People's Democracy

 

The Khairlanji Judgement: A Travesty of Justice

 

Brinda Karat

 

SOME months ago, a national newspaper reporting a crime of gang rape and murder of a dalit school teacher in Haryana, quoted the victim’s mother as saying, after the police failed to register a case and the courts refused to intervene: “The police is theirs, the judge is theirs, the administration is theirs, the people are theirs, why should they work for us?”

 

This anguished question finds an echo all through the pages of the judgement of the Nagpur bench of Mumbai High Court on the terrible Khairlanji atrocity. The judgement is a travesty of justice --- not only because of the reduction of the death sentence of six accused to life imprisonment, but also because of the perverted reasoning in the judgement on two interlinked issues. These are, firstly, the non-applicability of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) (POA) Act and, secondly, the court interpretation of “mitigating circumstances” which favour the accused.

 

THE

FACTS

What were the facts? The Bhotmange family --- of Bhaiyyalal Bhotmange, his wife Surekha and their three children, Sudhir, Roshan and Priyanka --- was one among the only three dalit families in Khairlanji. They had, for several years, faced caste harassment including forcible prevention by non-dalit castes to their building of a pucca house. Even though the Bhotmanges owned five acres of land, the village authorities refused to levy tax on them as they wanted to takeover the land and deny proof of ownership/occupation to the Bhotmanges. Surekha had been humiliated and harassed several times, but she refused to be cowed down. This infuriated the other castes. A dalit woman challenging their supremacy was not acceptable. She used to go for help to a fellow dalit, Siddharth Ghajbiye who was a police patil in a neighbouring village. He also used to come to the Bhotmange house. On one of these visits, on September 3, 2006, on his way out of Khairlanji, he was waylaid and beaten up by the caste Hindus. Surekha and Priyanka came to his rescue and also gave evidence against those who had beat him up. The attackers were arrested on September 29, but immediately released on bail. After getting bail, they came to Khairlanji and, acting in concert, searched for and brutally killed Surekha and her three children in broad daylight in front of the entire village. They also took the four bodies and “disposed” them outside the village.

 

CASTE PREJUDICE

IN INVESTIGATION

The local police, in the first instance, and then the state CID showed extreme caste prejudice in the course of the investigations, resulting in a cover-up of the crimes and support to the criminals. Crucial evidence relating to sexual assault, including a vaginal swab, was deliberately not collected. The police investigation and the first FIR was full of loopholes, so as to help the accused. The Maharashtra government took no action; on the contrary, it filed false cases against scores of dalit activists in Nagpur and other parts of Maharashtra who protested the blatant injustice. On the request of the CPI(M), after a delegation of the party visited Khairlanji on October 9, and the Khairlanji Action Committee, to the prime minister, the case was handed over to the CBI and investigations started afresh with a charge sheet filed against only 11 persons. Thus at the initial stage itself, many of those who were part of the murderous mob and whose names had been given by eye witnesses were removed from the charge sheet. The CBI explanation was that the evidence against them was not credible.

 

The case proceeded against the 11 accused. In 2008, the trial court gave its judgement, in which six of the accused were sentenced to death and two to life imprisonment while three were released. Thus the number of the guilty to receive punishment was further reduced. The trial court struck down the application of the SC/ST Atrocities Act, rejected the charges of conspiracy and rejected any sexual nature of the crime. It is also true that the counsel for the state, Ujjwal Nikam, for inexplicable reasons, and in spite of repeated appeals, did not lead the evidence of the past history of caste harassment of the Bhotmanges. The CBI appealed against the omission of the SC/ST Act by the sessions court but, in spite of protests from many following the case, including the CPI(M), it did not appeal against the rejection of the charge of conspiracy or the sexual nature of the crime.  

 

NON-APPLICATION

OF POA ACT, NO

MENTION IN FIR

The circular arguments and reasoning given by the High Court bench for rejecting the CBI plea for applicability of POA Act have grave implications for those seeking justice under the Act. The judgement refers to an earlier flawed ruling that the first information report should disclose the ingredients of offence under the Prevention of Atrocities Act, failing which the crime cannot be registered or investigated. This shows a divorce from the social realities and circumstances of crimes against dalits. On numerous occasions, the SC Act is used only after widespread protest against the police for not using it. In this case, the local police knew that the Bhotmanges were dalits. They did not use the POA Act because of their own caste prejudice. Further, it is not unusual that when further evidence is collected in criminal cases, other clauses of the IPC are used against the accused in supplementaries to the FIR. Why should there be double standards as far as the POA Act is concerned? If an omission by the police becomes the reason for not using the Act, then this will become an instrument to sabotage the Act. But even worse is the judgement’s interpretation about the “revenge motive.”

 

NARROW

INTERPRETATION

OF REVENGE

According to the judges, “In the present case, the whole object of the accused was to take revenge against Surekha and Priyanka because the accused believed they were falsely implicated in the assault of Siddharth Gajbhiye by them and in the process committed not only the murders of Surekha and Priyanka but of Sudhir and Roshan. Therefore it is difficult to hold that the accused intended to insult Surekha (on the basis of caste) or other deceased admittedly belonging to the scheduled caste.” What a strange logic! Why should the judges accept that the accused believed they were “falsely accused?” On the contrary, given the background of the case, it is precisely because two dalit women refused to be bullied by them and gave evidence truthfully, that the motive of revenge is made out. The judges did not take into account that among the accused killers are those who had nothing to do with the case of assault on Ghajbiye. What would their motive be, except that of caste?

 

The judges could as well have said, “The whole object of the accused was to take revenge on Surekha and Priyanka because they were highly incensed that two dalit women could dare to stand witness against their assault on another dalit Siddharth Ghajbiye. Caste hatred was so intense that not only did they kill Surekha and Priyanka but also the two boys who were not involved as witnesses at all.” But to make such a statement, the court must look at the world through the eyes of a dalit women. The learned judges interpret revenge in a very narrow way, ignoring the dalit experience.

 

Common sense tells us that it is most unlikely that murder can be committed only because two women stood witness in a bailable offence in a minor case of beating. But the judges find that easier to believe than the caste motive. If the Bhotmanges had been of some other caste, then it is probable, as it happens in so many cases in the village, that others of the same community would have intervened and come to a solution. It is precisely because the Bhotmanges were dalits, and in a small minority in the village, that such brutal reprisals were made.

 

NO CASTE

ABUSE!?

Even the evidence that the victims were abused by the accused by using their caste names in a derogatory manner, is not sufficient for the judges to accept the caste aspect of the crime. The judgement selectively quotes a Supreme Court judgement that using a caste name would become a crime under POA Act “depending on the context.” This implies that although the judges accept that caste naming was done, the “context” was not sufficient to be categorised as caste abuse. Here was a mob, shouting and abusing a woman, calling out her caste name, what other context is required to prove caste abuse? 

 

OUTRAGEOUS

UNDERSTANDING

OF SEXUAL CRIME

The most unfortunate aspect is that this false assumption is extended even to the charge of sexual atrocity. The judgement absolves the accused of any crime of a sexual nature.

 

In dealing with a case of police manhandling of women demonstrators, the Supreme Court had issued guidelines that only policewomen should be deployed. Why was this found necessary? Because it was felt by the apex court that if male police handle women demonstrators, there is likely to be sexual misconduct. Similarly, in cases of arrest, a male policeman is prohibited from touching a woman. Was the court giving the Khairlanji judgement so utterly insensitive that it failed to appreciate that if a male mob is manhandling a woman, holding her, dragging her, beating her, there can be absolutely no doubt that she would have been sexually abused and private parts touched? In fact, the charge was that of rape, but there was no evidence simply because there was no vaginal swab examined, once again deliberately, and so the rape charge was not made. The 18 years old Priyanka’s body was found stripped of all her clothes. The photographs show that there was not an inch of her body which was not marked with bruises. Yet the judgement holds that there was no sexual nature to the crime. The judges agree with the prosecution case that six of the accused “removed clothes of Priyanka before disposing of her severely injured dead body and thereby wanted to get satisfaction to their sexual eyes at such extreme circumstances.” Does this not “show intent to dishonour or outrage the modesty” of that young woman?  According to the judgement, “since revenge is the motive.... there was no intention on the part of the accused to insult the deceased.” Women are dragged by a male mob, they are abused and beaten in public, a young woman is stripped of her clothes, and yet the learned judges hold that the crime has no sexual aspects. Is this not a most outrageous example of justice destroyed?

 

MITIGATING

CIRCUMSTANCES

The mitigating circumstances to reduce the death sentence to life are equally shocking. The erroneous conclusion that it is not a caste crime, becomes a mitigating circumstance for reduction of the sentence. The sons of the main accused “are young men emotionally charged because of the false cases against their fathers” and require to be leniently treated. A desperate act by Surekha --- of setting fire to her cowshed so as to divert attention and escape from an armed mob which had surrounded her home --- becomes a mitigating circumstance for the accused. According to the judgement, this act by Surekha showed that she was determined to implicate the accused in another case, and therefore it led to further anger. According to the judgement, a mitigating circumstance is that the nature of the crime does not deserve the death sentence. Two unarmed women are stripped and beaten to death, a young disabled boy pleading for mercy is bludgeoned to death, his brother hiding in a haystack is forced out, abused and beaten to death --- all because of their caste. But this is not brutal enough for the court! If the court is against capital punishment in principle, it could have said so in so many words. But to advance such perverted arguments is to victimise the victims and set a precedent to be used in cases of atrocities against dalits.

 

If the Khairlanji atrocity was a shame and disgrace on our nation and our constitution, this judgement adds another chapter of injustice. The Maharashtra government has said it will appeal against it. But with its past record in the case, can it be trusted?