CRIME on the OFFENCE
JUSTICE on the DEFENCE
India, no doubt, is a great country. It has a great
system of criminal jurisprudence in which an individual/group has a right to
commit a crime, heinous included, to run away from the scene of crime and, if caught,
the right to claim he is innocent. This exactly is what we call "chori
aur seenazori".
There are a few instances in which people in the
heat of moment have committed crime, even of murder, and then they have
voluntarily surrendered before police or courts confessing their crime, even
before the police had actually got a whiff of it. At the same time, they have
their unchallenged inherent right to resile from their confessional statements in
the heat of moment and to claim innocent denying their confession.
Our law also provides alibis and chances to prove
themselves juvenile, under the influence of intoxication, depression,
provocation or other mitigating circumstances to prove their innocence or seek
punishment lesser stringent than the extent of their crime due under the law.
Even when a case of murder is proved against a
person, he can be sentenced to capital punishment only, as the Supreme Court
has decreed, if the case falls in the category of "rarest of the
rare" in the opinion of the concerned learned court.
On the one hand, we all – the executive, the
legislature, the judiciary, the media and the people – are one in the need for dispensing
quick justice to the victims of the heinous crime of rape and on the other, our
courts are showing leniency and consideration to the accused. The latest is the
case in which the Supreme Court (SC) on January 29, 2013 ruled that the man who
had raped his minor daughter and killed her and his wife and who had been
sentenced to death, need not be sent to the gallows "as the crime did not
fall under the rarest of rare cases". The SC further said that "his
reformation is not foreclosed in this case."
An SC double bench set aside the death sentence,
awarded by trial court and upheld by the Punjab and Haryana High Court, saying
that the convict was feeling frustrated because of the attitude of his wife and
children.
The history of the conduct of the convict
Mohinder Singh speaks otherwise and does not inspire confidence that "his
reformation is not foreclosed". He committed the crime while on parole
from jail where he was undergoing a 12-year sentence for raping his 12-year-old
daughter. In January 2005, he came out on parole and killed his wife who was a
witness to the rape, and the daughter he had raped. ()
A father raping his daughter and killing her and
his wife, a witness to the crime, needless to say, is not a daily routine but a
rarest of the rare heinous crimes in India. That the convict was "feeling frustrated
because of the attitude of his wife and children" does not mitigate the
intensity of his crime. On the contrary, it
only shows that the father did not appear to be ashamed and repentant for the
sin he committed and instead wanted his wife and daughter to be a conspirator
in his crime and save him by telling a lie in the court. His conduct during his
parole itself belies the hope that "his reformation is not
foreclosed in this case".
Juvenile hardcore criminal
No less astonishing is the report that the
"most brutal" accused in the gang-rape and killing of a paramedical
student Nirbhaya in New Delhi last month has been declared a "minor"
by the Juvenile Justice Board on January 29 on the
basis of the date of birth on his school certificate and ordered his trial
under the Juvenile Justice (Care and Protection of Children) Act. The Board
also rejected the plea of the Police for bone certification test of the accused
to determine his age. (http://www.tribuneindia.com/2013/20130129/main2.htm)
This suspicion got further strengthened by a Times
of India story which on February 01 quoted the mother of the accused who
claims to be juvenile saying: "I have no idea regarding either the day
or date of admission. I just went to the school and told the teacher that this
is my child, he is five years of age, write down his name. They started
teaching him after that."
(http://timesofindia.indiatimes.com/city/delhi/Is-Nirbhaya-case-accused-really-a-juvenile-Even-his-mother-isnt-sure/articleshow/18280306.cms) And yet our
Juvenile Justice Board has blind faith in the school certificate that shows the
age of the accused.
The decision based on "school certificate" is open to question because everyone knows that in India, for various reasons, parents of children have been getting birth certificates of their children showing an age less than the actual one. The "bone certification" would have been more scientific and reliable.
It is ironic that a person who allegedly committed
one of the most heinous crimes, which even a hardened criminal would have
dreaded to perform, should be dispensed Care and Protection reserved for
juveniles. We need to distinguish between juvenile delinquency and juvenile
crime. Juveniles have been dispensed care and protection because their crime
was not heinous but could be considered a delinquency like a child playing with
a knife accidentally killing another child or pushing a fellow child without
realizing that his act could cost a life or a child playing with fire
incidentally causing a great inferno resulting in huge loss of life and
property. These may be crimes but seem to have been inadvertently committed
with no set motive. But that is not the case of this juvenile accused in
Nirbhaya gang-rape and murder. One has to go by the enormity of the heinous
crime and not by the age of the culprit.
This gives another indication of the kind of
justice and the criminal jurisprudence we have. This stands in the way of
justice. It fails to punish the culprit because it itself raises many ifs and
buts in the smooth way of handing out punishment to the person guilty of a
crime. The loopholes in the justice system only help the accused and not the
innocent and the aggrieved in his quest for justice.
Justice should not only be dispensed but also
appear to have been dispensed. It is absence of this scenario that is prompting
people to take law into their own hands and dispense justice themselves there
and then.
