http://www.frontline.in/stories/20100813271603000.htmSOCIAL ISSUES
Gaps in the story
LYLA BAVADAM
The Khairlanji case is tried without invoking the Prevention of
Atrocities Act.
VIVEK BENDRE
WHEN four members of the Bhotmange family were killed in Khairlanji
village in Maharashtra's Bhandara district on September 29, 2006, it
was considered to be among the worst caste atrocities in
post-Independence India. However, a special trial court in Bhandara,
presided over by Additional Sessions Judge S.S. Das, concluded on
September 15, 2008, after a 16-month trial, that the motive for the
crime against the Scheduled Caste family was revenge and not caste
animosity. Not only did he rule out the application of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989,
but he also did not invoke Section 354 (assault or criminal force with
intent to outrage the modesty of a woman) or Section 375 (rape) of the
Indian Penal Code (IPC).
The trial court convicted eight of the 11 accused. Three people were
acquitted after the judge said the killings were not proved to be
caste-related. Six of the convicted were awarded the death sentence.
The Central Bureau of Investigation (CBI), which was prosecuting the
case, filed an appeal before the Nagpur Bench of the Bombay High
Court. On July 14, 2010, the Bench upheld the lower court's verdict
but commuted the death sentences to life imprisonment.
The High Court judgment said: "The incident had not occurred on
account of caste hatred but the incident occurred since the accused
felt that they were falsely implicated in the crime of beating
Siddharth Gajbhiye by Surekha and [her daughter] Priyanka
[Bhotmange]."
What led to the lynching of the four Bhotmanges, if it was not caste hatred?
A review of the incident is necessary to understand the case. The
population of Khairlanji village consists primarily of Other Backward
Classes; there are only three families of Mahars, a Scheduled Caste,
and a few Scheduled Tribe families. All the accused in this case
belong to the Kunbi (OBC) community. The Bhotmanges are Mahars.
On September 13, 2006, one of the accused, Sakru Binjewar, was slapped
by the local police patil, Siddharth Gajbhiye, who is a Mahar, after
the two had an argument over some back wages that Gajbhiye owed Sakru.
That evening, Gajbhiye was attacked by some people. Surekha Bhotmange
and her daughter, Priyanka, went to Gajbhiye's aid since they knew him
well.
Two days later, Gajbhiye lodged a complaint of assault with the police
and Surekha gave a statement identifying the attackers, following
which they were arrested. On September 29, they were released on bail.
At around 6 p.m. that day, about 40 people surrounded the Bhotmanges'
hut and accused Surekha of falsely implicating the people who were
arrested in the case. They abused the Bhotmanges in casteist terms. In
an apparent attempt to attract attention, Surekha set fire to the
cattle shed and then tried to run away, but she was caught and killed.
Her elder son, Sudhir, was killed when he ran out. Roshan, her
visually challenged son, who is believed to have pleaded for his life,
was also killed. Finally, Priyanka was caught near a handpump and
killed. The bodies were loaded onto a bullock cart and dumped in a
canal. These are the facts as presented in the High Court judgment.
Missing pieces in the puzzle
Some pieces of the puzzle do not fall in place. The incident was the
culmination of developments over a period of 17 days, so it is
difficult to understand why it is called a crime of the moment and not
seen as premeditated.
Besides, if the attack was because Surekha and Priyanka had assisted
Gajbhiye, then why were Sudhir and Roshan killed?
It is difficult to accept the argument that they were killed because
they were witnesses to the murder of their mother. Roshan, for
instance, was visually challenged. Besides, by the attackers' own
recounting, all the members of the family were not present at the hut
at the time of the incident. They were hunted out from various places
by the mob.
Also, if the murderers wanted to eliminate witnesses, why did they not
kill the other village residents who watched the killings? Could it be
that they expected these witnesses to be loyal to their caste?
In any case, the mob screamed caste abuses while hunting down the
Mahar family. Witnesses have said under oath that they heard the mob
shouting " Mahar la mara" (Kill/hit the Mahars). After the murders,
the assailants warned the others not to speak of what they saw.
Accounts of witnesses, media reports and the findings of numerous
independent committees of Dalit and civil society groups indicate that
the Khairlanji murders were premeditated and motivated by caste
prejudice and that the women victims were sexually assaulted.
But the High Court treated the case purely as a homicide. In doing so,
it might have "set a dangerous precedent", believes S. Anand of
Navayana, a publishing house that "focusses on caste from an
anti-caste perspective". He said: "People are now likely to see it as
just another human crime… just one person killing another. Every
dispute has its origin, but in this case there was a special anger.
What was this due to?" Anand's apprehension is that the Nagpur
judgment may encourage "lower courts to ignore caste-related crimes".
Sexual assault ruled out
Rape and sexual assault have been ruled out in the legal process. Even
the CBI's senior public prosecutor says the agency has no evidence for
it. The CBI took up the case a month after the crime and by then the
bodies had been disposed of.
VIVEK BENDRE
Policemen guard Bhaiyyalal Bhotmange's house in Khairlanji. An October
2009 photograph.
There was severe criticism of the manner in which the post-mortems had
been carried out, and a source closely connected with the case told
Frontline that "proper investigation was not done by the police".
Witnesses who spoke extensively to the media and to numerous
independent fact-finding committees recounted incidents that now find
no place in the legal process.
Previously, it was reported that the Bhotmanges had been stripped,
paraded naked, taunted with sexual obscenities and casteist language.
They were taken to the centre of the village, where apparently the OBC
women urged their men to rape the Bhotmange women. Unsuccessful
attempts were made to make Sudhir, the oldest Bhotmange boy, copulate
with his mother and sister. They were beaten with rods, chains and
other implements until their bones were broken and they ultimately
died, as the post-mortem report put it, of "intracranial haemorrhage
due to head injury". Throughout, said the witnesses at the time, the
mob screamed out hatred of the Mahars.
All this depravity and torture prompted by a desire to take revenge on
two women who identified a man in a minor police case? It seems
unlikely.
Legal limitations
Anand has an opinion on why the courts did not see the Khairlanji
killings as caste violence. "Caste prejudice prevented the invoking of
the Atrocities Act," he said.
How is a case of abuse proved to be related to caste? The presence of
witnesses provides the best way to prove caste atrocity. Under the
Prevention of Atrocities Act, caste abuse can be verbal or physical.
It can range from pulling a Scheduled Caste woman by her hair or
sexually abusing her. It can be in the form of denial of the right to
passage to a public place or of the right to clean water. The Act
provides a wide umbrella under which those who are abused can take
shelter.
However, as one lawyer pointed out, caste violence is not easy to
prove because the depth of the investigation and the extent of
evidence required to invoke the Atrocities Act seems to be far more
rigorous than what is required in a case of homicide. The nitty-gritty
demanded by the Act are such that, the lawyer said, they often seem to
undermine the objective of the legislation.
The High Court judgment, for instance, quotes Section 3(1)(x) of the
Act: "Whoever, not being a member of a Scheduled Caste or a Scheduled
Tribe, intentionally insults or intimidates with intent to humiliate a
member of a Scheduled Caste or a Scheduled Tribe in any place within
public view;…" The key word here is "intent". How is intent to be
proved? The judgment goes on to explain, "In order to attract Section
3(1)(x) of the Act, it is necessary that the accused should insult or
intimidate a member of a Scheduled Caste or Scheduled Tribe in any
public place with intention to humiliate him/her. In the present case,
the whole object of the accused was to take revenge against Surekha
and Priyanka because the accused believed that they were falsely
implicated in the assault of Siddharth Gajbhiye by them and in the
process they committed not only murders of Surekha and Priyanka but of
Sudhir and Roshan. Therefore, it is difficult to hold that accused
intended to insult Surekha or other deceased who admittedly were
belonging to Scheduled Caste."
Even the use of the word "Chamar" is not adequate to prove that there
was an intent to humiliate, as the judgment explains. "In the case of
Swaran Singh and others vs. State (2008 CRI.L.J., 4369) the apex court
held that calling the member of Scheduled Caste as 'Chamar' with
intent to insult or humiliate would amount to an offence and whether
there was intent to insult or humiliate by using word 'Chamar' would
depend on the context in which it was used." So the shouts of " Mahar
la mara", which the Khairlanji witnesses say they heard, do not seem
to prove adequately the intent of caste humiliation.
FIR must mention caste of accused
Another point of law was raised in the judgment, which essentially
said that when a first information report (FIR) is filed for offences
under the Prevention of Atrocities Act, the complainant must disclose
the caste of the accused. To quote, "At this stage we would like to
deal with the authorities relied upon by Mr. Khan [the CBI prosecutor]
in support of his submission that the offences under the Scheduled
Castes/Scheduled Tribes Act are made out against the accused. In the
case of Ashabai Machindra Adhagale (supra) the apex court held that
merely because in the FIR caste of the accused is not mentioned, the
proceedings could be quashed and whether the accused belongs to
Scheduled Caste/Scheduled Tribe can be gone into in the course of
investigation."
VIVEK BENDRE
Bhaiyyalal Bhotmang, The lone surviving member of his family.
It seems that Bhaiyyalal Bhotmange, the surviving member of the
Bhotmange family, should have said at the time of filing his FIR that
the assailants were members of the OBC. His omission to do so was
apparently a misdemeanour.
Fine points like this came in the way of invoking of the Prevention of
Atrocities Act in the Khairlanji case.
Witnesses were 'unreliable'
The prosecution's strongest card was thought to have been the four
witnesses, all residents of the village. Ejaz Khan, the CBI's senior
public prosecutor, and others present in court said the accounts of
the witnesses were so strong that it was generally expected that the
Prevention of Atrocities Act would be invoked.
But the judgment notes that they were largely discounted because of
contradictions and omissions that were believed to reflect on their
credibility.
Given the circumstances, it is highly commendable that the four
witnesses appeared at all for the prosecution. One of them was from
the OBC community. The other three were Gonds, a Scheduled Tribe.
Khairlanji is deep in the hinterland. With the nearest police station
being some miles away, it is impractical to believe that one can rely
on the government for safety. Instead, people rely on each other and
on established social structures for their survival.
In 2006, when the crime occurred, a Khairlanji resident told
Frontline: "Our lives are here – land, cattle, families. Who will be
here with us when the police [contingents] move out? No one. We will
go back to the same ways and if we speak out, our lives will be in
danger. What has happened has happened. That is the way it is for us."
In this context, the decision of the four witnesses to speak out
should be respected all the more. Witnesses in the Khairlanji case do
get protection from the state, but, as Khan said, "once the threat
perception is gone the police protection is withdrawn".
It is not clear how it is decided when the threat perception
diminishes for a man who has gone against his caste loyalties and
stood up as a witness.
One would imagine that the threat perceptions would remain high for a
long time, if not forever.
The undeniable truth
So how is caste atrocity to be proved if the accounts of witnesses are
discounted? There was one fact that even the defence could not dismiss
– that the Bhotmanges were physically abused, tortured, and then
killed.
Anand said: "Four people were lynched in the face of a mob. This much
has been accepted – the very fact that there is a judgment that
convicts people for this crime proves that this much has been accepted
by the court. It is also accepted that the four who were lynched were
Dalits. That too is also not disputed. So now what's the problem? Put
the two facts together – Dalits were lynched – and invoke the
Atrocities Act."
Given the historical inequities suffered by the Scheduled Castes, the
Prevention of Atrocities Act is more than just a piece of legislation.
It is a tool of empowerment, of dignity and of deterrence, and hence
the need for its application.
And while the letter of the law is to be respected, it has to be
ensured that the law does not destroy the spirit of common social
intelligence and understanding. The real issue is not the quantum of
justice but that Khairlanji be recognised for what it was – a
caste-related lynching.
Another appeal?
Both legal and police officers who spoke to Frontline said that the
quantum of justice was adequate but believed that there would be an
appeal against it. Indeed, the CBI is drafting an appeal before the
Supreme Court.
The commonly expressed complaint that educated Dalits prefer to forget
about helping less fortunate brethren came to the fore again after the
Khairlanji incident. Writer Anand Teltumbde wrote at the time, "The
superintendent of police, Bhandara, the Dy. Superintendent of Police,
the PSI of Andhalgaon police station, a constable under him, the
doctor who performed post-mortem, the district civil surgeon who
permitted the doctor to go ahead with post-mortem without a lady
doctor, the public prosecutor who advised against application of the
PoA to the earlier cases which were essentially caste based, the nodal
officer at the apex level who is entrusted with the responsibility of
reviewing the state of crimes against S.C.s and S.T.s in accordance
with the Atrocities Act, were all Dalits and belonging to the same
sub-castes as that of Bhotmanges. Nobody will fault this combination
and accuse the upper caste people of exercising caste prejudice in
relation to Dalits but as it is seen the entire network failed at
every possible step.
"It is easy to blame these individuals but not the system of which
they are essentially a part. It is naive to believe that a Dalit
individual rising up the bureaucratic or governmental structure could
influence it to be pro-Dalit. On the contrary, such individual rise is
basically a reward for the proven service rendered by such individual
to the system and the latter expects much more of the same from him.
It is a singular naivety of Dalits that has reduced them to political
inactivity. They forgot that it is their own political participation,
their struggle that can influence the behaviour of structures, not the
individuals howsoever highly placed they may be."
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