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An order passed by a sessions court in Tamil Nadu has invited an indictment from the Madras High Court which called it the “worst in recent times” for convicting five persons to life imprisonment based on their tribe

~By R Ramasubramanian in Chennai 

In one of the rarest of rare cases in India’s legal history, a division bench of the Madras High Court recently released five life convicts who had been sentenced for murder and looting a temple hundi.

A bench of Justices S Nagamuthu and N Seshasayee also passed severe strictures on the Kancheepuram district sessions court which handled the said case by stating that their judgment was the “worst in recent times”. The High Court ruled that “in our little experience, we have not come across this kind of judgment”. Let this be the last judgment that has ever been written on communal considerations, the bench solemnly declared in its verdict.

The sessions court had awarded life imprisonment to the five accused in a temple burglary case in 2010 and ruled that they were from a particular tribe called “Irulars”, known for their snake-capturing skills and nomadic lifestyle. However, today, they are mostly farm workers. Irulars were even classified as a criminal community during the British period and their main occupation of stealing and dacoity was cited as the reason for labelling them so by the Britishers. But after Independence, the government of India denotified them and the tag of “criminals” was removed.

DENOTIFIED COMMUNITY

It all began, according to the prosecution, when five persons—Kumar, Mari, Raja, Selvam and Palani—broke into the Ponniamman temple at Thirumangalam Kandigai village in Kancheepuram district on January 2, 2010. While they were looting the temple hundi, Subramani, a guard there, raised an alarm. The gang attacked him and killed him. After five-and-a-half years, on July 31, 2015, the trial judge, who was also the district sessions judge-II of Kancheepuram, concluded that the accused must have committed the murder and robbery because they belonged to a particular community. He convicted all five for murder and awarded them life imprisonment.

The judge wrote this in spite of the fact that after Independence, the Irular community was denotified along with other communities in India

A Moment of glory

The Irular tribe recently came into prominence when the state of Florida hired two men from this community in January 2017 to catch Burmese pythons that were spreading through the Everglades and invading the area.

Masi Sadaiyan and Vadivel Gopal were hired by the Florida Fish and Wildlife Conservation Commission to work closely with University of Florida biologists and two python detector Labrador retrievers to capture and kill the snakes as they were preying on native animals, some of them endangered. According to the Commission, Rs 44,18,132 ($68,888) was paid to fly them and their translators from India to South Florida. They captured 13 snakes in less than two weeks; one of the snakes was a 16-ft long female.

Fearing that the snakes would come after the endangered wood rat on Key Largo, then head south and eventually reach the habitat of the endangered Key deer, Indian expertise was sought as native experts lacked the skills. Kristen Sommers, head of the Wildlife Commission’s exotic species coordination section, told the media: “Since the Irulars have been so successful in their homeland at removing pythons, we are hoping they can teach people in Florida some of these skills.”

The snakes, which are native to India, started showing up in the Everglades in the 1980s and government estimates say their numbers increased between 5,000 and 10,000 in the past decade.

The trial court had extracted an alleged confession from all the accused ignoring the bar in Section 25 of the Evidence Act which says: “No confession made to a police officer shall be proved as against a person accused of any offence.” It concluded that all the accused together had killed Subramani with a wooden rod and a crowbar.

This judgment was challenged by the accused in the Madras High Court.  In its order, the High Court bench said: “The above extractions, would go a long way to expose the prejudice the learned trial judge had against the people belonging to a particular community. It is not understandable as how a court could presume that the people belonging to a particular community will traditionally indulge in the commission of a particular type of crime.

Proof beyond reasonable doubt of the guilt of the accused should be reached on the basis of the evidence on record. Any finding of the guilt based on no evidence but on communal considerations is unconstitutional.

—Madras High Court judgment

“It is ridiculous on the part of the trial court to conclude in the instant case that these accused had committed murder and robbery because they belong to the said community. Curiously and shockingly, he has convicted all the accused not on any legal ground but on mere surmises. The judiciary cannot afford to decide the cases by tracing the criminal activities of the forefathers of the accused. No court of law can stigmatize a community as a whole. Proof beyond reasonable doubt of the guilt of the accused should be reached on the basis of the evidence on record. Any finding of the guilt based on no evidence but on communal considerations is unconstitutional. In the instant case, the trial court has traced the socio economic as well as the communal background of the accused and had come to the conclusion that these accused have committed the crime solely because they belong to a particular community.”

COMMUNAL CONSIDERATION

The bench then made the stunning observation in the controversial case: “This judgment is a classic example as to how a court of law in this country should not pen down a judgment. In our little experience we have not come across this kind of worst judgment. Let this be the last judgment ever written on communal considerations.”

The bench further said it is also not understandable as to how the trial court could come to the conclusion that the traditional occupation of people belonging to the particular community was stealing. Assuming that during the primitive period, the people were indulging in thefts, it is ridiculous to conclude that in the instant case these accused had committed murder and robbery because they belong to the said community, the bench stated.

SIDELINED COMMUNITY

The bench also expressed shock that the trial court was surprised over the fact that the people belonging to this community have now come to the mainstream of society and started cutting their hair, trimming their beards, wearing full-sleeve shirts and pants.

The bench made the stunning observation: “This judgment is a classic example as to how a court of law in this country should not pen down a judgment.”

The bench was so concerned about this judgment and the inherent danger it poses to all lower courts in the state that it directed the Registry to immediately send a circular with a copy of the judgment and its own to all principle sessions judges in Tamil Nadu as well as the Union Territory of Puducherry. This was to impress upon them that in the years to come, there should be no judgment based on extraneous considerations such as communal and social background, and so on.

CASTE FEELINGS

File photograph of the Irular people, listed among the Scheduled Tribes. Photo: wikimedia.org
File photograph of the Irular people, listed among the Scheduled Tribes. Photo: wikimedia.org

The division bench’s order deeply divided the bar and the bench. Justice D Hariparanthaman, who recently retired from Madras High Court, said: “It’s a great order. As soon as the order was out in the media, I personally called up Justice Nagamuthu and congratulated him. But one thing we all must bear in our mind is that there are many communal and caste feelings and prejudices prevailing not only in sessions courts but in every institution in India. The division bench’s direction to the Registry to circulate its order will surely minimise this sort of behaviour by all the sessions courts and lower courts in the state.”

However, another retired judge of the Madras High Court who didn’t want to be named told to India Legal:  “The division bench has overstepped in this case. If the bench wants to acquit all the five accused, let it do so. But in that process, it should not overstep its limits and use several adjectives in its judgment. To say that the concerned trial court’s judgment is the worst judgment in the judicial history of India is not true. In fact, judicial academies and the Supreme Court have repeatedly said that any judgment by any court should not destroy the career of a particular accused. There are thousands of judgments in sessions and high courts which were worse than the Kancheepuram sessions court’s judgment.”

He added that circulating both orders to all sessions and magistrate courts in Tamil Nadu would not make any difference in lower courts because the problem was more complicated.

Even lawyers had their own take on the issue. Sundararajan, a lawyer in the Madras High Court, said: “Sadly those judges who belong to the oppressed communities are failing to further qualify themselves. The judicial academy which trains judges should concentrate more on this subject and inculcate the great values of our constitution to them. This problem prevails not only in Tamil Nadu but throughout India.”

That is food for thought.

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