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Dealing with hostile witnesses

V Eshwar Anand’s article, “Triumph of Justice: Law on witness protection a pressing need” (Jan 19), touches a very crucial area of the criminal justice system. Having been in the legal profession for 50 years, I have seen many cases failing in courts only because independent witnesses did not support the prosecution and retracted from their previous statements.

To stop this menace, courts must play a major role. In Zahira Habibulla Sheikh vs State of Gujarat (2004 Cri. L.J. 2050), the Supreme Court ruled that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community and society. The concept of fair trial entails familiar triangulation of interests of the accused. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine.


 

Sadly, these prophetic words of the Supreme Court are seldom translated into action while appreciating the prosecution evidence. The testimony of an investigating officer is not relied upon being an interested witness though in many cases the Supreme Court has held that it is not a judicial approach to discard a police officer’s disinterested testimony without valid and sound reasons.

Recently, in an Allahabad case, an eyewitness while under examination supported the prosecution case but on the following day resiled stating that at the time of occurrence, there was complete darkness to favour the accused. However, the court did not rely upon his resiled statement and convicted the accused.

SOM DUTT VASUDEVA, Addl. Advocate-General, Himachal Pradesh, Shimla

II

The Indian criminal justice system is an offshoot of the British law. The conviction for a crime is dependent upon the testimony of eyewitnesses in the court. But which murderer or thief would bring with him a person to witness his evil act? Even those actually present on the crime spot do not dare to testify, fearing reprisals by the relatives/ henchmen of the accused, to ensure conviction.

Many a time, the victim or his relatives name a wrong accused to settle old enmities, while sometimes the murder of heinous goondas is treated as a good riddance by society. As for Zahira Sheikh, her conviction for perjury in the Best Bakery case is legally correct. But can a poor illiterate young woman, after having witnessed slaughter of more than a dozen relatives before her eyes and being torn by warring political interests, be supposed to conform to modern legal wrangling and court proceedings in a balanced manner?

Every court case should not be viewed through the prism of Jessica Lall or Priyadarshini Mattoo cases. Nor every witness produced by the prosecution can be a genuine one. The issue of witnesses, their protection and prosecution or even their rights is a complex one which calls for wider national debate before making amendment in the Criminal Procedure Code.

S.S. BENIWAL, Chandigarh

III

The twin task of providing witnesses protection from violence and other reprisals, as also to wean them away from the lure of inducements, is well nigh impossible of accomplishment. Chief Justice of India Justice K.G. Balakrishnan’s statement that witnesses’ statements should be recorded before a magistrate seems to be the only viable solution.

I would suggest that honorary magistrates should be appointed for this purpose by investing with necessary legal powers a sufficient number of retired officials who had exercised magisterial (executive or judicial) powers during their period of service. I hope almost all of them would be willing to do this social service.

I.D. KAUSHIK, IAS (retd), Panipat

IV

In the Jessica Lall case, I would wholly blame the trial court judge, Mr S.L. Bhayana, for his “positively perverse” judgement. I fail to understand why was he elevated to the Delhi High Court.

Mr Eshwar Anand has given some classic examples of witnesses who have gone hostile either under threat, coercion or monetary inducement. I feel the FIR should be written by the complainant himself and not by the police. At least in cases of rape, murder or abduction, the evidence should be mandatorily recorded in camera, video recorded and before a First Class magistrate.

The accused found threatening the witnesses would have to be taken up under the proposed law and/or within the existing law a la the prosecution of Zahira Sheikh by the Supreme Court in the Best Bakery case.

SHER SINGH, Ludhiana

Enforce the rule

The tracks built at the taxpayers’ cost which Chandigarh, the City Beautiful, boasts of are now lying unused. The traffic cops should strictly enforce this rule by making all cyclists and rickshaw-wallahs to use these tracks.

Apart from a few like the one at Madhya Marg, the tracks are seldom used. The traffic cops and those with interceptors, positioned near almost every roundabout in the city, must ensure that the cyclists and rickshaw-wallahs use these tracks. Punishment like deflating the tyres may help.

If the rule is strictly enforced, it will reduce accidents. Those hiring the rickshaws should goad the rickshaw-wallahs to follow these tracks if they pick up the main route. On its part, the administration must find a solution.

HARBINDER, Chandigarh

 

 


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