The Hindu : New Delhi News : Getting away with murder

Online edition of India's National Newspaper
Saturday, Mar 04, 2006

New Delhi

New Delhi

Getting away with murder

Effort must be made to identify those who apparently colluded with the accused to weaken the case and bring them to book, feels Prashant Pandey

Even as the Delhi High Court has asked the city police to report on what went wrong in the investigations into the Jessica Lal murder case, another question that continues to haunt people is whether the person who killed Jessica Lal would ever be brought to book. Given the situation, there are reasons to believe that introducing some aspects of the inquisitorial system of criminal jurisprudence, as against the adversarial approach that has always been followed in the country, would ensure more convictions and prevent miscarriage of justice.

In the Jessica Lal case, the police identified the accused and produced them before the court along with the evidences collected. But five years of trial later, the evidence could not connect the accused with the offence and hence they were acquitted.

While the police are now examining the grounds of appeal and even re-investigation is not completely ruled out, the acquittals seem to suggest that "nobody" killed Jessica and that the matter would be left at that. But then somebody did shoot her dead. Who is that person?

It is here that the inquisitorial system can be effective. The system, already followed in many countries like France and Germany, gives the court a proactive role in finding out the truth. Recommending incorporation of certain aspects of inquisitorial system, the Malimath Committee on Reforms in Criminal Justice System had suggested that a preamble be added to the Code of Criminal Procedure (Cr.PC) declaring that the "quest for truth shall be the fundamental duty of every court".

The Committee further recommended amendments to Cr.PC so that the court is in a position -- at any stage of any inquiry or trial -- to summon any person as a witness or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined if it appears necessary for discovering the truth in the case.

Taking a look at the Jessica Lal case, it becomes obvious that had this system been in place, the court would have summoned many high-profile people who were there at the party when the incident occurred. And it would have been irrespective of the fact whether the police declared them as official witnesses or not. Further, there was less likelihood of the witnesses turning hostile.

The Committee had further recommended that the accused "participate" more in the criminal proceedings, which is usually not the case in the adversarial system. It had recommended that the prosecution submit a "prosecution statement" to the court, a copy of which would be given to the accused. The accused would prepare a "defence statement". And the court, on the basis of the two statements, would determine whether the proof of burden was on the prosecution or the defence.

In essence, therefore, the inquisitorial system does not stop at weighing the accusations and the evidence collected by the police to reach a conclusion but goes further and tries to find out the real culprit.

On the other hand, there is always a risk in the adversarial approach of a case being practically reduced to the word of the police (backed by evidence) against the word of the defence. So long as the defence is able to put doubt in the mind of the court, they practically have half the case in their favour. More so when the investigating team or other agencies collude with the accused -- something being strongly suspected in the Jessica Lal murder case -- to render the case weak in court.

All said and done, there is no denying that every effort must be made to identify the men who apparently colluded with the accused to weaken the Jessica Lal murder case and bring them to book. But in the long run, there has to be a system that can prevent someone from literally getting away with murder in full public view.

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