The Telegraph
Wednesday , January 2 , 2013
Since 1st March, 1999
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SC censures trial court for lynch-mob justice

New Delhi, Jan. 1: The Supreme Court has slammed a trial court judge for bringing up practices like lynching, beheading and eye-for-eye retributive policies while sentencing to death a man accused of burglary and murder, saying India’s judicial system couldn’t “import” such “barbaric” justice.

A two-judge bench said the country was governed by certain constitutional principles as it acquitted the convict, Omprakash, whose death sentence had been altered to life term by Madras High Court.

The judgment came on December 11, five days before the Delhi bus gang rape that triggered calls for deterrent punishments like public hanging and castration for rapists.

Justices K.S. Radhakrishnan and Dipak Misra also made the point that while academic opinions “may be food for thought”, the decision-making process should rest only on the evidence adduced.

The bench said the trial court’s “inclination” to bring in an alleged system of lynching to India and to show it as “special reasons” for sentencing the convict to death was “unfortunate”.

“We fail to see why we (should) import the criminal jurisprudence of America or the Arab countries to our system. The learned trial judge speaks of lynching and described that it has attained legal form in America. Lynching means (to) kill someone for an alleged offence without a legal trial, especially by hanging,” the bench said.

While sentencing Omprakash, the trial judge had brought up lynching, saying it “has attained legal form” in America and “given to deserving criminals”.

Lynching, however, is not legal in the US, though the practice — defined as “murder by mob” — was said to be prevalent in several states in the past. According to a recent report published by the Illinois State University on its website, there have been more than 5,000 recorded lynchings in the US, mostly of African-American men.

The report was based on a study by an associate professor of history, Amy Wood, who delved into records from the 1890s to the early 1940s.

The trial court also spoke of Arab country laws that “provide for imposing sentence(s) like ‘slashing’, ‘beheading’, taking organ for organ like ‘eye for eye’ (and) ‘tooth for tooth’”.

“The above mentioned facts are the development of criminal jurisprudence. Therefore, this court is of the opinion that it is proper to impose death sentence to the accused in this case,” the judge had said while sentencing Omprakash.

In its verdict, the apex court said the learned judge had “lost sight” of the fact that the criminal jurisprudence of this country did not recognise such “barbaric sentences”.

Omprakash and 10 others — nine are still absconding while one died during trial — were accused of burgling a house on June 7, 1995. The prosecution also charged them with killing the husband of the woman whose house they had entered.

It took police 10 years to arrest Omprakash from Rajasthan, but in connection with a different case.

He had neither been named in the burglary FIR, nor put through an identification parade. “It is rather impossible to identify the accused person when he is produced for the first time in the court i.e. after 10 years since he was unknown to the witnesses,” the apex court said.

“We are of the view that it is a glaring defect which goes to the root of the case since none of the witnesses had properly identified the accused,” the bench added, setting aside the conviction after noting that the accused had already served eight years in jail.

The convict, the bench said, is therefore “set at liberty, unless he is wanted in any other case”.

The bench also said the trial court judge should not have been influenced by “parochial” feelings that the alleged convict had come with his gang from Rajasthan to another state. The trial court had said the accused had come from a state about 2,000km “from our state”.

“We are not concerned with the question whether the criminals have come from 20km away or 2,000km away. The learned judge says that they have come to ‘our state’ forgetting the fact that there is nothing like ‘our state’ or ‘your state’,” the bench said, adding “such parochial attitude” should not “influence or sway a judicial mind”.