'Can't Say Trial Was Vitiated By Adverse Media Coverage': Rajasthan High Court Upholds Asaram's Life Sentence In 2013 Rape Case

The Rajasthan High Court on Wednesday (May 27) upheld an order convicting and sentencing Asaram to life imprisonment for sexually harassing and raping a minor in his Jodhpur Ashram in 2013, while setting aside his conviction for gang rape and aggravated penetrative sexual assault.

In doing so the court rejected Asaram's argument that the trial was vitiated by media propoganda. The court also remarked that it cannot grant any indulgence to Asaram over his age as it cannot ignore the survivor's voice, who "carries an erasure, of her dignity, of her identity, of the self she was before the moment which not only completely destroyed but cleaved her life into a before and an after".

A division bench of Justice Arun Monga and Justice Yogendra Kumar Purohit in its order held:

1. The court upheld his conviction for offences under Section 370(4)(trafficking a minor), 342(wrongful confinement), 509(Word, gesture or act intended to insult the modesty of a woman), 506(criminal intimidation), 354A (Sexual harassment and punishment for sexual harassment) and 376(2)(f) (whoever being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman) IPC and Section 23 JJ (Care and Protectionof Children) Act.

2. The court also convicted him for offences under Section 376 (rape) of IPC and Sections 3(Penetrative sexual assault) and 4(punishment for penetrative sexual assault), 7(sexual assault) and 8(Punishment for sexual assault) of POCSO Act.

3. The court said that the Punishment of greater degree under Section 376(2)(f), i.e.,life imprisonment which shall be for the remainder of his natural life alongwith the fine as accorded by the trial court to Asha Ram was upheld, without any other separate sentence/punishment for theother offences i.e. Sections 354A, 509, 376 of IPC and Sections 3/4 and7/8 of POCSO Act though held guilty, as above.

4. It however set aside his conviction for offences under Sections 120-B(criminal conspiracy), 34(common intention) and 376-D(gang rape) IPC,Sections 5(g)(gang rape of child)/6(Punishment for aggravated penetrative sexual assault) of POCSO Act.

Can't accept trial vitiated by adverse media propoganda

In its 90 page order the bench rejected Asaram's argument that the trial was vitiated by the "adverse media propaganda against appellant" (Asaram) and that the trial court failed in his duty to restrain such adverse media propaganda.

It said: "If the appellant was aggrieved by any adverse media propaganda, it was open to him to take recourse to appropriate legal proceedings for preventing the same. If he did not take recourse to law for this purpose or failed in any such attempt, the blame cannot now be laid at the door of the learned Trial Court, who decided the case on its merits".

The court said that the Trial Court took pains and fully evaluated and analysed the evidence from every angle and recorded its conclusions consistent with record and relevant law. The court said that the trial court passed the order after due application of mind.

The court noted that the appellant Asha Ram @ Ashumal was a religious guru, 'Bapu' as he addressed. The court noted the survivor's father's testimony which it said, showed that "he got influenced by him and had taken Deeksha at Ahmedabad".

"He had served the appellant for 11-12 years by all means, used to give him at least 10% of his income and sometimes even more.In a satsang...he (appellant Asha Ram @ Ashumal) had told the audience that children who study in Gurukul would make progressand rise. They (parents) had got their daughter and younger son admitted to Gurukul for good educationand sacraments (sanskaars). His daughter was to be admitted in 8th class. However, as the seats in that class were full, she was admitted to the 7th class," the court said.

It noted that sufficient evidence (unanimous depositions of the prosecutrix, mother and father both) was led by the prosecution to show that parents of the prosecutrix had taken Deeksha from the appellant and their daughter, the prosecutrix, took Deeksha in 2006 from Asaram.

Devotion has a peculiar power to suspend reason

The court observed that quite often devotees of religious gurus fall prey to such gurus as it seemed to have happened in the present case, noting that the survivor 's parents were Asaram's staunch devotees and had great faith in him and his advice. It said:

"Obviously, since taking Deeksha, they were his staunch devotees, had been deeply indoctrinated, had held appellant Asha Ram @ Ashumal high in their esteem and had great faith in him and his advice. Faith is a powerful force. Powerful enough to suspend even the sharpest of minds. Devotees of religious gurus will often embrace,without question, the most superstitious pronouncements and irrational counsel, including tales of ghosts and the supernatural. What is more striking is that even prudent, scientifically minded individuals are not immune: when they repose deep trust in another, reason quietly yields to belief. This surrender of rationality is all the more pronounced when a person stands at the edge of despair, trapped in crisis, overwhelmed by difficulty, and desperately searching for answers that logic has failed toprovide. It is precisely in such moments of vulnerability that the irrationalfinds its most willing audience. Devotion thus has a peculiar power to suspend reason. Quite often, devotees of religious gurus would fall prey,without questioning those in whom they have faith. As seems to have happened in the case in hand," the court said.

The court said that in the present case, when the parents of the girl were informed that evil spirits had taken over their daughter and she needed "ghost healing", it did not seem improbable if the survivor and her family accepted and acted upon the story of the prosecutrix being haunted by ghosts and had gone to Asaram for ghost healing.

Can't discard Survivor's testimony

On the actual incident, wherein the girl alleged that Asaram had committed the offences against her in his kutiya at night, the court said that her testimony was not shaken in cross examination.

It further observed:

"At 10:30 in the night, the kutiya/room held only two souls. The appellant/Asha Ram and the minor victim. The door was shut. The boltwas drawn. The lights were extinguished. Within those four walls, in thatdarkness, only they knew what transpired. No third eye witnessed it; nothird voice could speak to it. In such circumstances, to demandcorroborative ocular evidence before believing the victim would be todemand the impossible. That would be punishing her for the very isolation her abuser engineered. And then there is the question that answers itself: why would Asha Ram summon a young girl alone to his room almost in the dead of night? The question is not rhetorical. It is damning. Innocence does not seek darkness and bolted doors. The intent writes itself across these facts in letters too large to ignore. The facts need no embellishment. They speak. Loudly, clearly, and with the force of truth"

The court said that the survivor's version could not be discarded or doubted for want of ocular corroborative evidence and for want of independent witnesses to a crime committed in "deliberate secrecy".

The court said that the girl while recording of her statement, had also stated that the appellant was kissing her repeatedly and it was after one to one plus half hours, that he had left her, however she had not specified which part/s of the her body had been kissed by him.

It said that considering that the FIR had been lodged under Sections 375/376 IPC, it would "make a world of difference" to the case depending on whether the victim was also kissed on her vagina, anus, urethra, which attracted Sections375/376 IPC or it was kissing simplicitor on other parts of the body, which would not attract the said offences.

"The prosecutrix - a young child, was unlikely to know of the distinction in law between kissing of specific partsof body and the different consequences.Such being the situation, we are of the opinion that before concluding her statement, the learned Magistrate was expected to clear the position about this material fact by himself questioning the prosecutrix as to which specific part/s of her body had been kissed; and depending upon her answer, to elicit further clarification appropriately, ifnecessary. That was not done. The omission, in our opinion, was quite significant which substantially and materially diminished the sanctity and considerably reduced the evidentiary value and worth of the statement under Section 164 CrPC as recorded.

Intrinsic reliance cannot, therefore, be placed on it to contradict the sworn testimony of the prosecutrix in Court to the effect that the appellant had, inter alia,disrobed her and kissed her vagina. To be noted here that in cross-examination on 12.06.2014, the prosecutrix, no doubt, admitted that in her statement (underSection 164 CrPC) before the Learned Magistrate, the fact of kissing onher private part was not recorded, but had volunteered to state that it had been recorded that the appellant (Asha Ram @ Ashumal) had molested her forcibly for about one to one plus half hours, he was kissing and hugging her and that she thought that 'kissing every where' included'kissing of vagina'. On this point she was not cross-examined further," the court said.

The court observed that after calling the prosecutrix inside the kutiya, the various offences had been committed inside the kutiya by Asaram, inter alia, by applying his mouth to her vagina and thus ingredients of Sections 3 and 4 POCSO stood satisfied.

Sentencing

The court also agreed with the trial court's order denying any leniency to Asaram and said:

"The appellant was 73 at the time. He is now 86. He thus stands before us bent by age and burdened by ailment, imploringa fresh look at his plea for leniency. We have considered his plea and applied our mind. We are unable to grant any indulgence, since in the shadow of his frailty cannot justify ignoring the victim's voice. Quiet. Devastating. Irrefutable. To ignore it would be to shake society's faith inthe criminal justice system, and send wrong a message no court mustever send, least of all when the perpetrator hid behind the cloak of a self-styled godman.
Aside above, victim's voice too demands to be heard.

She does not come to this Court seeking sympathy but justice. She comes bearing an inconvenient truth: that for the Appellant, imprisonment is only physical. His confinement has walls. Her sentence has none of these. No warrant was ever issued for it. No court ever pronounced it. Yet, it was imposed upon her the moment this godman chose violation of law and moralityover his vows. The sentence served upon her soul is lifelong, written not in ink, but in indelible anguish. It knows no remission, no parole, no appellate remedy. For, a rape victim does not merely carry a wound. She carries an erasure, of her dignity, of her identity, of the self she was before the moment which not only completely destroyed, but cleaved her life into a before and an after. The violation does not end when the act ends. It reverberates, through every moment of silence, every crowdedroom, every ordinary day made unbearable by the indelible memory of it".

Noting that Asaram was on interim bail, the court cancelled the same and directed him to surrender and also directed that warrants for his arrest be also issued.

Case title: Asha Ram v/s State

D.B. Criminal Appeal (DB) No. 123/2018