Judgment sans justice

Salman case: It remains to be seen whether the Maharashtra govt will move the apex court against acquittal

Judgment sans justice
Actor Salman Khan’s acquittal in the Bombay High Court raises a plethora of questions over the efficiency of our criminal justice system to bring closure to victims in road accident cases. The role of the investigating agency in proving such cases against the rich  and the powerful leaves much to be desired. Was it sheer failure of the Mumbai Police in protecting its witnesses to make a water-tight case? Did the HC ignore the testimony of relevant witnesses; and forensic and circumstantial evidence in Salman’s case? Or did the stature of the accused played its part? A report...

A strong, open and shut case, where overwhelming evidence existed to punish the guilty, has ended in acquittal. The crime took place right in front of many eyewitnesses. There was enough forensic evidence to support the case and strong circumstantial evidence to buttress it further. Precisely, for such reasons, the case had succeeded in the trial court, where actor Salman Khan was sentenced to five years of rigorous imprisonment.

Salman then moved the Bombay High Court. Unfortunately, the case faltered appallingly. Salman proudly walked free on judgment day, armed with the acquittal order. Till then delinquent, he stood absolved and redeemed with his well-wishers extolling him in rhetorical tones.

There are several reasons behind the case failing in the high court. The astute defence counsels had played a deft strategy. Ironically, the prosecution exercised no diligence to face the onslaught with a commensurate counter strategy.

For example, the prosecution, even after summoning star witness Kamaal Khan, did not examine him in the trial court. Intriguingly, the defence lawyers mysteriously kept quiet. But once the case went to the high court, the silence of the defence turned immensely vociferous. It became apparent that the defence had laid a trap and the credulous prosecution had willingly walked into it.

But there were other factors too, which undesirably conferred Salman with his redemption. A lot of evidence which ought to have been collected was not collected. Statements of many important witnesses were not recorded by the police before the magistrate under Section 164 of the Code of Criminal Procedure (CrPC). Further, many eyewitnesses who could have testified that Salman was at the wheel and was drunk were omitted. Several contradictions appearing in the statements of the prosecution witnesses were not suitably addressed by the prosecution.

The police botched up the case by not drawing Salman’s blood samples on the very night itself, though his residence is a stone’s throw away from the crime scene. Further, the prosecution did not insist on filing a perjury application when it realised that Salman’s driver, Ashok Singh, was lying. In short, the police did not diligently investigate the case and they did not infuse the requisite credibility into the investigation.

With errors so glaring, it was impossible to believe that it was a case of pure negligence. It was far beyond. Salman had been always been a friend of the cops. He would attend annual day functions of the Mumbai Police almost every year. He would oblige many a cop with his glamour appearances.

Besides, he was rich and famous. During the trial, the police kept helping him, by ensuring that the summons were not served in time and that is how the case kept lingering for 13 years.

Technically, the prosecution and the accused were opposite parties, but they appeared to be friends. It was a clear case of a friendly investigation and a friendly prosecution. Unfortunately, criminal jurisprudence does not address itself to such contingencies.

Perhaps, with the nation’s attention on this case, the police could not have let him off at the investigation stage. But, it seems, a via media could have evolved.

A weak investigation, full of loopholes, was done. It was this disposition of the cops which ultimately led to the shocking acquittal.

Travesty of justice

Unfortunately, it is possible for such travesties to occur only in India. Abroad, particularly in developed nations, such swaying of the criminal justice system is simply unimaginable. The noble objective of jurisprudence is that the judgment should tender justice. But here, judgment and justice did not go hand in hand. It was imperative for the high court to have applied its mind on this dichotomy.

Under Section 386 of the CrPC, 1973, when a convict appeals in the high
court, essentially, there could be three possibilities. To uphold the conviction,  to acquit the accused or to send the case for retrial. Further, under Section 173(8) of the CrPC, 1973, the police during the stage of trial could conduct further investigation.

In order to meet the ends of justice, it would have been in the fitness of things to have opted for retrial and even further investigation. If the police had faltered, then the solution should have been to correct the errors to some extent by further investigation rather than to let the accused off the hook. If the prosecution dropped 37 of the 64 witnesses, the remaining 27 witnesses could have been examined on retrial.

Certainly, such desirable action would have been more equitable for our criminal justice system. Sadly, there wasn’t any vociferous prosecution to put up a case for retrial. Plainly speaking, the prosecution gave the accused a walkover.

When this case was initially put for regular trial in the year 2005 in the magistrate court, the police kept delaying the case by not serving summons or by giving wrong names of expert witnesses. Several years were lost in this infructuous process, creating a stalemate situation.

With the passage of time, some witnesses disappeared, some were no more and many lost their precision amid fading memories. Against such a strong and eminent legal team, the state could not even designate a senior counsel to conduct the prosecution.

The disturbing circumstances in this case should serve as a wake up call. Drastic action should be initiated against those public servants who committed dubious acts. In such a case, where the accused is powerful and the lower staff vulnerable to enticement, senior police officers should closely monitor the trial.

With the extensive use of information technology and integration with court records, such monitoring could be effective and simple. The performance of the cops on this score could automatically reflect in their annual appraisals.

But what is equally important is that the erring cops need to be punished. Under the Police Manual, for a stricture by a court of law, the responsible public servant should be prosecuted. A departmental enquiry ought to be instituted simultaneously. Only then can the system be held accountable for such glaring lapses that led to the acquittal of the accused in an otherwise clear case.

(The writer is a practising lawyer at the Bombay High Court)

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