“Let this be the last judgment ever written on communal consideration” [Translation]Posted: May 16, 2017
Last month, LiveLaw reported a judgment of the Madras High Court, which had set aside a judgment delivered by District and Sessions Judge No.II, Kancheepuram.
The trial court in that case, shockingly, convicted all the accused not on any legal ground but on mere surmises. The trial Court concluded that they would have committed the crime as according to the trial Court, the traditional occupation of the people belonging to that community was theft.
Whilst rightly setting aside the trial court judgment, the High Court also said, “In our little experience, we have not come across this kind of worst judgment. Let this be the last judgment ever written on communal consideration”.
The Madras High Court, in its order, also extracted some of the paragraphs from the impugned judgment delivered by the District and Sessions Judge, which incidentally is in Tamil. I have done my best to translate those portions to English. It was such a painful experience. I genuinely have no words to express what I feel. With no comments, below is the translation.
Translated portions of the Sessions Court judgment
“(7) Before resolving the issues in the present case, it is necessary to state the socio-economic background of the 5 persons who are named as accused. All of these accused belong to a Scheduled Tribe community – named Irulars as per the registers maintained by the Tamilnadu Revenue Department – a small portion of the Scheduled Tribe population which generally lives in the northern districts of Tamilnadu, and are called differently in different districts, like Villiyars, Poosaalis, etc. These Irular community people, for many years – until 25 years ago – did not enter the mainstream society and were living in small groups in agricultural villages and government properties – without building any residences of their own – by accommodating themselves in village landlords’ motor tents and small huts, and initially their occupation was hunting rats, snakes, mongoose, rabbits, etc. and committing minor crimes. Due to the current social changes, the community of the Accused, Irulars started learning habits like getting crap haircut, wearing shirts, full-length pants like others, and also started the habit of going to schools like others. When these scheduled tribe community was not developed yet, and did not communicate and get along with the rest of communities, they were doing the same traditional occupation. Since now they have come to the centre-stage of the society like other communities, the behaviours of the other community people have also caught on to them is what the present case depicts. These Irular community people initially lived their lives by catching snakes, and selling snake skins. Further, they also fearlessly and effortlessly removed snakes from others’ houses, lands, motor rooms, and got small amounts from such household owners as a stipend. Not only that, in initial days, they lived their lives by hunting small animals, and thereafter selling/ eating them. Irulars who lived in coastal villages also had fishing as their occupation. When these people were practising independent culture, they neither had marriage nor divorce ceremonies. It does not appear that they still have such ceremonies. For these people, Kannimaar is the family deity. Furthermore, when these people represent about their heredity, they say as if they were lineage of a deported king. The descriptions stated above by me about these people’s characteristics, though is not helpful howsoever for resolving the present case, there are no statistics to suggest that – when they lived with their independent set of cultures without any influence from common cultures – these Irular community people indulged in committing serious crimes as that were alleged to have been committed by the accused. This case explains to us that, these community people, due to socio-economic changes, learned various good and bad habits as exhibited by other community people as explained by the American jurists, Edwin Suther Land and Donald Gressey that crimes are also, like other subjects, involve “Learning Process“, and therefore as a result of living closely with other community people, the accused-belonging community who did not involve themselves in bad habits during initial periods and had Virgin Quality, learned characteristics that were exhibited by other people.”
“9. In India and across the world, nobody commits crimes by keeping the witnesses close-by. Committing crimes with witnesses around is as good as not committing the crime itself. The perpetrators of crimes choosing the right date, and right time to ensure that nobody is around the crime spot to see such crime is an art well known to such perpetrators. Especially in theft cases, choosing such right time is essential. In this case as well, the fact that the accused chose 02-01-2010 11:00 pm at night to rob Ponniyamman Temple only shows that they were experts at committing such crimes, and without realizing how much monies the temple would have had, attempted to rob rather impoverished temple, and killed Subramani who came in the way of robbery, and after 10 months, they got caught and gave detailed confession statements before PW 15 Gurunathan, without an iota of doubt, explaining how they committed murder, what all they had stolen, what weapons they used to commit murder, who is in possession of such stolen properties, who all are committed the murder.”
“10. … Also that among these captured materials, as I stated before, since all the accused are Athivasis could not have been possessed by them, especially that, 1. Gold thali pottu, 2. Silver kan malar, 3. Bronze poojai plate, 4. Iron knives of Temple statutes, are not claimed by accused as their properties in their pleadings. It does not appear that the possession of these materials were forced upon the accused, a formal confession statements were obtained, PW 19 – Inspector with the help of PW 15 – built up an imaginary story that these materials that are associated with the Hindu temple were captured from the accused on a compulsion that the accused and the above offences can only then be related. I do not see any such necessity for PW 19 either.”
“…This case is not a politically important murder case. The person who died in the incident, Subramani was an ordinary and poor man who collected old papers, plastics etc. and sold it for whatever they were worth, incapable of even sleeping at a house. Whether the case involved his death or murder was closed or not, nobody is going to come running to argue for him. There is not even such representation made by the accused that someone will argue for the deceased.”
“These days, we can see that when the Government cannot solve a case, and even when the Government makes representation before the Supreme Court that they cannot solve the case, due to increasing pressures made through the “Media Trial” by the so-called 4th Estate, the electronic media, even the highest court that is the Supreme Court refuse to accept the “closure report” filed under Section 173 of Cr.P.C. and order reinvestigation by higher agencies like CBI. Recently in Delhi, in the death case of Arushi (14), the only daughter of Doctor Talwar couple, where she died inside a closed house, when the normal police could not solve the case, the Supreme Court transferred the investigation to CBI, and despite CBI conducting nacro-analysis on Talwar to know the truth, they struggled to find the truth and submitted Negative Final Report in the trial court, which was then objected through various public interest litigations filed before the Supreme Court, and the Supreme Court refused to accept the Negative Final Report and ordered once again reinvestigation and based on that a Positive Final Report was filed, and trial was conducted and Arushi’s father and mother, i.e. Talwar couple, were convicted for murder. When we see such all these things, even if a case do not have strength on its own, when public interest organisations and Free Media impose pressure, such cases get their strength. It does not appear that such kind of pressure was put on the investigating authority of this case. In that situation, there is no necessity for PW 19 Inspector to manufacture false charges against these accused with the help of PW 15 by carrying out ritualistic compliance, that is ritualistic arrest, ritualistic confession statements, ritualistic records, etc. When there is no such political pressure, money pressure or media pressure, there is no necessity for PW 19 to frame innocent persons as the accused who have committed murder.”