Chhawla Rape Case: Only a Better Investigation Procedure Can Lead to Justice

Was the Supreme Court wrong in acquitting the accused? Or was the shoddy investigation to blame for the injustice?

On Monday, 7 November, in a stunning reversal, the Indian Supreme Court acquitted all three persons accused of raping and murdering a 19-year-old in the 2012 Chhawla gang rape case.

The order setting aside the conviction by the trial court and its ratification by the Delhi High Court raised eyebrows and enraged the victim’s parents, activists, and lawyers across the country.

The case, which happened in the preceding months of the Nirbhaya gang rape, triggered public furor because of the gruesomeness of the offence.

The deceased was partly burnt, and horribly mutilated, and signs of torture were still visible when her body was found four days later. 

The reasoning of the three-judge bench of the Supreme Court while reversing the acquittal is that there was no "clinching and clear evidence" against the accused. As per the court, there were various "glaring lapses" in the investigation, depriving the accused of their right to have a fair trial. 

This article will look at the position of the law with respect to "lapses in procedure" as grounds for acquittal and whether the SC ruling satisfies it.

Further, I will address the root of the problem, which is a lackadaisical and highly shoddy investigation conducted by the police, resulting in gross injustice to the deceased victim and her family members, and how we can avoid repetition of the same. 

Lapses in Procedure as the Ground of Acquittal

Criminal law is divided into two broad categories: 1) substantive law, which defines offenses and prescribes punishments for the same, and 2) procedural law, which governs the administration of substantive law.

The arrest of the accused, investigation, determination of guilt and innocence of the accused, and imposition of proper punishment all come within the procedural criminal law codified under the Criminal Procedure Code (CrPC) in India.

The primary difference between both the laws lies in the fact that substantive law goes to the heart of the proceedings, and its violation leads to the acquittal of the accused.

On the other hand, a breach of procedural law does not entail similar consequences. Procedural law is meant to further the ends of justice and not to frustrate it by inducing unwarranted technicalities. 

The test which emerges from a perusal of past judgments is that no lapse of procedural criminal law will lead to reversal or acquittal unless prejudice is caused to the accused leading to a miscarriage of justice. 

The law with regard to discrepancies in the investigation as grounds for acquittal is also well-settled.  

The test of when investigation can be ground for acquittal is laid down in C Munniappan v State of Tamil Nadu. In this case, the Supreme court had held that if there is negligence on the part of the investigation agency resulting in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapse to find whether such evidence is reliable and whether such lapse is affecting the finding of truth.

Thus, we can infer that the conclusion of the trial cannot rest solely on the probity of the investigation. And, the court can ignore it if, despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. 

‘Glaring Lapses’ In Chhawla Rape Investigation

In the Chhawla Rape Case, the SC spotted various "glaring lapses" in the procedure leading to the conviction of the accused.

The evidence pertaining to the arrest of the accused is not clear, and the identification of the accused by the witnesses was not made by the police. The discovery and recovery of the incriminating article are also not done diligently, creating a cloud of suspicion.  

Moreover, the DNA sample of the accused, which matched those of the victim, was not sent for examination for two weeks and was kept in suspicious circumstances raising the possibility of temperance.  

Further, as per the court, the trial court acted like a “passive empire”  and did not cross-examine the 10 out of 49 witnesses called by the prosecution.  

Putting the facts on the threshold laid above, it appears that the court rightly and legally went only by evidence placed on record. The evidence, in this case, is highly shaky, and there cannot be any moral conviction in a court of law.  

The non-identification of the accused, the possibility of tampering with the DNA samples, and suspicion over the incriminating material are causing prejudice to the accused. As the prosecution case rested solely on these evidences, even if the court were to look past the bad investigation, the prosecution will be unable to discharge its burden beyond a reasonable doubt. 

In this case, the grey area or lacunae lies in the cardinal principle of our criminal justice system, which is that the prosecution needs to discharge its burden "beyond reasonable doubt."  

It means the prosecution bears the burden of convincing the court that there is no other reasonable explanation that can come from the shreds of evidence presented during the trial. If the evidence collected during investigation is shown to be untrustworthy, how can the prosecution prove its case beyond reasonable doubt? 

Justice for the 19-Year-Old?

With the Supreme Court's exoneration of the men, the question that emerges is if not the three accused, then who raped, brutalised, and murdered the 19-year-old?

The appalling answer to this question is that no one knows, and there is a high possibility that they can never be found and punished.  

The victim's parents have decided to file a review petition before the Supreme Court challenging its acquittal order and seeking reinvestigation. However, a “review” is in the discretionary power of the Supreme Court, and its scope is minimal.

In cases of acquittal, the scope of review is even less, as a reversal of acquittal is permissible only when the view taken by the court is shown not only to be erroneous but perverse and unreasonable too. Moreover, even if a reinvestigation is ordered, collecting evidence for a crime committed more than a decade back would be nearly impossible. 

The unsavoury investigation by the Delhi police in the Chhawla Rape case has proven to be an inescapable hurdle in the journey of justice for the victim. Thus, if we cannot find and punish the actual culprits, an overhaul of the investigative system is the only justice we can do for the deceased and her grieving kin.  

But this is not the first time that the issue of bad investigation has come into focus or has invited strictures from the judiciary. In the case of State of Gujrat v Kishanbhai, the Supreme Court had ordered the home department of every state to examine the order of acquittal and reasons for the failure of prosecution, by appointing a standing committee of senior police officers to record the mistakes that were made.  

In the case of Ankush Maruti Shinde v State of Maharastra, the Supreme court came down heavily on the lousy investigation. SC ordered that the investigating or prosecuting officer responsible for acquittal must be identified, and the erring officer must face appropriate departmental action. Besides, the court also proposed a 6-month investigation training to officers to ensure that persons handling sensitive matters are trained to handle the same. 

The Justice JS Verma Committee, appointed in the aftermath of the Nirbhaya Gang Rape case to look for reform in the criminal justice system to provide speedier justice in cases of sexual assault,  also touched upon the issue of investigation. The committee, in its report, recommended separating the investigation police from the law and order police. According to the committee, this would ensure speedier investigation, better expertise, and improved rapport with the public. 

However, the SC orders in Kishanbhai and Ankush Maruti cases are hardly implemented anywhere, and the JS Verma Committee report on various aspects, including investigation, continues to gather dust due to a lack of political will. It is of utmost necessity that SC orders relating to departmental action against erring officials and investigation training are implemented on the ground.  

Separation of wings of police between investigation and law and order can also improve the efficiency and quality of the investigation. Moreover, specific and heinous crimes like rape or sexual assault should not be left to be investigated by the daroga due to the sensitivity of the matter. Specialized police personnel needed to be trained and deputed to handle such matters in order to improve the quality of evidence during the investigation. 
Another suggestion (which has been made in the past, as well, by legal aid groups) is that a “Checklist” may be assigned to every investigating officer listing the steps he is supposed to undertake – from the commencement of the investigation till the filing of the charge sheet.

A different checklist can be made for different crimes detailing the procedure required to be followed. This will minimise the possibility of lapse, and ensure that any glaring lapse is identified at the right time so that it can be rectified before getting delayed. Moreover, it will induce confidence in the victim and his/her family that the investigation is going on the right track and that justice will be served to them. 

So, What Can Be Done?

A decade after the Nirbhaya case, which shook the country and led to widespread uproar,  thousands of rape cases are still recorded annually. Criminal law is envisaged as a deterrent for crimes by punishing those who commit the same.

However, the low level of conviction, which stands for a meager 28% in cases of rape, showcases the failure of our criminal justice system to deter such offenses. 
Overhauling the investigation procedure cannot be a panacea to our criminal justice system and is unlikely to lead to a swift upturn in the conviction rate. However, reforming the investigation procedure is the only justice we can do for the Chhawla rape victim.

It will send a message that we learn from the failure of our justice delivery system. In a crime as heinous as this, we can never allow omissions or negligence in criminal procedure to strangulate the delivery of justice. 

(Jeetendra Vishwakarma is a student at the National Academy of Legal Studies & Research (NALSAR) University Hyderabad. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)