The Supreme Court on Tuesday directed the State of Uttar Pradesh to provide protection to the witnesses of the Lakhimpur Kheri violence of October 3, which claimed the lives of 8 people, four of them being farmers protesters who were allegedly mowed down by the vehicles in the convoy of Ashish Mishra, the son of Union Minister and BJP MP Ajay Kumar Mishra.
The Court also directed the State of UP to ensure that the statements of relevant witnesses are recorded by the Judicial Magistrate under Section 164 of the Code of Criminal Procedure. If there’s any difficulty in recording of the witness statements due to the unavailability of Magistrate, the bench directed the concerned District Judge to ensure that the statements can be recorded by the nearest available Magistrate.
A bench comprising the Chief Justice of India NV Ramana, Justices Surya Kant and Hima Kohli passed these directions after perusing the second status report filed by the State of UP regarding the the investigation.
Last week, after the court observed that it was getting the impression that the UP Police was “dragging its feet” in the investigation, the UP Police got the statements of more witnesses recorded under Section 164. The bench was informed today that statements of 30 out of the 68 witnesses have been recorded under Section 164. 23 of them were said to be eye-witnesses. Last time, statements of only 4 witnesses were recorded.
Today, the Court expressed surprise that only 23 eyewitnesses have been traced out of gathering of hundreds of protesters. The bench orally told Senior Advocate Harish Salve, who represented the State of UP, that the investigation team must try to identify more eyewitnesses. The bench also orally said that the forensic laboratories must expedite the examination of the video evidence of the case.
Also, the Court directed that separate replies must be filed by the State of UP with respect to the counter-case of lynching of a person named Shyam Sundder, after the farmers were attacked and also with respect to the killing of a journalist Raman Kashyap.
The matter will be next heard on November 8.
Court room exchange
Senior Advocate Harish Salve, appearing for the State of Uttar Pradesh, informed the bench today that out of 68 witnesses, statements of 30 witnesses have been recorded under Section 164 of the Code of Criminal Procedure.
“Of these 30 witnesses, 23 claim to be eyewitnesses. A lot of witnesses are formal witnesses of recovery and all”, Salve submitted.
CJI asked “Your case and other’s case is that there were hundreds of farmers…out of them only 23 witnesses?”.
Salve replied that an advertisement was given inviting people to come forward to give evidence. He also submitted several digital video evidences have been recovered.
Justice Surya Kant asked “Your case is also that there were thousands of people. And they were all local people. And post incident, most of them have been agitating demanding proper investigation. So identification of people by witnesses should not be a problem”.
CJI added, “In these type of cases, there is every possibility of….”. Salve then interjected, “I know your lordship, that is why your lordship is interfering”.
CJI further said, “Ask your agency, see there are more than 23 witnesses. Eye witness evidence is more credible. It is always better to have first hand evidence.”
Salve replied, “Can we show your lordships some of the 164 statements in a sealed cover?”.
“Our apprehension is…”, CJI started saying, but without completing the sentence, he said “you have already grasped the issue”
Justice Kant added, “Mr.Salve, let’s not forget, out of this crowd, some had just gone, some were just fence sitters…some of them are likely to not turn out to be witnesses”.
“Identification is also important”, the CJI said.
“All 16 accused have been identified”, Salve replied.
CJI also asked if any injured witnesses are there. Salve initially replied that out of the injured, all were fatalities. Later he corrected and said that there were 3-4 injured witnesses
The bench also observed that the UP Police should provide security and protection to the witnesses. The bench also said that the forensic examination must be expedited.
“Expedite it, or we will give directions to laboratories to expedite the report”, CJI said.
At this point, Senior Advocate Arun Bharadwaj made an appearance for Ruby Devi, widow of one of the killed persons.
“I appear for Ruby Devi. My husband has been killed. I want justice. The killers are roaming free and threatening me”, he submitted. Also, Senior Advocate Harshvir Pratap Sharma mentioned the issue relating to the investigation of murder of journalist Raman Kahsyap during the violence.
The bench asked Salve to file separate replies with respect to these cases as well.
Previous hearing
On October 20, the bench had observed that it was getting the impression that the UP Police was “dragging its feet” in its investigation. The bench had made this remark after noting that the statements of only 4 out of the 44 witnesses were recorded under Section 164 of the Code of Criminal Procedure. The bench also sought to know why 6 out of the 10 accused were send to judicial custody instead of police custody, and asked if the police had sought for their further custody. Senior Advocate Harish Salve, who had appeared for the State of UP, had then informed that they were remanded to judicial custody after seizing their mobile phones and collecting certain video evidence for forensic examination.
“This should not become a never ending story”, the CJI had commented.
The Supreme Court registered the PIL on the basis of a letter petition sent by two lawyers seeking proper investigation in the case. The Court’s action followed the emergence of shocking videos in the social media showing vehicles in the convoy of Ashish Mishra driving into the protesting farmers.
On the first day of hearing, October 8, the Court had recorded its dissatisfaction with the UP Police probe, as the main accused Ashish Mishra was yet to be arrested then. The bench asked if it was normal for the police to await reply of the accused to a summons served on him in a murder case, instead of arresting him.
Following the sharp criticism by the Court, Mishra was arrested the next day by the UP Police.