Disha Gang Rape: Consequences of a Fake Encounter

By Piyush Kumar Choubey & Harsh Parakh

Introduction

On the cold night of December 27^th, 2019 an unfortunate incident took place in the state of Telangana in a village on the outskirts of Hyderabad. A girl named “Disha” (name changed for protection) was brutally raped and murdered by 4 people 2 of whom have been proved to be minor. According to First Information Report; Disha had left her home to visit a dermatologist, she parked her Scotty in a toll plaza and took a shared cab to the dermatologist which is about 26 kilometers away. She came back to find out her Scotty punctured and there was no feasible option in near sight. Shortly after, she was offered help from a truck parked nearby. The driver Mohammed Arif along with his assistant, Jollu Shiva came out of the truck and tried to convince her to allow Shiva to take the scooter to a mechanic. Afterwards, she called her sister as she was a bit hesitant in trusting strangers, and told her everything as it was. Her anxiety grew as there was no sign of her scooter even after a long time, she called her sister again and her exact words were “They are all standing here… I am scared”. This was the last conversation her sister had with Disha. 

The chain of events after the call was hung up is not certain but it is presumed that it happened in the following way; two more accomplices of the truck driver, Chennakesavulu and Naveen joined them and then they forced her to an empty plot nearby where they forced her to have liquor and then raped her. She died of suffocation, so it is believed that one of them smothered her, so that her screams could not be heard. After she died, they put the dead body in the lorry. They drove along the Hyderabad-Bengaluru highway and about 22 km. south of the plaza, they burned the body below an underpass.

The horrific story makes a person think for a second about what the society has become and angers the rule-following citizenry to an extent that they are ready to kill the rapists at any cost, but then again there is a constitution and legal system which runs the society and we hold back our rage to let the law function. 

The policemen investigating this case were not so sensible enough to comprehend the importance of this prestigious legal system and perhaps put some bullets down its throat when they killed all the accused on the pretext of an encounter which does not seem so true in the eyes of the authors or for this matter even in the eyes of law.

Justice Sirpurkar Commission

After hearing the petition filed by G.S. Mani, the Supreme Court ordered an Inquiry Commission to be constituted to inquire into the alleged fake encounter of all the four accused in the Disha gang rape case. The committee was empowered with all the powers and privileges that a committee would usually have under the Commissions of Inquiry Act, 1952. The committee shall comprise; Mr. Justice V.S. Sirpurkar (Retd.) who shall be the chairman of this committee, Ms. R.P. Sondurbaldota, and Dr. D.R. Karthikeyan. 

The commission was asked to investigate the matter in its entirety, which means; figuring out the actual chain of events that led to the death of all four deceased, recommending further action for the court to follow, and also determining correct liability for each of the co-accused. 

The commission was empowered with all the powers that a commission should have under the Commissions of Inquiry Act, 1952. Section 8B and 8C of the act require that any person who the commission may deem fit to inquire into their conduct may give them ample opportunity to be heard and represented by a legal practitioner. Accordingly, the commission served notices under 8B and 8C to all the ten police officers who were present at the scene of the incident. After which the commission began the strenuous process of recording shreds of evidence and hearing witnesses, the commission adopted a hybrid model of hearing, it was of the view that not all witnesses need to be examined physically, so it was decided that some witnesses would be heard in the physical presence of the commission, others would be examined in the physical presence of the commission as according to the discretion of the commission.

The commission after a yearlong process of hearing witnesses, examining the evidence placed before it, traveling to the crime scene themselves, and also a considerable amount of internal meetings concluded that all the ten accused police officers were responsible for killing the accused and should be tried under Section 302 r/w 34 IPC, 201 r/w 302 IPC and 34 IPC. The three officers who were responsible for firing the shots on the deceased are also to be tried under Section 302 IPC.

Judicial Precedents

In the landmark case of Om Prakash v. State of Jharkhand, the Hon’ble Supreme Court held that the Police only have to arrest the criminal and put them on trial and that it is not their duty to kill someone merely because that person is an undreaded criminal. It further opined that the act of Police personnel killing a criminal and then projecting it as an encounter should be deprecated. The Court termed this act as State-sponsored terrorism.

The Madras High Court in SatyavaniPonrani v. Samuel Raj held that the state is duty-bound to provide a free and fair investigation and trial to every citizen of the country provided to them by the Constitution of India under Articles 14, 21, and 39-A. 

In RameshbhaiChandubhaiRathod v. State of Gujarat, the Hon’ble Supreme Court laid down that for the death penalty to be imposed on an accused the prosecution must prove the crime committed by the accused beyond any reasonable doubt. The accused must also be given a proper chance to refute the claim of the prosecution.

In Prakash Kadam v. RamprasadVishwanath Gupta, the Hon’ble Supreme Court came down heavily on the police for committing murder and then portrayed it as an encounter by pleading that the order was given to them by higher authorities. It further held that if any police personnel is ordered to do a “fake encounter”, he/she must refuse it and failing to refuse would amount to the charge of murder.

The Hon’ble Supreme Court in the case of PUCL v. State of Maharashtra gave guidelines to be followed when an encounter takes place. It observed two scenarios after the encounter has been done, i.e., (1) Injury is the result of an encounter and (2) Death is the result of an encounter. It recommended that the encounter should be reported to the National Human Rights Commission and the State Human Rights Commission without any delay. There should be magisterial inquiry should be conducted in the cases of encounters where death is the result. Further, if any officer is found guilty by the inquiry, they should be suspended immediately, and disciplinary action should be initiated against them.

Conclusion

Fake Encounters in the garb of self-defense have now been normalized to execute instant justice or in some cases personal vendetta. It brings a bad name to a country that follows the principles of natural justice. It is high time that society understands the consequences of this practice and disregards it. The major reason for such encounters is the complicated judicial process which is way too time-consuming. Thus, fast-track courts come in handy when dealing with these types of cases. Guidelines given by the Supreme Court about encounters should be followed to maintain transparency and accountability.

The cops engaged in such encounters must be punished for their inhumane acts and an example should be set so that such acts are not repeated in the future. “1000 culprits can escape, but, one innocent person should not be punished” is what governs our criminal justice system. Thus, attempts should be made in improving the justice system so that police do not have to resort to the method of encounter for providing instant justice as happened in the present case.