A woman model, also working as a part time bar attendant, at a fashion designer’s restaurant, was shot dead on 30th April, 1999 by a highly politically connected young man. The co accused, with him, were equally powerful people. The fault of the bar maid was, that she refused to serve him a drink, because it was past the prescribed hours for serving drinks. The main reason of the acquittal is that main eyewitnesses did not support the prosecution's charges. This resulted in the acquittal of the main accused, who is related to a late President of India and is son of a Minister in a State Government. Along with him 8 others, his co conspirators and harbourers got the benefit of doubt. Sister of the deceased victim says; "Money and muscle-power played an impor¬tant role. We couldn't do any¬thing, it's a terrible feeling. You can't fight against so much money and power.” Our judicial system is such, that unless you have an eye-witness, you can't expect a conviction. The system has to change, otherwise this will continue.

Commenting on the case a former Chief Justice of India Justice V N Khare whose landmark orders re-opened the Best Bakery case and set norms for dealing with hostile witnesses says that the same standards should have ap¬plied to the … mur¬der trial…"If a witness turned hostile during trial pro¬ceedings, it is the duty, of both the prosecution and the trial judge, to cross-examine (him or her) to as¬certain, whether the witness turned hostile because of greed or fear or any other ul¬terior consideration," …"If it is so, (the witness was influenced with money and/or fear) then the statement should be ignored and re-trial should be ordered. He added that "Our criminal jurisprudence, bor¬rowed from (the) British, (is) heavily loaded in favour of the accused ... in such a situation what I said in that (Best Bakery case) context was, (that) give protection to witnesses", He added that Indian Evidence Act provides for cross examination of "Hostile Wit¬nesses" and on this ground too the prosecution and the victim's family could move the high court. We talk of ourselves as a country of great traditions, where a model earning some extra money by working as a bar tender at a swinging party throbbing with people is shot point blank by a person who is refused a drink, in the presence of dozens of people if not hundreds of them. Yet there is no body with guts, to depose about this kind of reckless criminality. I must add that if the trial of a case lasts nearly six to seven years, as happened in this case, it is only the witnesses, with a Herculean stamina, who would be willing to come to the court repeatedly and depose at various stages of the case, and also be subjected to humiliating cross examination.

Turning hostile and giving a good bye to the truth is not a new phenomenon in our country. There is no punishment for perjury or telling lies or changing statements. It is a common phenomenon, which the lawmakers are not willing to accept and rectify. It should not also be expected, otherwise, as out of 542 MP’s of the present Parliament, as many as 119 at the time of filing affidavits before contesting and winning elections had disclosed, their involvement in some case or the other offences. With a substantial number being involved in cases, it is unfair to expect them to put a noose around their own necks and make it difficult, if not impossible to manipulate witnesses. Says Andre Gide, French thinker and writer “Everything has been said already, but as no one listens, we must always begin again.”

The same is true of Indian Criminal justice system, which is in shambles. With huge pendency, as the figures below will show, it is no surprise, that the murder of the model cum bar maid took nearly six years and it could have been more.

Backlog of cases at various levels at the end of 2005 was:

• 33,635 Supreme Court
• 33,41,040 High Courts
• 2,53,06,458 Subordinate Courts

The Supreme Court of India has 26 judges; there are 21 High Courts with a total sanc¬tioned strength of 719 judges; and there are a total of 12,360 subordinate courts function¬ing in India. On an average in every year the Supreme Court of India decides about 40,500 cases out of 42,000 cases filed, the High Courts decide 11,23,500 cases out of 12,41,000 cases, and the Sub¬ordinate Courts decide 1,32,22,000 cases out of 1,42,29,000 cases filed. In spite, of such high disposal the pendency figures have been rising due to increasing influx of cases.
As toning up, of the criminal justice system does not fetch any votes and on the contrary, it may work as a brake to the tainted politicians, reforming the system is not a priority with the political class.
The present President of India, himself has observed, that there were instances of court cases dragging on for more than 10 years. The reason for the delay, include the inad¬equate number of courts, inade¬quate number of judicial officers, dilato¬ry tactics by the litigants and their lawyers who seek frequent adjournments and delay in filing documents.

The backlog of cases can be cleared through age analysis of cases, alternative dispute redres ¬sal mechanism, fast-track courts, introduction of e-Judiciary, capacity enhancement and con¬tinuous training of Judges, lawyers and the judicial staff. A grouping of cases, similar from the legal point of view, could be placed before a particular judge or bench for dis¬posal.

The problem of witnesses and even complainants turning hostile during a tri¬al is going to persist unless the Government shows will to tackle the issue.

Suggesting a way out, the Law Commission in its 178th Report had suggested that for all serious offences punishable with 10 years or more of imprisonment, the statement of important witnesses, be recorded under oath at the earliest by the magistrate concerned before commencement of trial. Apart from that there is a ques¬tion about the protection of witnesses. Witnesses turn hos¬tile to avoid the wrath of the high and mighty, whether he is a politician, an extortionist or a don. Intimidation and vulnerability of witnesses is an issue, which has been neglected and left untackled.

Several countries around the world have an extensive witness protection programme, but in India, this is not even being thought of as an option. Witnesses were aware that they have to live in the same community and deal perhaps with the same people after the case is over. So they first think of protection from post-trial persecution.

When it comes to examination, of the failures of high profile cases, the so called experts blame the prose¬cution and investigation for its failures, to bring the guilty to the book. But no amount of thorough investigation can make up for an eye witness, or witnesses turning hostile. Says a law professor, "Our system is such that while dealing with an influential person, the law is applied differently, as compared to the common man, be it at the time of ar¬rest, investigation or trial,"

Prolonged trials force witness¬es to lose interest or turning hostile. "People get fed up running around in courts and waiting for justice," he says. "The longer a trial is, the greater are the chance of witnesses failing to recall the incident. They then get exposed during cross-exam¬ination. This is an outcome of procedural delays caused by our system," says a senior advocate. Ultimately, when all is said and done, it boils down to the stark truth, that it all depends upon the leadership and the Government, as to what kind of criminal justice system it wants to give to the people of India. Must many more Jessica Lals die before the Government realises the mess the country is in. It is not too late even now to heed to the wake up call for reforms in the system.

Joginder Singh, IPS (Retd.) Former Director, CBI, India, 123-124, Nav Sansad Vihar, CGHS, Sector 22, Plot Number 4, Dwarka, New Delhi 110075 Telephone; 28052742, Number and Address, in Punjab Jalalabad (west) District; Ferozpore, Pin code; 152024, Telephone; 01638 250072, Mobile 98107 55087, Punjab Mobile; 94176 93573
Email: jogindersinghfdips@rediffmail.com

Joginder Singh

The views and facts stated above are entirely the responsibility of the author and do not reflect the views of this Association in any manner.