'Criminals Would Continue To Be Acquitted'

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

Nagendar Sharma: Why is there an impression in the country that the judiciary andthe policeboth have time and again failed in punishing hardened criminals who often commitsuch 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 150years old and were framed when Britishers were ruling over us. Afterindependence we have undergone so many changes – there have been socialchanges, political changes, economic changes, behaviour changes. Our valueshave 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 thepublic, since certain happenings do give such a widespreadimpression. I would like to give an example of two cases. Firstly, look at theBMW case – in which the witnesses changed their statements in the court andthe 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 theirstatements given to the police in the court. One of these witnesses said hisstatement had been taken in Hindi and he did not know the language. This is alaughable claim. It is well known that this particular witness was studying inJNU at that time, and is it possible that a person living in Delhi did not knowHindi? The trial court should have confronted the witnesses who changed theirstatements 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 andPriyadarshini Mattoo murder cases we are concentrating on the mere tip of an ice-bergas there are thousands of cases where victims’ families have novoice. What do you say about this sorry plight?

Justice V. N. Khare : I feel really sad and sorry for these families. I say with allseriousness 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 notcome out in the courts because of faulty and slow investigation, coupled withjudicial delays -- and this trend is uniform in the country. Unless severecorrective actions are taken, criminals would continue to be acquitted.

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

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

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

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

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

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

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

Sabrina Lal : I do not know who to blame for all this. So many things havehappened 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 wedo? So much has happened...

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

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

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

Sabrina Lal : There is no guarantee, but after so much having happenedwhich 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 weare just hoping that justice would be done .

Nagendar Sharma: Justice Khare, having listened to Jessica Lal’s sister, what areyour 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 thisright, first of all government should immediately allow the families of victimsin 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 havethe right to monitor the prosecution's case. I regret the entire system and Isay with all seriousness that unless drastic changes are undertaken, such caseswould 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 witnessesrecorded before the magistrate, as is normally done in such sensational caseswhich are in public glare. If such has been the investigation, then I think thecriticism of police in this case is justified. I have no hesitation in sayingthat 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 havebeen forced to stand up to his statement in the court as well. Of course, thiswas not done!

Listener from Kanpur: Justice Khare, why do public prosecutors miserablyfail in securing convictions even in strong cases, whereas defence lawyersperform so well in courts?

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

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

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

Nagendar Sharma: Rizvan, the prosecution had recently said it does not find sufficientgrounds 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 sitquietly. We have made up our minds and our family is determined to go to theHigh Court, we would not give up the fight, even if the government is notinterested.

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

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

Nikhil Kumar: If the police leadership were on a right track, then witnesseswould not back-track irrespective of the political pressure. In the muchpublicised Tandoor murder case, prime accused Sushil Sharma was a Youth Congressleader with many political connections. How is it that the prosecution was ableto secure a death sentence from the trial court? It depends on how policeinvestigates the case. My entire thrust is on police leadership, if they havethe right spirit they can instill a sense of confidence in the people and curbcrimes.