Life in the Hangman’s Shadow (Maharashtra)

By Nikita Doval
Thursday, May 30, 2019

Freed by the Supreme Court after 16 years spent on death row for a crime they did not commit, five men are desperately trying to rebuild their lives. More than a cause for celebration, their acquittal is reason to ask: how many more are wasting away in our jails?

His hands, they said, held down a girl as she was raped and then went to work battering his victim and her family to death. Rajya Appa Shinde holds up his left hand, marked by newly-formed calluses on his palm. “This is the hand of a man who works hard, always has,” he says to anyone who is willing to listen. “It is also the hand of a man who has been treated unfairly.”

Freed after 16 years on the death row, Rajya has found work digging ditches in Maharashtra’s Devgarh for the municipal corporation. He’s been trying, too, to rebuild the threads of his life: make an Aadhaar card, open a bank account, find a wife.

Bitterness, though, clings to his body, like chains once did.

“I am out of prison, yes, but what do I have? Ditches to dig, and a reputation that means no one is willing to marry their daughter to me. I am ready to start a second time over, but the world may not allow it.”

THE KILLINGS

Trambak Satote and his family—daughter Savita, sons Sandeep, Shrikant and Manoj, wife Vimla Devi and nephew Bharat More—had finished their dinner, and were chatting inside a makeshift hut in a guava orchard in Nashik’s Belatgavan on the night of June 5, 2003. Late that night, a group of men forced their way into the hut, robbed the family and left after beating the men into submission.

They came back again, this time to gang-rape and murder Savita. Four of the five men of the family were beaten to death. Vimla Devi and her son Manoj were the only survivors. The killings provoked considerable public outrage—and the local police were under enormous pressure to deliver justice.

Rajya was, he recalls, working as a daily-wage labourer in Umbargaon, Gujarat, when the police came looking for him. Six other people were arrested from Bhokardhan town in Jalna district, all from the same family. Two were let off but the remaining five—Rajya along with Raju Mhasu Shinde, Ambadas Laxman Shinde, Ankush Maruti Shinde and Bapu Appa Shinde—were not so lucky. After being interrogated and tortured by the police they found themselves in Nashik Central Jail, charged with murder. A sixth person, Suresh, was arrested a year later.

For more than a decade, the case made its way up endless stairs of the legal process, ending with the Supreme Court confirming the death penalty for five—Ankush was a juvenile who was let off in 2012. Then, something incredible happened: on March 5, the Supreme Court reversed its own judgment, and acquitted the men it had put on death row. “It is rare for someone sentenced to death to be found innocent after the Supreme Court had itself confirmed the death penalty,” says Yug Mohit Chaudhry, lawyer for the group, and a leading campaigner against the death penalty. “This is an odd case where the system righted itself.”

FLAWED INVESTIGATION

From the evidence, it’s clear the case should never have gone to trial in the first place. The prosecution’s entire case hinged on the eyewitness testimony of Vimla Devi and her son—who, as Chaudhary argued in his written submission, had not been able to describe the accused to the police. The two witnesses could not describe the identifying features of the perpetrators; they had been unable to even recognise their clothes. The defence also noted that Vimla Devi had identified an entirely different set of people as the perpetrators when photographs of suspects were shown to her soon after the murder.

Police investigators, though, had decided the men had carried out the killing—and were determined to beat the evidence out of them. “In the initial days when we were being beaten up," Rajya recalls, “I would ask them, ‘what have I done?’ And they would say, ‘you know’ and that was that.” Prosecutors submitted no DNA evidence—samples were taken but the results were never submitted—nor produced any worthwhile forensic evidence tying the accused to the killings.

In spite of these holes in the case, the trial court’s guilty verdict sentence was upheld by the Bombay High Court—though it reduced the sentence for three of them to life imprisonment. Then, the Supreme Court upheld the conviction—and enhanced the sentence to death. “The entire case was based only on Vimla Devi’s testimony,” says Chaudhry, “but it is contradicted by a great deal of evidence, and corroborated by very little. Coming up with these arguments was not rocket science; this was, in some ways, an easy case. But you needed someone to listen objectively and honestly.” In its judgment, the Supreme Court has awarded the acquitted men compensation of Rs 5 lakh for their sixteen years of wrongful incarceration, and ordered an inquiry into the conduct of the investigation. That’s small consolation though—and doesn’t go anywhere near answering the troubling issues the case raises about the administration of justice in India.

USUAL SUSPECTS

Institutionalised bias and blindness guided the course of the investigation into the Belatgavan murders. Section 93 of the chapter on Preventive Action in the Bombay Police Manual of 1959 is devoted to “wandering gangs.” It states that special surveillance must be kept over all nomadic communities and “whenever suspicious persons from such communities are found at or near a village”, the police must be informed. The Police Manual’s language draws on the Criminal Tribes Act, passed by Imperial Britain in 1871, targeted most of India’s nomadic communities, hunters and forest dwellers. There were several reasons, political as well as social, behind the inclusion of the tribes in this list—among them colonial fears that those beyond the control of empire might rebel against it.

Even though the so-called criminal tribes were denotified by the Indian government in 1952, the stigma continues. It is these tribes that the manual refers to as “wandering gangs”. The Shindes are Vadars, a subset of the Pardhi tribe. Traditionally they were hunters but now for generations they have described stone breaking, road laying and ditch digging as their occupation. Their lifestyle is no longer peripatetic. In fact, the Shindes have lived in Bokhardhan for over five generations now, but little else has changed. The only educated members of the clan are the three daughters of Raju Mhasu Shinde, who were toddlers when he was arrested. His wife Rani realised early on that it was their lack of education and complete destitution that had landed her husband and his clan in this situation. Her daughters would do better.

“There is no question that it was the Shinde’s caste, class and ethnicity that played a role in them ending up on death row,” says Reena Mary George of the Development Studies Department at the University of Vienna. “Police in most states keep a record of the so-called “Denotified Tribes” even today and pick them up first for any unsolved crimes in their areas.” Framing the Shindes was relatively easy: there were previous cases against them, for petty crimes like picking pockets, which meant they had few friends in the community. Their lack of social status and education meant they would be easy to implicate. George met the Shindes in 2009 when she was researching a landmark study, Death Penalty: A Human Rights Perspective, and had been given permission to talk to the prisoners on death row. The objective of the study was the impact of death penalty on the social, mental and physical state of the inmate.

In fact, it was George who realised that Ankush was a juvenile when he was sentenced. The judicial ball was set rolling and he was released in 2012. Her case study notes about Ankush record that “he has panic problems…hardly sleeps for half an hour…nervous, tensed and restless…confused at times on why this happened to him.” Death row inmates in India are kept in solitary confinement. He describes his cell—“small, no ventilation, very hot”—easily but struggles when asked to remember those days: “I was living but I was dead.” Even today the sight of a police man makes him nervous. After his release, he says the local police still kept showing up at his doorstep harassing him and his family. Rajya claims not to fear the police, but his life is filled with rituals to suggest the scars run deep. He takes photographs recording his day so that if the law comes calling again he is ready with his alibi.

SCARRED LIVES

All the Shindes have been marked by their 16 years on death row, but each in a different way. Ankush appears to have found a wellspring of inner calm; Rajya rages. Raju was the last to be released, as he had another case pending against him. On the day he came home, his wife Rani had prepared a feast for him from their limited means. “Sheera, bhaji, I made everything. He took one look at the food and said I’m not hungry. He didn’t eat for four days,” she says. Living at his mother-in-law’s house, where Rani has brought him for a change of scenery, Raju “sits and stares in the distance, doesn’t recognise people, doesn’t talk,” she says. His own mother and sister passed away while he was in prison.

Every single rupee matters to the desperately poor Shinde families, meaning they had little contact with the men while they were in prison. “Every visit cost up to Rs 2,000,” Rani recalls. “Where was I supposed to get that kind of money from?” “And even when I would manage to go, once in a couple of months, I would be made to wait for hours before I was allowed to meet him for fifteen minutes or so,” she remembers. Raju says that everyone advises him to “not think so much. But you tell me, how does one stop the clamour of thoughts?” The most articulate—and aggressive—of the men, Ambadas Shinde isn’t willing to accept he has finally received justice. “What is Rs 5 lakh in this day and age? They should have calculated our wages loss for 16 years, adjusted to inflation and then rewarded compensation.”

Rajya, Ankush and Raju are just a few months apart and were shy of 20 when arrested. Now they are in their mid-thirties, at the peak of their prime, some would say except for the sixteen years behind bars that have left them scarred. In his fifties, Bapu (who lives in Devgarh) is the oldest with Ambadas and Suresh bridging the gap. Little was done in prison to prepare the Shindes for the lives that now lay ahead of them. Prisoners on death row are not allowed to work; they have, thus, been unable to save even a small amount of money, or learn skills that might be of use to them. There is no infrastructure at all to support their reintegration into society, nor to deal with the brutal psychological scars sixteen years of wrongful incarceration on death row have inflicted. 

In India, the death penalty is meant for the “rarest of rare” cases. But studies show it is been handed out with disturbing frequency. A report by the National Law University reveals that trial courts pronounced 162 death sentences in 2018, the highest since 2000. As of December 31, 2018, 426 people are on death row in the country. More than 70% of them are from lower castes and religious minorities. Perhaps most importantly, the Shinde case demonstrates just how easily grave miscarriages of justice elude judicial scrutiny of the appellate judiciary. The acquittal of the six men is not a cause for celebration but rather the time to ask the disturbing question: how many others like them are wasting away in our jails?

Source: https://www.firstpost.com/india/life-in-the-hangmans-shadow-6608051.html (accessed on 30 May 2019)

HC sends death penalty ruling back to trial court (Maharashtra)

Mumbai, Apr 25, 2019

Three years after a Thane court awarded death penalty to a man for raping and murdering a 7-year-old girl, the Bombay High Court Thursday remanded the case back to it on account of procedural lapses.

A bench of justices B P Dharmadhikari and P D Naik set aside the trial court's order awarding Atul Rama Lote death penalty Thursday. It remanded the case back to the trial court, asking it to reconsider the facts and evidence and decide whether to hold a retrial or proceed anew from the stage of framing of charges -- when procedural lapses were committed. On September 28, 2016, the Thane court awarded Lote death sentence. He was accused of abducting, raping and killing the minor daughter of an acquaintance in 2014.

When the state government's petition seeking confirmation of death sentence was taken up by the High Court, Lote's lawyer Yug Chaudhary pointed out certain lapses. In February 2014, the police charge sheeted Lote under IPC sections 363 (kidnapping), 366 (A) (kidnapping a minor girl with the intent of forcing her to have intercourse), 376 (rape) and 302 (murder), Chaudhary said. Generally, these offences attract life imprisonment or ten years in jail, and death is awarded only in the "rarest of rare cases", he argued.

On September 26, 2016, two days before the sentence was passed, the prosecution invoked section 376(2) of the IPC (rape of a victim under 12 years of age) and provisions of the Protection of Children from Sexual Offences Act, making it a case fit for death penalty, the lawyer pointed out. The court should not have permitted amendment of charges just two days before the verdict, Chaudhary said. He also argued that Lote did not get proper legal assistance from his lawyers, appointed through Legal Aid. The high court said it could not overlook these procedural lapses and especially the fact that two key charges were pressed only two days before the verdict. It, however, refused to acquit Lote, and said instead the trial court must consider Lote as an undertrial and reexamine the proceedings.

Source: https://www.outlookindia.com/newsscroll/hc-sends-death-penalty-ruling-back-to-trial-court/1522907 (accessed on 30 May 2019)

Qasab deserves legal aid to draft mercy plea

Advocate Yug Chaudhry on why due process must be followed even in this rarest of rare cases Posted On Thursday, October 04, 2012 at 02:04:36 AM A week after Ajmal Qasab was sentenced to death, advocate Yug Chaudhry wrote to the Home Minister and the NHRC, pointing out that Qasab was entitled to legal aid in drafting his mercy petition. Dismayed at the news that the mercy petition, drafted without legal help, has been rejected, Chaudhry tells Jyoti Punwani why it is necessary to follow the spirit and letter of the law - even in Qasab’s case. Why are you so concerned with Qasab getting legal aid at this stage? Haven’t we given him a fair trial, despite his obvious guilt? Yes we have given him due process thus far, and that is why we must continue to do so. Qasab has a right to file mercy petitions before the governor and the President, but he lacks the wherewithal to so. He is illiterate, a stranger to our laws, and a foreigner abandoned by his countrymen. Since he is clearly ill-equipped to make a mercy petition which it is his right to make, he must be given the necessary assistance. He also has a right under our constitution to legal aid at every stage of the judicial and post-judicial proceedings. For rights to be meaningful, they must be accompanied by facilities that render those rights accessible. If we believe in our Constitution and the rule of law, we cannot make an exception in his case. Can a legally drafted mercy petition make any difference to Qasab’s fate? He cannot plead innocence or lack of a fair trial. Neither would a fair trial have made any difference to his fate, but would that have been a reason to deny him one? The question is not whether a mercy petition would make a difference, but whether he is entitled to make one and to receive the necessary assistance. The moment we allow ourselves, through sheer majoritarian sentiment, to decide outcomes without due process, we put all our liberties in jeopardy and negate the very essence of rights, which is to protect each of us from ad-hoc, majoritarian caprice. The scope of a mercy petition encompasses more than innocence and a fair trial, and few lay persons, let alone an illiterate person, would be competent to draft one unaided. Given that the death penalty exists in India, doesn’t Qasab deserve it? An illiterate boy of 13 sold by his family to the LeT, brainwashed into jihad, transformed into a killing machine and sent as a footsoldier to India are mitigating factors that entitle him to the lesser penalty. Qasab’s crime should be contexualised without minimising it, and then we should ask ourselves why are we clamouring for Qasab’s execution while content with life sentences for Babu Bajrangi and Maya Kodnani who perpetrated the Narodya Patya massacres. They killed more or less the same number of people in an equally gruesome manner. Maya Kodnani held public office, and turned on those she was charged to look after and protect. If she doesn’t deserve the death sentence, why does he? How else can Qasab be punished, given the enormity of his crime? Keep him in prison for the rest of his life. Treat him like a human being so that he becomes human again and realises the enormity of his crime. Allow for the possibility of repentance and reformation. Do you feel Qasab deserves mercy? I think all of us - the best and the worst - are in need of mercy, and it is only by showing mercy that, morally, we ourselves become entitled to receiving it. Bereft of mercy, our society would be impoverished and inhuman, for mercy is quintessentially a human quality, not found elsewhere in the natural world. In classical thought and in many faiths, mercy is the manifestation of divinity within us, of a god who is the ultimate bestower of mercy. As for “deserving”, give each man his deserts and who shall escape a whipping? Justice and mercy operate in mutually exclusive realms. It is only when justice demands that punishment be inflicted that mercy comes into play. Mercy tempers justice, makes it less exacting, more humane. Excluding a fellow human being from entitlement to mercy has nothing to recommend it except a very base blood lust that we encourage at our peril. If we have to become a more humane and compassionate society, and leave a better, less blood-thirsty world behind for our children, we have to curb our instinct for bloody retribution. Source: http://www.mumbaimirror.com/article/2/2012100420121004020503161a2c1a95e/Qasab-deserves-legal-aid-to-draft-mercy-plea.html [accessed on 4th October 2012]

They haven’t found a hangman yet, have they?

Vijay (Hiremath) calls me up and says, “Did you read that Mahendra Das and Prof. Bhullar’s mercy petitions have been rejected by the President’s office?” I was on one of my fieldwork trips and was shocked to hear this news! He put me in touch with Yug Chaudhry who wanted to work on this case. We contacted the prison and then the relatives of Mahendra Das. Yug worked on the draft and contacted several others. He asked me a day before we left for Guahati, “Reena will you come also for this hearing?” I thought I must go because I knew the family by then and I had interviewed Mahendra Das just a few weeks before his petition was rejected by our the $President. We reached Guahati High Court next day i.e. 7th June 2011 at 12:45 pm and the petition was already filed by Adv. Arup Borbora. We met all the lawyers and also the relatives. Das’s mother – Kusum Bala Das cried silently most of the time. His sister told me, “If anything happens to our brother, we all will kill ourselves.”
In the meantime,Adv. Arup Borbora asked for a special bench of two judges to be created and it was done as this was a special matter. The court proceedings began at 3:45 where a special bench of judges (Justice BP Katakey and Justice BK Sharma) was constituted to hear this matter as the Chief Justice was out of town. The counsel on behalf of the mother were Senior Advocates A.K. Bhattacharya, Arup Borbora and Yug Chaudhry. We were in Court Room No. 4 where the relatives asked me sit beside them. I sat next to them of course - more than for them, it was for my own contentment. The counsel Adv. Bhattacharya spoke and his opening line was, “There is a lawyer named Yug Chaudhry coming all the way from Mumbai for this.” The judge immediately said, “So what difference does it make?” Adv. Bhattacharya’s response was “Yes it makes a difference; it makes a difference because nobody in Assam came forward for this and it took a Human Rights advocate from Mumbai to do this. So it makes a difference” The judge had to agree.
The arguments went on. The judge asked, “So why have you come to the High Court? Why not go to the Apex Court?” Adv. Bhattacharya’s response every time was really good. He said, “Yes we should go to the Supreme Court. But who would go? This old mother? (Pointing at the mother) Do you think she’s in a capacity to go? Even if she goes, don’t you think that Mahendra Das will be hanged by then?” The question raised was to seek an explanation for the inordinate delay from President’s office.
The judge asked the State lawyers and all they could say was “How can we not listen to the Supreme court’s orders?” They have been asked to file a reply before the next hearing on 17th June. The judges gave a very positive order stating Triveniben (SCR p.596: SCC p.357: SCC (Cri) p.474, para 20). Till then the proposed execution of the man remained in suspension.
The next hearing took place on 17th July 2011. The family came to the court. We didn’t know till our matter came up that the State had filed a reply. However the Centre did not and hence we were given another date which is 21st July 2011. The family invited me to their home. I couldn’t say no. I travelled for three hours to reach their house. Mahendra Das’s house is in a pitiful state. A heavy rain can demolish the whole structure. The family has a hand to mouth existence. I wonder how they managed to come to Guahati High Court for the hearing spending so much of money! The mother spoke only in Assamese. His sister translated it for me. She asked me, “So when is my son going to be released?” I didn’t have an answer. The sister asked me, “So what will happen? Will his sentence be commuted to life?” I said, “We all are hoping for that but one simply cannot say ‘It will be done’. There is a great possibility that they might just reject it in the High Court. But we all still hope that the Court and the State of Assam will do everything in their power to commute this sentence”. She again asked, “But they haven’t found a hangman yet, have they?” I couldn’t bring myself to lie, I said, “If I am not mistaken, they have found a hangman from Meerut”. We all were silent for a moment. I again told them that, “We all hope that our country realizes that it is barbaric to execute a person after 15 years in the prison”. The relatives dropped me back in Guahati, asked me to come back again when Mahendra Das is home. I nodded and left.

RMG