A travesty of justice

Delayed trials, an unsympathetic law enforcement machinery, bribery, corruption, lack of security to the victims and abuse of power - is it any wonder that witnesses retract their statements before the court, asks GEETA RAMASESHAN.

WHEN Jessica Lall, a model in New Delhi, was shot dead at a party for refusing to serve a drink, it looked like a crime that even a child could solve: the kind that is called an "open and shut" case. The type that investigating officers dream about. There was no need of circumstantial evidence, which clever defence lawyers could use to their client's advantage. There were lots of eyewitnesses, many of them being Jessica Lall's friends and colleagues.

But two years after the event, one is not sure. As the trial proceeds, most of the "star witnesses" have turned hostile. Consider the fact that her colleague who filed the First Information Report identifying the accused, has now denied that the accused fired the shot. Following his evidence, two other witnesses have also turned hostile putting a spanner in the works of the prosecution who will now have to look into circumstantial evidence. Incidentally, the two accused were sons of prominent politicians. But that is not all.

In January 1999, a few months before Jessica Lall's tragic death, Sanjeev Nanda, a grandson of a former naval chief Admiral, rammed a BMW straight into a police checkpost killing six people on the spot and injuring another. The lone survivor and crucial eyewitness to the case, who was also seriously injured, has now turned hostile. He has altered his statement before the court and said that it was a truck that hit them not a car. Media reports allege that the families of the accused purchased the silence of the witness. And how was this done? Manoj Mallick, the witness, who was incapacitated due to the accident was said to have been flown to Delhi from Orissa to give evidence. He is also said to have been employed in a firm belonging to the family.

The two cases involve the rich and the (in) famous. There are plenty of these. But witnesses are turning hostile in frightening numbers in criminal cases. Under the Criminal Penal Code (Cr.P.C.) a hostile witness is one who, during the course of his evidence before the court, denies his statements given earlier. This can even be denial of the events in the FIR, as in Jessica Lall's case. Put bluntly, a hostile witness can be said to be committing perjury or giving false evidence which is an offence under law.

However, witnesses turn hostile due to a number of reasons. Most are often threatened and intimidated. Since trials can drag on endlessly, witnesses live in constant fear of the accused who are often released on bail. Delayed trials also result in the witnesses not being able to recollect events as and when they appeared when the crime happened.

Another reason is the tendency of the investigating officers to exaggerate the events during investigation with the intent of making the case stronger. This puts the witness in a dilemma while facing a belligerent cross-examination by the defence lawyer. To compound this, prosecutors do not spend much time with the witnesses, building their confidence or guiding them to face the cross-examination. Neither are the police sympathetic to their plight. Class and caste bias operate at all levels.

To give another example of how witnesses are forced to turn hostile, here is another case that, however, had a good ending. In 1989, Thekkamalai was arrested on a charge of theft. After he was beaten up and tortured, his wife, Lakshmi, was summoned to the police station. She was raped by a policeman and her nose ring, the only item of jewellery she had, was taken away by another. Lakshmi gave a complaint and, as a case of custodial rape, it was probed by the collector who was the first witness. But, Thekkamalai and his wife, who were dalits and lived by repairing leather goods, were harassed by the accused and pressurised by other powerful people including a former public prosecutor. Thekkamalai and Lakshmi were constantly intimidated. They complained to the government but nothing happened and the case dragged on.

Finally, a day before their evidence, Thekkamalai and Lakshmi were given Rs. 30,000. On the day of the hearing, they were taken to the court in a cab by friends of the accused. Both turned hostile and denied that the offence or rape took place. This was in December 1993 - four years after the offence took place. However, with the help of human rights activists, Thekkamalai and Lakshmi rushed to Chennai and filed an application to quash their evidence. In their application before the High Court, they narrated the sequence of events that forced them to retract their earlier statement. They agreed to return the money received. In a "rare" case, the Madras High Court quashed their "hostile" evidence and directed the trial court to give them a fresh opportunity to give evidence. The case finally ended in the conviction of the accused last year.

The common law system which we have inherited is concerned with the individual case at hand. Judges have to deal only with the guilt or innocence of the accused before them. However, since there is extreme abuse of power in our system, common law falls short in effective implementation of justice.

On the other hand, under the inquisitorial system followed in Europe, courts are not merely concerned with the case before them but are bound to try to arrive at the truth. Judges can question the witnesses on their own during the course of the trial. Thus the scope is much wider.

The situation has reached such a stage that, in cases relating to less grave offences, there are certain "stock witnesses" who give evidence in trials. These witnesses are always around in courts and everyone knows who they are. The problems in this instance are compounded by the fact that people are not willing to come forward or are discouraged to give evidence in cases while the police claim that they have to make do with whoever is available.

The scenario is indeed bleak. Delayed trials, unsympathetic law enforcement machinery, bribery and corruption, total absence of any kind of security to the victims and extraordinary abuse of power by the moneyed and powerful. Is it any surprise that witnesses are turning hostile?

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