Wednesday, September 17, 2008


No evidence for conviction under Atrocities Act: judge Meena Menon
“Khairlanji was a case of murder spurred by revenge for an earlier case of assault involving the police patil of a nearby village”

BHANDARA: Ad hoc sessions judge S.S. Das on Monday held eight men guilty of murdering four members of the Bhotmange family in Khairlanji village two years ago but found no evidence to convict them under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Three persons were acquitted of all charges.

In a verdict that disappointed Bhaiyyalal Bhotmange, the survivor of that brutal attack on September 29, 2006, the judge also did not convict any of the 11 accused of charges under Section 354 of the Indian Penal Code (IPC) which refers to assault or criminal force with intent to outrage the modesty of a woman. He said what happened in Khairlanji was a case of murder spurred by revenge for an earlier case of assault involving the police patil of a nearby village, Siddharth Gajbhiye. Gajbhiye who was related to the Bhotmanges was a frequent visitor to their house, a fact resented by other people.

Surekha, Bhaiyyalal’s wife and daughter Priyanka testified in a case of attack by villagers of Khairlanji on Gajbhiye mid-September. The villagers were arrested and released on September 29, 2006 and they sought revenge by attacking and killing the Bhotmange family. Gopal Binjewar, Sakru Binjewar, Shatrughna Dhande, Vishwanath Dhande, Ramu Dhande, Jagdish Mandlekar, Prabhakar Mandlekar and Shishupal Dhande have been convicted of murder (Section 302 of the IPC), rioting, armed with deadly weapons (Section 148 IPC), Section 149 of the IPC which refers to every member of an unlawful assembly guilty of offence committed in prosecution of a common object, and Section 201 of the IPC for destroying evidence or giving false evidence to protect offenders. Regarding charges under Section 354 of the IPC, the court held that the prosecution was not able to establish whether the two women were stripped of their clothes before or after the assault.

On the two charges under the Atrocities Act, the judge said that Bhaiyyalal’s statement in court and his first information report (FIR) did not mention any caste-related abuse. Eyewitnesses Mukesh Pusam and Suresh Khandate said that they did hear people shouting abuses at both Surekha and Priyanka, but the judge did not consider that as proof.

The judge has set September 20 as the date for arguments on sentencing. The sentence is likely to be pronounced a few days later. Special Public Prosecutor Ujjwal Nikam said that he received the verdict with mixed reactions. “I am happy that most of the accused are held guilty but at the same time, three are acquitted. The court did not accept our main charge that it was a criminal conspiracy and the entire episode was a result of a caste war,” Mr. Nikam told the press.

The prosecution is pressing for the maximum penalty. The court relied on the evidence of the eyewitnesses and the two extra judicial testimonies. The judge accepted the evidence of Mukesh Pusam as well as another witness Premlal who saw one of the accused dragging the bodies to the bullock cart. They were later dumped in the Pench canal and only found over the next few days.

Neeraj Khandewale, the advocate for the defence said the court has ruled out any caste-based atrocity and the three accused who have been acquitted, Mahipal Dhande, Dharampal Dhande and Purshottam Tittirmare, did not figure in the testimonies of any witness. The prosecution could not really establish a case under the Atrocities Act, he pointed out.

The court discounted the delay in filing the FIR which was over one and a half months late. However, it has issued a show case to Mahadeo Zhanzhad, one of the prosecution witnesses who turned hostile and will initiate proceedings against him for perjury.

The case, in which four members of the Bhotmange family were bludgeoned to death by a mob, led to widespread protests due to the shoddy investigation and suppression of evidence. The bodies of the two women were exhumed after Bhaiyyalal made a demand as he suspected rape. However, there was no forensic evidence to that effect and the CBI did not include rape as one of the charges.

The case was handed over to the CBI for investigation and the charge sheet was filed in December 2006.

While 35 accused were discharged, 11 were charged with crimes under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act as well as murder, criminal conspiracy, destroying evidence and unlawful assembly. The prosecution examined 36 out of the 70 witnesses listed.

Despite several demands, the government did not appoint a fast track court. The trial began in May 2007.

The two sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities ) Act under which no evidence was produced according to the court are : 3 (1) (10) whosoever intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; and 3 (2) (v) whosoever commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of 10 years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.

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