The summary on judgment of the High Court in the Tsundur massacre case, as given by Gautam Pingle (TNIE, May 8, 2014) is incorrect and upholding the judgment is uninformed and self-serving.
The judgment of High Court rests on lack of exactitude of time and place and leans on legal principles like “Even if hundred guilty go unpunished a single innocent should not be punished”. However, several judgments of Supreme Court cited in support by prosecution are deliberately overlooked and not even considered in the judgment. Thus the judgment itself suffers from the vice of suppressio veri and suggestio falsi.
Pingle, apparently without experience or background on judiciary, holds the brief for the judgment and certifies it. He seems to be carried away by the judge beginning the case with credibility test. But that is unusual and dubious. In the midstream, contempt notice was issued to the victim and their counsels for protesting against the segregation of appeal petitions by convicts and confining the hearing only to their cases and leaving the revisions and appeals filed by the victims to a later date. There is no justifiable explanation for such a segregation.
For the benefit of Pingle it is to be said that while the High Court has wider powers while exercising an appellant jurisdiction, the High Court cannot convert the acquittals into conviction. The revision filed by the victims against acquittal of the accused was put aside and thus the victims are now deprived of a fair hearing as the accused are acquitted.
Coming to the question of apology, the counsels never apologised and were ready to face contempt as they were convinced that procedure adopted in segregating the case would be fatal to justice. Yet, the contempt was closed abruptly and unilaterally against the counsels. Pingle says that Tsundur case is an instance of caste conflict, but it is an understatement. A conflict is between equals or near equals. Tsundur is a case of oppression by dominant upper caste against Dalit victims. It was the fall out of a struggle by Dalits for minimum social rights which had flared and ended up in a massacre on a large-scale.
Pingle deplores the demand for sacking of the judge as being arrogant. No wonder, he doesn’t seem to know the issue at large. If a judge has to balance the issues in dispute it is long settled that he should reflect it in his verdict. A judge should not only do justice but also appear to have done justice. In the present case, the judgment shockingly lacks consideration of copious citations of Supreme Court on the issue of delay in filing of FIR, of relevance of exactitude of time and place of occurrence particularly in cases of mass murders. No Judgments are referred, even for name sake. The judgment does not even reflect participation of defence in the narrative. The Hon’ble Supreme Court has time and again reiterated the need for delivery of justice based on precedents, and the delay in filing F.I.R. is not fatal.
Pingle should have known that of 8 persons killed all were not malas, one among them was madiga too. On one hand he concedes that on 6-8-1991 Reddys and Telagas rioted and killed 8 malaas in the presence of 37 police officials and also vouchsafes the judge as honest for concluding that prosecution failed as there was no exact time and place and nobody bothered to file an FIR. Are not these statements mutually exclusive and contradictory? Is Pingle aware that exact times of deaths are in the domain of medical reports?
When the entire village was under the grip of fear and villagers had fled the village for fear of their lives who will file an FIR? The conclusion that most of the victims were not Dalits is also factually incorrect. Does the author know that Moses’ father and paternal uncle were killed brutally; Moses is President of Tsundur Dalit Porata Committee agitating for the cause of justice for the victims, who is more connected to Tsundur case?
Pingle also dabbles in legalities. He says even falsehood in a single instance discredits the entire evidence. No. The principle of ‘falsus in uno, falsus in omnibus’ is not applicable to India, is the dictum of Supreme Court.
(The author is a High Court Advocate & Special Public Prosecutor in the Tsundur case)