A lenient verdict

Ravindra Pal alias Dara Singh at the Special Court in Bhubaneswar on September 15, 2003. - AFP

The Orissa High Court commutes the death sentence awarded to Dara Singh and acquits others convicted by the trial court in the case of murder of the Australian missionary Graham Staines and his two minor sons.

ON May 19, the Orissa High Court, after hearing the appeals of the convicts in the case relating to the murder of the Australian missionary Graham Stewart Staines and his two minor sons, commuted the death sentence awarded to the prime convict, Dara Singh. It also acquitted 11 others sentenced to life imprisonment on the grounds that the evidence furnished by the Central Bureau of Investigation (CBI) against them was absolutely weak. It, however, upheld the life sentence of one convict, Mahendra Hembram.

Graham Staines and his sons Phillip, aged 11, and Timothy, aged seven, were burnt to death in their vehicle at Manoharpur village in Orissa's Keonjhar district on the night of January 22, 1999. On September 22, 2003, a designated court of the CBI at Bhubaneswar sentenced Dara Singh to death and 12 others, including Hembram, to life imprisonment after holding them guilty of offences including criminal conspiracy, murder, unlawful assembly, rioting, arson, causing damage to property and causing mischief by setting fire. One of the accused was acquitted by the court. All the convicts appealed against the verdict in the High Court.

Dara Singh and 13 other accused were charged with setting fire to the station wagon in which Staines and his sons were sleeping after attending a jungle camp, an annual gathering of Christians of the area. The killings led to a nationwide uproar, and the needle of suspicion pointed to the Bajrang Dal, a Rashtriya Swayamsewak Sangh (RSS) affiliate. Its campaign against Christian missionaries for the alleged conversion of tribal people in the region apparently influenced Dara Singh and the other accused.

The Centre appointed a Commission of Inquiry headed by Justice D.P. Wadhwa of the Supreme Court to inquire into the incident. The Commission, in its report submitted in June 1999, ruled out the involvement of the Bajrang Dal in the planning and execution of the crime, even though there was evidence to show that Dara Singh and his associates were active sympathisers of the organisation. The Commission concluded that the motive for the crime was to express the anger against the conversions of poor and illiterate tribal people to Christianity, even though it found that Staines did not inspire these conversions.

The trial court agreed with the CBI that Dara Singh held Staines responsible for the spread of Christianity and hatched a criminal conspiracy with the non-Christian tribal people of Manoharpur and nearby villages to liquidate Staines physically in order to arrest the conversions. The High Court, however, held that the nature of the evidence with regard to the charge of conspiracy was absolutely weak, and that it was not possible to hold any of the appellants to be guilty on the basis of such speculative evidence.

The trial court, on the nature of the evidence relating to the charge of conspiracy in the case, held: "It is rarely possible to establish a conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. In the present case, there is direct evidence of hatching of conspiracy over a period of time before the incident and also at the wheat field of a key prosecution witness, in the night of the incident."

The High Court, rejecting the evidence, said: "Mere assembling together at the wheat field may amount to preparation for the crime, but it cannot amount to evidence of criminal conspiracy within the meaning of Section 120-B of Indian Penal Code."

The trial court's judgment, on the contrary, shows it was not just mere assembling together at the wheat field. Paragraph 41 of the judgment said that the persons forming the unlawful assembly at the wheat field of the Prosecution Witness 19 were armed with deadly weapons like lathis, bows, arrows and axe and were animated by the common object of assaulting Christian missionaries camping at Manoharpur and burning their vehicles.

"They were divided into three groups ascribed with specific roles and on reaching Manoharpur, they attacked and set the vehicles on fire, prevented Staines from coming out and were not moved by the wailing sound of his children," the trial court observed.

The High Court's conclusion with regard to Dara Singh's complicity in the crime is equally unconvincing. It said in Paragraph 49 of the verdict: "There is absolutely no evidence on record that due to individual act of the appellant Dara Singh alone, the three deceased persons or any of them died. No particular fatal injury to any of the deceased has been attributed to Dara Singh. Therefore, for the murder of the three deceased persons, the appellant Dara Singh cannot be held individually liable though he can be held liable vicariously along with others by invoking Section 149, IPC (dealing with offence of unlawful assembly). As a matter of fact, the evidence against appellants, Dara Singh and Mahendra Hembram, and all other participants is of the same nature."

Based on this reasoning, the High Court set aside the conviction of Dara Singh under Section 302 of IPC (dealing with punishment for murder) and the sentence of death awarded by the trial court. The High Court, however, upheld the conviction of Dara Singh and Hembram under Section 302 read with Section 149 of the IPC. However, while setting aside the death sentence, the High Court did not explain why this was not the "rarest of rare cases", the test laid down by the Supreme Court in awarding death sentences.

The trial court held: "Convict Dara Singh is the prima donna of the offence. Like knight errant of crime, he formed a militant group of local tribals to physically liquidate Staines on the belief that with Staines the spread of Christianity will be buried in the area.... The factual scenario shows how gruesome and macabre the crime was. Even after drawing a balance sheet of aggravating and mitigating circumstances, the case falls within the rarest of rare cases. Convict Dara Singh, as the ambassador of death, deserves death whereas rest of the convicts being gullible Adivasis, deserve justice tempered with mercy." The burning of two innocent boys along with their father, while they were asleep, could not make any reasonable person to disagree with the trial court's justification for awarding death sentence to Dara Singh.

The High Court's finding that "no particular fatal injury to any of the deceased has been attributed to Dara Singh" is strange. The trial court quotes from the autopsy report, prepared after the mandatory examination of the bodies of the victims, in Paragraph 5: "Death was due to combined effect of shock and suffocation resulting from burn." The High Court's finding would have been valid if the victims died as a result of direct physical attacks by the assailants. In this case, they were burnt alive in their vehicle; so the question of which fatal injury was caused by whom makes little sense. The High Court's finding is contrary to its own conclusion that it accepted the evidence of eyewitnesses by and large that Dara Singh was in fact involved in the incident.

The CBI, hopefully, would appeal against the High Court's judgment in the Supreme Court and pave the way for justice in a case that has disturbed the conscience of the nation.