High Rate of Acquittal in Rape Cases: Cause and Concern

The Author, Mehak Dhiman, is a 4th year BBA LLB student at Alliance University, Bangalore. She is currently interning with LatestLaws.com.

INTRODUCTION

Rape is one of the most heinous crimes. The definition of rape in the dictionary is “the ravishing or violation of a woman.” The rape victim gets traumatized as a result of the incident, and it is extremely difficult for a woman to recover from this trauma. In India, the term rape is defined in the Indian Penal Code, 1860, under Section 375. It establishes the definition of rape as well as the punishment for it. It is rape when a male penetrates or engages in sexual intercourse with a woman without her consent.

Penetration here means that even the slightest touch of the penis to the vaginal area constitutes rape; a woman's unruptured hymen does not establish that rape has not occurred. There are some exceptions, such as when a man has sexual intercourse with his wife who is over the age of 15.

CASES OF ACQUITTAL IN RAPE CASES

In 2015, a special court acquitted a male of raping a minor girl when her family objected to her being examined. The accused, who was working as a domestic helper at the time of the occurrence, was 23 years old at the time of the incident and had spent more than six years in jail as an undertrial. In the absence of the minor's testimony, the court determined that there was no direct proof. The girl's parents had told the court that they did not want her to testify since she had forgotten about the incident when she was 3.5 years old.

The court also noted that, despite the fact that the minor's parents claimed she was constantly accompanied by a caretaker, she was not called as a witness. It also held that it could not be prevented from examining the CCTV tape showing the minor being compelled to go upstairs by the accused. The tape proved that the girl had returned to the ground floor in a short time and was observed stepping down peacefully, “not terrified or sobbing,” according to the court. The court stated, “Just because the accused and the girl were spotted going up the stairwell for a few seconds does not prove she was sexually abused.”

Another scenario includes a 29-year-old man who was accused of raping a 24-year-old girl after threatening to post her naked images on social media. The City Civil and Sessions Court acquitted him. Additional Sessions Judge Shayana V. Patil said, “The prosecution has miserably failed to establish that Mr. Jadhav committed sexual intercourse repeatedly with the victim at various places with the threat of publication of photographs and video clips taken under the state of unconsciousness.” On the basis of Section 232 of the Code of Criminal Procedure, the judge acquitted him of all accusations. “Judge considers there is no evidence that the accused committed the offence, the judge shall record an order of acquittal,” delivers the judgment.

WHY IS OUR CONVICTION RATE SO SLOW?

The Supreme Court, in an unusual action, criticized a rape victim in September of last year. During the lower court hearing, she withdrew her complaint against the rapist, claiming that no such incident occurred. The accused was acquitted by the trial court based on her revised statement. In the H N Gadhvi v. State of Gujarat case, an enraged Supreme Court not only condemned the guilty, but also expressed great regret for the victim's behaviour. The court stopped just short of bringing charges against her.

The problem of victims doing somersaults in court is not new. Many offenders in India get away with their crimes because their victims become hostile. Victims of crimes against women, in particular, change their testimony in court to aid the same person who did the crime against them. Why would a woman do anything like this?

In the majority of cases, when a minor girl or even an adult woman sides with her rapist in court, it is not her choice. The testimony is chosen by the family elders, relatives, or community leaders. When such disputes are resolved outside of court, frequently in exchange for money, the victim's wishes and feelings are rarely taken into account. Who is going to get the money? The family members, of course. The sad part is that she is wronged twice in the process. The first time she is raped. Second, when she is pushed against her will to change her statement.

Not only in rape cases do victims switch sides. The Jessica Lal and Priyadarshini Mattoo murder trials are two old but well-known examples where the trial court was forced to acquit the accused because key witnesses became hostile. While delivering the verdict in the Mattoo case, the judge expressed regret that he was forced to acquit the murderer. Following a public outcry, the accused was found guilty by the appellate court.

As a result, it should come as no surprise that our country's conviction rate is quite low. The conviction rate for IPC offences is around 40%. It is a miserable 18.9% in situations of sexual violence. It is less than 10% in states like West Bengal, Andhra Pradesh, Telangana, Gujarat, Odisha, and Karnataka. In these states, nine out of 10 people accused of sexual offences are acquitted.

It is commonly assumed that offenders are not prosecuted because police investigations are inadequate. The reality is totally different. The majority of acquittals are the result of witness and complainant hostility. There are legal procedures that allow such individuals to be prosecuted for perjury, but they are rarely used and difficult to prove.

Despite these challenges, the government cannot relieve itself of duty. The conclusion of a criminal case has consequences throughout the society. When an accused in a Jessica or Mattoo case walks free, it affects people's faith in the system as a whole. It empowers criminals while threatening law-abiding citizens.

If witnesses refuse to cooperate with the law owing to greed or other factors, the state must implement policies to address the issue. A skilled and scientific investigation can ensure that cases are brought to a logical conclusion even when witnesses become hostile. Even the victim cannot save the accused once rape has been proven through medical and DNA investigations, as well as other physical and digital evidence. The same is true in other situations. In court, people can change their statements, but scientific proof is irreversible.

Another issue is the length of the trials. Our court system is one of the slowest in the world, with over 3.4 crore cases pending. The criminals have enough time to persuade their victims by any means necessary. Witness protection can also aid in raising the conviction rate. We frequently hear those witnesses in high-profile trials are being threatened. There have even been cases where innocent witnesses have been murdered. This clearly discourages people from speaking up and telling the truth. The state must ensure that witnesses who tell the truth in courtrooms are protected. Our Supreme Court has approved and adopted the Witness Protection Scheme in 2018.

The ultimate test of a judicial system is the conviction of a criminal. It is a waste of time and work if the guilty are let off after years of investigations and trials. People are deterred from committing crimes by the certainty of punishment, not by the harshness of the punishment. Only the severity of sanctions has been growing.

One of the reasons why criminals go unpunished is poor police investigation too. Witnesses and complainants' hostility, as well as familial pressure on the victim, all play a part. The NCRB findings are crucial because they show that many rape or sexual assault victims do not disclose the offence to the authorities. The Supreme Court has raised concerns over the low conviction rate, stating that 90% of rape prosecutions end in acquittal.

NO SUPPORT FOR VICTIMS

When asked about the low conviction rate in cases of crimes against women, a senior officer explained that the cases are prioritised and a chargesheet is filed within 60 days, but that during the trial, either witnesses become hostile or there is a lack of eyewitness testimony, delaying the process and lowering the conviction rate.

Advocate Meera Bhatia, who was assisting the Delhi High Court as an amicus curiae in a case brought after the December 16, 2012 gang rape case to improve the protection of women in the city, noted that the victim in many cases comes from a low-income family. In many circumstances, a lack of counselling and support causes witnesses to become hostile. In addition, because victims do not want to pursue protracted litigation, delays in investigation and trial result in fewer convictions.

REASONS FOR WITNESS TURNING HOSTILE

The problem of hostile witnesses has arisen numerous times in the present scenario. It has been observed that police witnesses often become hostile during trials, resulting in a weakening of the argument in favour of the parties calling those witnesses. Witnesses being hostile can be caused by a variety of causes. The crucial reasons for witnesses being hostile are fear, greed etc. and in order to satisfy their greed or conquer their fear, witnesses appear to become hostile, i.e., back out of their previous statement.

1. Absence of Witness Protection Programs

Many witnesses do not come forward to provide their evidence in India, either because of excessive delays in police or court proceedings. They can even refuse to come forward if they receive threats or warnings. Before giving evidence in court, witnesses are often assaulted, harmed, and even murdered. “Not only is a witness threatened; he is maimed; he is done away with; or even bribed,” the Supreme Court said in Swaran Singh's case. He is not protected in any way.^[1] The primary reason for witnesses retracting their previous comments made during the trials is the danger to their lives. However, since 2018, there is a witness protection scheme but its proper implementation is the key to prevent external threats, inducement, or intimidation.

2. Delayed and Extensive Trials

Apart from the lack of a victim protection policy, another big cause for witness retractions is long and extensive trials. The judicial system is extremely slow. When the witness arrives in court for cross examination, he is informed that the case has been postponed and given a new date to appear. As a result, the witness becomes frustrated, and he tries to become hostile in order to end his problems once and for all. For a long time, the Indian judiciary has been plagued by the evil of endless adjournments. They are expected to travel long distances to the courts on their own cost. They may be unable to travel long distances without leaving their families, or they may lack sufficient funds. This frustrates the witness, giving the opposing party an incentive to threaten or intimidate them into not speaking the truth.^[2]

3. Lack of Adequate Facilities in the Courts

Despite the critical and vital role that witnesses play in criminal trials, the facilities available to them are limited and inadequate. In some states, witnesses are forced to wait under trees on court campuses or on the verandas of courthouses, as stated in the 14th Law Commission Report^[3]. They are not shielded from the effects of the weather. Also, the condition of the courthouse sheds is not good.

4. Defaults in Payment of Allowances

The 154th Report of the Law Commission^[4] of India stated that the allowances given to witnesses for appearing before the courts are insufficient and demanded immediate payment regardless of whether they are investigated or not. According to Section 312 of the Criminal Procedure Code, any Criminal Court can “order payment, on the part of the Government, of the appropriate expenses of any complainant or witness attending for the purpose of any investigation, trial, or other proceeding before such Court under this Code,” subject to any rules made by the State Government. The majority of the time, however, adequate diet money is not paid to the witnesses.

5. Use of Stock Witnesses by Police

A stock witness is someone who is used by the police to provide false evidence in court about the occurrence of a crime. When actual witnesses are unavailable or cannot be found, the police use stock witnesses as defence witnesses. Since such witnesses are bought for a low price, the likelihood of them being hostile is far higher, and in order to make more money, they turn to the side of the accused, resulting in the accused's acquittal on the basis of lack of evidence, since there is no reliable evidence on record to convict the accused.

6. Use of Threat/Intimidation by Accused

The most common tactic used by the accused to get witnesses to turn hostile is threat/intimidation. One of the main factors that caused witnesses and their family members to withdraw their previous statements was the danger to their lives.

In Krishna Mochi v. State of Bihar^[5], “Wrong convictions and wrong acquittals both damage society,” the Supreme Court said. In this case, the Supreme Court noted that one of the reasons might be that they lack the confidence to witness against an accused because of threats to their lives, particularly when the defendants are habitual criminals, high-ranking government officials, or people with access to power, whether political, economic, or otherwise, including muscle power.

7. Use of Money Power by the High Profile Accused

In most cases, the accused, who is a high-profile person, uses money to avoid prosecution, and in order to do so, they give handsome money to the witnesses, who, as natural people, are easily influenced by the allurement offered by the accused. In such cases, the money power used by the accused in order to avoid criminal responsibility has an effect on the witnesses as well as the victim. As a result, such offenders in our criminal justice system are often acquitted.

8. Grant of Bail to the Accused by the Court

The last aspect that contributes to witness hostility is the simple availability of bail for those convicted of committing heinous crimes. The court sometimes grants bail to those convicted of committing heinous crimes who, after being released from prison, attempt to conceal their guilt by threatening, bullying, and bribing the accused and the witness, who, out of fear or greed, chooses to become hostile.

THE JUSTICE SYSTEM

A case can languish in the court system for decades once it has been charged by the police and submitted for trial. The number of new rape cases submitted for trial in 2016 was larger than the number of cases disposed of by the courts in the same year. The tortuous procedure worsens the victim's trauma, and she frequently collapses under pressure from her own family or the accused, and becomes hostile. Even overcoming all of these challenges does not guarantee that the victim will receive justice; the national conviction rate for reported rape crimes is only 25.5 percent. The inadequate collecting and mishandling of evidence is a major reason in the low conviction rate.

IMPACT OF WITNESSES TURNING HOSTILE ON CRIMINAL JUSTICE SYSTEM

In recent years, India has seen a sharp rise in the number of hostile witnesses, raising concerns about witness safety in criminal trials. It is important to note that India lacks an effective law to protect witnesses of crimes, as a result of which many witnesses have become hostile during trials, obstructing the path that reach towards the justice. In few cases like Jessica Lal, BMW case and Best Bakery case[6], owing to a lack of witness protection, several witnesses declined to appear in court for the victim and they became hostile which resulted in the acquittal of those convicted of terrible crimes.

It is a moral principle that a person who does something wrong should be punished in order to deter potential criminal behaviour and to set an example for those who commit similar crimes. The rate of criminal conviction, or the number of cases that result in a conviction of the accused, is a good indicator of how well the Criminal Justice System is functioning. In certain cases, the truth is never revealed, and the accused is convicted due to a lack of evidence against them. The punishment has little deterrent impact due to the reduction in the conviction rate of those convicted of heinous crimes. The best way for an accused to avoid criminal liability is to convince witnesses to become hostile and then get the case dismissed by the court due to a lack of evidence. As a result, they will be motivated to commit more horrific crimes because they are no longer scared of the law, resulting in a state of complete chaos in society.

People's faith in the courts is also diminished as a result of the issue of witnesses turning hostile toward the criminal justice system. The rising rate of acquittals would give the impression to the general public that the court is determining the case on the basis of extraneous considerations, weakening the community's trust in the administration of justice and causing citizens to lose faith in the judiciary. In certain cases, an accused's acquittal has been based on the testimony of hostile witnesses, particularly when a high-profile personality is involved.

In Priyadarshani Mattoo case[7], Priyadarshani Mattoo was raped and murdered. At accused’s appeal, the prosecution's witnesses gave false testimony in front of the judge. During the trial, the accused's father served as the Commissioner of Delhi. Owing to a lack of availability of evidence, the trial court granted the accused the benefit of the doubt and acquitted him. According to the trial court, the accused's father, who was in a powerful position at the time of the trial, may have abused his position. While delivering the verdict, Additional Session Judge G.P. Thareja said, "Though I know he is the man who committed the crime, I was compelled to acquit him in the benefit of doubt."

The above sentences by the Additional Session Judge demonstrate that even though the whole nation knew who the criminal is, the Court was unable to interfere because, in the justice system, conviction is based on the prosecution's evidence against the accused that proves his guilt beyond a reasonable doubt, not on public opinion. Thus, if a witness becomes hostile and falsely deposes before the court during the trial, the court's search, i.e., to reach the end of justice, would be greatly hampered.

In Zahira Habibulla Sheikh v. State of Gujarat,[8] ‘a fair trial’ is described by the Supreme Court as a trial in which bias or prejudice for or against the accused, witnesses, or the cause being tried is eliminated. A fair trial would also be impossible if witnesses were threatened or forced to give false testimony. Witness hostility in serious crimes and crimes committed by "high-profile" people has placed the criminal justice system under strain today. Because of the high acquittal rates in high-profile trials, poor people believe that the legal system is not for them because they cannot afford to buy justice. As a result, they have lost confidence in the legal system.

CONCLUSION

In India, rape victims encounter significant obstacles in their quest for justice, which is made more difficult by systems that blame victims for their misfortune. Victims may face hostile circumstances in police stations, or they may be frequently pressured to drop their case. In some circumstances, those in positions of power may try to undermine the police's authority. Officers are hampered from performing their duty when they are threatened with transfers.

One of the major issues in India's justice delivery system is witness hostility, and one of the major reasons for this is witness safety during and after trial. Witnesses in cases involving well-known individuals are particularly prone to criminal intimidation. This includes criminals using force or money to persuade witnesses to withdraw statements made about criminals during the trial. In the current situation, it is critical to provide a strong witness protection regime, especially in cases of heinous crimes such as rape, murder, and other socio-economic offences, but unfortunately, most countries around the world, including India, lack adequate implementation of such laws.

The media, too, bears a great deal of responsibility. Rather than misrepresenting the case, they should try to provide a positive and analytical account of it. The courts and the legislation should make arrangements to ensure that witnesses are protected.

Protracted trials should be stopped at all costs. This backlog of cases that take a long time to resolve, as well as the regular adjournment of cases, should be eliminated. The rules governing the payment of allowances should be improved so that a poor witness does not become hostile as a result of his or her frustration at having lost a large sum of money. The ease with which bail is granted to the accused who ends up threatening the witness should be investigated. There is an urgent need for police reforms in the way inquiries are carried out. If and until the witness is made to understand that the system is designed for him and that he is at ease with it, hostility of witnesses would remain a frequent phenomenon in any case.

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