October 28, 2020
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'Criminals Would Continue To Be Acquitted'

The former Chief Justice argues that changes in criminal law are urgently required. But the former Delhi Police Commissioner points to the conviction in the Tandoor case to argue that if the police do their job, justice can be meted out despite the p

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'Criminals Would Continue To Be Acquitted'
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-0001-11-30T00:00:00+05:53

The transcript of BBC Hindi Radio special programme Aapki Baat BBC Ke Saath with former chief justice V N Khare and former Delhi police commissioner and MP Nikhil Kumar. Model Jessica Lal’s sister Sabrina and cartoonist Irfan Hussain’s brother Rizvan also participated in the programme.

Nagendar Sharma: Why is there an impression in the country that the judiciary and the police both have time and again failed in punishing hardened criminals who often commit such serious crimes as murders in full public glare and still manage to get away ?

Justice V.N. Khare: The criminal laws of our country are nearly 150 years old and were framed when Britishers were ruling over us. After independence we have undergone so many changes – there have been social changes, political changes, economic changes, behaviour changes. Our values have considerably fallen and we live in a materialistic world now. Therefore, changes in criminal laws are compulsory.

Nikhil Kumar : If such an impression has been created, I do not blame the public, since certain happenings do give such a widespread impression. I would like to give an example of two cases. Firstly, look at the BMW case – in which the witnesses changed their statements in the court and the accused walked free. Secondly, look at the case which is in focus these days, Jessica Lal murder case. Here also crucial eye-witnesses did not support their statements given to the police in the court. One of these witnesses said his statement had been taken in Hindi and he did not know the language. This is a laughable claim. It is well known that this particular witness was studying in JNU at that time, and is it possible that a person living in Delhi did not know Hindi? The trial court should have confronted the witnesses who changed their statements in courts. Undoubtedly, there is a problem and it needs to be solved at the earliest.

Nagendar Sharma: Justice Khare, when we talk of Jessica Lal, Irfan Hussain and Priyadarshini Mattoo murder cases we are concentrating on the mere tip of an ice-berg as there are thousands of cases where victims’ families have no voice. What do you say about this sorry plight?

Justice V. N. Khare : I feel really sad and sorry for these families. I say with all seriousness that if drastic changes are not made soon in our criminal laws, cases such as Jessica Lal and others would keep on happening. The truth does not come out in the courts because of faulty and slow investigation, coupled with judicial delays -- and this trend is uniform in the country. Unless severe corrective actions are taken, criminals would continue to be acquitted.

Listener from Delhi: Mr Khare it is easy to talk about witnesses retracting from their statements, but, for example, look at the Jessica Lal case, in which the father of the prime accused Manu Sharma, Venod Sharma, is a powerful minister in Haryana government and the father of another accused, Vikas Yadav, D P Yadav, is a known muscleman of West UP. How do you expect witnesses to stand up and speak against such people, when the powerful media of the country could not muster the guts to demand Venod Sharma’s resignation from ministership?

Justice V. N. Khare : I would not confine the discussion to a few individuals, but would like to look at the scenario in totality. The investigation of such sensational murder cases which were in constant media and public glare cannot be left to the police alone. We have seen so many times that the police officials in the field are hand in glove with criminals. The investigation should be done by a specially set-up independent agency headed by a senior official of integrity. Similarly, the prosecution counsel should be from an independent agency, and should not be a part of the state. To ensure the independence of such an investigative agency, it should be truly autonomous like the Election Commission.

Nagendar Sharma: But Mr Khare, even then the basic question that remains is how can common people be expected to give statements against sons of powerful politicians like Venod Sharma and D P Yadav?

Justice V. N. Khare : The solution to this is that first the statements of the accused and the witnesses should be recorded in front of a magistrate, instead of the present procedure in which the police records the first statements. After these statements have been recorded in front of the magistrate, these should be taken as final statements and nobody should be allowed to give further statements so that they are unable to change their minds later, whatever might be the consideration.

Nagendar Sharma: We are now joined by Jessica’s sister Sabrina Lal, who has been fighting to get murderers of her sister punished. Sabrina, how hopeful are you that this time finally justice would be done?

Sabrina Lal: We definitely have hope this time, as one can’t keep on fighting like this.

Nagendar Sharma: Sabrina, having seen so much since your sister’s murder, you lost your mother after that and your father is unable to recollect things. Who do you actually blame for all this?

Sabrina Lal : I do not know who to blame for all this. So many things have happened to our family since Jessica left us and all these look interconnected. I am not sure whether it would be right to blame anyone or not, but what can we do? So much has happened...

Nagendar Sharma: Do you think that the accused in your sister’s murder case were able to terrorise witnesses easily because of the political clouts of their fathers?

Sabrina Lal : It must definitely have happened. If you are an influential person and your son is an accused in any case, then money and threats definitely play a role.

Nagendar Sharma: In your view, what is the guarantee that justice would finally be done by the High Court?

Sabrina Lal : There is no guarantee, but after so much having happened which all of you have seen, I have a felling that finally justice would be done. It is difficult for me to say who we should blame for all we have seen, but we are just hoping that justice would be done .

Nagendar Sharma: Justice Khare, having listened to Jessica Lal’s sister, what are your views about the way the judicial and police machinery function?

Justice V. N. Khare : There are major flaws in the country's criminal laws. To set this right, first of all government should immediately allow the families of victims in criminal cases the right to file an appeal against the acquittal of accused. It is presently not allowed. Secondly, the victim's family members should have the right to monitor the prosecution's case. I regret the entire system and I say with all seriousness that unless drastic changes are undertaken, such cases would keep on happening again and again.

Nagendar Sharma: Mr Nikhil Kumar, how do you react to all this?

Nikhil Kumar : I am astonished to know that in such an important case (Jessica Lal murder case), the police did not get the statements of witnesses recorded before the magistrate, as is normally done in such sensational cases which are in public glare. If such has been the investigation, then I think the criticism of police in this case is justified. I have no hesitation in saying that police made mistakes in Jessica Lal case and should be ready for criticism. There were options available with the police by which this witness could have been forced to stand up to his statement in the court as well. Of course, this was not done!

Listener from Kanpur: Justice Khare, why do public prosecutors miserably fail in securing convictions even in strong cases, whereas defence lawyers perform so well in courts?

Justice V. N. Khare : This is a very good question. Compare the performances of public prosecutors and defence counsels. Public prosecutors are not accountable to anyone for their lapses, because there is no merit in their selection, and they are selected on irrelevant considerations. Whereas, the defence counsels being accountable to their clients work hard on their cases, and that is why they are able to secure acquittals of their clients.

Nagendar Sharma: We are now joined in the programme by Rizvan Hussain, brother of Outlook magazine cartoonist Irfan Hussain who was murdered nearly seven years ago. Rizvan, what thoughts crossed your mind after the trial court acquitted all the accused ?

Rizvan Hussain: The trial court judgement forces me to wonder whether the law of our country blind. I demand re-opening of the case and it should be thoroughly reinvestigated. This case should be handed over to the CBI. If the culprits are not punished, my brother's soul would not rest in peace.

Nagendar Sharma: Rizvan, the prosecution had recently said it does not find sufficient grounds to file an appeal in Irfan's case. How do you react to this ?

Rizvan Hussain : If the state does not want to file an appeal, then we would not sit quietly. We have made up our minds and our family is determined to go to the High Court, we would not give up the fight, even if the government is not interested.

The murderers of my brother had confessed and even identified the spot where they ended his life. Now the court says they did not kill him. If they did not commit the murder, then who killed Irfan, my brother? I want to know. I am not only speaking for Irfan Hussain, and it is also not a matter of few cases like Jessica or the Priyadarshini Mattoo case. There should be a change in the law so that the common man can feel safe in this country.

Nagendar Sharma: Mr Kumar, you have heard Jessica Lal’s sister and Irfan Hussain’s brother, do you think the common man can stand up and fight for justice in this country ?

Nikhil Kumar: If the police leadership were on a right track, then witnesses would not back-track irrespective of the political pressure. In the much publicised Tandoor murder case, prime accused Sushil Sharma was a Youth Congress leader with many political connections. How is it that the prosecution was able to secure a death sentence from the trial court? It depends on how police investigates the case. My entire thrust is on police leadership, if they have the right spirit they can instill a sense of confidence in the people and curb crimes.


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