The Bihar HC’s acquittal of all the accused in the Bathani Tola massacre case, overturning a lower court’s conviction of 23, has shocked and outraged people across the country. The acquittal has raised urgent questions about justice for the victims of the massacres of rural poor in the 1990s by the feudal landlord army, Ranveer Sena. In this booklet, we recall the social and political context of those massacres and the struggle for justice that followed. We also follow the trail of political complicity and patronage that has allowed the perpetrators to go free, and the continuing struggle for justice. This booklet is an urgent call for justice – justice against the perpetrators of feudal-communal massacres, and also justice for the people of Bathani Tola and Bihar, who defend their aspirations for an egalitarian and free society, defying the most brutal and barbaric attempts to make them relinquish their struggle.
SIXTEEN years ago 21 people – almost all of them women and children including infants – had been butchered in broad daylight in Bathani Tola in central Bihar’s Bhojpur district. That was when the country woke up to the existence of this obscure hamlet and the sordid reality of the Ranveer Sena, a feudal private army that went on to perpetrate a series of horrific massacres in the late 1990s, killing hundreds of people all over central Bihar.
That was the twentieth century and we are now into the second decade of a new century and new millennium. Bihar is now ruled by a government which claims to be delivering ‘development with justice’. The massacres have apparently stopped and in May 2010, the district court in Ara convicted 23 people for the massacre in Bathani Tola, awarding death penalty to three and life sentence to the rest.
At last justice was being delivered to the massacre victims of yesteryear, claimed the government and romped back to power with a bigger majority in November 2010. The oppressed and marginalised rural poor, rechristened mahadalits (dalits among dalits), ati pichhdas (most backward castes) and pasmanda Musalmans (backward Muslims), all reposed considerable faith in the new dispensation.
Two years later, in April 2012, all the 23 convicts have been acquitted by the Patna High Court leaving everybody to wonder who killed the hapless twenty-one in Bathani Tola on that fateful July 11 afternoon in 1996.
How are we to make sense of this High Court verdict? Is it just a case of judicial aberration? On the contrary, records tell us that this has rather been the norm in Bihar – those accused of massacring the rural poor have almost all got acquitted eventually even if some of them may have had to spend a few years in jail as under-trial prisoners. But then aren’t things supposed to have changed in Bihar? Is it not anachronistic to talk of any feudal bias in Nitish Kumar’s ‘changed’ Bihar?
Just as the July 1996 Bathani Tola massacre had served to underline the socio-political character of the Lalu regime, the April 2012 High Court verdict – call it a judicial massacre or Bathani Tola-II – holds a mirror to the dominant socio-political milieu in Nitish Kumar’s Bihar. While the Supreme Court must judicially review the High Court verdict and ensure legal justice for the Bathani Tola victims, political and social justice demands we must understand the context and implications of Bathani Tola and stand by the victims in their battle for dignity and democracy.
When Bathani Tola-I happened many thought it was just another caste massacre rooted in some land dispute. But contrary to this common wisdom, Bathani Tola was an explicitly political massacre carried out with the avowed aim of teaching the CPI(ML) supporters a lesson. It was a massacre perpetrated in broad daylight that targeted women and children, including pregnant women and infants, with a kind of barbarity seen only in genocides marked by the motto of ethnic cleansing. Women were targeted because they would give birth Naxalites, children were eliminated because they would otherwise grow into Naxalites.
Some people believe that private armies like the Ranveer Sena arose in Bihar only as a social reaction to the ‘excesses’ committed by the CPI(ML) in land and wage struggles. It is sought to be pointed out that Bhojpur or its neighbouring districts in central Bihar hardly have the kind of huge landholdings that one would usually associate with feudalism and hence the CPI(ML)’s entire theory and practice of anti-feudal struggle is rather misplaced.
The CPI(ML)’s history in Bhojpur and many other parts of Bihar clearly shows that while land and wages have been important issues, decisive battles often have been fought on questions of human dignity and political representation. This should not come as a surprise if we care to remember that feudal power is exercised and reproduced primarily through extra-economic coercion. Social oppression, various kinds and degrees of bondage and political exclusion have historically been the hallmarks of feudal domination the world over.
If we look at the history of the CPI(ML) movement in Bhojpur, we will see that the right to vote has been one of the most keenly contested issues. In fact, behind the very emergence of the CPI(ML) in Bhojpur was the Assembly election in 1967 in which Comrade Ramnaresh Ram contested as a CPI(M) candidate and he and all his close comrades were badly beaten up and harassed by the feudal lobby which could not stomach this ‘political audacity’ of the oppressed and the downtrodden.
Years later, in the 1989 Lok Sabha elections, when large numbers of dalits for the first time succeeded in exercising their franchise and electing Comrade Rameshwar Prasad as the first ‘Naxalite’ member of Parliament from Ara, a bloodbath ensued in Danwar-Bihta village just after the polling and as many as twenty-two persons had to pay with their lives the price for the right to vote.
Bathani Tola had a very similar backdrop. In the panchayat elections in 1978, Mohammad Yunus had become the ‘mukhiya’ (chief) of Kharaon panchayat in Sahar block much to the chagrin of the feudal-communal forces in the area. Under the leadership of this popular mukhiya, poor Muslims in and around Kharaon joined the CPI(ML) in large numbers. In 1995, the Sahar (SC) Assembly seat as well as the adjacent seat of Sandesh were won for the first time by the CPI(ML) and the victorious MLAs were none other than Comrades Ramnaresh Ram – the 1967 CPI(M) candidate was now a towering leader of the CPI(ML) in Bihar – and Rameshwar Prasad, the former Indian People’s Front MP from Ara.
The feudal lobby of Bhojpur became jittery and desperate. The Ranveer Sena was formed with the declared objective of wiping out the CPI(ML) from the soil of Bihar. A communal mobilisation began in Kharaon to deny the Muslim people their customary right to the Imambada and Karbala land. It was in the course of the struggle to defend their land and right that several Muslim families got evicted and had to relocate themselves in the predominantly dalit settlement of Bathani Tola in Kharaon panchayat. It was this united settlement of dalit and Muslim rural poor households that witnessed the macabre dance of death on July 11, 1996.
Massive protests ensued in Bihar following the massacre. One would have expected Lalu Prasad, the self-styled champion of the poor, the backward castes and Muslims in particular, to swing into action. But it took weeks of hunger strike by Comrade Rameshwar Prasad and the octogenarian CPI(ML) leader Comrade Taqi Rahim to make Lalu Prasad order a mere transfer of the DM of Bhojpur for his failure in stopping a massacre of this magnitude that went on for hours, with a police station being present at a distance of just two kilometres, and three police camps between 100 metres to 1 kilometres from the massacre site, without a single bullet being fired by the police. The Ranvir Sena was banned on paper but nobody was arrested and the list of massacres got longer with every passing year. In one of his most revealing political statements, Lalu Prasad announced in a public meeting in Bhojpur that to combat the CPI(ML) he was ready to unite with the devil!
No wonder Bathani Tola was soon followed by Laxmanpur Bathe. At the end of 1997 when the whole country was celebrating the eve of the New Year, the Ranveer Sena gunned down sixty-odd people in cold blood in Laxmanpur Bathe village of Jahanabad district. Bathani and Bathe, two obscure hamlets on two sides of the River Sone became prominent names in national news. KR Narayanan, the then President of India described the Bathe massacre as an act of ‘national shame’. Lalu Prasad was forced to set up a one-man Commission led by Justice Amir Das to probe the political and administrative patronage behind the Ranveer Sena. The commission however kept complaining that it was starved of necessary staff, powers and resources. Meanwhile, the Ranveer Sena got increasingly isolated and in 2002, the Sena supremo Brahmeswar Singh ‘surrendered’ to the state.
In November 2005 Bihar witnessed a change of guard and Nitish Kumar became the chief minister with the BJP’s support. One of the first steps the government took was to disband the Amir Das Commission. The BJP-JDU leaders and even a few leaders of the RJD and the Congress who had all been summoned by the Commission to depose before it heaved a huge sigh of relief. As the second term began, Brahmeswar Singh was granted bail. And now the High Court has acquitted the Bathani convicts while the fate of Bathe hangs in the balance. Nitish Kumar of course waxes eloquent about ‘development with justice’ and Bihar witnessing ‘waves of revolutionary change’ in his tenure.
Bihar has surely changed. From the Jagannath Mishras and Bindeshwari Dubeys of yesteryear, power has passed on to the likes of Lalu Prasad and Nitish Kumar. Yet Bathani-I and Bathani-II clearly tells us that this power remains as feudal as ever. Nitish Kumar is in an explicit alliance with the BJP, the most organised representative of the feudal-communal lobby in Bihar. Even Lalu Prasad for all his rhetoric against upper-caste domination always went out of his way to appease the feudal forces especially vis-à-vis the rural poor and the CPI(ML). It is not an aberration that the report of the Land Reform commission gets dumped. That the Amir Das Commission gets disbanded before it can produce its report. That the Bathani convicts get acquitted and a mastermind of dozens of heinous massacres is out on bail.
Real change in Bihar does not lie in the changing caste complexion of the rulers. Real change does not lie in the changing political rhetoric of the rulers – whether Lalu Prasad’s slogan ‘social justice’ or Nitish Kumar’s gospel of ‘good governance’. Real change does not lie in the gloss of globalisation and corporatisation added to the semi-feudal political economy of Bihar resulting in spectacular statistical growth on paper.
Real change lies in the tenacity and courage and determination with which Bathani and Bathe fight back for their justice, their dignity and their democracy. Yes, justice, dignity and democracy are not class-neutral words, and are certainly not monopolies of the rich and the powerful. In the wake of the Arwal massacre in April 1986, when Jallianwala Bagh was re-enacted in Congress-ruled Bihar, Comrade Vinod Mishra had written, “when the unceremonious death of the poorest among the peasants in the unknown, unheard of, dingy, mud-tracked, tiny country-town of Arwal begins to shape the political crisis of the powers that be in Bihar, one can safely proclaim that the heroes have finally arrived on the stage.” Regardless of court verdicts, Arwal, Bathani and Bathe refuse to fade away and continue to pump fresh energy into the battle for justice and democracy in Bihar.
In 1974 Bihar challenged the budding autocracy in Delhi with the dreams and aspirations of the youth. When Lalu Prasad’s reign of ‘social justice’ degenerated into scams and massacres, Bihar fought back saying social transformation was a must for social justice. Today when Nitish Kumar’s slogan of ‘development with justice’ is fast turning into ‘injustice with loot’, and ‘good governance’ is giving way to unfettered police raj, every dreamer and defender of democracy must stand by the victims of Bathani Tola to take Bihar forward, upholding the banner of justice and real transformation.
ON 11 July 1996, a private army of upper caste landlords (Ranveer Sena) brutally massacred people 21 (11 women; five girls below 10 years; four boys below 8 years; and one man) in the hamlet of Bathani Tola of Bhojpur (Bihar), most of whom were dalit and Muslim landless poor. The massacre began at 2 in the afternoon, and for the next three hours, assailants from the neighbouring Badki Khadanv village set fire to huts, slashed at women and children with swords, and fired shots. There was a police station a mere 100 metres away, and 3 other police camps about 1-2 kms away in different directions. But no police interrupted the dance of death, and Bathani Tola was left to defend itself.
An Ara sessions court in 2010 convicted 23 for the massacre, sentencing 3 to death and 20 to life. And in April 2012, the Bihar High Court acquitted all 23. The Nitish Kumar-led Bihar State Government has announced that it will challenge the acquittal in the Supreme Court. But its real intentions behind this formal posture can be gauged by the comments of one of its Ministers Giriraj Singh, who has opined that the “Bathani Tola massacre case should be nipped in the bud. The issue should not be discussed any more as it could vitiate the atmosphere.” Yet again, this episode illustrates the pro-feudal foundations of the Nitish Government that underlie its pro-poor posturing and rhetoric of ‘Justice with Development.’
Nayeemuddin Ansari, one of the survivors and key witnesses, who lost 6 women and children of his family in the carnage, asks, “Who killed 21 people that afternoon, if it wasn’t those we named in the FIR?” Nayeemuddin, Srikishun Choudhury, Radhika Devi, Marwari Choudhury, Lal Chand Choudhury, and other survivors, ask: “Who will take responsibility for our lives, now that all those we gave evidence against are free?”
But the answer to those questions is one that feudal-communal forces and their political patrons seek to suppress and erase from history. But the survivors of Bathani Tola are not just victims – they were, and are, fighters, who refuse to be defeated or silenced. The memorial to the martyrs of Bathani Tola will not allow those 21 innocents to be forgotten – and the quest for justice for those 21 will continue.
So, who killed 21 at Bathani Tola and why?
(The Hindu, April 25, editorial)
The acquittal of 23 people convicted by a lower court in the gruesome Bathani Tola massacre case is a shocking indictment of the country's criminal justice system. …
Whether the Court was correct in dismissing all the eight private or independent eyewitnesses as unreliable — the conviction by the sessions court was based on the testimony of two of them — is bound to be called into question. Its disbelief that some of these witnesses could have hidden in close proximity to the village and watched the massacre — on the ground that the bloodthirsty mob would have found and liquidated them — is at best a questionable conjecture. What is certain, though, is that justice has been denied and that it will be a travesty if the perpetrators of this massacre are allowed to get away. The Bihar government, which has said it will appeal the judgment, must prepare the strongest possible case. While it is finally up to the courts to decide on guilt and innocence, the tragedy of Bathani Tola exposes the elitist biases of the country's media, which has paid scant attention to this miscarriage of justice. When the combination of a shoddy investigation and hostile witnesses led to all nine accused being acquitted in the high-profile Jessica Lal murder case a few years ago, it was the spirited campaign by the media that resulted in the Delhi High Court taking suo moto notice of the acquittal and reopening the case. It is important that we do not allow our attention to be diverted and justice to be subverted in this case merely because the victims were poor and landless Dalits living in a remote village in the Bihar hinterland.
Deccan Herald April 21, 2012
The quest for justice in a massacre in Bathani Tola village in Bihar in 1996 has suffered a grievous setback with the Patna high court reversing a lower court verdict. The high court has acquitted all 23 people who were convicted by a sessions court earlier.
... Witnesses of the massacre identified the perpetrators. Yet it took the police four years to prepare a chargesheet against the 63 that were named. It took another ten years before the sessions court delivered the verdict. The Patna court’s ruling overturning the earlier judgment means that the 23 will now walk free.... the fact that so many people convicted for one of the worst massacres against Dalits in India’s recent history went free shows how tenuous and tortuous the Dalit quest for justice is.
Bathani Tola was not alone in its suffering or grief. Ranvir Sena, a militia of uppercaste Rajputs and Bhumihar, wreaked havoc in several Dalit and Muslim villages in Bihar in the 1995-2002 period. ... The fact that Ranvir Sena chief Brahmeshwar Singh ‘Mukhiya’ has not been convicted still – he has been acquitted in 16 out of the 22 cases against him and granted bail in six other cases – stands testimony to the influence the Ranvir Sena continues to wield in Bihar.
April 20, 2012, Northern Voices Online
Nayeemuddin living in Arrah, sixty kilometers west of Patna is stunned. Five of his family members were butchered sixteen years back by the dreaded Ranvir Sena. He got to know on Monday that Patna High Court has acquitted all the convicted in this case.
The ‘Shaheed Smarak’ at Bahani Tola reminds that sixteen others were also massacred on that day at the same place by the same killers. But by the ruling of High Court, no one is guilty today. …
Only one political party Communist Party of India (Marxist-Leninist) is visible protesting over this acquittal. It blocked the Ara-Patna road to protest over the investigation process which resulted into the acquittal. Ashok Singh, an official of the CPI (ML) has announced that his party would challenge this verdict in the apex court.
BATHANI TOLA (BHOJPUR), April 19, 2012
It was a July afternoon in 1996, and it took the marauding mobs less than a couple of hours to execute the massacre that took 21 lives. Among the dead were 11 women, six children and three infants.
With that, Bathani Tola, an unsung hamlet in central Bihar, shot to fame as one of the many sites where the fearsome Ranbir Sena had left its bloody mark. Last week, the village was once more in the news, with the Patna High Court acquitting 23 men convicted of the gruesome murders.
Bathani Tola was not the first, and would not be the last, in a series of atrocities committed through the 1980s and 1990s by the Sena, a powerful caste army of Bhumihars and Rajputs. Its victims were always landless labourers (Dalits in most cases), who, though poor and impoverished, had begun to get radicalised in the backdrop of the Naxal movement taking root in the State.
“We heard their howls of agony, but simply could not find the courage to come out,” recounts Naimuddin Ansari, one of the prime witnesses who lost six family members in the carnage. “The Sena men encircled our hovels, drew out the victims and slaughtered them,” recounts Sri Kishun Chaudhary, who lodged an FIR against 33 persons the day after the massacre.
Among those named was Brahmeshwar Singh — the infamous Mukhiya and founder of the Ranbir Sena — who is said to have overseen the Bathani killings as well as the caste massacres that followed in Laxmanpur Bathe and Shankarbigha (81 Dalits were killed in the two villages). Fourteen years after the bloodbath in Bathani, the Ara sessions court sentenced three persons to death and awarded life sentence to another 20.
The acquittal of the same men by the High Court has come as a shock to Bathani's residents. The court might have had its reasons — it cited “defective evidence” — for overturning the convictions, but the villagers are inconsolable and recollect every detail of the horror that visited them, including the fact that the Sena men killed women and children by design, not because they came in their way.
“This government [the Nitish Kumar-led NDA] has sold out to the rich and influential. It is now up to the Party [the Communist Party of India (Marxist -Leninist)] to decide the next course of action,” says Mr. Chaudhary, fatigued and bitter from years of fighting the case.
Naimuddin too looks dejected and defeated. A bangle-seller at the time of the carnage, he lost his three-month-old daughter to the aggressors. She had not even been named, when she was killed, he reminisces, adding, “Baby,” as she was called, “was tossed in the air and thrust down the blade of a sword.”
“My seven-year-old son Saddam saw it. They all saw it,” cries Naimuddin. One half of Saddam's face had been mutilated by sword lacerations when Naimuddin finally reached the spot after the Sena men had dispersed.
“As I picked him up, he [Saddam] said, ‘Abba save my life!' It was then that I realised they had cut his spinal cord.” The child died within a week at the Patna Medical College and Hospital.
A Sena sympathiser, who spoke to this correspondent, justified the “reactionary mobilisation” of the upper castes against “those Naxals.” “The land is ours. The crops belong to us. They [the labourers] did not want to work, and moreover, hampered our efforts by burning our machines and imposing economic blockades. So, they had it coming.” Not surprisingly, there is panic in Bathani over the release of the Sena men. ...
Naimuddin and others have one question for visitors: if those named in the FIR are not the killers, who killed the 21 residents of Bathani Tola?
(Shoumojit Banerjee, The Hindu)
HOWEVER, only by reason that he could not identity some of the accused in dock, the whole statement of Sri Kishun Choudhary cannot be brushed aside...the evidence of this witness (identifying several of the accused, and corroborated by the evidence of other witnesses – ed/-) appears truthful and reliable.
… As such it is obvious that no material and substantial embellishment has been made by ...Radhika Devi in her statement wherein she has given consistent version in regard to the manner of accused Baccha Singh and accused Manoj Singh in which they had dealt with her and the daughter of Naim. Therefore, evidence of Radhika Devi appears truthful and reliable and is accepted. (Radhika Devi, an agricultural labourer, and her mother were working in the fields when they saw the assailants. She testified that she had hidden under a bedstead in Marwari Choudhary’s house, where the assailants broke into the house, dragged out wives of Dimangal and Sri Kishun Choudhary from under the bed and slaughtered them. Radhika and her mother Malti continued to hide under the bed, keeping Naim’s baby daughter with them. Baccha Singh cajoled Radhika out, promising not to kill her. When she came out, she saw Manoj Singh throw the 2 month-old baby of Naim in the air and cut her with a ‘daab’ (sword). Baccha Singh fired at her chest, and when she fell, crushed her fingers with tiles to make sure she was dead. She is one of the key witnesses who identified several of the accused. A doctor of the Sadar Hospital testified to having treated Radhika Devi for a deep wound in her chest and respiratory distress, and that the post-mortem of Naim’s baby revealed injuries and cause of death consistent with Radhika Devi’s eyewitness account of her death. – ed/- )
… the statement of this witness Paltan Ram to the extent that he saw that when his daughter (10-year-old – ed/-) Phool Kumari ran out from the house, accused Ajay Singh fired shot at her and accused Nagendra Singh had fired shot at Ram Ratiya Devi … has emerged intact and unshaken and is well supported and corroborated by Dr Arjun Prasad (the doctor who testified to the post mortem of Phool Kumari and Ram Ratiya Devi – ed/-).
… It is obvious that witness Naimuddin had occasion to see the miscreants from very close distance of 20 to 25 yards. It is also obvious that this witness has given a correct sequence of the occurrence...It is obvious that Naimuddin has made some inconsistent statement in respect of identification of accused persons, but for these reasons alone (his) statement cannot be brushed aside as (it) otherwise appears to be free from any infirmity, improvement and embellishment and well corroborated by (other prosecution witnesses). Therefore the evidence of Naimuddin appears truthful and reliable …
... Prosecution witnesses Imam Hussain @Imamuddin and Radhika Devi have given flawless evidence and so identification done by them appears beyond doubt.
On point of sentence (12.5.2010)... Today an application on behalf of convicted accused Manoj Singh, Bela Singh, Dilip Singh and Santosh Singh to the effect that at the time of the occurrence they were minor as they have disclosed in the statement recorded under section 313 Cr.PC hence application to be kept on record and matter to be heard. On this point … I have found no substance in the claim...as this plea has been taken when the accused persons have been found guilty and the case is fixed for hearing on the point of sentence while prior to it twelve long years has elapsed in trial of the case, but on no point of time this plea has been taken on behalf of these accused persons.
It is obvious that all the accused persons along with their companions had come to Bathani Tola with the sole purpose of committing massacre and so they had killed the children and the women 18 in number ranging from the age of 3 months to 35 years. Therefore in the facts and circumstances of the case as appeared in the evidence of PWs, the present case falls in the category of rarest of the rare case. It is evident that there is specific evidence on record that accused no.1 Ajay Singh had killed 10-year-old girl Phool Kumari, while accused Manoj Singh had killed 3 months old daughter of Naim and accused no 3 Nagendra Singh@ Narendra Singh had killed two women Sanjharo Devi and Ram Ratia Devi besides cutting hands of Phool Kumari, a ten year old girl. Similarly there is specific evidence against the accused Baccha Singh @ Hare Krishna Singh that he had inflicted fire arm injury on the chest of Radhika Devi who survived injuries … In such circumstances accused no. 1-3 namely Ajay Singh, Manoj Singh, and Nagendra Singh @Narendra Singh appears liable to be sentenced with capital punishment...while accused Baccha Singh is sentenced to undergo imprisonment for life under Section 307 IPC and further accused Baccha Singh, Hare Ram Singh, Akshaibar Singh, Kanhaiyya Singh, Dilip Singh, Sanjay Singh, Ashok Singh, Muna Singh, Degree Singh, Santosh Singh, Kamlesh Singh, Subedar Singh, Bela Singh, Madho Maur, Mahendra Maur, Sri Bhagwan Maur, Bharat Maur, Jhaman @ Venkatesh Maur, Ram Pujan Ojha, and Mangal Rai are sentenced to undergo imprisonment for life under Section 302/149 IPC.
Ajay Kumar Srivastava,
Addl. District @ Sessions Judge I,
Bhojpur, Arrah
THIS prime prosecution witness (the IO) has been cross examined at length by defence and interesting facet comes out on this initial aspect of the matter. He admits that in the afternoon of 11.07.1996, he, along with Sadar SDO, was at Narhi village about 6 kilometers from Sahar PS on law and order duty by his jeep. While he was at Narhi village wih Sadar SDO at about 4 pm on 11.07.1996 on his wireless, he received information from Sahar PS about the carnage at Bathani Tola. The wireless message was transmitted to all police officials including senior police officials of the district. He admits that the said information was clearly information about cognizable offence. He admits that there was a police picket of Bihar Military Police established at Barki Kharaon for last 6 to 8 months of which Raghuraj Tiwary (DW 1) was the Incharge. He admits that it was first Raghuraj Tiwary (DW 1) who had sent a written information with Choukidar Nirmal Yadav (DW 2) about the carnage to the Sahar PS on basis of which wireless message was transmitted. He admits that on basis of the said written information, neither any case was registered at PS nor was it preserved nor was the contents thereof mentioned in the case diary nor he had cared to read the same. On receiving the wireless information, he immediately proceeded to Bathani Tola. He first came to Khaira village at about 5 pm where he met Dy SP, Piro, Sub Inspector of Police, Agiaon and armed police group and they all proceeded to Bathani Tola in a tractor inasmuch as because of incessant rain, they could not move in their official jeep. He admits that he reached Bathani Tola at about 5.45 to 6 pm on 11.07.1996.
We then have Nirmal Yadav as DW 2. He was the village Chowkidar of Barki Kharaon. He states that at about 2.30 pm when firing started, Raghuraj Tiwary (DW 1) gave him a written report to be immediately given to Sahar PS. He immediately left for Sahar PS and delivered the same. It may be noticed that it is this message upon receipt whereof from Sahar PS, wireless message was flashed all over the district but neither this message nor the wireless message has been brought on record by the prosecution. He makes one startling revelation. Even though there was hundreds of rounds fired from both sides for over half an hour, not a single cartridge was seized by the police. We may note that no weapons, firearms have been seized and proved to be weapons or arms used in the massacre. Prosecution has failed to explain why these two, i.e, DWs 1 and 2 were not examined as prosecution witness though shown as chargesheet witness. They have failed to explain why the initial report of DW 1 or the wireless message based thereon were never brought on record or proved in Court.
From the above sequence of events coming from the four witnesses aforesaid, it is apparent that the story, as propounded by the prosecution, appears to be far from truth. There was a carnage in which about 20 people lost their lives. They were brutally massacred but what actually happened has not been truthfully and correctly recorded. The information, first received, was never brought by the prosecution to Court. The Fardbayan is obviously some thing prepared much later with clear interpolation with regard to time of its recording.
What were the DM, the SP and other senior officers doing at the site during whole night is not explained. The administration was evacuating injured without recording their statements. The dead bodies were left lying unattended for the whole night without explanation. Though the Fardbayan is said to have been recorded at 4.30 am on 12.07.1996, when was the FIR registered is not known. The FIR is said to have been dispatched to Court on 13.07.1996 but reaches the CJM, Ara only on 14.07.1996.
(Radhika Devi’s) statement first recorded is of some importance because subsequently in Court when she is examined as PW 4, she gives graphic details placing herself inside the house of Marwari Choudary (PW 6) and seeing the slaughtering all around her in the house. For the present, this statement and the injury report would show that she was available to the authorities and the police right through the night but no effort was made to record her statement immediately.
(Dr Rohit Ram Kanojia) has proved some of the injury reports including that of Radhika Devi (PW 4) where he has reserved opinion as to the nature and cause of injury while referring her to PMCH. State has not brought any evidence of treatment or injury report of the said Radhika Devi (PW 4) from PMCH.
Curiously though she (Radhika Devi) 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. … Another 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. She admits that there was no charring mark on her blouse though her skin on her chest was burnt by gun fire. ... In our opinion, considering that, how and where she was injured not having been established, her presence in the house of Marwari Choudhary itself being doubted because of her contradictory statements, she is totally unreliable witness.
(The IO) admits that on the place of occurrence, he did not find any jungle, bushes or ditches which have obvious reference to the various hiding places witnesses have disclosed. So much for investigation of such a carnage is the deposition on behalf of prosecution.
Upon analysis of this deposition of the IO (PW 13), though the carnage stands established, it is crystal clear that information of cognizable offence written and oral were received by the police right from 4.30 pm on the date of occurrence itself but all those were kept out of record. Police personnel, high officials of the Government had reached the place of occurrence within about four hours but no statements were being recorded till the Fardbayan of the informant next morning giving enough time to the people to meet, discuss, plan out the story. Defence has rightly argued that prosecution has deliberately concealed the first information allowing time for story to be built up which discredits the correctness of the involvement of the appellants. Why this concealment was done is not explained.
All we can say in this regard is that the prosecution was being given time to come up with story as the earliest versions were some how not palatable. The Court would, in such circumstances, not only reject the accusation but would draw adverse inference also in relation to the investigation.
At this stage, it may be pertinent to point out that so many people were killed, hundreds of rounds of gunshot fired but not a single cartridge shell seized. Even the licensed rifles and guns seized from the alleged accused were never tested for their use. Accused persons were all arrested as virtually sitting ducks from their houses or from a lodge. These are serious matters especially when we see how mercilessly people were killed. All we can say is thanks to the investigating agency and the administration the true culprits have escaped gauntlet.
Now we may come to the three defence witnesses. We may notice that all these defence witnesses were in fact cited in the chargesheet as prosecution witnesses. They were important witnesses but without any explanation, prosecution failed to examine them. Raghuraj Tiwary, the Officer-in-charge, Police Camp at Barki Kharaon has been examined as DW 1. Nirmal Choudhary, the village Chaukidar of Barki Kharaon has been examined as DW 2 and Sheonath Yadav as DW 3 who was also a village Chaukidar. They were the first persons to witness the occurrence and gave report thereof.
Each of these juveniles (Manoj Singh, Dilip Singh, Bela Singh, who had been convicted by the trial Court – ed/-) in conflict with law has spent a long time in prison contrary to law because of insensitivity of the trial Judge on this issue. We, on our part, could only express regret and apology on behalf of this institution for this serious lapse.
We must first record that considering the nature and the manner in which the offence is said to have been committed of which we have no doubt and which has virtually not been challenged by the defence, the extreme punishment of death for the barbaric act was fully called for but the question is who perpetuated (sic) the crime.
Reliance was placed by the prosecution on the evidence of Radhika Devi (PW 4) said to be an injured witness who was allegedly in the house of Marwari Choudhary (PW 6) and saw a good part of the barbaric incident where, in the house itself, about 18 people including infants of the age of three months were slaughtered. We have noted her evidence and once again we would reiterate that she has rendered herself totally unreliable by her shifting stands. She virtually feigned ignorance to her statement recorded at PMCH which is Exhibit A at 10.30 am on 12.07.1996. In her statement (Exhibit A), she does not even mention that she was in the house of Marwari Choudhary (PW 6) which she later claims in her deposition. She is contradicted by the IO (PW 13) in his cross-examination on this issue. She claims to have received a bullet injury on her chest fired from 3 feet away. Her fingers crushed. She survived to see the entire episode in the house but unfortunately her injury report and her treatment at PMCH were never brought on record to establish the alleged injuries. The informant in the Court does not name her as one of the injured persons whom he saw in the house of Marwari Choudhary (PW 6) when he returned to the house. For these reasons, we have declined to rely upon her evidence.
In the present case, we find it quite conflicting that the allegation and the act are such that the miscreants had come to eliminate everyone in the village. After killing, they set fire to the houses. How could they did not bother to look for people in hiding in close vicinity of the village itself ? The witnesses and the accused are neighbours and of neighbouring Tola. They would not be exposing their identity in broad day light giving people opportunity to identify them. Some prosecution witnesses say they hid in a ditch. IO (PW 13) says no ditch was shown nor was it there which could show a hiding place. ...Some witnesses are said to have hidden in bushes like jungle but on objective finding of the IO (PW 13), there was no such place. People, who were intent to liquidate everybody, naturally would have seen that there were no male members, they would have searched for male members who were all hiding in very close proximity to the village itself. This is unnatural for the prosecution witnesses. Because of these reasons, we have found the identifications made by the prosecution witnesses not worthy of reliance for the purposes of this extreme punishment of either death or life imprisonment.
The prosecution was unable to explain why the first written statement of the incident sent by DW 1, Incharge of the police picket at Barki Kharaon, was not registered as an FIR and not even brought on record rather DW 1 was immediately suspended. The defence has submitted, with some vehemence, that this written statement was an unpalatable truth for the administration/prosecution.
Thus, having considered the entire material, we regret that though such a ghastly incident took place where over 20 people, only one of them being a man, were brutally slaughtered, infant of three months not left alive, the investigation was not fair in respect of the persons who perpetuated this ghastly crime. Apparently, investigation was directed in a particular direction far from truth and not above suspicion. Truth was deliberately suppressed by the investigating agency and the prosecution, 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. People suffered, their families obliterated with no solace as to the punishment to the perpetuators. Thanks to the misguided investigation and prosecution. We say no more.
Justice Navneeti Prasad Singh
Ashwani Kumar Singh
