In what can only be a cruel irony, six men (and possibly a seventh, soon) were ‘lucky’ they were awarded the death penalty. Against all odds, they were, rightfully, acquitted. Their tale also exposes how our criminal justice system is grossly ill-equipped, and routinely fails to protect wrongfully implicated people.
Let’s examine the case of the six men. It’s June 2003. Seven to eight men barge into a thatched house in the middle of a guava orchard near Nashik, where a family of six, and a guest, were ‘chit-chatting’ post dinner. The men are mercilessly beaten up, while the two women, including a minor, are taken outside and raped, and several valuables in the house stolen. The assaulters, presuming that they all are dead, leave. But two of them survive.
In due course, the six men are brought to trial, convicted and sentenced to death. The High Court distinguishes between the three of these, who allegedly raped the minor, modifies the sentence of the other three to life imprisonment. On appeal, the Supreme Court finds no reason for leniency, and condemns all six to death. This was in 2009.
Last week, while hearing a Review Petition, the Supreme Court parsed the entire evidence again, and finding it severely lacking, acquitted all six. As it turned out, even though the state presented 25 witnesses and numerous documents, the entire conviction primarily rested on the oral evidence of the two survivors. Just two days after the crime, one of them, the lady, had identified four persons by their photos in the presence of a Special Executive Magistrate. The six accused/acquitted aren’t any of these four. The police never bothered to investigate these four. Nor was this very important fact even brought to the notice of the Trial Court.
Meanwhile, the present six are picked up, and are identified in a Test Identification Parade about two months later. The parade is ridden with procedural irregularities, but most importantly, held by the same Special Executive Magistrate, who also forgets about the earlier identification.
But that is not all. Fingerprints, DNA samples, blood samples from the nail clippings of the deceased minor are all collected and sent for analysis. The results do not incriminate the six accused. The prosecution doesn’t bother to bring this fact to the notice of the trial court. What they do bring is the fact that one of the stolen items, a white chain, was found with one of the accused—a chain without any distinctive markings, which could have been anybody’s. But this is touted as clinching evidence by successive courts.
The inconsistencies don’t end there. The witnesses both stated the assaulters were speaking in Hindi. But the accused are all native Marathi speakers. The courts also find that the accused could not adequately explain the injuries on their own bodies, quite forgetting that as farm labourers, those injuries weren’t necessarily suspicious. In the end, the six men were sentenced to die on laughably specious evidence. And they would have met that fate, had not three judges hearing the Review Petition of three accused (Review by the other three were also dismissed) smelt something rotten.
This comes just weeks after another case in which the Supreme Court, hearing a Review Petition eighteen years after confirming a death penalty, asked whether the convict was a juvenile at the time of the offence. (The police had callously stated he was 20, when in fact, according to his present lawyers, he was perhaps only 15.) If he was a juvenile, the maximum sentence would have been three years in a corrective home. In both these cases, the convicts were impoverished and illiterate, leaving them completely at the mercy of a callously indifferent police.
And yet, as ironic as it sounds, these are the fortunate ones. Death penalty is reserved for the rarest of the rare cases. A majority of gruesome crimes get the life sentence or less. But as we have seen, if you are framed, as often happens, an apathetic system can be completely blind to your plight.
In one example, a 22-year-old boy, at Mumbai’s famous Arthur Road Jail (he was subsequently acquitted of the offence he was sent there for), was accused of the contract killing, along with four others, of a fellow inmate. The only evidence was the Dying Declaration of the deceased, recorded by a magistrate (supposed to make it credible, but as we have seen above, magistrates can be criminally negligent) and the testimony of the jail warden. Another inmate, who was the only eye-witness called to give evidence, denied the sequence of events, but was declared hostile and disbelieved. No fingerprints on the weapons were traced to the accused. Funnily, the person on whose behest the crime was allegedly committed was acquitted.
He was still convicted by the Trial Court, and affirmed by the High Court. In the Supreme Court, (Disclaimer: This writer represented him) the appeal was summarily dismissed on the grounds that the Dying Declaration was recorded by a magistrate and therefore ought not to be questioned, and there was no reason to doubt the (uncorroborated) testimony of the jail warden. Absurd, since the warden was directly responsible for the safety of the prisoners in his charge, thus making him an ‘interested’ witness.
These tales are being offered without a prescription. But remember, the usual due-process (including multiple appeals) every accused is entitled to was not sufficient to protect the six men. They were acquitted only because of the Supreme Court’s recent judgment that Review Petitions in death penalty cases be heard in open court. And that should deeply trouble us all.