Criminal Flaws

The public outrage at the judgement in the Jessica Lal murder case has opened the debate on reforming India’s criminal justice system that is partly responsible for the low conviction rates
By Neeraj Mishra
 
  PICTURE SPEAK
LIGHT OF HOPE: Jessica Lal case has
become a rallying point

One shocking trial court verdict has given Jessica Lal immortality. Ever since Justice S.L. Bhayana pronounced Manu Sharma not guilty in the murder of the former model, she has become a symbol of justice denied, a rallying point for collective national anger and disgust, an example of the serious flaws in the judicial system, and, above all, a mute but powerful weapon against the misuse of power and influence. The last is still to be put to the test in a court of law but the very fact that the courts have also prodded the Delhi Police into reopening the investigation into Jessica’s murder makes this a landmark case, a litmus test of whether the criminal justice system is capable of correction. 

The message is forceful enough. Millions across the country have rallied behind Jessica for justice, held candlelit vigils and protest rallies. In one corner of Delhi’s India Gate, a retired major has been camping for days with his wife, demanding justice for Jessica. The public outcry over the judgement, in which all the accused got away, has forced into the glare of public attention the Criminal Law (Amendment) Bill 2003, drafted in 2000 and introduced in 2005. The absurdity of the evidentiary process, which resulted in no one having witnessed a murder in a room full of celebrities, has stretched collective patience like never before and brought under intense scrutiny the legal flaws in dealing with hostile witnesses, punishment for perjury and the need for a witness protection programme.

   Jessica lal case
  PICTURE SPEAK
VISIBLY INVISIBLE: Manu Sharma

Crime: One-time model Jessica Lal shot dead in front of 600 people at an unlicenced bar in Delhi in 1999. 

Main Accused: Manu Sharma and Vikas Yadav

Chargesheet Filed: On August 3, 1999

Number of accused: 11

Number of Witness: 139

Number of witness turned hostile: All

Verdict: Not guilty

 

Jessica’s is not the lone case. A host of high-profile cases have brought into sharp focus the courts’ inability to convict. Whether it is the murders of Nitish Katara and Priyadarshini Mattoo or poor people on sidewalks being mowed down by a Sanjiv Nanda or a Salman Khan, the high-profile accused literally seem to be getting away with murder, while in the Best Bakery case, key witness Zaheera Sheikh ended up becoming a pawn in the witness purchase game. “Crime is a low-risk, high-return business these days,” says former solicitor general K.T.S. Tulsi.

The statistics available with various courts, police and the National Crime Records Bureau are startling. In 1961, the conviction rate in crimes like murder and rape in the country was about 20 per cent. It dropped to 6.4 per cent by 1998 and sank to an abysmally low 2.4 per cent in 2004. In Delhi alone, of the 106 rape cases brought to courts between 2003 and 2005, only two accused received sentences.

In none of the high-profile cases has any of the accused been punished, though, some cases date back to 1995. In the Jessica case, many senior police officers and advocates of the Supreme Court say that the trial court should have looked into the loads of circumstantial evidence, from the presence of Sharma at the site of the crime to his missing revolver and cell phone records.

Legal Loopholes
The Criminal Law Amendment Bill 2003 seeks to introduce provisions that strengthen prosecution
Hostile wITNESS
Existing law
Under Section 164 of CrPC a statement “may” be made before a magistrate but is usually not done. Proposed
Mandatory recording of evidence for offences punishable with seven years or more before a magistrate.  In US/Europe
The police and the district attorney’s office are responsible for witness protection. 
PERJURY
Existing law
Section 344 of CrPC envisages summary trial for perjury but the existing provisions are rarely used. Proposed
Section 344A added to check witnesses turning hostile under threat, inducement or own volition. Punishment of two years
prescribed.  In US/Europe
Perjury is treated seriously in most countries. 
Influencing WITNESS
Existing law
There is no punishment for anyone who threatens or induces witnesses. Proposed
Section 195A of IPC recommends seven-year imprisonment for threatening or inducing a witness.
 In US/Europe
Severe punishment and monetary penalties for those who influence witnesses.
 
Plea Bargain
Existing law
Under CrPC and IPC the only provision is for compounding an offence or taking a lenient view. Proposed
New chapter 21A in CrPC gives an opportunity to the accused to plead guilty for a lesser sentence.
  In US/Europe
Plea bargain is the standard procedure in district attorney’s office and courts for out-of-court settlement.
 
CROSS-EXAMINATION
Existing law
Under Section 154 of the Evidence Act there is no provision for cross-examining a hostile witness. Proposed
New provisions in Section 154(2) re-emphasises the right to cross-examine a hostile witness.
  In US/Europe
Witnesses can be called, recalled and re-examined at any stage.
 

 

In a sense, Jessica has already gained some revenge, if not for herself, then for thousands of other victims. The Delhi High Court has now forced the police to reopen the case but that cannot become the norm. Trial courts have consistently set criminals free for lack of evidence as witnesses turn hostile. Sometimes it is an unholy collusion, at other times, just incompetent investigation and prosecution.

The Criminal Law (Amendment) Bill was finalised during Arun Jaitley’s tenure as Union law minister. And though there is a difference of opinion in the legal fraternity over introduction of stringent punishment for witnesses turning hostile, the current mood appears to be in favour of making witnesses stick to their statements made to the police under Section 164 of Criminal Procedure Code (CrPC). Under a proviso in Section 161(3), all statements made to the police will be forwarded to a magistrate and the signing of the statement will be made mandatory. Most importantly, however, a new Section 195A in ipc seeks to punish those who threaten or induce witnesses. Though the Supreme Court has sentenced Zaheera to a year in prison for perjury, these provisions have rarely been used. The amended CrPC takes a serious view of perjury and prescribes a summary trial and up to two years imprisonment. “The upa is dragging its feet over the Bill, though it is urgently required,” says Jaitley, a Supreme Court lawyer himself.

   Hit-and-run case
  PICTURE SPEAK
ROUGH RIDE: Salman

Crime: In September 2002, actor Salman Khan’s Land Cruiser allegedly rammed into a bakery at Bandra, killing one person and injuring four others.Main Accused: Salman Khan. The actor is an accused in two other high-profile cases.

Chargesheet Filed: In November 2002

Number of Witness: 139

Key witness: The case hinges on gunman Ravindra Patil who has been arrested.

Status: Trial in progress. Patil stands by his statement that Salman was drunk while driving.

 

That is easier said than done. Tulsi differs on the utility of punishing witnesses for turning hostile. “It makes no sense given the time taken in our courts and the absence of a well-established witness protection programme.” There is also the fear that the police may misuse the provisions. In both England and America, for instance, there is a well-established system where it is the responsibility of the police to protect the witness. They may have to go to the extent of relocating witnesses and even changing their identity after the case is decided. Tulsi says mere threat of punishment cannot be enough as it can be matched by a similar threat from the accused.
Police officers have their own litany of woes. “Under Section 162(1) of CrPC, a statement made before the police by the accused or a witness is of no value as evidence in the court,” says Yashovardhan Azad, a senior ips officer. Others feel that political interference at every stage results in cases being weakened. Delhi Police is technically free of political interference as it reports to the lieutenant-governor and the Union Home Ministry and claims a high rate of 72 per cent “solved” cases. But its overall conviction rate is as low as 28 per cent. “The difference in approach between the Indian police and elsewhere is stark. In Japan, for instance, the conviction rate is 99 per cent because the police is expected to pursue its case vigorously right till the end,” says Diljeet Titus who heads the legal firm Titus and Co. Even in systems where the district attorney directly supervises prosecution, conviction is very high, while public prosecutors in India are often found short on performance.

   Priyadarshini Mattoo case
Crime: Mattoo was raped and murdered at her home in 1996.
Main accused: Santosh Singh
Chargesheet filed: On April 11, 1996
Number of accused: One
Number of hostile witness: 2
verdict: Not guilty

>Are the changes proposed by the 2003 Bill then a step in the right direction? Or is it time to re-evaluate our English Common Law-based system. The Justice Malimath Committee, which submitted its report in March 2000 that became the basis of the Bill, also tried to elicit response from various high courts regarding the utility of the present adversarial system of justice, where the prosecution has to prove the guilt of the accused beyond doubt and the latter has the right to remain silent. “The defence has to just puncture holes in the prosecution story with the connivance of the police,” says Titus. The accused can wait for the trial to go on and on till the witnesses are worn out, silenced or bought. Worse, under the present Evidence Act, hostile witnesses cannot be cross-examined.

   Nitish Katara case
Crime: Katara was abducted and murdered in February 2002
Main accused: Vishal and Vikas Yadav
Chargesheet filed: In March 2002
Number of witness: 20
Key witness: Bharti Yadav was forced by family to go to London
Status: Vishal out on bail

The better alternative, according to legal experts, is the inquisitorial system devised in France. Under it, unearthing the truth is the prime goal. If a murder takes place, the court will not rest at merely finding out that Sharma is not guilty. He will not just have to give his version of events, even the burden of proof is not completely on the prosecution. At least two high courts in the country had suggested to the Malimath Committee that adversarial system had failed and maybe it was time to switch to the French method. There is a successful precedent in western Australia, which switched from the English Common Law to the French system.

Malimath has also borrowed from it to make the suggestion about abridging the right of the accused to remain silent. He also wants the victim’s family to have a role in prosecution. Tulsi argues that the separation of the civil and criminal wings in the high courts and the Supreme Court will be more useful. At present, the average time taken to decide a murder or a rape case is six years and, at least, three different judges hear the same case. Separation of civil and criminal wings would lead to greater specialisation and faster disposal.

“There are enough laws but there is no alternative to national character. People have to be willing to stand by the truth,” says lawyer Pinki Anand. In that sense, the national outrage and the media focus on the Jessica Lal case may have given the arguments for a change in criminal justice procedure an added urgency. If any of the proposed amendments are put into practice, Jessica’s death will no longer be as meaningless as it was that tragic night in a south Delhi pub.

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