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Jessica's real culprits are those
who didn't speak up
February 22, 2006
This was not a hit and run case, or a case where the killers were anonymous or unknown. This was not a riot situation where murders are committed by faceless people. This was murder at close range, in a crowded restaurant, where everyone knew everyone else.
One of the main problems of criminal trials -- that is proving the identity of the accused -- could not have been an issue at all. Indeed the accused were from among the rich and powerful elite of the country. And that is where the problems of the legal system begin.
The reasons for the acquittal as we understand from the judge are as follows:
1. The weapon from which the shots were fired was not recovered.
2. The two cartridges that were recovered were not fired from the same weapon.
3. The eyewitnesses turned hostile.
4. The chain of circumstances was not proved.
The acquittal illustrates all that ails the criminal justice system, not only for Jessica Lal but for many others. There can be no doubt that the police did not do a proper investigation. Not to recover the murder weapon is asking for trouble. Then, the forensic report does not support the theory that only one weapon was used.
If it is true that more than one weapon was used, there could have been more than one accused who fired the fatal shot and how does a judge come to the conclusion, who fired the fatal shot?
As Jessica Lal's sister says with resignation, the day the forensic report came in she knew that the case was lost. Our institutions have such low credibility that it is difficult to come to any conclusion if the reports are manipulated.
If they were not manipulated, and if indeed the shots were fired from two different weapons, then that is a huge failure of investigation for which the police must take full responsibility.
But let us look at the more devastating aspects of the case -- witnesses turning hostile. This is now the preferred method of seeking acquittals for the rich and the powerful. Turning hostile, basically means buying silence. Silence can be bought for many reasons, for a price, or for fear of reprisals.
When the accused are powerful, it could be a combination of both. There is after all the factor of social bonding, you do not give evidence against your own friends. It was after all a party where everyone knew everyone else.
But the question still remains -- was there no other outcome possible? What ails the legal system, when times without number, it comes up with acquittals, especially when the accused are powerful?
Strangely enough, Jessica Lal's sister hit the nail on the head when she said that there is too much reliance on eyewitness evidence in our system and not enough reliance on circumstantial evidence.
Methods of crime investigation have not improved; indeed there is no desire to investigate in a scientific manner. Witnesses will and do turn hostile. But investigations must proceed independently of eyewitnesses to draw conclusions based on a chain of circumstances that led only to one conclusion.
A very major question that begs an answer is why was Manu Sharma granted bail? This is what enables witnesses to turn hostile, the opportunity provided to the accused to access witnesses.
Tampering with the prosecution is not taken seriously. There has been no investigation into the question that who caused the witnesses to turn hostile. Surely, it is time for judges to commence such investigations, before an acquittal can be pronounced.
There is no witness protection programme in the country. A law commission report gathers dust. Petitions files in the Supreme Court over the Gujarat killings asking for witness protection programmes also gather dust. There is a lethargy over the questions, a dangerous lethargy which will cause people to settle their scores outside court.
This is not just an imaginary scenario. It has happened in Nagpur, when women walked into a courtroom and killed a person accused of rape inside the courtroom out of anger, knowing that he would be let off, yet again, by the police and the courts.
These wake up calls have gone unheeded. But perhaps the most pathetic aspect of the case is the failure of civil society, the failure of Bina Ramani's friends to rise to the occasion and give evidence against the accused.
There were many eyewitnesses to the killing. They chose to look the other way. This is social bonding at its worst. If there are any true accused in this case, it is they, those who saw the killing but refused to come forward and give evidence.Indira Jaising is a distinguished Supreme Court lawyer.