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CONTENTS

Preface 31. Behind the Massacres in Bihar 42. The Case called ‘Bara’ 11

Testimonies of the Death Row Convicts 173. The Uneven Hand of Justice 20

The Verdicts in the Bathani Tola, Lakshmanpur-Bathe,Nagari Bazaar and Miyanpur Massacres

4. ‘Terror Crimes’ and Death Penalty 31 Lost in transition Status of the mercy petition 345. Conclusion 35

The burden of life: “rest of their natural lives” 38

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Well, if one really wishes to know how justice isadministered in a country, one does not question thepolicemen, the lawyers, the judges, or the protectedmembers of the middle class. One goes to the unprotected— those, precisely, who need the law’s protection most! —and listens to their testimony.… ask the wretched howthey fare in the halls of justice, and then you will know,not whether or not the country is just, but whether or notit has any love for justice, or any concept of it. It iscertain, in any case, that ignorance, allied with power, isthe most ferocious enemy justice can have.

- James Baldwin

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PREFACE

The context of this report is the history of mass killings in rural Bihar over thetwo decades of the 1980s and the 1990s. Ranged against each other were, onthe one hand the dominant castes organised into landlord armies (senas), andon the other hand, the rural poor hailing mainly from the dalit and lower castesand organised through Marxist-Leninist organisations. A complete list ofmassacres by the different senas has never been made. Ranvir Sena, the last ofthese senas, was by itself responsible for over 23 incidents of massacres inwhich more than 256 people lost their lives.PUDR conducted eight fact-finding missions to the then state of Bihar andinvestigated into many of these massacres. The attempt was to understand theroots of such massacres, to protest the overt and covert involvement of thestate actors, and to demand an end to such violence through the implementationof established laws, both reformative and penal.This report traces the outcome of one criminal case arising out of one suchmassacre. On 12 February 1992, thirty-five upper-caste landowners were killedby a large armed mob organised by the Maoist Communist Centre (MCC), atvillage Bara in the Gaya district of Bihar. After the trial, six of the accusedwere convicted and sentenced to death. The trial had taken place in a designatedcourt established under the Terrorist and Disruptive Activities (Prevention)Act (TADA), a precursor to the POTA and the UAPA of today. The Parliamenthad allowed this law to lapse in 1995 on account of the public outcry againstthe rampant misuse that it had bred, with over one lakh people in jails acrossthe country. But the Bara trial continued to suffer all the discriminatoryprovisions of that law. The Supreme Court confirmed the death sentence forfour of the accused while reducing the sentence to life imprisonment for theother two. Those on death row then sent mercy petitions to the Governor throughthe jail administration. These have not been heard of since. The four convictedhave completed nearly two decades in jail.On the other hand in the numerous criminal cases where the landlord armiesmassacred landless dalits, the final outcomes have invariably been acquittals.This report therefore examines four recent judgments of the Patna High Courtinto the massacres at villages Bathani Tola, Lakshmanpur-Bathe, Nagari andMiyanpur, where a total of 122 people were killed by members of one landlordarmy Ranvir Sena. In these cases, all the accused, barring one were acquittedby the court.How did a similar criminal charge of attacks by armed mobs committing murderlead to such disparate outcomes? This report examines the impact of the socialbackgrounds of the accused on the investigation, gathering and recording ofevidence, framing of charges, the credibility accorded to witness testimoniesand finally on the conviction and sentencing. Discrimination against the poorand in favour of the rich, privileged and powerful continues to haunt everynook of the criminal justice system. The penalty of death brings this out in themost startling manner.

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1. Behind the Massacres in BiharThe massacres in central Bihar during thenineties are once again in the news. In anexposé publicised in August 2015, the mediaorganisation Cobrapost interviewed sixleaders of the Ranvir Sena, a dreaded privatearmy of upper-caste landlords in centralBihar. These six functionaries are caught oncamera unrepentantly confessing to theirinvolvement in the ghastly massacres thatrocked the state in the late nineties. Theinterviews provide gory details about thebarbarity of the Sena’s actions, whether it isslitting the stomachs and wombs of pregnantwomen or dashing infants to death and theabsolute lack of remorse of some of its mainfunctionaries.

The Sena’s track-record is quitegruesome. They killed about 300 people,mostly poor peasants and agriculturallabourers and mostly from dalit and backwardcastes, in the six years after its formation inSeptember 1994. Yet the Ranvir Sena was onlythe most powerful successor to a veritable zooof caste-based private senas that maraudedthrough the plains of central Bihar in thedecades of the eighties and the nineties.Organised by feudal landlords alarmed at theerosion of their privileges over labour and thebodies of the poor peasantry, as the latterdemanded their rights, these senas worked intacit collusion with the local police and killed,raped and burned their way across the centralBihar plains.

Where did they come from? Tounderstand the genesis of the senas we needto begin by understanding the conditionsunder which the poor in Bihar have existed.

By most measures Bihar is about themost destitute state in India. Its per capitaincome is roughly one-third of the Indianaverage and it has the dubious distinction ofbeing near or at the bottom among all statesranked on human development indicators.Poverty figures in India have shown a sharp

decrease and these numbers have therefore beenquestioned by many. Even by that possiblyflawed measure, Bihar has over half itspopulation below the poverty line (53% in 2009-10 compared to about 30% for India). Morecomplex measures of poverty, such as themultidimensional poverty index, suggest thatalmost 80% of Bihar’s population classifies asfalling below the poverty line (compared withabout 54% for India).

Extreme landlessness and a skewed landdistribution underlie rural poverty in Bihar.A large number of rural households do noteven own the land for a hut. Bihar has thelargest shortage of rural housing in the entirecountry, and the estimated shortage is twicethat of the state with the second highestshortage. Estimates of the landless populationbased on National Sample Survey data showthat in Bihar, on average, about 31% ofhouseholds do not own any land except forhomestead land, and another 7.6% do not ownany lands at all. An additional 42.5% ofhouseholds own less than 1 acre. There arewide regional variations that these averagesmask: a recent survey of 12 villagescommissioned by the Bihar Land ReformsCommission found that about 52% ofhouseholds were landless (‘Current AgrarianSituation in Bihar’, Asian DevelopmentResearch Institute, 2008). According to theNational Sample Survey Office (NSSO, 2003),marginal and small farmers who were 96.5%of the total landowning community owned onlyabout 66% of the cultivable land, whilemedium to large farmers, who constitutedabout 3-4% of the landowning population,owned 33% of the cultivable land. A fewdecades ago very large landowners used todominate the rural landscape of Bihar. Whiledemographic and urbanization trends havediluted the importance of the largelandowners, they still exist in many parts ofthe state, especially in North Bihar. Accordingto government statistics (NSSO 2003), these

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large landowners constitute only 0.1% of thenumber of total cultivator households but own4.63% of the land, amounting to a total of over8 lakh hectares of land (Economic and PoliticalWeekly, 21 November 2009).

The importance of land reforms inbringing about socio-economic development inBihar has been recognised sinceIndependence, if not earlier. Bihar came underthe system of permanent settlementintroduced by the colonial Britishadministration in 1793. This fixed landrevenue in perpetuity and gave revenuecollection rights to a class of big zamindars,who then lived on rents from the actual tillersof the land. Ultimately multiple parasiticintermediary layers ended up being createdthat lived on the labour of the actual tillers ofthe land, whose rental burden becameexorbitant. The zamindars and theirhenchmen were in charge of, or controlled,most of the local administration and law andorder in their zamindaris. Though the systemof zamindari was abolished by the Bihar LandReforms Act, 1950, the zamindars were left inpossession of the gair mazarua khas lands inaddition to the khudkasht lands that they maycontrol, both of which were typically cultivatedby unrecorded tenants. However, the tenantswith recorded tenancies also obtained landrights and the large tenants among thememerged as a new class of landlords. Both thelandlords, old and new, were not usually theactual cultivators of the land and lived on thelabour of sharecroppers and other tenants-at-will. It took more than a decade by the BiharGovernment to pass the Land Ceiling Act in1961 and another decade before it actuallycame into force on 9 September 1970. Thisgave the prominent landowners ample timeto protect their holdings by transferring theseon paper to their family members, fictitioustrusts, or any other person, thus making theseholdings benami. In many areas the new andemerging landlords from among the erstwhiletenants were from the backward castes too,which led to agrarian and political tensions of

another kind – between the upper-castetraditional elites, from Brahmin, Bhumihar,Rajput and Kayastha castes and thebackward-caste landowners, who were mostlyfrom the Kurmi and the Yadav castes. Theselandowners of both types, who share a commonworldview and exhibit a common attitudetowards the tenants and farm labourers, arereferred to as maliks. Lukewarm efforts bythe government in response to pressures frombelow led to enactment of various land reformand tenancy laws which had the unfortunateeffect of widespread evictions of tenants at willfrom the land they cultivated. Thuslandlessness in Bihar has long historical rootsinvolving dispossession of rights over land.

In this situation it was widelyacknowledged that economic development ofthe state, not to mention social justice andequity, would get a boost by land reforms. Inthe decade of the nineties, for example, Bihar’sagriculture had a negative growth rate in percapita terms despite having some of the mostfertile soil in the country and structural causeshave been typically regarded as the mainculprit. It is also widely acknowledged thatland reforms in Bihar have been a dismalfailure largely due to the political clout of thelarge landowners and their control over theadministration. However, because of the sheersize of the population of the landless and near-landless in the state and continual agriculturalcrises, land reforms continue to be a burningissue for the state. Even as late as 2005, theNitish Kumar government established a BiharLand Reforms Commission under thechairmanship of D. Bandhopadhyaya, abureaucrat closely associated with theexecution of land reform policies in WestBengal. The Commission presented its reportto the government in April 2008 with a longlist of recommendations. However, thegovernment indicated in 2009 that they werenot going to implement the recommendationsof the Commission (EPW, 21 November 2009).

Within this sorry picture lies the evengrimmer reality of extreme caste oppression,

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a dysfunctional state with corrupt state officialsat every level, an oppressive police machineryand a political process that seems incapable ofproducing any real change. In Bihar, withdifferent districts and regions often withdominant landowners belonging to one oranother particular caste, the identity of casteprovides to the dominant sections the meansthrough which it can exert its power of monopolycontrol over land and thus over employment. Italso enables consolidation of this power innumerical terms, by uniting large and smalllandowners of the same caste together. Thisbenefits all these landowners by permitting apittance to be paid as agricultural wages,extraction of a large share of the produce intenancy (bataidari) contracts, binding down therural poor with debt bondage and subjectingthem, especially the womenfolk, to barbaricoppression.

In many parts of central Bihar, theresponse by the peasantry to this oppressionwas to organise into mass organisations andto launch struggles. Since the 1970s, many ofthese organisations have been associated withone or the other of the Marxist-Leninist, orNaxalite, parties. During the eighties andnineties, there were three main organisations,

the Communist Party of India (Marxist–Leninist) (CPI[ML]) Liberation, the CPI (ML)Party Unity and the Maoist CommunistCentre (MCC). The mass organisationsassociated with these organisations were theKisan Sabha, the Mazdoor Kisan MuktiManch (MKMM) and the Krantikari KisanCommittee (KKC). These parties, as our fact-findings and many other reports on the Biharsituation show, organised the peasantry onthree main demands:1. Provision of fair agricultural wages2. Land to the tiller, in particular, distribution

of government or gair mazarua land to thelandless peasants

3. Human dignity and respect.All three demands are in fact guaranteed

by the law of the land. Even the Bihar LandReforms Commission (2008) report noted,‘Almost all these demands are not onlylegitimate but legal. There are endorsed in oneway or the other in Five Year Plan documents’(p. 12). However, right from the beginning, theorganisations mobilising people to demandtheir legal rights faced intense repression fromthe state as well as from the landlords theywere opposing. The landlords in particular

Table 1 The Landlord Armies

Name Year of Caste Region of OperationEstablishment Affiliation

Kisan Suraksha Samiti 1979 Kurmi Patna, Jehanabad, Gaya

Kuer Sena 1979 Rajput Bhojpur

Bhumi Sena 1983 Kurmi Patna, Jehanabad, Nawada, Nalanda

Lorik Sena 1983 Yadav Patna, Jehanabad, Nalanda

Kisan Sangh 1984 Rajput, Brahmin Palamau, Aurangabad

Sunlight Sena 1989 Rajput, Pathan Palamu, Garhwa, Gaya

Sawarna Liberation Front 1990 Bhumihar Gaya, Jehanabad

Kisan Morcha 1990 Rajput Bhojpur

Ganga Sena 1990 Rajput Bhojpur

Ranvir Sena 1994 Bhumihar Bhojpur, Patna, Jehanabad, Gaya, Rohtas,Aurangabad

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organised many armed outfits called senas toenforce their writ. These senas were usuallyorganised on caste lines, some having thesupport of more than one caste. The BhumiSena was an army of Kurmis, the Lorik Senaof Yadavs, the Sawarna Liberation Front(SLF) and the Ranvir Sena of Bhumihars, theSunlight Sena of Rajputs and so on. In eachcase, the role of the police and theadministration ranged from complicity tocallous disregard in connection with thecriminal activities of these senas.

GROUND REALITIES

In the decade of the eighties and the nineties,PUDR sent many fact-finding teams to theplains of Bihar to investigate the atrocities andthe repression on the people’s movements. Thereports of these teams offer a ground-levelview of people’s lives and struggles in thevillages the teams visited. We begin thereforeby summarising some of the findings of five ofour previous fact-findings into this area in1981, 1986, 1992, 1996 and 1999. The threecentral issues that drove people into struggle,despite intense state repression as well asrepression by the maliks, were wages, landand dignity, that we discuss below in turn.

Wages – paying a pittanceEvery single one of our reports brings out thehuge disparity between the officiallystipulated minimum wages for agriculturallabour and the wages actually paid. In 1981,a PUDR team visited several rural blocks ofPatna district following reports of police firingsand arbitrary arrests of peasants (PUDRreport - Agrarian Unrest in Patna, 1981). Inthe villages, the team found that a very largepercentage of the rural population hadlandholdings that were too small to support afamily or were completely landless. Thesepeople had to work as agricultural labourersfor their survival. However, wages were verylow. The team also found widespread incidenceof attached or bonded agricultural labour (the

harwaha system) in the villages. Theselabourers were usually leased a little land (onethird to half an acre) and extended a smallloan, which bound them to work for theirmaliks. The harwaha wages for a day of labourranged from half a kilogram of rice with halfa kilogram of sattu and a meal, to one seerkachha (802 gm) of rice and about half thatamount of sattu without a meal, along with athird to half an acre of land to cultivate in eachcase. The team estimated, based on local pricesin the villages they visited, that the daily wagerate for labour varied between Rs 2.33 and Rs2.50 per day. In contrast, the statutoryminimum wages were between Rs 4.50 andRs 5.00 daily plus a meal and a minimum ofhalf an acre of land for cultivation.

In 1986, a team visited central and southBihar shortly after the Arwal massacre inwhich 23 poor peasants were killed in a policefiring (PUDR report - Behind the Killings inBihar, 1986). The team undertook extensiveinterviews with agricultural labourers inJehanabad district and found that while theattached labour system was still prevalent, themajority of labour were chhutta or free.However agricultural wages were still verylow. Workers got 1.25 kg of rice per day insteadof the statutory minimum of 3 kg of rice. Alittle nashta (snack) was also given. Duringthe harvest season the agricultural labourwere given one bojha (bundle) out of 17 bojhasharvested. The team calculated that thisworked out to 1.4 kg of rice per day per worker.

The low level of earnings through wagesor tenancy led to permanent indebtedness ofthe agricultural labour families. The teamfound that interest rates were very high (inthe range of 25-30% per annum) and manyfamilies were indebted.

A PUDR team visited central Bihar againin 1992 (PUDR report - Bitter Harvest, 1992)after a spate of mass killings of landless dalitsby the Sawaran Liberation Front (SLF) inPatna, Gaya and Jehanabad districts and onekilling by the Maoist Communist Centre inGaya district. The team found that wages paid

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now varied significantly, depending upon therelative social power of the employers and theagricultural labour. By and large, the teamfound that in villages with some presence ofthe ML peasant organisations, wages hadincreased to about 2-2.5 kg of rice for a day’slabour. This was still less than the officialminimum wage which was 3 kg of grain and ameal (usually some sattu) or Rs 16.50 in cash.However, in parts of Gaya where Rajput andPathan landlords were still quite dominant,the wages paid were as little as 2 seer kucchaof rice (about 1.3 kg), while smaller farmersof other castes paid 2 kg.

Another PUDR fact-finding team visitedBihar to study the depredations of the RanvirSena in 1996 (PUDR report Agrarian Conflictin Bihar and the Ranbir Senam, 1997). Thisteam did not find a single village in which thethen official minimum wage of Rs 30.50 for aday’s labour was being paid. The lowest wagerates were still found among the banihars orthe unfree labour in the harwaha system.

Yet another PUDR fact-finding teamvisited central Bihar in 1999 after anotherspate of mass killings in the region (PUDRreport - A Time to Kill, 1999). The team foundthat wages for agricultural labour had a strongdependence on whether the ML organisationwas strong in the village or not. Thus wagesin Shankarbigha village, comprised 3 kg of riceand nashta per day, while wages inneighbouring Dhobibigha were only 1.5 kg ofrice. In village Narainpur, after struggleagainst a local math, the wages were 2 kg ofrice, half a kilo of sattu and nashta. This wasalso the wages paid in Bhimpura and Senarivillages. The team found that the harwahasystem of attached labour was still practisedand the attached labourers (banihars) weregiven 1.5 kg of grain a day along with a thirdto half an acre of land to cultivate.

Since work on the fields for agriculturallabour is available for only about four monthsin a year, these low wages mean that thosedependent on this work live on the very edgeof subsistence. That is why raising agricultural

wages to the stipulated minimum wage wassuch a powerful slogan for the movements inthis region. Our team found that wages didincrease in response to the struggles of thepeasant organisations, though even till the endof the nineties they had not yet reached theminimum wage floor. In places where thepeasant organisations were not strong relativeto the employers of labour, wages had notchanged much over these two decades.

Struggle Over LandThe land struggles in these areas spanned twotypes of land. The first was for possession ofgovernment land, known as gair mazaruakhas land. The second was for redistributionof land above the ceiling limit imposed by thestate and sometimes imposed by the MLorganisations. Our teams did not directlyencounter many instances of the second kindof land struggle in these villages but plenty ofexamples of the first kind.

Gair mazarua land refers to land that wasnot under the domain of the landlord duringthe colonial period and was by default vestedin the state. It is of two types. Gair mazaruaaam land is community land such as commonareas in the village for village haats (markets),grazing and fodder, the village pokhars(ponds), etc. Gair mazarua khas land iscultivable land that came under the de factocontrol of the local landlord and wasdesignated khas land in colonial times. Withthe decline of traditional irrigation systems,aam lands also became cultivable and weretaken over by the more powerful in the village.Central Bihar has seen significant strugglesfor the landless and the near landless for beinggiven ownership of gair mazarua land forsettlement and for cultivation. This is againin accord with official state policy but of course,not with its practice! Some of these struggleswere also about access to common propertyresources on aam lands, especially fishingrights. In Kansara, Jehanabad, a struggle overfishing rights with a local landlord, alsoassociated with the Brahmarshi Sena, led to

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the murder of four bidi (tendu) workersassociated with the MKMM (Behind theKillings in Bihar). In Aikil, Jehanabad, thevillage pokhar (pond) was out of bounds forthe dalit labourers (Bitter Harvest, 1992), whowere beaten if they tried to catch fish fromthe pond. Occupation of gair mazarua land forhomestead purposes was what led to theinfamous Arwal massacre, where the policekilled 23 people and injured scores of othersin a firing on a public meeting on 19 April 1986(Behind the Killings in Bihar, 1986). The issuebehind the public meeting was the oppositionto the attempt by an engineer of the irrigationdepartment to fraudulently take over 27decimals (0.27 acre) of gair mazarua land. Theland was being used as homestead land by ninelandless families who were being evicted. Withthe increasing cost of land, attempts tofraudulently sell gair mazarua land by localelites in connivance with corrupt officials areprobably widespread all over Bihar.

Occupation of cultivable gair mazarualand by the landless or near landless wasanother common theme of the struggles. Itshould be noted here that it has been officialpolicy of the government for a long time tosettle gair mazarua land with the landless forboth homestead and cultivation purposes.However, nothing really happened till thepeasant organisations made this an issue. Ourteams learnt that many villages hadsignificant gair mazarua land, to the tune ofup to 200 acres or more. Aikil, Jehanabad hadabout 150 acres of gair mazarua land illegallyoccupied by landlords. However, this villagedid not have any struggles on this issue whenthe team visited. The murder of three MKMMsupporters in Sawanbigha by the SLF wasdirectly linked to the struggle over 3.5 acresof gair mazarua land in Narayanpur village.Some other struggles over gair mazarua landincluded Parasona, Jehanabad over 22 acres,Akuri, Patna over about 7.5 acres and inJalpura and Bathani Tola as well as multiplestruggles in Sahar and Sandesh blocks inBhojpur district. In all of these cases the land

had been occupied by one or more local landlordsbefore the peasant movement made it an issue.The 1996 PUDR team noted that in almost allthe mass killings it investigated a struggle overwages or over gair mazarua land was involved.This team was told by the Bhojpur DistrictMagistrate that there were about 3,400 acresof gair mazarua khas and 588 acres of gairmazarua aam land fit for settlement in Bhojpurdistrict. According to the same DistrictMagistrate, about 14,655 acres of gair mazaruakhas and 12,404 acres of gair mazarua aam landwas unfit for settlement. Relevant figures forother districts are not available with us.

Apart from gair mazarua land, the peasantorganisations also have raised the issue ofredistribution of surplus land of largelandowners, that is, land above the ceilinglimit prescribed by the Land Ceiling Act. InBihar, the official ceiling limit depends uponland quality and ranges from 15 acres ofirrigated to 30 acres of unirrigated land. Thisland ceiling however is practically not enforcedat all. In village after village the various PUDRteams were told of landlords with land abovethe ceiling limit, sometimes even significantlyin excess of it.

Human Dignity and CasteOppressionAnother major issue, which was raised bymany people our teams spoke with, was thatof human dignity of the agricultural labourersand poor peasants. The teams found that anumber of the landowners or their upper-casterelatives were described as possessing asamanti (feudal) mindset by the poor andlandless peasants when narrating incidents ofeveryday oppression that were inflicted uponthem. Every single PUDR team was told ofinstances of abuse, beating and molestationof the lower-caste agricultural labour and poorpeasantry. Lower castes were not allowedaccess to all parts of the village and were notpermitted to sit down in the presence of theupper-caste landowners. Women faced thebrunt of the oppression, with agricultural

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workers among them facing regular sexualharassment in the fields.

This harassment increased manifoldwhen the same labourers started organisingand asserting their rights. The upper-castelandowners increasingly saw this assertion bythe predominantly lower-caste labouring pooras a varchasva ki ladai, or a struggle fordominance, against their centuries-old over-lordship. They responded by creating privatemilitias of their own and unleashed masskillings upon the rural poor.

Of all the landlord armies that roamedthe plains of central Bihar, the Ranvir Senastands out as the most powerful and ruthlessorganisation. One of the reasons for this is thatit is a militia of the Bhumihars, who aretraditionally the most dominant caste inBihar, and in the words of the Supreme Courtjudge who heard the Bara massacre case, thiscaste ‘ruled over Bihar’. The Ranvir Sena cameinto being at the time when left-wingextremism was perceived by the state as themain threat to India’s internal security. Thusthe state in Bihar, traditionally with asubstantial presence of the Bhumihar castewithin its functionaries, found a ready ally inthe Bhumihar militia that emerged to fightthe common enemy – the labouring poorasserting their rights. This led to thedevelopment of extremely close relationsbetween the Sena and the state. This is seenmost vividly in the informal politicalpatronage that the Sena enjoyed, despite thebrutality of its massacres.

THE RANVIR SENAAND THE STATE

The Cobrapost revelations of 2015 might havemade more of a stir if the state in questionwas not Bihar. That was unfortunate since oneof the most important aspects of this exposéwas the candid admission by the Ranvir Senaleaders of the close support they received fromBJP leaders as well as other important

political personages associated with thegovernment of Nitish Kumar.

These connections, however, were known,yet never acknowledged. In our 1997 fact-finding, people told us of close links betweenthe Sena and politicians, and in particular,Janardhan Sharma and C.P. Thakur, bothstate-level BJP leaders, were named as Senaleaders. Local functionaries of both the JanataParty and the Samta Party were also believedto be having close links with the Sena.

After the massacre at Lakshmanpur-Bathe village in December 1997 where theSena killed 58 people, the state governmentinstituted a commission of inquiry into theRanvir Sena, under Retd Justice Amir Das.The Amir Das Commission was hastily woundup by the Nitish Kumar government justbefore it was to release its report. It is quiteevident from reports leaked to the media thatthe commission was going to name seniorleaders of the BJP as well as Nitish’s own partyfor close links with the Sena and possiblecomplicity in the murders. At the time of thewinding-down of the commission, the nexusof the Ranvir Sena with prominentfunctionaries of the BJP was extensivelyreported in the media. In April 2006, CNN-IBN brought out a report(http:.www.ibnlive.com.videos.india.caste-army-has-politician-friends-234634.html) onthe just-disbanded Amir Das Commission. Thenews story claimed, apparently on the basisof a leaked copy of the incomplete report, thatthe commission was ready to name 37politicians and it was disbanded because itwould made it harder for those named to gettickets in the forthcoming elections. TheCommission report reportedly named C.P.Thakur as having attended meetings of theRanvir Sena in 1997, ahead of the Haibaspurmassacre (in which the Sena killed 10 landlessbelonging to the most backward musaharcaste) and of being close to the Sena supremo,Brahmeshwar Mukhiya. According to thenews story, BJP national leader MurliManohar Joshi had threatened the officer in

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2. The Case called ‘Bara’

charge of Paliganj Police Station (PS) ofrepercussions to prevent him from takingaction on the Haibaspur massacre. A numberof other politicians were reported as havingsought the blessings of the Sena during theelections. These include the state-level leaderof the BJP Sushil Kumar Yadav as well asAkhilesh Singh and Kanti Singh (both in theRJD). Others mentioned in the news story areShivanand Tiwari, Ram Jatan Sinha andNand Kishore Yadav.

Though among the most detailed, theCNN-IBN reporting in 2006 was by no meansthe only one alleging that the Amir DasCommission had been wound up because itsconclusions were politically inconvenient tothe ruling parties. And this was not the onlytime that the Ranvir Sena and its nexus withthe state would come to be commented uponby the national press. In 2013, a veritablemedia storm had erupted when the PatnaHigh Court on 9 October acquitted all 26people convicted by the Sessions Court ofparticipation in the Lakshmanpur-Bathemassacre. Also, following the assassination ofBrahmeshwar Singh Mukhiya, the chief of the

Ranvir Sena, on 1 June 2012, his supporterswent berserk in Arrah and Patna. Theyindulged in numerous acts of vandalism andattacked dalit hostels while the police lookedon as silent spectators. Again in 2015, therewere fresh revelations from interviews of themembers of Ranvir Sena by the Cobrapostjournalists. This exposé also implicated othersenior leaders such as former Prime MinisterChandrashekhar and BJP leader YashwantSinha as having helped the Sena withprocurement of arms and with money and theJehanabad MP Arun Kumar (RashtriyaSamata Party) with having helped Senamembers escape in his car.

All the above notwithstanding, theconnections of the Sena with the politicalleaders were never officially probed; the extentof their complicity in the massacres was neverdetermined; and the role played by other statefunctionaries in the actions of the Senaremained obscure. Thus nothing reallychanged and all those who were part of theconspiracy against the dalit labourers gotaway scot free.

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Located in the Tekari block of Gaya district,Bara village is predominantly upper caste. TheBara massacre was one of the most brutalattacks committed by the MCC against theBhumihar caste. The killings were retaliatoryin nature as they were meant to avenge themassacres by upper-caste senas the previousyear, at Sawanbigha (Jehanabad), RampurChai (Jehanabad), Tindiha (Gaya) and Men-Barsiwan (Gaya). In September 1991, sevenlandless labourers were killed in Sawanbigha;ten persons were killed in October 1991 whenthe dalit tolas were attacked in Men-Barsiwan(see Bitter Harvest, PUDR 1992). Bothmassacres had been carried out by the SLFunder the leadership of Ramadhar Singh

‘Diamond’ and Haridwar Singh. When the MCCretaliated by attacking Bara, the attackers wereprimarily seeking out these two SLF leaders,who they believed were sheltered in the village.

On 12 February 1992, at around 9.30 pm,a crowd of more than 500 people allegedlyentered the village in search of the two leaders.Some were disguised as policemen and werein uniforms. The squads segregated theBhumihar males, about a hundred odd, andlet off non-Bhumihar men, women andchildren. The Bhumihar males were marchedwith their hands tied behind their backs andtaken to a nearby canal and killed. Theirthroats were slit and some were also shot.Thirty-five bled to death, seven were injured

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and the rest somehow escaped. Several hutswere set on fire by the killers.

Close to the time of the massacre, apatrolling police party from Tekari PS led bySI Vijay Pratap Singh arrived and met thevillage chowkidars, anguished women, andfamily members of the deceased and injured.The police party did not enter the village andwaited till a larger team led by the SP Gayareached at around 1.00 am. This team metShravan Kumar, a witness of the carnagewhose hands had been tied behind his back.By this time the IGP Gaya and other officialshad been informed and the police team enteredthe village. The injured were taken to hospitalfor treatment and the first information of awitness, Satyendra Sharma, was recorded.This fard-bayan (statement of witness beforepolice) formed the basis of the FIR that waslodged at 3.00 am on the night of 12-13February 1992 at Tekari PS against 34 personswho had been identified by the first informant,Satyendra Sharma, and against hundreds of‘unknown’ others. The police invoked sections3, 4 and 5 of Terrorist and DestructiveActivities (Prevention) Act (TADA) andvarious sections of the Indian Penal Code(IPC) (147,148, 149, 302, 307, 326, 436, 452,342).

For over two decades, the Bara trialcontinued in the TADA designated courts andin the Supreme Court. First, in February 1993,a charge sheet was submitted against 119persons. Thirteen of them were brought to trialas the remaining were declared absconders.Thirty-four prosecution witnesses wereexamined, and the TADA Designated Courtdelivered its judgment nine years after theincident on 8 June 2001. The court acquittedfour; awarded rigorous imprisonment of 10years to one; convicted four to lifeimprisonment under rigorous imprisonment;and awarded death penalty to four.

Since the trial spanned many years, thepolice submitted another charge sheet in theTADA designated court on 15 April 2004 against

six others, twelve years after the incident. Thecourt delivered its judgment on 11 February2009 in which it acquitted three and awardeddeath penalty to three.

In short, over seventeen years, twoseparate charge sheets were pursued againstnineteen of the accused, of which seven wereacquitted. Out of the remaining twelve, thecourts awarded death penalty to seven and lifeimprisonment to another four. One was givenimprisonment for ten years.

The state of Bihar filed for confirmationof the death sentence at the Supreme Court,as under TADA, the High Court was notpermitted as a court of appeal. Five petitionswere also filed by eleven accused against theirconviction. Accused Ravinder Singh did notfile a petition as he had already completed tenyears of his prison sentence. Two differentbenches heard the petitions and deliveredthree verdicts (See above table).

Did the accused get a fair trial?Since four death penalties were awarded outof a judicial process spanning 20 years, it isnecessary to consider whether the accusedwere given a fair trial or not. Based onreadings of the majority judgment, of JusticesPasayat and Agrawal, the dissentingjudgment given by Justice Shah, the otherjudgment delivered by the same bench and thesubsequent one by Justices Patnaik andGokhale, the following points draw attentionto the faults in the investigation and someglaring omissions and commissions thatoccurred during the trial.1. Non-examination of the informant:

Satyendra Sharma’s fard-bayan hadprovided the basis for the FIR lodged atTekari PS on the night of 12-13 February1992. Sharma gave information describinghow the crowd entered the village,terrorised the people with bullets anddynamites; how he was asked to hand overtwo commanders of the SLF who wereallegedly hiding in the village; how along

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with other Bhumihar males, he was takento the eastern end of the village and madeto march to the canal where the massslaughtering took place; and how hemanaged to escape. Crucially, he identified34 of the accused.Records show that Sharma was neverbrought before the court and examined.Given the importance of the informant tothe case, it was a strange omission to saythe least. According to the defense, Sharmawas a member of the SLF and later of theRanvir Sena and had absconded after othermassacres were carried out by the Sena,including the Mianpur carnage. But sinceSharma was never examined or broughtbefore the trial court, there is no means toconfirm this. The defense argued andJustice Shah in his judgment concurredthat this failure undermined the validityof the FIR as substantive evidence.

2. Non-examination of investigating officer,Inspector Ram Japit Kumar: Theinvestigation into the carnage was marredby confusions and obfuscations. It appearsthat the initial investigation was entrustedto Inspector Ram Japit Kumar of TekariPS on the verbal orders of the SP, Gaya.

However, a few days later, on 17 February1992, the case was handed over to InspectorSuresh Chander Sharma. The reasons forthis replacement remain murky. Theostensible reason for the handover was thatKumar was not available for theinvestigation and the Tekari police werebusy with arrests and entertaining themany VIPs who were thronging Baravillage after the incident. The prosecutionclaimed that Kumar was never involvedand that the initial investigation wasconducted by Inspector Vijay Pratap.However, during cross examination,Inspector SC Sharma made contradictoryremarks as he maintained that Kumar haddone the entire investigations before himand also stated that he had taken over fromVijay Pratap.The confusions surrounding Ram JapitKumar were never resolved as he was neverexamined in court. His case diary and thedetails of the investigation were also neverbrought on record. The suspicion that hissummary removal may have had more to dowith the ‘conclusions’ of his investigationthan with him being ‘unavailable’ can hardlybe put to rest since Kumar was kept

Table 2 At the Supreme CourtJudgmentDate and Citation

Bench15 April 2002Krishna Mochi & Ors vs State of Bihar

BN Agrawal, A Pasayat, MB Shah15 April 2002Bihari Manjhi & Ors vs State of Bihar

BN Agrawal, A Pasayat, MB Shah20 September 2013Vyas Ram @ Vyas Kahar & Ors vs State of Bihar AK Patnaik, HL GokhaleFinal Outcome: 4 death penalties, 2 life imprisonments, 5 acquittals

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14

completely out of the trial.3. Omissions in the statements of

investigating officers: In the absence ofsatisfactory explanation and in the presenceof contradictory statements about whohandled the initial investigation, the role ofVijay Pratap, the in-charge of Tekari PS,becomes dubious. He was said to be part ofthe first patrolling party, but he did notrecord the statements of the three villagechowkidars who gave first-hand informationabout the mayhem that was then occurringin the village. According to him, he informedthe SP, Surendra Kumar Singh. However,when he returned and met Shravan Kumarwho gave a witness account of theslaughtering, Vijay Pratap did not record hisfard-bayan. Nor did he take the statementsof those villagers who were non-Bhumiharsand who had been let off by the squads alongwith women and children. The village hadsix Brahmin households, two dalit familiesand two others belonging to Yadav and Telicastes.In his cross-examination, Vijay Pratapadmitted that he had not done a TIP (Test-Identification Parade) of any of thesuspects. Neither did he record the time orplace of the examination of witnesses.Significantly, his role as the investigatorwas further undermined as there was nowritten order directing him to proceed withthe inquiry. Adding to the contradictionsregarding who did the initialinvestigations, the 2013 Supreme Courtjudgment noted discrepancies in thedepositions of Vijay Pratap and InspectorSC Sharma, the officer who took chargefrom 17 February 1992, as far as the casediary was concerned.

4. Procedural lapses in invoking TADA: Theapex court noted lapses regarding theinvoking of TADA. During cross-examination, Inspector SC Sharma couldnot remember whether written permissioninvoking TADA had been procured or not

and whether investigations could be carriedout by any person other than a DSP.

5. Bihari Majhi’s confession: The invoking ofTADA brought with it the one specialprovision that had found greatest favourwith police forces – the admissibility ofconfessions of the accused given to thepolice. This provision was misused to suchextent that inclusion of a similar provisionin any subsequent central anti-terror lawwas never contemplated. Yet in this casewhere the trial was conducted after TADAhad the obnoxious lapsed provision becamecrucial to the outcome.Bihari Majhi, a dalit labourer was notmentioned among the 34 named in the FIRat Tekari PS. He was arrested from Gafavillage two weeks after the carnage byInspector Sharma in the presence of SunilKumar, SP Gaya Virendra Kumar Singh,Station-in-charge, Bodh Gaya. Duringcross examination, Sunil Kumar, statedthat he had told Majhi to make hisstatement without fear or favour. However,in violation even of TADA procedures, theconfession was not recorded by him but byInspector Sharma at night by the light of apolice jeep. The confession ran on for tenpages but Majhi’s signature was recordedonly on five. The statement was neverplaced before the Chief Judicial Magistrate.Instead, after five years, it was directly sentto the TADA special court with a certifyingstatement by SP Gaya. Yet, in court,neither the SP nor the Inspector couldrecognise Majhi.Notwithstanding these obvious omissionsand lapses, Majhi’s statement was the soleevidence relied upon by the TADA court(2001) to convict Majhi and three others(Ramautar Dusadh, Rajendra Paswan andVakil Yadav) to rigorous imprisonment forlife. When the matter came up before theapex court, the court held that theconfession was not in conformity with S.15 and rule 15 of TADA, and the four wereacquitted. In the later judgment of 2013,

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the apex court also noted that VirendraKumar Singh was an accused in themurder of the nephew of Vakil Yadav, aco-accused with Majhi, and that he hadfiled a petition before the Supreme Courtfor quashing the cognisance taken againsthim.In the context of the investigationconducted, the three-member bench of 2002which acquitted Majhi and three othershad remarked: ‘It appears that instead ofcollecting any material or evidence forconnecting these accused with the crime,investigating agency has adoptedunjustified method.’ Yet, this samecompromised investigation formed thebasis of the conviction of the other fourwhose death sentences were confirmed bythe same bench by a majority decision oftwo versus one.

6. Unreliability of witnesses: Sixteeneyewitnesses, mostly residents of Baravillage, were examined during the trial,and their accounts were relied upon forconvicting the four who were given deathpenalty: Nanhe Lal Mochi, Krishna Mochi,Vir Kuer Paswan and Dharmendra Singh.When the matter reached the apex court,the decision pronounced by JusticeAgrawal was to validate the ‘ocularaccounts’ of eight witnesses, as the othershad failed to identify the accused in thecourt. While Justice Agrawal found theaccounts of the eight witnessesunimpeachable, Justice Shah thoughtotherwise and said that ‘it can be saidwithout any doubt that almost all witnesseshave exaggerated to a large extent bynaming number of persons as accused butthey could identify only one or two accused.This would clearly reveal that for one orother reason, witnesses were namingnumber of persons as accused who were notknown to them or whom they had not seenat the time of incident. In that set ofcircumstances, their evidence to a largeextent becomes doubtful and/or tutored.’

The key concern Justice Shah raised wasthat the evidence of the witnesses did notassign any specific role to the accused apartfrom their presence in the mob, nor did thisevidence affirm that the identified accusedbore weapons. No weapons orincriminating articles had been recoveredfrom the accused. The delay in recordingthe statements of the witnesses and thefailure to conduct a TIP also throws doubton the identification of the appellants.Some of the witnesses were known to beinvolved in local disputes with the accusedthey were able to identify. At most, theevidence of the eight ‘credible witnesses’places the accused at the place of the crime.

How credible werethe eight eyewitnesses?

With an investigation that could at best betermed negligent if not outright discreditablefor being biased and manipulated, the caseagainst the four accused rested on theexamination of eyewitnesses by the court. Thisexamination was critical to proving that thefour accused belonged to the MCC and werepart of the mob that had gathered with thespecific intention of creating terror and aconspiracy to target and kill persons from theBhumihar caste. Paradoxically, the evidenceof the eyewitnesses which were found wantingby Justice Shah formed the basis of themajority judgment for convicting andconfirming the four death sentence, despitethe flaw-ridden investigation. The crux of theargument Justice Agrawal raised for justifyingthe upholding of the death sentences was thatthese eight witnesses had established that theappellants had gathered with ‘a commonintention’ to perpetrate the massacre. Suchevidence in his view was enough not only todeem them culpable but also to sentence themto death – even if no specific killings could beattributed to them. However, a re-examinationof the eight witnesses suggests otherwise.

The evidence of YOGENDRA SINGH, aninjured witness who spent 24 days in hospital,

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was accepted as unimpeachable even though itwas not clear when exactly his statement wasrecorded. The majority judgment rejected thesubmission that the statement was recordedafter 24 days as it found no ‘material in supportof this submission as neither this witness noranybody else has anywhere stated that policerecorded his statement after 24 days’. However,the judgment had no problem with the lack ofevidence in support of the statement beingrecorded earlier. Yogendra Singh could identifyonly two – Krishna Mochi and Nanhe Lal Mochi– of the thirteen persons he had accused in court,and of these, Krishna Mochi was not mentionedin the first part of his statement, while NanheLal Mochi was only mentioned as a personpresent at the scene of occurrence.

A second (injured) witness LAVLESH SINGHnamed more than eleven persons in hisstatement but could identify only one: VirKuer Paswan. During cross-examination, hesaid that he lost consciousness after theaccused persons had broken into his house andhad regained consciousness only in thehospital. If this is indeed true, his account ofevents after the accused entered the housecannot be treated as valid evidence.Nevertheless, Justice Agrawal upheld thevalidity of his statement on the grounds thatthe eyewitness was ‘nonplussed and regainednormalcy by the time he arrived at thehospital’. Lavlesh Singh spent 22 days in thehospital and the defense submitted that hisevidence was recorded after 24 days. ButJustice Agrawal dismissed this submission as‘this witness has nowhere stated that he wasexamined after 22 days of the allegedoccurrence nor there is any other evidence tothis effect.’ However, once again, thereappears to be no evidence that the statementwas recorded immediately after the event. Itshould be noted here that a delay in recordingof statement is a serious lapse as the witnesscan be tutored or can himself manipulate hisstatement.

DHANANJAY SINGH, who had also sufferedinjuries, wrongly identified two of the four

appellants. Importantly, he had a dispute withthe remaining two appellants whom hecorrectly identified: Krishna Mochi and NanheMochi. The names of Krishna Mochi andNanhe Lal Mochi were not mentioned in hisstatement to the police. However, in the courtexamination, the witness claimed that he gavetheir names to the police. No infirmity wasnoted in this evidence.

BUNDE SINGH, who had not suffered anyinjuries, was examined two days after thekillings. This was not deemed an inordinatedelay. He had named 13 accused and wronglyidentified one of the appellants – Nanhe LalMochi.

The testimony of RAM SAGAR SINGH was alsoaccepted without question, dismissing thesuggestion that there was a long-standingdispute between him and two of the accusedNanhe Lal Mochi and Krishna Mochi.According to him, he was hiding on a roof whenhe saw the accused passing the street and hecould identify them from the roof-top in thelight of a fire.

The eyewitness RAM SUMIRAN SHARMA hadclaimed in his cross-examination that he didnot know the appellant who had land half akilometer away from his land and had alsodenied the suggestion of a hostility on accountof a pending land dispute. He had been ableto identify only three out of the twelve he hadaccused in his statement. But Ram Sumiranwas, in the considered opinion of JusticeAgrawal, ‘a sterling witness for theprosecution’ who ‘stood the tests of cross-examination and there is nothing to discredithis testimony as he was quite natural witnessand consistently supported the participationof this appellant in the crime with all materialparticulars’.

The eyewitness BUDHAN SINGH claimed tohave identified the accused in the light of afire. He was examined by the police three daysafter the incident. Krishna Devi anotherwitness who in her statement testified to seeingthe slaughter being committed, was examined

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two days after the killings. The reason for thedelay in recording statements of witnesses wasthat ‘they were not in a position to give theirstatements in view of the fact that they werebusy in performing the last rites of their familymembers who were slittered [sic] to death andrelatives of the persons who died were not in amental condition to make statement. Further,it was stated that there were visits of variouspolitical leaders in the locality as a result ofwhich law and order condition had becomecomplicated.’

A key standard in cases where violence isperpetrated by a large group of people, as set bythe judgment in Masalti vs the State of UttarPradesh (1964), is the existence of credible andconsistent accounts of the complicity andparticipation of the accused in the crime by atleast two reliable witnesses. The majority

judgment considered this precedent but wassufficiently swayed by the ‘quality’ of the singlewitness (Ram Sumiran Sharma) to uphold thedeath sentence awarded to Dharmendra Singhbased on this solitary eyewitness account.

So a relatively lenient standard of evidencewas stretched to accept the testimony of theeyewitnesses in defense of the prosecution’s storyand uphold the death sentence. As can be seenfrom in the report later, the standards ofevidence that were brought to bear on theevidence of eyewitnesses where the killings wereperpetrated by the Ranvir Sena were in starkcontrast, considerably more stringent.

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Lodged in Bhagalpur Jail, the four persons convicted to death in the Bara case have been in solitaryconfinement ever since their conviction. The PUDR team was able to meet the convicts as well assome members of their family in February-March 2015. The following is an account put togetherthrough these interviews.

Nanhe Lal Mochi

Nanhe Lal Mochi is the oldest prisoner in the Bara case and could barely recall his exact age, claimingit was between 75 and 80 years. He was a resident of Mirabigha village situated close to Bara village.There were 10-15 Chamar households there. These families worked on the fields of Bara villagewhere most Bhumihar households owned 10-15 bighas of land, while some owned 20-30 bighas.Nanhe Lal worked as an attached labourer (harwaha) in the fields of his malik Jamuna Singh Bhumihar,who owned around 20 bighas of land. His daily earning comprised 2 kg of paddy, half a kilo of sattuand one meal. He did not possess any homestead land and his house was situated on the villagecommon (gair mazarua) land. His father, Mahate Das, had also done harwahi for the same landowner.The employers regularly threatened the workers. Nanhe Lal with five children, three sons and twodaughters aged between 4 years and 20 years at the time of the Bara massacre, was the only earningmember of the household.The MCC party was active in this area. The party people would come andleave after the meetings. Only some of the people would attend the party meetings, which would beconducted in the chamartola. In the massacre at Bara, no one from his malik’s house was injured orkilled. He did not know of the massacre till later in the morning. Awadh Singh, a landowner fromBara, sent word asking him to help bury the cattle that had died in his house. However, he did not go.Given the fear in the area, he ran away to his maternal uncle’s house and then worked at differentplaces. Finally, he settled in Shukla Nagar near Panchanpur, where he started working as a harwaha.He worked there for almost 4-5 years during which he was given 5 kathas of land for a house and 2kg of paddy for a day’s work. During his absence, moveable property from his house was attached(kurki-jabti) several times and the house was broken and burnt. On returning in 1998, he was arrestedalong with his son and nephew. The latter were let off after beating. Nanhe Lal suffered beating and

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physical torture in police custody. He has no knowledge of his lawyer and has never met him. Healso has no knowledge of the specific charges against him. Till the time Nanhe Lal was in Gaya Jail,his son would try to meet him regularly, bribing the prison officials Rs 30-40 each time. Sometimeshis wife and daughter would also visit.Since being shifted to Bhagalpur jail, the visits have becomerare, normally once a year. Nanhe Lal never got any parole. Even when his wife died, the administrativered tape took so long that he was unable to avail of it. His conduct in jail has been exemplary. Hesaid, ‘I have not done jhagda, mar-pitai or even gali-galauj ever in my life.’Nanhe Lal has been in jailfor 18 years and in solitary confinement since the confirmation of the death sentence. His separatecell is flanked by a ghelao (encircled enclosure), where he is free to move during the daylight hours.He is not permitted to meet other prisoners. He wakes up at 6 in the morning and gets chana-chiniin breakfast, tea twice a day, apart from the two meals of roti, dal and sabzi. Being habitual totobacco, he saves the sugar and sells it for Rs 30 a kilo to obtain tobacco. He suffers from weaknessand breathing problems but said these are all to do with old age. He gets medicines for gas, coughand cold. He recalls the mercy petition that was sent by all the four convicts together but has no ideawhat happened. His request is that he be sent to Gaya so his family can meet him more often. Hewishes to see his grandson and granddaughters. He is sad that he could never send his children toschool. But he has hope that god would set right the injustice that has been done to him and hehopes to work again when he goes out of prison and wishes to die in the company of his children. Hischildren too believe that the father would come out of jail soon.

Veer Kuer Paswan

Paswan, a patient of bronchial asthma, now 71 years old, was the first to be arrested out of the four.He had spent 23 years in jail. He was a resident of Khutbar village and worked as an agriculturallabourer (harwaha) in the fields of a Bhumihar family. The night when the massacre occurred, heheard the sound of bullets but had no idea of what was happening. He says he had done nothing andhad no contact with the MCC. So he did not see a reason to flee and continued to stay in the sameplace despite an intimidating atmosphere in which other dalit families were leaving the village. Afew days later when he went to his uncle’s place for a family function, he was picked up by the policefrom there. In those days, the Public Distribution System was a cause of conflict in the village. SumiranSingh, a Bhumihar, had the quota for distribution and there were political pressures to break thequota. Paswan said that those who were in favour of breaking the quota were penalised by the‘forward’ caste by being named in the massacre case, Paswan being one of them. Dhamender Singh,his co-accused and the only upper-caste person convicted for the Bara massacre, was also named forthe same reason. The police gave no reasons for detention. One constable in the local police stationasked for Rs 3,000 to drop his name from the case, which Paswan could not afford and was sooncharge sheeted in the massacre case. When he was taken to the court, he was told that he wasaccused of murdering the forward-caste people in Bara. The only evidence against him was that hewas identified by the police witness. When the judge asked the police witness to identify him, hecould not be identified. Thrice his name was called and the third time he himself raised his handsaying he was Paswan. That is how, he claims, he was ‘identified’. He said he never dreamt of spendingthe life of a forward caste, to have lands of his own. He was happy working as a labourer. The onlything he wished was to make his son study and grow up to be educated and employed. Hisimprisonment ruined the family, the son had to take over family responsibilities and left his studies.In December 2014, his wife passed away and he could not be taken to her last rites as the administrativepermissions took their course and time lapsed in between. Today he knows that the mercy petitionhas been sent and that no action has been taken on it. Yet he wishes and hopes that justice wouldtake its course and he would find relief.

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Krishna Mochi

At the age of 63 now, Krishna Mochi remembered his life in Bara nearly two decades ago. He workedas an agricultural labourer in Bara and as a part-time drum player on the roads and at village functionsto earn some extra money. He said when the massacre took place he was sleeping in his home withother family members. He had heard of the MCC and was aware of the fact that the MCC would holdmeetings in the villages but refuted any presence of the MCC in his village. It was only the morningafter the massacre that the family got to know of it and fearing retaliatory violence as is common inthe case of upper-caste killings, they fled. Most dalit families in his village took refuge with relativesand acquaintances staying far away. Krishna Mochi went to Delhi. In Delhi, he found some work in afactory that made shoe shelves in Naraina. For about six months, he worked in the factory on a dailywage, and throughout this period, he had no contact with his family. He had no information of thefact that he had been named in the massacre and the police was on the lookout for him. After sixmonths, he returned to Gaya, and it was at the Gaya railway station that he was picked up by thepolice. Then the legal rigmarole began. He said he had no idea of the charges against him besides thefact that he had been accused of mass murder and the court was deciding on his culpability. Thecourt hearings were for namesake. No questions were asked. No one informed him of the chargesand the laws invoked in the case. He very clearly stated, ‘the MCC people came from jungles, killedthem and went back shouting slogans … because they could not be caught, police caught the innocent.’The ‘court rounds’ continued for almost 10 years after which one fine day he was informed that hehad been sentenced to death for a crime he said he was not even aware of. In these two decades ofincarceration, he said he had not suffered any physical torture in the jail but the mental tortureweighed much heavier. His family tries to visit him annually but they have great difficulty managingto arrange for the expensive jail visits. The son he left as a toddler when he fled now works as alandless labourer in Bara and his wife as a help to the midwife in the village. His wife and mother livein a house with mud walls and palm fronds for roof. He was aware that the jail had sent a mercypetition for commutation of the death sentence but no action has been taken on that. He said hewanted his death sentence to be commuted but not into a life sentence. If the commutation meanthe had to be in jail till he lives, he would rather be executed immediately.

Dharmendra Singh alias Dhiru

Dharmendra Singh is the only upper caste convict in the massacre case. He was a resident of Dihuravillage, some distance away from Bara village. His father had died early and his maternal uncle hadlooked after him. He studied at the Dihura school till class 7 and at the Prakash Vidya Mandir atTekari till class 10. He got married in 1986 and after a year’s break joined Satyendra Sinha college. Atthe time of the Bara incident, Dhiru had 5 bighas of land with a mango orchard. He had bought thetractor that year and operated it himself and worked only on the fields of Dihura village.Dharmendraowned 7-8 kathas of land adjacent to the road near Dihura bazaar. He said the residents of Barawanted a road through this land. Some 6 months before the incident, this issue was heating up andthe MP Ramashrey Singh also visited the village. Dharmendra had then explained that he also had abrother dependent on this land, and that the land in question was expensive. ‘Get us a governmentjob, else we do not wish to give this up’, Dharmendra had said.On the night of the massacre, he hadheard noises. In the morning his uncle went to the Dihura bazaar and reported that everybody in thevillage has been killed.After the incident, the dafadar of the village told Dharmendra that his namehas been added to the list of the accused. Dharmendra left for his mother’s brother’s house 10 kmaway. From there, he went to Bermu in Giridih (now Bokaro) to learn driving heavy vehicles. Hecame back home in 1999 to attend the marriage of his younger brother, from where he was arrested.He

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was taken to Alipur PS and kept there for the night. Then he was kept at the Tekari PS for two nightsbefore being sent to Gaya jail. During the police custody he was subjected to torture in various ways.His legs were spread forcefully and policemen climbed on his legs. He still suffers pain from thepermanent damage caused by that torture. One Sartaj Babu from Gaya was the lawyer. Dharmendrahas no idea why he was convicted. For some time Dharmendra’s father-in-law looked after the case.Sumiran Sharma, whose brother is the Sarpanch, is Dharmendra’s paternal uncle Umesh Singh’sfriend. It was these people who conspired to implicate him in the case so as to take over his land. In2001, six months after he was awarded death sentence, his brother Mukesh Kumar simplydisappeared. He is still untraced.During his stay in the jail, Dharmendra has never written any letterto any authority. His daughter sometimes writes to him. Others from the family visit once or twice ayear. After 16 years in jail, Dharmendra has this to say, ‘It would have been good if you had hangedme at the beginning. What else can I say when I have got no justice. We had thought that Ambedkar’sConstitution will give us justice. But that too has failed.’

3. The Uneven Hand of JusticeThe Verdicts in the Bathani Tola, Lakshmanpur-Bathe, Nagari Bazaarand Mianpur Massacres

What makes the judgment in the Bara casenoteworthy is the application of TADA andconfirmation of death sentences by theSupreme Court. In recent times, the BiharHigh Court has pronounced judgment on fourother cases – the massacres at Bathani Tola,Lakshmanpur-Bathe, Miyanpur and Nagari.Each of these involved attacks by the RanvirSena – the private army that had emerged inthe mid-nineties after the dissolution of theSLF. In each of these instances, the HighCourt acquitted those who were convicted,including the ones awarded death penalty bythe lower court, on grounds of insufficientevidence. Since the matters have not beendeliberated in the apex court, it is importantto examine the acquittals of the upper-casteaccused in these massacres against convictionsand pronouncements of death penalty in thecase of Bara.

The dead and injuredhave no voice at Bathani Tola

On the afternoon of 11 July 1996, a mob of theRanvir Sena men surrounded Bathani Tola, ahamlet in village Barki Kharaon (Bhojpur

district) and launched indiscriminate firing,killing 21 persons, including 2 infants. Eventhough the police and other high officialsreached the village not long thereafter, thefard-bayan, was recorded only at 4.30 am thenext day. The time at which the FIR wasregistered is not known, but it was finallyplaced before the CJM Bhojpur three dayslater on 14 July 1996. After almost two years,in January 1998, charges were framed against62 persons under various sections of the IPC,Arms Act and SC&ST (Prevention ofAtrocities) Act. But when the trial commencedin November 2000, the proceedings werelaunched against 53 accused as some died,some absconded and as against someproceedings were quashed and/or dropped.Thirteen witnesses were examined of whomnine were eyewitnesses. The evidence of oneeyewitness was discarded as he did not appearfor cross-examination. Of the remaining eighteyewitnesses, the evidence of only twowitnesses (Radhika Devi and Naimmudin)was accepted by the Sessions Court. Fourteenyears later, when the sentence was passed inthe Sessions Court on 5 May 2010, 30 of theaccused were acquitted and 23 were convicted,

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with 3 awarded the death sentence. The deathreference and appeals against the convictionswere filed in the High Court. Four of theconvicted filed appeals claiming juvenilestatus. In April 2012, a two-member benchcomprising Justices V.N. Sinha and A.K. Lalof the Patna High Court upheld the juvenilestatus of three (including one person facingdeath) and acquitted all 23 who had beenconvicted in the lower court (Hare Ram Singhand Ors vs State of Bihar, 2012).

The High Court had overturned the lowercourt’s convictions as it disbelieved theprosecution’s story and picked holes in theevidence furnished. It cited a twelve-hourdelay in the fard-bayan and weighed this delayagainst the fact that there was definiteinformation about the massacre from theafternoon of 11 July. It showed the writtenreport of the officer-in-charge of BarkiKharaon picket to Sahar PS, his meeting alongwith the village chowkidar with the officer-in-charge of Sahar PS, the treatment ofinjured people at health centres in Piro andAra and the recording of statements of injuredwitnesses that evening. All these contradictedthe ‘necessary’ delay of the fard-bayan. TheHigh Court noted the prosecution’s failure indeliberating upon the discrepancy between thetiming of the fard-bayan against theavailability of written and oral informationabout the crime. It also pointed out that theprosecution had failed in giving credence tothe Barki Kharaon officer-in-charge’sstatement about cross-fire at the time of thecarnage or the village chowkidar’s statementthat no weapons or ammunitions wererecovered by the police. The court concludedthat the prosecution story appeared to be ‘farfrom the truth’ and castigated the prosecutionfor failing to examine the IO and the villagechowkidar, who had been examined only bythe defense. Further, the bench further citedthe ‘fact’ that the accused were arrestedpeacefully as ‘sitting duck’, that there was atwo-day delay before they were presentedbefore the magistrate and that the statements

of witnesses were taken much later. All thesewere seen as evidence of ‘fabrication’.

The judgment stated, ‘Truth wasdeliberately suppressed by the investigatingagency and the prosecution, only to project aninvolvement of the accused persons, examinedwitnesses who were totally unreliable.’ In theend, the court acquitted all the appellants asit noted, via Eknath Ganpat Aher and Ors vsState of Maharashtra (2010) judgment, thatif there is a reason for ‘reasonable doubt’ afterperusal of evidence, then ‘the court would beobliged to give the benefit of doubt to them[the accused]’. The Court expressed regret overthe fact that a false and misleadinginvestigation had enabled those who‘perpetrated the crime to’ get ‘away with it’.With this observation in mind, it is worthreflecting on a few points.

It should not be forgotten that theBathani Tola massacre was not a one-offincident in Bhojpur – it came in the wake of along trail of killings and massacres by the Senasuch as Sarathua (July 1995), Noorpur(August 1995), Chandi (February 1996),Nanaur (April 1996) and Nadhi (May 1996).The violence at Bathani Tola was hardlyunexpected as the village had been simmeringfor a while. Just a couple of months earlier,about 60 Muslim and lower-caste families hadfled from the main Barki Kharaon settlementto Bathani Tola after a series of small attacksby the local Ranvir Sena (Agrarian Conflictin Bihar and the Ranvir Sena). Three policecamps were set up around the village in lightof the brewing conflicts. But no policepersonnel intervened to stop the massacre atBathani Tola despite the outposts being closeby. The court’s belief that the IO’s writtensubmission (which mentioned cross-fire)should have taken precedence over the fard-bayan nowhere takes cognisance of the factthat had the police acted, the assailants wouldnot have managed to get away with themassacre. It is astonishing that the court laidso much credence on the submission of an

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officer who was suspended for dereliction of dutysoon after.

The court held that the witnesses wereunreliable. Among these ‘unreliable’ witnesseswas Naimuddin, who had lost his sister, hisdaughter-in-law, two daughters (one a minor)and a son (a minor) in the carnage. Anotherson had been gravely injured, and once theRanvir Sena attackers left the village, herushed his son to the Primary Health Centre(PHC) in Piro town. He was deemed to beuntrustworthy because he gave four differentstatements at different points of time. Thecircumstances of these ‘contradictory’statements are of significance. The firststatement appears to have been made at thepoint when the doctor refused to treat his sonbecause of the circumstances and called thepolice. The police told him that unless he gavea statement, treatment would not start. So hesigned a blank paper for the police where upontreatment started on the night of 11 July. Thesecond statement was taken nearly threeweeks later on 30 July after he had shiftedhis son to Patna Medical College Hospital. Yetanother statement was taken on 7 Augustimmediately after his injured son succumbedto injuries. In his examination, Naimuddinsays that he had been made to sign on blanksheets of paper three times before he finallygave his written statement a month and a halfafter the incident on 30 August 1996. None ofthe recording officers were examined. Thecourt was surely aware that Naimuddin hadstood up against the upper-caste dominationand had taken upon himself to personallysafeguard the families which had fled fromBarki Kharaon and that he was a well-respected leader of the CPI (ML).

Another witness whose evidence wasrejected by the High Court was that of theeighteen-year-old Radhika Devi who, at thetime of the killings, was pregnant. She hadbeen shot in the chest, and she identified herattacker, Baccha Singh, as one of theappellants. She was tortured and her fingerswere crushed by the attackers. She was

shunted from the Piro PHC to the Ara SadarHospital and finally to Patna Medical CollegeHospital before she was properly treated. Inher harrowing testimony, the High Courtseized upon one detail: ‘not a chit of paper withregard to her treatment or the nature of injuryfound and treated at PMCH has been broughton record.’ After decrying the absence of anyinjury reports, the judgment raised furtherdoubt about her story on the grounds that‘though she alleges that her fingers werecrushed to see whether she was alive, none ofthe injury reports show any injury on thefingers’. Despite having gunshot wounds in thechest, her claim to have been in the housewhere the shooting took place was disbelieved.The statement of the informant, which failedto mention her as being present at the house,was held up as proof that she was not present,even though the same informant’s statementidentifying the attackers was discredited asfalse implication! Why did the Court not takeinto consideration that Radhika Devi hadstood her ground during cross-examinationand had identified the accused during theidentification parade in court?

Kishun Chowdhury was the firstinformant. He had lost his brother, wife anddaughter in the carnage. He stated that hehad seen the attackers shooting and killingpeople, and setting fire to the houses, and hehad escaped by hiding in a nearby ditch. It isevident from his testimony that the delay tookplace in the wake of the carnage, when thepolice had been noticeable for their strategicinaction while the Sena was on the rampage.The delay occurred when the villagers and thepolice were involved in a tussle over thedisposal and conduct of the post-mortem of thebodies that were strewn about. Theinformant’s explanation that the trauma of thekillings and losing three family members hadleft him in a state of shock and that he hadspent the night at house of a doctor beingadministered intravenous fluids was not givenany credence. And yet, this delay was seen assuspiciously indicative of how the ‘police and

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administration had allowed him [the informant]to mark time, meet people and come up withnames and stories’. Why was the Court soinsistent that the statement of the officer-in-charge be regarded as the FIR? Was it becausethe fard-bayan made no mention of ‘cross-fire’?

The questions are many and the answersfew. For the survivors of Bathani Tola, theHigh Court judgment was not an act of ‘justice’but a travesty of it. If the court had found adeliberate attempt by the police to frame theaccused, action should have been orderedagainst the police, and if the issue was ofnegligence on the part of the investigation andprosecution, it should have ordered areinvestigation and a retrial.

The net result is that no one has been heldguilty for the killing of 21 people. The HighCourt however did not order reinvestigationor retrial in the case. The prosecution has filedan appeal in the apex court in 2012. What thatwill lead to is anybody’s guess.

The many tragedies ofLakshmanpur-Bathe

On the night of 1 December 1997, a mob ofRanvir Sena men attacked the dalit tola inthe village Lakshmanpur-Bathe in Arwalblock of Jehanabad district. The men bargedinto houses, firing and shootingindiscriminately. At the end of the carnage,58 men, women and children were dead. Themajority of the victims were dalits andbackward castes. The youngest was a one-year-old infant. After the mayhem, the killersleft the village shouting slogans in the nameof Ranvir baba, killing five poor fishermen wholived near the river Sone on the way.

The scale and barbarity of the atrocitymade headlines all the way, shocking thewhole nation. The then President K.R.Narayanan described it as a ‘national shame’.The then Chief Minister of Bihar, Laloo PrasadYadav visited the village on 3 December itself.One would have thought that this kind ofoutrage would have propelled the prosecution

and the courts a little more than the routineRanvir Sena massacre. But the second tragedyof Lakshmanpur-Bathe was the manner inwhich the criminal justice system of Indiafailed in responding to the ‘national shame’.

The FIR was filed at Mehandia PS on thebasis of the statement of Binod Paswan on 2December 1997 but reached the CJMJehanabad only on 4 December. Thisinexplicable delay was later to have tragicconsequences. Policemen started looking forsome of the accused named in the statementfrom 3 December onwards, but these peoplewere found to be absconding, except for onewho was arrested. More statements ofwitnesses were recorded over the next fewdays and some of these accused were alsoarrested.

The investigation was transferred to theDeputy SP of the Bihar CID, Patna, on 10December 1997. A charge sheet was finallyfiled on 27 February 1998 against 48 peopleciting 152 witnesses. Later a supplementarycharge sheet was filed against 2 more people,and one person was excluded on grounds ofbeing a juvenile. The case was finallycommitted to the Sessions court on 6 January1999, one year and 4 months after themassacre took place. Since then things becamestranger as the case never came up forhearing! Finally, the Patna High Courttransferred the case to the court of the 2ndAdditional Sessions Judge on 7 October 1999.Despite this transfer, the trial did not beginuntil the High Court was moved again and itinstructed on two occasions, in November andDecember 2008, that the case be transferredto the third Sessions Judge and that the trialbegin and be speedily conducted. Thus, it tookas long as 11 years after the ghastly massacrefor the trial to begin.

Charges were finally framed in December2008 against a total of 45 people. The courtexamined 91 witnesses of which 17 wereeyewitnesses. Their testimonies were the mainplank of the prosecution case. The testimoniesof the 17 eyewitnesses, which recount the voices

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of people who lost their close family membersand saw them being killed, makes for chillingreading. Eleven years after the massacre, theirevidence was taken in court and they were askedto identify the accused they had named. Aftersuch a long gap, they were expected to rememberwhen exactly the police had recorded theirstatement.

Despite the lapse in time, the 17eyewitnesses did a convincing job. Each oneof the short testimonies summarised in theHigh Court judgment is believable, with veryfew discrepancies and contradictions. Many ofthe witnesses must have been really youngwhen the massacre took place. Some of thewitnesses hid while their family memberswere being massacred, either under thecharpoy like Balwanti Devi, or on the roof oftheir huts, concealed by creepers, or behindthe earthen stores in which grain is stored.Some of the witnesses were themselvesinjured, like Mahurati Devi, who was shot atand fell down. She identified Girja Singh whohad killed her mother, Baliram Singh who hadsnatched her chain and earrings, and NawalSingh and Gopal Singh who had shot at herand others.

Based on this evidence, the SessionsCourt III convicted 26 out of the 45 accusedon 7 April 2010. Sixteen of the twenty-sixconvicted were awarded the death sentence,while ten were sentenced to rigorousimprisonment for life under various sectionsof the IPC, Arms Act and SC&ST (Preventionof Atrocities) Act. The remaining accused wereacquitted. The convicted persons appealed inthe Patna High Court. Here is where thingstook a strange turn again. In spite of the strongeyewitness evidence against these 26 people,the two-member bench acquitted all of them,in a judgment passed on 9 October 2013 (Stateof Bihar vs Girija Singh and Anr, 2013).

The V.N. Sinha and A.K. Lal benchconcurred with the defense view that theprosecution had failed to establish its caseagainst the 26 accused and that the massacrewas carried out by unknown persons, who

escaped towards the Sahar area over the riverSone after killing 5 fishermen on the banks ofthe river. The court’s disbelief in theprosecution’s theory rested on the following:(a) the delay in filing of the FIR, (b) theunreliability of the identification of theaccused by the first informant, (c) the failureof the police to record the statements ofeyewitnesses on 2 December 1997, and (d)unreliability of the prosecution witnesses. Thejudgment claimed the higher police officialswere dissatisfied with the investigationsconducted by the SDPO Arwal from the timeof the massacre till 10 December 1997whenthe case was handed over to the Deputy SPCID Patna but who ‘could not salvage thesituation’ as far as identifying the accused wasconcerned.

The core issue in the judgment is that ofdelay. The court held that none of the policeofficials had any satisfactory explanation forthe delay in sending the FIR to the court ofthe CJM, Jehanabad. This delay, the courtobserved, was not a simple lapse but deeplyconnected with the fabricated investigation.The investigating officer met 11 eyewitnesseson 2 December but did not record theirstatements, and they did not furnish anynames of assailants. Their statements and thenames of assailants were recorded onsubsequent dates. Four eyewitnesses whorecorded their statement on 2 December werenot called in court for recording their evidence.The timing of the first arrest and seizure of agun on 3 December was motivated as therewas no reason to believe that the same couldnot have been done the previous day, i.e., 2December. The court held that once theappellants learnt about ‘their implications’after the first arrest of Ashok Singh andseizure of gun from Gopal Singh’s house, theyturned themselves in and surrendered. Thesurrenders were timely as it enabled the IOfrom not investigating who the real accusedwere. The appellants, residents of nearbyvillages, were appropriately ‘implicated’

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through an antedated fard-bayan and doctoredstatements.

The bizarre nature of the judgment, itsbelief that the investigating officer was busyon all of 2 December deciding on whom to fixthe blame and decided the same on 3December by arresting Ashok Singh, defiesreason. It ridicules the arrest of Singh withoutexplaining why the accused would be sittinginside his house the previous day waiting tobe arrested. Equally bizarre is the argumentthat the accused turned themselves in oncethey realised that they were being trapped bythe police in a fabricated case and that therewas no escape. Perhaps even moreunbelievable is dismissal of the eyewitnesseson the grounds that they were unreliable andresponsible for framing innocent residents.For instance, it discounted the identificationof accused by Mahurati Devi as it held thatshe had given the names much after theoccurrence. In a similar vein, the court claimedthat it was impossible for the first informantto have identified 9 assailants when he hadconcealed himself in a room. His statementthat he identified the remaining from the roofof his hut was held as untrue as the assailantswere then retreating and their backs wereturned to him. The evidence of some of theother witnesses was discounted on similargrounds. In numerous cases, the SupremeCourt has held that identification of knownpeople is possible in low light or even in nolight as well as from modes of speech, walkingand gesticulating. The High Court did not atall consider these factors.

At the end, the court put forward apreposterous theory. According to this theory,constructed out of the arguments by thecounsel for the accused assailants, the police,who had no idea of the identity of theassailants, falsely accused 45 defendants andentered into what we can only describe as aconspiracy with the victims of the attack toimplicate these 45 accused in a crime that theydid not commit! If true this should be one ofthe biggest cases of police implicating people

falsely in a criminal case in India, especiallysince 16 people were awarded the deathpenalty.

It is very strange that this aspect of thejudgment has not yet been commented on.This is really very different from cases wherejudges appeal to insufficient evidence to acquitthe accused, or pull up the police for badinvestigations. In this judgment, the HighCourt bench is convinced of the innocence ofthe accused as well as of the guilt of thewitnesses! We should be grateful that the HighCourt did not recommend investigation intothis false case and criminal conspiracybetween the police and the victims. Butperhaps the system of justice in India has notyet reached such Kafkaesque proportions.

Justice has been denied to those killedand injured and their families as themurderers have been allowed to go scot free.The High court did not order a reinvestigationor a retrial in this case too.

The widespread protests after theacquittals in the Bathani Tola andLakshmanpur-Bathe finally compelled thestate to file an appeal against the acquittalsin Supreme Court. The appeal against theBathani Tola judgment was finally admittedin July 2012. The one against theLakshmanpur-Bathe judgment is stillpending. The fact that the state cares so littleabout the ‘national shame’ visited upon thedalits of Lakshmanpur-Bathe that even theappeal in the Supreme Court has not beenpursued, and not yet admitted, speaksvolumes about where its real sympathies lie.

No witnesses left at NagariOn the night of 11 May 1998, about 80-90armed Ranvir Sena activists entered Nagari,a small village under Charpokhri PS inBhojpur. They spread out in the marketcreating mayhem and killing 10 persons. Theofficer in charge of Charpokhri PS arrived atthe village after hearing about the killings andrecorded the fard-bayan of the informant at

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the bazaar itself. The FIR was, however, drawnby another ASI, who had been sent back to thepolice station. Four days later, the case wastransferred to another police officer. The FIRwas received in the court of the CJM Bhojpurtwo days later on 13 May 1998 – a delay thatwas never explained. Trial in the Sessions Courtin Ara against 15 accused was started in 1999.The sentence was delivered more than 10 yearslater in August 2010. Three persons weresentenced to death and eight to lifeimprisonment. The death reference case and theappeal against the conviction came before thetwo-member High Court bench of V.N. Sinhaand A.K. Lal, which acquitted all 11 appellantson 1 March 2013 (Anil Kumar Singh vs Stateof Bihar, 2013).

At the trial stage, a total of 15 witnesseswere examined, of which 8 were eyewitnesses.Of these eyewitnesses, six supported theirstatement in court but two were disbelievedby the trial court and one never turned up forcross-examination. Yet another witnesssupported the prosecution story but could notidentify the assailants. The evidence for theprosecution then rested on two witnesses. TheHigh Court bench proceeded to demolish thecredibility of the remaining two eyewitnesses.Before examining the grounds on which thecourt demolished the two eyewitnesses, it isimportant to point out that, as inLakshmanpur-Bathe, the court drew attentionto the question of delay in sending the FIR tothe CJM Bhojpur. The nearly 36-hour delay,the court argued, suggested that the fard-bayan and the FIR were drawn ‘much laterthan the date and time shown in thedocuments’. Further, the bench drew attentionto the over two-day delay in the production ofthe accused. This delay was significant as itsuggested that the prosecution was not sureof the identity of the accused even though thefard-bayan and FIR had named the accusedand had been formally lodged on the night ofthe massacre.

The bench attacked the credibility of themain witness and informant, Uma Shankar,

by drawing a comparison between his statementand that of the IO’s. Importantly, on the basisof Uma Shankar’s fard-bayan, the FIR waslodged in Charpokhri PS on the same night,i.e., 11 May. Uma Shankar had claimed thatthe killings took place at six successive sitesand he identified sixty of the accused from twopositions: first, from the generator lightrunning in his flour mill, which the assailantshad invaded, and, second, from the naturalmoonlight on the roof top of the adjoining shopwhich he climbed. The court questioned hisstatement by arguing that the IO had statedthat none of the persons present at the site ofthe mayhem that evening had furnished namesof the assailants. The bench further argued thateven though the informant had named 27 outof the 60 for the massacre in his fard-bayan,the IO did not send 14 of them for trial as thespecific allegations were found to be untrue. Thebench opined that the IO found the prosecutioncase ‘false’. Against this, the bench noted theinformant’s failure in taking steps insummoning these 14 accused to face trial byfiling any petition under Section 319 CrPC andsaid that it was ‘reflective of his habit to falselyimplicate innocent persons’.

Next, the bench puzzled over how theinformant had saved himself from theindiscriminate firing as they found not aslightest hint of this in the trial courtproceedings. The bench was convinced that itwould not have been possible for the informantto identify the attackers merely in the light ofthe full moon and generator bulbs. Since theinformant had to also save himself from theassailants, the court doubted his ability toidentify them from the rooftop. The bench gavecredence to the IO’s statement that theinformant had not shown him the ladder(which he used for climbing the neighbour’sshop) or the generator, against the informant’sstatement that he had shown the same to theofficer the night of the massacre. Placingreliance on the IO’s sketch of Nagari Bazaar,the bench concluded that it would be

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topographically impossible for the informant tohave identified the assailants.

Then there was the evidence of anotherwitness, who according to the informant hadidentified the accused but denied identifyingany in court. The witness was declared hostile,but his conflicting account was deemed thetruth and the informant’s evidence wasrejected. The other eyewitness KamleshPandey was present at the occurrence and hadsupported the informant’s account and wasable to identify the accused including theappellants. His evidence was rejected becausehe gave his statement to the police five-sixdays after the occurrence.

Why was the bench so ready to believethe IO over the informant-witness? If theinformant-witness had not really shown thegenerator to the IO, then who provided thepetromax to the IO when he made his inquestreport that night? Just because the IO had saidthat no one furnished names of assailants, didit automatically stand to reason that theinformant’s testimony was false? Why did thecourt choose to pay no attention to the factthat the other witness Kamlesh Pandey hadnot furnished the names of the assailants ofhis brother to the police officer at Piro Hospitalas the officer had not asked him? The benchagreed with the defense that the disclosure ofthe names in the examination by the courts12 years later was ’fit to be ignored’. ‘Fit to beignored’ can well be the epitaph of the evidenceand accounts of witnesses of the Nagarimassacre as demonstrated by the judgment.

The acquittal in this case means no onehas been held responsible for the killing of 10people. The deaths of these people do not seemto be important enough for the High Court toorder a retrial if it was not satisfied with theevidence or for the government to take thenext logical step of moving the Supreme Courtagainst the acquittals. While the Bihargovernment has abdicated its responsibility,an appeal has been filed by CPI (ML)Liberation. Currently, the pleadings in thepetition number SLP (Crl) No. 5110/2013 are

not complete and the matter is yet to be listedfor hearing.

A derailed prosecution at MianpurThe Miyanpur massacre (Aurangabad district)was the last major carnage in which theRanvir Sena killed 33 people to avenge anearlier attack, on 18 March 1999, by the MCCin Senari village of Jehanabad. On 16 June2000, 400-500 people entered the village andbegan firing at the villagers. Tensions hadbeen brewing since the Senari killings, andthere were strong apprehensions of a reprisalattack. Villagers had been patrolling thevillage that night when the attack occurredfrom the east side of the village even as a policeteam approached from the west. Theassailants are alleged to have raised slogansseeking revenge for the Senari violence. TheFIR was registered on 17 June at 11.00 pm,but reached the Magistrate only on 20 June–an unexplained delay – that suggesteddefective investigation.

The charge of the investigation passedthrough three Inspectors in the first 20 daysafter the killings. Charge sheets were filed intwo phases, a first group on 4 September 2000and a second group on 11 April 2002. Sectionsof SC&ST (Prevention of Atrocities) Act werealso added to the charges. Five years later,the Special Judge, in his judgment dated 20September 2007, sentenced nine persons to lifeimprisonment and acquitted two. Thegovernment filed an appeal seekingenhancement of the life-sentence awarded tothe nine accused to death and to revoke theacquittal of the two in the Patna High Court,where it came before the same bench ofJustices Sinha and Lal that had heard theBathani Tola, Lakshmanpur Bathe andNagari Bazar cases. On 3 July 2013, the benchpassed an order acquitting all but one of theappellants (Nand Kumar Sharma @ Netajeevs State of Bihar, 2013).

There were 49 witnesses for theprosecution in the Miyanpur killings. Of these,

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two were declared hostile. The evidence of threewere rejected for failure to appear for the cross-examination as well as that of another threewhose evidence was based on hearsay. Theevidence of another 19 were not considered sincethe miscreants identified by them were not triedin the Session’s trial. Only four out of the twentywho were injured that night were examined aswitnesses. These witnesses were examined aftersix years in 2006 after the High Court passedorders for expediting the trial.

In another bizarre twist, the defenseinitially refused to cross-examine 22eyewitnesses in the instant trial despite beinggiven an opportunity to do so, and thesewitnesses were discharged. Thereafter, the IOgave his evidence and denied that theeyewitnesses had named and identified theappellants before him. Strangely, thesewitnesses included the informant, on the basisof whose evidence the charge sheet had beenfiled. After the evidence of the IO wasrecorded, a High Court order was sought tobring these witnesses back to the stand. Theeyewitnesses, including the informant, werebrought back for cross-examination. Duringthis cross-examination, the witnesses,including the informant, changed their earlierstatements where they had identified theappellants and other miscreants. Now, theysaid that they had not identified the appellantsfrom the night of the occurrence but fromearlier. In short, their role in the prosecutioncase fell apart. This volte-face between theinitial examination and the recall reeks ofwitness manipulation. The prosecutionpointed out before the bench that despiteprovisions of the Indian Evidence Act thatallow for examination and re-examination ofwitnesses before being discharged, the defensechose not to cross-examine witnesses (Nos 31-60). Instead, these witnesses were recalledafter the evidence of the IO was recorded onthe strength of the High Court order. Theprosecution maintained that there was ‘defectin procedure of recording evidence’.

In the end, the evidence of only twoeyewitnesses was accepted. The evidence ofmany were not considered because, curiouslyenough, the persons they named were simplynot tried in the court. The evidence of somewitnesses were deemed unreliable as they hadnot claimed in their evidence that they knewthe accused from before and so could not haveidentified them. One witness was discreditedfor having failed to disclose the name of theattacker at the first opportunity and also fornot being able to explain how he came to hidein pile of hay from where he witnessed thekillings. A witness who had lost six familymembers was disbelieved because he claimedto identify the miscreants by torchlight, butthe IO claimed that he had not been shownany torch. Another witness who lost both hiswife and daughter that night was disbelievedbecause it was held that he could only havehad a fleeting glance at the attackers as hehad stated that he had fled from the scene.Another witness was disbelieved on thegrounds that the statement of the IO that thewitness had ‘neither stated in his statementthat he climbed the thatched roof’ ‘nor had heshown the ladder to him which was used bythe witness to climb the thatched roof’ was, inthe view of the Bench, suggestive offabrication. It is necessary to mention that theeyewitnesses whose evidence were rejectedincluded persons who had been injured andmany whose family members had been killedor injured.

A repeated point made while dismissingthe evidence was the failure to identify andrecord the names of the assailants with theIO immediately after the incident and thatmany of the witnesses appear from the casediary of the IO to have heard the names ofmiscreants and not actually identified them.The unexplained delay in the dispatch andreceipt of the FIR was also raised as castingdoubt on the reliability of the FIR and therecorded fard-bayan of the informant. Theprosecution did point out that the witnesseswere involved in arranging the last rites and

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attending to the injured in hospitalsimmediately after the incident while the IOwas conducting his investigations. Thejudgment notes the prosecution’s argumentabout the shoddy nature of the investigationconducted by this IO, who failed to recordstatements of the injured, the doctors and ofthe police in the neighbouring stations andeven of those in the TIP. The IO also failed tomaintain a full record of relevant entries inhis case diary. The contradictions in thestatements of the witnesses with the case-diary statements of an investigation rife withflaws were grounds enough to throw out theevidence of the eyewitnesses. The bench did,however, allow that ‘it is always open for theState to prosecute the IO if he has notconducted the investigation properly and inaccordance with law’.

While the conviction of one of theappellants Avinash Chandra was upheld, thestate appeal to enhance the sentence to adeath sentence was rejected and the otheraccused were acquitted. The rejection for theappeal to death penalty was based on thestandard set by the judgment in Masalti vsState of Uttar Pradesh (1964). The argumentpresented was that ‘there were only twowitnesses who identified him’ and both ‘failedto assert any overt act against him and theredoes not appear to be any special reason forawarding death sentence to him’. Once again,no retrial or reinvestigation was ordered. Astatutory criminal appeal has been filed by thestate against the acquittals in the SupremeCourt in 2013. The matter is yet to be heard.

The Questions in BaraA comparison between the four verdictsdiscussed above with that of Bara raises somesignificant issues regarding judicialinterventions in cases of massacres. As far asdeath tolls are concerned, the cases arecomparable: 35 in Bara, 21 in Bathani Tola,58 in Lakshmanpur-Bathe, 10 in Nagari and33 in Mianpur. Barring Mianpur, in each casethe trial court awarded death penalty: 7 in

Bara, 3 in Bathani Tola, 16 in Lakshmanpur-Bathe and 3 in Nagari. Apart from this, 4people in Bara, 20 in Bathani Tola, 10 inLaxmanpur – Bathe, 8 in Nagari Bazar and 9in Miapur were convicted with punishment upto life imprisonment. In Mianpur, it shouldbe remembered, the government filed anappeal seeking enhancement of nine life-imprisonment to death penalty. When theHigh Court awarded its judgments in the fourcases (i.e., Bathani Tola, Lakshmanpur-Bathe,Nagari and Miapur), barring one person forMianpur, all the accused were acquitted.Given that the Supreme Court conferred deathpenalty on four of the accused in the Baramassacre through a majority judgment, it isimportant to see where the differences lie.

In terms of details, it may be recalled,that in each of the High Court verdicts(delivered by the same bench), the role of thefirst informant, the one whose fard-bayanprovided the basis of the FIR, came underheavy scrutiny. Barring Mianpur where thenature of the trial was so questionable, theHigh Court disbelieved the informants andtheir statements primarily on grounds ofdelay. In each of these cases, the court heldthat the time lag between the lodging of thefard-bayan and FIR and the same being sentto the CJM was deliberate and suggestive offabrication of identity of the accused by theinformants. In the case of Bathani Tola, thebench argued that instead of the fard-bayan,if the prosecution had relied on the officer-in-charge of Badki Kharaon’s written submission,then it would have been obvious that therewas a crossfire and not a one-sided attack.

In the case of Lakshmanpur-Bathe, thecourt held that the delay in taking statementsfrom eyewitnesses was part and parcel of thefabrication process that the police andeyewitnesses jointly concocted. Theidentifications of the accused by theeyewitnesses were discarded for threeprominent reasons: one, because they weremotivated and hence unreliable; two, becauseof discrepancies between their statements; and

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three, because circumstantially or becausedarkness or from the roof top, it could not havebeen possible for them to identify theassailants. Notwithstanding the fact that theeyewitnesses had done a commendable job ofidentifying the assailants while being in astate of shock and trauma, the court discardedthem as unreliable. In short, delay, shoddyinvestigations and unreliable witnessescontributed to the ‘obvious’ acquittal of theaccused who were ‘innocent’ of all charges,barring Mianpur where the court convictedone accused to life imprisonment because hewas ‘reliably’ identified.

While the acquittals on the basis ofinsufficient evidence are understandable, thecourt did not order a retrial in any of the fourcases, thus denying justice to the dead andthe survivors of these four gruesomemassacres. In comparison, the snags in theBara case seem similar, except for the judicialinterpretation of the same. The first informantwas never produced, but this did notcompromise the trial. Post Bara, the informantSatyendra Sharma went on to become animportant member of the Ranvir Sena, theGaya district chief, who carried an award ofone lakh rupees but proudly declared that ‘nopolice will dare touch me’ (Indian Express, 4December 2004). Ironically, his role was never

investigated and this was never considered alapse. During the investigation, delays occurredin gathering statements from eyewitnesses, butthese were condoned as inevitable. The case ofBunde Singh is important. His statement wasrecorded two days after the occurrence. Themajority judgment argued that it could not becalled ‘inordinate’ given the circumstances of a‘caste war’ in the village. The case of BudhanSingh is even more interesting as his statementwas recorded on the third day. The apex courtheld that the delay was not ‘inordinate’ giventhe fact that the place was swarming with VIPvisitors and that the witness, like many others,was in a state of shock and compelled toperform the last rites of near and dear ones.The court similarly accepted the eyewitnessaccount of Krishna Devi, whose statement wasrecorded two days after the massacre. TheCourt did not see any possibility ofmanipulation in these cases.

Like in the incidents of massacrescommitted by the Sena, eyewitnesses in Baraclimbed on to neighbours’ roofs to savethemselves and identified the assailants fromthere. The apex court treated these asimportant pieces of evidence. For instance,Ram Sagar Singh claimed to have identifiedKrishna Mochi and Nanhe Mochi, as he had

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4. Penalty of Death and Crimes of Terror

climbed on to the neighbour’s house, from wherehe alsosaw the MCC squads devastating thevillage. The apex court accepted him as aneyewitness and believed that his account was‘free from any doubt’. Significantly, he claimedthat he opened his door and came out of hishouse when he heard the sounds of firing. Theaccused saw him and shouted at him. He thenran and climbed his neighbour’s roof and sawthe accused. The courts never asked him howhe managed to (a) save himself from the accusedand climb the roof and (b) see in darkness. Onthe other hand, in Nagari Bazar, the High Courtdoubted the ability of the informant to identifythe accused from the rooftop, and inLakshmanpur-Bathe, the court doubted theability of the witness to identify the accusedfrom the rooftop as the assailants wereretreating, with their backs turned to him.Unlike the Mianpur case where the courtdiscarded the testimony of certaineyewitnesses because they knew theassailants from before, in Bara case the apexcourt admitted the statement of Dhananjay

The background of the killers and the victims,the composition of the state machinery and itsbiases, the political views of the warring sides,the proclamation of one as ‘terrorist’, all playtheir part in this saga of acquittal and thepenalty of death.

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Singh who categorically said that he knewKrishna Mochi from before. More importantly,he lost consciousness during the slaughteringoperation, but when he regained consciousness,he was perfectly stable and could recogniseKrishna Mochi as one of the killers. This was,however, of no significance for the court.

In sum, the actions that constitute thecrimes in the all the cases detailed above arevery similar. The delays and improprieties ininvestigation, the shortcomings and orstrengths in witness testimonies, are similartoo. The delays during the trials are alsosimilar, between 6 and 14 years in the fivecases. Yet the outcomes are starkly different.

An unjust law is itself a species of violence.Arrest for its breach is more so.

—M.K. GandhiIn August 2015, the Law Commission publishedits report titled ‘The Death Penalty’ thatanalyses the practice and theory of deathpenalty in India and the world. It examinesin detail the arguments for the retention ofthe death penalty: deterrence, retribution andpublic opinion. The report concludes thatpronouncing death is not a solution to anypenological goal: it does not serve the goal ofdeterrence any more than life imprisonment;the Constitution does not permit ‘retributionas revenge’ as a goal; retribution as deservedpunishment lacks the principle to decide thescale of punishment; the principle ofproportionality in punishment is itself basedon evoking repentance from the offender and

hence rules out death. Further, ‘public opinion’is no sufficient argument for retaining thedeath penalty, for reliance on public opinionwould never have permitted the outlawing ofuntouchability, sati or child-marriage.

According to the report, the reasons toeschew the death penalty are many: it leadsto losing sight of the restorative andrehabilitative aspects of justice; it divertsattention from other problems ailing thecriminal justice system such as poorinvestigation, crime prevention and violationof the rights of victims of crime; it leads toarbitrariness in awarding the sentence and noprincipled method exists to remove sucharbitrariness; it makes irreversible themiscarriage of justice inherent in a criminaljustice system marked by lack of resources,outdated modes investigation, an over-

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stretched police force, ineffective prosecution,and poor legal aid; it is disproportionatelyslanted against the socially and economicallymarginalised who may lack the resources toeffectively advocate their rights within anadversarial criminal justice system. Inaddition, the presidential powers of mercymeant to safeguard against miscarriage ofjustice have repeatedly failed in their statedpurpose.

While there has been a systematic lackof any conviction of the accused in massacreafter massacre perpetrated by the landlordarmies, the death penalty was the punishmentchosen by the Supreme Court in the case ofBara despite a split verdict. What seeks tojustify this prejudice is the terming of one ofthese massacres as ‘terrorist’ while the restremain ‘non-terrorist’. The judgment thatholds Bara to be the instance where those whoonce ruled Bihar were massacred dovetailsnicely into the argument that the killers mustbe terrorists. Consequently, since the othermassacres comprised killings of those who alsodied frequently of malnutrition, curablediseases, heat and cold, the killers did not needto be labeled terrorist. Bara thus happens tobe the only criminal case among all themassacre cases that was tried under TADA.

The application of TADA conferred onBara a ‘terror’ label, which made itsinvestigation and trial extremely unfair. Theaccused remained incarcerated from the timeof their arrest without any bail. Their trial wasconducted in a Designated Court, a courtcreated specifically to underscore that theaccused brought for trial were accused of actsof ‘terror’. Then, confessions extracted by thepolice through whatever means wereadmissible as evidence. And finally, theaccused were denied appeal to the High Courtagainst the trial court verdict.

The fact that three of the four accusedsentenced to death, Krishna Mochi, Nanhe LalMochi and Vir Kuer Paswan, were landlessdalit peasants who worked as harwaha beforetheir arrest would probably have in any case

led to their torture during investigation, denialof bail and lack of effective legal aid. But theapplication of TADA through its unholyprovisions and the space that it grants forjudicial biases slanted the odds to the extentthat down the slippery slope was the onlypossible outcome. These very biases againstthe underprivileged, the poor, backward castesand minorities were the basis for the publiccondemnation of this law and for theParliament to let TADA lapse in 1995. As thepublic focus on TADA waned after its lapse,for those condemned to this beast, as in thecase of the Bara accused, its afterlife continuedunaltered.

The successors of TADA, POTA and itscurrent avatar, the amended UAPA, aresimilar in their essential structure and theirimpact – that they tilt the scales against theaccused to the extent that a reasonablelikelihood exists that an innocent may beconvicted or jailed for a long period. This isachieved through permitting the violation ofestablished procedure including the right tobail, lowering the benchmark for acceptableevidence, enhancement of punishment for theaccused and widening the set of actions thatconstitute a criminal act. It is this bias thatcripples the individual in defending himselfand makes a mockery of the rights of theindividual conferred by our Constitution andthe Universal Declaration on Human Rights.

All terror laws inherently incorporateprovisions that permit extreme arbitrariness.Take for example the definition of a terroristact as defined in section 3 of TADA in thecontext of the massacres in Bihar. Each of themassacres satisfy this definition in all thethree respects: intention to ‘strike terror in thepeople or any section of the people’; with theuse of ‘firearms or other lethal weapons’; andcausing ‘death of, or injuries to, any personor persons or loss of, or damage to, ordestruction of, property’. During the period ofthe operation of TADA (1985-1995), at least23 massacres occurred in what is now south-west Bihar in which 256 people were

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murdered. Yet none of the massacres of dalitsand the labouring poor by the landlord armieswas seen fit to invite the provisions of TADA.What permitted this unfairness was that thecrime was decided not on the basis of what anaccused does but on the accused’s intentionfor doing so. All later versions of terror lawscontinue with thisbasic premise. Thesignificant change over time is that the powerto ascribe this intention gradually proceededfrom the superintendent of police and the IGof police to the central government.Introduction of provisions to labelorganisations as terrorist and impose bans onthem made this arbitrariness an issue ofconvenience for the political party in powerat the centre. It also meant that landlordarmies, or other organisations wishing tomaintain the existing structure of power anddominance, would not be labeled as terrorist.

It is this unfairness, one that arises outof the arbitrariness of application of terrorlegislations, that endangers social life. For itprepares the ground for the belief that appealto constitutional remedies is futile, that thestate and its functionaries are mere parties tothe conflict, not defenders of constitutionalnorms. Thus terror laws, contrary to theirstated purpose, and due to the extremeunjustness in their application, promote thevery forms of violence that they are expectedto curb.

Examine the proceedings from the Baracases at hand. Significantly, none of the threeapex court judgments on Bara deliberated onthe appropriateness of the applicability ofTADA. It was accepted as a given. But thethree judgments disagree on what terrorismspecifically means and this has an impact onthe punishments. Four of the accused weresentenced to death because the majorityjudgment (by Justices B.N. Agrawal and A.Pasayat) held that the eyewitnesses werereliable. Four of the accused were acquitted(by a bench comprising Justices M.B. Shah,B.N. Agrawal, A. Pasayat) because the benchheld that the confessional statement should

not have been relied upon for convicting theaccused. One accused was acquitted and twodeath sentences were commuted by the thirdbench (by Justices A.K. Patnaik and H.L.Gokhale) that gave credence to the issues ofinordinate delay, faulty investigations and thecircumstances of the accused, including theirimpoverished status. In short, three differentconclusions were drawn from the sameinvestigation and prosecution in which thethird judgment relied on the first so as not torepeat its conclusions. While the judgmentsand punishments are undoubtedly directed bythe particularities of each of the cases, the lackof common consensus among the judgmentsrenders the issue of ‘terror’ even moreproblematic. In this context, the contrastbetween the majority judgment and the thirdjudgment are stark.

The majority judgment delivered byJustice Agrawal staunchly believed that theaccused belonged to the MCC, ‘an organisationof militants’ which ‘hatched up a conspiracyto massacre members of one particularcommunity in the village…’It is significant tonote that there was no clear evidenceconfirming that the accused belonged to theMCC other than the presence of a large groupof persons and the chanting of slogans bypeople in this mob. Despite noting that it was‘a caste war between haves and have nots’, themajority judgment drew attention to how theincident was a ‘gruesome murder of 35 personsof one community which was the mostpowerful one in the State at one point of timeand ruled Bihar for decades’. The reiterationof the historical dominance of the upper-castevictims begs the obvious question: was thecrime particularly ‘bad’ or ‘worse’ because the35 victims were Bhumihars who weremassacred by the ‘have-nots’?

The third judgment delivered in 2012 bythe bench of Justices Patnaik and Gokhalereferred to the majority judgment to draw anentirely different conclusion regarding the so-called caste-war between ‘haves’ and ‘have-nots’. It noted the impoverished status of the

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accused and the fact that the attack was‘retaliatory’. While the witnesses did notanywhere state that they belonged to theMCC, the judgment stated ‘It is quite possible

that due to their poverty and caste conflict inthe villages they were drawn in the melee andparticipated in the crime’. Drawing upon otherjudgments as well as the dissenting judgment

Lost in transition - Status of the mercy petition

In the Bara massacre case, the four accused Krishna Mochi, Nanhe Lal Mochi, Vir Kuer Paswan andDharmendra Singh were found guilty under TADA and sentenced to death by the Sessions Court,Gaya on 8 June, 2001. The Supreme Court in the judgment in Krishna Mochi & Ors Versus. State ofBihar (Appeal (Crl.) 7610.2001)] petition confirmed their death sentence on 15 April, 2002, with thedissenting note by Justice M B Shah on the award of death. The mercy petition was filed by the fourprisoners on death row to the President a year later. When the PUDR team visited Bhagalpur jail,the jail authorities showed us the documents of official correspondence in which the date mentioned,on which the mercy petition was first sent by the jail was 31 March, 2003. The jail authoritiesinformed us that the petition was sent to the President forwarded by the Bihar Government as pertheir information; however, there was no intimation from the Bihar government on the status of thepetition until 2014.

In another response to RTI filed by National Law University to the Prison and Reform Dept., BiharGovernment on 16 June, 2015, it is stated that on 10 April, 2004, the Prison and Reform Dept. hadforwarded the mercy petition to the President. However, the letter dated 14 June, 2004 written by theGovernor’s Secretariat Bihar to the Law Department, Bihar government, states that the petitionclaimed to have dispatched on 10 April, 2004 has not been received by the Governor. It was in April2014, eleven years after the petition was sent from the jail that the Chief Secretary, Bihar Government,wrote to the jailor, Bhagalpur jail enquiring about the mercy petition. This was in reference to theletter dated 4 April, 2014 in which the Ministry of Home Affairs (MHA) had written to the Bihargovernment stating that the mercy petition had not been received by the Central Government andalso asked to state the reasons in inordinate delay in sending the petition. The Bihar Governmentwrote another letter in August 2014 asking the jail to send the mercy petition again. In response,the Bhagalpur jail authorities replied back to the Chief Secretary, Bihar on 17October, 2014 thatthey have sent the mercy petition again. Since then, the jail authorities claimed, there has been nointimation from the state government. It is worth noting that the search for the petition almost adecade after it was filed and lost began only after the intervention by the Asian Centre for HumanRights (ACHR) early in 2014. ACHR had filed an RTI in 2013 with the MHA asking for a list of mercypetition received by the President of India since 1981.

In the reply by the MHA, the list sent to ACHR did not show the names of the death row prisoners inthe Bara case, following which ACHR filed a complaint with the National Human Rights Commissionto intervene in the matter of the ‘lost petition’. In the wake of these developments, the Central andthe State governments got alarmed and series of official correspondences were exchanged to tracethe untraceable petition. Whether the Bihar government sent the petition or it never managed tosend it or while shuttling between different departments in the state the petition got lost in theprocess, we don’t have an answer. The real question now is that of culpability. Is this act ofauthoritarial callousness not violating the fundamental right to life of the prisoners on death row?Who is guilty? The petitioners who had appealed for their right to live continue to languish indarkness, oblivious of the fatal callousness of the authorities. They know that the mercy petitionwas sent and it hasn’t been acted upon but they do not know that their petition hasn’t even reachedthe person it was addressed to, in now nothing less than thirteen long years of their ordeal inprison.

The mercy petition is with the president for adjudication and the Ministry of Home Affairs has sentits recommendations to the President on 8 August 2016.

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delivered by Justice Shah, the third benchcommuted the death sentences. There are,thus, differences in the judicial interpretationson the question of caste-war and its invocationas a ground for justifying the death sentences.There are also differences in dealing with theevidence of the association of the accused withthe MCC. This lack of agreement in the differentBara judgments raises a more fundamentalquestion about the designation of the crime asan act of terror.

It is this context that makes the deathpenalty imposed on the four Bara accused moresignificant. It also brings into question thereluctance of the Law Commission to demandabolition of the penalty of death for thoseconvicted of terror crimes. The LawCommission report had argued for the abolitionof death penalty for all crimes except thoserelated to terror without providing anyreasoning how the death penalty serves someadditional purpose in such crimes. The Baracase is as good a terror case to examine thisreluctance. First, the trial under TADA meantthat the provisions of this law, coupled with thejudicial biases emanating from the terror labeland from the social stratification permit agreater deviation from settled procedure andtherefore a higher probability of the conviction

of an innocent. Second, the accused suffer fromsocial and economic backwardness to the extentthat they had little access to legal help or evento meet their lawyer. Third, the application ofthe terror law meant that one set among thoseaccused of massacres is to be treated as terroristand hanged, whereas all the other accused areto be acquitted. Fourth, this power todifferentiate between terror and non-terror is apurely executive power exercised by thegovernment at the centre without referenceeither to the judiciary or to the Parliament. Andfinally, the extreme apathy concerning thosecondemned to death, that the Law Commissionreport cites, is visible here in all its nakedness:the accused have been in solitary confinementfor 15 years since the trial court verdict andthe mercy petition sent by the accused to theGovernor has been lost in transit (and this lossremained unknown to the government for 11years). A crime designated as terror differs fromothers only in the fact that the political viewsof the perpetrator organisation are at that timeconsidered antithetical by the government inpower at the centre. The imposition of thepenalty of death in cases listed as terror crimesis therefore as ill-advised, if not more, as inother cases.

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5. ConclusionThe documentation of judicial outcome of thefive cases of massacre should be seen in thesocio-economic context of the agrarian conflictsof 1980s and 1990s in central Bihar. When thelandless and near landless and mostly lowercaste villagers asserting for a life with dignity,with the support of one or the other MLorganisations and the upper caste landlords werecrushing this assertion, through attacks usingtheir private militia.While all the accused (barring one) of thedreaded Bhumihar army Ranvir Sena in thefour instance of killings of landless lower castepeople in Lakshmanpur-Bathe, Bathani Tola,

Mianpur and Nagari were acquitted by BiharHigh Court between 2012 and 2013 for lack ofevidence, the Supreme Court upheld the deathpenalty of four accused (in 2002) and convictionof two others (in 2013) in the incident of killingof 35 Bhumihars in Bara by MCC. The HighCourt did not order any reinvestigation or retrialin these four cases thus effectively letting theguilty of 122 killings go scot-free and denyingjustice to them and the survivors. In contrastthe Supreme Court on the other hand ignoredthe shortcomings in the evidence and faulty andarbitrary invocation of TADA in even upholdingthe death penalty in the Bara case. The

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Supreme Court made it more than clear thatthe offence becomes more serious as it involveskillings of persons of a dominant caste. Therewas a huge hue and cry in the media and thesocio political circles after the fourth judgmentin series, i.e. Lakshmanpur-Bathe waspronounced in October 2013, all leading toacquittals, however the victims and thesurvivors of four massacres and their quest forjustice were soon forgotten.The investigation and trial in the four caseswhen contrasted against Bara massacreshows, that the criminal justice system isloaded in favour of the powerful against thepowerless, and that the awarding ofpunishments is itself in keeping with existinginequalities. Members of the police and thejudiciary in the conduct of their duties replicatethe same caste structures and prejudices thatcharacterize the society from which they come.The arc of history of people struggling for justicein India is long but it bends in favour of injusticewith a regularity which tends to make it a rule.A close look at, the investigation and trial ofthese five cases points to the interplay of socialdynamics and the resulting judicial bias thatleads to different fate of similar crimes butdifferent accused and victims. More so becausethe same pattern is observed in case after caserelated to agrarian massacres in Bihar. In 2009,the Sessions Court of Jehanabad acquitted all10 Ranvir Sena accused of the killing of 11Dalits in Narayanpur in 1999. On 14 January2014, a trial court in Jehanabad District ofBihar acquitted all the 24 accused members ofRanvir Sena in Shankarbigha killings of 1999on grounds of ‘lack of evidence’. In this case allthe 50 witnesses had turned hostile as theaccused were out on bail and threatened andpressurized them. Repeated request to the policeand the court to provide security to them

remained futile. On the other hand the case ofkilling of three including a policeman in Arwal,in 1986, reached up to the Supreme Court in2004 which upheld the conviction of 14 accusedof the CPI (ML) by the TADA Designated Court.That TADA was invoked in this case also shouldalso be noticed. Similarly the case of killing of42 Rajputs in Dalelchak-Bhagora, in 1987, byMCC, reached Supreme Court in 1996. Thecourt commuted the death penalty given to theeight accused as it held that it was not ‘proper’to hang the accused based on the testimony ofthe lone eyewitness, a child of nine years, butthe conviction stays.The question arises as to how do the evidencein the cases of massacres by Ranvir Sena alwaysremain inconclusive and how do the casesrelated to massacre of upper caste reach alogical conclusion? It is surely by design andnot by chance. Selective use of TADA, banningof organisations, award of death penalty all arepart of the design that is required to maintainthe status quo. A design that warns the havenots against raising their voices againstinjustice and gives a message to the dominantsto carry on with their ways of exploitation.Lastly, Law Commission’s recommendation toretain death penalty in terror crimes contradictsits own argument of arbitrariness given infavour of abolition in the other cases. It is thestate machinery that in a completely arbitraryfashion decides which organisations are to bebranded as ‘terrorist’ organisations and whichcrimes as ‘terror’ crimes. Thus the use of terrorlaws in such instances is also completely biasedand arbitrary. As can be seen in Bara case, oncesuch labeling occurs, the judiciary also viewssuch cases differently and the consequences canbe as serious as death penalty. Hence, retentionof death penalty for ‘terror crimes’ is absolutelywrong. 12345

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The burden of life: “rest of their natural lives”In 2013, in Bara massacre case, the two-member bench (Justices Patnaik and Gokhale)

of the Supreme Court acquitted Naresh Paswan and commuted the death sentences of VyasKahar and Bugal Mochi to life imprisonment. All three had been sentenced to death underTADA by the Designated Court in 2009 and sentenced to life under various sections of theIPC for their alleged role in the Bara massacre. The apex court acquitted Paswan for threereasons: the FIR did not mention his name; he was not identified in court; and none of thewitnesses attributed any role to him. For Vyas Kehar and Bugal Mochi the bench upheldtheir conviction but, commuted their death sentence into one of life imprisonment, stating:“imprisonment for life, which is to mean the rest of their natural life” (Vyas Ram @ VyasKahar & Ors vs State of Bihar, 2013).

Notwithstanding this judicial context, it needs to be noted that the life imprisonmentsawarded to Kahar and Mochi are patently unfair. In the absence of any clarification, one canonly conclude that along with the terror label of the case the ongoing debates on lifeimprisonment may have influenced the judicial power to impose the caveat, “rest of theirnatural life”.

The problems with such sentences are manifold. First, in the context of the Bara massacre,even though the evidence collection and investigation was shoddy and unreliable yet, it wasdeemed sufficient to uphold the death sentences and life imprisonments. In comparable cases,like in the Laxmanpur Bathe massacre, the High Court acquitted all the accused, whoincidentally belonged to forward castes, citing poor quality of evidence.

Second, imposing such a sentence invariably points to the lack of reformative intent. Bykeeping persons in jail for the term of their natural lives, the court ensures the impossibilityof their release and rehabilitation in society. Instead, such convicted persons are treated asundesirables with no place in society. In short, such a sentence underlines the agonizinginability of our prison and criminal justice system to reform and rehabilitate accused persons.

Third, jurists and lawyers worldwide have held that certainty should be preferred overseverity while sentencing; consistency and predictability in criminal trials should be thenorm rather severe sentences. Severe sentences are retributive in nature as they imply aloss of faith in the person by the state and society. Such sentences encourage criminal behaviouras the accused has no incentive to enter the “reformative process” of the prison system, sincethe person has to spend the rest of his life in jail.

Fourth, with the pathetic state of prisons in India it can hardly be left to imagination thetreatment meted out to prisoners. Our highly overcrowded prisons are hotbeds of crime,torture, and inhuman treatment. It is not surprising that the jail system consistently failsin its objective of restorative and rehabilitative justice and this aspect is not hidden from thestate and the courts, as they are equally aware and culpable in such a rotten system. In sucha scenario, sentencing for life without possibility of release signifies the hypocrisy of thesystem which does not actually believe in taking back its delinquents ever.

Life imprisonment is a contested area within jurisprudence and the recent apex courtjudgments have underlined an inescapable irony: if commutation is the first step towardsabolition of death penalty, then the phrase, ‘rest of their natural life’, nullifies this claim. Ifthe Court reserves the right to deny remission and extend the imprisonment up till the endof the convict’s life, then what kind of life is that?

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PUDR demands

1. All the four convicts on death row in the Bara case have been in jail for around twodecades. During this entire period they have not been let out for even a day. The jailauthorities have no complaints against their behaviour. Being on death row, they havesuffered the fear of death each day since their conviction and more seriously since theconfirmation of the penalty by the Supreme Couth in 2002. They continue to be subjectedto solitary confinement in the death cell since that date. Their testimonies to our teamillustrate how they have suffered the sentence of death many times over. So concernedhas been this criminal justice system about the imposition of the death penalty, thatthey have been forgotten in jail and their mercy petitions lost in transit. It is high timethat this state and this society stop this ongoing torture. The four condemned mendeserve to be released so that they can spend the last days of their lives in freedom. Wetherefore demand that Nanhe Lal Mochi, Krishna Mochi, Vir Kuer Paswan andDharmendra Singh should be pardoned and released by the governments to underscoretheir commitment to fairness and humanity.

2) While the inordinate delays have led to extreme torture for the death row convicts, thesame delays have been responsible for the lack of any conviction in other cases ofmassacres. Any further delay by the Supreme Court in hearing the appeals is tantamountto rejecting them. We demand that these cases be heard on priority.

3) Retention of death penalty in case of terror crimes, as recommended by the LawCommission, would mean that the arbitrariness and injustice in imposing this aspunishment will remain. We demand that the death penalty should be completelyabolished.

Published by: People’s Union for Democratic Rights (PUDR)For Copies: Dr. Moushumi Basu, A-6/1, Aditi Apartments, D Block, Janakpuri, New Delhi:

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