LINGALA VIJAY KUMAR Vs. PUBLIC PROSECUTOR

JUDGEMENT

(1.) Seven dangerously ideological teenagers, politically impatient with the deepening injustice of the economic order and ebulliently infantile in their terrorist tactics, were sentenced to seven years in prison for the offence of having robbed the State Bank of a few thousand rupees with non-violent use of crude pistols and country bombs which, in the language of the Penal Code, amounts to dacoity - a grave property crime. They were duly prosecuted, convicted and awarded 2 1/2 years rigorous imprisonment. Appeals by the accused and the State ended in the enhancement of the sentence to seven years R. I. each.

(2.) We have, on a perusal of the judgment, under appeal and after hearing Sri Garg for the appellants, declined to demolish the conviction although the scenario of events is judicially disquieting. Why Because in our adversary system and "umpire" tradition of the judicial process the weaker accused, sometimes anathematized as naxalite or by other unpopular appellation, is theoretically equal before the law but in real-life terms, thanks to practical handicaps, the scales of justice (not the Judges) tend to incline against him. Law is what law does, not what law speaks. The Judge, tradition-bound plays an umpire"s passive role in an adversary system. He holds on the basis of proof proffered by the prosecution, tested by the conventional process of cross-examination and the standard yardsticks of credibility. He has no activist alternative of further probe, for he has no independent assistance in that behalf. The technical power to summon court witness or put questions hardly helps in practice. And when the defence is financially, socially, politically or otherwise too weak to explore the investigatory veracity or explode the testimonial value of the prosecution and its witnesses or to undertake its own garnering of effective materials to establish innocence, the equal scales of justice operate queerly. Even so, we cannot travel beyond the record, and concurrent findings of fact acquire a judicial sanctity, which stands in the way of our re-assessment of evidence at the tertiary stage. For this reason we confine ourselves to the conscientious issue of correctional sentence - that Cinderalla of Indian Criminology despite S. 235 (2), Cr. P. Code.

(3.) Nevertheless, we must express our astonishment at the hasty impropriety of making cash awards to prosecution witnesses when the case was subjudice, at a public ceremony where the Chief Minister himself presided. The factual foundation is furnished by the following paragraph in the judgment of the trial court: