Print edition : August 13, 2010

VIVEK BENDRE

The Khairlanji case is tried without invoking the Prevention of Atrocities Act.

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.

Policemen guard Bhaiyyalal Bhotmange's house in Khairlanji. An October 2009 photograph.-VIVEK BENDRE

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.

Bhaiyyalal Bhotmang, The lone surviving member of his family.-VIVEK BENDRE

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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