Raju Solanki (2009)
One orphan: the minor girl
The story
The Moxi Rape Case
"Rameshbhai Vankar is my father. My mother’s name is Harkhaben. My
mother and father have been divorced. My mother has remarried at Khanpur
village. At the time of incident I was living with my grand father Vashrambhai
Vankar at Moxi village. I was living with my grandfather, my maternal uncle and
aunt. When the incident happened, I was studying in 8th standard.
The incident happened before two years. At that time, I was in my grand father’s
house. I was sleeping. It was about 9.30 to 9.45 p.m. My grand father was
sleeping in verandah and I was sleeping inside the house and doors were locked
with chain. As I was sleeping, two drunkard persons came inside. One of them
was Ramesh Bariya. He held my hand. Another was Ramesh Mohan Vankar. Ramesh
Vankar was living behind our house. And Ramesh Mohan was living in Navinagari
opposite our house. Then, both lifted me and carried away. I had locked the
door with chain, which was on verandah side. Our house has a door on rear side,
too. Both persons entered after cutting the cactus of fence. They carried me to
ravine across the nalivala road. The ravine was behind the high school of my
village. In the ravine both persons lifted me and dropped down....................
Ramesh Nanji raped me. .................... Then I was losing my consciousness.
Then, Ramesh Mohan ............... also raped me. ............ I was conscious
when Ramesh Mohan started raping me. Afterwards, I started losing
consciousness. Ramesh Nanji filled my mouth with poisonous beetle leaf. Then, I
did not know, what was happened. When I was in SSG hospital, I regained my
consciousness. I did not consent to the rape.
2. At the time of incident, my age was 13-14 years. At the time of incident
I was living with my grand father.
3. When I was in hospital, police arrived. I was kept in hospital for 3-4
days. I narrated facts of incident to police.
(21st September, 1998. Statement of victim given to police)
For a moment close your eyes. And forget this. A statement of Jaya Vankar,
a minor Dalit girl. Your mind would be flooded with those countless, horrible
testimonials of 2002 riot victims. Jaya or Zakia, question is not just of
fascism or fundamentalism, but of a stinking rot in various channels of a
system, administrative, legal and more importantly political.
The story of Jaya Vankar is though story of a tiny village Moxi, it
reflects agony and pain of all minor girls throughout Gujarat, a state boasting
to be economic power house not only of India, but, of Asia, too. On 16th
January, 2009 minister of state for railways, Mr. Naran Rathwa inaugurated a
factory at Moxi. The new factory is a joint venture of Bock Kaltemachinen GmbH,
a company of Germany with an annual turnover of around 56 million EUR. Moxi is
now on global map. Moxi will manufacture compressors for refrigerators and
air-conditioners, but, Gujarat can not be proud of Moxi. Because a tragic event,
which traumatized a girl before eleven years, has been demanding justice and
which has now culminated in to a full-fledged saga, where police,
administration and politicians have made mockery of law.
On 13th march, 1998 when the tired villagers turned to their
beds after hectic day of Dhulety a
festival of colours, two youths raped 13 years old Jaya at night 9.30 p.m. Her
grand father, Vashrambhai (70 yrs.) rushed to nearby Bhadarva police station,
but police denied to file first information report (FIR) and asked him to take
the girl to Vadodara hospital. Helpless Vashrambhai took his grand daughter in
a rikshaw and got her admitted in Sayajirao Hospital of Vadodara. Moxi is about
70 km. from Vadodara. The girl was bleeding and in a state of unconsciousness.
In hospital Dalit girl was not admitted in a gynaecological ward. She was
admitted in psychiatry ward as a mental patient. For three consecutive days
Jaya lied on bed. She was not treated. She was constantly bleeding. When the
head of psychiatric department Mr. Ganpat Vankar came and examined the girl, he
categorically said that it was a case of rape. He immediately transferred girl
to gynaecological ward. Had the doctor not taken initiative to send the girl to
gynaecological ward; she would have been buried under heap of ignominious and
torturous life of a mental hospital for rest of the years.
Why did police in the first instance, deny to lodge complain and then
hospital authorities refuse to admit the girl in gynaecological ward? Reason
was simple. The main accused, Ramesh Bariya, was cousin of local congress MLA.
Remember, in 1998 BJP was ruling Gujarat. For Dalits and deprived, it makes no
difference, whether Congress rules or BJP. Though the moment the tragedy
happened, activists of Dalit Panthers Subhash Palekar and Arvind Parmar rushed
to hospital and informed Mr. Valjibhai Patel, veteran Dalit Panther leader who
now, runs council for social justice. Mr. Patel on the same day immediately met
the girl in hospital and consoled her. That was moral boosting for her and
later, in her court statement she told that she gave names of accused, after Dalit
panther workers had met her.
Politics of rape
Caste is a major factor in any rape in India. Many a time the accused,
police officer and local influential politician all happen to be of same caste.
The caste-brotherhood plays vital role in shielding and protecting the accused,
and when the victim is Dalit, this poisonous nexus is revitalized and threatens
the victim with support of other caste-fellows. The letter written by the then
MLA (member of legislative assembly) Khumansinh Chauhan, a baria by caste, to
Bhadarva PSI Mr. Baria is glaring example of the nexus. The letter was written
on 14th march 1998. Mr. MLA writes, "The person coming with this letter, Virendra B. Solanki
is from Moxi. He is my staunch follower. Some time back I introduced him to
you. His fact is regarding atrocity case. I have understood it. So, I recommend
giving him required help after understanding the details as per his narration."
The incident was highlighted in newspapers next day, while Mr. Patel
submitted a memorandum to concerned police officer and then, filed a writ
petition in Gujarat High court. The court ordered police to register FIR.
Police arrested the accused and sent them to jail.
Now, the legal tragedy starts:
The investigation officer Deputy Superintendent of Police (DySP) Mr. D M
Nayak submitted charge sheet directly in session’s court. The provision of law
and numerous judgments of Supreme Court clearly indicate that the charge sheet
should be, first, submitted in lower court. Session’s court can not take
cognizance of crime directly. DySP simply forgot the law of land. And Above
all, whenever a charge sheet is filed in court for crimes under the Scheduled
Caste and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (hereinafter
it will be called Atrocities Act 1989) it is duty of concerned registrar of the
court to examine it and send it to special atrocity court. It is also duty of
main government advocate (director of prosecution) to examine the charge sheet
and appoint government pleader to prosecute the case. Neither court registrar,
nor director of prosecution drew attention of court. Instead of rejecting the
charge sheet, court registrar accepted it and even during the proceedings of
case in court, government pleader did not mention the lapse on the part of
police officer.
And look at the height of legal disaster! After nine years honourable
special Session’s court judge gives a typical order in the case. Testimonies
and cross-examination of witnesses are over. The main accused died. The case is
now in phase of judgment. The honourable court comes out from the legal amnesia
and declares that the charge sheet has been wrongly filed in session’s court.
On 30th may, 2007 Honorable Judge Mr. P R Patel orders:
"The office is directed to return the charge sheet,
relevant connected papers and muddamal articles to the investigating officer
viz. DySP SC/ST cell, Vadodara to present the same before the concerned
judicial magistrate, First Class for further proceeding in accordance with law.
The more tragic is that even after two years of the order of Session’s judge;
the DySP has, still, not filed charge sheet in lower court. Council for social
justice secretary has written a letter to concerned officers including,
principal secretary (home), principal secretary (legal), nodal officer and
principal secretary (social justice and empowerment) and director general of
police of Gujarat state.
The situation
The election campaign of BJP and its prime minister (permanently) in
waiting Mr. Advani, was centered on girl child and terrorism. "majbut neta, nirnayak sarkar" (strong leader, decisive government) was their
slogan. What is the situation of girl child in BJP’s one and only model state,
Gujarat?
When the State Health Department observed "Beti Bachao Abhiyan" (save girl child campaign) from October 14 to 20
2008, south Gujarat witnessed a series of rapes of minor girls.
- An eight-month-old baby was raped at Tankaria village in Bharuch on 12th October, 2008.
- The decomposed body of a minor girl, allegedly raped, was found a few days ago. The Tribal girl was suspected to have been raped and then murdered in a vacant bungalow of an NRI at Billimora taluka in Navsari district.
- In a third such incident, a five-year-old child of Vadod village, Pandesara, in Surat was raped by three youths on 12th oct.
- Again, a chocolate shop owner at Salabatpura in Surat tried to rape a three-year-old on 13th Oct. According to the police, a girl was playing outside her house in the slums at Navsari Bazaar when Pathan Hussain (45) lured her with chocolates. The accused took her inside the shop and tried to rape her. However, he released her when she began screaming.
Dalit girl sold for sex trade
On 23 November 2006, Mohabbatkhan Rasulkhan kidnapped Dalit girl Diva (name
changed). Diva (15) was studying in grade 7 at the government primary school in
Bavla town of Ahmedabad district, Gujarat. When Diva went missing her parents
immediately made a report at the Bavla Police Station.
It is reported that Diva was raped, assaulted and kept in forced
confinement and later sold for sex trade at different places for a year by the
accused. The first accused Mohabbatkhan (35) reportedly raped Diva and
assaulted her with a chain while Diva was kept in confinement. Diva faced this
ordeal for several months in Gedia village of Patdi Block, Surendranagar
district.
A neighbour coming to know about Diva’s condition informed the Hiyatkhan,
village head of Gedia. The neighbour is from Dafer community, a Muslim sub-sect
of the locality. Hiyatkhan (50), instead of saving Diva, raped her under forced
confinement for four days. He later sold Diva to Vilo Koli Patel of Jedhpura
village for Rs. 17,000 (USD 404). Vilo (30) raped Diva for three months in
forced confinement. One day Vilo sent the victim back to Hiyatkhan accusing
Diva of stealing his money. Hiyatkhan again sold Diva to Jignesh Mahendrabhai
Dave for Rs. 7,000 (USD 166) a few days later.
Jignesh, who lives in Jetapur village of Viramgam Block, Ahmedabad
district, also raped Diva. On 14 November 2007, a Dalit woman living in Bavla
town found the victim in Jetapur village and informed Diva’s parents, who
immediately informed the Bavla police about the incident and requested for
help. However, the police refused to accompany Diva’s parents to look for Diva.
They also requested the village head of Jetapur to help them to rescue their
daughter. The request was refused and they were asked to come with the police.
One month later, on 21 December 2007, the Bavla police along with the victim’s
parents came to Jetapur, rescued the victim and registered a complaint on the
following day. It is alleged that the accused bribed the police to
influence the investigation.
The FIR (No. I 256/07) against the accused was registered under Section 363
(punishment for kidnapping), 366 (Kidnapping, abducting or inducing woman to
compel her marriage etc), 376 (punishment for rape), 114 (abettor present when
offence is committed) of Indian Penal Code and the Section 3 (1) (xi) and (xii)
of the Atrocities Act 1989.
Name of alleged perpetrators Vilo Patel and Hiyatkhan were not mentioned as
accused in FIR registered by Bavla police. Under Section 376 of the Indian
Penal Code 1860, a public servant who has committed rape, shall be punished
with rigorous imprisonment, which is graver than other cases. Even worse, In
the FIR it is mentioned that the victim had known the accused Mohabbat Khan for
the past three months and she was promised by him that he would marry her.
The DySP (SC /ST), Mr. B.S. Pathan, responsible for investigation into this
case was off from work for one and half months while the perpetrators continued
to enjoy life even after committing grave crimes. No investigation into the
case has yet been conducted. Meanwhile, the Bavla police took the victim up to
the Bavla hospital for a medical check on 23 December 2007, which lasted for
two hours and in the absence of a female doctor. The victim was taken to
Ahmedabad civil hospital on the following day, where the victim was merely
given some medicine. The hospital authority did not provide appropriate
treatment or counselling to Diva.
As of now the victim suffers from physical and mental trauma, and can not
walk or move well. Moreover, the neglect of the police authority allows the
perpetrator Munna alias Mohabbatkhan Rasulkhan to threaten the victim even now.
The victim reportedly said, “I have seen Munna on his motorbike. Even after I
returned, he has threatened to kill me, if I say anything about him. The police
said they would take me to the places where these men had taken me, but did
nothing.
Girl raped in police station
Children also became victims of sexual assault in police custody. On 28
July 2005, a minor girl was allegedly raped by Sub-Inspector B N Chawda and
Assistant Sub-Inspector Raghuvirsinh Jadeja posted at the District Police
Headquarters at Bhuj. The victim was arrested along with three other girls and
a boy for alleged indecent behaviour on 27th July 2005. Hours after
their arrest, all but the victim were released. ASI Jadeja allegedly brought
the victim to his residence where he and Sub-Inspector B N Chawda allegedly
raped her. A preliminary medical examination on the victim reportedly confirmed
rape. Both the accused police officers were arrested following a complaint
filed by the victim.
These are not stray incidents. During 2005, Gujarat police personnel were
responsible for serious human rights violations including arbitrary arrest,
illegal detention and rape in custody. A total of 4,214 complaints against the
police were recorded by the National Crime Records Bureau (NCRB) of the
Government of India during 2005. Out of these, departmental inquiry was ordered
into 518 cases and judicial inquiries were ordered into 6 cases. 247 police
personnel were sent up for trial during the year. Of the 43 police personnel
whose case trials were completed, 31 were convicted and 12 acquitted.
Second orphan: The atrocity act
Do you know, in India, there are so many acts which were coded, drafted and
meticulously made by British, are, still being implemented with pious sanctity
and colonial sensitivity; and some laws, which have been made by Indians
themselves, are abused with criminal negligence? The atrocity act is such an
orphan act, which has been first stunted and then scuttled and now bonsai-ed to
beautify the great Indian museum of Jurisprudence.
The story of Jaya (Moxi) or Diva (Bavla) or tribal girls would have been
different, had they descended from so-called upper caste-class echelons of
Indian society. Read front page story of rape in any news paper. If the girl
were from upper caste/privileged/influential sections, the next day news papers
would immediately pick up the sentimental thread with melodramatic reporting in
eight column stories. If the girl were from Dalit or tribal family, the news
would not be given space as long as a funeral note. In former case for next
seven days, the story repeats with same thrill and hysteria, while in later
case nobody in media office would care to follow up. In former case the
pressure maintained by media and subsequently by so-called civil society,
compel government machinery to act with incredible efficiency, while in later
the impudent state machinery allows the wolves to scot free and intimidate and
torture the victims in the name of law itself. This is the stark and ugly face
of racism, the Indian brand!
In background of these harsh realities, any voice of dissent against
Atrocity Act is undoubtedly, an act of condoning and legitimizing the brutality
on Dalits. In saffronised Gujarat one would hardly surprise to see
Sachchidanand Swami, a religious saint or Gunvant Shah, a rabid communal
writer, raising cudgel against The Act. Since its inception Atrocity Act has been
facing two extremes, one, misuse of the act by upper caste people and second,
negligence of state machinery.
The recent survey done by Vaishali (Bihar) SP Shobha Ohatker is both
shocking and interesting in this regard. Following reports of misuse of the act
from different parts of the district, Ohatker conducted supervision and found
that about 70 per cent of the cases lodged under the act were false and lodged
at the behest of influential people of upper castes. She told the Times of
India that she had supervised about 35 such cases and almost all of them were
"concocted' and "false". In fact, the complainants were ignorant
of the crimes they had charged the accused to have perpetrated on them. On
being questioned, the SC/ST members said that they had been given money and
asked to simply "sign" on some papers which were later used to lodge
cases of atrocities. Alarmed at this practice, Ohatker has decided to launch a
campaign in the district to create awareness among the members of scheduled
castes and scheduled tribes against being manipulated by the influential
people.
Another accusation against the act is that it is a symbol of vote bank
politics. If we believe one article published in one blog ‘Dalit liberation’
created on net, the vote bank politics is certainly defeating the objectives of
the law, and this time danger is not from any upper caste politician, but from ‘Dalit
ki beti’ Mayavati herself. On 13th march, 2008 S R Darapuri, a
retired IPS, writes, during her previous stint as CM of UP, she (Mayavati) had
issued a written order in this regard but this time only oral orders have been
given during her first meeting with the police officers. Her previous order and
present oral dispensation is totally illegal and anti Dalit. On condition
of Dalits in UP, Darapuri further writes, During Mayawati's two months' present
rule hundreds of atrocity cases have taken place as is evinced from daily news
papers but hardly 1% of cases have been registered by police.
The most heinous crimes against members of SC/ST all over the country
during last fifty years compelled our political class to enact a specific law,
which was supposed to be a deterrent against the caste-vultures. It has been
provided in the Act that the investigation of the cases registered under the
act is to be done by a police officer not below the rank of Deputy
Superintendent of Police (DySP).
A double-edged saffron agenda was launched with demolition of Babari
mosque. One, to instigate Dalits, Tribals and OBCs against Muslims and two, to
annihilate legal, judiciary, administrative protection ensured by constitution
to Dalits, Tribals and OBCs. Much has been written on the former aspect, but
nothing has been come out on the later. Gujarat government has silently
implemented its well planned strategy to subjugate Dalits and Tribals. The
23-page confidential report of the social justice and empowerment department
(SJED) of Gujarat government submitted to state chief secretary and legal
department in year 2005 revealed a shocking conclusion: The rate of conviction
of cases under the prevention of atrocity act is in Gujarat is an appalling 2.5
percent, while the rate of acquittal is around 97.5. Gujarat is pioneer in many
things: Navnirman movement (1975), Anti-reservation agitation (1981), and
state-sponsored genocide of minorities (2002). Now, Gujarat has earned one more
distinction in maiming, defacing and disfiguring The Atrocities Act. In fact
the report of SJED was outcome of a valiant battle single-handedly fought by
Mr. Valjibhai Patel, who, fanatically chased more than 300 cases registered
under the act throughout Gujarat.
A Dalit or Tribal, after garnering little bit of strength, visits a police
station, at the first instance; he is demoralized by cold attitude of
policeman. Even after much pressure, if his application is taken, the FIR is
manipulated. What the victim says and what the police writer writes can be
different and contradictory. The illiterate Dalit does not know how to write or
narrate the incident or crime on paper. Even if the FIR is properly written,
the policeman simply forgets to take caste certificate of the victim.
Manu and his Brahminical ancestors have stigmatized Dalits with the most
derogatory words in the world and in every village every caste Hindu knows who
the Dalit is and how to abuse him. But, in the court of law Dalit (or
government!) has to prove that he is abused, because the perpetrator knows his
caste. And in the court caste certificate of Dalit has to be produced. If the
caste certificate is not produced, the charge is not proved. In Atrocity case
caste certificate is as important as knife in a murder case. The judge may pass
stricture in the strongest words, but accused simply laughs and is released.
In a shocking judgment, an Amreli court acquitted
rape accused under Atrocity Act. Read the order of Honourable judge:
The accused has been
charged for the offence under the Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) act. To establish the offence, the primary
responsibility to prove that the complainant-victim is the member of scheduled
caste community rests with the prosecution. Though the charge-sheet indicates
that the victim is a member of scheduled castes and scheduled tribes, it is
important to prove this fact. In the present case, the victim lady, her father,
her mother and the investigation officer have been examined by the prosecution.
However, at no stage, it is proved by the prosecution by way of cogent evidence
that the victim lady was a member of Scheduled castes and/or Scheduled Tribes
community.
Under the provisions of
section 3 and 3 (1) of the Scheduled Castes & Scheduled Tribes (Prevention
of Atrocities) Act, it is incumbent on the part of prosecution to prove that,
the accused against whom the offence is alleged, is not a member of Scheduled
castes of Scheduled tribes. No cogent and reliable evidence is produced by the
prosecution in this regard and therefore, in such circumstances, there is no other
alternative except to acquit the accused of the charges under section 3(1) (11)
(12) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities)
Act.
The accused Atul Devjibhai
Chahuan is hereby acquitted of the charges under section 3(1)(11) of the
Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act.
The accused Atul Devjibhai
Chauhan is hereby held guilty and convicted for the offence punishable section
363, 366 and 376 of the Indian Penal Code.
The Honorable judge can ask the prosecution to
produce the so-called cogent and reliable evidence in next hearing? But, judge
says, he has no other alternative except to acquit the accused of the charges
under section 3 (1) (11) (12) of the Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) Act. This is a serious lacuna in the Act and it must
be addressed.