Madras high court acquits 3 on death row; raps trial court, prosecution for lapses

Chennai: “In this country, the rich are able to get the best legal brains and a successful criminal lawyer today is one who is endowed with the ability to suborn witnesses or protract the trial till the witnesses are won over. The poor are left to fend for themselves with poor quality legal service and eventually, justice becomes the biggest casualty in the game of litigation”, said the Madras high court.

A division bench comprising Justices P.N.Prakash and B.Pugalendhi made the above observation while allowing the appeals filed by three accused, who were awarded death sentence by the trial court in a case relating to rape and murder of a 10-year-old girl in Theni district in 2014.

Holding that the prosecution had failed to prove the charges against the accsed, though it is apparent that a heinous crime has been committed on a hapless girl, the bench set aside the order of the Sessions Judge, Theni, convicting and sentencing the accused to death and acquitted the men of the charges against them.

Pointing various lapses in recording the statement of the witnesses, who were mostly the relatives of the deceased, the examination of witnesses and the conduct of investigation, the bench said, “Before parting with the matter, we wish to add that we cannot afford to put this case to rest after acquitting the accused because, while we were casually scanning the original records, we found that the police have recorded the section 161 (3) Cr.P.C. statements of some important witnesses on December 3 and 11,, 2014 but these statements have reached the court only on October 16, 2015. Therefore, we smelt a rat and pored over the original records only to unearth a Pandora's box, from which, damning facts came to light”.

The bench said it was indeed very unfortunate that the trial court, the Public Prosecutor and the defence counsel have all miserably failed to plod through the original records of the case. Had, at least, the defence counsel noticed these conflicting versions in the prosecution case, these contradictions could have been proved during the examination of witnesses and by the Investigating Officer. The defence could have taken steps to examine three witnesses to demolish the prosecution story that the accused were seen coming out of the farm of Ponmadasamy (after the rape and murder).

“This is a matter of great concern for us, and we are afraid that we are not able to make available quality legal service for the underprivileged accused like the appellants who are all dalits and who would not have had the wherewithal to engage top-notch advocates. That is the reason as to why Kumaresan, one of the accused, did not even choose to prefer an appeal against the death sentence slapped on him and when we brought him before our court and questioned him, he simply told us that he is hard pressed for money to defend himself and said stoically that he would rather suffer capital sentence, as if it is his destiny. Therefore, we nominated advocate Ma Karunanithi”, the bench added.

The bench said, “This is a classic case where the accused, facing a charge of rape and murder, were deprived of quality legal assistance, resulting in the trial court, believing the prosecution story and sentencing them to death. Alas, what trauma they must have undergone! It is time for the Bar Council of India to bestow its attention on this grey area and take effective steps to address this malady”.

The bench directed the Superintendent of Police, Theni to conduct an enquiry on the lapses noticed by this court and also find out from the case diary as to whether there has been any attempt to shield the real culprit(s). “As stipulated by the Supreme Court, we have recorded a finding that the lapses referred to in the judgment are indubitably blameworthy and not innocent. We suggest departmental action against Rajaraman, Inspector of police for the said lapses. The trial court shall make available to the SP, copies of the relevant documents required by him for the enquiry. Further, we direct the state government to pay a compensation of Rs 5 lakh Kaleeshwari, mother of the victim girl, within three months”, the bench added.