In our system of justice a person has a right both to commit crime and claim innocence!

In our system of justice a person has a right both to commit crime and claim innocence!

By Amba Charan Vashishth

The system of dispensing justice in olden days could though be dubbed as orthodox, primitive and unscientific yet, at the same time, it remained unique, quick and effective.

Remember the old saying: chor kee dadhee mein tinka (a straw in the beard of the thief). It has a story behind it. A person complained to the local munsif that somebody had stolen his valuables. He expressed suspicion on some people. The munsif called the suspects who were all bearded. He asked each one of them one by one, but none confessed to have committed the crime. In the end the munsif suddenly shouted, "dekho, chor kee dadhee mein tinka” (Look, there is a straw in the beard of the thief). The real thief instantly brushed aside his beard with his hand to remove the straw which actually never was. It was only the guilty conscience of the thief that made him behave like that. And that was the proof of his guilt. He was punished.

Cut the child into two

Similarly, an Indian king was faced with a great dilemma. Two women came to his durbar, each vociferously claiming to be the mother of a particular child. But how could the king determine who was the real mother? There was no DNA test those days. Ultimately, the king asked both the claimant mothers: is the child yours? "Yes, my lord!" both reiterated their claim.

"All right", the intelligent king dispensed his justice, "Cut the child in two pieces and hand over one piece each to the claimant mothers".

"No, my lord!" cried one of the women falling over the feet of the king. "Give the child to her. I shall console myself by seeing my son alive in her lap".

The king smiled. "Give the child to this bewailing woman. She's the real mother". He punished the false claimant.

The justice system at that time may not have a written code but that certainly was effective and served the ends of justice for all. Crime under this system remained under check and people were satisfied with the speed and quantum of justice they received.

English System 

But the system of criminal jurisprudence the British imposed on India and we inherited and continue to follow even after they left us independent leaves much to be desired. It has failed to deter the criminals from indulging in their nefarious activities, to speed up investigation and trial and, ultimately, to fetch justice.

Our system is a strange plethora of contradictions. A criminal has a right to commit crime. He has the right to volunteer a confession before the police and even before a magistrate, where he does state that his averment is voluntary under no threat, coercion or allurement. But this confession of guilt has no sanctity of law; it is just a piece of paper. The accused has a right, later, to resile from this admission of guilt and instead claim innocence. His spilling the beans can, at best, be used by the prosecution as a material for his cross-examination, nothing more.

The criminal has a right to deny the charges against him even though he knows that he is not telling the truth. After the prosecution and defence evidence and arguments, if a court gives a verdict of guilty, it gives a lie to what the accused stated. In other words, our present system of justice extends a license to a criminal to tell a lie to camouflage his crime. He can get away with his dividend in the form of acquittal earned by telling a lie but is never made to pay for his crime of having told a lie with the well thought-out intention to mislead the court.

In a way it also implies that under the prevalent law it is not a mandatory duty of a citizen – a criminal too is a citizen – to honestly tell the truth. On the contrary, it confers on him only the right to tell a lie. In this way, a criminal stands nothing to lose. A lie could save him from the clutches of his crime but not punish him for his lapse.

Nirbhaya case

In the infamous Nirbhaya case of December 16, 2012, during trial of the four (one committed suicide during the pendency of the trial) persons accused of murder, rape and other crimes, pleaded not guilty. One person even claimed he was not present at the spot of crime. They produced defence witnesses to prove the prosecution story a lie. Their defence lawyers did their best to prove the innocence of their clients.

Misleading court

One of the accused was tried under the juvenile law because he was five months short of being an adult. The juvenile court handed down the maximum punishment of three years he could be given under the law. The hardened juvenile was mentally and physically fit enough to commit the grave crime but was a juvenile to evade the quantum of punishment for his crime.

When the court ultimately gave a verdict of guilty against all the accused, they advanced all the alibis to tone down the crime they committed to plead for lesser punishment. Their poverty and being under the influence of wine too was made to be the accentuating ground for seeking lesser punishment.  

Considering the prosecution and defence evidence and arguments by both sides, when the Hon'ble court sentenced them to death, all the four broke into tears crying in chorus for "some mercy". A person can seek mercy only if he confesses his crime and seeks to atone his guilt. It was only the horror of the gallows that made these inhuman criminals to tell the truth about their crime which they had earlier withheld from the court to mislead it. Their other crimes apart, perhaps, this one was no crime under our present system of jurisprudence.                                                                                            ***