The Madras High Court' judgment setting aside the conviction of Chinnasamy in the 2016 Udumalpet caste killing case has caused widespread dismay and anger. The Sessions Court in Thiruppur had sentenced him to death in 2018, on the finding that he was the key conspirator behind the daylight murder of his daughter Kowsalya's husband Shankar, a Dalit man. The gruesome murder, in full public view, was allegedly carried out with the motive of protecting 'caste pride'. Chinnasamy was deeply aggrieved that his daughter had married a low-caste man against the wishes of the family.
In HC, a division bench of Justices M Sathyanarayanan and M Nirmal Kumar held that the "the prosecution is unable to prove the charge of conspiracy (against Chinnasamy) beyond any reasonable doubt".
The prosecution had projected the following circumstances to prove conspiracy by the main accused :
As regards the first circumstance, the court noted that the complaints given in July, 2015, was closed by the police after recording the statement of Shankar that Kowsalya will be taken care of in his family. The Court also referred to a petition given by Kowsalya urging them not to take further action against her parents.
As regards phone calls, the Court accepted the evidence of Call Detail Records that Chinnasamy had contacts with two of the accused between February 6, 2016 and March 6, 2016 (The crime took place on March 13, 2016). But, this by itself was not sufficient to prove conspiracy, the HC held.
To prove that the Chinnasamy had met the assailants, the prosecution had cited two eyewitnesses - Kalidas (PW21) and Anbazhagan (PW22). Kalidas, an auto driver, told the Court that about 20 days prior to the date of crime, he saw Chinnasamy talking to four persons, including two assailants, at Children's Park Palani. The witness added that he overheard Chinnaswamy talking in an agitated manner about his daughter's marriage with Shankar.
Anabazhagan told that on the previous day of the crime, he saw Chinnasamy with five assailants at Rope Junction, "in a fit of rage".
The Court rejected their testimonies on the main ground that both the witnesses had identified the assailants for the first time in the Court. The Court noted that though the witnesses had no prior acquaintance with the assailants, no Test Identification Parade was held.
"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 Court observed in this regard.
While it is true that identification of accused for the first time by the witness in Court is admissible, it is always safe and prudent to hold a Test Identification Parade(TIP) when the accused persons are not known to witnesses before. The SC has observed in a case that "Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence" (see Dana Yadav @ Dahu v State of Bihar).
In a sensational and shocking case such as this, it is surprising that the police did not take the abundant caution of holding a TIP. This lapse left the door ajar for the prime accused to escape.
Further, as regards the prime accused arranging stay for two of the assailants in a lodge, the Court noted that the prosecution could not establish the same by way of documentary evidence.
The names of the accused were not there in the lodge register, and the relevant records were not seized by the police.
"...the names of the persons, viz., A5 and A8 who supposed to have stayed in the Lodge have not been indicated 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 – PW67", the Court said.
There was no TIP even for the lodge managers, and they also identified the accused for the first time in the Court.
The Court held that the prosecution was unable to prove that it was Chinnasamy who made arrangements for the two accused to stay in the lodge.
To show that Chinnasamy had previous acquaintance with two of the assailants (A4 and A8), the SI of Palani station stated that he had stood as surety for their release on a previous occassion. Surprisingly, no documents/endorsements regarding the same were produced before the Court.
As regards money transaction, the Court noted that though it was shown that Chinnasamy had withdrawn Rs 80,000 through ATM between February 12 and 14, there was no evidence that it was for payment to the assailants. It was the case of the prosecution that a sum of Rs.24,000/- was recovered from A4 and yet another sum of Rs.26,000/- was recovered from A6, and they were paid by Chinnasamy. This was based on the confession statements of the accused, stated to have been corroborated by recovery under Section 27 of the Evidence Act.
The HC noted that in the admissible portion of the confession statement, there are no specific words regarding money. So, recovery of money was held to be beyond the ambit of Section 27 of the Evidence Act.
Also, since it was a joint account of Chinnasamy and his wife, it cannot be said that Chinnasamy alone withdrew the amounts, in the absence of CCTV images from the ATM centre. The Court specifically noted that the investigating officer did not seize the CCTV records of the ATM.
"The recovery of money said to have been paid by A1 to A4 to A8 as well as from A6, in the considered opinion of the Court may not fall strictly within the ambit of Section 27 of the Indian Evidence Act and even for the sake of accepting the arguments advanced on behalf of the State, 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 said.
From the evidence on record, the HC could only accepted two facts :
Beyond that, the prosecution "failed to link the circumstances which would have been unerringly pointed out the guilt" on the part of Chinnasamy, the Court said.
In a case of criminal conspiracy, it is incumbent on the prosecution to establish a "clear chain of circumstances" showing the meeting of minds of the accused.
The Court also refused to overturn the acquittal of Kowsalya's mother, Annalakshmi observing that the evidence "did not indicate her intention to wreak vengeance as to the inter-caste marriage between her daughter with Shankar". The acquittal of two other persons were also sustained.
While the Court pointed out the weakness of prosecution case to acquit the prime accused, the big question still remains : what motivated 5 assailants to hack Shankar to death in broad daylight in public view?