‘Nikam diluted caste-hatred angle in Khairlanji case’

Why did the lower court and the high court not find the caste-atrocity charge tenable against the convicts in the Khairlanji killings case?

The answer, according to sources in the CBI, prosecution and defence, is in the initial lapse in the police investigation. While the Dalit groups continue to decry the attack as caste violence, the fact is that the prosecution could not bring it on record before the court.

Four members of the Bhotmange family — Surekha and her three children — were killed in a mob attack on September 29, 2006.

The case was perceived as  caste violence since the Bhotmanges were Dalits while the accused belonged to the dominant other backward castes (OBC). It triggered riots and violent protests across the state by Dalit organisations.

But, the case records show that the first information report (FIR) lodged by the Andhalhaon police made no mention of the caste background of either the complainant (Bhaiyyalal) or the offenders.

This major lapse under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, legal experts say, weakened the prosecution’s case that the killing of Bhaiyyalal’s wife Surekha and children was the outcome of caste hatred.
The lower court mentioned in its judgment in September 2007 that the complainant “had not mentioned anything about the casteist abuses by offenders against his family in his initial complaint and had failed to voice it during his testimony”.

The high court, on Wednesday, maintained the lower court’s ruling that there was no evidence to prove the existence of caste hatred. On the contrary, the court relied on the witnesses and evidence on record to say that this was a case of revenge killing.

Apart from that, during cross-examination of the sub-divisional officer (SDO) of Bhandara in the lower court, the defence lawyers had pointed out that the officer had not verified the caste-validity certificate of the Bhotmanges based on the pre-1990 records.

The prosecution argued that the killings were the fallout of caste hatred even though the immediate provocation was Surekha’s testimony against the villagers in the Siddharth Gajbhiye case. But the lack of strong evidence coupled with lapses in the FIR weakened the atrocity angle.

To top it all, the prosecution never brought the caste background of either the victims or the accused on record. Only one witness, Mahadev Zanzad, categorically mentioned the caste of the victims and the accused in his testimony. Zanzad was declared hostile after he changed his statement in the court, and the defence argued that his testimony could not be relied upon selectively.

Upset with the verdict, Dalit groups alleged that Ujjwal Nikam, the special public prosecutor in the case at the trial stage, “deliberately diluted the caste angle”.

“We had complained to the government that advocate Nikam had diluted the case,” said Milind Pakhale of the Khairlanji Action Committee, a Dalit political group. “We honour the high court’s judgment, but since Nikam did not bring on record the facts about caste hatred before the lower court at the evidence stage, there was no question that the court would have suo motu upheld the atrocity charge.”

Reacting to the accusation, Nikam said he was assisted by a CBI counsel. “If I had diluted the case, won’t even the CBI lawyers who were with me on the case be accused of the same charge?”

The high court, he said, had stayed the conviction, which is vindication of the fact that they had made a strong case.