In September last year, in an unprecedented move, the Supreme Court criticised a victim of rape. During the trial in the lower court, she retracted from her complaint against the rapist and said that no such incident took place. Based on her changed statement, the trial court acquitted the accused. While deciding on the appeal in this H N Gadhvi versus State of Gujarat case, an annoyed SC not only convicted the accused but also expressed deep anguish over the victim’s behaviour. The court stopped just short of prosecuting her.
The problem of such somersaults by victims in the courtroom is not new. In India, many criminals escape punishment because victims turn hostile. Especially in cases of crimes against women, victims change their statement in court to help the same person who committed the atrocity on them. Why would a woman do this?
The fact remains that when a minor girl or even an adult woman sides with her rapist in a courtroom, most of the time it is not her decision. It is the elders in the family, relatives or community leaders who decide on the testimony. Victims generally do not have much say in such decisions. When such matters are settled out of court, often in lieu of money, the will and feelings of a victim are rarely taken into consideration. Who gets the money? Obviously the elders. The tragedy is that in this process, she is wronged twice. First, when she is raped. Second, when she is forced to change her statement against her will.
Victims change sides not only in rape cases. Two old but popular examples are the Jessica Lal and Priyadarshini Mattoo murder cases where the trial court had to acquit the accused persons mainly because important witnesses turned hostile. While delivering the judgment in the Mattoo case, the judge lamented he was forced to acquit the accused who had committed the murder. The appellate court convicted the accused later following an outcry from the civil society.
It should, therefore, come as no surprise that the conviction rate in our country is very low. In IPC offences conviction rate is about 40 per cent. In cases of sexual violence it is a poor 18.9 per cent. In states like West Bengal, Andhra Pradesh, Telangana, Gujarat, Odisha and Karnataka it is less than 10 per cent. That means nine out of ten accused in sexual offences are let off in these states.
It is often believed that criminals do not get punished due to poor investigation by the police. The reality, however, is different. It is true that the investigation standards of our agencies are not up to the mark, but most acquittals happen due to the hostility of witnesses and complainants. There are legal provisions to prosecute such people for perjury but these are rarely used and are difficult to prove.
In spite of such difficulties, the state cannot absolve itself of its responsibility. A criminal case is not just a dispute between two private parties. The outcome of a criminal case impacts the entire society. When an accused in a Jessica or Mattoo case goes scot free, it shakes the faith of people in the entire system. It emboldens criminals and scares law-abiding citizens.
If witnesses do not cooperate with the law due to greed or any other reasons, the state has to find ways to overcome this problem. For example, a professional and scientific probe can ensure that even when witnesses turn hostile, cases are taken to their logical conclusion. Once a rape is proved by medical, chemical and DNA examinations, and through other physical and digital evidence, even the victim cannot save the accused. The same holds for other cases too. People can change their statements in court but scientific evidence is permanent.
At present, our investigations are based mostly on oral testimonies. When the same witnesses change their version in court, cases fall flat. In developed societies, enough forensic evidence is collected before putting the accused on trial. As a result, the rate of conviction is high.
And slow trials are another problem. Cases drag in courts for years together. With over 3.4 crore pending cases, ours is one of the slowest judicial systems in the world. As time passes, victims reconcile with the situation and tend to soften. The perpetrators of the crime get enough time to win victims over by hook or crook. Last year, in Madhya Pradesh about 20 people accused of raping minors were sentenced to death. All these trials were completed in a few months time, leaving less scope for the accused for any illegal manoeuvring.
Protection of witnesses can also help in increasing the conviction rate. We often hear that witnesses in important cases are threatened. There have even been instances where upright witnesses were killed. This obviously dissuades people from coming forward to tell the truth. In the West, a lot is done to ensure the protection of witnesses. Sometimes witnesses in sensitive cases are relocated at the government’s expense. The state has to ensure that witnesses are protected for telling the truth in courtrooms. Recently, our Supreme Court also brought in place a witness protection scheme.
Conviction of a criminal is the ultimate test of a justice system. If after years of investigations and trials the guilty are let off, it is a waste of time and energy. It is not severity but the certainty of punishment that deters people from committing crimes. We have been increasing the severity of punishments. It is time to ensure that criminals actually get punished.
is an IPS officer. Views are personal