“I AM NOT obliged to give you an answer,” says Thomas P Joseph, retired judge turned lawyer and the senior counsel who represented Kerala in the Supreme Court for the Soumya murder case. On 2 February 2011, Soumya was returning home to Shornur from Ernakulam in a passenger train when she was brutally raped and killed at an isolated place just a few kilometres away from her station. Govindachami, a one-armed beggar with a police record for petty crime, was booked on the third day and charged with criminal trespass, voluntarily causing hurt, theft, rape and murder. The High Court gave him a death sentence. But the Supreme Court sentenced him for life, holding him guilty of rape but ruling that the charge of murder could not be established beyond reasonable doubt. Joseph and the prosecution team are being blamed by many for failing to prove the second count. When the three-member division bench asked whether Soumya was pushed off the train or jumped on her own, the prosecution reportedly couldn’t give a satisfactory answer.
“I understand that the prosecution could not give satisfactory answers to the questions raised by the judge. When it was asked how they could establish that Soumya was pushed out of the train by the accused, the lawyer failed to answer. It is very surprising that he could not establish the chain of action in the crime,” says VS Sanakan, a senior court reporter with Kerala Kaumudi.
In the investigation, the horrific nature of the crime had come to light. It was established that Govindachami had hit Soumya’s head against the wall of the train, causing injuries there. After she fell out of the train, he followed and raped her in an isolated bushy area near the tracks. Soumya succumbed to her injuries in hospital. The Supreme Court judgment has triggered a debate in Kerala. A number of judges and lawyers disagree that there is no substance to establish murder. One of the things they point out is that according to the autopsy report, the death happened due to the combined effect of injuries sustained by the victim both inside the train and after falling onto the track, and the complications thereafter.
There were multiple factors for the apex court to not convict Govindachami of murder. A prosecution witness had said that he had tried to pull the train’s chain to stop it, but was dissuaded by a middle-aged man standing at the door. This man told the witness that he had seen a girl jump off the train and there was no need to pull the chain and inconvenience other passengers. The investigation team could not trace this unknown passenger to confirm the hearsay. To the apex court, this was oral evidence of Soumya jumping on her own, and hence the liability for the second injury would then not necessarily be Govindachami’s.
Markandey Katju, former judge of the Supreme Court, disagrees with this view. On Facebook, he writes, ‘This was a grave error in the judgment, not expected of judges who had been in the legal world for decades. Even a student of law in a law college knows this elementary principle that hearsay evidence is inadmissible’. A defence lawyer in the case, on condition of anonymity, says that there were flaws in the way the prosecution handled the matter. “The investigating officer should have omitted the oral evidence that a person standing at the door had seen her jump out of the train, which is nothing but hearsay. This went against the interest of the prosecution. In the trial court and High Court, we were not permitted to raise these issues because it was such a sensational case in Kerala. There was no such emotional tag as far as the Supreme Court was concerned.”
Another factor was the post-mortem report. It stated that the accused kept Soumya in a supine position for raping her, which eventually caused aspiration of blood into air passages and accelerated death. The apex court held that the accused need not have known that this would be fatal.
“Too unrealistic and uncalled for,” says Justice V Ramkumar, a former judge of the High Court of Kerala, referring to the apex court’s argument. In an article written in Live Law, a portal for legal affairs, he made this observation: ‘When the cause of death was the combined effect of both injury Nos. 1 and 2 coupled with the consequent complications arising there from, an isolated consideration of injury No. 2 alone for fixing the liability for the death of the victim, was, in my humble view, uncalled for.’
Meanwhile, the order has led to a political predicament for the state government led by the CPM. While it has decided to move a review petition in the Supreme Court, it goes against the party’s avowed public stand of being against the death penalty in the past. ‘This judgment is shocking; the Government will go for all possible legal remedies,’ wrote Chief Minister Pinarayi Vijayan in a Facebook note. The opposition Congress has blamed the state government for botching up the prosecution case. CPM leaders say that they are very clear about their position—the review petition is being filed not to demand a death sentence, but to establish the murder charge, since a let- off would set a bad precedent in similar cases otherwise.