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Friday, September 14, 2012

Tales of two orphans

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.

1 comment:

  1. oh, this is simply horrible ! and total anarchy in this so-called democratic country. no law meant for protection of the weaker sections of society (like dalits, aadivasis, minorities, women, children et al) is implemented in letter and spirit. this is becoming a lawless land with complete chaos. no less than a total revolution can save this country.