The Telegraph today reported that, a witness to the Lakhimpur Kheri massacre has alleged being attacked with swords on Saturday night by three people, at least one of whom he described as a “henchman” of prime suspect Ashish Mishra, son of Union minister Ajay Mishra Teni. Farmer Prabhjot Singh, the third witness in the case to be attacked, said the assault took place in Tikunia, Teni’s village.
He has further alleged the police had refused to accept his written complaint unless he deleted the name of Ashish, a charge the police denied. Typically however, the district police chief blamed a “personal dispute” for the attack.
Ashish Mishra Teni is in jail on murder charges, accused of mowing down five people — four farmers protesting against his father, and a journalist — with Teni’s car in Lakhimpur on October 3, 2021. Prabhjot said he and brother Sarvajeet were attacked while returning home to Kolhari from Tikunia, 15km away, where they had attended the mundan of a friend’s son.
“Some henchmen of Ashish had seen us and were waiting for us outside our host’s house. They stopped our motorcycle and started abusing me. They asked how I had dared entered Ashish’s village,” Prabhjot told reporters on Sunday, December 11.
“As my brother and I reacted, they attacked us with swords that they were carrying. I escaped unhurt but my brother suffered cuts on the back of his head. The attackers left as soon as Sarvajeet dropped to the ground.” Sarvajeet received three stitches at a private hospital and was discharged in the morning, Prabhjot said.
“I went to Kotwali police station with fellow villagers in the night. Raju Rao, the officer in charge, said I must remove Ashish’s name from the complaint, or else he wouldn’t accept it. We returned, leaving the application on his table,” he said.
Prabhjot said he could identify one of the three attackers and had mentioned his name with Ashish’s in the complaint.
Raju Rao defiantly contradicted the witness victim; he told reporters on Sunday: “Nobody came to me, nor have I received any such complaint.”
However senior echelons of the police have not denied the attack. Instead of looking closely at the issue of the issue of witness protection, and its effectiveness or otherwise, however, the superintendent of police was dismissive. The Lakhimpur Kheri superintendent of police Sanjeev Suman said: “It looks like a fight between two groups over a personal dispute. It has nothing to do with the Tikunia incident (Lakhimpur Kheri massacre). We are probing the matter.”
Question of Witness Protection
Meawnhile, despite the Supreme Court’s explicit endorsement, the 2018 Witness Protection Scheme remains an idea gathering dust, on our statute books. In 2019, Citizens for Justice and Peace, had through a detailed legal resource, re-visited the issue. This may be read here.
As on other crucial issues related to human rights protection and the criminal justice system, the devil lies in the implementation. One expects that after having waited for years for a law to be passed, the troubles caused by its absence will simply go away. The lack of both awareness and application of the Witness Protection Scheme, 2018 is surely one of the reasons where the country over, witnesses –especially from the most marginalised sections –are still subject to threat to their lives and destruction of their property.
An English philosopher Jeremy Bentham is oft quoted on the subject, “Witnesses are the eyes and ears of justice.” In yet another shocking incident of its kind, two Dalit witnesses were brutally assaulted by the accused in a criminal case. The incident was caught on camera and it took place in Mainpuri, Uttar Pradesh. They had taken refuge in a nearby village apprehending such an attack. After suffering severe injuries and even filing a complaint, no arrests have yet been made.
Although the 2018 Witness Protection Scheme has been around for close to four years now, on the ground, India’s criminal justice system continues to reel without its implementation.
SC balances rights of witness victims and accused
Ironically, on the same day that media reported this attack on While considering the application filed by Asish Mishra, son of Union Minister Ajay Mishra, seeking bail in the Lakhimpur Kheri case, the Supreme Court on Monday asked the trial court to indicate time which will be tentatively required to conclude the trial without compromising the schedule of other pending matters reported Livelaw.
A bench comprising of Justices Surya Kant and Krishna Murari directed the Registrar (Judicial) to find out from the first Additional Sessions judge at Lakhimpur Kheri as to how much time the trial is likely to take to conclude in the normal case without compromising with another pending or prioritised matters.
Making an observation that that a balance should be struck between the rights of the victims and the accused, the bench asked if Mishra can be kept indefinitely behind the bars as an undertrial. The accused, Mishra, represented by counsel Mukul Rohatgi, claimed that he was no present at the crime spot, something that was denied by the victims who opposed grant of bail to him. Highlighting the grave nature of the crime, the victims urged the Court to not release Mishra, saying that it will expose the witnesses to danger. However, the bench pointed out that the witnesses have been granted protection as per the orders of the Court. Clearly the protection is faulty given the attacks on the witnesses reported by The Telegraph, however.
Mishra is facing murder charges for allegedly killing persons in the Lakhimpur Kheri violence of October 2021 after his vehicle allegedly ran over farmers who were protesting against farm laws.
The Court thereafter directed the State of UP to inform the SC of the status of investigation relating to the case filed against farmers for allegedly lynching three others, including the driver of Mishra’s car. The bench even asked the State of Uttar Pradesh how long should he be kept in the prison as an undertrial.
“In cases of bail, we consider the seriousness of the crime, the period which the trial will take and also the period spent by the accused. How long should he be in prison?Can he be kept indefinitely? How to balance? The accused has also rights as the victims“, Justice Kant asked additional advocate general of UP Garima Prashad.
Prashad replied that the offences are grave and that there are statements of injured eyewitnesses regarding the presence of Mishra at the crime spot. She also informed the bench that Mishra’s discharge application was rejected by the trial court and the charges have been framed against him.
It is Premeditated murder : Victims’ lawyer Dave
Senior Advocate Dushyant Dave, appearing for the relatives of the victims, submitted that in a murder case, the Supreme Court rarely grants bail if it has been rejected by the trial court and the High Court and that “there is nothing special about this case” . Refuting Rohatgi’s submissions, Dave submitted that the crime was “premeditated”, as there are statements by Mishra’s father a few days ago that the protesting farmers “will be taught a lesson”.
“In 302 cases, this court ordinarily does not interfere when the High Court and the trial court have refused bail. There is no exception in this case”, Dave stated.
“If someone can kill merely because they face agitations, then nobody is safe in a democracy”, he said.
Dave also pointed out that the State would not have acted in this case but for the intervention made by the Supreme Court.
“He is the custody because of our orders..we constituted the SIT..”, Justice Kant commented.
Dave also questioned the genuineness of photographs produced by Mishra saying that they are fabricated. He said that the State has filed an affidavit in the High Court stating that these are doctored.
“SIT has reconstructed minute by minute entire event, there are Whatsapp chats showing how the things were planned”, he said. Referring to certain threatening statements alleged made by the petitioner’s father Ajay Mishra, Dave said “if the Minister makes such statements, the son obviously will be agitated”.
“What was the need for this boy to go there with his friends driving at a speed of more than 100 kilometers”, Dave asked. “There is no dispute. There are 164 statements of eyewitnesses”, Dave replied.
Justice Kant said that the Court will not go into the question regarding his presence at this stage as it is a matter of trial.
“We are broadly on one point. Under the monitoring of this Court, we have reached the stage of charges. The eyewitnesses have also been granted protection. 200 eyewitnesses have also to be examined….we can’t also say that the trial court has to ignore other cases”, Justice Kant said.
“If your lordships will lay down a general principle that in all 302 cases, accused will be released after one year, then I bow down. But don’t make an exception”, Dave retorted.
“In this country, in a case which is as heinous as this, he should not be released. This happened in broad daylight. And two witnesses have already been attacked. They should not be released”, Dave asserted.
Background
Initially, the Allahabad High Court had granted bail to Mishra on February 10, but this had been set aside by the Supreme Court by a bench comprising the then CJI NV Ramana, Justice Surya Kant and Justice Hima Kohli in April 2022 after noting that the High Court took into account irrelevant considerations and ignored relevant factors. The bail application was then remanded to the High Court. The Supreme Court’s order came in appeal filed by the relatives of the farmers who got killed in the crime.
[1] (2006) 3 SCC 374 [SCC pp. 396-98, paras 40-41]
[2] (2005) 5 SCC 68 at 678
Related:
Assault on Dalits for deposing as witnesses in court in Uttar Pradesh’s Mainpuri
After Nadeem’s murder, court orders more security for Naroda witnesses
Pehlu Khan’s Sons, Lawyer and two Case Witnesses attacked!
Lack of Witnesses Protection Derailing Justice in Sohrabuddin case?