by Pinky Anand
The rape verdict was reversed by the high court: ‘Though there appeared to be no physical evidence of rape on the body, but by the DNA test conducted on the vaginal swabs and slides and the underwear of the deceased and the blood sample of the appellant, it was clear that rape had been committed, and that too by him.’ The high court held that it would be a dangerous doctrine for the court to discard the evidence of an expert witness by referring to certain texts and books without putting those texts to the expert and taking his opinion. The high court reversed the findings of the trial court that the vaginal swabs and slides and the blood samples of the appellant had been tampered with.
In particular, the verdict held that there was no problem with the DNA testing, and that the combination of the forensic and circumstantial evidence was clinching. The Delhi High Court held that: ‘From an overall analysis of the circumstances that have been discussed above and held to have been proved beyond any doubt by unimpeachable evidence, we are of the view that those circumstances form a chain so complete which leads us to the only conclusion that it is the respondent Santosh Singh who had committed rape upon the deceased and then murdered her. The circumstantial evidence in the case is absolutely inconsistent and incompatible with the innocence of the respondent.’
The verdict was reached on the basis of ‘conclusive circumstantial evidence’.
In October 2010, the Supreme Court upheld the conviction of Santosh Singh, that even if there was some uncertainty about the rape, there was no question with respect to the culpability of Santosh Singh committing the gruesome murder of Priyadarshini Mattoo. ‘Assuming, therefore, for a moment, that there was some uncertainty about the rape, the culpability of the appellant for the murder is nevertheless writ large and we are indeed surprised at the decision of the trial judge in ordering an outright acquittal.’
However, the Supreme Court reduced the death sentence to life imprisonment: ‘Undoubtedly, the sentencing part is a difficult one and often exercises the mind of the Court but where the option is between a life sentence and a death sentence, the options are indeed extremely limited, and if the court itself feels some difficulty in awarding one or the other, it is only appropriate that the lesser sentence should be awarded.’
Santosh Singh is currently serving his sentence of life imprisonment.
Jessica Lal
Jessica Lal was a model residing in New Delhi. At a party held near Qutub Minar, she was shot dead by Sidhartha Vashisht, alias Manu Sharma, the son of the then excise minister in Haryana, Venod Sharma. The trial judge acquitted Manu Sharma of the charges levelled against him, but the Delhi High Court found him guilty.
The dispute that arose between Jessica Lal and Manu Sharma, which led to the former being shot at, was trivial. Jessica Lal was serving as a celebrity bartender at the party. Sharma, in an inebriated state, went to Jessica and asked her for a drink. The liquor stock at the party was already over and Jessica told Manu that she would not be able to give him a drink. Manu got angry at this and suddenly brought out a gun. He fired a shot at the ceiling. Immediately after that, he aimed his pistol at Jessica’s temple and fired a shot. Jessica died on the spot. Realizing the implications of his act, Manu along with three other associates fled Delhi for Himachal Pradesh the day after the shooting. However, he was caught a few weeks later by the Delhi police.
Most people present at the party refused to provide a testimony of the events of the night. When Sharma shot Jessica, most of the partygoers were present at the venue. However, Manu Sharma and his father had intimidated the potential witnesses into silence by exerting their political influence. As a result, the trial court acquitted Manu Sharma of the charges raised against him on account of insufficient evidence.
Following Sharma’s acquittal, there were large-scale public protests demanding justice for Jessica. In Delhi, protests were held near India Gate demanding his conviction. Numerous media houses played their part in the protest, including NDTV, which launched a campaign asking the President of India to intervene in the matter.
Following protests, the case headed for an appeal at the Delhi High Court. In contrast to the lax pace in which proceedings are normally conducted in the high court, this case was tried on a day-to-day basis. The high court found Manu Sharma guilty of murder. On appeal to the Supreme Court, his guilt was upheld and he is currently serving a life-imprisonment term in Tihar Jail.
Manu Sharma was charged with murder and destruction of evidence, among other offences. Sharma’s associates were charged with lesser offences, which included conspiracy and harbouring a suspect.
In the initial stages, the trial had been conducted at a snail’s pace, which had allowed most witnesses time to withdraw their statements. As many as thirty-two witnesses turned hostile towards the prosecution during the course of the trial; the most prominent among them was actor Shayan Munshi, who was in Jessica’s vicinity when she was shot. He had made a statement in Hindi to the police immediately after the shooting. Later, however, he claimed that he did not know Hindi at all and, therefore, the testimony was false. However, his claim was easily countered when a news agency conducted a sting operation in which they asked him to speak in Hindi to check his eligibility for a movie role. Regarding Munshi’s testimony that two guns were involved, the judgment stated: ‘In court he has taken a somersault and come out with a version that there were two gentlemen at the bar counter . . . We have no manner of doubt that on this aspect he is telling a complete lie.’
In the past, witnesses have been known to retract their statements and give testimony contrary to their own case. Verdicts even make note of this but action is not taken. The law provides for penal action against perjuring witnesses under Section 340 of the CrPC read with Sections 191 to 201 of the IPC, but only in rare cases is any penalty accorded. And this case turned out to be one of those rare cases. Disturbed by the trend of so many of the witnesses turning hostile, the high court, in the appeal against acquittal, initiated suo motu proceedings against the thirty-two witnesses, including Shayan Munshi and ballistics expert P.S. Manocha.
On 20 February 2007, ten of the twenty-nine witnesses were discharged (three of the witnesses had died while the trial was on). On 22 May 2013, the court absolved seventeen more witnesses. However, Munshi and Manocha were directed to be prosecuted for turning hostile.
The Supreme Court in 2016 quashed the perjury case against the ballistics expert, stating, ‘It is significant to note that [Manocha’s] opinion that the cartridges appeared to have been fired from different firearms was based on the court’s insistence to give an opinion without examining the firearm. In other words, it was not even his voluntary, let alone deliberate, deposition.’ Perjury charges against Munshi are still pending and he is currently out on bail. A non-bailable warrant issued against him was quashed.
The trial court mentioned that the accused were acquitted because of the Delhi police’s failure to produce sufficient evidence, referring to the missing weapon that had been used to fire at Jessica and which was crucial to the prosecution’s case. They also failed to prove that the bullets fired at the roof and the one fired at Jessica came from the same weapon.
Media attention grew as the malpractices employed by Manu Sharma to advance his case came to light. On 9 September 2006 a sting operation conducted by the news magazine Tehelka aired on STAR News. This appeared to show witnesses being bribed and coerced into retracting their initial testimony. Venod Sharma was named in the exposé as one who had paid money to some of the witnesses. Facing pressure from the high-level Congress leaders, Sharma resigned from the Haryana cabinet.
The Delhi High Court ruled that Sharma was guilty, and criticized the trial judge S.L. Bhayana. Placing ample importance on the testimonies of witnesses Beena Ramani and Deepak Bhojwani, the high court opined that there was non-application of mind on Bhayana’s part and he gave the judgment with an intention to acquit Manu Sharma and his associates: ‘Obviously, this reflects total lack of application of mind and suggests
a hasty approach towards securing a particular end, namely, the acquittals.’
During the proceedings, a typical third-party defence was also raised. Senior advocate Ram Jethmalani argued in favour of the accused and put forward the theory that it was a ‘tall Sikh man’ other than Amardeep Singh Gill (the co-accused), who had fired the bullets that killed Jessica, and not his client Manu Sharma. Jethmalani supported his two-weapon theory with the aid of ballistics experts and Shayan Munshi, who had turned hostile and had stated that the bullet that hit Jessica had not been fired by Manu Sharma but someone else. While Deepak Bhojwani had said that while he was moving around in the party, he came in contact with Sharma, who requested him to arrange liquor for him, following which he told him that the bar had closed. Then one ‘Sikh gentleman’ came from behind Sharma and told him something and took him away towards Tamarind Court, and correctly identified the pictures of Manu Sharma and the tall Sikh man as Amardeep Singh Gill (the co-accused), Ram Jethmalani urged the court to discard the statements of Bhojwani on the grounds that he was an interested party who had been friends with Jessica for five to six years. He also argued that Bhojwani was not on the list of invitees and had been planted to favour the prosecution version.
The Supreme Court held, in absence of rebuttal evidence: ‘The entire premise of the defence argument that it was not a person in a white T-shirt, stocky and fair, who shot at Jessica Lal over a row over the drink and fled away from the spot, and this was a planted and concocted story of the prosecution to rope in Manu Sharma and make escape good of the tall Sikh gentleman is wholly erroneous and without any basis.’
One of the main aspects of the case was the testimony of Beena Ramani, the owner of Tamarind Court, the restaurant where the fateful incident had taken place. The trial court discarded the statements made by Ramani where she has claimed that she saw the victim falling down as she ran into the accused, as she was not an eyewitness to the occurrence, but accepted that she was a witness to the presence of Manu Sharma. The Supreme Court agreed with the findings of the Delhi High Court. The latter conveyed its displeasure, and said, ‘The trial court went totally wrong in holding that Beena Ramani had admitted not seeing Manu Sharma firing a shot at Jessica Lal, but it was only her feeling. With great respect to the learned Judge, we find this is “a complete misreading of evidence”.’ It also went on to say, ‘This kind of approach of the trial court has caused a grave miscarriage of justice.’ The Supreme Court of India rejected the allegations of the Ramani family being under pressure to stick to the police version of events.
Ultimately, Manu Sharma was fined and awarded life imprisonment. The other accused were fined and given four years’ rigorous imprisonment. A plea for Sharma to be sentenced to death was rejected on the grounds that the murder, although intentional, was not premeditated, and Sharma was not considered to be a threat to society.
Sharma’s lawyer announced that the decision would be appealed in the Supreme Court because the judgment was wrong in treating Beena Ramani as a witness.
Jethmalani assailed the Delhi High Court verdict, alleging that the media had prejudged the issue and conducted a campaign to vilify his client. The Supreme Court accepted that there had been an element of ‘trial by media’ but believed that it had not affected the decision of the high court.
On 19 April 2010, the Supreme Court upheld the verdict—the evidence regarding the actual incident, the testimonies of the witnesses, the evidence connecting the vehicles and cartridges to the accused, Manu Sharma, and his conduct after the incident proved his guilt beyond reasonable doubt.
A Reasonably Free Convict
Sidhartha Vashisht, alias Manu Sharma, has drawn attention to himself for all the wrong reasons. Since his conviction in 2006, Manu Sharma has often enjoyed the joys of the outside world. He has been involved in a brawl with the son of the police commissioner of Delhi, attended family functions and even visited a nightclub. He defied authorities and was guilty of disruptive behaviour, even after his conviction, probably a result of the heady combination of money and power he enjoyed as the son of a well-connected and high-ranking politician and the owner of four hotels and three sugar mills. Manu was granted parole more frequently than he should have been because of his family connections. On 24 September 2009, he was granted parole for a period of thirty days for the cited reasons of looking after the family business, caring for his ailing mother and attending the last rites of his grandmother. To no one’s surprise, Manu Sharma again became the centre of controversy after it emerged that his grandmother, whose last rites he had so dearly wished to attend, had passed away in 2008. The claim of his mother being ill was also proved false after she was seen perfectly fit trying to promote a ladies’ cricket event in Chandigarh. Even after such revelations, Sharma was seen partying in a Delhi discotheque, after his parole has been extended for thirty more days. After an uproar that he had violated parole norms, Sharma had to surrender to the jail authorities two weeks before the expiry of his parole period. Manu Sharma showed no sign of remorse or regret, and consequently the court made a conscious effort to restrict his movements during his subsequent parole applications, making arrangements to ensure he adhered to the conditions.
During his time in prison, Manu Sharma obtained a number of educational degrees, including a postgraduate degree in human rights law and a bachelor’s in law. Needless to say, he was granted parole to appear for his examinations. Most recently, in April 2015, Manu Sharma was released on furlough (a leave of absence) and not parole, which requires legal sanction, to attend his own wedding in Chandigarh
The criminal justice system suffers from chronic favouritism—so much so that the law is seen by many of the country’s poor as a tool merely for the rich and powerful. High-profile lawbreakers get away scot-free. Recently, Salman Khan procured bail in his case only hours after being convicted in Mumbai, even though thousands of ordinary inmates wait for years to get bail. In the backdrop of this perception, the Priyadarshini Mattoo and Jessica Lal cases are the torchbearers for justice for all.
The role of the media in bringing to the fore public opinion is crucial. Without the role of media groups such as Tehelka and NDTV, neither Santosh Singh nor Manu Sharma would have been brought to justice as promptly as they were. In both the cases, matters escalated and courts took serious note only after the extensive media speculation and resultant public furore. One can well imagine how long the trials might have stretched on for otherwise. Therefore, a robust judicial system is needed to reverse acquittals.
Failures on the investigation level and general incompetence on the part of the officials involved in the case are another pitfall of the criminal justice system. In both Priyadarshini Mattoo’s and Jessica Lal’s cases, key police officials blundered at crucial stages of the investigation. Whether it was with regard to the recording of witness statements or the collection of evidence, the police failed to deliver. This was amply demonstrated in Priyadarshini Mattoo’s case, when the police all but refused to search for the domestic help who had seen Priyadarshini’s killer near the site of the murder on the day of her death. Suffice it to say that low criminal convictions invariably happen due to defective and inefficient investigations. The game is over before the trial even begins.
6
IN THE NAME OF GOD: TERRORISM
In our world, communication has come to play an important role in the commission of terrorist crimes. Terrorists have become aware of the risks of leaving a digital footprint, which could leave a trail for the enforcement agencies, and thus look to old forms of communication such as using messenger birds that don’t leave any lasting digital trace. One of the reasons it took so long for US intelligence to track down Osama bin Laden, was because he relied on the age-old method of delivering messages and data by hand. Terrorists today use a mix of both old and modern forms of communication, making messages even more difficult to intercept.
Almost all current forms of digital communication are encrypted. The fact that genera
l modes of communication are extremely secure now also aids secure communication for terrorists. It is estimated that about 70 per cent of the content released by the Islamic State is first published on Twitter. Similarly, in the 26/11 terrorist attack case, it was reported that Indian SIM cards purchased near the Bangladesh border were used by terrorists. Often, the cards would be used for a few days and then disposed of to avoid being traced. The handlers in Pakistan used satellite phones to talk to the terrorists and guide them during the three-day ordeal. Information as well as moral support to further their objective was obtained from media broadcasts. To confuse authorities, the attackers contacted media channels and asked for ransom to make them believe that they were dealing with a hostage situation and not a terrorist attack. Modern-day communication methods and mass media have thus come to play a central role in the successful execution of terrorist offences. These new-age interactive communication systems have enabled terrorism to take on the role of a many-headed hydra—as soon as we develop the technology to cut off one head, another takes its place—and it has become a bigger threat today than the world has ever seen.
Unique Features of Antiterrorism Laws
Terrorism has attracted a unique jurisprudence all over the world. The dominant principle that is applied is that the laws should reflect the mood of the nation and that of the global state to eliminate sheer evil. This category of laws proceeds on certain assumptions. One such assumption is that by nature, terrorism is an act born out of conspiracy. The plan to commit the act is formulated by someone in location X and is executed by someone else thousands of miles away in location Y. This makes it difficult to find direct evidence against the conspirators. For instance, in the context of the Mumbai blasts of 1993, David Headley and Tiger Memon were key to the plot but incarcerating them became problematic.
