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.
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