[Reader-list] CRIMINAL JUSTICE-Caste and carnage

Asit Das asit1917 at gmail.com
Fri Nov 15 02:58:12 CST 2013

*Frontline *

*CRIMINAL JUSTICE*-*Caste and carnage*


*The series of five cases of mass murder from Bihar must wake India up to
the need to strengthen its capacity to deal with the criminal justice
aftermath of caste and communal conflicts. By G. MOHAN GOPAL*

DOES the caste of the victim or the accused play a role in the operation of
our criminal justice system? Is our criminal justice system casteist? These
deeply troubling questions have been brought back to the front line of
national debate by the acquittal of 26 persons, all belonging to privileged
castes, of the charge of murder of 53 Dalits and five poor boatmen
belonging to disadvantaged castes (15 men, 27 women and 16 children) in
Laxmanpur Bathe in Bihar on December 1, 1997. Many have received the
decision with great consternation.

That the perpetrators of the massacre are yet to be brought to justice 16
years after the crime is unforgivable. It is also a matter of deep shame
that no one is being held accountable for the failure to find and bring to
justice the killers of the innocent Dalit villagers.

The October 9 decision of the Patna High Court is not an isolated one—it
was in fact the fourth in a series of similar decisions by the High Court
since 2012. In each of them, persons belonging to privileged castes were
acquitted of the charges of murdering Dalits. In April 2012, the High Court
acquitted 23 persons belonging to privileged castes accused of perpetrating
the notorious massacre of 21 Dalits at Bathani Tola in Bhojpur district in
1996. In March 2013, the High Court acquitted 11 persons belonging to
privileged castes accused in the horrific Nagari Bazar carnage case
involving the killing of 11 Dalits in 1997. In July 2013, the High Court
acquitted nine of 10 accused in the Miyapur massacre where 32 Dalits were
killed in 2000. All these killings are attributed to the Ranvir Sena, the
private army of landlords belonging to privileged castes.

Were the accused acquitted because they belonged to privileged castes?

The High Court’s decision to acquit in the Laxmanpur Bathe case is
justified in meticulous detail. After analysing the evidence of each
witness, the High Court concludes that “prosecution witnesses are
unreliable”. The judgment shows how the police investigation was
irreparably botched. There was considerable delay in the dispatch of the
first information report (FIR). Evidence was given years after the event.
When the police first arrived on the scene of the carnage, they saw
overwhelming evidence that a group of 100-150 persons had come to the
village from across the river, carried out the massacre and returned across
the river after killing five boatmen to prevent them from identifying them.

The evidence of the arrival and departure of the mob included footprints
and blood marks on both sides of the river, as well as blood in the boat
that was left on the northern side of the river along with the corpses of
the five murdered boatmen, three on the southern side of the river and two
on the northern side. For the first several hours, the police focus was on
catching the assailants from the adjoining areas on the northern side of
the river. Police officers on the northern side of the river were duly

When the political pressure mounted with the visit of the then Chief
Minister, the police had to “produce” the murderers. The attention suddenly
turned to a much easier target—local villagers of the privileged caste. The
trail on the northern side of the river was quickly dropped and forgotten.
Within about a week of the tragedy, the initial investigating officer was
replaced because of concerns about the quality of the investigation.

The High Court judgment says that “the prosecution had no clue about the
identity of the [accused] until 3 December 1997 5 p.m. as by then the
investigation had not begun as per the evidence of prosecution witness.

The investigation began only after arrival of the Chief Minister on 3
December 1997 at 5 p.m. From the evidence of the [investigating officer] it
appears that the first arrest was made at 5-25pm…”. The police had cracked
the case within 25 minutes of the arrival of the then Chief Minister!

It appears that it would have been a travesty of justice to convict and
sentence the accused to death when there are serious doubts about the
evidence against them. It is precisely such a travesty that has befallen
Krishna Mochi and three other Dalits (Dharmendra Singh aka Dharu Singh,
Nanhe Lal Mochi and Bir Kuer Paswan), now on death row awaiting the outcome
of a mercy plea to the President. They were convicted and sentenced to
death in 2001 for the 1991 massacre of some 35 persons belonging to
privileged castes in Bara, Gaya district. The Supreme Court upheld the
conviction and the death sentence imposed on them by the TADA—Terrorist and
Disruptive Activities (Prevention) Act—court in 2002 by a majority decision
of two judges to one. The senior judge in the three-judge Bench, Justice
M.B. Shah, dissented. He said:

“…[T]his case illustrates how faulty, delayed, casual, unscientific
investigation and lapse of long period in trial affects the administration
of justice, which in turn certainly shakes the public confidence in the
system. Is it not possible for the authorities to find out ways and means
for speedy, efficient, scientific investigation in at least heinous brutal
carnage and for trying the case within few months of occurrence? If this is
not done, it is of no use to complain that accused are not punished in such
cases. In any case, for deciding such criminal case, it is the bounden duty
of the court to appreciate the evidence brought on record, as it is, in
accordance with established law without being influenced by the allegations
levelled by the prosecuting agency or by the incident.”

There is no material to suggest that the accused in the Laxmanpur Bathe
case were acquitted because of their caste. The opposite appears to be the
case—they may have been framed because of their caste. Under the
circumstances, any call for conviction and execution of the accused in
Laxmanpur Bathe notwithstanding the weak evidence against them will
unwittingly justify the conviction and death sentence imposed on the Dalit
accused in the Krishna Mochi case based on equally weak evidence.

The Laxmanpur Bathe judgment suggests that the real culprits—the privileged
in society who were behind the massacre and their henchmen who carried it
out—have escaped with impunity. They have been able to escape because of
their power and influence. Equally, those who were killed and those who
were incarcerated and later acquitted have suffered because of their
powerlessness. The power—and the powerlessness—come from the inextricably
intertwined sources of caste and class. To that extent, caste certainly has
an influence on the operation of the criminal justice system. The main
focus of the operation of the power of class and caste is the investigative
process. Once that is compromised or customised, the leeway for the court
is quite limited.

Judges, prosecutors and the police cannot but be influenced subconsciously
by the attitudes and beliefs that they come to acquire as members of
society. Justice Benjamin N. Cardozo, the renowned American judge and
jurist, famously wrote on this issue:

“There is in each of us a stream of tendency, whether you choose to call it
philosophy or not, which gives coherence and direction to thought and
action. Judges cannot escape that current any more than other mortals. All
their lives, forces which they do not recognise and cannot name have been
tugging at them—inherited instincts, traditional beliefs, acquired
convictions; and the resultant is an outlook on life, a conception of
social needs.... In this mental background every problem finds it setting.
We may try to see things as objectively as we please. Nonetheless, we can
never see them with any eyes except our own” (*The Nature of the Judicial
Process*, 1921, pages 12-13).

The extra vehemence in the language of a judgment when privileged caste
members are attacked may well point to subconscious differences in
attitudes towards attacks on Dalits as well as on privileged castes. In the
Krishna Mochi case, the Supreme Court says, “The crime in the present case
is not only ghastly, but also enormous in proportion as 35 persons, all of
whom belonged to one community, were massacred. Thus, after taking into
consideration the balance sheet of aggravating and mitigating
circumstances, in which 35 persons have been deprived of their lives by the
accused persons who were thirsty of their blood, I have no doubt in holding
that culpability of the accused persons assumes the proportion of extreme
depravity that a special reason can legitimately be said to exist within
the meaning of Section 354(3) of the Code of Criminal Procedure [CrPC] in
the case on hand and it would be mockery of justice if extreme penalty of
death is not imposed.”

The Dalit accused may also be suffering the consequences of a new criminal
jurisprudence that has emerged in India that extols the interests of the
community and the victim, emphasises the importance of convicting and
punishing the accused, and decries strict protection of the rights of the
accused. Reflecting this new jurisprudence, the majority judgment in the
Krishna Mochi case justifies the conviction of and death sentence against
Krishna Mochi and four other Dalits in spite of the serious lacunae in the
evidence on the following grounds:

“…. Justice cannot be made sterile on the plea that it is better to let
hundred guilty escape than punish an innocent. Letting guilty escape is not
doing justice, according to law.…[The Court]… has to disperse the
suspicious cloud and dust out the smear of dust as all these things clog
the very truth. So long as chaff, cloud and dust remains, the criminals are
clothed with this protective layer to receive the benefit of doubt. So it
is a solemn duty of the courts, not to merely conclude and leave the case
the moment suspicions are created. It is onerous duty of the court, within
permissible limit to find out the truth. It means, on the one hand, no
innocent man should be punished but on the other hand to see no person
committing an offence should get scot-free.”

A similar sentiment has been expressed in a large number of judgments of
the Supreme Court and High Courts. In August, 2012, for example, the
Supreme Court of India said in*Dayal Singh & Ors vs State Of Uttaranchal*:
“Where our criminal justice system provides safeguards of fair trial and
innocent till proven guilty to an accused, there it also contemplates that
a criminal trial is meant for doing justice to all, the accused, the
society and a fair chance to prove to the prosecution. Then alone can law
and order be maintained. The courts do not merely discharge the function to
ensure that no innocent man is punished, but also that a guilty man does
not escape. Both are public duties of the judge.”

What is not clear is, logically and legally, how can a person be acquitted
in the judicial process (and “escape”), but still be considered “guilty” by
the judge? In such a situation, under what law and according to what
standards has the judge found him/her “guilty” if he/she is acquitted under
the law? Is there then a “trial within the trial” going on in our
courts—with determination of guilt by the judge according to his or her own
personal judgment independent of the law as one trial, and the second trial
being under the law by the court?

The new pro-conviction philosophy adversely affects marginalised sections
because they do not have the capacity to engage lawyers qualified to defend
their interests.

This new philosophy runs counter to the stated goals of the law. The first
objective of the criminal justice system (as set out in the statement of
objects and reasons of the first CrPC enacted by independent India (1973))
is that “an accused person should get a fair trial in accordance with
accepted principles of natural justice”. The third objective is to “ensure
fair deal to the poorer sections of the community” (*sic*).

We need to develop a dedicated institutional framework to deal quickly and
in a sensitive manner with justice in the context of social struggles and
other complex criminal cases. A special agency for investigation of these
cases is urgently needed.

The series of five cases of mass murder from Bihar must wake India up to
the need to strengthen its capacity to effectively deal with the criminal
justice aftermath of social conflict across caste and communal lines.

*Professor G. Mohan Gopal is former Director, National Judicial Academy,
Bhopal, and former Director, National Law School of India University,

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