//Hostile witnesses needn

Hostile witnesses needn

NEW DELHI: The judgment acquitting the accused in Jessica Lal murder case goes contrary to the grave concern for justice expressed by the Supreme Court when it ordered retrial in the Best Bakery massacre case in which all 21 persons charged with killing 14 innocent persons had been acquitted for want of evidence.
“When fences start to swallow the crops, no scope will be left for survival of law and order or truth and justice. Public order as well as public interest become martyrs and monuments”, the court had said two years ago.
The recapitulation of this judgment is imperative in view of the public outcry against the acquittals after the witnesses backed out of their statements made in 1999 and also the police’s failure in recovering the pistol that was used for shooting the young model.
“It was expected seeing the developments in this case,” said Jessica’s sister Sabrina in disgust.
S K Saxena, Special Public Prosecutor in Lal’s murder case, was cautious in his reaction. “Everyone knows why witnesses turn hostile but no viable solution has been found so far to overcome this serious problem,” said the veteran lawyer who is appearing in a few other sensational murder cases.
There is no reason for various courts to feel weak in dealing with certain trials that are guided by hostile witnesses and prosecution’s apathy towards the victims of crime. Surely they are well armed, legally.
“In the case of a defective investigation, the court has to be circumspect in evaluating the evidence. It may have to adopt an active and analytical role to ensure that truth is found” by resorting to sections 311 and 391 of the Code of Criminal Procedure.
Section 311 empower a court to visit the spot of crime for his own appraisal and section 391 says a court can take further evidence or direct it to be taken by its subordinate judge.
A court can’t throw its hands in despair without resorting to these powers. “It would not be right in acquitting an accused person solely on account of the defection. To do so would be tantamount to playing into the hands of the investigating officer if the investigation is designedly defective’’, said the apex court two years ago.
“Expression of concern merely in words without really the mind to concretise it by positive action would be not only useless but also amounts to betrayal of public,” said the apex court as they recalled a British court judgment in 1972.
It said: “The law should not be seen to sit limply, while those who defy it go free and, those who seek its protection lose hope”.
Why Manu Sharma is a free man today
DNA digs the judgment to find the loopholes in the prosecution’s case that the judge cited for acquittal
Make of bullets
“The investigating office presumed Manu Sharma accused and could not support it with evidence. The pistol which the prosecution said the bullets were fired from is of Indian make with Indian bullets. But the prosecution reports say the bullet is of American make.”
Home guard gone home
“The investigating officer says that he reached the spot with home guard Charan Das but the diary in the police station shows that home guard Charan Das had left for his home at that time.”
Phony arrest
“The investigating officer says he arrested the prime accused (Manu Sharma) on the basis of a phone call from a senior officer.”

Rakesh Bhatnagar, DNAIndia.com, Thursday, February 23, 2006  01:40 IST