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Madras HC’s acquittal of accused in Udumalpet’s honour killing of a Dalit denies public justice

The court, reversed the lower court’s order convicting the father in law of the deceased, while failing to explore caste violence and prejudice that was the motive behind the crime.

Sanchita Kadam 02 Jul 2020

Madras

Kowsalya Shankar who is now a social activist apart from being a government employee, is shocked by the Madras High Court judgment acquitting her father Chinnasamy for murdering her former husband. The Sessions court had convicted him and other accused and had sentenced them to death.

She says she will appeal to the Supreme Court, “Won't rest till my parents are punished for my husband's murder,” she said. “They are the brain behind the conspiracy as only they had the motive to settle scores against Shankar for marrying me,” she added. She also said that the prosecution did not push the case hard enough and did not argue effectively which was one of the reasons why her father got acquitted.

Background

Shankar and Kowsalya both studying engineering in the same college fell in love and wished to marry each other. When Kowsalya’s parents came to be aware of this relationship they opposed the same and restricted Kowsalya from going to college. Shankar and Kowsalaya mutually decided to elope and got married on July 12, 2015. Apprehending trouble they even submitted a petition for protection at a local police station after Kowsalya’s parents started making enquiry about her whereabouts. After the passage of some time, Kowsalya had asked the police not to take any further action against her parents.

On one occasion, Kowsalya was forcibly taken away by her parents, a period during which they exerted a lot of pressure to try and get Kowsalya to forget Shankar. Kowsalya’s relatives even told her that it is not possible to live with Shankar (now deceased), who belongs to Scheduled Caste community, that the marriage is not valid and tried to prevail upon her to live with them. She was thereafter taken to various places and some black-magic also performed to erase her memory of Shankar. Another relative who also participated in the crime and is an accused in the case had said that Kowsalya should not be left alive as she would be a bad example to the wider family as such conduct (inter-caste marriage) could be followed by his children as well.

On March 13, 2016 when Shankar and Kowsalya were waiting at a bus stop in Udumalpet some assailants, unknown to them, came on bikes in broad daylight and started inflicting injuries on them with a knife. Believing both to be dead, the assailants left the spot. Shankar succumbed to his injuries while Kowsalya survived after undergoing two weeks of treatment.

The Sessions Court had in its pathbreaking judgement of December 12, 2017 convicted five accused, and Kowsalya’s father Chinnasamy (who was charged as the conspirator in the case by the police) and were given the death sentence. The High Court, two and a half years later, on June 22, 2020 overturned this verdict. The Court also spoke scathingly of the indignities of the caste system.

In its 328 page judgement, the high court bench comprising Justices M Sathyanarayanan and M Nirmal Kumar dealt with confirmation of death sentence awarded to the accused by the Sessions Judge as well as the appeals of those convicted against the conviction as well the as the state’s appeal against the acquittal of some accused which included Kowsalya’s mother (referred to as accused number 2 --A2-- in the judgment). It ultimately acquitted Chinnasamy (referred to as A1 in the judgment) who was charged of being the main conspirator of the crime, of all charges and modified the punishment of other convicts from death sentence to life imprisonment.

The Sessions court’s verdict

The prime accused in this case was Kowsalya’s father Chinnasamy (who was charged as the conspirator in the case by the police) and confirmed by the Sessions court.

The Sessions court judge, Alamelu Natarajan, after having pronounced the few accused including Chinnasamy as convicts, questioned, “If the punishment for marrying an upper caste girl by a lower caste boy, would be only a death sentence by murder, then what should be the punishment for such persons? is the question raised in the mind of the court.”

The Sessions court, in its judgement dated December 12, 2017, had quoted the Supreme court in Lata Singh Vs State of UP [2006 (7) SCJ] whereby the court held,

“The caste system is a curse on the nation and the sooner it is destroyed, the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished.”

The Sessions judge while commenting on increasing incidents of honour killings stated, “The anxiety with which the courts in our country voiced their approach towards inter-caste marriages, and expressing their strong condemnation of so called “Honour Killings” is evident from the various Judicial pronouncements as stated above. Still, sane mind has not set on the parents and many others, who still hail the caste system, and disapprove inter-caste marriages, sometimes in a violent manner.

While considering awarding capital punishment to the accused, the judge stated, “This crime committed is antisocial or socially abhorrent nature of crime. Whether this sort of crime would come under the rarest of rare cases or not has to be analysed…. The manner in which the crime is committed must be such that it may result in an intense and extreme indignation of the community and shock the collective conscience of the society where an accused does an act in a deliberate planned crime and executes the same meticulously, then such crimes are termed as Ghastly crime, wherein, death sentence was considered as the most appropriate punishment.”

The court also analysed the motive and state of mind of Chinnasamy in committing the crime, “A1 has masterminded and plotted a criminal conspiracy to do away, both his daughter PW1 and her husband Shankar, for the sole reason that his daughter had married a person belonging to Schedule Caste. A1’s hatred towards scheduled caste community, is to an extent wherein, he failed to honour the value of human life. A1 not considering Shankar as a fellow human being, his hatred towards caste was intolerable, than as a prudent human being, A1 had an option to cease his relationship totally with his daughter PW1, for marrying Shankar against A1’s wishes.”

Justifying its decision to award death sentence to the accused, the court stated, “instead of ceasing relationship with his daughter PW1 and Shankar, A1 has decided to cease the life of Shankar and PW1, his daughter as well. Accordingly, this court feels that since this case being one of the rarest of the rare case, A1, being the parent and for a wrong emotional decision, should really suffer capital punishment of death.”

The Sessions court judgment can be read here.

The High Court’s findings

The Madras High Court, in its Judgement dated June 22, 2020, while considering the case made out by the prosecution against A1, the bench held thus,

The testimonies of the said witnesses as to the seeing of A1 in the company of some of the assailants is highly doubtful. It is also to be noted at this juncture that except A1, they do not have any acquaintance with the other accused and no Test Identification Parade was conducted and the identification for the first time was made in the Court and as such, this Court is not inclined to believe the said testimonies as regards the charge of conspiracy.

The bench held that the prosecution was unable to prove the drawal of money by A1 from the joint account of himself and his wife and payment of part of the sum to the hunchmen who killed Shankar, in continuance of the conspiracy.

The bench further held that the prosecution has failed to prove that it was A1 alone had withdrawn the money from the joint account of himself and his wife under Ex.P41 marked through PW37, especially in the light of the fact that the said sums were withdrawn from the Automatic Teller Machines [ATMs]. It also came out from the evidence that A1 is also a Tourist Car Operator.

The court’s order

The court, while acquitting A1 stated, “prosecution is unable to prove the charge of conspiracy beyond any reasonable doubt and he is to be acquitted for the commission of the offence of conspiracy under Section 120[B] of IPC as well as Sections 302, 307 read with 109 of IPC and Section 3[2][Va] of SC/ST [POA] Amendment Act, 2015.”

The most surprising part of the judgment is that while Chinnasamy has been absolved of charges under the SC/ST Act, the court has not even weighed the charges against him throughout the judgement. The main contention of the prosecution all along has been that A1 conspired to kill both his daughter and his son in law by hiring hunchmen for the same as, evidently, the family was unhappy that the daughter married a Dalit. The possibility of this motive has barely been explored by the court and only observed that since A1 did not tell a witness that he was vindictive or angry about the inter-caste marriage of his daughter, the court, on basis of other evidences, concluded that the prosecution “miserably failed to produce any iota of material/evidence as to the enragement on the part of A1 to do away with the lives of his daughter/PW1 and the deceased on account of the said inter-caste marriage.”

Where the High Court falters

The judgment is not only silent on the many circumstances that form the foreground of the case but also on the caste angle of it. The judgement of a case dealing with the murder of a Dalit man remains silent on tissues like caste prejudice, crimes against Dalits and does not even explore the legislation (the SC/ST Prohibition of Atrocities Act, 1989).

The court seems to have completely missed the point that the whole dispute began with a core caste issue, that of prejudice. It is very common in India for parents to oppose marriage of their child to another from a lower caste and some cases end up in honour killings. The law, even if it does not deal with specific crime of honour killing under the penal law, there exists the SC/ST Act which includes punishment for various crimes committed against a person by the virtue of his caste. Criminal conspiracy is one of the offences enumerated in the schedule of the SC/ST Act for which one can be punished under section 3(2)(va) in tandem with the punishment accorded for that crime in the Indian Penal Code.

The Court did not take into account the very reasons that led to the commission of the crime. The hunchmen who were hired for the job still remain convicts but without the conviction of the conspirator, this becomes a crime without a motive. In criminal law, mens rea or in simpler terms, criminal intent is important to establish the guilt of the accused. In this case, only the commission of the murder is being punished and not the reason behind the criminal act, which is caste prejudice. The caste prejudice in this case is confirmed by the several testimonies of witnesses and of the primary witness, Kowsalya, who was herself attacked and luckily survived.

The high court’s judgment fails to address this caste prejudice and only relies on selective evidence. For instance, the prosecution’s contention that the hunchmen were paid by A1 to kill Shankar and Kowsalya was dismissed merely because the CCTV footage of the ATM from where the money was drawn was not presented as evidence. The focal point of the case, which was objection to the marriage on caste lines as well as various attempts to keep Kowsalya away from Shankar and using various methods to make her forget Shankar were not taken into account at all.

Prosecutions in India often fail or falter because of a complicit state apparatus. The Criminal Procedure Code (CRPC), sections 311 with 165 of the Evidence Act give powers to the presiding judge to summon witnesses, and pro-actively intervene during trial. Section 173(8) empowers the court to ensure that the agencies investigating the case leave no stones unturned to tie up the loose knots in criminal cases. Here, while the prosecution agency clearly failed to convincingly make its case but the court itself, did little to nudge the prosecution agency into covering the lapses in the probe as the CRPC empowers it to do. In Kowsalya’s case, both the state prosecution and the High Court have failed the course of public justice: prosecuting, probing the motive behind the crime of a caste-driven killing and thereby denying justice to the survivor.

When the judgements of constitutional courts falter and turn away from speaking on such ghastly crimes, not only is a bad precedent set but the very purpose of such emancipatory legislation, is defeated.

Precedents

The judgment does mention cases like Bhagwan Dass v. State (NCT of Delhi) [(2011) 6 SCC 396], in which the Supreme Court dealt with the case of an honour killing. The conclusions were clear: that honour killings are nothing but barbaric and brutal murders by bigoted person with feudal minds; they fall under the category of the rarest or rare cases, deserving death punishment. However this precedent has not been used by the court in reaching its final decision.

Kowsalya, Shankar’s wife is both the primary witness of the crime, and the wife of the deceased, Shankar. She has led a courageous and brave battle. Kowsalya is set to appeal before the apex court, aided by lawyers, in an attempt to bring justice for her dead husband.


The High Court judgement can be read here.

 

Related:

Just kill me now. Shoot. I am ready to die: Soni Sori

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Outlawed caste-based militia Ranvir Sena issues death threats over social media in Bihar!

SC/ST Commission in UP headless for over 7 months

 

 

Madras HC’s acquittal of accused in Udumalpet’s honour killing of a Dalit denies public justice

The court, reversed the lower court’s order convicting the father in law of the deceased, while failing to explore caste violence and prejudice that was the motive behind the crime.

Madras

Kowsalya Shankar who is now a social activist apart from being a government employee, is shocked by the Madras High Court judgment acquitting her father Chinnasamy for murdering her former husband. The Sessions court had convicted him and other accused and had sentenced them to death.

She says she will appeal to the Supreme Court, “Won't rest till my parents are punished for my husband's murder,” she said. “They are the brain behind the conspiracy as only they had the motive to settle scores against Shankar for marrying me,” she added. She also said that the prosecution did not push the case hard enough and did not argue effectively which was one of the reasons why her father got acquitted.

Background

Shankar and Kowsalya both studying engineering in the same college fell in love and wished to marry each other. When Kowsalya’s parents came to be aware of this relationship they opposed the same and restricted Kowsalya from going to college. Shankar and Kowsalaya mutually decided to elope and got married on July 12, 2015. Apprehending trouble they even submitted a petition for protection at a local police station after Kowsalya’s parents started making enquiry about her whereabouts. After the passage of some time, Kowsalya had asked the police not to take any further action against her parents.

On one occasion, Kowsalya was forcibly taken away by her parents, a period during which they exerted a lot of pressure to try and get Kowsalya to forget Shankar. Kowsalya’s relatives even told her that it is not possible to live with Shankar (now deceased), who belongs to Scheduled Caste community, that the marriage is not valid and tried to prevail upon her to live with them. She was thereafter taken to various places and some black-magic also performed to erase her memory of Shankar. Another relative who also participated in the crime and is an accused in the case had said that Kowsalya should not be left alive as she would be a bad example to the wider family as such conduct (inter-caste marriage) could be followed by his children as well.

On March 13, 2016 when Shankar and Kowsalya were waiting at a bus stop in Udumalpet some assailants, unknown to them, came on bikes in broad daylight and started inflicting injuries on them with a knife. Believing both to be dead, the assailants left the spot. Shankar succumbed to his injuries while Kowsalya survived after undergoing two weeks of treatment.

The Sessions Court had in its pathbreaking judgement of December 12, 2017 convicted five accused, and Kowsalya’s father Chinnasamy (who was charged as the conspirator in the case by the police) and were given the death sentence. The High Court, two and a half years later, on June 22, 2020 overturned this verdict. The Court also spoke scathingly of the indignities of the caste system.

In its 328 page judgement, the high court bench comprising Justices M Sathyanarayanan and M Nirmal Kumar dealt with confirmation of death sentence awarded to the accused by the Sessions Judge as well as the appeals of those convicted against the conviction as well the as the state’s appeal against the acquittal of some accused which included Kowsalya’s mother (referred to as accused number 2 --A2-- in the judgment). It ultimately acquitted Chinnasamy (referred to as A1 in the judgment) who was charged of being the main conspirator of the crime, of all charges and modified the punishment of other convicts from death sentence to life imprisonment.

The Sessions court’s verdict

The prime accused in this case was Kowsalya’s father Chinnasamy (who was charged as the conspirator in the case by the police) and confirmed by the Sessions court.

The Sessions court judge, Alamelu Natarajan, after having pronounced the few accused including Chinnasamy as convicts, questioned, “If the punishment for marrying an upper caste girl by a lower caste boy, would be only a death sentence by murder, then what should be the punishment for such persons? is the question raised in the mind of the court.”

The Sessions court, in its judgement dated December 12, 2017, had quoted the Supreme court in Lata Singh Vs State of UP [2006 (7) SCJ] whereby the court held,

“The caste system is a curse on the nation and the sooner it is destroyed, the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished.”

The Sessions judge while commenting on increasing incidents of honour killings stated, “The anxiety with which the courts in our country voiced their approach towards inter-caste marriages, and expressing their strong condemnation of so called “Honour Killings” is evident from the various Judicial pronouncements as stated above. Still, sane mind has not set on the parents and many others, who still hail the caste system, and disapprove inter-caste marriages, sometimes in a violent manner.

While considering awarding capital punishment to the accused, the judge stated, “This crime committed is antisocial or socially abhorrent nature of crime. Whether this sort of crime would come under the rarest of rare cases or not has to be analysed…. The manner in which the crime is committed must be such that it may result in an intense and extreme indignation of the community and shock the collective conscience of the society where an accused does an act in a deliberate planned crime and executes the same meticulously, then such crimes are termed as Ghastly crime, wherein, death sentence was considered as the most appropriate punishment.”

The court also analysed the motive and state of mind of Chinnasamy in committing the crime, “A1 has masterminded and plotted a criminal conspiracy to do away, both his daughter PW1 and her husband Shankar, for the sole reason that his daughter had married a person belonging to Schedule Caste. A1’s hatred towards scheduled caste community, is to an extent wherein, he failed to honour the value of human life. A1 not considering Shankar as a fellow human being, his hatred towards caste was intolerable, than as a prudent human being, A1 had an option to cease his relationship totally with his daughter PW1, for marrying Shankar against A1’s wishes.”

Justifying its decision to award death sentence to the accused, the court stated, “instead of ceasing relationship with his daughter PW1 and Shankar, A1 has decided to cease the life of Shankar and PW1, his daughter as well. Accordingly, this court feels that since this case being one of the rarest of the rare case, A1, being the parent and for a wrong emotional decision, should really suffer capital punishment of death.”

The Sessions court judgment can be read here.

The High Court’s findings

The Madras High Court, in its Judgement dated June 22, 2020, while considering the case made out by the prosecution against A1, the bench held thus,

The testimonies of the said witnesses as to the seeing of A1 in the company of some of the assailants is highly doubtful. It is also to be noted at this juncture that except A1, they do not have any acquaintance with the other accused and no Test Identification Parade was conducted and the identification for the first time was made in the Court and as such, this Court is not inclined to believe the said testimonies as regards the charge of conspiracy.

The bench held that the prosecution was unable to prove the drawal of money by A1 from the joint account of himself and his wife and payment of part of the sum to the hunchmen who killed Shankar, in continuance of the conspiracy.

The bench further held that the prosecution has failed to prove that it was A1 alone had withdrawn the money from the joint account of himself and his wife under Ex.P41 marked through PW37, especially in the light of the fact that the said sums were withdrawn from the Automatic Teller Machines [ATMs]. It also came out from the evidence that A1 is also a Tourist Car Operator.

The court’s order

The court, while acquitting A1 stated, “prosecution is unable to prove the charge of conspiracy beyond any reasonable doubt and he is to be acquitted for the commission of the offence of conspiracy under Section 120[B] of IPC as well as Sections 302, 307 read with 109 of IPC and Section 3[2][Va] of SC/ST [POA] Amendment Act, 2015.”

The most surprising part of the judgment is that while Chinnasamy has been absolved of charges under the SC/ST Act, the court has not even weighed the charges against him throughout the judgement. The main contention of the prosecution all along has been that A1 conspired to kill both his daughter and his son in law by hiring hunchmen for the same as, evidently, the family was unhappy that the daughter married a Dalit. The possibility of this motive has barely been explored by the court and only observed that since A1 did not tell a witness that he was vindictive or angry about the inter-caste marriage of his daughter, the court, on basis of other evidences, concluded that the prosecution “miserably failed to produce any iota of material/evidence as to the enragement on the part of A1 to do away with the lives of his daughter/PW1 and the deceased on account of the said inter-caste marriage.”

Where the High Court falters

The judgment is not only silent on the many circumstances that form the foreground of the case but also on the caste angle of it. The judgement of a case dealing with the murder of a Dalit man remains silent on tissues like caste prejudice, crimes against Dalits and does not even explore the legislation (the SC/ST Prohibition of Atrocities Act, 1989).

The court seems to have completely missed the point that the whole dispute began with a core caste issue, that of prejudice. It is very common in India for parents to oppose marriage of their child to another from a lower caste and some cases end up in honour killings. The law, even if it does not deal with specific crime of honour killing under the penal law, there exists the SC/ST Act which includes punishment for various crimes committed against a person by the virtue of his caste. Criminal conspiracy is one of the offences enumerated in the schedule of the SC/ST Act for which one can be punished under section 3(2)(va) in tandem with the punishment accorded for that crime in the Indian Penal Code.

The Court did not take into account the very reasons that led to the commission of the crime. The hunchmen who were hired for the job still remain convicts but without the conviction of the conspirator, this becomes a crime without a motive. In criminal law, mens rea or in simpler terms, criminal intent is important to establish the guilt of the accused. In this case, only the commission of the murder is being punished and not the reason behind the criminal act, which is caste prejudice. The caste prejudice in this case is confirmed by the several testimonies of witnesses and of the primary witness, Kowsalya, who was herself attacked and luckily survived.

The high court’s judgment fails to address this caste prejudice and only relies on selective evidence. For instance, the prosecution’s contention that the hunchmen were paid by A1 to kill Shankar and Kowsalya was dismissed merely because the CCTV footage of the ATM from where the money was drawn was not presented as evidence. The focal point of the case, which was objection to the marriage on caste lines as well as various attempts to keep Kowsalya away from Shankar and using various methods to make her forget Shankar were not taken into account at all.

Prosecutions in India often fail or falter because of a complicit state apparatus. The Criminal Procedure Code (CRPC), sections 311 with 165 of the Evidence Act give powers to the presiding judge to summon witnesses, and pro-actively intervene during trial. Section 173(8) empowers the court to ensure that the agencies investigating the case leave no stones unturned to tie up the loose knots in criminal cases. Here, while the prosecution agency clearly failed to convincingly make its case but the court itself, did little to nudge the prosecution agency into covering the lapses in the probe as the CRPC empowers it to do. In Kowsalya’s case, both the state prosecution and the High Court have failed the course of public justice: prosecuting, probing the motive behind the crime of a caste-driven killing and thereby denying justice to the survivor.

When the judgements of constitutional courts falter and turn away from speaking on such ghastly crimes, not only is a bad precedent set but the very purpose of such emancipatory legislation, is defeated.

Precedents

The judgment does mention cases like Bhagwan Dass v. State (NCT of Delhi) [(2011) 6 SCC 396], in which the Supreme Court dealt with the case of an honour killing. The conclusions were clear: that honour killings are nothing but barbaric and brutal murders by bigoted person with feudal minds; they fall under the category of the rarest or rare cases, deserving death punishment. However this precedent has not been used by the court in reaching its final decision.

Kowsalya, Shankar’s wife is both the primary witness of the crime, and the wife of the deceased, Shankar. She has led a courageous and brave battle. Kowsalya is set to appeal before the apex court, aided by lawyers, in an attempt to bring justice for her dead husband.


The High Court judgement can be read here.

 

Related:

Just kill me now. Shoot. I am ready to die: Soni Sori

Do Dalit lives matter in India?: Reflecting on condition of Dalits and apathy

Outlawed caste-based militia Ranvir Sena issues death threats over social media in Bihar!

SC/ST Commission in UP headless for over 7 months

 

 

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