13 Dec 2010

Judges to shed inertia in examining witness: High Court

Holding that the lower court judges are not performing their responsibility in an effective manner in as far as solicitation of truth from the witnesses is concerned, Justice Shiv Narayan Dhingra of Delhi High Court recently in Rani v. State of NCT of Delhi marked with disdain the state of affairs prevailing in the trial courts of the country. 

Examining in appeal the conviction of a person for alleged dowry death the High Court examined the record to find no evidence against the accused and yet he had been convicted. Holding that there should not be any presumption to find someone guilty only if a wife dies in the in-laws household, the High Court urged the lower courts to actively engage in trial so as to ascertain the liability upon examination of witnesses. 

The Order inter alia records as under;
10. It is seen that the Appellant herein belonged to a very poor family of vegetable seller. She had three young daughters and two sons. She herself was a house-wife and not working and that seems to be reason that during trial she and her husband and son could not engage a counsel with some experience who could have done justice to the brief. The witnesses were not cross-examined in a proper manner and cross-examination done to the witness was only to confront them with their statements under Section 161 Cr. P.C. Along with the Appellant, her husband and her son were also convicted. Even during Appeals, this family could not engage an efficient counsel and that is why her husband and son remained in JC during entire Appeal period. After undergoing entire sentence, they appeared in the court and stated that they do not wish to pursue their Appeals, so, the Appeals were dismissed.
12. Every suicide after marriage cannot be presumed to be a suicide due to dowry demand. The tendency of the Court should not be that since a young bride has died after marriage, now somebody must be held culprit and the noose must be made to fit some neck
13. There is an unfortunate development under criminal justice system that even in those cases where accused should be examined as a witness by the defence, the accused persons are not examined as a witness. In matrimonial offences, it is the accused and his family members who know what transpired within the family and they should always volunteer themselves as witnesses in the Court so that the Court gets their side of the version by way of evidence and testimony. Under Section 106 of Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. When a death takes place within the four walls of matrimonial home, the husband and in-laws should come forward and depose as to what was the real cause of death. The criminal practice in India has been on the lines of old track that accused must not speak and he should not be examined as a witness. I do not know why this practice developed but in all matrimonial offences, this practice is shutting the doors of the Court, to the version of the other side, by their advocates.
14. Adversarial system of trial being followed in this country has turned most of the trial court judges into umpires and despite having sufficient power to ask questions to the witnesses and to find out truth, most of them do not ask questions to the witnesses to know the truth. In fact, the witnesses are left to the Advocates and the Judges just sit and watch. This tendency of being only umpires works heavily against the poor who are normally not defended by Advocates of competence and standing, as they cannot afford their fee. The Trial Courts, therefore, must shed their inertia and must intervene in all those cases where intervention is necessary for the ends of justice
15. In this case the High Court did not find time to hear the appeals of other two appellants, who continued to remain in jail during trial period as well as appeal period for no crime. In all such cases where appellants are in jail and sentence is not suspended, the High Court should fix a time limit for disposing of such appeals. Neither the criminal should be let off by default as High Court has no time to hear appeals nor should the innocents rot in jail by default. The whole criminal justice system needs overhauling so that the constitutional mandate of equality before law is made meaningful and it should not be the case that higher courts are kept occupied by the person with money or power, as is the case today.

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