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In Rajasthan, a frame-up most foul

Komal Lodha’s brother Biramchand and mother (in the background) at their home in Mogyabeh village, Rajasthan

Komal Lodha’s brother Biramchand and mother (in the background) at their home in Mogyabeh village, Rajasthan | Photo Credit: Abhinay Lakshman

On the evening of July 27, 2018, Naina (7) told her parents that she was going to a store close to their home in Rajasthan’s Mogyabeh village in Jhalawar district. She disappeared into the dusk. It was around the same time that Komal Lodha (then 17) was being served dinner at his home, his mother says. The next day, Naina was found 500 metres from her home — raped and murdered — and Lodha was arrested for her killing. He was convicted and sentenced to death by a trial court within a year of the incident.

Four years later, the State Police have been forced to reopen the investigation into Naina’s death and start from scratch after the Rajasthan High Court found that the DNA evidence in the case absolved Lodha and that he had been wrongfully prosecuted by the police.

As 21-year-old Lodha waits in a Kota jail for his conviction to be overturned, the residents of Mogyabeh, numbering less than 1,000, are clueless, just like the police, about who could have killed the tribal girl. But unlike the police, they refuse to believe that someone from their village could have murdered her. The villagers say they believed Lodha was involved only because the police had insisted that they had “test results” that pointed to his involvement. Today, despite the High Court’s finding, some still hold Lodha responsible, while others are confused.

Komal Lodha’s arrest

The men in the village recall how the police had arrived at their conclusion within hours of finding Naina’s body. “They stormed the village after the girl was found. The police called for every man aged 18 to 50, gathered us all at the government school here and started stripping us down. They checked our private parts for signs of injuries. Lodha was also there,” recalls 35-year-old Vimal as he lights a bidi in the village square.

Lodha’s older brother, Biramchand Lodha, was also picked up. “They kept saying they needed to identify anyone who was acting ‘nervous’. We were naked and the police kept touching our private parts. As far as I could see, everyone there was nervous,” Biramchand Lodha says.

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Vimal, Biramchand Lodha and at least two other men in the village who describe having been subjected to the same unnerving process say that the police eventually pulled out three or four men from the line of suspects. They allegedly noticed a mark on one of them, Komal Lodha. As per court records, Lodha was arrested on July 28.

The fields where the young girl’s body was found.

The fields where the young girl’s body was found. | Photo Credit: Abhinay Lakshman

However, in the charge sheet, the police’s narrative of how they zeroed in on Lodha as the prime suspect is fundamentally different from the events that villagers in Mogyabeh recall. The police claimed that several villagers, including Naina’s parents and her cousins, had “seen her go away with Lodha”. The police insisted that they went looking for Lodha based on the statements of these witnesses and that a dog squad also led them to his home.

“We never told the police that we suspected anyone or that we had seen Lodha with our daughter. We did not even find the body; the police found it. The police came and told us the day after she was found that they had arrested Lodha and that he had killed our child. So, we believed them and held him responsible,” says Naina’s mother, after finding out in July this year about the Rajasthan High Court’s ruling. The FIR in the case, lodged on the complaint of Naina’s father, a day after she went missing, also does not mention the child being taken away by someone.

Eventually, when they deposed before the trial court, both parents insisted that they saw Lodha taking away their daughter. Moreover, the police had recorded statements of other villagers, including Naina’s minor cousin, who purportedly said they last saw Lodha with Naina. In court, however, all the witnesses admitted that they had not seen Lodha get violent with Naina or rape her or kill her.

While both Biramchand and his mother say they were not very close to Komal Lodha, they insisted that on the day Naina went missing, he was at home eating dinner, after which he went into his room.

The police filed their charge sheet against Lodha on August 7, within 10 days of his arrest and nearly two months before the DNA result from collected samples came back on September 9. The crime had occurred near the Assembly constituency of the then Chief Minister, Vasundhara Raje, who was getting ready to face an Assembly election months later.

The trial court in Jhalawar began hearing the case in 2018. In October that year, it concluded that Lodha was an adult even though his mark sheet and his school principal testified to his date of birth — both determining him as a juvenile as per the Juvenile Justice Act. Instead, the court relied on the statement of a doctor, who estimated that Lodha was between the ages of 19 and 21, based on his X-ray reports. This doctor was not a radiologist.

The charge sheet against Lodha was filed under Sections 363 (punishment for kidnapping), 376 (rape), 377 (unnatural offences), 302 (murder), and 201 (causing disappearance of evidence of offence, or giving false information to screen offender) of the Indian Penal Code; Section 5(m) and Section 6 of the The Protection of Children from Sexual Offences Act (POCSO); and Sections 3(1)(w)(i) and 2(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, also known as the SC/ST Act, given that Naina was from a Scheduled Tribe. Save for the charges under the SC/ST Act, the trial court convicted Lodha of all other charges on September 23, 2019.

In addition to the witness statements, the police had used a purported confession by Lodha, recorded in police custody, to prosecute him in the case. After his arrest, the police team led by the Superintendent of Police, Jhalawar, brought Lodha back to the village from time to time to recover what they called “evidence”. This included the pair of slippers Naina was wearing when she went missing, which was recovered within 200 feet of where her body was found. In their charge sheet, the police said that Lodha’s confession allegedly led them to the slippers. They argued that the recovery made on the basis of the confession would strengthen the credibility of the confession even though Lodha denied the charges against him in court.

The DNA evidence

After relying on this evidentiary material, which the Rajasthan High Court has now ruled as “circumstantial”, the trial court relied on the DNA evidence presented before it by the prosecution to convict Lodha. The prosecution had submitted that the male DNA profile recovered from the victim’s vaginal swab and her leggings matched with the profile found on Lodha’s underwear. It had also said that the DNA profile from his underwear matched with the profile obtained from his blood sample. Placing this on record, the trial court had ruled that “there is no room for doubt” that Lodha had raped and killed Naina.

But what the prosecution left out and what the trial court failed to mention in its order was that two separate male DNA profiles were recovered from the vaginal swab and the leggings of the victim and two male DNA profiles were also recovered from Lodha’s underwear. The findings of the DNA analysis, recorded by the Forensic Science Laboratory in Jaipur, showed that one of the DNA profiles on Lodha’s underwear matched with his blood sample. However, the other male DNA profile on his underwear matched the male profile found on the leggings and vaginal swab of the victim and did not match with Lodha’s blood sample. This means that the DNA profile of the accused that was found on the victim had somehow appeared on Lodha’s purported underwear by the time it was sent for forensic analysis.

Based on these findings of the DNA analysis, the Rajasthan High Court concluded that the police had failed to look at the evidence at hand in their rush to prosecute the case, and evidence seemed to have been planted on Lodha to secure a conviction. What strengthened the High Court’s suspicion of evidence being planted was that the police showed recovery of the underwear nearly seven hours after Lodha’s arrest.

“They were clearly in a rush because of some kind of pressure. Otherwise, why file a charge sheet without even waiting for the DNA report to confirm their investigation,” asked advocate Nitin Jain, who was the first to find that the DNA analysis absolved Lodha, and made his case before the High Court.

Though the police in Jhalawar have reopened the investigation into the case based on the Rajasthan High Court’s direction, they are yet to start enquiring how investigators got it wrong the first time around. “Now that we have reopened the case, we will investigate it again and if we find anything that shows police misconduct, we will register an FIR and proceed accordingly,” says Richa Tomar, Superintendent of Police, Jhalawar. She adds that there is no breakthrough in the case on finding Naina’s killers.

A confused village

The locals in Mogyabeh village, which is located in the dense forests along the border of Rajasthan and Madhya Pradesh, do not know what to believe anymore. While some of them refuse to revisit that chapter of the village’s history and continue to believe that Lodha killed Naina, others are no longer sure. Regardless, Naina’s rape and murder and Lodha’s subsequent conviction for it have changed the lives of the villagers forever.

On the one hand, Naina’s parents are livid that their closure came from the police’s apparent false claims. They insist on holding Lodha responsible for the death of their daughter till the police correct their mistake. “The police first came to tell us that Lodha was the one who killed Naina. We believed them, went to court, and eventually made our peace with the fact that the person responsible had been caught. Now the court is saying the police made a mistake. What are we to do? If it is their mistake, they should correct it and tell us who killed our daughter. Till then, we have no option but to believe that he (Lodha) killed her,” says Naina’s father.

On the other hand, Lodha’s family has been ostracised by the villagers. Friends of decades have refused to associate with them. Relegated to the outskirts of the village, Lodha’s family members keep themselves busy on their farms, where Komal Lodha used to help them. “We used to run a puncture shop in the village earlier. It was a very social place. Our friends used to chat with us there regularly. We had to shut shop and now barely anyone comes to visit us or talk to us. Every time we go into a store or pass by the village square, we get dirty looks. People keep calling us a murderer’s family and keep abusing us. After a point we considered leaving the village, but people we knew from nearby villages said we should stay put and that they would help us if needed,” Biramchand Lodha says.

The family has also been unable to get Lodha’s sister married because of the allegations levelled by the police against him. “Anyone who comes to see her eventually finds out about the case and then refuses to get their son married to our sister,” Biramchand Lodha says.

Instead of bringing them relief, the Rajasthan Police’s re-investigation into the case has only brought more trouble for this family belonging to the Other Backward Classes. “The police came back to question me a month ago. They kept asking me if the underwear recovered in the case was mine based on its brand, VIP. Then they asked me if I wear the same brand. But this is a popular brand. Half the men in the country probably wear this brand,” Biramchand Lodha says. He recalls how he was taken to the police station in 2018 and allegedly beaten up before the police concluded that he was not involved.

“Honestly, I do not believe that the police will get anywhere with the case unless they first talk to Lodha calmly, without intimidating him and check if he knows anything else about the perpetrators. It is possible that he was a witness to the incident and was subsequently framed,” Jain says. Now, a revision petition has been filed in the Supreme Court, challenging the top court’s order earlier this year upholding Lodha’s conviction, he says.

After the trial court convicted him and sentenced him to death in the case, Lodha approached the Rajasthan High Court with an appeal, where the conviction was upheld but the death sentence was commuted to life imprisonment. Pressing for the death penalty, the State of Rajasthan then moved a death reference petition in the Supreme Court. The apex court again upheld the conviction but sent the matter back to the Rajasthan High Court for deciding on the death penalty. It was during this hearing that Jain decided to appear for Lodha pro bono and sought the chance to present arguments with regard to the DNA evidence. Following this, a two-judge bench of the Rajasthan High Court concluded that the DNA evidence absolved Lodha. But since the High Court had been restricted by the Supreme Court to only look at the sentencing, it commuted the death sentence to life in jail and was unable to overturn the conviction. It directed the police to reopen the case. As a result, Lodha remains in jail, “convicted” of rape and murder, waiting for either his appeal to be filed or for his revision petition to be decided by the Supreme Court.

The name of the victim has been changed to protect her identity

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Printable version | Aug 13, 2022 11:03:45 am |