ACQUITTAL OF SALMAN KHAN IN CHINKARA POACHING CASE: IS IT REALLY JUSTIFIED?
By Shruti Agrawal July 29, 2016
Salman Khan has been recently a very sensational topic either for his recent release, Sultan or for his drunk-driving case. However, the media got a new coverage on Bhai as the Rajasthan High Court acquitted him for Chinkara poaching case. Contrary to popular misconception, the case against him on blackbuck poaching is still pending for final decision before the trial court.
What people believe happened
During the investigation of the blackbuck killing it was found that few more deer (chinkaras) were killed. The drivers of Salma Khan’s Gypsy claimed that it was Sallu Bhai who killed these deer. FIRs were filed based on the statement of the driver. The incident took place at the time of the shooting of Hum Sath Sath Hai in Jodhpur, Rajasthan in September 1998. Along with Bhai, the case was pending against 7 other actors including Tabu, Saif li Khan, Sonali Bendre, etc.
The cases were registered under section 51 of Wildlife Protection Act, 1972 for poaching and killing Chinkarars on 26-27 Sep, 1998 and 28-29 Sep, 1998 in Bhawad and Mathania villages near Jodhpur, respectively. Bhai was convicted by the Trial court and he was sentenced to one year and five years respectively. The judgments were correspondingly passed on 17th February, 2006 and 10th April, 2006.
Sallu Bhai challenged the trial court order in the session court. The appeal of Mathania’s case was dismissed and appeal of Bhawad’s case was transferred to Rajasthan HC. There were already two pending appeals of the state in the High Court.
What did Court rule?
Due to lapse in investigation, witness turning hostile, and evidence plantation; the court could not identify the truth. It created a reasonable doubt in the mind of the Judge to give the subsequent ruling. The Court decided to give benefit of doubt to the accused, Salman khan. The Court ruled that the case was not proved beyond reasonable doubt. The Court found out that Sallu Bhai was framed for the crime, as the prosecution failed to prove the authenticity of the evidence. Salman Khan was acquitted in case of chinkara poaching.
What is our perspective?
After reading the judgment, we were enraged by the inefficiency of Indian Judiciary. The court has evaluated the facts and evidence of the case in a revision petition. However, Supreme Court in the case of Shankar Ramchandra Abhyankar vs Krishnaji Dattatraya Bajpai (AIR 1970 SC 1) ruled that the court in a revision application does not have the power to look into the evidence unless it is expressly stated in laws. However, in the present case no such express power was given to the court.
Moreover, the analysis of the trial court judgment was missing which was a necessary mandate for setting aside the order. (State of UP vs Jageshwar AIR 1983 SC 349). Due to lack of analysis, it is difficult to accept the reasoning provided by the court. The Court has pointed few defaults in lower court’s judgments however, it is not clear who was the culprit due to following reasons-
Lapse in Investigation
One of the major factor for failure of justice in the present case was an improper investigation. There have been tons of cases where courts have to acquit the accused due to lack of evidence. In the present case the investigating officer did not send the blood sample and the hair sample to forensic department in time. Due to which the authenticity of the evidence was questioned and it became inadmissible.
In the case The State of Gujarat vs Kishanbhai (here), Supreme Court ruled that the police officers should be made accountable for lapse in investigation. They should be made liable for all the acquittal due to lack of evidence.
The court also ruled that a training programme should be implemented in all the states within 6 months to ensure that the quality of investigation is improved. However, no such programme has been implemented.
Moreover, like in present case, the courts have ignored the carelessness and inefficiency of the investigating officer. The similar lapse was observed in Aarushi Talvar Murder case. Even in that case, the truth could not be established due to poor investigation. However, the courts have overlooked this shortcoming.
It is a very common practice in the cases against high profile parties. Court judgments are set aside or the accused is acquitted because of lack of evidence. The reason for inadequate evidence- the witnesses have turned hostile. Even in the present case, the High Court has set aside the order of Trial Court because the witness was either absconding or have turned hostile.
In the case, State of U.P. v Ramesh Prasad Misra and anr. (AIR 1996 SC 2766) Supreme Court of India ruled that statement of hostile witness is not to be rejected entirely. The court needs to put in its mind and try to figure out the relevant part which is not contradictory to any of the party. The statement is admissible to that extent.
However, as one would notice while reading the judgment, that in the present case the Court has not followed the procedure. They discarded the witness statement in its entirety. Moreover, the Court did not take any action to establish the truth.
There were two kinds of witnesses that were observed in the present case- one who were absconding and the others who turned hostile. As per Indian Penal Code, 1860 section 193, any person who is liable for presenting false evidence will be guilty of perjury and can be sentenced to 7 years. As per section 344 of CrPc, 1973 the judge has the power to initiate a summary proceeding against the person who has fabricated the evidence. However, in the present case there was no such action taken by the court.
Secondly, the Court did not make an effort to call the absconding witness to the court. Indian law has given sufficient power to the court to ensure that the absconding witness in present in the court. The Court can send summons to the witness. Section 133 of CrPC, 1973 gives the power to issue arrest warrant in case the person does not turn up. The court can also initiate a summary trial under section 350 of CrPC, 1973. They also have the power to attach the property of the absconding person under section 38 after publishing a proclamation.
However, the Court in the present case did not use these powers to ensure that the presence of the witness. They did not take appropriate measures to ensure that justice is served.
The Indian judiciary is based on the notion of justice. The law makers of India believed that even if 100 guilty have to be set free, no innocent person should be punished. The burden of “beyond reasonable doubt” was set up to meet the requirements above ideology. It was observed in the present case, that the prosecution and investigating officers have tried to plant the evidence against Salman Khan, to establish their case beyond reasonable doubt.
Such an abuse of power and misconduct of the police authorities is needed to be checked. The Indian courts have refused to acknowledge such mal practices. There is no accountability nor any punishment for abuse of power by police authority. In the present case, Court realized that there was a high probability that the evidence were planted against Sallu Bhai, however, no action was taken against the authorities.
The similar issues were faced by US officials, they set up training institute to curb “noble corruption” practice of police officer at ground level. This training ensures that a message is sent to the public, the ground level personnel and to corrupt officers that practice of “noble corruption” would not be tolerated. Professional policing, along with ethical work environment, also ensures that cost of litigation and risk factor is minimized. Such a training has made it possible for police official to ensure fair but vigilant system to combat the practice of noble corruption.
We believe that Indian government should also take steps to ensure that there is accountability and responsibility for the mal practices of the police authority. They should ensure that the police is carrying out their duty diligently and that the case is proved beyond reasonable doubt without any false, framed or planted evidence.
Concluding this blog, I would like to add that, Indian judiciary is known for its delayed judgments and their inability to serve justice. It has been a result of various factors like inefficient police, corruption, inefficient resources, etc. However, these shortcomings cannot be excused. The Courts need to take steps to ensure that above mentioned mal practices like evidence plantation, Lapse in investigation and hostile witness is curbed. They need to use the power given to them diligently to ensure justice is served. People who try to bend the laws in their interest need to be punished.
- Rajasthan High Court Judgment (https://drive.google.com/file/d/0BzXilfcxe7yuMWtVVEZGZFo3LVU/view) (last seen on 26th July, 2016)
- Thomas J. Martinelli, Unconstitutional Policing: The Ethical Challenges in Dealing with Noble Cause Corruption, (http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=1025&issue_id=102006) (last seen on 26th July, 2016)
- Michael Minkoff, Tricks of the Trade: Police Officer Admits Planting Evidence is Routine, (http://lastresistance.com/tricks-of-the-trade-police-officer-admits-planting-evidence-is-routine/) (last seen on 26th July, 2016)
- Hostile Witnesses - a Menace to the Criminal Justice Administration, (http://www.legalserviceindia.com/article/l339-Hostile-Witnesses.html) (last seen on 26th July, 2016)
- Aneesha Mathur, Take action against ‘incompetent’ officers, HC tells police, (http://indianexpress.com/article/cities/delhi/take-action-against-incompetent-officers-hc-tells-police/) (last seen on 26th July, 2016)
- Erring police officials should be punished if accused acquitted: SC, (http://www.firstpost.com/india/erring-police-officials-should-be-punished-if-accused-acquitted-sc-1327397.html) (last seen on 26th July, 2016)
- Picture Credits: http://www.news18.com/news/india/salman-khan-acquitted-timeline-of-blackbuck-chinkara-poaching-cases-1273642.html
Shruti Agrawal (Jindal Global Law School, 4th Year)
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