By Dr Swati Jindal Garg
The recent murder of Umesh Pal caused a huge uproar in the Uttar Pradesh
assembly. As the Samajwadi Party (SP) raised the issue, Chief Minister Yogi
Adityanath accused the SP regime of promoting criminals and vowed to destroy
“mafias and criminals such as former MP Atiq Ahmed”, the prime accused in
the Raju Pal case who was also killed in similar circumstances in January 2005.
Umesh Pal, the key witness was shot dead near his house in Dhoomanganj,
Prayagraj, in circumstances similar to Raju Pal’s killing, also in Prayagraj.
Prayagraj Police Commissioner Ramit Sharma told reporters that Umesh Pal
was attacked with crude bombs and shot outside his house. Two of his police
gunmen were injured in the attack. Pal was rushed to Swaroop Rani Nehru
Hospital, Prayagraj, where he succumbed during treatment, the police said.
A day after the murder, the police registered an FIR naming Ahmed, who is
currently in jail, his wife Sahista Parveen, his two sons and younger brother
Khalid Azim alias Ashraf, among others. A total of 14 suspects, including
Ahmed’s sons, have been held for questioning. Ahmed, his brother, and ex-
MLA Ashraf are prime accused in the Raju Pal murder case and all the accused
are presently lodged in jail.
A woman eyewitness in the case who lives in Prayagraj district has reportedly
said that since Umesh Pal’s murder no one in her family has stepped out of their
house. The woman also said: “I am an eyewitness in Raju Pal’s murder case.
After Umesh Pal’s murder, we all are scared because the assailants were able to shoot him despite the fact that he had two police gunners for security. One of
the gunners also died in the attack.” She recalls: “In 2005, I was sitting next to
Raju Pal in a car when a group of assailants attacked him. Two bullets hit my right shoulder and I was hospitalised for a long time. After Raju Pal’s murder, I
was given a police gunman for a brief period, but the security was withdrawn
later. A few years later, I was again given security cover, but that too was
withdrawn.”
Fearing for her life, the woman said that she had been constrained to make
private arrangements for her as well as her family’s security as “a group of
assailants had allegedly threatened her family by opening fire outside their
house”. The family also reportedly alleged that the attack was in retaliation to
her statement that was recorded before the CBI. An FIR was lodged at a local
police station after the woman’s family had filed a complaint.
Her husband, who is a farmer, reportedly said: “We are being pressured.
Fearing our safety, we sold our first house and shifted to a new one. Umesh
Pal’s murder has shaken us.” “We are not in touch with other witnesses of the
(Raju Pal) murder case, but I had met Umesh Pal several times in court,” the
woman added. In another interview, Raju Pal’s wife MLA Pooja Pal was
reportedly heard saying: “The woman was among the eyewitnesses who were
injured in the attack on my husband. She was my husband’s friend.”
Considering the state of the witnesses and their protection, it is imperative that
due protection is given to them as their testimony goes a long way in punishing
the culprits responsible for these sensational murders that happen in broad
daylight. Even though witness protection in India is not a heavily discussed
matter as compared to other issues like rape, domestic violence, etc., its
importance in the legal system cannot be overemphasised. Both the parties to
the case are well aware that a single eyewitness has the power to tilt the verdict in their favour. Consequently, many times witnesses are either emotionally blackmailed or bribed to stay quiet and change their stand in a case. Some are even threatened in order to dissuade them from giving their testimony.
Legally speaking, a witness is a person who sees the crime happen and has the
ability to express it when asked by the court. Under Section 118 of the Indian
Evidence Act, 1872, the term witness is defined as a person who is competent
enough to understand the questions asked by the court. Thus, according to this Section, any person can be a witness unless he/she is unable to understand and answer the questions that are asked.
After a spate of crimes that involve killing of key witnesses, their protection in
certain cases that have been going on for many years has become an issue of
grave concern in India. It is rarely seen that a witness has changed his/her stand
by his/her own free will during a trial. At the same time, it has also been observed that due to certain pressures that include the threat to the life of the witness itself, one of the main reasons due to which witnesses change their stance can be the lack of proper protection given to them by the State. Such witnesses are known as hostile witnesses.
The 4th National Police Commission Report, 1980, states that most witnesses in India are turning hostile because of pressure and coercion by the accused and
that a regulation on the manipulation of witnesses is necessary. The state of
witnesses in India is bad specially in the light of the fact that there is a lot of
stress witnesses have to deal with-first witnessing the entire crime scene and
then staying in fear against a possible threat to their lives.
The right to fair trial provided to all citizens by the Constitution under Article
21 is an important feature of Indian democracy. In light of the same and to
ensure adequate protection to a witness, the Witness Protection Scheme was set
up in 2018, which is the first legal enactment set up by the Indian government.
The need for such an Act was long overdue. The objective of the scheme is
simple – to protect and safeguard the interests of witnesses in India. The
Scheme further enables the witness to get a police escort to the courtroom. The
Act prescribes dividing the witnesses into three categories:
- Class A: When the witness and his/her family members get threats to their lives during the proceedings.
- Class B: When the safety, reputation and property of the witness and his/her family members during the investigation is threatened.
- Class C: When the threat only extends to harassment of the witness and his/her family members during the proceedings.
The Scheme also goes a step ahead and provides for a Witness Protection Fund,
which is created for the expenses incurred during a witness protection order. The witness protection order is the detailed list of protective measures to be
passed by a competent authority.
Further, the Scheme ensures full identity protection of the witness and his/her
family members during the investigation. Some of the other protective measures
mentioned in the Scheme include:
- Installation of security cameras at the witness’s house.
- Regular patrolling and recce of the witness’s house.
- Monitoring the witness’s call records, emails, messages, etc.
- Relocation of the witness based on the threat analysis report.
- Emergency contact numbers are provided to the witness.
The witness protection programme in India has definitely come a long way
since the 14th Law Commission Report in 1958 which talked about the witness
protection in India for the first time. Thereafter, various other enactments,
including the Protection of Children from Sexual Offences Act, 2012, the
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, the
National Investigation Agency Act, 2008, etc., have mentioned the need to
safeguard the rights of witnesses and give them adequate protection.
From the crime scene to the courtroom, a witness has to experience everything.
To add further misery, witnesses are exposed to life threats, coercion,
harassment, etc., by the accused. The recent cases of Asaram Bapu and Umesh
Pal are best examples wherein not only the prime witnesses, but also various
journalists and other individuals who were associated with the cases were killed.
The efficacy of the witness protection programme in India, as compared to other developed countries like the United States, can be said to be extremely poor. It is not that the laws are not present. Some of them are in place, but the difficulty remains that they have not developed at the same pace as the crime itself.
The United States has laws on witness protection which most of the countries
do not have. Prevention of “witness intimidation” to maintaining “anonymity”
are some of the most important aspects of witness protection issues that the
witness protection programmes in the United States deliberate upon and that too is done comprehensively and extensively.
It will, therefore, be in the interest of India to fall back upon the United States
for starting witness protection programmes as the situation of protection of witnesses here is bleak. Due to lack of witness protection in India, many witnesses do not favour the victim or appear in court.
The Indian Witness Protection Scheme, 2018, and also the setting up of separate
vulnerable witness deposition centres can be said to be important and effective
steps taken by the administration, but we still have a long way to go before
India can be said to have an effective witness protection programme.
Unanimous and separate legal provisions for safeguarding the rights of
vulnerable witnesses, including strict punishment for those who manipulate the
witness is the need of the hour as it is the witness who plays a crucial role in the
discovery of truth, and consequently administration of justice, and is entitled to get protection from the accused person in order to testify freely in the court of
law. Without assurance of safety, no person will be ready to come forward and
share the information related to the crime.
—The writer is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi