Failure of state a reason for not awarding death penalty to guilty: Coimbatore judge

In the backdrop of the communal clashes in Coimbatore during November-December 1997, certain sections of the Muslim community had not only lost faith in the State, but also in the judicial system, the judge noted.

Violence was let loose against the Muslim community and against their properties in and around Coimbatore. The defence counsel had pleaded for a lesser sentence pointing out that the Muslim community was driven to a 8220;state of perpetual fear and a sense of helplessness8221; and the State machinery did not heed to any of their representations then.

8220;The learned Counsels ultimately blamed the State for the occurrence of the explosions and the commission of the crime,8221; the judge said, adding that the crime 8220;was not an isolated incident, but the culmination of several events and incidents.8221;

Various charges were based on circumstances and inferences and the evidences were 8220;largely from single witnesses without corroboration,8221; judge Uthirapathy said.

Referring at length to a deposition of a key-accused Basith, the bomb-maker who put together improvised explosive devices used in the blasts, the judge quoted him as saying the then Chief Minister8217;s J Jayalalithaa 8220;absolute support8221; to the demolition of the Babri Masjid had 8220;created a deep wound in the minds of the accused.8221;

Six check-posts were set up at the Muslim neighbourhood of Kottaimedu from where many of the accused came. The police extorted money from the poor Muslims, said Basith. He had argued that these factors, including 8220;failure8221; on the part of the State agencies, the police department and the judiciary culminated in the blasts.

8220;Certain sections of the Muslims have ultimately more faith in the laws of the Almighty and not in the Law of the land,8221; the judge said in his order.

He pointed out that any failure by the State machinery or omission by the enforcement agencies on the one hand, or any commission of any forbidden act from any other forces belonging to any other community would trigger a chain reaction in an opposing manner and affect society.

8220;This is the lesson that has been learnt from this extremely bitter experience of the blasts. Under such circumstances the deterrence theory fails,8221; he added.

The Court decided to dispense with invoking the capital punishment taking the above circumstances and factors into consideration. 8220;If the perpetrators of this heinous crime were allowed to live, there can be a chance for them to tell the outside world that the path of violence/destruction chosen by them is wrong and that violence in no way would save any particular community,8221; the judge said.

At the same time, 8220;there cannot be any mercy shown to these accused since the cruel act of the commission of this crime goes beyond all horizons and purview of mercy,8221; he said. So the trial court invoked the 8220;maximum prescribed sentences contemplated for those penal provisions with which the accused have been charged,8221; he said.

Devoting an entire section to why he did not award capital punishment in the case 8220;despite the fact that the nature of the crime committed by the accused would attract nothing less than death penalty,8221; Judge Uthirapathy contended that imposition of 8220;maximum sentence of capital punishment8221; in this case was unlikely to have a deterrent effect on other 8220;fundamental elements indulging in such a heinous act in future at any other place in our country.8221;

The prosecution8217;s main charge that there was a conspiracy to avenge the killing of 18 Muslims in November/December 1997 by targeting senior BJP leader, L K Advani, for his alleged role in the demolition of the Babri Masjid in Ayodhya, has been proved. But except for his participation in the conspiracy meetings, there was no direct evidence against Basha, the first accused, the judge said.

The judgment ran into 1,700-odd pages and five volumes.

The judge also felt that the 8220;interests of the accused8221; had not been fully safeguarded by proper legal assistance. 8220;Had legal assistance been more fully utilized, more details and facts would have come to light in assisting this Court to find out the truth, the Judge said. Defence counsels were frequently changed and only three advocates virtually conducted this case, resulting in several witnesses not being cross-examined, the Judge noted.