How strong is our Law to punish heritage criminals?
- In Society
- 04:16 PM, Dec 12, 2017
- Vijay Kumar
In June 2015, Mr Prateep V Philip, ADG of Tamil Nadu police in-charge of the Economic Offences Wing, who leads the only stolen idols wing in the country got candid about what we need to do to stem idol theft and highlighted a crucial aspect that we lack in .
Q. Based on practical experience, what are the greatest threats to our antiquities currently?
A: The real threat is from the growing crime of idol theft and burglary. Inconsequential and weak legislations (like AAT Act, AM&AS & Remains Act, AM Preservation Act 1904, TN A&HM & AS&R Act 1966 and TN Act 28 of 1993) - Ex: trial held for 7 yrs but the sentence imposed for the offences u/s 380 & 457 IPC is 6 months. The offence of temple lock breaking followed by lurking criminal trespass by night in order to commit an offence of theft entails a maximum sentence of 14 yrs as per S.457 IPC. Since 1947 no offence of idol theft was ever visited with a sentence of 14 yrs. Because penal law provides discretion to the punishing magistrate to impose lesser punishment of even 6 months for the same offence u/s 457 IPC.
http://indiatoday.intoday.in/story/tamil-nadu-stolen-antique-idols-wing-prateep-v-philip/1/445384.html
To further elaborate the above, I choose to share this amazing case of Idol theft and vandalism.
To start with what got me started was this - an appeal filed by the State, challenging the acquittal of the respondents/accused in C.C.No.31 of 1999 on 25.06.2002, by the learned Additional Chief Judicial Magistrate, Kumbakonam, for the offences under Sections 120(B), 457(2), 380(2) read with 109 IPC. Since it was a case listed under the idol theft scope I got to reading more about the case – and was shocked to find that it was actually a case pertaining to a theft on 17.12.1990,
The Hereditary Trustee of Arulmighu Viswanathasamy Temple in Anaikudi Village, Kumbakonam, opened the temple in the morning and found that the doors of the shrine were forcibly broken and seven idols were missing. He also found the idol of Lord Nataraja lying near southern side of the compound wall inside the campus.
The case has a graphic account of the entire happening.
It is the case of the prosecution that on 17.12.1990, A.R.Swaminathan [P.W.2] who is the Hereditary Trustee of Arulmighu Viswanathasamy Temple in Anaikudi Village, Kumbakonam [hereinafter referred to as ' The Temple'], opened the temple in the morning and found that the doors of the shrine were forcibly broken and seven idols were missing. He also found the idol of Lord Nataraja lying near southern side of the compound wall inside the campus. P.W.2 went to the local HR & CE office and informed this to the Assistant Commissioner of the HR & CE Department who deputed one S.Sambandam [P.W.3] Inspector of Temples to visit the temple. Accordingly S.Sambandam [P.W.3] visited the temple and together with P.W.2 they went to the Thirupanandal Police Station, where P.W.2 gave a written complaint [Ex.P6] giving the description of the seven idols based on which, a case in Thirupanandhal Police Station Cr.No.495/1990 under Sections 457 and 380 IPC was registered on the same day. For a pretty long time there was no break through in the investigation.
Now lets see what is the police report on the incident
In his evidence S.Sambandam [P.W.3] has stated that on 17.12.1990, P.W.1 came to the HR & CE office and met the Assistant commissioner and informed him of the theft of 7 idols from the temple. On the directions of the Assistant Commissioner, P.W.3 went for spot inspection of the temple and found that the Nataraja idol was lying near the compound wall of the temple and the doors and lock of the various shrines were found broken. Then he accompanied P.W.2 to the police station for lodging a complaint about the theft of 7 idols from the temple. He further stated in the evidence that photographs of the idols were taken and HR & CE Department has an album containing the photographs of the idols which was handed over to the police by the Department. In his cross examination, he stated that with the help of the photographs he can identify the stolen idols. He also further stated that there is no property register in the temple.
This single noting has some very serious ramifications but we shall come to that in a while.
What was more shocking was what happened to the stolen Gods.
An arrest was made and in the accused house they found the idol of Lord Subramanya in two pieces - head portion and body ! The FIR was registered Cr.No.229 of 1991.
On the confession more accomplices were arrested and more idols recovered – in pieces. The police discovered the idol of Goddess Valli which was broken into three parts, namely body part, head portion and hand portion. These three pieces were kept buried in the bank of a dry rivulet.
Another accomplice was arrested and recovered another idol buried spot beneath a tamarind tree - Goddess Deivanai.
Another lead – another arrest another recovery in pieces - wrist portion of Lord Chandrasekara's idol, head portion of Goddess Sivakami idol, crown portion of Goddess Sivakami idol and hand portion of Goddess Sivakami idol
Another arrest another hidden spot ( buried underground) leading to recovery of Chandrasekara idol in two parts, namely body part and head part
Another arrest and a hidden idol in the granary of his house. Idol of Goddess Chandrasekara Amman
Another arrest and another idol hidden in banks of a river bed located in the south of Thirunageswaram village and recovered Lord Sokkar idol and Goddess Sivakami idol.
Its pertinent to note that in this case the theft looks more likely connected to the mistaken theory of the Gold content in traditional Panchaloha idols ( wherein scientific tests have shown that the actual previous metal content is miniscule percentage).
“Around 2 months later, Kanagasabai came to my house. He said that he wanted to test the statue to know whether there is gold in it. I told Jacob the information stated by Kanagasabai. Jacob asked to severe the hand portion of the statues to test it. Then, he said that we would go to Kutralam, the next day. I took Kanagasabai to my plantain grove where the statues were hidden and took the statues by digging and severed the right hand of Valli, right hand of Murugan, left hand of Chandrasekaran, the hand holding the deer, its Amman's hand, Sokkar's right hand along with shoulder, right leg and left calf and gave it to Kanagasabai. Kanagasabai took them and went to Kutralam. Only after hiding the remaining statues, we sent him. The next day, Jacob and I went to the house of Kanagasabai. Kanagasabai tested the statues which were brought, by pouring acid over it. It was fuming. Since it was fuming, he said that it was not gold. Jacob severed a small portion of it and gave it to K.S.Mani and Thirunavukkarasu, who were at the back side of Jaganatha Pillaiyar temple at Kumbakonam, for testing. At that time, Thirunavukkarasu and Mani asked as to where they got these statues from. He said that he will tell them later regarding that and asked to test it. They tested and said that it is not gold. Then Kanagasabai came home. He said that the hand portion was tested and nothing was found.”
The case was further strengthened when an Inspector in the HR & CE Department in 1983 had photographed the bronzes while still in the temple and prepared an album for the same and submitted to the Assistant Commissioner, HR & CE Department, for which he has stated that he was given authority in writing. The photo album was found wrapped in a paper on which was clearly written Arulmighu Viswanathasamy temple. Beneath each photograph the description of the idol was given.
What is actually shocking is not any of the above but the fact that despite all this the accused were acquitted in 1999 n 2002 !
Despite the mountain of evidence why were they acquitted?
- The stray statement that there is no property register in the temple by P.W.3 had been one of the grounds for the trial Court to acquit the accused.
- The police failed to secure the broken locks of the temple and the finger print expert could not match any prints !
- The charge of Section 380 in The Indian Penal Code
Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine
was amended by Tamil Nadu in 1993 to read as under
STATE AMENDMENTS
State of Tamil Nadu:
Section 380 of Indian Code (Central Act XLV of 1860) (hereinafter in this Part referred to as the principal Act) shall be renumbered as sub-section (1) of that section and after sub-section (1) as so renumbered, the following sub-section shall be added, namely: -
"(2) Whoever commits theft in respect of any idol or icon in any building used as a place of worship shall be punished with rigorous imprisonment for a term which shall not be less than two years but which may extend to three years and with fine which shall not be less than two thousand rupees:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than two years."
[Vide Tamil Nadu Act 28 of 1993, sec. 2 (w.e.f 13-7-1993)].
This amendment still stays – meaning someone steals from a house can get 7 years in India but stealing from a place of worship get max 3 years n 2000 Rupees !!
But since the theft occurred in 1990 the police used the wrong IPC amendment to book ?? the thieves were acquitted!
However, it took another 14 years for the authorities to appeal the verdict but it came to I guess a more focussed court in 2014 !
In order to prove this fact the prosecution relied upon the testimony of Saminathan [P.W.2] the Trustee of the temple, Ramakrishnan [P.W.5] and Ramanatha Gurukkal [P.W.6], who have all identified the idols as belonging to Arulmighu Viswanathasamy temple.
33. Coming to the Property Registers [Exs.P12 and 13], about which I have discussed in detail in para 11 above, I hold that the same has been properly maintained. Notwithstanding all these, the photo album [Ex.P20] was proved through the evidence of Gangadaran [P.W.4]. Gangadaran [P.W.4] in his evidence stated that he is working as Inspector in the HR & CE Department and during 1983 he was working in Kumbakonam North Zone and at that time he was entrusted with the task of taking photographs of the idols in Arulmighu Viswanathasamy temple in Anaikudi. Accordingly, he had taken 47 photographs of the idols in the temple and prepared an album for the same and had submitted the same to the Assistant Commissioner, HR & CE Department, Kumbakonam circle. This photo album was marked through him as M.O.No.20. In his cross examination he was asked whether he has any written authority to take photographs, for which he has stated that he was given authority in writing. He further stated that he did not handover the photo album to the police. He also stated that the album does not have the signature and seal of the Assistant Commissioner of HR & CE. He admitted that except in the wrapper of the photo album, there is nothing to show that the photo album pertains to the idol in Arulmighu Viswanathasamy temple. Based on this admission, the defence strenuously contended before me that this album does not relate to Arulmighu Viswanathasamy temple.
34. Therefore, I carefully perused the photo album and I found on the wrapper it is clearly written that it pertains to Arulmighu Viswanathasamy temple. Beneath each photograph the description of the idol has been given. I fail to understand as to what more particulars the defence requires to be written on the album? Absence of seal and signature of the Assistant Commissioner of HR & CE in the photo album, cannot lead to the conclusion that the entire album was a concocted piece of evidence.
35. In order to satisfy myself, I directed the trial Court to cause production of all the seized idols together with the mutilated pieces [M.O.Nos.1 to 19] before me and accordingly, they were produced on 15.04.2014 I inspected the same in the open Court in the presence of the learned Public Prosecutor and the defence counsel and correlated the idols with the photographs in the album.”
What I found funny was the fact that one of grounds for their release was the presence of more idols than that were stolen
“
The defence counsels contended that P.W.1 has stated that they had stolen 9 idols, but whereas, the compliant has been given only in respect of 7 idols by the temple authorities and therefore, the evidence of the approver deserves to be rejected. It is true that the approver [P.W.1] has stated in his evidence before the Court in more than two places that, 9 idols were stolen by them and whereas only 7 idols were found to be missing by the temple authorities. Just because the prosecution was not able to explain as to what the three extra idols were, this Court cannot reject the entire prosecution case when there is sufficient materials with regard to the theft and recovery of seven idols from various accused.”
So no one knows where the 2 additional idols are from to this day !!
So what happened during the final hearing?
“After pronouncing the conviction in the open Court, all the accused, who were present in the Court were questioned about the sentence and they stated as follows:-
(i) A1-Jacob stated that he is a cancer patient, aged about 75 years and hence, pleaded for leniency;
(ii) A3-Nagalingam stated that this is the only case against him and that his wife is very sick and hence, prayed for leniency;
(iii) A4-Selvaraj stated that he has poor eye sight and hence, prayed for leniency;
(iv) A5-Oswalt stated that his brother had died and he has to take care of his deceased brother's two girl children and further stated that his sister's husband had also died and he has to take care of her family also, and hence, prayed for leniency;
(v) A6-Alexandar stated that he is a widower and has to take care of his two girl children, who are studying in XI Standard and IX Standard and hence, prayed for leniency;
(vi)A7-Martin stated that he is a widower and got one male child, who is aged about 10 years and he has to take care of him and hence, prayed for leniency; and
(vi) A8-Kanagasabai stated that his wife is a heart patient and hence, pleaded for leniency.”
So after all this trouble what did the idol thieves get in 2014?
“
(i) A1, A3, A4, A5, A6, A7 and A8 are convicted for the offence under Section 120-B of IPC for conspiring to commit the theft of Idols from Sri Viswanathaswamy Temple, Anaikudi, and sentenced to undergo two years rigorous imprisonment.
(ii) A4, A5 and A6 are convicted for the offence under Section 457 IPC and sentenced to undergo two years rigorous imprisonment.
(iii) A1, A3, A7 and A8 are convicted for the offence punishable under Section 457 r/w. Section 109 of IPC and sentenced to undergo two years rigorous imprisonment.
(iv) A4, A5 and A6 are convicted for the offence punishable under Section 380 IPC and sentenced to undergo three years rigorous imprisonment and liable to pay a fine of Rs.5,000/-, in default, to undergo three months rigorous imprisonment.
(v) A1, A3, A7 and A8 are convicted for the offence punishable under Section 380 r/w. Section 109 of IPC and sentenced to undergo three years rigorous imprisonment and liable to pay a fine of Rs.5,000/-, in default, to undergo three months rigorous imprisonment.
All the aforesaid sentences shall run concurrently. The periods already undergone by them will be set off under Section 428 of Cr.P.C. The period of judicial custody they have undergone pursuant to the orders of this Court in this Appeal under Section 390 of Cr.P.C., should also be set off.
No wonder Tamil Nadu is a hot bed for Idol theft and is this punishment any deterrent at all ! we need to seriously review our criminal procedure, conduct proper training for the law enforcement officers and ensure speedier trials for such criminals.
https://indiankanoon.org/doc/35602994/
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