UDUMALPET HONOUR KILLING CASE – A STRICT INTERPRETATION OF CRPC OR A GROSS MISCARRIAGE OF JUSTICE?
This article has been authored by Prerna Sengupta, a second-year student at NALSAR, Hyderabad.
In India, honour killings occur when a person marries outside their caste or religion. It is considered honorable to marry within one’s caste and inter-caste marriages are a matter of shame. Such marriages are often regulated by informal local authorities such as Khap Panchayats who only perpetuate existing caste hierarchies by coercing people to marry within their caste. Caste based violence due to inter-caste marriages is widely prevalent in India and is one of the biggest social issues in the country.
Facts of the Case
The Udumalpet honour killing case is one such example. The incident took place in March, 2016 when Shankar, an engineering student aged 22 from the Scheduled Caste [SC] community was killed following his marriage to C. Kowsalya, aged 19 at the time. The prime accused in this case was Chinnasamy, the father of Kowsalya, upon whose instructions 7 individuals were allegedly directed to attack the couple near a bus stand where they arrived on a motorcycle and slashed them with knives. The couple had been married for 10 months at the time. Shankar died instantly whereas Kowsalya suffered a head injury and was admitted to the Coimbatore Government Hospital and survived. This gruesome attack was captured on a CCTV camera installed in the locality. Various bystanders also witnessed the horrific act.
In December 2017, the trial court held Chinnasamy guilty of criminal conspiracy and murder along with the offence under Section 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. Consequently, the trial court sentenced Chinnasamy to death.
On appeal by six of the eleven accused convicted by the Trial Court under Section 378(i)(b) CrPC, the High Court heard the case in June 2020 and acquitted Chinnasamy of all charges, including criminal conspiracy, and therefore, set aside the deaths sentence.
With regards to the other 5 accused who had earlier been convicted for murder (slashing of the deceased), the life sentence was modified to rigorous imprisonment for life for a minimum period of 25 years and no entitlement to statutory remission or commutation.
Furthermore, the High Court confirmed the order of acquittal of Chinnasamy’s wife and her brother in an appeal against acquittal preferred by the State. The acquittal of the person on the motorcycle who facilitated the escape of the assailants was also upheld. Additionally, the order of acquittal against a member of the unlawful assembly who prevented the accused from escaping was also upheld. The order of conviction against one of the accused, for harboring the other accused by providing accommodation and enabling them to abscond, was also set aside by the Court.
The High Court division bench consisting of Justices M Sathyanarayanan and Justice M Nirmal Kumar essentially ruled in favor of the accused because the prosecution was not able to prove the charge of conspiracy against Chinnasamy beyond reasonable doubt. The judgement sent waves of shock and horror across the state and subsequently an appeal against acquittal was made to the Supreme Court by the State of Madras. In September 2020, the Supreme Court Bench consisting of Justice S K Kaul, Justice Aniruddha Bose and Justice Krishna Murari agreed to hear the appeal and stated that the case required consideration.
Examining the High Court Judgement
The Madras High Court accepted that Chinnasamy had call records with the accused but determined that it was not sufficient to prove conspiracy.
The Prosecution produced two eyewitnesses who had seen Chinnasamy meet the assailants and heard him talk to them frantically regarding his daughter’s marriage. The High Court rejected the account of the eyewitnesses because the first time they had seen the assailants was in Court and they had no prior acquaintance with the assailants. Additionally, no Test Identification Parade was held by the police, which is a major shortcoming on their part. The testimony of eyewitnesses who saw the accused for the first time in court is considered to be weak unless corroborated along with a Test Identification Parade.
The Prosecution could not produce the documents of the lodge the assailants had stayed in which was allegedly arranged by Chinnasamy. The names were not there in the lodge register and the relevant records had not been procured during investigation.
Prosecution contended that the assailants had been paid money by Chinnasamy based on a confession statement of the accused and money withdrawn by Chinnasamy. However, the Court stated that no specific words regarding money were mentioned in the statement thereby rendering it beyond the ambit of Section 27 of the Evidence Act. Furthermore, it was a joint account of Chinnasamy and his wife, and in the absence of CCTV records of the ATM which the investigating officer had failed to procure, it could not be inferred that Chinnasamy was the one who withdrew the amount.
From the given evidence, the High Court accepted only two things – Chinnasamy was unhappy with his daughter’s marriage to Shankar and that he had contacted two of the assailants by call a week prior to the crime.
A prerequisite for criminal conspiracy is that a chain of circumstances establishing the meeting of the minds of the accused must be proven, which the prosecution failed to do in this case.
Lacunae in the High Court Judgement
The author believes that this judgement is severely problematic and sets dangerous precedent for widely prevalent “honour killings” and caste-based violence in the country.
Firstly, the Court failed to consider that this incident was related to “honour killing” which was only brought up by the prosecution once while referring to Bhagwan Dass v. State (NCT) of Delhi where honour killings were considered by the Court to be barbaric murders by bigoted persons with feudal minds and which comes under the rarest of the rare category and deserves the death punishment.
Furthermore, the judgement does not mention the crucial role of state machinery in inter-caste marriages. The Court in the case of B. Dilipkumar v. The Secretary to Government of directed that every district must have special cells dealing with inter-caste marriages by proactively granting protection, counselling parents and setting aside funds to eliminate such incidents. If the Magistrate thinks that there are grounds for framing charges against the accused and it is within the Magistrate’s purview,then a charge must be framed against the accused.
Moreover, the Supreme Court in the case of Arumugam Servai v. The State of Tamil Nadu fixed personal liability on police officials in whose jurisdictions caste related crimes took place, which was also ignored by the High Court in this case. The prosecution, therefore, failed to shed light on the caste honour aspect of the case and presented it as a mere case of culpable homicide.
Secondly, an appeal against acquittal is only resorted to under extraordinary circumstances and poses certain challenges. A much higher threshold of proving the guilt of the accused is set in an appeal against acquittal since the presumption of innocence of the accused has already been vindicated by the earlier decision of a competent court.[i]Such an appeal further endangers the interests of the accused and goes against the general intent of Section 378 CrPC, that is, to protect the accused from personal malevolence. Therefore, an appeal against acquittal has a much narrower scope as opposed to an appeal against conviction.
Certain cardinal rules of appeal against acquittal held by the Apex Court in the case of Chandrappa & Ors. v. State of Karnataka are that – there is a presumption of innocence in favor of the accused which has been strengthened by the previous order of acquittal, if two views are possible the order in favor of the accused should be taken since the trial judge had the opportunity to examine the demeanor of the witnesses and the accused is entitled to a reasonable benefit of doubt.
In this case, the High Court, in its 311-page judgement, thoroughly examined and justified the reasons behind not admitting every piece of evidence. Furthermore, the evidence or lack thereof presented by the Prosecution does not provide much leeway to the Supreme Court to make any significant alterations.
In this case, the failure of the prosecution to focus on the social evil of honour killings and caste-based violence and instead present it as a mere case of culpable homicide allowed the High Court to ignore the larger social context of caste-based violence and let the Court to base its decision on the technicalities of evidence. Furthermore, the lapses in collection of evidence by the investigating officer such as the CCTV footage in the ATMs and the lodge records along with the recalcitrance of the police, such as in taking the Test Identification Parade to strengthen the value of the account of eyewitnesses, allowed the prime accused to escape.
The motivations of the assailants to orchestrate such a brutal murder in broad daylight remain unclear following the order of acquittal but the acquittal of the prime accused continues to shock many. The High Court also failed to set any guidelines or to ensure the compliance of any previous guidelines in order to prevent the further commission of brutal atrocities perpetuated in the name of caste and laid no emphasis on the SC & ST (Prevention of Atrocities) Act, 1989 which is indicative of the fact that this reluctant judgement was passed in complete ignorance of the caste aspect.
Given the deplorable state of caste-based violence in India, with the number of cases increasing every day, cases of honour killing must be dealt with in a much more stringent manner. One can only hope that the Apex Court will establish more comprehensive criteria for establishing liability in such horrific cases.
[i] R. V. Kelkar, Criminal Procedure 658 (6th ed., Eastern Book Company 2014).