The Criminal Justice Project

Introduction

The Criminal Justice project is a part of the ‘Law and Policy Hub’ where students of Law, Governance and Policy specialization of the MA Development system and LLM in Law and Development program, engage in a field based task in the region of law and improvement. This method of instruction is essentially worried with ‘the way toward gaining from genuine encounter.

As George Bernard Shaw said, ‘Criminals do not die by the hands of the law. They die by the hands of other men. Assassination on the scaffolis the worst form of assassination because there it is invested with the approval of the society…. Murder and capital punishment are not opposites that cancel one another but similar that breeds their kind.’

While extensive studies have been done on abolishment of death penalty, little work has been done on the structure and pattern of death penalty sentencing. The purpose of this clinic is to look on what grounds death penalty has been awarded what is its effect on accused and accused’s family, what impact a death penalty sentencing has on society.

If death sentencing is awarded for rarest of the rare cases on what grounds such cases are considered as rarest of the rare is the main focus of this clinic, In order to understand complexity of this legal system especially when it is related to taking the life of person on legal grounds there should be some sense of ethics or morality which needs to exist there. For studying the same and bring out the flaws we will do an ethnographic study on Saibanna V. State of Karnataka[1].

Ethnography is a study designed to explore cultural phenomena where the researchers observe society from the point of view of the subject of the study. In this particular study we are looking at the case of Saibanna and different stakeholders involved in this case such as lawyers, judges, reporters, activists etc. We have done an ethnographic study  to understand the human narratives as our major source of information on this case. We have decided to focus on Saibanna V. State of Karnataka because in this case the accused has already been sentenced to death by Supreme Court and his mercy petition has been rejected by the President of India. Subsequently, a Writ Petition has been filed at the Karnataka High Court on the grounds of delay in rejecting the mercy petition. In the meanwhile the accused has already spent twenty years in custody. We want to record the narratives of people involved with the case at different stages to trace the trajectory of the cases through the lens of those closely involved with it.

 

The other case which the group considered was Umesh Reddy’s death penalty and the rejection of his Mercy Petition.

Umesh Reddy was a controversial figure, the media portrayed him as Karnataka’s Jack the ripper. In the Jayshree case Umesh Reddy raped and strangulated a single mother. The husband of the victim had died a few years prior to the crime. Umesh Reddy was met by the son of the deceased soonafter he committed the crime. The son of Jayashri became the star witness in the case, despite being a child when the alleged crime was committed. There is consistency in the arguments of Advocate Kiran Suri who in the Supreme Court said that a rape and murder had occurred, but can it be pinned on Umesh Reddy beyond reasonable doubt?  Umesh Reddy had allegedly committed one crime in Chitradruga. He was absolved by the court due to lack of evidence. He was accused of raping a woman again and killing her in a group, his role came into the limelight after the ornaments worn by the girl were found in his house or at his dwelling place. The trial court absolved him of theft under section 379 IPC. (State by Town PS Chitradruga vs Umesh Reddy & Ors.)

 

[1] Appeal (crl.)  656 of 200414639810_999814690163941_4556353379316655930_n

 

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First hand experience interviewing the offender’s family -article by Akanksha Anil

The Criminal Justice Group is dealing with two death penalty cases – one involving Sai Banna as the convict and the other involving Umesh Reddy as the convict. Both these convicts are on death row with mercy petition rejected by the President . While,Sai Banna is a native of Gulbarga,Umesh reddy is a native of Chitradurga.The group of 6 members was divided into a two sub groups with three members in each. As we planned to take the project as an ethnographic study,we decided to go to the native places of both these convicts to get started with. The most important and difficult decision we found ourselves engulfed with was contacting the family members of these two convicts. Even though we had procured the addresses of their respective homes from their lawyer(Adv, Jagdeesha) we weren’t quite sure if we will be successful in interviewing the family there.I, along with James Daniel David and Iffat A. Parveenwas part of the Chitradurga team that was to take forward the Umesh Reddy case

As had planned before we decided to go to Chitradurga and get in touch with the family members. This was the bravest decision made by us because we had no clue if anyone of them would be ready to talk to us, how they are going to receive us, etc. Our plan was to get in touch with Hanumantha Reddy (via phone call or directly visiting his place of residence ) and then through him contact other stakeholders. So ,in a way our study completely relied on Hanumantha .We had tried contacting Hanumantha since the time we started working on this project but for some or the other reason ,couldn’t get through his number. Much to our relief,the day we left for Chitradurga,we got in touch with him and informed him that we,a group of university students are working on a project that involves Umesh Reddy’s capital punishment and would like to have a conversation with him regarding the same. He readily agreed to meet us when we reach Chitradurga but the very next day he blatantly refused to talk to us and even warned us to leave the place
immediately. This gave a major set back to us as the only way we had thought of conducting thisethnographic study was through Hanumantha. Our entire study was based on the presumption that somehow we would get in touch with his brother and he only would help us contacting other people. We paid no heed to the fact that a situation can also arise where he would would not entertain us.I realised that from the next time we should always have a back up plan. We cannot go for a study assuming things to work in our favour.

The next day ,left with no option we came up with an entire new plan that did not involve talking to Hanumnatha .We decided to get in touch with the police station where the first murder and rape case against Umesh was lodged, the gram panchayat people ,his cousin (whose number we procured through our cab driver ). Much to our disbelief, our second plan did work in our favour. We got talk to some people who ere really close to Umesh like his college junior school classmate and this helped us in drawing Umesh’s character that was one of the most important objectives of our ethnographic study. While churning out this plan, we were sceptical about quite a number of things as to how we will be received by the villagers, what if the villagers support Hanumantha Reddy and drive us out of the village.However,we believed on our instincts and decided to go with the flow .

Today, looking back at the Chitradurga trip I fell we could have done much better work had we put in a little more thought in contacting the stakeholders involved in this case. We could have made a visit prior to do a background check of Hanumantha Reddy. We shouldn’t have taken this for granted that since we have the house address and the contact number, the family members would readily agree to talk to us.

I feel it wasn’t the best decision made by us to just going to that place without having any
background information about the people we thought of getting in touch with. I definitely don’t support the decision of just going to that place, depending on one contact to begin our field work with. But i definitely think the other plan that we came out was the best decision that could have been made. Even though we were not quite sure of the risks involved in going into the village without any prior contact,it did work in our favour. Sometimes instincts do work.

Experience at Gulbarga – article by Divya Singh

Law and Policy Hub- The Criminal Justice Project

Divya Singh

LLM (Law and Development)

Challenges being faced during our field work

The task of working in a group is itself a challenge for any individual. One has to come out of their comfort zone and bend themselves to co-operate with all the other group members. This is necessary for the accomplishment of the greater goal for which the group has been formed. As, far as our group is concerned there are 6 members out of which 4 are from LL.M and 2 are from development. Our field work is concerned with the Criminal Justice Project. Initially, we had two broad topics in mind to work upon i.e. Rape and Death Penalty. Later we decided to stick to Death Penalty. As we had to complete our intervention within a limited framework (10 months approx.) of time and rape being a highly sensitive issue needs more time, resources as well as engagement.

The initial problems-

From the very beginning, the first problem that we had to grapple with was selection of a place for field work. We initially had 3 locations in mind- Uttar Pradesh, Mumbai and Karnataka. Since, all the members were well versed in Hindi and English, Uttar Pradesh and Mumbai were ideal place to work. But later after ideation and consultation with our Supervisor we arrived at a conclusion that it’s a yearlong project running parallel with our academic year so it will be problematic for us to work anywhere apart from Karnataka for too long. Moreover, due to the nature of our field work, from time to time we had to take permissions from the relevant authorities like I.G Police, meet the lawyer involved in the case, attend the court proceedings of the cases etc. it was very difficult to do it in farther place. So, we unanimously settled for Karnataka keeping in mind the accessibility of data and information that we had to gather in limited time framework to complete our project. We picked two Cases (Umesh Reddy’s Case and Sai Banna’s Case) on death penalty pending in the Karnataka High Court whose mercy petition has already been rejected by the President. The ground for the appeal in the High Court was the delay in rejection of the mercy petition. As, both the cases are on the same stage we are trying to figure out what is at stake when one thinks of death penalty. How does truth get constructed and how does truth gets stated by different individuals? How does one think of truth in context of blame, fault and responsibility in the criminal justice system? To do an Ethnographic study of the case and to build a human narrative of how fault and blame plays role during the sentencing stage, we moved to the respective places where the crimes were committed in groups of three each, with 2 LL.M students and one M.A. development student, keeping in mind the legal technicalities involved in both the cases. The places were Chitradurga and Gulbarga respectively. I was the part of the Gulbarga team with Himanshi, Nikita and the translator Surya. The pertinent problem that we faced during our field visit can be divided into two broad themes as follows-

Major issues: 1. How to get in touch with the Accused and the Victim’s Family? Whom should we approach?

  1. The language problem- No familiarity with Kannada.

 

15625621_1037132109765532_8236781662395600511_o
Day-4 of the field visit to Gulbarga with Bhimarai, younger brother of Saibanna.

Once we reached Gulbarga the major difficulty that we faced was how to approach the accused and the victim’s family. We were in a state of dilemma whether we should approach the state authorities i.e. go through the proper formal channels or straight away go to the place where the incident took place. Also, were clueless about the fact whether the family still lives in the same village, where Saibanna had murdered his wife and daughter or moved to some other place. To resolve this problem, we decided to go to Afzalpur Police Station, where the complaint was first registered (as mentioned in the trial court judgement). We met Sri. S.J. Bhosagi- Sub Inspector at Afzalpur Police Station. He ensured us that he will get us in touch with the Investigating Officer of that time. We were further told by the sub-inspector that the Bhosga Village (where the incident took place) was a highly sensitive area and as it was 5 o’clock in the evening it was not safe for us to go there at this time. He also asked a police-constable to accompany us to the Village. Next morning, after waiting for about two and half hours for the constable at the bus Stop, on way to Bhosga we decided to go to the village on our own.  At the bus stop, we already had conversations with some of the villagers, who confirmed that the deceased father still lives in the same village. Besides, we did not feel any threat to life or any sense of insecurity while talking to them. They were friendly as well as welcoming to us. Thus, we boarded a bus to reach the village. While we were on our way, the constable followed us and through a phone call told us to get out of the bus and insisted us to sit in the Police jeep to reach the village. This made it quite evident how state interferes in the public sphere behind the veil of safety. We met the deceased’s parents, also the in-laws of the accused Saibanna- the Complainant Dattu Jamedar, (father of the deceased Nagamma) his wife Dewaki and Son. We conducted a recorded interview with Dattu Jamedaar in his field.  While conducting the interview I realized that Dattu was answering all the questions very smartly. He did not give clear answers to any of our questions, which gave rise to two presumptions- either he did not want to share with us the minute details of the case so that he might not get trapped or he was apprehensive and uncomfortable due to the presence of a police personnel. Moreover, he was reluctant to take us to his home when we asked that we want to meet his wife as well. Later, on insisting he agreed but we were told not to ask any questions to her, as she was mentally unstable. (Which we did not found, as she seemed to be quite normal). It was evident from Dattu’s behavior that he was worried enough that his wife will say something regarding the case which may turn out to be against him and his family. This problem was further worsened with our obliviousness to Kannada language.  Although we had already prepared a questionnaire and handed it to over to our translator with all possible questions that were needed to be asked it was impossible for us to gain first-hand experience of the interactions between the translator and the interviewed persons. Therefore, due to the language restriction we had to heavily rely upon our translator. Also, we could not get much closer to the person we interviewed as there was a persistent language barrier which left no room for an informal conversation. This problem was overcome by recording all the interviews that we took as a matter of evidence and authenticity of the information collected as well as to get a better sense of the conversation that took place.

On Day three, when we met Shri P. D. Gajakosha, Dy. S.P.  Alanda. Shri Gajakosha who was the Investigating Officer in Saibanna’s case, it was a very enriching experience as there was no language obstacle as such. While having a conversation with him over tea, in English, he told us how criminals get to contact with each other in jail. How Saibanna and Dattu would have met, why people turn out to be potential criminals once they come in contact of other criminals in jail, why death penalty should not be abolished, the relationship and continuous tussle between the court and the police system etc. It was a very long and interesting conversation, to hear state’s perception on the matter.

On day four, we went to Mandewal village to visit Sai Banna’s Family. It was the most crucial day from as we managed to conduct recorded interviews with Saibanna’s younger brother, his nephew (also the eye witness in case) and the Sarpanch of the village.  This time we decided not to be accompanied by the police personnel’s to see if it makes any difference in people’s behavior. What we examined was, that Initially Sai Banna’s son, Sharnappa was reluctant to meet us suspecting that we are some media persons, or with police but after showing the authority letter from the university  and telling that we are doing it for the sake of research he became comfortable. He took us to his home to meet his mother, they told us about everything in details. We conducted very long interviews with them as compared to the previous one which was held in presence of police. Thus, the risk that we took not to be accompanied by any police- personnel proved to be fruitful to us in order to develop a nuanced human narrative of the case. So, it’s not always necessary to take a decision which is right or wrong sometimes taking calculated risk might help us to find new ways!

An interview with Journalist: Michael Edison Hayden – article by Akanksha, Iffat and Daniel

Michael Edison Hayden has written articles on his encounter with convict Umesh Reddy.

The link to his articles are as follows:

  1. “Meeting a Serial Killer

On a trail of one of India’s most notorious prisoner, Umesh Reddy” published in GQ India:

https://www.gqindia.com/content/meeting-serial-killer/

 

  1. “Eyes in the Shadows” published in Hindustan Times:

http://www.hindustantimes.com/india/eyes-in-the-shadows/story-QHfTc5RpDgiCzPOliOzY8N.html

“The Great Wait: India’s Death Row Prisons” published in The Wall Street Journal:

http://blogs.wsj.com/indiarealtime/2012/02/21/the-great-wait-indias-death-row-prisons/

In order to collect human narratives for the undergoing project on Death Penalty, the team decided to interview journalists who have written and worked on the Umesh Reddy case. Thus, an interview was conducted with Mr. Michael Edison Hayden. The questions asked were threefold: his views on the Indian Criminal Justice System, whether he supports Death Penalty and finally the last question was “In case of Umesh Reddy: how do you see this criminal – do you believe he resembles ‘Jack the Ripper’?  (And other such comments on him)”.

Michael answered the questions in the following manner:

  1. Indian Criminal Justice System a comment on it.

The criminal justice system in India moves at a painfully slow speed. In some cases, the slow speed is used by people in power to imprison innocent men. Here’s another story I did about undertrials: http://blogs.wsj.com/indiarealtime/2013/01/15/in-custody-five-years-in-jail-and-innocent/

As with many other issues in India, the problems are systemic, and population is a big factor. There are too many people for the system to process. But efforts should be made to bring closure to cases like these for not only the prisoners, but also the families of crime victims.”

2. Death Penalty: Do you support it or not?

“No, I don’t.”

In case of Umesh Reddy: how do you see this criminal – do you believe he resembles ‘Jack the Ripper’?  (And other such comments on him).

“GQ India is a corporate magazine, and not a very good one, so there were limits to what I could say about Reddy’s background. But the fact remains that he grew up poor, and in harsh conditions without a father, and with a psychotic mother who encouraged him to steal for her own benefit. I don’t say that to make him a sympathetic figure–he did extremely evil things, and deserves to be in prison for the rest of his life. But it’s useful to understand that murderers aren’t cartoon villains. They’re people who do evil and are capable of redemption–even if it happens to them behind bars.

The articles written by Michael Hayden gives a good insight and it is worth a read.  In addition to this, his views and overall the interview has provided the team with new ideas and perspectives that adds on to the collection of human narratives, beneficial for the project.

In parting a point needs to be made that Umesh Reddy’s poverty was rather relative as compared to many of our countrymen. While on the field, we did learn that Umesh Reddy’s father had passed away, but there was no suggestion that Umesh grew up without a father. The mother indeed wore the pants in the family and the father didn’t necessarily influence the authority that he should have over his son, but his presence being totaled negated is not what we learnt while on the field-there may be a parallel in the saying that the father wasn’t assertive enough and that in a way corroborates the assertion made by the journalist, Michael Edison Hayden

 

RAPE AS AN ATROCITY: ANALYSIS OF JUDGMENTS DELIVERED BY THE DISTRICT COURT OF BILASPUR, CHHATTISGARH -article by Nikita Sonavane

I. IntroductIon
The word ‘Dalit’ comes from the Sanskrit root ‘dal-’ and means ‘broken, ground-down, downtrodden, or oppressed’; in common parlance, it is often used to identify those who have been perceived and treated as the lowest of the low castes in India.1 The term was initially popularised by Dr B R Ambedkar: he used it as a descriptor for the members of these so-called lower castes who were seeking political assertion and emancipation from historically inflicted violence, oppression and prejudice. Independent India, with the intention of atoning for its past of caste-based violence and discrimination, also defined the term in the Constitution2 and laid down a path for the group’s protection.
Though the post-independence era was meant to herald this uplifting, Dalits remain victims of orchestrated violence. Writer and scholar D R Nagaraj, in his analysis of this violence against Dalits, identifies two patterns in the attack against them.3 The first is related to the notion of justice in a village and the second relates to obstructions faced by Dalits in asserting their rights. He observes:
‘[W]hen the behaviour of a single individual or a group of Dalits differs from and challenges traditionally accepted notions of morality, norms of social behaviour and rules related to love and sex, the caste-Hindu society takes it as a grave violation of its ethics and punishes the alleged offenders severely. The notions and practices of justice of the rural Hindu society are organically linked to the ethos of the caste system. Equally important is the fact that the structure of justice rests on the consensus of the entire village, which could also mean the unchallenged rule of upper castes.’4
These notions and practices operate at an intrinsic level of the Hindu society leading to instances of violence that impact the lives of Dalits even in present times. In 2012, among the over 260 million people worldwide who faced extreme forms of discrimination, exploitation, and violence based on caste, there were nearly 167 million Indians, 16 per cent of whom were Dalits.5 In 2013, there were 39,327 crimes recorded against members of various Scheduled Castes across all Indian States, with a conviction rate of 23.8 per cent.6 The number of these crimes shot up to 47,064 in the year 2014 with a marginal drop in the conviction rate to 23.4 per cent.7
The first independent Indian government in its bid to move beyond lip service attempted to use legislation to address this issue. This process began with the enactment of the Protection of Civil Rights Act, 1955, which was passed to give effect to article 178 of the Constitution of India. It proved to be ineffective and subsequently, led to the passage of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA Act).9 The PoA Act, for the first time, classified crimes committed against members of Scheduled Castes and Scheduled Tribes as ‘atrocities’. The PoA Act and such protectionist laws aim to infuse criminal law with constitutional ideals of substantive equality by re-signifying previously stigmatised bodies as bearers of rights.10 Despite the effective mechanism envisaged under the PoA Act, the conviction rate continues to remain low.11 I seek to understand the causes of this low conviction rate through my research in the Bilaspur district located in the State of Chhattisgarh. As per the 2011 census, the district of Bilaspur is the second most populous district in the State of Chhattisgarh.12 The total population of the district is 19,61,922, of which 13.8 per cent are members of Scheduled Castes.13 The High Court of Chhattisgarh is located at Bilaspur. Until June 2009, there was a Special Court set up in Bilaspur to deal with cases of atrocities. This Special Court was subsequently done away with owing to paucity of cases,14 and all matters were transferred to the District Court. A separate police station has been set up and the District Court has appointed a Special Public Prosecutor to deal with all the matters under the PoA Act. The Bilaspur district meets all of the procedural requirements laid down by the PoA Act, thus making it the ideal case study.
In the context of this discourse, the violence against Dalit women deserves particular consideration as it takes a unique form at this intersection of gender and caste categories. The gender and caste discrimination that Dalit women face is the outcome of severely imbalanced social, economic and political power equations.15 According to anthropologist Leela Dube, in her 1996 work Caste and Women, ‘sexual asymmetry (between men and women) is bound up with the maintenance of the hierarchies of caste’. She writes that the principles of caste in fact inform the nature of sexual asymmetry in Hindu society, and simultaneously, the hierarchies of caste are articulated by gender roles. She notes that in contemporary Indian society, ‘[C]aste is not dead. Gender is a live issue … the boundaries and hierarchies of caste are articulated by gender.’16
These observations stem from several statistical studies. A three-year study of 500 Dalit women’s experiences of violence across four Indian states shows that the majority of Dalit women report having faced one or more incidents of verbal abuse17 (62.4 per cent), physical assault (54.8 per cent), sexual harassment and assault (46.8 per cent), domestic violence (43.0 per cent) and rape (23.2 per cent).18 Another study placed the conviction rate for rapes against Dalit women at under two per cent as compared to a conviction rate of 25 per cent in rape cases against all women in India.19 The severity escalates in peculiar cases, such as those of Devadasis,20 who have been victims of societal ostracism and ritualistic exploitation,21 as 93 per cent of them belong to Scheduled Castes and seven per cent to Scheduled Tribes.22 The inefficacy of the justice delivery system incapacitates it from dealing with the matters of Dalit women. Issues of Dalit women have in any case remained largely unexplored by academia, feminist organisations and other human rights groups in India. The intersection at which Dalit women are placed often creates further challenges to making the issues of violence, especially those of a sexual nature, conspicuous within the mainstream framework of analysis and action.23 Historically, too, Dalit women have been perceived as inherently incapable of embodying honour; hence, the social meaning of rape loses its power to describe the humiliation that Dalit women face. This stems from the fact that colonial law24 invested upper-caste women with greater modesty or honour as compared to Dalit women in the sphere of judicial interpretation and sentencing.25 Therefore, the PoA Act, by naming the outraging of the modesty of or the dishonouring of a Dalit woman as an atrocity marks a discursive shift and imbues honour or modesty with a newer meaning with regard to Dalit women.26 Given
this context, I decided to further focus my research on cases of sexual violence, specifically rape of Dalit women and the application of the PoA Act in Bilaspur.
At the outset, in Part II of the article, I have analysed relevant sections of the PoA Act to determine its application in cases of rape of Dalit women.
Then, in Part III, I have analysed the 23 judgments delivered by the District Court of Bilaspur between May 2009 and December 2014. These judgments were recorded in Hindi and for the purposes of research and analysis, I translated them into English.27
This article is based on primary and secondary legal research. The qualitative research methodology has been employed to analyse the causes of the low conviction rate in Bilaspur. During the process of collecting judgments the method of quota sampling28 has been used; I have selected only those judgments that involved a charge of rape of Scheduled Caste women. The qualitative method of in depth interview29 has also been relied upon by conducting interviews of prosecutrixes in cases pending at the District Court of Bilaspur.
The subject matter is intended for an audience of victim-survivors, scholars, researchers, practitioners, local community members, and policy makers.
Part IV deals with the role of investigating agencies in implementing the PoA Act to understand the process by which the prosecution’s case is marred and injustice is consequently aggravated when the investigating agencies fail to perform their duty upon the registration

2017]  Rape As An Atrocity 75
of a First Information Report (FIR).30 As part of my research, I sought information, under the Right to Information Act, 2005 (RTI Act) from the Scheduled Caste and Scheduled Tribes Police Station located at Sarkanda in the Bilaspur district regarding the number of complaints registered.
In Part V of the article, I have analysed the Khairlanji massacre, which is a recent and archetypal instance of shoddy investigation in caste crimes.
Finally, in Part VI of the article, I conclude by analysing the amendments to the PoA Act that came into force in January 2016 and the changes, if any, that these amendments would bring about. II. Scheduled caSteS and Scheduled trIbeS  (PreventIon of atrocItIeS) act, 1989
A. Object and Definitions
Coming nearly four decades after the Indian Constitution, the PoA Act has been the most important measure to address the commission of atrocities against Dalits.31 Unlike its predecessor, the Civil Rights Act 1955, which only concerned itself with superficial humiliations such as verbal abuse, the PoA Act is a tacit acknowledgement by the State that caste relations are defined by violence, both incidental and systemic.32 However, 25 years later, the PoA Act remains one of the most underutilised provisions of law especially in the face of rampant violence against Dalits.
The object of the PoA Act is as follows:
‘An Act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.’33
The PoA Act aspires to address and curb everyday and extraordinary caste-based violence against the Dalits and the Adivasis. However, when listing the offences punishable therein, the PoA Act uses the phrase ‘whoever not being a member of a Scheduled Caste or Scheduled Tribe’ to indicate that its provisions come into play when the offender is not a Dalit or Adivasi. In other words, a Dalit man cannot be prosecuted for raping tribal women under the PoA Act and such a charge must be prosecuted under the Indian Penal Code, 1860 (IPC) alone.
Further, the term ‘atrocity’ has not been defined under the PoA Act. Section 2(1)(a) of the PoA Act merely states that the term ‘atrocity’ means an offence punishable under section 3 of the PoA Act.
B. Atrocities against Dalit Women
Two sections of the PoA Act apply to the offences of assault, rape or sexual humiliation of Dalit women.
Section 3(1)(xi) of the Act states:
‘Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, assaults or uses force to any woman belonging to a Scheduled Caste or Scheduled Tribe with the intent to dishonour or outrage her modesty; shall be punishable with imprisonment for a term which shall not be less than six months or which may extend to five years with fine.’34
Further, Section 3(1)(xii) of the Act states:
‘Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed; shall be punishable with imprisonment for
2017]  Rape As An Atrocity 77
a term which shall not be less than six months but which may extend to five years with fine.’35
In order to attract section 3(1)(xii), the sexual exploitation must have taken place because of the offender’s position of dominance. The term ‘sexual exploitation’ has not been defined in the PoA Act, nor has it been used in the IPC. These words can, therefore, be interpreted to have the same meaning as normally accorded to them in the English language. The word ‘otherwise’ is significant, and clearly indicates that the exploitation must be with the agreement of the woman, where she would not have agreed but for the offender’s position of dominance. This section has been included in the PoA Act to deal specifically with sexual violence committed in the dynamic of a master-servant relationship.
Relatedly, for certain offences against Dalits, section 3(2)(v) of the PoA Act provides for the enhancement of the punishment that is available under the IPC. This becomes applicable when an offender commits a crime against a Dalit, but there is no specific section of the PoA Act addressing that particular crime. The accused is then charged with the appropriate section under the IPC with enhanced punishment as per section 3(2)(v) of the PoA Act. This section reads as under:
‘Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten 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 with fine.’36
The rape of a woman is punishable under section 376 of the IPC with imprisonment of either description that may extend to a term of ten years or for life. If, however, the woman in question is a member of a Scheduled Caste or a Scheduled Tribe, section 3(2)(v) of the PoA Act is attracted and may provide for greater punishment. However, crucially, in order to attract the enhanced punishment prescribed by section 3(2) (v) of the PoA Act, it is necessary to prove that the woman in question was raped on the ground that she was a Dalit or a tribal.
This requirement that the rape must have been committed ‘on the ground’ that the woman was a member of a Scheduled Caste or Scheduled Tribe gives the judges a wide room to exercise their discretion. The threshold that must be met for proving the commission of the atrocity is, therefore, quite high. The burden rests on the prosecution to prove that the accused not only had prior knowledge of the victim’s caste, but also that he acted on the basis of such knowledge in the commission of the crime. III. analySIS of JudgmentS delIvered by  the dIStrIct court of bIlaSPur
In this part, I have analysed the 23 judgments delivered by the District Court of Bilaspur in cases where the accused was charged both with the commission of rape under the IPC37 and of an atrocity under the PoA Act between June 2009 and December 2014. Until May 2009, a Special Court, as mandated by the PoA Act, dealt with cases under the Act. However, after the Special Court was removed, all cases were transferred to the District Court, which now performs the functions of the Special Court. I have, first, analysed judgments delivered in 18 cases wherein the accused have been acquitted under section 376 of the Indian Penal Code (IPC) thereby leading to an acquittal under the PoA Act by default. Then, I have analysed six judgments wherein the accused have been convicted under section 376 of the IPC, but have been acquitted under section 3(2)(v) of the PoA Act; ie, they were found guilty of rape under the IPC, but not found guilty of having committed an atrocity against a Dalit woman under the PoA Act. Lastly, in this part, I have examined the sole case in which the accused is convicted under the PoA Act for the atrocity of raping a Dalit woman.
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A. Cases of Acquittal under the IPC and the PoA Act
This sub-part deals with 18 cases wherein the accused were acquitted under the IPC and therefore, by default, also acquitted under the PoA Act, as the accused cannot be found guilty of the atrocity of raping a Dalit woman if he is not found guilty of the rape in the first place.
These cases have been divided into three sub-categories on the basis of the patterns emerging in them. 1. Promises of Marriage
The following eight cases have been analysed hereunder: (i) State of Chhattisgarh v. Raghu alias Raghvendra Vaishnav.38 (ii) State of Chhattisgarh v. Rakesh Yadav and Others.39 (iii) State of Chhattisgarh v. Kamal Yadav.40 (iv) State of Chhattisgarh v. Rakesh Soni alias Mintu.41 (v) State of Chhattisgarh v. Prabhu Panika.42 (vi) State of Chhattisgarh v. Rajkumar Dubey.43 (vii) State of Chhattisgarh v. Vinod Katela Jain.44 (viii) State of Chhattisgarh v. Satish Gupta.45
Most of these cases have nearly identical facts wherein the accused established sexual intercourse with the prosecutrix by promising to marry her, but subsequently refused to do so. In these cases, the prosecutrixes sought to take recourse to section 376 of the IPC, which lays down the offence of rape, and section 90, which negates consent obtained under a misconception of fact or fraud. As the prosecutrixes
38    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    35/2010. 39    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    25/2010. 40    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    15/2010. 41    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    23/2010. 42    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    35/2009. 43    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No18/2013. 44    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    32/2007. 45    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    25/2012.
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all belonged to a Scheduled Caste, the accused in all cases were also charged under section 3(2)(v) of the PoA Act, which provides for enhanced punishment for certain offences committed under the IPC against a member of a Scheduled Caste or Tribe, along with sections 3(i) (xi), 3(i)(xii), or both of the PoA Act, which deal with the assault, rape or sexual humiliation of Dalit women.
In the case of State of Chhattisgarh v. Vinod Katela Jain, for instance, both the prosecutrix and the accused were public servants. The prosecutrix was the subordinate of the accused. The accused invited the prosecutrix to his house for his daughter’s birthday party. On reaching his house, the prosecutrix discovered that the accused was alone and that the birthday party was a ruse to engage in sexual intercourse with her. She resisted but the accused had sex with her against her will. Following this incident the accused and prosecutrix began a romantic relationship. The accused promised to marry the prosecutrix despite already being married and continued to engage with her sexually on the basis of this promise.
Since the prosecutrix belonged to the Ganda caste, which is a Scheduled Caste, the accused was charged under section 3(2)(v) of the PoA Act, which provides for enhanced punishment for rape. The relationship between the accused and the prosecutrix was that of a master and a servant, ie, the accused was in a position to dominate the will of the prosecutrix. This dynamic should therefore have led to the framing of a charge under section 3(1)(xii) of the PoA Act, as well. However, surprisingly, the accused was not so charged by the investigating authority, nor did the Court frame a charge under this section. The prosecution, which has the authority to suo moto frame a charge by an application to the Court, also failed in its duty to do so in this case. Thus, the accused was never tried under section 3(i)(xii) of the PoA Act.
The accused was acquitted under section 376(2)(b) of the IPC as well as section 3(2)(v) of the PoA Act. The Court held that section 90, which negates consent obtained under a misconception of fact or fraud, did not render non-consensual the sexual intercourse that was initiated on the basis of the accused’s promise of marriage; thus, there was no rape. This was held because the prosecutrix was (or should have been) aware that she and the accused belonged to different castes and that their families would object to such a marriage. The Court also held
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that the prosecutrix was a consenting party since she was an educated woman who was aware that the accused was a married man who could not have legally married her and yet, continued to engage with him sexually.
The Court also relied on this rationale in the case of State of Chhattisgarh v. Satish Gupta.46 where it was held that the prosecutrix, who was 25 years old at the time of the commission of the offence, was well aware that she and the accused belonged to different castes and that, consequently, it was not possible for them to marry. It was further stated that the prosecutrix continued to engage in sexual intercourse with the accused despite knowing this, and thus, could not be accorded the benefit of a ‘misconception of fact’ under section 90 of the IPC. The Court also held that the medical examination proved that the prosecutrix was habituated to sexual intercourse, and found that she had engaged in it consensually with the accused. Therefore, the accused was acquitted under sections 376 and 506 of the IPC as well as section 3(2) (v) of the PoA Act. The remaining judgments are on similar lines.
In these cases, not only were the accused not found guilty of a caste atrocity against the prosecutrixes, but the impossibility of an inter-caste marriage was also used as a ground to acquit the accused of rape. The Court is in fact upholding the archaic practice of marrying within one’s own caste. This is a conscionable blunder on the part of the Court and runs counter to the ethos of the Indian Constitution, and the aspirations of one of its primary makers, Dr B R Ambedkar, who deemed inter- caste marriage to be the real remedy to defeat castiest dogma.47 2. Cases of Prosecutrixes Turning Hostile
The accused were acquitted in the following cases as a result of the prosecutrixes turning hostile and denying the prosecution’s versions of the incidents: (i) State of Chhattisgarh v. Purshottam Kumar Soni and Others.48 (ii) State of Chhattisgarh v. Jaykumar Sahu.49 (iii) State of Chhattisgarh v. Samarth Lal alias Chotu.50 (iv) State of Chhattisgarh v. Jogeshwar Rathore and Others.51 (v) State of Chhattisgarh v. Jawahar Soni.52 (vi) State of Chhattisgarh v. Ashutosh Singhal.53 (vii) State of Chhattisgarh v. Deepu alias Deepchand.54
A study conducted on the performance of the former Special Courts set up under the PoA Act found that the prosecutrixes were compelled to turn hostile due to their economic dependence on the upper and dominant castes and their state of insecurity.55 It also concluded that a hostile witness was the main reason for the high rate of acquittals in such cases.56 During the course of the interviews I conducted with the prosecutrixes in pending cases in the District Court, I discovered that they were subjected to immense societal pressure to withdraw their cases. In one of the cases, the prosecutrix was raped by a man who lived in the same locality as her. The majority of the people living in the locality belonged to the same (upper) caste as the accused, and the prosecutrix was hounded by taunts and snide remarks on a regular basis. This harassment, coupled with the financial burden that the litigation imposed on her family, was making it difficult for her to prosecute the case.

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3. Other Cases of Acquittal
The remaining three cases of acquittal did not fall into either of the preceding categories. In State of Chhattisgarh v. Jaleshwar Kashyap,57 the Court, while acquitting the accused, noted that the prosecutrix had earlier filed a rape complaint against one Neil Prakash, and that that matter had been resolved when the villagers convinced both parties to enter into a compromise. This history was one of the grounds relied upon to acquit the accused under section 376 of the IPC and under section 3(2)(v) of the PoA Act.
Similarly, in State of Chhattisgarh v. Gaurishankar Tiwari and another,58 the Court noted that the prosecutrix had admitted to having previously had an affair with a man named Ram Singh, and that she had filed false complaints in the past against different people. It used this as a ground to doubt the veracity of the prosecutrix’s statement. This, coupled with other facts, led to the acquittal of the accused under the IPC.
Finally, in State of Chhattisgarh v. Narendra Kumar Dubey,59 the accused was acquitted on the ground that the prosecutrix’s testimony was in some way ‘marred with suspicion’ and that the medical evidence was unreliable because she was married and thus, habituated to sexual intercourse. Strangely, the judgment does not reveal a charge framed under section 3(2)(v) of the PoA Act, which is a necessary corollary in a case alleging the rape of a woman belonging to a Scheduled Caste. The accused was acquitted under section 3(1)(xii) of the PoA Act along with sections 376 and 506 of the IPC.
B. Cases of Conviction under the IPC and Acquittal under the PoA Act
In the following sub-part, I analyse the six cases in which the accused were convicted of rape under section 376 of the IPC but were acquitted under the PoA Act. In each case, the Court held that there was no evidence on record to prove that the prosecutrix was raped by the accused specifically on the ground that she was from a Scheduled Caste. This was the basis for the acquittal of the accused in State of Chhattisgarh
57    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    31/2010. 58    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    5/2008. 59    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    27/2009.
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v. Mukku alias Mukesh Yadav,60 State of Chhattisgarh v. Nepal Singh,61 State of Chhattisgarh v. Rajkumar Patel,62 State of Chhattisgarh v. Chaitu alias Chaitram,63 and State of Chhattisgarh v. Keshav Lal.64
In State of Chhattisgarh v. Chaitu alias Chaitram,65 an FIR was lodged under sections 376 of the IPC and 3(2)(v) of the PoA Act. The Court held that the prosecution did not present any evidence to prove that the rape took place because of the prosecutrix’s caste. Therefore, the accused was acquitted under section 3(2)(v) of the PoA Act. The phrase ‘abhiyukt ne prarthiya ko choddh diya’, a vulgar pejorative to describe sexual intercourse in Hindi, was repeatedly used in the judgment to describe the act of rape committed. While the official Devanagari translation of the IPC provides that the term ‘laingik sambhog’ can be used to describe sexual intercourse, the deliberate use of crude language by the judge in describing the heinous act of rape begs the question of whether a judge who displays such coarseness should be considered capable of dealing with sensitive issues such as rape and caste. It also raises doubts about the fairness of the trial being conducted in this case. The absence of the term ‘laingik sambhog’ in describing the act of rape is conspicuous in all judgments analysed for the purpose of this article.
In State of Chhattisgarh v. Krishna Kumar Sahu,66 the accused was convicted under section 35467 of the IPC for outraging the modesty of a woman but acquitted under the corresponding section 3(1)(ix) of the PoA Act. Despite the prosecution being exempt from fulfilling the threshold laid down under Section 3(2)(v), which applies only to cases punishable with ten years or more under the IPC, the accused has been acquitted under Section 3(1)(ix). The accused ought to have been convicted by default under the PoA Act owing to his conviction under section 354 of the IPC. In failing to do so, the Court has committed a gross error in the application of law.
C. Sole Case of Conviction under the PoA Act
The case of State of Chhattisgarh v. Manik Lal Tandiya.68 is the only case in which the District Court convicted the accused under the PoA Act. The prosecutrix was a 30-year-old married woman who, on 16 June 2012, went to the fields for her ablutions. Suddenly, the accused came to the field, pushed her to the ground and began raping her. When she screamed, he threatened to kill her. The prosecutrix’s house is located approximately three–four metres from the area of the crime scene. When she reached home, she narrated the incident to her in-laws and her husband. Her husband called the sarpanch following which they filed a report at the police station.
The Court held the accused guilty under section 376 of the IPC. As the accused had threatened to kill the prosecutrix when she protested against the rape, the Court held that the prosecutrix’s consent was obtained in consequence of such fear, and was covered by section 90 of the IPC.
The prosecutrix was examined, and the medical report stated that the prosecutrix was habituated to sexual intercourse and had been sexually active around 24–48 hours prior to the examination. However, the medical examiner also opined that there were no external signs of injury on the victim’s body and that the white vaginal discharge could also be due to a reason other than that related to rape. Therefore, it could not be concluded beyond all reasonable doubt that the prosecutrix was raped.
The Court held that since the prosecutrix was a married woman in her 30s, the medical examiner’s opinion was unimportant as no married woman would put her honour at stake by falsely accusing a man of raping her. In this case, the Court seems to have adopted a liberal view by not placing any reliance on the medical examiner’s opinion, unlike previous cases wherein reports of the medical examiner have impacted the outcome of the cases.
68    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    19/2013.
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The caste certificate presented to the Court stated that the prosecutrix belonged to the Gond caste, which falls under the Scheduled Caste category. In his statement made to the Court under section 313 of the Code of Criminal Procedure, 1973 (CrPC), the accused admitted to knowing that the prosecutrix belongs to the Gond caste, which is a Scheduled Caste, and admitted to being a member of the Panika caste, which does not fall under the Scheduled Caste category. The accused and the prosecutrix were also neighbours. The Court held on this basis that the accused was aware that the prosecutrix belonged to the Scheduled Caste and that the crime was committed because the prosecutrix belonged to the Scheduled Caste. Thereby, the accused was convicted under section 3(2)(v) of the PoA Act.
As per section 3(2)(v) of the PoA Act, the knowledge of a woman’s caste must be the ground for the commission of the crime. It is for this reason that many of the acquittals in the previous sections were obtained, owing to the difficulty inherent in proving that the rape was specifically committed because the woman belonged to a Scheduled Caste. However, there is nothing to distinguish this case from the previous ones. There is nothing that proves that the accused committed the crime because the woman was a member of the Gond caste. The absence of any distinguishing feature unique to this case fails to explain the rare conviction, when so many other cases with similar factual matrices resulted in an acquittal. It suggests a certain degree of arbitrariness in the judgments. It is interesting to note that, during my interaction with him, I was made aware of the fact that the judge presiding over this case also belonged to a Scheduled Caste. Some may opine that this judgment is tainted with personal bias, but one cannot simply assume the legal soundness of the previous cases to debunk the irregularity in Manik Lal Tandiya, as the entire lot of them are highly susceptible to well-conceived criticism. I firmly believe that the arbitrary and unfettered discretion conferred on the Court in such matters has led to a failure in the deliverance of justice.
During my interaction with the court staff, lawyers and police, I was explicitly told several times that the Bilaspur District was devoid of caste prejudice. It was morbidly ironic to see the same authorities being entrusted with the responsibility of bringing to justice those responsible for committing caste atrocities in Bilaspur.
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IV. role of InveStIgatIng agencIeS
Investigating agencies form the backbone of the criminal justice system. A sound and objective investigating agency is crucial to the process of securing the ends of justice. Objectivity in the process of investigation is beleaguered when room is provided for individual prejudices to trickle in, the possibility of which is amplified in matters of rape and caste.
A. Filing of FIRs
An FIR is the necessary initial step to commence the legal process when an atrocity takes place or untouchability is practiced, and is also the primary vehicle that the police use to block Dalits from taking recourse to the law.69 In 2014, a total of 34,163 charge sheets were filed for various offences committed against the Scheduled Caste community across all States, out of which 1929 were in rape cases.70
Amnesty International notes that non-registration of crimes in India is a general problem. Besides the existent constraints, filing an FIR is in and of itself a challenge. Political influence over the police and the caste, class, religious, and gender biases of the police make it particularly difficult for Dalits to file FIRs, especially against influential upper-caste individuals.71
The Ahmedabad-based Centre for Social Justice (CSJ) conducted a detailed study of 400 judgements delivered by the Special Courts set up in Gujarat in sixteen districts since 1 April 1995. It revealed a shocking pattern behind the main reasons for the collapse of cases filed under the PoA Act within Gujarat: utterly negligent police investigation at both the higher and lower levels coupled with a distinctly hostile role played by the public prosecutors. In over 95 per cent of the cases, acquittals had resulted due to technical lapses in investigation and prosecution, and in the remaining five per cent, court directives were flouted by the government.72 By not registering complaints, or registering FIRs under incorrect sections of the law, or leaving out the provisions of the PoA Act, police fail to carry out their official law and order duties as well as abide by the law.73 The case of Vinod Katela Jain,74 mentioned previously, is one such instance wherein the investigating authority failed to file a charge under the relevant section, thereby resulting in an acquittal.
Botched up investigations weaken the prosecution’s case further especially in cases of rape as an atrocity, where the prosecution is already reeling under the weight of proving the accused’s intention while committing the crime as warranted by Section 3(2)(v) of the PoA Act. In M C Prassanan v. the State,75 while dealing with the case of the rape of a minor girl by her teacher, the Calcutta High Court noted the following in its judgment:
‘From such delay in framing the charge under section 3(1)(xii) of the Act of 1989 it can be easily presumed that neither I.O. nor the learned Prosecutor nor the learned Sessions Judge nor the learned Chief Judicial Magistrate who committed the case for trial to the learned Sessions Judge was aware of the existence of Act of 1989.’
B. Functioning of Special Police Stations
The PoA Act mandates the setting up of separate police stations in each district to deal with the cases of crimes against Dalits and tribals.76 The district of Bilaspur has a separate police force to deal with these cases. On 14 December 2014, I requested information on the number of complaints received and FIRs filed between the years 2009 to 2014 for all offences under the PoA Act at the Scheduled Castes and Scheduled Tribes police station, under the RTI Act.
In the year 2013, 2.65 per cent of the total number of rape cases against Dalit women across all states in the country occurred in Chhattisgarh.77
73 Supra    n.    9. 74 Supra    n.    44.    75    1999    Cri    LJ    998,    para    25. 76 Supra    n.    9. 77    National    Crime    Records    Bureau,    ‘Crime    in    India    2013:    Statistics’    (2014)    National Crime Records Bureau, available at    http://ncrb.nic.in/StatPublications/CII/CII2013/ Statistics-2013.pdf    (last    visited    3    June    2016).
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The information above reveals that a large number of cases from amongst the total number of complaints received have been settled through compromise. In the year 2011, compromise was arrived at in 71 cases of the 272 complaints received by the police station. This further corroborates the fact that the investigating agencies, besides abandoning their duties, mete out a procedure that jeopardises the interests of the victims.
C. PoA Rules
In 1995, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules (PoA Rules) were promulgated. The PoA Rules were intended as an essential corollary to the PoA Act to ensure its effective implementation. For instance, rule 11 provides for travelling allowance, daily maintenance expenses and transport facilities for victims of atrocities, their dependents, and witnesses.78 In my interactions with three victims out of the six cases pending at the District Court in 2014, I discovered that none of them were paid any allowance as mandated by the PoA Rules. All the victims stated that approaching the judicial system was in itself a massive step given the stigma they faced. The financial burden acquired during the course of the trial was cited as another deterrent in approaching the Court.
V. the KhaIrlanJI maSSacre
When discussing the concerns and vagaries of the justice delivery system pertaining to caste based crimes, particularly rape, it is beneficial to have some understanding of the abject failure of the system, the legal safeguards and even the civic society, embodied in the case of the Khairlanji massacre, which remains one of the most gruesome examples of caste based violence since Indian independence.
The victims of the violence in this case were from the Bhotmange family, that consisted of Bhaiyalal Bhotmange (55, at the time of the carnage), his wife Surekha Bhotmange (40), their sons Sudhir (21) and Roshan (19), and daughter Priyanka (17), who originally belonged to Ambagad village, 25 kilometres from Khairlanji. Economic hardship
78 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.
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caused the family to move to Khairlanji in 1989. Being members of a lower caste, they were subjected to the villagers’ prejudicial harassment.
On 3 September 2006, one Siddharth Gajbhiye was beaten up by 15 people from Khairlanji due to some petty cause. On 16 September 2006, 12 culprits were arrested by the police based on the accounts of the eyewitnesses: Priyanka, Surekha, Sudhir and Bhaiyyalal Bhotmange. This did not go well with the criminals. After being released on bail on 29 September 2006, they incited 40 villagers of Khairlanji, all belonging to the dominant castes, and planned to attack and murder Siddharth Gajbhiye and his brother Rajan Gajbhiye. Somehow, Surekha Bhotmange and Priyanka Bhotmange got wind of this plan and informed Rajan Gajbhiye.
When the villagers could not find Sidhharth and Rajan Gajbhiye, and learned that they had been forewarned by the Bhotmange family, they became furious and turned their hoodlums to the house of the Bhotmange family with the weapons of bicycle chains, axes, daggers and sticks. Seeing the approaching mob, Bhaiyalal Bhotmange ran away. Only Surekha and her children were present at home. Both the Bhotmange women, Surekha and Priyanka, were stripped of their clothes. The dreadful photographs show that there was not an inch of these young women’s bodies that was not marked by bruises.79 Four members of the Dalit Bhotmange family were brutally murdered.
The FIR (No 56/2006) invoked the following sections of the IPC: 147 (punishment for rioting), 148 (rioting, armed with deadly weapon), 149 (common object), 302 (punishment for murder), and 201 (causing disappearance of evidence of offence, or giving false information to screen offender). None of these had any bearing on the crime committed. The PoA Act was also invoked, but only in its mildest: section 3(1) (intentional insult or clause intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view). Crucially, sections 376 (for rape) and 354 (assault or criminal force on a woman with intent to outrage her
79    Brinda    Karat,    ‘Khairlanji    Verdict    Blind    to    Dalit    Cause’    (1    August    2010)    The Times of India, available at    http://timesofindia.indiatimes.com/home/sunday-times/all-that- matters/Khairlanji-verdict-blind-to-dalit-cause/articleshow/6242212.cms    (last    visited    3    June    2016).
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modesty) of the IPC were not invoked in the FIR.80 Eventually, the Sessions Court held eight out of the 11 accused to be guilty of the offences under the IPC and sentenced six out of the eight to death and two to life imprisement, and acquitted the remaining three. However, none of the accused were found guilty under the PoA Act.81
In its judgement delivered on 14 July 2010, the Nagpur Bench of the Bombay High Court commuted the death sentence of all six accused to life imprisonment. While acquitting the accused under the PoA Act, the Court held that the entire object had been to take revenge against Surekha and Priyanka to settle old scores.82 The judgment took a parochial view of the motive of revenge, failing to appreciate that the dimensions of revenge against Dalits are quite different from other cases, given the caste-ridden nature of our society.
The Khairlanji case is symbolic of all the cases where failure on the part of the investigating agency and the judiciary to perform their duties has resulted in the perpetuation of sexual violence against Dalit women. It is a reminder of the apathetic system in place nationally that render the PoA Act and other legal frameworks meaningless. VI. current ScenarIo and ItS ImPlIcatIonS
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014 was introduced in the Lok Sabha by the Minister of Social Justice and Empowerment on 16 July 2014. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (the PoA Amendment Act) subsequently came into force on 26 January 2016.83
80 Supra n.    31.    81 State of Maharashtra v. Gopal @ Jitendra 10    (2008)    Special    Court    at    Bhandara    Special    Criminal    Case    No    01/2007    (Unreported    24    September    2008). 82 Central Bureau of Investigation through DSP, CBI SCB v. Sakru Mahagu Binjewar (Original Accused No. 2) and Others (2010)    High    Court    of    Bombay,    Nagpur    Bench    Criminal    Confirmation    Case    No    4/2008    (Unreported    14    July    2010)    alongwith    four    connected    appeals,    para    43D. 83    Maneesh    Chhibber    and    Avishek    G    Dastidar,    ‘Govt    Notifies    Amended    SC/ST    Law’    (New    Delhi    26    January    2016)    The Indian Express, available at    http://indianexpress. com/article/india/india-news-india/govt-notifies-amended-scst-law/    (last    visited    3    June    2016).
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The PoA Amendment Act classifies new offences as atrocities committed against Dalits. In section 3(1)(w), the following offences have been included as atrocities committed against Dalit women:
‘(i) intentionally touching an SC or ST woman in a sexual manner without her consent, or (ii) using words, acts or gestures of a sexual nature, or (iii) dedicating an SC or ST women as a devadasi to a temple, or any similar practice will also be considered an offence.’84
The PoA Amendment Act also substitutes the words of section 3(2)(v) of the principal legislation, ‘on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member’, with the words ‘knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe.’85 This, ideally, would serve to lower the threshold that has to be met by the prosecution for the accused to be convicted of an atrocity, as it requires only that the accused know that the person is a member of a Scheduled Caste or Tribe, not that the act be committed for that reason and on that basis alone.
It also shifts the burden on the defence to prove the absence of such knowledge in the commission of the crime. But the existence of a threshold howsoever low has no place in a legislation that seeks to eliminate the pervasive evil of caste since the experience of victims- survivors of caste atrocity with the criminal justice system is greatly shaped by their (lower) caste identities. This is particularly true for Dalit women, who not only have to battle societal backlash but also tackle the callousness of the state machinery while striving to obtain justice in cases of sexual violence. A threshold such as this one can only be laid down when we have successfully insulated the criminal justice system from prejudices of caste and gender.
84 The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015,    sub-section    (i)    of    section    4. 85 The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015,    sub-section    (ii)    of    section    4.
2017]  Rape As An Atrocity 93
The crimes against Dalits are catalysed by social prejudice and their vulnerability.86 Sexual violence against Dalit women has always been used as a potent tool to further marginalise the lower castes. Under the PoA Act, attempts to seek redress were often obstructed by a complex psychosocial blend of external impositions such as threats of retaliation and violence by the caste perpetrators (such as threat of loss of livelihood) and internal patriarchal and cultural understandings.87
Chapter IV A has been introduced in the PoA Amendment Act to protect the rights of victims and witnesses. In the absence of any provision for the sensitisation of judges and investigating agencies, this provision lacks teeth. Judges and investigating agencies are assumed to be immune from social prejudice. This is clearly fallacious.
A sensitised judiciary and investigating agency are crucial to the successful implementation of all legislations, especially social legislations such as the PoA Act that are formulated with the intention of remedying deep-rooted social biases. Their absence, coupled with the wide discretion available to judges under the PoA Act, defeats the aim of protecting Dalits against atrocities. Hopefully, the PoA Amendment Act will restrict and reduce this exercise of discretion. But without this sort of sensitisation, this special social legislation will continue to be a mere paper tiger.
86    Dr    Anand    Teltumbde,    ‘Khairlanji    Verdict    Whither    the    Atrocity    Act?’    (2009)    Combat Law, available at    http://www.combatlaw.org/khairlanji-verdict-whither-the-atrocity-act/
Foot notes
    This    article    reflects    the    position    of    law    as    on    3    June    2016.    *    The    author    is    a    student    of    Government    Law    College    Mumbai,    and    is    presently    studying    in    the    final    year    of    the    Three    Year    Law    Course.    She    can    be    contacted    at    sonavane. nikita03@gmail.com. 1    ——    ‘Who    are    Dalits?’,    National Campaign on Dalit Human Rights, available at    http:// http://www.ncdhr.org.in/dalits-untouchability/    (last    visited    3    June    2016). 2    Dalit    is    often    used    to    refer    to    the    category    of    Scheduled    Castes    defined    under    Article    366(24)    of    the    Constitution of India    as    castes,    races    or    tribes    or    parts    of    or    groups    within    such    castes,    races    or    tribes    as    are    deemed    to    be    Scheduled    Castes    for    the    purposes    of    the Constitution of India under    article    341.    3    Doḍḍabaḷḷāpura    Rāmayya    Nāgarāj,    The Flaming Feet and Other Essays: The Dalit Movement in India    (2nd    edn    University    of    Chicago    Press    2010)
4 Ibid. 5    ——,    ‘India:    UN    Members    Should    Act    to    End    Caste    Discrimination’    (2012)    Human Rights Watch, available at    https://www.hrw.org/news/2012/05/14/india-un-members- should-act-end-caste-discrimination    (last    visited    3    June    2016).    See generally    World    Report    2015:    India    (2015)    Human Rights Watch, available at    https://www.hrw.org/ world-report/2015/country-chapters/india    (last    visited    3    June    2016).    6    National    Crime    Records    Bureau,    ‘Crime    in    India    2013:    Statistics’    (2014)    National Crime Records Bureau, available at    http://ncrb.nic.in/StatPublications/CII/CII2013/ Statistics-2013.pdf    (last    visited    3    June    2016).    7    National    Crime    Records    Bureau,    ‘Crime    in    India    2014:    Statistics’    (2015)    National Crime Records Bureau, available at http://www.ncrb.gov.in/cii-2014/Table%207.1.pdf    (last    visited    3    June    2016).    8    Article    17    states:    ‘Untouchability    is    abolished    and    its    practice    in    any    form    is    forbidden.    The    enforcement    of    any    disability    arising    out    of    Untouchability    shall    be    an    offence    punishable    in    accordance    with    law.
9    Girish    Agrawal    and    Colin    Gonsalves    (eds),    Dalits and The Law    (Human    Rights    Law    Network    New    Delhi    2005). 10    Pratiksha    Baxi,    Public Secrets of Law: Rape Trials in India    (Oxford    University    Press    New    Delhi    2014). 11 Supra    n.    6    and    7.    12    District    Administration,    Bilaspur    (CG),    ‘Statistics:    General    Information’    (2011)    Bilaspur: The Pride of Chattisgarh, available at http://www.bilaspur.gov.in/Statistics.html    (last    visited    3    June    2016). 13 Ibid. 14    The    author,    as    part    of    the    research,    conducted    interviews    with    the    District    Judge    and    Special    Public    Prosecutor    of    the    Bilaspur    District    Court.    Both    officials    stated    this    fact    in    the    course    of    their    interviews.
15    All    India    Dalit    Mahila    Adhikar    Manch    et al,    ‘Violence    Against    Dalit    Women:    Input    to    the    UN    Special    Rapporteur    on    Violence    against    Women    in    connection    with    her    visit    to    India    between    22    April    –    1    May    2013’    (2013)    International Dalit Solidarity Network, available at    http://idsn.org/wp-content/uploads/user_folder/pdf/New_files/India/2013/ India_submission_on_Violence_against_Dalit_Women_-_SR_on_VAW_India_2013. pdf    (last    visited    3    June    2016).    16    Dip    Kapoor,    ‘Gendered-Caste    Discrimination,    Human    Rights    Education,    and    the    Enforcement    of    the    Prevention    of    Atrocities    Act    in    India’,    (2007)    53    (3)    AJER Online 273-286,    available at    http://ajer.journalhosting.ucalgary.ca/index.php/ajer/article/ view/700/678    (last    visited    3    June    2016). 17    Verbal    abuse    included    regular    derogatory    use    of    caste    names    and    caste    epithets    possibly    amounting    to    ‘hate    speech’,    as    well    as    sexually    explicit    insults,    gendered    epithets    and    threats. 18    Aloysius    Irudayam    S    J    et al,    ‘Dalit    Women    Speak    Out:    Violence    Against    Dalit    Women    in    India’    (2006)    International Dalit Solidarity Network, available at http://idsn.org/ uploads/media/Violence_against_Dalit_Woment.pdf    (last    visited    3    June    2016).        19        ——,    ‘Dalit    Women’    International Dalit Solidarity Network, available at    http://idsn. org/key-issues/dalit-women/    (last    visited    3    June    2016).
20    Devadasis    are    members    of    a    community    of    women    who    dedicate    themselves    to    the    service    of    the    patron    god    of    the    temples    in    eastern    and    southern    India.    Members    of    the    order    attended    the    god    by    fanning    the    central    image,    honouring    it    with    lights,    and    singing    and    dancing    for    the    god,    as    well    as    for    the    king    and    his    close    circle,    who    often    commanded    the    devadasis’    sexual    favours.    Because    many    devadasis    engaged    in    temple    prostitution,    both    the    British    and    the    upper-caste    Hindus    during    the    period    of    colonial    rule    came    to    hold    the    devadasis    in    low    social    regard.    The    system    was    outlawed    in    1988.    Although    the    number    of    devadasis    subsequently    began    to    decline,    the    institution    has    remained    strong—although    less    open—in    the    21st    century,    particularly    in    parts    of    the    south.    —    ‘Devadasi’    (2015)    Encyclopaedia Britannica, available at    http://www. britannica.com/topic/devadasi    (last    visited    3    June    2016). 21    Maggie    Black,    ‘Women    in    Ritual    Slavery’,    (2007)    Anti    Slavery    International,    available at    http://www.antislavery.org/includes/documents/cm_docs/2009/w/women_in_ritual_ slavery2007.pdf    (last    visited    3    June    2016). 22 Ibid, 3. 23 Supra    n.    15,    4. 24    Anupama    Rao,    ‘Caste,    Gender    and    Indian    Feminism’    (2003)    Gender and Caste 1–47, available at http://cscs.res.in/dataarchive/textfiles/textfile.2010-03-11.8248362078/file    (last    visited    3    June    2016) 25 Supra    n.    10. 26 See Dr.    Anand    Teltumbde,    ‘Khairlanji    Verdict    Whither    the    Atrocity    Act?’    (2009)    Combat Law, available at    http://www.combatlaw.org/khairlanji-verdict-whither-the-atrocity-act/    (last    visited    3    June    2016).
27    The    author    has    accurately    translated    and    transliterated    the    original    judgments    into    English,    to    the    best    of    her    knowledge    and    having    made    every    possible    and    reasonable    effort.    Discrepancies,    if    they    arise,    may    be    attributed    to    the    limitations    of    translation    and    language.    28    Natasha    Mack    et al,    ‘Qualitative    Research    Methods:    A    Data    Collector’s    Field    Guide’    (2005)    Family Health International 360, available at http://www.fhi360.org/sites/ default/files/media/documents/Qualitative%20Research%20Methods%20-%20A%20 Data%20Collector’s%20Field%20Guide.pdf    (last    visited    3    June    2016). 29 Ibid
30    Teesta    Setalvad,    ‘Caste    Crimes’    (2005)    Communalism Combat, available at http://www. sabrang.com/cc/archive/2005/mar05/cover.html    (last    visited    3    June    2016).    31    Anand    Teltumbde,    The Persistence of Caste: The Khairlanji Murders and India’s Hidden Apartheid    (Zed    Books    London    2010). 32 Ibi
33 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,    preamble. 34 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,     sub-section    (1)(xi)    of    section    3.
35 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,     sub-section    (1)(xii)    of    section    3. 36 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,     sub-section    (2)(v)    section    3 37 The Indian Penal Code, 1860    as    it    existed    before    the    Criminal Law (Amendment) Act of 2013 came    into    force,    applies    to    all    of    the    judgments    in    this    article.
38    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    35/2010. 39    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    25/2010. 40    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    15/2010. 41    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    23/2010. 42    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    35/2009. 43    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No18/2013. 44    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    32/2007. 45    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    25/2012. 46 Ibid. 47    Dr    B    R    Ambedkar,    Annihilation of Caste (3rd    edn    Pradbuddha    Bhart    Pustkalya    Nagpur    2011). 48    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    26/2012.
49    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    1/2012. 50    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    11/2013. 51    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    36/2009. 52    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    12/2009. 53    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    27/2013. 54    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    32/2010. 55    Centre    for    Study    of    Casteism,    Communalism    and    Law    (CSCCL),    National    Law    School,    Bangalore,    India,    ‘Study    on    the    Performance    of    Special    Courts    Set    up    under    the    SC    ST    Prevention    of    Atrocity    Act’    International Dalit Solidtarity Network, available at    http:// idsn.org/wp-content/uploads/user_folder/pdf/New_files/India/Performan_of_courts_ SCST_act-_Study.pdf        (last    visited    3    June    2016). 56 Ibid  57    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    31/2010. 58    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    5/2008. 59    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    27/2009

60    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    33/12. 61    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    43/09. 62    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    18/2013. 63    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    23/2009. 64    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    12/13. 65    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    23/2009. 66    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    14/13. 67    Assault    or    criminal    force    to    woman    with    intent    to    outrage    her    modesty—Whoever    assaults    or    uses    criminal    force    to    any    woman,    intending    to    outrage    or    knowing    it    to    be    likely    that    he    will    thereby    outrage    her    modesty,    shall    be    punished    with    imprisonment    of    either    description    for    a    term    which    may    extend    to    two    years,    or    with    fine,    or    with    both. 68    District    Court    of    Bilaspur    Special    Case    (Atrocities    Act)    No    19/2013.

69 Supra    n.    9.    70    National    Crime    Records    Bureau,    ‘Crime    in    India    2014:    Statistics’    (2015)    National Crime Records Bureau, available at http://ncrb.gov.in/StatPublications/CII/CII2014/chapters/ Chapter%207.pdf    (last    visited    3    June    2016). 71 Supra    n.    16.    72 Supra n. 31. 73 Supra    n.    9. 74 Supra    n.    44.    75    1999    Cri    LJ    998,    para    25. 76 Supra    n.    9. 77    National    Crime    Records    Bureau,    ‘Crime    in    India    2013:    Statistics’    (2014)    National Crime Records Bureau, available at    http://ncrb.nic.in/StatPublications/CII/CII2013/ Statistics-2013.pdf    (last    visited    3    June    2016).78 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. 79    Brinda    Karat,    ‘Khairlanji    Verdict    Blind    to    Dalit    Cause’    (1    August    2010)    The Times of India, available at    http://timesofindia.indiatimes.com/home/sunday-times/all-that- matters/Khairlanji-verdict-blind-to-dalit-cause/articleshow/6242212.cms    (last    visited    3    June    2016).

80 Supra n.    31.    81 State of Maharashtra v. Gopal @ Jitendra 10    (2008)    Special    Court    at    Bhandara    Special    Criminal    Case    No    01/2007    (Unreported    24    September    2008). 82 Central Bureau of Investigation through DSP, CBI SCB v. Sakru Mahagu Binjewar (Original Accused No. 2) and Others (2010)    High    Court    of    Bombay,    Nagpur    Bench    Criminal    Confirmation    Case    No    4/2008    (Unreported    14    July    2010)    alongwith    four    connected    appeals,    para    43D. 83    Maneesh    Chhibber    and    Avishek    G    Dastidar,    ‘Govt    Notifies    Amended    SC/ST    Law’    (New    Delhi    26    January    2016)    The Indian Express, available at    http://indianexpress. com/article/india/india-news-india/govt-notifies-amended-scst-law/    (last    visited    3    June    2016).

80 Supra n.    31.    81 State of Maharashtra v. Gopal @ Jitendra 10    (2008)    Special    Court    at    Bhandara    Special    Criminal    Case    No    01/2007    (Unreported    24    September    2008). 82 Central Bureau of Investigation through DSP, CBI SCB v. Sakru Mahagu Binjewar (Original Accused No. 2) and Others (2010)    High    Court    of    Bombay,    Nagpur    Bench    Criminal    Confirmation    Case    No    4/2008    (Unreported    14    July    2010)    alongwith    four    connected    appeals,    para    43D. 83    Maneesh    Chhibber    and    Avishek    G    Dastidar,    ‘Govt    Notifies    Amended    SC/ST    Law’    (New    Delhi    26    January    2016)    The Indian Express, available at    http://indianexpress. com/article/india/india-news-india/govt-notifies-amended-scst-law/    (last    visited    3    June    2016).

The criminal justice project: Azim Premji University, Bengaluru

Introduction

The proposed venture is a piece of the ‘Law and Policy Hub’ where understudies of Law, Governance and Policy specialization of the MA Development system and LLM in Law and Development program, engage in a field based task in the region of law and improvement. This method of instruction is essentially worried with ‘the way toward gaining from genuine encounter.

As George Bernard Shaw said, ‘Criminals do not die by the hands of the law. They die by the hands of other men. Assassination on the scaffolis the worst form of assassination because there it is invested with the approval of the society…. Murder and capital punishment are not opposites that cancel one another but similar that breeds their kind.’

While extensive studies have been done on abolishment of death penalty, little work has been done on the structure and pattern of death penalty sentencing. The purpose of this clinic is to look on what grounds death penalty has been awarded what is its effect on accused and accused’s family, what impact a death penalty sentencing has on society.

If death sentencing is awarded for rarest of the rare cases on what grounds such cases are considered as rarest of the rare is the main focus of this clinic, In order to understand complexity of this legal system especially when it is related to taking the life of person on legal grounds there should be some sense of ethics or morality which needs to exist there. For studying the same and bring out the flaws we will do an ethnographic study on Saibanna V. State of Karnataka[1].

Ethnography is a study designed to explore cultural phenomena where the researcher observes society from the point of view of the subject of the study. In this particular study we are looking at the case of Saibanna and different players involved in this case such as lawyers, judges, reporters, activists etc. We want to do ethnographic study as we want to have human narratives as our major source of information on this case. We have decided to focus on Saibanna V. State of Karnataka because in this case the accused has already been sentenced to death by Supreme Court and his mercy petition has been rejected by the President of India. Subsequently, a Writ petition has been filed at the Karnataka High Court on the grounds of delay in rejecting the mercy petition. In the meanwhile the accused has already spent twenty years in custody. We want to record the narratives of people involved with the case at different stages to trace the trajectory of the cases through the lens of those closely involved with it.

 

[1] Appeal (crl.)  656 of 2004

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