By Dr Olav Albuquerque
ADVOCATES and a few judges in Goa may not have noticed the recent Supreme Court judgment on April 2, pronounced by Justices BR Gavai and Sandeep Mehta titled Balmukund versus State of Madhya Pradesh. This may result in grave injustice to victims of crime because it lays down that the 24 high courts should not reverse a trial court’s acquittal unless the judgment is perverse. The word “perverse” has not been defined explicitly in law so when a trial court pronounces a well-reasoned though erroneous acquittal, the high court will not quash it.
Proving beyond a reasonable doubt is undoubtedly unreasonable for the victims of crime who are allowed to intervene but cannot directly address the court unless they conduct the prosecution themselves. Prosecutors take over after the police file charge sheets in court with many loopholes because the police are either corrupt or incompetent. Defense advocates easily punch holes in the prosecution case to ensure courts acquit rapists, murderers and money launderers.
Victims of crime and high court judges can do little about well-reasoned though erroneous acquittals when the Supreme Court declares the law of the land. “In any case, even if two views are possible and the trial Judge found the other view to be more probable, an interference would not have been warranted by the High Court, unless the view taken by the learned trial Judge was a perverse or impossible view” — the bench comprising Justices BR Gavai and Sandeep Mehta declared.
REVERSING ACQUITTAL
THE two judges dissected the Madhya Pradesh high court judgment which reversed the acquittal of one Balmakund whose sister, Anita, had married a man and later married another man. The first husband, Mahesh Sahu, kept in touch with his wife by writing letters that infuriated Balmukund and his mother Jamna Bai. On June 7, 1992 the father of Mahesh Sahu, Beni Prasad and his wife Sumitra Bai, were told that Ballu alias Balram, alias Balmukund was beating his son.
When he rushed out in his underwear and banyan, he found Balmukund dragging the corpse of his son ten feet from his house and leaving it there. He also saw Balmukund’s mother washing blood stains from the door of her house. This seems to be a case of eyewitness accounts and not circumstantial evidence as erroneously opined. The trial judge disbelieved the evidence of the victim’s father, Beni Prasad, because there was a police chowky a short distance away and Prasad did not name the alleged murderers when his statement was recorded.
The high court overturned this verdict and chose to believe Beni Prasad’s testimony. The point being made is that the middle-class Indian citizen cannot afford to appeal beyond the high court of his state to seek justice if his daughter is raped and murdered. The Supreme Court is concerned with laying down the law of general public importance to the nation and not with individual cases. Special Leave Petitions that do not raise questions of law for the nation are dismissed in 90-second non-speaking orders without reasons.
This is why this judgment needs to be reviewed because there are innumerable cases where the trial court judge has not recorded the evidence correctly or vital eyewitnesses are threatened against coming to court and deposing. Two godmen among at least seven like Asaram Bapu who raped and killed a 16-year-old girl and his Babu Ram Rahim who raped and murdered one of his followers are cooling their heels in jail. A Jodhpur court sentenced the former to life while a Panchkula court sentenced the latter to life.
Such convictions are the exceptions but not the rule. The high-flying investigative journalist Tarun Tejpal who allegedly raped his junior reporter in a moving life in Goa was also acquitted by the trial court judge whose judgment provoked high court judge Shirish Gupte to remark: “This judgment reads like a manual on how rape victims should behave.”
SUPREME COURT NOT IMPRESSED
HOW the Supreme Court will react to these celebrities accused of serious crimes is anybody’s guess because the top court is unimpressed by a litigant’s name or fame. The smart tactic of big law firms representing celebrities is to file an appeal and allow it to lie in the docket of the Supreme Court so it dies a natural death over time. Just like celebrity film star Sanjay Dutt, who was convicted for keeping AK-47 rifles in his home during the Mumbai riots, but spent more time out on parole than in jail.
The jurisprudence of the last 25 years has changed to bail is the rule and jail the exception to judges preferring to acquit rather than convict, so the state government will not be forced to furnish free food, accommodation and health care to these inmates however pathetic may be the food, barracks and hospitals.
An added factor for the high rate of acquittals is the corrupt police who do shoddy investigations and negligent prosecutors who make even shoddier arguments in court, so the trial court judges are left with little choice but to acquit. With this dictum pronounced by the Supreme Court, high court judges all over the country will be left with little choice but to dismiss appeals because there are few perverse judgments.
Evidence wrongly recorded, wrongly evaluated because witnesses are coerced not to depose, or chief ministers coercing prosecutors through their directors of prosecution not to seek convictions are more common. Judgments acquitting these criminals are well-reasoned but not perverse. A conscientious and intelligent high court judge like Justice Abhijit Gangopadhyay, who resigned to join politics after complaining to his chief justice that he was prevented from doing justice, is more common than so-called perverse judgments.
That is why the justices of the high courts do not always succeed in doing justice to the common man.
