The Story was posed like this:
Last summer, you had gone to a hill station with your family. Your house was locked. One night a burglar entered in your house with a duplicate key.
Just then a police man, on routine round, saw that front door of your house was a little ajar. He suspected something. He checked in house and caught the burglar red handed.
At police station, burglar admits his crime. Signs a confession and hands over duplicate key with which he had opened door of your house.
The Case against Burglar now goes to court.
And here the troubles starts.
Half of the Judges in India said that there was not enough evidence against burglar and he should be acquitted. And other half of Judges in India said that there is more than enough evidence to convict the burglar and he should be convicted.
Well, the poor thief, was treated like a football from one court to other court up to Supreme Court. One Court said he was guilty. Other court said he was not guilty.
EXPLANATION FOR THE CONTRADICTORY VIEWS:
This is very difficult. But not so difficult that a layman cannot understand it.
1) The case cited above is real one. A famous lawyer named Lebowitz defended the thief. The thief was acquitted by Judge for want of evidence. The lawyer was later offered judgeship and he became Judge. In his book “Court Room”, I read above case which was this lawyer’s first case.
2) The reasons for Acquitting the Thief were these:
Except the evidence of Police and Confession of accused, no other evidence was produced in court to connect the thief with crime.
The day courts will start convicting people on basis of Police Evidence and Confession, neither you nor I will be safe in this country.
At instant of big Politicians or Rich people, police can pick up you, can force you to sign on any confession of any kind.
And the judge will send you to jail on basis of Police Evidence and your confession.
This practice can put one thief and 1000 innocent people behind bar.
So, the basic criminal law is to exclude all Police evidence and confessions, and to convict only if some other third party verifiable evidence is produced.
Therefore, to protect us from police atrocities, the judge had discarded police evidence and had to acquitted the accused.
3) Then why, on this very evidence, other judge may convict such a thief though it may be contrary to do so as per basis criminal law?
The other Judge may convict by saying, “As per Supreme Court judgement, conviction can be based solely on basis of police evidence, if the evidence inspires confidence of court”. The evidence here inspires confidence in me. There is no substance in argument of lawyer that whether the key fitted in lock is not proved. Hence, I convict”
Well, this judge is also right. The judge who acquitted is also right.
A.) Somewhere around 1990, a retired high court judge gave me some reasons. I have forgotten name of the retired HC JUDGE
He said, in India rate of Acquittal in Criminal Cases is 96%. Now if we start acquitting, by excluding police evidence, the Acquittal rate will be 100%. The system will collapse.
I asked a supplementary, “Why do you keep so many people in jail, pending trial, whose trial is not likely to be even started. Can’t you grant them bail pending trial?”
He replied, “We know that as soon as trial will be over, he will be acquitted. So only type of punishment we can give criminals is by denying them bail during trial, and by keeping them in jail as much as possible, on basis of un-proved allegations.”
4) Both the argument stated in para (3) Above, are dishonest and invalid arguments.
Such arguments have spread corruption like fire in lower judiciary.
If you engage a lawyer, suggested by Policeman who arrested you, you get bail instantly. If you engage some honest lawyer like me, you may never get bail.
The judges who have crossed boundary lines of criminal law, to convict one single thief, do not visualize the collateral damage they are causing to the whole system.
The failure of Police to investigate properly, failures of independent witnesses to come forward, failure of weak prosecutors, etc are no grounds for crossing the boundary lines of basic criminal law.
I don’t have enough words to express what I feel.
5) You may feel very very happy, to see the judge convicting thief on basis of police evidence. But tomorrow, when you will see that police has trapped some of your kith and kin, and he is going in jail on basis of police fabricated evidences, you will not feel so happy.
Nor you will feel so happy when some of your kith and kin, whose trial has not started even after six years, is languishing in jail and judges are refusing him bail on ground that allegations in charge sheet (though yet to be proved) are very serious looking!
6) This is only how far I can go without provoking anger of judges who themselves are victims of this system.
7) “But what is your final answer?” You may ask.
I have no answers.
Haresh Raichura
13/4/2010
Haresh A. Raichura 