post-mortem report and talked to human rights and criminal lawyers about whether the doctor’s opinion constituted a solid basis for police to drop the charges against the 11 accused.
On 17 June 2019, a video was circulated of Tabrez being tied to a pole, accused of theft, and forced to chant ‘Jai Shri Ram’ and ‘Jai Hanuman’ before being beaten brutally for at least seven hours. Five days later, on 22 June, he succumbed to his injuries.
While Section 302 (punishment for murder) has been dropped, Section 304 (culpable homicide not amounting to murder) is still in the charge sheet.
WHAT IS THE DIFFERENCE BETWEEN MURDER AND CULPABLE HOMICIDE?
The degree of knowledge, and the corresponding intent to kill, is higher for murder than for culpable homicide. The punishments for the two also vary. While the maximum punishment for murder is the death penalty, for culpable homicide it is life imprisonment.
WHAT THE POST MORTEM SAYS
The post-mortem observes that:-
1) There is fracture in the right fronto-perital bone of the skull.
2) There is sub-archnoid haemorrhage 02 to 03 ml on the right side fronto-perital region of the brain.
3) All the organs are pale.
4) All the chambers of the heart are filled with blood.
5) There is no poison found in FSL report.
On the basis of above main findings we opined that:-
"“Firstly, The fracture of bone is grievous injury caused by hard & blunt object. Secondly, the combined effect of fracture of bone, pale organs and heart chambers full of blood resulting into cardiac arrest.”" - Opinion in post mortem report
WHAT LAWYERS HAVE TO SAY
The Quint consulted lawyers to understand if this 'opinion' was reason enough to drop the murder charge at the stage of submitting the charge sheet in court.
Human Rights Law Network lawyer Aman Khan came down against the police's move. He said, "This fracture of the skull shows that one had the intention as well as knowledge that you were going to kill somebody. There is no reason, then, for the police to have dropped Section 302 based on the opinion mentioned in the post-mortem report. It is very clear-cut. The cardiac arrest is due to the injuries which were caused due to the beating, simple.”
He went ahead and questioned the honesty with which the police is conducting their investigation. "This is not the ordinary practice. This clearly shows that the police is biased,” adding:
“They are trying to protect the accused by diluting charges. The police is generally very proactive in such cases. They usually themselves use Section 302. In fact, it is the defendants who argue against the murder charge after the arguments on charge happen. Here, however, instead of the accused doing it, the police is doing it for them. Why?”
Supreme Court lawyer Anas Tanvir Siddiqui holds a similar view. He said, “The opinion in the post-mortem report goes on to clearly state the cause of death is cardiac arrest, which was caused due to the injuries he suffered. Secondly, the fracture of the right fronto-perital bone of skull might not kill you immediately, however, it is an eventual cause of fatality.”
Talking about the ensuing trial, Siddiqui added:
" “Under criminal law, either there is direct evidence or circumstantial evidence. Here, there is evidence of the video. There is also the complaint in the FIR. You cannot drop a charge during this state in an investigation, this is very, very rare. This requires a complete trial of murder. Either it is a case of custodial death or lynching, either way, murder needs to remain being a charge.”" - Anas Tanvir Siddiqui, Lawyer, Supreme Court
However, noted Delhi criminal lawyer, Satish Tamta, points out that it is not entirely unreasonable for the police to have made this decision. Tamta says that this post-mortem report only confirms that the death is a case of homicide and whether or not Section 302 or 304 of the IPC will be added will depend upon the statement of the witnesses.
"“See, death is either homicide, suicide or natural. A homicide is either murder or accidental. Again, homicide could be either murder or not amounting to murder. Where so many people are involved, lynching for example, it may be difficult to say it’s murder, it is rather safe for police to term it homicide not amounting to murder.”" - Satish Tamta, Criminal Lawyer . Read more on India by The Quint.RSS & BJP’s Nehru-Netaji ‘Cosplay’: Irony Dies a Thousand DeathsDid Tabrez Ansari’s Post-Mortem Justify the Dropped Murder Charge? . Read more on India by The Quint.