AS NATION PREPARES TO CELEBRATE REPUBLIC DAY, IN KANDHAMAL, SURVIVORS OF COMMUNAL VIOLENCE FACE A THIRD DISPLACEMENT

Around 100 survivors of communal violence, who have been staying in an abandoned NAC market complex at G. Udaygiri of Kandhamal district after the forcible closure of relief camps by the government, have been asked by the local administration to vacate the place. With the news of visit of a European Commission team to the region, the government have ordered to remove the people again as a part of its attempt to project that government had brought back normalcy in Kandhamal and violence affected people are living at their villages peacefully without any threat.

`The BDO has asked us to vacate immediately and if we refuse police force will be used,' said the worried survivors of Kandhamal violence. When the violence broke out on August 23, 2008, they were forced to leave their villages and their houses were burnt down. They had to take shelter in relief camps, but they were forced to leave from there also after the new BJD government come to power. Hence they had taken shelter in the market complex like beggars.

`Where can we go with these two babies?' asked a crying mother Ms. Menaka Nayak (25). Her youngest baby was born in the camp itself. `We can not go back to our village, because they will not allow us to live there if we do not convert to Hinduism. The government is not prepared to provide security and necessary help. On top of it they are trying to throw us out from here also’.

Mr. Moses Nayak, who has been prevented by the Hindu fundamentalists to come back to his village Ratingia as he had refused to change his religion unlike his two brothers, presently solely depends on daily wage based labour works, has no other options than to stay here. An elderly couple from R.Padikia village are also debarred to come back to their ancestral land as they failed to present their two ‘pastor’ sons before the communally motivated village mobs.

Following the dreadful communal violence around twenty thousand people have already migrated to different places outside Kandhamal. There are another five thousand people, who neither can afford to go outside nor can go back to their villages, living like refugees in various places of their home district. Although the district

administration is claiming of ensuring security, peace and rehabilitation to the survivors, the reality speaks of a different story. The seventeen families from the villages such as R.Padikia, Kutuluma, Loharingia,Kilakia, Jimmangia, Dakedi, Kiramah, Ratingia staying in NAC market complex are virtually landless and legally not entitled to claim their house damage compensation as they do not have records of rights over the lands they used to have their houses since generations. Whoever have RoR over their small patches of homestead land, are debarred by fundamentalists to reconstruct their houses. Very few people were given compensation and again that amount was not more than Rs.10, 000.

`Even after seventeen months, there is no indication of justice for the survivors of communal violence in Khandamal', says Fr. Ajay, Director, Jana Vikas, an leading NGO in Kandhamal who represents National Centre for Dalit Human Rights (NCDHR) `There were 295 churches and 6,000 houses burnt down apart from schools, hospitals and other institutions. The victims are none other than poor adivasis and dalits. Urgent action is needed from the government to take care of the needs of the refugees of communalism who have been reduced to the level of beggars and second class citizens. This is not a matter of charity, but a fundamental right enshrined in the constitution of India’. The office building with other accessories belonging to Jana Vikas was one of the first to be burnt down on 25th August 2008.

`It appears that the existence of refugees of communalism is threatening the image of the Orissa government' says Dhirendra Panda, well known secular activist from Orissa. `That is the reason why they are trying to remove them instead of facilitating their security and rightful restoration’.

Mr.Sarat Nayak from Dakedi, a landless labour who can not go back to his village, complains of the indifference of the school authorities to get his child admitted in any other school. It has been found a numbers of children within age group of 5-14, who are staying in this non-official camp, had to discontinue their studies and there is no visible action by the local administration to bring back these children to schools again.

Let alone other problems, now the first and foremost need is prevent further evacuation of these hapless and hopeless adivasi and dalit victims. Whatever may be the intention, excuses or explanations put forth by the government, the reality is that one hundred victims of communal violence will be thrown out on streets within a day or two. Perhaps, the secular and human rights activists may respond.

[Original report by: K.P.Sasi, Film Maker]

BJP leader Charged in Nun’s Rape

Friday, 11 December 2009
Vishal Arora/ Compassion News

Police in Orissa state have arrested an official of the Hindu nationalist Bharatiya Janata Party (BJP) for allegedly leading an attack that ended in the rape of a Catholic nun during last year's anti-Christian mayhem in Kandhamal district.

Officers in the eastern state of Orissa had been searching for Gururam Patra, identified by local residents as the general secretary of the BJP in Kandhamal district, for more than 14 months. Arrested on Saturday in Balliguda, Patra was charged with leading the attack but not with rape.

Dilip Kumar Mohanty, an investigating officer, told Compass that a non-bailable warrant had been issued against Patra, accused of being "the main organizer" of the attack on Aug. 25, 2008, in which then-28-year-old Sister Meena Lalita Barwa said she was gang-raped. Mohanty said he had gathered "sufficient evidence" against Patra.

"He is the one who went into the house where the nun was staying and took her out, along with his associates who outraged her modesty," Mohanty said.

Previously police had arrested 18 associates of Patra.

The Rev. Ajay Singh of the Catholic Archdiocese of Cuttack-Bhubaneswar told Compass that Patra had become a "terror" for local Christians, as "he was threatening against [those] identifying the accused in numerous cases."

Violence in Kandhamal took place in August-September 2008, killing more than 100 people - mostly hacked to death or burned alive - and incinerating more than 4,500 houses, as well as destroying over 250 churches and 13 educational institutions. The violence began after a VHP leader, Swami Laxmanananda Saraswati, was killed by Maoists (extreme Marxists) on Aug. 23. Hindu extremist groups wrongly blamed local Christians for the assassination.

A local Christian from K. Nuagaon village, where the nun said she was raped, told Compass on condition of anonymity that Patra was the general secretary of the BJP for Kandhamal district. But the BJP and its ideological mentor, the Hindu nationalist conglomerate Rashtriya Swayamsevak Sangh (National Volunteer Corps or RSS), were reluctant to admit association with him.

Suresh Pujari, president of the Orissa state BJP, told Compass that he did not know if Patra was a member of his party.

"I have heard his name, but I have never met him," he said. "The BJP is a big organization, and I cannot know everyone."

RSS spokesperson Manmohan Vaidya told Compass that Patra was a block president (a local government position) in Balliguda during the violence.

"He may have attended a few meetings of the RSS, but he was never associated with the organization officially," he said.

Investigating officer Mohanty said police have yet to establish his affiliations, but "it appears that he was from the RSS group." Mohanty said Patra was not accused of rape but of being the main leader of the attack.

On Nov. 11, Orissa Chief Minister Naveen Patnaik, told the state assembly House that 85 people from the RSS, 321 members of the Vishwa Hindu Parishad (World Hindu Council or VHP) and 118 workers of the Bajrang Dal, youth wing of the VHP, were rounded up by the police for the attacks in Kandhamal.

Educated by Christians

Union Catholic Asian News (UCAN) agency reported Patra attended a Catholic school, Vijaya High School, in Raikia town in Kandhamal district.

The news agency quoted the Rev. Mathew Puthyadam, principal of the school when Patra attended, as saying that he was a good student and respected the priests.

"I really wonder how he changed," Puthyadam told UCAN.

UCAN reported that Puthyadam said right-wing Hindu groups commonly recruit people educated at Christian schools and indoctrinate them against Christians. There were a few other former students of Catholic schools who also led mobs that attacked Christians in Kandhamal, he added.

Puthyadam reportedly said that when Patra's mother brought him to the school, she said he lost his father in early childhood and they had no money to continue his studies; the priest arranged sponsorship through a Christian aid agency to cover his fees and lodging at Bishop Tobar Hostel.

‘Police Refused to Help'

It was during these attacks that Barwa of the Divyajyoti Pastoral Centre in K. Nuagaon area in Balliguda, said she was attacked and raped.

At an Oct. 24, 2008, press conference, the nun said 40 to 50 people attacked the house in which she and priest Thomas Chellantharayil were staying; he also was attacked in the Aug. 25 incident. She said the assailants first slapped and threatened her, then took her out of the house.

"There were three men who first threatened to throw me into the smoldering fire," she said. "Then they threw me on the veranda [which was] full of plastic pieces. One of them tore my blouse and undergarments. While one man stood on my right hand, the other stood on my left hand and the third man raped me."

Another man tried to rape her as she got up, she said, and when a mob arrived she was able to hide behind a staircase. But the mob pulled her out and threatened to kill her while others wanted to parade her naked in the street.

"They then beat me up with their hands," she said. "I was made to walk on the streets wearing my petticoat and sari, as my blouse was torn by one of the attackers. When we reached the market place I saw two policemen there. I asked them to help me, but they refused."

When the nun filed a complaint at the Balliguda police station, she said, police made no arrests until The Hindu newspaper highlighted her case on Sept. 30, 2008.

Christian leader John Dayal, a member of India's National Integration Council, said the government has yet to fully address violence against Christians.

"The administration, civil and police, have to act with their full strength to stop the hate campaign that has been unleashed in the last one year, and which has penetrated distant villages, creating schism and hatred between communities," he said.

On Sunday Christians and rights activists formed a new organization, the Association of Victims of Communal Violence in Kandhamal in Phulbani to deal with the growing communal divide in Kandhamal.

"The major task of the new association, working closely with clergy and civil society activists irrespective of religion, is to restore public confidence and to ensure that the victims and witnesses felt safe enough to depose in court," said Dayal.

He said Christian leaders hope this grassroots initiative will also help in the process of reconciliation and allow people to go back to their villages, where right-wing groups are threatening them with death if they do not convert to Hinduism.

Dayal also said there were rumors of human trafficking in Kandhamal, and that the new association felt special projects for women and especially young girls were urgently required.

"I pray they remain rumors," he added.

Kandhamal victims unite, knock at Government’s doors for justice; action for grassroots reconciliation, security and confidence

December 10, 2009

A meeting of Priests, Pastors, community leaders and activists held at Berhampur on 7th December 2009 has endorsed the formation of the Sampradayik Hinsa Prapidita Sangathana [Association of Victims of commuinal violence in Kandhamal] formed earlier in Phulbani after a series of meetings in which human rights and civil society activists from Bhubaneswar and Cuttack also took part.

All these meetings were the first of their kind since Hindutva violence against the Christian community in Kandhamal and other districts of Orissa left over 5347 houses looted and burnt, 295 churches destroyed, women and girls raped, and more than 75 people murdered in the name of religion and ethnicity. Large-scale displacement and migrations followed with over 50,000 people becoming refugees in their own motherland.

Two fast track courts set up in the aftermath of the violence have lost the confidence of the people with murderers, one of them a BJP legislator Manoj Pradhan, being released in several cases with eye witnesses too scared to dispose against the culprits. About 2500 complaints had been registered but only 823 FIR have been registered. All the cases were classified into murder (27 cases), attempt to murder cases, rape case, etc.

The major task of the new association, working closely with clergy and civil society activists irrespective of religion, is to restore public confidence and to ensure that the victims and witnesses felt safe enough to depose in court. This grassroots action will also help in the process of reconciliation and hopefully allow people to come back to their villages which are now barred to them by Hindutva activists who are forcing them to first convert to Hinduism before assimilating in the old habitations.

However, the association has expressed its deep distrust in the current justice delivery system, saying the Fast Track Courts are working perhaps too fast in trying to finish off the cases without looking closely at the evidence. Of cases involving 12 murders, there has been conviction just in one case, for instance.

The association has also decided to boycott the Justice Mohapatra commission probing the murder of VHP vice president Lakhmanananda Saraswati and the violence that followed his death at the hands of a Maoist group on 23rd August 2008. They said the commission has preconceived notions and has already formed its conclusions without even waiting for evidence.

The meeting at Berhampur, presided over by Archbishop Cheenath, was also attended by other Bishops and church leaders including Bishop Sarath Nayak of Berhampur and Believers Church bishop Bardhan, National Integration Council Member John Dayal, Human rights activist Dhirendra Panda and senior lawyers from the Christian Law Association, Human Rights Law Network, and the All India Christian Council and all church groups represented in the region.

Meanwhile the Archbishop of Bhubaneswar-Cuttack and Kandhamal, Most Reverend Raphael Cheenath, SVD, has also met the Collector and submitted him a memorandum highlighting the same issues of instilling a sense of security among the villagers and giving them adequate compensation, rehabilitation and employment.

It was made clear at the various meetings that security of the people remained the main concern. The sense of insecurity is also leading to a gross miscarriage of justice in the two Fast Track courts. As victims have complained to the Orissa High Court separately, witnesses are being coerced, threatened, cajoled and sought to be bribed by murderers and arsonists facing trial. Shoddy police investigations have already created a crisis in the dispensation of justice, and even genuine eye witnesses are reneging in court as they see the court premises full of top activists of fundamentalist organisations and often the same persons who had burnt their houses. The police remain mute watchers, as always.

The witnesses are threatened in their homes, and even their distant relatives are being coerced. This requires urgent and immediate action by the District administration and the Police to ensure that the process of justice is not thwarted and sabotaged.

There are major lacunae in the relief and rehabilitation of the victims of mass arson. Not a single Christian place of worship or Christian NGO has been compensated for their tremendous loss, but the poor victims are also being mocked by the inadequate compensation. The violation of principles of rehabilitation is at several levels. The first is in identifying the houses as fully or partially damaged. Secondly, houses by the dozens have not been enumerated by the government surveyors. Thirdly, the victims of the 2007 arson, especially in Barakhama have been criminally left out of the reckoning and for those 225 or so poor families, it has been second year without adequate shelter.

It costs about Rs. 85,000 to reconstruct a house and yet the government gives only Rs 50,000 in separate tranches. It is the duty of the state to give the full money. Just to save the people from the vagaries of the weather, the Church has sought to pitch in, but their resources are meagre and more than 2,500 families cannot be helped by the Church.

There is no information from government or the district administration about the livelihood of those affected by the violence. The administration without delay must conceive and execute a scheme so that every family effected by violence has at least one person, if not more, in gainful employment in government projects so that they can live a life of dignity, and to prevent large scale migration and pauperisation of victim families.

It was felt special projects for the women victims, and especially young girls, are also required urgently in Kandhamal. There are already rumours of human trafficking. I pray they remain rumours.

The administration has to act swiftly on the issue of allotting land for homes to those persons who have fallen into the gap of the Forest Act, and have no land to build their houses. They have to be identified, allotted land so that they can live in peace without facing the perpetual threat of being ousted.

The administration, civil and police, have also to act with their full strength to stop the hate campaign that has been unleashed in the last one year, and which has penetrated distant villages, creating schism and hatred between communities. The law of the land must be implemented severely to contain and deter those indulging in this activity.

Kandhamal Update 4th December 2009

4TH DECEMBER 2009

From John Dayal in Kandhamal:

Of the 12 murder cases tried inthe fast Track courts in Phulbani, Kandhamal district or Orissa, India, the accused have been let off in 11 murders, and convicted in just one. A member of the State Legislative assembly on the Bharatiya Janata party ticket, Mr Manoj Pradhan, has been let off in th four cases in which he has been tried so ar. He and his henchmen have been accused by witnesses of terrorising them, or seeking to bribe them.

A belated effort is now being made to revive civil society and the process of justice and reconciliation towards a lasting peace in Kandhamal, which remains the worst single case of persecution of Christians in South Asia. Most of the over 5,000 houses destroyed in the December 2007 and August 24-October 2008 mayhem remain un-built, and several thousand of the 50,000 Christian refugees are still to return home. Many cannot as they have been told they have to convert to Hinduism before they will be accepted in the villages. The threats and coercion continue till today.

The police and administration, as usual, look on. The one change is the Chief Minister, Mr Naveen Patnaik’s acceptance, in an answer in the State legislature, that it was the Rashtriya Swayamsewak Sangh and its sister organisations of the Bajrang Dal and Vishwa Hindu Parishad which were responsible in the anti Christian violence, the first time the government has accepted this reality. Two judicial commissions of enquiry, plodding on in Cuttack and Bhubaneswar, are yet to admit this fact.

The following is an update:

I. The Harsh Reality of Orissa and especially of Kandhamal is:

1. No one raised a voice when violence hit the Christians in December 2007 and August 2008, not even the governments

2. Civil Society in Bhubaneswar and Cuttack, if it existed, played dead, and nation was not moved.

3. Barring a few Left parties who could protest, the Political Apparatus remained silent and invisible, including so called friendly parties and groups

4. The Media was violently biased, specially the Oriya Media

5. Fact Finding groups either misunderstood the causes, or just blamed either Conversions or Dalit-Tribal conflicts as the cause of the violence, and even people’s enquiry commissions incouding An Oriya Judge and Teesta Setalvad have yet to give their reports on the 2007 violence.

6. Post violence, civil society and peace institutions have yet to be revived.

7. Church was shattered, deeply wounded and overwhelmed by the magnitude of the violence. Barring the PILs in the Supreme Court, no real pressure on Government to construct all houses fully, pay sustenance allowances etc, and government jobs.

II. Post Violence;

1. Church is focussed on helping complete houses instead of using the law to let government complete the houses. As a result, though the Catholic Church says it will help complete 1200 houses, Believers Church 900 Houses, Eficor about 300 houses, and CNI a similar number, another 2,500 houses remain without help. Also without help are the 250 or so victims of the 2007 violence, especially in Barakhama, who have been left to thereon devices.

2. Although there has been much work by religious groups in distributing Holy Bibles and clothes, and in counselling victims, there has not been commensurate work in enhancing the sense of security.

3. The result is that complainants and witnesses to violence feel very insecure and are susceptible to coercion, blackmail and perhaps allurement.

4. The result has been that despite the effort of well meaning young lawyers, especially of the CLA and HRLN, not much progress has been made in getting convictions especially in the murder cases involving BJP political leaders.

5. In many villages, refugees have not been able to return because the threat of forcible conversion to Hinduism remains.

6. The government peace committees remain on paper, or are loaded against Christians

7. Not much headway has been made in getting the Collector to secure land for non Tribals so they can construct their houses.

8. No headway has been made at village level towards reconciliation

III. Reviews:

1. Civil Society groups have met sporadically to assess the situation, including those coming from Delhi, but there has not been much sharing of info and concepts.

2. The first major initiative was taken by Fr Ajay and Mr Dhirendra Panda to call a meeting on 3rd November 2009 in Bhubaneswar to assess the satiation. Almost the entire political spectrum, excluding the BJP, BJD and Congress, were present, incouding women groups, tribal and Dalit groups and specialists. Several victims were also present. Dr Dayal, and Advocate Sr Mary Scaria, Ms Lansinglu Rongmei, Mrs Tehmina Ram Arora and Ms Vrinda Grover met several times in New Delhi to discuss the legal issues.

3. As part of the follow up of the decisions and recommendations of those meeting, some activists held meetings in It was also decided o get senior advocates and observers to be present for some time in the Fast Track courts so that grounds could be prepared for intervention in superior courts.

4. As a follow-up of those meetings and after consultations with senior Bishops of Orissa of various denominations, it was felt that the Church had a major role to play at the grassroots level to reconstruct social and civil society structures to give courage and strength to the victims. This can be done only at the homeland village level and not by outsiders from Bhubaneswar or elsewhere in the country.

5. It was therefore decided to call a meeting in Berhampur, the nearest big town, of all religious workers – Priests, pastors, catholic religious, NGO workers, catechists and others – on 7th December 2007 for a full day discussion cum workshop to discuss the issue and to encourage the religious groups to begin grassroots work apart from the religious work and relief they have been doing.

6. It was decided to bring experts to help brief the religious on these issues.

Justice, Kandhamal style

Miscarriage of Justice in Kandhamal Courts

From John Dayal

12 November 2009

I have just come back from Orissa, very depressed at the way the criminal justice system is working in that benighted state.

I had gone to take part in a rare Civil Society meeting with victims, some law experts and some Human Rights activists on 3rd November 2009 in Bhubaneswar. In truth, barring some leaders of various Left parties and Women’s groups, there is not much of a civil society in Orissa as far as violence on Christians or Muslims is concerned. Fortunately, there are activists – and Dhirendra Panda is one such – who are determined to press for justice. Fortunately again, there are some more activists working in the defence of the rights of Tribals and workers whose very existence is threatened by the entry of global mining giants trying to profit from the underground riches of Orissa. About them, in another note.

Advocate Rasmi Ranjan Jena says “As we know in most of the cases already tried in the Fast Track Courts in Kandhamal the accused persons have been acquitted. This is nothing but a great failure of the criminal justice system which has miserably failed to give justice to the victims of the communal violence. At this juncture there is an urgent need of critical analysis of the factors responsible for the failure. Though nothing much should be expected from a judicial forum in a communal society, but we need to have a self introspection to develop a strategy for the upcoming days.”

The following is a more urgent situation report on meeting convened under the banners of the Common Concern and Orissa Manavik Adhikar Suraksha Abhijan on justice delivery crisis. The report’s authors include Dhirendra Panda and Fr Ajay Singh. While this report is critical of the legal support systems for the victims, I must acknowledge the work done by the Human Rights Law Network and the Christian Law association who have had to work with young local lawyers and limited resources in the face of official machinery that is determined not to pursue justice with honesty.

I quote from the report:

“In the context of regular acquittals of the persons accused of criminal involvement during Kandhamal violence by Fast Track Courts on the ground of non-availability of witnesses, a meeting was held at Lohia Academy, Bhubaneswar to listen the experiences of the victims and their witnesses seeking justice. About seventy five persons including the victims, activists, representatives of left/democratic political parties and civil society organisations, advocates, media persons, civil society

members, church leaders and others participated in the Meeting.

Agenda

• Sharing of experiences/concerns by victims and witnesses in and outside courts

• Sharing on challenges faced by Lawyers and organizations engaged in legal aids

• Observations/Suggestions by the Participants

Among the participants, Prafulla Samantara, renowned activist and an ardent advocate of people’s rights and movements, Radhakant Sethy, former MLA and leader of CPI-ML Liberation, Dr. John Dayal, Member of National Integration Council, Sudhir Patnaik, Editor, ‘Samadrusti’, John Nayak, former DG of Police, Orissa, Prasant Paikray and Ramakrishna Panda – leaders of CPI, Smt. Tapasi Praharaj, CPI-M leader, Smt. Saila Behera, Shanti Ranjan Behera – Senior Social Activist, Ms. Lalita Missal – Woman Rights’ Activist (NAWO), Hemant Nayak – Social Activist, Mahendra Parida - Social Activist and Trade Union leader, Pradip Pradhan – RTI Activist and many others shared their observations regards to the approaches to the problems faced by the victims.

Observations

• Public Prosecutors are mostly found biased against the victims

• In comparison with the skills, influences, clouts, numbers of advocates favoring the accused persons, the strength of advocates need to be improved

• Faulty and biased methods of police investigation, framing the charge sheets and presentations in the Courts weaken the cases

• Absence of social and physical security of the victims and witnesses inside and outside the Court

• The provision that in GR cases only Public Prosecutors can argue, while the victim parties can not appoint their own advocates privately, does not help the victims in cases where PPs are biased.

• Show of extra-favour to the accused ones by some judges harass the victims and their counsels

• Lawyers counseling the victim parties are even persuaded not to continue their legal assistance

• Witnesses are threatened/allured to turn hostile

• Absence of democratic and left parties in comparing to the dominance of BJP and RSS helps the culprits and corrupts the atmosphere of the courts

Suggestions

• Appeal to transfer the cases to outside Kandhamal, preferably to Bhubaneswar and Cuttack courts.

• Christian Lawyers’ Association, Human Rights Law Network and other groups engaged for legal aid should work in a coordinated manner

• Assistance from senior and experienced lawyers should be taken up

• Engagement of other lawyers to assist the P.Ps\A.P.Ps in GR cases and submission of written arguments by other lawyers

• Mobilisation of activists to be present in the court will help in building confidence among the victims and influence the PPs/APPs and judges to be careful to some extent

• A Public Hearing/People’s Tribunal can be organized..

• Lawyers should be smart enough to intervene at the right manner at the time of necessity

• Local people need to create their own defense mechanism

• Secular minded organizations/activists, particularly the people participating in this programme, need to evaluate the ongoing legal actions and decide upon appropriate measures to respond to the current situation collectively.

• At the state level a joint committee involving people from various sectors need to be formed to keep regular watch on legal matters and monitor the actions being taken up by the organizations engaged in legal aids

• It is necessary to document the court proceedings and situation of witnesses and victims, which can be used in future for raising the issue before higher courts and media

• A Kandhamal level committee should be formed for monitoring justice delivery processes and for looking after mobilizing social supports for the victims and witnesses

• Extensive media campaign has to be taken up to expose the illegal and biased behavior and functioning of PPs/APPs and judges.

• Referring to the deposition of Police officers before the Sarat Chandra Mohapatra Commission, information will be collected from their respective offices using RTI and a letter can be sent to the Governor with a copy to the Commission can be sent mentioning the concerns and position of the civil society

Decisions

• An ad hoc state level joint solidarity committee was formed involving the participants to coordinate

o Interaction with political parties for their support for the victims in getting justice

o Media campaigns

o Keeping watch on legal processes

o Documentation of justice delivery processes

o Social Mobilisation for backing the victims inside/outside courts

,;

Footnote:

To understand the different factors responsible for the failure it will be convenient to have a minimum idea on the chain/ stages on which the justice delivery process runs.

The stages of criminal cases in series:

(1)Occurrence of the Incident--- (2)FIR--- (3)Investigation (includes arrest of the accused & Submission of Charge-sheet)--- (4) Magistrate( who commits the case to the competent court)--- (5)Trial (includes Framing of Charges, Summon to Witnesses, Testimony by the witnesses, Argument & Judgment)--- (6) Appeal

Difficulties & Lacunas in different stages

(1) Occurrence of the Incident

- Many of the victims are not eye witnesses as they fled away to the jungle just before the incident happened.

- As the investigation started very late the proofs and marks of violence had disappeared or washed away.

(2) FIR

- Non- registration by the police

- The names of the accused persons are not mentioned

- Delay in filing

- In some FIR the offence in specific is not disclosed

- In most of the cases copies of the FIR not given to the victim

- The informant himself is hostile in some cases.

(3) Investigation

- No proper investigation but a stereotyped process adopted by the police.

- Non-examination of the important witnesses

- Accused examined as the witnesses.

- Non-arrest of the accused persons ( particularly the kingpins) till date

- The property of the absconding accused persons could have been attached ( Sec 83 of Cr.P.C.) which could compel them to surrender.

- Proper sections of IPC not mentioned in the Charge-Sheet

- Delay in filing of Charge-sheet helped the accused persons to get bail.

(4) Magistrate

- The lawyers for the victim could have put their objection before the magistrate, before whom the charge-sheet is submitted, on the non- mentioning of appropriate sections of IPC in the Charge-sheet. ( Section 216 of Cr.P.C)

(5) Trial

- Most of the independent witnesses were hostile as they were threatened by the accused persons in the village.

- The court atmosphere is not conducive for free and fair trial.

- The judge and the public prosecutors lacks judicious mind.

- Deficiency of trained lawyers in comparison to the number of cases.

- Lacuna in the part of the lawyers engaged on behalf of the victim. No effort to build up the case in favor of the victim, only tutoring of the witnesses on their previous statement of the police is done. The lawyers could have done as the following.

- Effort could have been made to cover up the lacuna in the FIR as well as the statement before the police, while giving testimony before the trial court.

- The witness/ victim could have been prepared on the point on which the defense lawyer is striking.

- Proper caution could have been taken to avoid major discrepancy between the testimonies of the major witnesses.

- Petition could have been laid to examine the important witnesses who are not charge-sheeted. ( Section 311 of Cr.P.C)

- Written argument could have been filed in each case at the time of final argument. ( It must be kept in mind that if the lawyer has not filed the Vakalatnama from the initial stage then he may not be allowed to file written argument in the final stage.)

- Even though most of the witnesses are becoming hostile, the victim and the family members could have been properly guided before giving testimony. Because law is well settled, the sole testimony of the victims / the eye witnesses, if inspires confidence and appears to be natural and truthful and also corroborated by the documentary evidences, is enough to convict the accused.

(6) Appeal

- No appeal preferred in most of the cases where the accused were acquitted.

- Appeal should be preferred in conviction cases as in the said case conviction is done for only few accused persons and most of them are acquitted.

-

[PP is Public Prosecutor appointed by the Administration. CrPC is Criminal Procedure Code, IPC is Indian Penal Code, FIR is First Information Report, ]

A letter to the Orissa Human Rights Commission

KUIDINA FORUM FOR PEACE AND JUSTICE
AT-NUA SAHI (KUPANAJU), G.UDAYAGIRI, KANDHAMAL, ORISSA, PIN-762100

Letter No. – 1132/2009 Date – 22.10.2009

To

Sj. Justice R.K. Patra,
Chairperson,
Orissa Human Rights Commission,
Bhubaneswar.

Sub:- Prayer for independent enquiry of case No.472/2009 by OHRC, Bhubaneswar.

Sir,

We express our deepest gratitude for patient hearing of the esteemed members of the Bench on dt.22.10.09 in relation to our case No.472/2009 in the office of the OHRC, Bhubaneswar

That, “Kuidina Forum for Peace and Justice” is a local peoples initiative mostly led by the indigenous women of Kandhamal committed to restore peace and justice and also have been sincerely engaged in peace building processes in almost all the past so called communal violences.

On the petition of “Kuidina Forum for Peace and Justice” dt.28.03.2009, the commission had given a direction to the District Administration for the joint enquiry on the negligence and lapses in the investigation in providing life protection and security arrangement in relation to the victims vide the order dt.05.05.2009 in a joint bench of Hon’ble Justice R.K. Patra, Justice Himadri Mohapatra and Dr. R.N. Bahidar and report back within eight weeks.

Even today after 22 months of major violence took place in Dec. 2007 and the 14 months after the incident took place in the month of August 2008, the victims are still living in a fear of insecurity and terror without any adequate livelihood support system and no enquiry has been made so far to give immediate relief and justice to the victims.

In spite of clear direction of OHRC to give protection to Debendra Nayak of Lingagada vide Case No.549, dt.04.08.08 failed, Issac Digal, G.Udayagiri, Co-ordinator of the Forum was brutally attacked on dt.03.09.09. Karpura Digal, Shankarakhole has not received due compensation for her murdered husband. Attempt to rebuild damaged houses in Dadingia and Gressingia was disturbed due to further attacks as reported (communicated to OHRC on dt.07.09.09). Sumabati Pradhan, Dakedi and Bhabanti Nayak, Godabisa approached His excellency Governor of Orissa but did not get adequate security assistance to return back by the admn. And still facing further attacks. Most of the victims in the petition are facing continuous attacks, threatening and humilitation in different forms even for last seven months since the petition submitted to OHRC. District Administration is very busy in taking up many formal peace initiatives sincerely but the said responsibility seems to be an additional burden.

Large number of complaints are yet to be converted into formal FIRs and even in the justice delivery system Criminals are getting acquitted due to the weaknesses in the investigation and prosecution. There is greater need of protection for the complainants and witnesses in the process. So far 95 persons are acquitted and 24 persons convicted.

The real criminals, the third force, who practically led the violence, supplied all the required financial resources, managed the looted property, supplied explosives, arms, weapons, petrol and cooking gas etc. are still in the dark, not arrested and moving freely to create further violence in future under the defence mechanism of different political parties and organizations, with their predominant, sectarian and divisive attitude.

Though the Govt. has declared the closer of all the relief camps withdrawing the CRPF by the end of August 2009 and claims that the situation in Kandhamal is peaceful and normal, the indigenous women leaders allege that the victims are still not in a position to return back to their native villages, construct their damaged houses and avail the due compensation. The victims are leading a miserable life under the impending fear of death and future attacks deprived of proper security arrangement, Govt. relief and staying in their self managed temporary tents and shelters. 40% of the total agricultural activity has been dropped due to the prevailing chaotic situation and social unrest.

Non-transparent and non-inclusive peace building and rehabilitation process has made the situation more complicated and critical as many agencies and organizations not much familiar with the local egalitarian culture, long standing, symbiotic relationship, traditional non-hostile animistic faith and most importantly the entitlements and the protective constructional provisions and the related rules of all the indigenous forest dwelling communities have started intervening in the process. Resource seems to be mismanaged and underutilized.

The Forum pray your kind self for an appropriate intervention, particularly conduct the enquiry independently through OHRC and advice the concerned authority for an inclusive people based process and due recognition of the voice of the local community leaders without giving further scope to the divisive elements as life of the poorest of the poor is equally important and also requested for displacement of all the officials with sectarian and biased mindset for the greater public interest.


Sd/- Sd/-
(Keshamati Pradhan) (Hemant Naik)
Co-convener Convener
Contact Phone- 9437645267

Rumours Kandhamal victim was ritually sacrificed.

On Murder anniversary in Orissa, , Fast Courts, Faster Acquittals

Rumours Kandhamal victim was ritually sacrificed.

By John Dayal, with detailed inputs from Ajaya Kumar Singh in Orissa:

September 25, 2009

Why are there so many acquittals in the Fast Track courts trying the cases of murders and arsons in Kandhamal during August-September 2008?

Indian Human Rights groups are aghast at the outcome of murder cases in these courts. In one case the son testified in the court that he was witness to the killing of his father and knows the killers. Yet, the accused were acquitted. And now there are rumours that perhaps it was more than a mere murder – that it was a case of a ritual human sacrifice, for which once Kandhamal was notorious in the country.

In the second murder case, the witness out of intimidation and possibly other considerations including money, turned hostile in court. He was taken to the courts by friends of the accused in their vehicle.

Some families of the victims have in fact been forced to become Hindus and join the RSS, local people say.

In his latest report from Orissa, Ajaya Kumar Singh interviewed the son of the victim who had been dragged from a running public bus full of passengers. At least two witnesses had said he was dragged from the bus only to be found murdered next day by a mob led by the man who later became a BJP legislator. The killer gang and their leader run scot free.

Patently, the police investigation is a sham, so also is the prosecution.

It was an irony that the acquittal came on the first anniversary of the murder. Kantheswar Digal, 60 years, a Catholic Christian of Sankarakhole of Chakapada block was dragged from a public transport and was killed brutally after one month of killing of Swami Laxmanananda allegedly killed by the Maoists.

The judge of the Fast Track court-II C R Das acquitted Pradhan and another accused Mantu Nayak of the murdering Kantheswar Digal.

Manoj Pradhan was arrested in October last year and sent to jail. He, however, won the last State Legislative Assembly election from G Udaygiri segment in Kandhamal from jail. He was released from jail for 15 days in July this year to enable him to take oath as member of the Orissa assembly.

In a separate case, the fast track court acquitted five others accused of setting houses on fire at Tikabali area on August 26, 2008, three days after the killing of Lakhmanananda Saraswati.

With these acquittals of seven persons today, the total number of persons acquitted has risen to 95 while 24 persons have been convicted so far.

Kantheswar left his native village soon after the anti-Christian program along with his wife to escape and stay safely with his only son, Rajendra Digal, 28, in Bhubaneswar. He was a cook in the Parish Catholic Church. All his life time earnings, he invested on a starting of grocery shop. Besides, he was into trading and had a herd of 35 goats. He was enterprising. He could not remain idle in Bhubaneswar as refugee any longer. He had just returned to his village to see his house and livestock presuming normalcy has been restored.

Seeing the violence around, he sold 24 goats for Rs 40,000 in a distress sale and informed his son that he would be returning to Bhubaneswar. He boarded Sagar Suraj Public Bus heading for district headquarter. Public transport is the safest for transportation for the Christian refugees. Hardly, he has travelled a kilometre or so, the hindu radicals allegedly led by Manoj Pradhan stopped the public bus and dragged Mr. Digal in full view of passengers around noon time on 24^th of September 2008.

The old man’s cries went in vain as the attackers dragged him while slashing his leg so that he could not run. They took him to a nearby forest while looting and razing his house and shop to the ground. They took away all 8 goats and feasted the whole night. Digal’s son, Rajendra said, ‘The attackers forced the Christians to become Hindus and join the feast’. Kantheswar was given good feast that night and was taken away to unknown place. Rajendra apprehending danger to his father informed the police and the administration. Thakur Digal filed a missing-personal complaint.

The police did not take interest to look for the missing father, complained the son. ‘After 12 days, Digal’s body was found 40 kilometers away from the village with acid charred face and naked state. The genitals had been chopped off. The body was found along with another Christian couple, who were government officials.

Human Sacrifice?: “I have heard my father was not killed instantly. The fanatics had all the rituals and he was sacrificed”. Rajendra does not know the reasons for all this as his father was a very good person and was close to the church. On being asked about the acquittal of the accused, “ I cannot understand as the attackers are known and there are witnesses, who say that they have seen him being dragged out of the public bus. Yet, they are acquitted”. The lawyer supporting the victim tries to reason out saying the proper investigation and strong prosecution would have made the matter different”.

In another murder related case where a woman was burnt alive in a house while another non-Christian tribal leader was killed for defending the Christians, the five witness families are on the run for testifying the truth while the accused are on a prowl and roaming freely in villages. There are several reports of intimidations and threats for the witnesses against the accused from different villages Dodingia, K. Nuagam, Phiringia and Solesoru testifying before the courts. Police instead of taking action against the people, refused to receive complains.

Dr. Augustine Singh, the psychologist, who had held counsel sessions for the victim’s wife was disappointed at the acquittal. “We need to support the victims’ families and encourage them to keep the fight on so that nobody is denied of justice’.

There is increase demand for protection of the witnesses, strong prosecution and robust investigation before charge sheet of the accused is the unanimous opinions of the Christian communities. “Without these, justice will be derailed, Paul Pradhan, 48, a civil right activist says.