Law

In the Sheena Bora Case, Only the Evidence Will Finally Matter

Indrani Mukherjea being taken by the Mumbai police (Photo: PTI)

Indrani Mukherjea being taken by the Mumbai police (Photo: PTI)

The top story these days is the purported murder of Sheena Bora, but everyone appears to be talking about Indrani Mukerjea. Not since the Nanavati trial has an ongoing criminal investigation been so closely identified and associated with the alleged perpetrator in the mainstream media and populist discourse. However, in the absence of any direct DNA link established yet with the body found in the forest of Raigad and Sheena Bora, we must still refrain from calling this ongoing investigation a murder case. As of now, it is still an investigation of a case of disappearance.

The biggest difficulty in making an objective analysis of this case is the conflicting statements purportedly made by the three accused to the police during their respective interrogations – as reported in the media. If we have to believe these reports (based on information conveniently leaked by the police), then this is a classic case of the Prisoners’ Dilemma, where each person is telling a story which is similar yet different from the other and blaming the other person.

Role of the Mumbai Police

In spite of the police claiming that the digital superimposition of the skull of the cadaver found in the forests of Raigad is a positive match to Sheena Bora’s cranial shape, in absence of the final DNA evidence, we still do not have  conclusive proof of her murder. Yet, reams of newsprint and hours of television have been dedicated to all that one may (and in many cases may not) want to know about Sheena Bora and her entire family.

The social sensitivity with which an investigation into a purported murder case should be conducted has been entirely missing from the conduct of the Mumbai police. Till a few days ago, here was a police force trying to defend itself for egregiously violating the privacy of adult citizens with its ill-conceived raids in Madh Island. Now, with this godsend of an investigation, the Mumbai police has swiftly replaced the tabloids as the town herald of all gossip. Backed by their well-orchestrated leaks made, our ever self-righteous TV anchors – in their rush to win the race for the highest TRP –  have gone ahead and appointed themselves as judges while getting their rank and file reporters to do the “investigation” i.e. dig up dirt on the lives of the alleged perpetrators and the victim.

We all know that the criminal justice system is a complex structure with multiple stages and multiple stakeholders. In this particular case, we are still at the stage of investigation. The evidence available to us right now is mostly either circumstantial or consists of confessions from the co-accused. But such confessions, if they exist, have so far only been made to the police during interrogation. As per the Indian Evidence Act, 1872 and case law on the subject, such confessions will be admissible only if they are made before a magistrate. Therefore, as on the date of this writing, the Mumbai police do not have one piece of directly admissible evidence against any of the accused in this case.

Unfortunately, this is not first time we have seen a police force in our country get ahead of itself and openly discuss and speculate on theories while an investigation is ongoing. Does anyone remember the early stages of the Aarushi Talwar murder case?

While the Ministry of Home Affairs’s Code of Conduct for the police in India does not expressly address these issues, a quick look at American Bar Association’s Standards on Prosecutorial Investigations tells us what the basic rules of conduct are for the prosecutor (and most definitely the police) when it comes to dealing with the public in general during an ongoing investigation. While this is not in any way of legal value in India, it provides a logical code of conduct for the police to follow while talking to the media during an investigation. The ABA’s standards require that even the prosecutor should not confirm or deny the progress/status of an investigation and only provide such information as would be required to prevent some crime or dispel some misconceptions. The recent shenanigans of the Mumbai police have highlighted the need for similar and detailed guidelines for police and prosecution in this country.

The case and its victims

It is fairly well understood that there are four stages to a crime that need to be proved for a successful prosecution. These are intention, preparation, attempt and accomplishment.

So far, there is not enough direct admissible evidence with the Mumbai police to prove any of these stages against the accused beyond reasonable doubt – that all evidence at each of these stages irrefutably points to one and only one possible conclusion that the accused in this case definitely committed the murder of Sheena Bora.

The media has gone full throttle, publishing materials ranging from the college life of Indrani Mukerjea to the personal life of Siddhartha Das, details about all the children of Indrani and even the diary of Sheena Bora. A major bulk of the entire reporting has been focused on the character of Mrs. Mukerjea and attempts to establish a motive for Sheena Bora’s murder. While motive may still play an important role in this case, particularly if the entire case is built on circumstantial evidence, it will still be most crucial for the prosecution to establish intent and accomplishment.

One should also spare a thought for the children of Indrani Mukerjea who are certainly turning out to be collateral damage in this public trial conducted by the media. These children and other people connected to her but in no way connected to the alleged murder will forever be labelled by society and will find the going extremely difficult even after this intense media scrutiny is over. That is why the media should have refrained from naming names and publishing photographs of witnesses and others connected to the accused during the investigation itself. Why do we even need a criminal justice system, if we as a people are so keen on passing judgment ourselves?

The most striking and disappointing part of the reporting of the Sheena Bora disappearance case has been the tendency of the media to speculate and pass judgement on the morality of Indrani Mukerjea. The morality of the accused is not on trial here and will not be of consequence to a learned judge when the matter reaches trial.

In the context of this sensational reporting and the moral judgements flying thick and fast about Indrani Mukerjea’s values and character, there is one question that haunts us: what if, a few years later, the courts determine that the prosecution has failed to make their case against her and her co-accused beyond ‘reasonable doubt’? What if the courts are compelled to exonerate/acquit her? Will we, as a society that is judging her, ever be able to restore the lives of the accused and all those connected to them to normalcy? Unlike in war, there is unfortunately no mechanism for providing reparations to the victims of a media trial.

The writer is co-author of the book Red Handed: 20 Criminal Cases that Shook India. This article is entirely an expression of his personal views and does not reflect the views of his firm.

  • C Vasi

    A sane voice amidst all the brouhaha.

  • Arunava Bhadra

    It appears that the author is sympathetic to Indrani Mukherjea. I would rather ask him to be sympathetic to Sheena Bora, a flower that could not bloom. Why she was murdered/killed or disappeared? What was her fault? She had her parents yet she was deprive of affections. Those who murdered her, those who gave her birth but not the parental warmth and affection will go away without any punishment because of lack of legal evidences. Is this kind of society we want? Without morality no civilization can move.
    Finally always citing example to foreign countries for idea prevailing system should be stop. We have not forgot the cases of Clinton – Monica Lewinsky issue, Diana-Charles issue and so many.

  • ashok759

    The thought that Indrani Mukerjea may be innocent does not seem to have crossed anyone’s mind so far.

  • S Thiyagarajan

    There are strong circumstantial evidence to prove that Indrani is strongly involved in the murder, like creating an alibi that she has gone to US and not giving her whereabouts to anybody, creating and using her E Mail ID after her death, sending her forged resignation letter after her death and the evidence of the driver and others in the crime. So it is not correct to say that Indrani is innocent. there are enough evidence to prove that she has long planned the crime, executed her plans and for a time succeded in concealing the crime. she has also destroyed the evidence towards the crime. The police can make it a water tight case if they can establiush the motive and match the DNA etc., Pl. doot blame the police for any leak etc., It is the omnipressent media which has scant regards for etiquettes that is responsible.