Reliable Witness: The Linchpin on which the Success of a Case Rests

A former judge of the Bombay High Court gives a personal account of a case she presided over where the testimony of a   reliable witness during a gruesome crime helped nab and punish the guilty.  The success of the judicial system rests on the participation of the common man.  People need to remove the fear complex and come forward as witnesses.  An accused can be convicted only on the basis of direct, credit-worthy and reliable evidence and it is the duty of the police to collect it and bring the witness to court.  Courts, too, have a responsibility in seeing that the witness is examined that day itself so that his time is not wasted, says JUSTICE MRIDULA BHATKAR.

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In February 2020, television channels were flashing news of the murder of a young woman who succumbed to burn injuries in Taluka Hinganghat,  Wardha District, Maharashtra.  A man had poured petrol on her and set her on fire.  He had done this act out of unilateral love.  She was taken to a hospital, given all medical assistance and treatment.  For a few days, she fought for her life but, unfortunately, lost the battle.

The media and people were once again reminded of other horrifying cases such as that of "Nirbhaya" in Delhi, the Unnao gangrape and "Disha" from Hyderabad where the victims suffered and were killed. Then, the shameful and inhuman incident of Hathras occurred in UP.  A young girl was not only raped and killed, but her body was disposed off hurriedly by the police.  Again, there was seething rage against the accused and people came out on the streets; women protested with slogans and banners; all demanded that the accused be hanged publicly.  A mob demanded that the accused be handed over to the people who would mete out justice by giving the accused the same treatment as the girl so that they would understand her pain and suffering.

I remember the case of Vidya Prabhudesai, which was tried before me in 2000 when I was a Sessions Judge in the Bombay City Civil and Sessions Court. Being an employee of the      Reserve Bank of India, she lived in the staff quarters at Mumbai Central.  Her tailor, a man called Solanki, had fallen in love with her.  But she did not respond to him. On that fateful day at around 9.30 am, Vidya Prabhudesai left her home and was waiting to catch a bus near Maratha Mandir Theatre to go to her office.  Solanki approached her, poured kerosene on her, and set her on fire.  He then fled and attempted suicide.  Vidya succumbed to her burn injuries.  The police registered the offence, investigated it and filed a charge-sheet in due course.  Solanki was arrested and put in prison.

The prosecution opened the case on the charge of murder under Section 302 of the Indian Penal Code.  The offence was grave and serious.  The police examined a person who had reported the incident, a constable who had recorded the FIR and two panchas who drew the spot panchanama.  The prosecution also examined a friend of Vidya's, who deposed about the acquaintance of the deceased and the accused.  The remnants of Vidya's burnt clothes were opened before me and I could imagine the woman ablaze in those charcoal clothes.  I wanted evidence.  The spot panchanama, registration of the  offence, post-mortem report and evidence of Vidya's acquaintance with the accused were not sufficient to hold the accused guilty of her murder.

The Importance of Eyewitnesses

Even two days into the trial the police were not bringing the main witness for whom I was waiting anxiously. After going through the charge-sheet, I was shocked to come across only one eyewitness. The case of the prosecution entirely hinged on his testimony. At the end of the second day, I asked the prosecutor why he was not bringing its eyewitness.  He said he would bring him the next day.

When I took the dais the next day, there was nobody in the court hall except the defence counsel, the prosecutor, Solanki sitting in the dock and two constables who were waiting outside. The prosecutor called the investigating officer, who entered the court along with a young man between 18 to 19 years. He entered the witness box and took an oath. He had long hair that covered his forehead and one eye. He looked like a rapper.

The prosecutor started asking him questions. The young man narrated the entire incident step by step.  Fortunately, he stood by his statement, which was recorded by the police under Section 161 of the Criminal Procedure Code. If the investigating officer records a statement of a witness and it is included in the charge-sheet, and if his deposition before the court is consistent with his previous statement, then he stands with the prosecution case. However, if he changes his version before the court, then he is called a hostile witness. Fortunately, in this case, the witness was by the side of the prosecution and remained so.

Coming to the actual incident, the distance between the witness and the actual spot was brought on record as approximately 100 metres. During cross-examination, the defence counsel asked him many questions about his background, residence and education. He answered them all.  He was a college-going student. On the fateful day, he said that he was on the staircase of a shop and passing time after having tea. He was told that there was no reason for him to stare at Vidya or the accused.  He answered in the affirmative and said there was no special reason to do so and he looked at other people also. But again, he looked at them because he thought that both were in a heated argument and the woman looked angry. Then he saw the accused suddenly pouring a liquid from a can on her. He was asked why he did not rush towards the lady. He said that it took him time to understand what was going on. Initially, he thought that it might be water being thrown on her; then, he thought they might be a husband and wife and so, it would not be proper to intervene. He was asked why he did not help her and did not stop the incident from happening instead of being a mere spectator. The boy answered: "The accused lit the matchstick suddenly and threw it on her and what I saw was huge yellow, red flames and the lady engulfed in a blaze." He was asked what he did as he could not stop the incident.  The young man answered, "Oh shit!"

When he uttered these two words in the courtroom, there were around 10 to 15 lawyers, my staff and myself. We were taken aback because this was not the sort of language used in any court. I paused for a moment and then, recorded the utterance of the witness verbatim. The counsel then tried to provoke him for his helplessness and to show me that he was a typical young man, who was not responsible and could not be relied on. He was a passerby, who was caught by the police as a chance witness.

Thereafter, the investigating officer entered the box and the evidence of the prosecution was over. After recording the evidence and hearing the arguments, I delivered the judgment while appreciating the evidence of the young man, who was the sole eyewitness. I wrote a paragraph in my judgement about his   utterance of the words, "Oh shit."  I held that it was an honest expression of his frustration and helplessness that he couldn't save somebody's life.  When one watches somebody getting killed, there cannot be any other expression but a feeling of anger and frustration.  "Oh, shit" is the language of the young generation. I sentenced Solanki to life imprisonment. I do not know what happened afterwards.

A Case Stands on the Best Evidence 

During the trial, my mind was shattered about one question–why cannot the police get more eyewitnesses. Why was there only one eyewitness? If this eyewitness was not found, there would be no other option for the trial judge but to close the case as no conviction can be based on insufficient evidence. Not only me, but all trial court judges in India face this     question throughout their judicial career—"where is the eyewitness or where is the credit-worthy evidence?" A case stands on the best evidence.  It may be of an eyewitness, witness, documentary or circumstantial evidence.  The accused can be convicted only on the basis of direct, credit-worthy and reliable evidence and it is the duty of the police to collect it and bring the witnesses before the court.

Mumbaikars will agree that around 9.30am, Mumbai Central in front of Maratha Mandir theatre, which is near Mumbai Central railway station, is usually crowded. Still, nobody saw the incident. Nobody came forward as a witness. Everybody was engrossed in reaching his or her destination.

The Indian judicial system is hungry for reliable witnesses.  The participation of a common man in the judicial system is the only solution to avoid the failure of justice. People need to remove the fear complex and come forward as witnesses.

Similarly, it is the responsibility of the courts to see that the witness is examined that day itself.  There is a need to value the time of those who come to court or police station.  Courts should be more "witness-friendly". In many cases, trial judges find that investigation is not on the right track.  In some cases, the investigating officers are either dishonest in collecting evidence or incompetent to know what is evidence. Of course, there are exceptions.  The courts cannot guide the police on how to investigate. That is not the function of the judiciary. These are the limitations.

However, many times our Home Departments do not function independently and work under different pressures which paralyses even an honest police officer to do his duty faithfully. There are excellent lawyers who are working on the defence side. Similarly, there are retired judges who are always ready to guide and advise. Their help can be sought by the police department.  Some of them will volunteer their services as a social responsibility, without expecting or taking monetary benefits. What is missing is the executive and political will and also the initiative of people in the investigation process.

Social Pressure Matters

I will conclude by writing about an incident narrated to me by my grandmother.  A friend of hers used to travel in public transport in Delhi.  Once, she boarded a bus around 10 am. Two or three rows away, two boys were sitting. Two girls boarded the bus and occupied seats in front of the boys. One of the boys, on seeing the girls, lifted his legs and kept them on the back of the seats occupied by the girls so much so that his shoes were resting on her shoulders. The girl shrunk back and tried to adjust her body. However, neither did she nor her friend react to the indecent action of the boy. Both he and his friend were whistling and just enjoying the awkward movements of the girl.

My grandmother's friend could not keep quiet.  She asked the boy to sit properly and not harass the girl. The boys were arrogant and they said the old woman should not interfere when the girls were also enjoying themselves.  She again repeated herself, but it was futile. Though the bus was full of commuters, no one came forward to scold or warn the boy to behave himself. This happened in the capital city of India at 10 am, nearly 35 years ago. The poisonous seeds of Nirbhaya and Hathras were sown in those days by the commuters who did not come forward and stop those boys.

We need to build social pressure to control misbehaviour of individuals so as to regulate law and order. Thus, the enemy is, in fact, 'us'.  I remember lines sung by an unknown social activist: "Chup rehna, hinsaon ki shuruaat hai, kaatilon me gine jaane ki baat hain."

(Justice Mridula Bhatkar is a former judge of the Bombay High Court and Chairperson of the Maharashtra Administrative Tribunal.. The views are personal.)