New Delhi: A trial court’s insistence on the personal deposition of an FBI officer has stalled the progress of the infamous Bhanwari Devi abduction and murder case allegedly involving a former Rajasthan minister and other politically influential people.
The FBI’s DNA expert, Amber B. Carr, is prepared to depose through video-conferencing, allowed by the Supreme Court and high courts in certain cases in the past, but the trial court judge in Jodhpur has been insistent on the American official personally recording her evidence in court.
The case is being heard by the special judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities Cases), Jodhpur.
An FBI forensic report, signed by Carr, had revealed that charred bones, which the CBI had found near a canal belonged to that of Bhanwari Devi. The 36-year-old Dalit nurse had disappeared in 2011 after a CD allegedly showing her in a compromising position with then Rajasthan minister Mahipal Maderna was aired by some television news channels.
The CBI was led to the spot near the Rajiv Gandhi Lift Canal by one of the accused. The CBI has claimed that Devi was abducted from Jodhpur’s Bilara area and killed; 17 people, including Maderna, have been arrayed as accused and are facing trial. Several of them have been in jail for over seven years.
The trial, however, has been at a standstill since September last year as no prosecution witness has been examined since. The case has been flitting between the lower court and the Rajasthan High Court, which in May upheld the trial court order calling for Carr in person.
The lower court judge has now demanded Carr’s presence in the court on 20 July and has directed the CBI to appoint a nodal officer who can “make every possible effort” to ensure she is present. The CBI is in the process of filing a special leave petition in the Supreme Court to challenge the high court order upholding the trial court’s stand.
The FBI connection
When the CBI discovered the charred bones in early 2012, on the disclosure of one of the accused, it initially sought an opinion on DNA extraction from experts at the Central Forensic Science Laboratory (CFSL) and the All India Institute of Medical Sciences (AIIMS) in New Delhi.
Both institutions, however, referred the CBI to the FBI, claiming that the technology for the process was only available with the American agency.
The CBI then approached the FBI, which matched the DNA extracted from the bones with that of the blood samples of Devi’s children. With this, Carr submitted a report confirming that the charred bones were indeed that of Devi’s.
While this report was submitted as an additional document before the court, the CBI filed an application under Section 311 of the CrPC, demanding that Carr be issued summons to appear as a prosecution witness.
The trial court issued summons to her 19 times — the first time in May 2017 through the office of Legal Attache, Embassy of the USA, New Delhi — with her repeatedly responding with requests for video conferencing.
The request was rejected by the court every single time.
As the request for video conferencing was received from the FBI, the CBI accordingly amended its application. However, this was refused by the trial court, which demanded that Carr should record her evidence in person.
The CBI had challenged the trial court’s rejection of the request in the Rajasthan High Court, which, however, upheld the trial court order in May.
The high court judge, Justice P.K. Lohra, opined that Carr’s refusal to appear in person was not based on genuine reasons. “Suffice it to observe that inconvenience of a witness due to schedule conflict in attending proceedings or taking a long journey for the same is hardly a ground to dispense with the personal presence of a witness,” he observed.
According to the trial court’s latest order dated 10 July, the CBI has informed the court that it is in the process of filing a special leave petition in the Supreme Court, challenging the high court order. In the meantime, the investigating agency had requested that the case should be posted for the examination of the accused under Section 313 of the CrPC.
The CBI had further asserted that since Carr was an important witness, she should not be dropped as a witness. The trial court, however, has rejected this application as well.
No provision for video conferencing in CrPC: Defence lawyer
Advocate Hemant Nahata, who is representing the accused in the case, pointed out that Section 275 of the Code of Criminal Procedure (CrPC) was amended in 2009, to allow recording of witness evidence by video conferencing. But, he added, this was permitted in “warrant cases”.
Since no such amendment was brought in for Section 276 of the CrPC, which deals with trials before a sessions court, Nahata says that the request cannot be allowed.
He argued that this was because of the gravity of offences tried by such courts. “The sessions courts trials involve grave offences, leading to punishments like the death penalty and life imprisonment. So the witness must be physically present in the court because the judge watches the demeanour of the person in the court.”
CBI sources, however, countered it, saying that that the FBI official could not be “forced” to depose in person. “The FBI was just helping us to match the DNA because we didn’t have the expertise in India,” said a senior CBI official. “If the court has questions about the findings of the report, it can be done through video-conferencing. Higher courts have allowed it in many other cases.”
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