Delhi: On 16 August 2023, a court in Delhi discharged three Muslim men in a case related to rioting, unlawful assembly, and vandalism during the communal riots in the national capital in February 2020. Additional Sessions Judge Pulastya Pramachala of the north-east district Karkardooma courts noted his “suspicion” of the investigating officer having “manipulated the evidence” without actually investigating the case.
“The chargesheets were filed in a predetermined, mechanical and erroneous manner, with subsequent actions to only cover up the initial wrong actions,” the judge said in his order.
This case is just one of the many Delhi riot cases in which the courts have found or suspected fabrication of evidence by the state police or found its witnesses lying under oath (here, here, here, here). In most such cases, they fell short of ordering any action against the police officers or their witnesses.
As recently as 8 June 2023, in a case where the perjuring party was the defendant, a two-judge bench of Chief Justice Sanjib Banerjee and Justice W Diengdoh of the Meghalaya High Court noted: “Unless Indian judges get serious with litigants and witnesses, the present trend of false affidavits being filed and false evidence being given may one day render the judiciary irrelevant.”
While perjury is committed in criminal matters, and even in private disputes, like matrimonial or property cases, the state—the biggest litigant, making up “50% of all pending cases” in India—usually the prosecutor in criminal cases—is held to a higher standard because the offence strikes at the very foundation of the right to a fair trial and has grave implications for the running of the criminal justice system.
No Punishment For Perjury
The Allahabad High Court had held it a “duty” for a police officer or a government official to allow a case to come before the court without fabrication and to not deceive the court by perjury for a favourable order.
But after passing orders and judgments castigating the police, judges almost never invoke laws meant to prosecute the state for bringing false charges or giving false evidence in a trial, contributing to the impunity with which the police commit these crimes. This two-part series will look at the challenges faced by the legal system in prosecuting perjury under section 191 (offence of giving false evidence), and the offence of fabrication of false evidence under section 192—offences punishable with up to 3 years, 10 years, life imprisonment, or death penalty, depending on the severity of the crime.
Given that both of these offences directly impact the core purpose of any court—to “establish the truth”—accomplished only through the evidence presented by both parties before it, the giving of false evidence and fabricated evidence can severely compromise this fundamental process, leading to wrongful incarcerations or even convictions.
However, judges hesitate or are simply unable to initiate perjury for varied reasons.
Since these prosecutions involve establishing “intent” to mislead the court, they can be difficult to pin down.
“When it comes to proving intent, you have to prove that the person actually knew their statement was false and sought to mislead the court into giving an erroneous opinion, and yet proceeded to give it under oath. This is why it is difficult,” Vikas Upadhyay, a criminal defence lawyer at the Supreme Court of India told Article 14.
Other reasons are the unreliability of police investigating the police and hesitancy in initiating legal proceedings that are likely to go nowhere in an overburdened court system. Besides, long delays in trial may genuinely lead to factual inconsistencies in witness statements on account of misremembering.
Rebecca John, a criminal defence lawyer and senior advocate at the Supreme Court of India said perjury prosecutions are “not prioritised by Indian courts because it’s treated as one of the fallouts of a bad litigation”.
“There’s no premium of honesty in our country,” said John. “So, therefore, it’s kind of understood that everybody perjures.”
Prosecuting Perjury
In the first of a two-part series, Article 14 analysed five judgments of court cases over 15 months from five states—Uttar Pradesh, Maharashtra, Madhya Pradesh, Assam, and Delhi—that reveal a similar modus operandi of the police giving false and fabricated evidence before courts.
The judgments revealed a lack of thorough assessment of evidence by the trial courts, inconsistencies and contradictions in state witness statements, the culpability of investigators, and the court’s failure to order the prosecution of state actors for the offences.
In part two, we delve into the challenges of mounting perjury prosecutions. Our analysis found that in cases where the police pressure witnesses to lie in court, it is difficult for judges to rely on the police to investigate other police officers who may have done so. Other factors, such as rising pendency of cases, also deter judges from adding another case to the pile.
Theoretically, a victim of a wrongful conviction or even incarceration and prosecution can move the courts for compensation from the state, file a civil suit for damages, or criminal complaint under various sections of the IPC (here, here, here) against the concerned officers depending on the nature of the crime committed. But relitigating and the futility of the process make for very few people even trying to get justice despite suffering grave injustice at the hands of the state.
A lack of incentive for trial lawyers along with the generally long delay in completion of trials resulting in genuine and unintentional misremembering by witnesses, has led to a general state of lying with impunity.
‘Fabricated & Engineered’ Evidence
In January 2010, police in the Lakhimpur Kheri district of Uttar Pradesh arrested a man named Ramanand for allegedly murdering his wife Sangeeta and four of their minor daughters with a sharp cutting weapon called Banka.
In the absence of any eyewitnesses to the crime, the prosecution relied on two witnesses, who testified that Ramanand had made an “extra-judicial confession” to the crime before them.
A confession made outside a court or not before a magistrate, in private, is termed an extra-judicial confession. Such a confession can be entered as evidence in court, if the person before whom such a confession is made, testifies to it.
The trial court, relying on this and other circumstantial evidence presented by the prosecution, convicted Ramanand under section 302 of the IPC for murder and sentenced him to death. His challenge before the Allahabad High Court was also defeated, thereby confirming the death penalty.
The case was eventually heard by the Supreme Court of India.
In a 13 October 2022 judgement, a three-judge bench consisting of the then Chief Justice of India U U Lalit and Justices Ravindra Bhat and J B Pardiwala noted that the testimonies alleging extra-judicial confession made by Ramanand “appears to be fabricated and engineered only to bolster up the case of the prosecution”.
A major hole in the prosecution’s witnesses’ testimonies, the court noted, was the timing of when the accused was alleged to have visited their homes to make the extra-judicial confession.
“How is it possible for the accused appellant to be present at three different places in or around between 06:30 A.M. to 07:30 A.M.,” the court asked.
“The PW4 [Prosecution Witness 4], Ram Kumar also appears to be a ‘got up’ witness only for the purpose of creating evidence in the form of extra-judicial confession,” the court concluded, before finally setting aside the death penalty and freeing Ramanand.
Though fabrication of false evidence leading to a sentence of death penalty is a graver crime, punishable with life imprisonment or rigorous imprisonment of up to 10 years, the court fell short of ordering action against the “got-up” witnesses and errant police officers.
False Testimonies As Evidence
In another case from 2008 Bhopal in Madhya Pradesh, a 23-year-old tribal man named Chandresh Marskole was arrested on the charges of murdering his alleged girlfriend, Shruti Hill, and disposing of her dead body in a ravine 200 km from Bhopal.
In the absence of any eyewitnesses to the murder, the police relied on statements of two main witnesses—the complainant Dr Hemant Verma, and his driver Ram Prasad who had allegedly driven Marskole to the site of body disposal. Verma had claimed that he lent his car and driver to Marskole at his request to travel to Hoshangabad—77 km from Bhopal.
It was the prosecution’s case that Marskole had wrapped Hill’s dead body in bedding, loaded it in the car in the presence of the driver, and disposed of it in a ravine 200 km from Bhopal in Pachmahri.
While the trial court convicted Marskole of murder and sentenced him to life in prison and a fine of Rs 5000 in 2009, the Madhya Pradesh High Court overturned the judgement last year.
In their 4 May 2022 judgement, Justices Atul Sreedharan and Sunita Yadav raised several questions about the complainant Verma’s testimony.
The court questioned how Verma, in his complaint to the police, could claim that Hill was “murdered” and describe the bedding in which her body was wrapped as “heavy”. This, it felt, raised doubts because Verma was not present with Marskole on the day of travel, and his driver never made similar claims in his testimony.
The judges felt that this made him “the man who knew too much and perhaps the perpetrator of the offence”.
The court also found loopholes in the prosecution’s case and noted that there is a “miasma surrounding the prosecution’s case whether the [accused] appellant actually travelled in the vehicle”.
All these, the court said, “demolishes the fulcrum of the prosecution’s case and renders the entire testimony of PW1 [Verma] and PW9 [Prasad] false, motivated, and dubious”.
In this case, too, the court fell short of ordering perjury prosecution against the prosecution witnesses. However, it stated that Marskole was a victim of “malicious prosecution” by the police and ordered the state government to compensate him with an amount of 42 lakh rupees.
Contradictions & Inconsistencies
In all five cases of false and fabrication of false evidence, the State’s and its witnesses’ versions had significant self-contradictions and inconsistencies.
One such case is from Dibrugarh district of Assam. In 1989, a First Information Report (FIR) came to be filed against 13 men who allegedly murdered a man named Pradip Phukan. The complainant, the sister-in-law of the deceased, also alleged that the group caused grievous injury on the head of her brother-in-law Robi Phukan.
Both the trial court and the High Court of Gauhati concluded that the evidence led by the prosecution, the state of Assam, was “unquestionable” and convicted 11 of the 13 men under various provisions of IPC for the murder.
Of the 11 convicts, four appealed their conviction before the apex court.
The Supreme Court differed from the two lower courts in its opinion.
In its 28 March 2023 judgement, a three-judge bench comprising Justices BR Gavai, Vikram Nath, and Sanjay Karol noted that the complainant’s version of the incident in the FIR and her testimony in the trial are “materially different”, concluding that her evidence “appears to be a tutored version”.
The court also found contradictions in eyewitness accounts of four people at the site of the incident and the FIR lodged by the complainant. All four witnesses provided conflicting statements regarding which accused struck the deceased on the neck first.
Taking note of these inconsistencies, the court noted that it “creates a very serious doubt on the entire prosecution story”. It finally set aside the conviction, noting that the prosecution failed to establish a case beyond reasonable doubt.
Despite noticing inconsistencies, illogicality, and “tutored witness” statements, the court failed to initiate perjury proceedings against them.
In another case of vandalism and looting from the 2020 Delhi riots that killed 53 people and injured over 700, a local Delhi court noted in its 30 May 2023 judgement that the police had failed to record eye-witness statements immediately or with the least possible delay, as is required by law.
The court eventually acquitted the accused, Noor Mohammad, noting that the prosecution’s case was “false” and “fabricated” and that witness evidence was “procured and prepared falsely and belatedly to solve this case”.
Violation Of Procedural Safeguards
All five cases analysed by Article 14 highlighted serious violations of procedural safeguards contained in the law.
One such case is from Gondia district in Maharashtra. In the year 2010, nine persons were accused of being members of the banned Communist Party of India (Maoist) and of waging war against the state.
Though the nine accused were acquitted in 2014, the supplementary chargesheets filed by the police during the trial came to implead six other people on similar charges, including under Unlawful Activities Prevention Act (UAPA), 1967.
Ten years after the arrest, the trial court in Gondia noted in its 29 March 2023 judgement that three of the five surviving accused were again booked for a crime they were accused of in 2008 and acquitted of in 2012.
“So far as accused no. 1, 2, & 4 are concerned they are being roped in since they were accused in S.T.No.57/2012 [Session Trial] and 123/2012 decided by Sessions Court, Chandrapur in which they were acquitted and hence they cannot be tried again for the same offence as it would amount to double jeopardy within the meaning of Sec. 300 of Cr.P.C,” the Additional Session Judge Adil M Khan noted.
Article 20(2) of the Constitution of India states that “No person shall be prosecuted and punished for the same offence more than once”, otherwise known as the doctrine of double jeopardy.
Statutory provisions including section 300 of the CrPC, section 40 of the Indian Evidence Act, 1872, section 71 of the IPC and section 26 of the General Clauses Act, 1897 also provide a protection framework for double jeopardy. The police in this case failed to adhere to these laws.
Further, the court also noted that the police failed to prove that the state government accorded a valid and legal sanction to prosecute the accused under the UAPA.
Rule 3 of the UAPA Rules 2008 mandates an authority to submit his report for a recommendation for sanction within seven working days of the receipt of evidence so gathered by an Investigating Officer to the sanctioning authority, the state or central government, and further seven days for such sanctioning authority to take an independent decision.
“The prosecution has failed to produce the representation on record,” the court said.
“The offence is of 2010. The sanction was accorded on 18/10/2014 and 04/09/2015. There is a considerable delay of about 05 years which is not explained by the prosecution,” the judgement stated.
Finding these omissions of procedural safeguards along with “unreliable”, and “tutored” prosecution witnesses, the court finally acquitted the surviving five accused.
Trial-Court Omissions & Malicious Prosecution
All three cases that were reviewed by a higher court drew criticism of the trial courts for omissions in assessing evidence and policy for its investigation.
In Ramanand’s case from Uttar Pradesh, the Supreme Court observed “infirmities” in the manner in which the trial court and the High Court appreciated the evidence of extra-judicial confessions.
While terming the legal aid provided to the accused as “below average”, the apex court noted the trial court’s failure to ensure “appropriate and meaningful legal aid” to the accused.
In the Pulen Phuken case from Assam, the apex court accused the police of possibly “having committed the murder in the process of arresting the deceased, and thereafter, knowing the enmity between the two parties, set-up a false case against the accused”.
In the Maharashtra Naxal case, the trial court noted that one of the prosecution witnesses admitted to deposing falsely in the court “on the say of the police”. It also noted that the witness’s statement is “not reliable” and that “he was compelled to gave [sic] statement and evidence by the police specially the investigating officer Shri Rajmane”.
In the Shruti Hill case from Madhya Pradesh, the High Court noted that “the case reveals a sordid saga of manipulative and preconceived investigation followed by a malicious prosecution, where the police have investigated the case with the sole purpose of falsely implicating the Appellant and perhaps, deliberately protecting a prosecution witness who may have been the actual culprit”.
In all three cases, the courts fell short of ordering an investigation against the police officers despite finding serious illegalities.
This is the first of a two-part series.
Next: Lying With Impunity: The Challenges Of Prosecuting The Police For Perjury
(Saurav Das is an independent investigative journalist and transparency activist based in New Delhi.)
Get exclusive access to new databases, expert analyses, weekly newsletters, book excerpts and new ideas on democracy, law and society in India. Subscribe to Article 14.