February 25, 2006
Now that Delhi High Court, taking suo motu notice, has sought from the police the details in the Jessica Lall case, there’s finally some reason for hope: will there be a second shot at justice in a case in which all the nine accused have been acquitted by a lower court? But I remember when news of the Jessica Lall murder first broke in 1999, and the circumstances of the case as well as the persons involved in it came to be known, I had predicted to friends that nothing would come of it, and that the guilty would never be punished. This was not cynicism, but an understanding of what the Indian criminal justice system has come to. Nearly seven years later, the acquittal of the accused has added this murder to the string of highly publicised crimes involving the rich and powerful — of which there have been so many in the national capital alone — in which the perpetrators have gone scot free.
Procedural infirmities and investigative lapses have riddled the case from the very outset, and the conduct of the police, as well as of the very large number of luminaries who were present at the scene of the crime when it occurred, has been worse than disgraceful, though far from unexpected. It is useful to recall that an internal inquiry into evidence tampering in the case by the then joint commissioner, crime branch, K.K. Paul — who is now Delhi’s Police Commissioner — had concluded: ‘‘There has obviously been a conspiracy between the accused and certain officials, which is to be investigated’’. But there is no suggestion that such an investigation was ever carried out.
The obvious investigative lapses are simply too many to enumerate here, but it is apparent that there was significant tampering with physical evidence and a failure to carry out a scientific investigation. There was no proper examination of the scene of the crime; a failure to systematically recover and tag material evidence — to the extent, reports suggest, that the clothes worn by the victim at the time of the crime were ‘lost’; a failure to send out forensic parties in time to places where supportive and circumstantial evidence could have been recovered; a failure to properly examine the getaway vehicle for evidence linking it to the scene of the crime, and to establish the route taken by it thereafter, to the point of recovery. Subsequently, we find the most extraordinary failure to reconcile the limited (and dubious) forensic evidence with the prosecution case, or to challenge such technical evidence where it contradicted the prosecution case. There was also the gross failure to follow up on false and hostile testimonies to independently establish, in cases where physical evidence was available, the actual facts.
At the end of the process, consequently, the entire prosecution hinged on eyewitness accounts, a particularly bad bet under the circumstances of the case. In the first instance, the ‘hostile witness’ is not something that has emerged overnight on the criminal justice scene here — particularly in cases involving high profile individuals, but also in a large number of less visible cases, as judicial processes drag on interminably and witnesses simply give up in exhaustion or are bought over, intimidated, or otherwise influenced. But even if 99 of the 100 witnesses in the Jessica Lall case had not turned hostile — and the last witness had not given a testimony that did little to help the prosecution — the case would have collapsed. The incident occurred late at night, in the midst of drunken revelries, with a large and presumably noisy group of people dispersed across an extended venue. A .22 does not make much noise, and would barely have been heard above the noise of conversation and the general din. To pin the prosecution on the presumption that there would be some clear-headed, sharp-eyed eyewitnesses who would authoritatively reconstruct the sequence of events and establish the identity of the perpetrators, would be a cardinal error. Even if the witnesses had not resiled, no witness could have withstood a cross examination by a competent defence lawyer — of whom the accused had several — who would have used the prevailing confusion and the free flow of alcohol to create ‘reasonable doubt’ over any account that a witness may have screwed up the courage to present. Supportive forensic and circumstantial evidence was, consequently, crucial in this case, and it is precisely in this that the gravest deficiencies have been found. It is clear that the police have failed demonstrably to establish a chain of circumstances that would be incontrovertible on grounds other than the missing testimonies.
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Under the circumstances, it is somewhat mystifying that the court should have concluded that the Delhi Police ‘‘had decided to frame the accused Manu Sharma’’ for Jessica Lall’s murder, and that the police sought to ‘‘create’’ and ‘‘introduce false evidence’’ against Sharma. If anything, the court should have come down heavily on the police for its investigative lapses, for the loss and destruction of evidence, and for visible efforts to impede proper investigation and shield the accused.
The truth is, the entire criminal justice system, from the investigative process to its judicial culmination, is in a state of collapse, and political interference at all levels has undermined the scope of an independent quest for justice — not just in a specific case, but also in terms of the broad circumstances within which the system operates.
Worse, we are still examining crimes in a manner that we did over a century ago, with hardly any capacities for modern and scientific investigation. The type of scientific aids available to police forces in countries that take criminal investigation seriously is something that our policemen cannot even imagine. And the lapse, here, is not that of the police alone; the blame lies with a very large number of national institutions, leaders, officials and citizens in a wide variety of walks of life, who are responsible for improvements in the criminal justice — investigation, prosecution and delivery — systems. The improvements that are needed are costly; they require money, training, qualified manpower, and strong legislative support. The sporadic media furore notwithstanding, unless these large investments are made, miscarriages of justice — so obvious in the Jessica Lall case — will continue to be repeated.
The writer is former director-general of police, Punjab
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