KANDHAMAL JUSTICE UPDATE 1 MAY 20 2011

[Dr. John Dayal]

JUSTICE STILL ELUDES THE CHRISTIAN VICTIMS, AND MANY ARE TO BLAME FOR
IT

JOHN DAYAL

There has been just one conviction for murder in 20 cases of the
brutal killing of Christians of Kandhamal, Orissa, at the hands of
Hindutva fanatics, and mobs led by them, during August--October 2008.
More than two years and 9 months later the course of justice in the
two special Fast Track Courts continues to be a travesty – with
aberrations at all stages, from the presentation of the production
case and examination of witnesses, to the coercive presence of
Rashtriya Swayamsevak Sangh goons in the court premises, often in the
court room, and the role of both judges and defence lawyers.

Lawyers for the victims have no role in court other than occasionally
feebly protesting to the judges – in vain – those relatives and other
eye witnesses who deposed they saw the men and women being killed are
being threatened blatantly. The response of the judges has been, “we
have sent the orders to the police.” The police have no response at
all. The single biggest beneficiary of the miscarriage of justice has
been Mr. Manoj Pradhan, the local Member of the State Legislature and
a leader of the Bharatiya Janata party which was then a coalition
partner in the government of Chief Minister Mr. Naveen Pattnaik. Mr.
Pradhan is accused in over half a dozen cases, and is currently free
on bail.

Investigation no doubt has been tardy and superficial – one junior
gazetted officer and two inspectors head the small team trying to
probe the vast number of cases with primitive forensic equipment and
almost no training in probing cases of mass violence. No attempt was
made to use video and mobile phone camera images that are widely
available both with the victims and with the accused. In some cases,
the two Fast Track Court judges have indeed passed strictures against
the police investigation, and in most cases, they have found the
testimony of witnesses --- victims and their relatives – either not
trustworthy or insufficient to prove the offence against the accused,
a review of the judgments shows.

There has been no attempt by the Directorate of Prosecutions or by the
police to upgrade cases where victims died of their injuries not on
the spot, but in hospital, refugee camps or other places. Under Indian
legal practice, cases of attempted murder or murderous assault would
automatically be upgraded to murder if the victim died of his
injuries. This has prevented a large number of cases from being
recorded as murder.

It may be recalled that the violence which began 24th August 2008 took
a heavy toll. Over 14 of the 30 districts in the state were impacted.
6,000 houses were burnt in 400 villages, including 296 churches and
smaller places of Christian worship. Over 56,000 became internally
displaced persons, about 30,000 living from three months to a year in
government refugee camps. Over 20,000 men, women and children spent
days hiding in forests. Over 10,000 are yet to return home. About
1,000 have been warned or threatened by their neighbours they can
return home if they become Hindus. Some are living in what can be
called “Christian ghettos”, one of which is on land provide by the
district authorities who find themselves impotent in rehabilitating
the Christians in their villages. The rest have left Kandhamal in
fear, or in search of jobs, as they do not have any livelihood now in
Kandhamal where they also face an economic blockade.]

Cutting through the fog created around the legal data, the following
is the current situation of the criminal investigation of cases of
arson and murder, abduction and violence. Complaints were made at the
local police posts, at the regional police stations, and often
directly to the offices of the Superintendent of Police in the
district capital of Phulbani by registered post. In some cases,
complaints were sent to the Director General of Police in Bhubaneswar
when the Police stations returned complaints sent by registered post.
3,232 criminal complaints were filed when the dust settled on the
Second Phase violence that began on 24th August 2008 and after peaking
by about 30 August, continued sporadically through most of September
and October that year.

1541 complaints are acknowledged by the Kandhamal district police, but
they did not file them as the First Information Reports required under
Indian Criminal law.

828 complaints were actually converted to First Information Reports
[FIRs} which mark the beginning of further investigation and the case
being brought before a court for trial after a charge-sheet is filed.

327 Cases have actually seen a completion of the investigation process
with the cases committed to the two Fast Track Courts headed by two ad
hoc Additional District Judges for day to day hearings.

169 Cases have seen the acquittal of all accused,

86 cases have ended up in convictions -- not for the heinous crimes
mentioned in the FIRs as the main ones, but for comparatively minor
offenses meriting only prison terms of two or three years.

90 cases still are in the process of being tried.

1597 suspects have been acquitted. This does not include the thousands
who could not be arrested in the cases, and therefore could not be
brought to trial.

[The Orissa State government acknowledges and admits to 52 deaths in
Kandhamal in the violence of 2007 and 2008. Of them 38 are of
Christians, four deaths of Hindus include those of Vishwa Hindu
Parishad Vice president Lakshmananda Saraswati and three inmates of
his Ashram attacked by Maoists on 23 August 2008, 4 were killed in
police firing in Kotagarh of Tumlibanda Police station and G Udayagiri
police station, three were policemen killed by mobs, and 3 are said to
be other deaths in other Maoist attacks. Data collected by church
activists lists 91 murder cases. Of them, murders with death on the
spot number 38, another 41 died of injuries sustained in the
violence, but at places other than the place of violence and at
various times after the attacks, and 12 died in police action. These
figures do not include suicides and deaths that could be medically
labelled as due to post trauma syndrome among the young and aged who
saw the violence at close quarters and then spent much time in refugee
camps or slums.]

[Larger issues of criminal law and justice have been recorded – till
mid 2010 – by Supreme Court of India Advocate Vrinda Grover in her
research book “The Law must change its course’, published by MARG, a
Delhi-based NGO. Orissa Chief Minister Naveen Pattnaik has admitted in
a written answer in the State Legislative Assembly that of the
arrested persons, over 600 were members of the Rashtriya Swayamsevak
Sangh, the Vishwa Hindu Parishad, the Vanvasi Kalyan Ashram, and the
Bajrang Dal, the militant wings of the Bharatiya Janata party, a
national political party which was his coalition partner at the time
of the anti Christian pogrom.]

[Jurists who have seen the records have said “There have been grave
lapses on the part of each of the three, viz., the Investigating
Officer, the Public Prosecutor (PP) and the Trial Judge. The
Investigating Officer has failed to get the Statements of the Eye
Witnesses, especially the injured witnesses recorded u/s 164 Criminal
Procedure Code (CrPC). The PP has failed to properly cross-examine
the Eye witnesses who were turning hostile in the court. The PP
also failed to get exhibited the confronted portions of the statements
of the Hostile Eye Witnesses recorded prior in time u/s 161 CrPC.
The Trial Judge has failed in his duty u/s 280 CrPC inasmuch as the
Trial Judge has failed to record remarks regarding the demeanour of
each of those eye Witnesses who were resiling from their previous
statement recorded u/s 161 CrPC and who were become hostile to the
prosecution. The Trial Judge has also failed to play his role to
discover the truth and the Trial Judge has failed to put any court
question to the hostile eye witnesses in order to discover the truth.
Finally, the Trial Judge has wholly misapplied his mind and has
failed to appreciate the evidence in terms of the guidelines laid down
by this Hon’ble Court in several judgements. The Trial Judge has
sufficient material available before him to hold that the persons
facing trial were part of an unlawful assembly, the object of which
was to cause inter alia homicidal death of the victims. There was
also sufficient material to show participation of the accused persons
in such an unlawful assembly. There was also sufficient material
available to the Trial Judge to discover that the accused persons had
acted in furtherance of the common object. The Trial Judge had
sufficient available material before him to examine that the accused
persons had been properly identified in the court and that specific
roles had been ascribed to the accused persons and the Post mortem
Report was corroborating the role ascribed to such accused persons in
their assault with the weapons described by the witnesses.”]