TNM analyses the verdict of the Madras High Court.

Sankar caste killing Why main accused Chinnaswamy was allowed to walk free
news Court Tuesday, June 23, 2020 - 19:33

In March 2016, Sankar, a Dalit man, was brutally murdered in the middle of a road in Udumalaipettai in Tiruppur district, for marrying Gowsalya, a woman who belongs to the Thevar community. He was hacked to death in broad daylight, even as his wife received dangerous blows to her head.

Undettered by this show of violence, Gowsalya and Sankar’s family fought a fierce legal battle, making strong allegations that her father Chinnasamy and mother Annalakshmi were directly responsible for the murder. A District Sessions court in 2017, based on her statement and evidence gathered by the police, sentenced Chinnasamy and the five men he had hired to kill Sankar, to death for the caste crime.

It was an important victory for those fighting caste-based discrimination in the state. But over two years later, on June 22, 2020, the Madras High Court squashed any sense of jubilation that had resulted from the district sessions court's verdict. A division Bench of Justice M Sathyanarayanan and Justice M Nirmal Kumar acquitted Chinnasamy of all charges and further mitigated the death sentences given to the five men who carried out the killing to life imprisonments.

And while the verdict has devastated Gowsalya, Sankar’s family, and activists who have tirelessly fought caste-based discrimination in the state, it begs a more important question – what failures on the part of the police and prosecution led to this verdict?

What went wrong?

To understand the flaws in the arguments made by the prosecution, one must know what evidence was put together by the Tirupur police to help them get a conviction for Chinnasamy (A1) and prove that he was conspiring with the five other accused – Jegadesan (A4), Manikandan alias Palani (A5), Selvakumar (A6), Kala Tamilvaanan (A7), and Mathan alias Michael (A8).

Five important submissions were made by the police and Additional Advocate General C Emilias to prove the conspiracy charge (section 120B of Indian penal code) against Chinnasamy, which was crucial to link him to the murder. This included a financial transaction by Chinnasamy to allegedly pay the accused for the murder; a hotel booking he made for the accused murderers; eyewitness confessions that Chinnasamy and the accused were seen together talking on more than one occassion; a previous complaint given by Gowsalya herself against her parents; and phone calls between Chinnasamy and A4-A8 in the days preceding the murder.

The bench, however, disputed all but one of the evidence offered by the prosecution and these were their observations.

1. Financial transaction

The court said that the withdrawal of money by Chinnasamy from a joint account with his wife using an ATM had not been proved by the prosecution. Despite a bank statement indicating the withdrawal, the bench asked why the prosecution did not produce video evidence from CCTV cameras in the ATM to prove Chinnasamy had indeed withdrawn the money.

A total of Rs 80,000 was withdrawn between February 12 and February 14, 2016, and the prosecution argued that a portion of this money was voluntarily handed over to A4 and A6. However this, the court observed, was not corroborated through A6's confession statement. Moreover, the court noted that Chinnasamy was running a taxi and agricultural activities, which lawyers interpret as suggesting that he required cash in hand.

"In the considered opinion of the Court, the prosecution is unable to prove that Chinnasamy alone has withdrawn the said sums through ATMs and paid a part of the amount to A4 and A6 – assailants in furtherance of the conspiracy to do away with the life of Kausalya (Gowsalya) and Sankar," the bench stated.

2. Booking a lodge for the murderers

The prosecution had presented the statements of two key witnesses, a lodge owner (Baskaran) and his brother to prove that arrangements for the stay of A4, A5 and A8 at their establishment, Bakya Mahal, was made by Chinnasamy. Despite eye witness accounts, however, the court dismissed this argument claiming lack of documentary evidence.

"The names of the persons, viz., A5 and A8 who supposed to have stayed in the Lodge have not been indicated (in the lodge's register) and Identity Cards have not been collected and no receipts for the payment of rent have been given and the counterfoil of the Receipt Book was not even seized by the Investigating Officer," the court observed.

The court further pointed out that the police had not conducted a test identification parade for the lodge owners to identify the accused, and instead, the accused were identified directly in court.

Advocate Manu Sebastian writes in Live Law that while identification of accused for the first time by the witness is admissible in court, it is advisable to hold a test identification parade when the accused persons are not known to witnesses before. The Supreme Court too has reportedly observed that identification of an accused for the first time in court by a witness should not be relied upon unless it is corroborated by his previous identification in a parade or through other evidence.

"There was no Test Identification Parade conducted so as to enable PW14 and PW15 to identify A5 and A8 and they identified them in the Court at the time of the chief examination on 21.07.2016," observed the court. "Therefore, the prosecution was unable to prove that it was Chinnasamy who made arrangements for A5 and A8 to stay in the lodge owned by PW14 and PW15 (lodge owner and his brother)," the court concluded.

3. Eyewitness accounts

The prosecution had recorded statements of eyewitnesses who had seen Chinnasamy talking to A4-A6 on separate occasions. But the court pointed out that the contents of the conversation were not heard or recorded and that no test identification parade was conducted for eyewitnesses to confirm if it was indeed Chinnasamy that they had seen.

"It is also the case of the prosecution that PW21 (witness number 21, an auto driver named Kalidas) had seen Chinnasamy in the Children's Park along with A4 and A5 20 days prior to the occurrence and also recorded the finding that even as per the own testimony, PW21 stood 70 feet away from the place where, Chinnasamy, A4 and A5 had conversation and he would not have heard the conversation and it was admitted by him and there was no Test Identification Parade on that aspect,” observed the court.

“Similarly, PW22 (witness number 22, a Ward Member of Komaralingam named Anbazhagan) had seen Chinnasamy along with four or five youngsters near the Rope Car Junction of Palani Temple and for him, no Test Identification Parade was conducted and the identification was only in the open Court and this Court," the bench added.

The fact that no test identification parade proved to be detrimental to the prosecution's case as far as the witnesses are concerned. It also didn't help that the statements of both these witnesses were weakened during the cross examination.

Kalidas, who had earlier claimed that Chinnasamy had spoken about revenge against his daughter and son-in-law multiple times, changed his statement during the cross questioning.

"PW21 also made a crucial admission that Chinnasamy did not state anything as to wrecking vengeance upon Sankar and Kausalya (Gowsalya) [PW1] and to take away their lives," the court observed.

Kalidas had also initially stated that he saw Chinnasamy telling the four persons 'that since his daughter got married to Sankar, his reputation in his locality has come down and further asking them as to what they are going to do for the same.' But on being cross examined he said he was too far to hear their conversation.

Anbazhagan in his cross examination, meanwhile, admitted that he is related to the deceased Sankar. His statement was further found to be contradictory because while being examined by the police he claimed he went to Murugan Temple at Palani on March 13, 2016 for worship but in the evidence, he has stated that he went to Pandi Kovil at Palani.

4. Gowsalya's previous complaint

Gowsalya had complained that she was forcibly taken away by her parents, who removed her thaali and threatened to dissolve her marriage. Her husband had also reported her missing to the police. But later, upon returning to Sankar, she withdrew this complaint. Therefore, the prosecution's claim that this complaint was proof of intention was dismissed.

The court noted that the complaint was closed by the police after recording statements from Sankar and Gowsalya. She had further in a statement urged that no action be taken against her parents.

5. Call records

The court admitted the electronic evidence provided by the prosecution regarding contact via phone between Chinnasamy and A4-A8.

"It is very pertinent to point out at this juncture that as per CDRs (Call details records) marked as Exs.P86 and 87, calls emanated from the mobile phone number of A8 to the mobile phone of Chinnasamy on 05.02.2016, 06.02.2016, 07.02.2016, 01.03.2016 and 02.03.2016 and similarly, Chinnasamy made calls to A8 on 07.02.2016, 08.02.2016 and 02.03.2016," the court admitted. "In the light of the discussions made earlier that between 06.02.2016 and 06.03.2016, there were phone calls from the mobile phones of A6, A8 and A9 to Chinnasamy and A2 contacting A8," they added.

However, given the prosecution's failure to prove the other arguments made in favour of pronouncing Chinnasamy guilty, the court found that the charge of conspiracy that linked Chinnasamy to these murders were not proven beyond reasonable doubt.

The court observed that as per the three cardinal principles of jurisprudence:

1) the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case

2) in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty and

3)  The onus of the prosecutions never shifts.

"Though the prosecution had let in oral evidences, voluminous documentary evidences and supporting materials, it has failed to establish rather sustain the charges framed against the appellant/Chinnasamy beyond any reasonable doubt and the Trial Court, in any event, ought to have ordered benefit of doubt," the bench concluded, as it acquitted Chinnasamy.