In August 2008, the death of the Hindu preacher Lakshmananda Saraswatiwas and four of his disciples, in the Kandhamal district in Odisha, became the flashpoint for a communal attack that resulted in the deaths of nearly 40 people. Though the government announced that it suspected the involvement of Maoist rebels in the preacher’s death, in the subsequent days, Hindu mobs launched attacks on the Dalit Christian and Adivasi communities residing in the region. The attackers ransacked over 600 villages, and looted and burnt nearly 5,600 homes. Nearly 56,000 people were left homeless, close to half of whom continue to be displaced. During the violence, nearly 2,000 people were forced to renounce their Christian faith. In their book Kandhamal: Introspection of Initiative for Justice 2007-2015, the lawyers and researchers Vrinda Grover and Saumya Uma examine the nature of the violence and the judicial processes that followed, such as the reports of the commissions of inquiry, the investigations and verdicts in the cases registered against the attackers, and the rehabilitation that the victims were able to access. “Nine years later… justice eludes the victims, their families and the targeted Christian community,” the authors note. “Fear and insecurity haunts their daily existence, and their religious identity continues to erode their equal right to exercise of citizenship.”
In the following extract from the book, the authors recount a fast-track court’s observations while convicting the former Bharatiya Janata Party member of legislative assembly from Odisha Manoj Pradhan, who was the main accused in the killing of Parikhita Digal, a Christian man, on 27 August 2008. Pradhan was named in at least eight other cases of rioting and murder, and was convicted in a second murder case. Though the BJP leader was later granted bail, the authors note that the fast-track court’s judgment is particularly important since it bucked the trend of acquittals that is otherwise common to incidents of communal violence. “A verdict of conviction is pronounced only where the trial Court identifies and appreciates the specific contours of communal and targeted violence, in which the crimes are committed,” the authors note. The judgment is also critical, they add, because it notes that “the RSS and other affiliated Hindu right wing organisations were mobilized and it was their members who led the violent attack against the Christian community. The witness testimonies point towards a planned and premeditated targeted attack on the lives and property of the Christian community, in Kandhamal.”
The main prosecution witness in this case is the wife of the deceased. It is on her statement that the FIR was lodged by the police. She deposed before the court that after the assassination of Swami Lakshmananda on 23 August 2008, members of the RSS began indulging in violence within the locality. They set fire to the houses of Christians and some Christians were brutally assaulted by the mob. Due to this, her family and other members of the Christian community were fearful and terrified. Further she states that on 25 August 2008, rioters belonging to the Hindu community burnt houses of Christians, including her house in the village.
Terrorised by the targeted killing of three men of the Christian community and with their house charred, she along with her husband and two minor daughters aged about 6 and 3 years, fled their home and hid in the forest to save their lives. It was while fleeing on a bicycle at about 2 pm to 3 pm that the two accused, along with others, obstructed their path. The few household articles that the deceased and his wife, were carrying were thrown and broken. Through the mobile phone the two accused summoned other villagers to join the murderous mob.
In no time about 100 persons from the village of Tiangia Budepipada arrived and assaulted her husband with deadly weapons, including axes. The mob dragged her husband and assaulted him. He sustained severe injuries and fell down on the spot. The mob then covered him with firewood and set him on fire. The wife of the deceased in her testimony specifically mentions that she saw accused Manoj Pradhan actively participate in the horrific assault and killing of her husband.
The facts of this case and testimonies of witnesses underline, that not only were members of Christian community marked, encircled, hunted and killed, but also that the killings, were carried out in an extremely brutal and ruthless manner. Importantly, the mob had meticulously planned the killings, so as to leave little or no evidence of the crime. Bodies were, therefore, either burnt, or thrown into the forest to rot, or else concealed, so that the evidence of the murder would not be available. While the absence of the corpse is not fatal to the case, the absence of corpus delicti [a Latin phrase referring to a principle of Western legal jurisprudence that requires a crime to be proved to have occurred before a person can be convicted of an offence] during trial, places a greater burden on the prosecution to prove the homicide and the identity of the deceased.
In this case, while assessing the evidence of the wife of the deceased, the court astutely takes note of the panic and fear that gripped the Christian community when it was targeted and hunted. The court observes,
Human nature is very complex. Different persons react differently under pressure or in times of sudden bereavement or grief of a close person or seeing any serious crime and their behavior and conduct would, therefore be different. The shock suffered by PW6 [prosecution witness], having seen dastardly killing of her husband by some miscreants, possibility of losing mental balance can not be ruled out. Forgetting the name of assailants in such mental condition can not be said unnatural. Her evidence is to be tested or evaluated taking into consideration of the suffering and shock she passed after killing of her husband before her eyesight. It is to be kept in mind that incorporating the names of all the assailants in the FIR is not the requirement of law.
The court goes up to say that it is settled law that “the FIR is not an encyclopedia” and it is not necessary that all the names of the accused persons must be disclosed and that the absence of the name of the accused is not fatal to the case. The court therefore held
there is no universal rule that whenever the names of the accused persons are omitted in the FIR, the prosecution case is to be viewed suspiciously and the same is to be thrown away. In this case the deceased was dastardly and mercilessly killed by some miscreants, who had no fault, in presence of his wife PW6. She must have frightened and shocked by seeing the occurrence taken place before her eye sight. She must have given preference to save the life of her minor daughters, aged 6 and 3 years, who were with her at the time of occurrence. The explanation rendered by her that she could not recollect the name of the assailants at the time of the recording of her statement on 28.08.2008 i.e. one day after the occurrence cannot be said to be unnatural. Further nondisclosure of the name of the accused persons by PW6 on the day of recording of her statement has no significance as the other independent eye witness to the occurrence examined in this case PW 4 had already disclosed the name of present accused person during recording of his statement under section 161 CrPC. by the investigating officer on 31.08.2008, the investigation agency already knew their involvement from other witnesses. Hence, in such premises, the delayed disclosure of the name of the accused persons by PW 6, cannot be considered as fatal to the prosecution case.
The court also recognised that due the rampage and killing of Christians that the deceased and his wife witnessed in their village, they must have been in a state of panic, even prior to the present incident and hence it was only upon reaching the safety of the relief camps with her minor daughters that the wife of the deceased informed the police about the killing of her husband. The investigating officer in his evidence before the court stated, that on 28 August 2008, the wife of the deceased had said that she was in a disturbed condition and so was not able to remember the names of the assailants and that she would narrate the facts of the incident after regaining mental stability. Accordingly on 31 August 2008, she was again examined by the Investigating Officer and on that date she disclosed the name of the assailants including the name of the present accused persons, Manoj Pradhan and Kali Pradhan.
The minor daughter of the deceased also gave evidence before the trial court and accurately identified Manoj Pradhan and other accused in the court. The 6–7 year-old girl in her testimony poignantly narrates the attack on her family and the murder of her father. While there were some minor discrepancies in the evidence of the child witness, the court did not regard it as indicative of her being tutored. In fact the court held that answers given by her were rational, and hence her testimony was not motivated or influenced by anybody, but credible in nature.
The evidence of the wife of the deceased is corroborated by an independent witness who happened to be present at the site of occurrence and witnessed the killing and attack on the deceased husband. The defence attempted to impeach the credibility of the independent witness by suggesting that he was an interested witness, because he belonged to the Christian community. However, the court rejected this contention of the defence and accepted the testimony of the independent witness, holding that discarding such consistent and credible evidence may lead to failure of justice.
The defense argued that although there were many shops and houses at the place of occurrence, the police did not include any person from the locality as a witness who would independently authenticate the veracity of incident. The court dealing with this argument noted that, “the occurrence had taken place at the peak stage of rioting. Even if any person of the said locality had seen the incident he would not come forward to narrate the incident truly as the occurrence was the result of the ethnic violence. Non-production of any evidence of the locality by the prosecution is not fatal in the facts and circumstances of the present case.”
The court specifically notes that “After communal riot there was inimical or strained relationship among Hindu and Christian persons.” The trial court judgment thus also forms a record that documents the fractured relationship between the Hindus and the Christian communities in Kandhamal post the targeted violence of 2008. Thus the court grasped the ruptured reality of post-riot Kandhamal, where non-Christians would not offer testimony, even if they have witnessed the crimes. A breach had taken place in the social relations in Kandhamal, causing a divide along the lines of religious affiliation.
Locating the murder and burning in the context of the communal tension, the court states, “The motive of formation of the unlawful assembly was to retaliate against the assassination of the Hindu religious leader which has taken place four days before the occurrence i.e. 23.08.2008.”
As in earlier situations of mass crimes, once again a singular incident was deployed to provide an excuse, a justification, an alibi, to unleash a violent attack on the minority community. The murder of Lakshmananda Saraswati was manipulated and used as an opportunity to direct an assault on the lives, property and religious places of Christians, in Kandhamal. Similarly, in 1984, the assassination of Indira Gandhi provided an occasion to unleash mob violence and kill Sikhs in Delhi and other parts of the country. Again the burning of the train coach S6 at Godhra was used to organise a genocidal attack on the Muslims of Gujarat in 2002.
The trial court however rejected the prosecution’s argument that accused Manoj Pradhan and others had come together with a common object of forming an unlawful assembly and therefore, no vicarious or constructive liability was attracted against the accused persons. The trial court was also not convinced that there was satisfactory and convincing evidence to establish that the accused persons participated actively in assaulting the deceased or setting him on fire.
The court was of the view that as the deceased was found accidentally at the spot, he fell prey to the hands of miscreants, and hence the members of the unlawful assembly, who murdered the deceased and caused disappearance of the evidence are individually liable and can be held guilty by attracting Section 34 of the Indian Penal Code pertaining to common intention. Hence the trial court did not hold members of the unlawful assembly, including accused Manoj Pradhan, to be constructively or vicariously liable for the commission of the offense of murder or causing disappearance of evidence. The trial court convicted them only for sharing the common object of the unlawful assembly to cause grievous hurt with dangerous weapons to the deceased (Sections 147,149 and 326 IPC).
At the stage of sentencing, the defense counsel for Manoj Pradhan argued that since the accused was a social worker and a MLA he should be treated with leniency. The court responded that precisely because he was a responsible person of locality and a public representative therefore commission of riot by him cannot be considered lightly. The court emphasized that the crime committed was not only against an individual victim but against society at large and therefore, the punishment awarded should be consistent with the intensity and brutality of the crime that was perpetrated. The court accordingly gave the highest sentence prescribed in law to Manoj Pradhan and other accused and sentenced them to undergo a rigorous imprisonment of 7 years and to pay fine of Rs 5,000 under section 326/149 of IPC and also to undergo further 3 months of rigorous imprisonment and pay fine of Rs 1000 under section 147 IPC.
An appeal against conviction is pending before the High Court.
This is an extract from Kandhamal: Introspection of Initiative for Justice 2007-2015, by Vrinda Grover and Saumya Uma, jointly published by United Christian Forum and Media House.