(Excerpts from the special article by Bela Bhatia
in EPW, September 21, 2013 Vol XlVIII No. 38, Economic & Political Weekly)

...Wails and cries now rented the air, heavy with the acrid smell from the burnt houses. In the evening light, bodies lay strewn on the wet earth, which bore marks of hundreds of desperate footprints. Even as the men tried to brace themselves for the next task ahead, taking the wounded to the nearest hospital, the policemen from the police camp located just across a field in the middle school of Barki Kharaon finally made an appearance. When they asked the men of the tola to carry the bodies of the dead to the roadside, they met with stiff resistance. These protectors of law had turned a deaf ear and a blind eye to the happenings of that afternoon, now they could at least carry the dead, the people thought. With the help of the chowkidar, the police carried the bodies while the relatives carried the wounded. The laxity of the Bhojpur administration, both before and after the massacre, was an extension of the general apathy of the government machinery in Bihar. As in this case and many before it, one finds that the machinery is not only ill-equipped and ineffective but often works in an extremely biased manner. Initially, the district administration wanted the post-mortem to be done in a makeshift camp near the road itself, which the CPI(ML) activists resisted, fearing foul play. The bodies were then brought to the government hospital in Ara, where, ac- cording to eyewitness reports, they were literally dumped in a muddy open space. No attempt was made to cover the bodies, even of women, who lay maltreated in their death as they were in their life. As the relative of one of the victims said, “Marnai ke baad bhi garibo ki izzat-aabru ki kisi ko padi nahi hai” (Even after they die nobody is concerned about the respect and honour of the poor). The surgeon is reported to have taken many hours to come to the hospital from his home in Ara. CPI(ML) cadres in their anger broke a few chairs and other furniture in the hospital for which a case was lodged by the district administration against the two CPI(ML) MLAs, Ram Naresh Ram from Sahar and Rameshwar Prasad from Sandesh constituencies.

Of the five wounded, little Baby (barely nine months old with a fractured thigh) and Shailendra (16 months) were treated in the hospital at Ara while Radhika, Kusum and Saddam were rushed to Patna. Even though the quality of health services at Patna Medical College Hospital (PMCH) was reported to be marginally better than in Ara, it was far from ideal. If doctors were available, medicines were not, and so on. The general situation of the whole ward improved after the victims of the massacre moved there and the CPI(ML) drew the attention of the media to the pathetic state of the medical services; ceiling fans were installed, bedsheets were given to all patients and the quality of food improved. When I visited them, Radhika wore a stony look and talked only haltingly; a bullet was still embedded in her left shoulder. Saddam (born around the 1990 Gulf War and named after the Iraqi leader) had a deep horizontal cut on his neck, which was almost severed, making the insides visible. A nerve in the neck had been partially damaged, leaving a high probability of paralysis of his limbs. Lying prostrate on the hospital bed, Saddam showed the usual recalcitrance expected of a child of his age. Rarely quiet, he asked to be moved to a more comfort- able position, or for his mai (mother) or Deena chacha, a medically trained CPI(ML) cadre who was tending to him and who he obviously had grown very fond of, or for another round of “haitem” (his word for Horlicks). Running a high temperature and in a delirium, he mumbled the names of those who had attacked him – Deepwawalla, Belwa, Suberwa...( The reference here was to Manoj Singh (20 years old) and Santosh Singh (25 years old), sons of Deepan Singh, Bela Singh (25 years old) and Subaidar Singh, a retired jawan with a criminal record. In 2010, as they were being sentenced by the sessions court, the first three claimed to have been juveniles at the time of the massacre.) Another time, a barely audible “didi tera dewar diwana...” (a popular song from a Hindi Bollywood film) escaped his lips, a poignant reminder of the child that he was. Besides his bed, little Salma, in a bright yellow frock and a string of colourful beads around her neck, stood quietly looking at her brother. (Both Saddam and Baby, who were said to be out of danger in late July, succumbed to their injuries the next month.)

Even in a generous mood, it would be difficult not to find the high court judgment (henceforth HC-J) on the Bathani Tola case as anything but unconscionable. What the verdict does is to prepare the ground for the acquittal of the 23 found guilty by the sessions [lower] court (henceforth LC-J). It uses old tactics: overdrawing upon the weaknesses of the prosecution and discrepancies in witness accounts to discredit the investigation and garnered evidence as unreliable. Having effectively done away with the witnesses, it invokes case law to justify its decision. The high court judgment reveals a clear leaning in the direction of the accused. The closing observations of the judgment are an example of the predilection that marks the treatment of the case:

...the investigation was not fair in respect of the persons who perpetuated this ghastly crime . ...[it] was directed in a particular direction far from truth and not above suspicion. Truth was deliberately suppressed ...only to project an involvement of the accused persons, examined witnesses who were totally unreliable. Unfortunately, in this exercise, who actually perpetuated the crime, got away with it. ..... (emphasis added; HC-J: 56). On closer examination of the two judgments, it is clearly the HC-J that is guilty of the bias it attributes to the LC-J. Some of the main indications of this bias are as follows.

Prosecution and Investigation

The independence of the investigating agency is crucial to the affirmation of truth in any crime. In the Indian judicial process, however, the state has a monopoly over prosecution in criminal proceedings. In cases where the state is implicated the limitations of this arrangement have become apparent time and again because even though the prosecution is not a spokesperson for the state, its appointment by it, in effect, often renders them to become dummies of the state. In the Bathani Tola case, the state is implicated on two counts: one, because there were three police outposts within a distance of 1.5 km of the carnage site that included 30 police personnel who did not intervene even though the carnage continued for a few hours in daylight; second, as members of the Ranbeer Sena, the accused enjoyed the patronage that the Sena did – of powerful personalities who were part of or close to the state; there has been therefore an implicit interest in protecting the perpetrators in order to protect those who are part of the “long arm” of the crime. Affirmation of truth by a compromised prosecution, under such circumstances, is a challenge. As we can see from the basic facts of the case, its most prominent drawback is the inordinate delay in proceedings. Since the case had received much media attention at the time, some action by the official machinery was taken immediately: the officer in-charge of the police outpost of Barki Kharaon (Defence Witness 1) was suspended and a large number of the alleged accused were arrested soon after the crime. However, the police took almost two years to complete its investigations and submit the charge sheet. A long delay followed once the case was admitted in the sessions court. As the HC-J notes somewhat acerbically, “Prosecution...[took] virtually nine years to examine 13 witnesses.”(HC-J: 22) Another lapse worth noting is that notwithstanding directions from the court, the Test Identification Parade (TIP) of those arrested was not organised; while the investigation officer (IO) maintained that the people were not ready for the TIP, the prosecution witnesses said that they were never called (HC-J: 9). They were finally asked to identify the accused a decade after the occurrence when they were examined in court. Not surprisingly, many of the accused remained unidentified. Statements of witnesses too, when verified in court after a decade or so, registered discrepancies that had naturally crept in resulting in weakening their testimonies. Two witnesses and two accused also died in the intervening years. Despite structural drawbacks, foot dragging by the prosecution, and the chronic tardiness of the judicial process there was still something to go ahead with. The prosecution had an FIR based on a statement made by Kishun Choudhury, who lost his wife and two daughters that day. It had 13 witness statements, amongst whom were eyewitness accounts of Radhika, a survivor of a bullet injury, as well as of Paltan Ram who had witnessed the killing of his daughter Phool Kumari and Ramratia Devi, wife of Lalmuni Gorawat. Both Radhika and Paltan Ram had named the accused in their statements, held their ground during cross-examination, as well as identified them during the identification parade in court. The statement of another important witness, Naimuddin, was deemed inadmissible by the HC-J due to alleged discrepancies in successive versions. Immediately after the carnage, Naimuddin, who had lost five family members and whose six- year-old son lay battling for life, was in no condition to give a statement. Later, he gave two oral statements and a written one. Some additions were made to the first oral statement and this made his testimony suspect in the eyes of the high court judges. While the LC-J admitted his statement, the HC-J deemed it unreliable.

The Defence Case

The defence case rests on claiming false implication on three counts: one, that even though the Sahar police station was informed by the police personnel of the Barki Kharaon picket in writing late afternoon on the day of the carnage, on the basis of which a wireless message was transmitted to concerned officials in the district and many of them arrived on the scene, and although statements of eight persons were taken in the following hours, these were not admitted as fardbayan (information received by an individual); the fardbayan that was made the basis of the FIR was recorded in the early hours the following morning, 12 hours later, having “thoughtfully planned the accusation”. The “authenticity, correctness and reliability” of the FIR thus stood challenged (HC-J, pp 9-10). Second, the accused were arrested “like sitting ducks” soon after from the village and another location. Third, they were produced for remand in the chief judicial magistrate’s court after a delay of two days, and despite directions of the court, TIP was not arranged. Due to these lapses, the defence has maintained “false implication”. However, while the first two reasons could possibly lead one to the conclusion they reached, it is not clear how it follows from the third: if indeed the police, in connivance with the informant and relatives of the deceased, were keen to implicate the alleged accused falsely, would they not have taken the further step of clinching the matter through the TIP?

Doubts and Discrepancies

Those familiar with criminal proceedings know that legal professionals are not above misusing the largesse of the guiding principle that “charges against the accused should be proved beyond all reasonable doubt”. A common tactic that is deployed is to ask irrelevant questions during cross-examination. Emergent discrepancies on unimportant points are then used in casting a doubtful shadow on the veracity of pertinent details. Justice can thus be derailed quite innocuously. It is up to the wise judge not to fall in this trap, to sieve the relevant from the irrelevant, and weigh the importance of relevant discrepancies according to the circumstances of the case. Important doubts and discrepancies that the HC-J has brought up in the present case are with respect to the following:

Fardbayan and FIR

An FIR of a crime is important. The objective of such an FIR is to achieve justice. It should not become a tool to subvert justice – this is what the HC-J does. It makes too much of the 12-hour delay in recording the fardbayan. No consideration is given to the circumstance of the case, that it involved mob violence of a particularly macabre nature. Individuals who were expected to make statements had to do so when their houses were still burning, family members lay dead, and others needed to be taken to the hospital urgently. To expect coherence and accuracy of detail in such circumstances is unfair. Statements given under such conditions can at best be patchy. What is being suggested is that Kishun Choudhury, the informant, may have consulted other members of his organisation, the CPI(ML), in the intervening hours. Such consultation in the villages of Sahar block in the mid-1990s (without mobile phones) would have required a face-to-face meeting. Without convenient transport, on that rainy evening and the impenetrable darkness of night (in the absence of electricity), Kishun Choudhury, besides taking the time to collect himself considering that he had lost three members of his family, would at best have been able to talk things over with comrades of his village (many of whom like him had also lost family members) and a few others in nearby villages. And if he did so, can he be blamed? The high court judges have let themselves be overly concerned with the question – why was the initial written message by the picket personnel, Raghuraj Tiwary (Defence Witness 1) not treated as a fardbayan? We begin to better understand their motive when we learn that the Defence Witness 1 had maintained in his message that there was cross-firing. The insinuation and unsaid conclusion here is that this was the reason why the message was not admitted as a fardbayan. It is interesting to note that this detail was treated as a “fact” by HC-J even though there was no basis to do so; cross-firing was not mentioned by anyone else nor was there any other evidence of it (e g, fallen cartridges, confiscated ammunition, death or injury of any person from the other side). Even if we assume for a minute that there was indeed cross-firing, would the brutal murder of so many innocent women and children, including infants, be less of a crime? Importantly, nowhere in the HC-J do the judges ask – why did Defence Witness 1 not intervene in the conflict? His statement that he was outnumbered is taken at face value. Why? If the 30 or so police personnel had intervened would the assailants not have been discouraged? At the very least they would have become crucial eyewitnesses. Why should HC-J give so much importance to the statement of a person who abdicated his duty and was later suspended for it? Why was his statement deemed reliable – even in the absence of evidence – while the statements of the victims and their relatives were not? The HC-J then worries about other minor discrepancies such as the time in the morning when the fardbayan was recorded – while the IO maintains it was 4.30 am before the autopsies, Kishun Choudhury has maintained it was 6.30 am. Such questions of detail have been used to cast doubt on the authenticity of the FIR.

Unreliable Witnesses

The most shocking aspect of the high court bias is the treatment that is accorded to witnesses especially those who are survivors of the violence. Let us take three of the most important witness-statements for our scrutiny here. Radhika Devi (mentioned earlier), as an adult survivor of a bullet injury, was one of the most important witnesses. She has stated how she was shot at point-blank range by Bachcha Singh and also identified him as well as five others including Bela Singh and Dilip Singh. Her statement is also important because as someone who sought refuge in the house of Marwari Mallah (Choudhury) she was witness to what happened there. She was examined in court on 25 July 2001, and the sessions court had upheld the evidence provided by her as “truthful and reliable” (LC-J: 35). However, the high court casually dismissed her statement as unreliable after pointing to superficial gaps in the evidence. For instance, according to HC-J, an “important thing to be noted is though she alleges that her fingers were crushed to see whether she was alive, none of the injury reports show any injury on the fingers” (HC-J: 26). I leave it to the reader to decide whether finger injuries being left unmentioned in the medical examination of a person who has been shot at point-blank range is such an important lapse that the victim’s entire testimony should be dismissed. It would also be interesting to know how and why, according to the high court judges, the victim would invent such details. The above reference to the injury reports is itself mystifying because in a previous sentence in the same paragraph, the HC-J notes: “Curiously though she was treated at PMCH and discharged from there, not a chit of paper with regard to her treatment or the nature of injury found and treated at PMCH has been brought on record.” The HC-J also casts doubt on whether Radhika Devi was inside or outside Marwari Mallah’s house at the time of the carnage. This is a very important detail since if doubt can be created about her location then her claims about witnessing the killings that occurred inside the house can also be dismissed. In her examination, Radhika Devi states that “she was cutting mud from land adjacent to the Ahar [with two others]. She saw people coming from the side of the village Barki Kharaon firing and seeing that, she, along with others, ran into the house of Marwari Mallah.” Since she was pregnant, it is very unlikely that others who were also outside, including her mother who was working with her, and were running to seek refuge in Marwari Mallah’s house would not have ensured her safety.

Similarly, the HC-J does not waste much time over Paltan Ram (also mentioned earlier). While Radhika’s alleged drawback was that she was a disoriented woman, Paltan Ram’s was his age (about 60 years) and weak eyesight. The most important part of his statement, namely that “his daughter, Phul Kumari, ran out of his house when Ajay Singh shot her and Nagendra Singh cut her arms. Nagendra Singh also shot the mother of Satyendra Prasad [Ramratia Devi]” (HC-J: 30), is not given credence because the IO denies that Paltan Ram had mentioned this when he gave his statement, while Paltan Ram affirms that he did and also reiterated this at the time of cross-examination.

We find that what he stated is a bundle of lies. Police state that they had reached the village in the evening itself. He states that they had come in the next morning. Police state that there was no one in the village. He states that he was all along in the village. He admits that because of age he had weak eyesight and he had seen the miscreants for the first time on that day but still he was able to identify them and given graphic details from his hiding place of what was happening (HC-J: 31).

In other words, the police’s statements are taken at face value, but Paltan Ram is held to be a liar as soon as his statement conflicts with that of the police, ignoring the fact that Paltan Ram has no reason to lie while the police has good reasons to do so, considering its irresponsible behaviour in this incident. In fact, the HC-J chooses to believe the IO at times and disbelieve him at other times. On closer scrutiny, it is clear that they believe the IO whenever his assertions work in favour of the accused (e g, when he contradicts the statements of key witnesses), and disbelieve him when they do not (e g, on the fardbayan and FIR). As for Paltan Ram’s “weak eyesight”, there is no obvious reason why it would have prevented him to see what he did see, though it might have prevented him, say, to read. As for maintaining that Paltan Ram had said that he saw Ajay Singh and Nagendra Singh for “the first time” on that day, both are residents of Barki Kharaon, and Paltan Ram, as a member of the lower castes who have been living near their upper caste neighbours and working for them for many years, must not only know them but know them well. So here again, the HC-J casually dismisses a key witness, even though the LC-J had taken the view that Paltan Ram’s statement “... so far it relates to accused Ajay Singh and Nagendra Singh and deceased Phool Kumari and Ramratiya, has emerged truthful, reliable, intact and well corroborated by medical evidence. Therefore, statement ….to that extent is accepted” (LC-J: 52). There are other instances of inconsistent treatment of key testimonies in the high court judgment such as that of Naimuddin who lost six members of his family in the massacre. As with Radhika Devi and Paltan Ram, the high court dismisses Naimmudin’s crucial testimony by playing up alleged inconsistencies. The LC-J, however, had already acknowledged minor inconsistencies in Naimuddin’s testimonies and yet, unlike the high court, did not reject it:

“Naimuddin has made some inconsistent statement in respect of identi- fi cation of accused persons, but for these reasons alone the statement of PW11 Naimuddin cannot be brushed aside as his statement otherwise appears free of any infirmity, improvement and embellishment and was corroborated by [others]...therefore, evidence of PW11 appears truthful and reliable and so his statement is accepted (LC-J: 69).”

The Juvenile ‘Tragedy’

The only place in the 57-page HC-J where the judges invoke a sense of “tragedy” is while commenting on three accused, Manoj Singh, Bela Singh and Dilip Singh – who claimed to be juvenile when the crime occurred but had “... spent a long time in prison contrary to law because of insensitivity of the trial Judge on this issue” (HC-J: 46). The HC-J omits to mention that it is only in 2010, as they were about to be sentenced by the sessions court, that this claim of being juvenile was made – a claim that was immediately dismissed by the sessions court who maintained that there was “no substance in the claim” (LC-J: 99). The high court judges however mourn: “We, on our part, could only express regret and apology on behalf of this institution for this serious lapse” (HC-J: 46). In short, the high court judgment is shot through with biases and inconsistencies, all in favour of the accused. It raises deep questions not only about how the victims of Bathani Tola are supposed to get justice, but also about the integrity of the judicial system.

When Justice Falters

Justice for the Bathani Tola massacre victims was long in coming, and when it did, it came on a false note. What is public knowledge could not be proved in a court of law.

The Bathani Tola residents exercised restraint for many years. It must not have been easy for the survivors of the carnage and families of victims to live alongside those they know to be killers of their loved ones. The fact that “the court” was looking into the case however provided them some hope. Fighting for justice has made them even more vulnerable. We must not forget that in these regions, until recently (and to a large extent even now) just looking into the eyes of the malik while talking to him was held as audacious. Taking them to court is an unimaginable affront. Had justice been accorded judiciously it would have given strength to the victims, and worked as a deterrent. Many other lives could have been saved – lives that were lost in the interim as the Ranbeer Sena’s activities continued and many other “successful” massacres of the dalits and other oppressed groups in this region were perpetrated, especially against those who dared to rebel. The Bathani Tola residents were seeking justice, not revenge. In a region where private revenge is common, seeking justice through the custodians of the “rule of law” becomes an important step. It is a chance for a court of justice in a democracy to intervene and make pronouncements that become a warning to “the murderers of tomorrow”. When this does not happen, people, especially the poor and oppressed, begin to doubt the capacity of the court to uphold justice and may well feel constrained to take the law in their own hands. Where justice fails, vengeance prevails.