legal aid in conflict zones - bastar

Jagdalpur Legal Aid Group

Legal Aid in Conflict Zones

Bastar

Jails in the Bastar Division

Jagdalpur Central Jail

Dantewada District Jail

Kanker District Jail

Overcrowding in Jails (2013)

Of all the states in India, Chhattisgarh has had the highest rate

of overcrowding in Jails for the past 6 years.

Capacity of

Jails Actual

Occupancy

Occupancy

Rate

INDIA 347,859 411,992 118%

CHHATTISGARH 6,070 15,840 261%

Kanker Dist. Jail 65 278 428%

Dantewada Dist. Jail 150 557 371%

Jagdalpur Central Jail 579 1,508 260%

Rate of Incarceration (2013)

IndiaChhattisgarh

Bastar Division

29 24 26

34

62 78

Prisoners per lakh of population

Housing Capacity

Number of Inmates

Rate of Incarceration of Undertrials

(2013)

-

20

40

60

80

100

120

India Chhattisgarh Uttar BastarKanker

Bastar DantewadaDakshinBastar

21 34 37

44

105

Un

de

rtri

als

pe

r la

kh

po

pu

lati

on

Duration of Incarceration of Undertrials in

Prison (2013)

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

All India Jails All ChhattisgarhJails

DantewadaDistrict Jail

JagdalpurCentral Jail

More than 5 years

3-5 years

2-3 years

1-2 years

Less than 1 year

1 Accused

26%

2 Accused

9%

3-5 Accused

16%

6-10 Accused

24%

11-20 Accused

20%

21-100 Accused

5%

More than 5

accused 49%

Distribution of Sessions Trials by

Number of Named Accused (2013)

Charges in Sessions Trials

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Arms Act ExplosiveSubstances

Act

IPC- AgainstPublic

Tranquility

IPC - AgainstHuman Body

IPC - AgainstProperty

NDPS Others

% o

f d

isp

ose

d s

ess

ion

s tr

ials

2005

2006

2007

2008

2009

2010

2011

2012

2013

0%

10%

20%

30%

40%

50%

60%

70%

80%

Murder or attempt to murder (Ss302, 307)

Crimes against women (Ss 366,376, 498, 498A)

2005

2006

2007

2008

2009

2010

2011

2012

2013

Charges in Sessions Trials

Charges against Undertrials

33% 39%

56%

86%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

India Chhattisgarh JagdalpurCentral Jail


Percentage of Undertrials charged with Murder/ Attempt to Murder / CH (2013)

Rate of Bail in Undertrials

0%

10%

20%

30%

40%

50%

60%

70%

80%

India Chhattisgarh JagdalpurCircle


Pe

rce

nt

of T

ota

l U

nd

ert

rial

s in

a Y

ear

Undertrials Released on Bail Per Annum

2010

2011

2012

2013

Duration of Sessions Trials in

Dantewada

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

2005 2006 2007 2008 2009 2010 2011 2012 2013

More than 6 years

5-6 years

4 -5 years

3-4 years

2-3 years

1-2 years

0-1 years

Cases Disposed off in the First Year

0

10

20

30

40

50

60

70

80

90

2005 2006 2007 2008 2009 2010 2011 2012 2013

89

72

51

19 24 23

38

20

32

Nu

mb

er

of

cas

es

dis

po

sed

off

in

th

eir

y

ear

of

Inst

itu

tio

n

Presentation of Undertrial Prisoners in

Courts (Jagdalpur Central Jail)

0%

20%

40%

60%

80%

100%

Jul-14 Aug-14 Sep-14 Oct-14 Nov-14 Dec-14

Un

der

tria

ls

Neither presented

Only Warrant Presented

Undertrial Presented

Disposal of Cases

0%

20%

40%

60%

80%

100%

2005 2006 2007 2008 2009 2010 2011 2012 2013

97% 94% 94% 99% 99% 97%

91% 98% 96%

Pe

rce

nt

of

Cas

es

Dis

po

sed

Of

Year

Rate of Complete Acquittals

Conclusions

Jails in Bastar have a severe problem with overcrowding

The reason behind overcrowding is not lack of capacity, but

excessive number of prisoners.

In Dantewada South Bastar, excessive number of prisoners in jail

results not from increased arrests, but longer durations of

incarceration on undertrials

In Dantewada South Bastar, many people are arrested in group

crimes (>5 accused), charges put on them are severe, bail is rarely

granted, but eventually most of the undertrials are acquitted.

Undertrials in Bastar Division

Some Case Studies

Fabrication of Evidence Many chargesheets clearly show that evidence has been fabricated

against the accused:

Improving memory with time -

State v. Joga, Jugal and Sudar – In 13 FIRs over 5 months, different

complainants have named many different names of accused – none

have mentioned Joga, Jugal and Sudar. In all 13 chargesheets, the same

13 complainants – a few days after the FIRs – have given police

statements, in which they all add names of Joga, Jugal and Sudar to the

names already present in the FIR.

State v. Kawasi Hidme – Policemen at the scene of encounter claim

hearing Naxalites shout 50 names of each other, while attacking the

police party. These 50 names are in the FIR and police statements taken

right after the attack. Five months later, two policemen remember 53

names, and the remaining 3 are soon arrested.

Fabrication of Evidence Similar evidence - different crimes –

Chargesheet no. 24/2010, P.S. Kuakonda 26/2010, P.S. Kuakonda FIR No. 13/10 P.S. Kuakonda 17/10 P.S. Kuakonda Witness Name Mundra Muchaki s/o Pisa 45 years Chote Bedma, Hidmapara P.S. Kuakonda Sannu Muchaki s/o Madka Muchaki 38 years Chote Bedma, Hidmapara

P.S. Kuakonda Testimony:

Introductory

Part

The list of the

accused

The description

of the crime

The description

of the crime

Concluding

part.

I live in village Chote Bedma. I am engaged in agriculture. On 8.7.2010, on

Thursday, in the morning when I was going to my farm, I saw that from the

jungle some uniformed Naxalites were coming along with:

(1) Madkami Kosa (2) Madkami Deva (3) Madavi Budhra (4) Sodi Nanda (5)

Madavi Budhra of Phoolpad (6) Ashram warden Soni Sodi of Jabeli, who were

coming from the direction of the jungle, talking with the Naxalites.

Out of fear, I hid in the jungle and saw these people and also listened to the

conversation of these people, that this time Avadhesh Gautam and people of the

police station survived the attack. Next time, whenever we attack, not even one

police man should survive and the police station should also be blown up in the

bomb blast. Saying this they were walking towards the jungle.

Later on I came to know that in the night the Naxalites along with the above-

mentioned people attacked the police station and the police personnel in police

station Kuakonda, and tried to loot the governments ammunition stored in the

police station, and tried to kill the personnel in the attack. The above-mentioned

people were seen walking towards the jungle with the Naxalites by me.

Because of fear, I have not told anyone, today I am speaking without fear.

<Signed>

17.10.2010

I live at the above address. I am engaged in agriculture. On 16.8.2010, in

the morning when I was going to my farm, I saw that from the jungle some

uniformed Naxalites, carrying guns, were coming along with some

villagers:

(1) Madkami Kosa (2) Madkami Deva (3) Madavi Budhra (4) Sodi Nanda

(5) Madavi Budhra s/o Bhima 28 years of Phoolpad (6) Jabeli’s Ashram

warden Soni Sodi, whom I recognized.

Out of fear, I hid in the jungle and saw these people who were saying, that

the older building of the Tehsil Office should also have been blown up,

which we will blow up next time. And the documents should be blown up

and destroyed. Saying this they were walking towards the jungle, which I

heard.

Later on I came to know that the Naxalites along with the above-

mentioned people blasted the newly constructed Tehsil Bhavan, and

destroyed it. The above people along with the Naxalites destroyed the

Tehsil Bhawan in a blast.

Because of fear, I have not told anyone, today I am speaking without fear.

<Signed>

17.10.2010

Note 1. The identical phrasing in the above statements from different chargesheets is highlighted as underlined. The statements are essentially the same, with the

only significant difference between the two accounts being the actual description of the crime, and the dates on which the reported incidents take place.

2. The same accused are listed by both witnesses in an identical order.

3. Each testimony speaks about the unfinished crime which must be completed.

4. Even though the witnesses saw the said accused accompanying the naxalites 2-3 months ago, they are reporting this on the same day.

Shoddy Chargesheets Most chargesheets have little reason to proceed, yet discharges are

rare:

Accused‟s name is missing -

State v. Irpa Narayan: Two accused, Midiyam Lachu and Punem Bhima,

are not mentioned anywhere in the chargesheet, except in a bland

statement of the IO that during investigation, he found the two involved

in the crime. They have been in jail for more than 6 years now.

State v. Madkam Kosa and Ors: 5 accused who were finally acquitted

after 4 years, but all the witnesses in the chargesheet said that crime

was committed by unknown Naxalites

Secret Informer is the only source of information-

5 cases against Bhima Kadati, where a “trusted secret informer” is the

only source of information against the accused.

Shoddy Chargesheets Arms Act used indiscriminately

State v. Betti Buchi - 11 accused, all charged with Arms Act, based on their

memorandums u/s 27 of the Indian Evidence Act which leads to discovery of the

following dangerous weapons -

4 are shown with one set of a bow with one arrow,

4 are shown with kitchen knives,

1 has a knife shaped like a sickle

1 has a trowel

1 is shown with a large utensil

State v Chotu Markam - 7 accused who are booked under Arms Act

2 have iron tangiyas (axes),

2 have iron sabbals (shovels),

2 have iron bandas (crowbars)

One has a favda (spade)

Court asks the question “क्या अभियकु्तगण ने उसी समय ऱोहे का धारदार बंडा, सब्बऱ एवं टंगगया को शासन की अगधसचूना के उल्ऱंघन में बबना ककसी वधै अनजु्ञप्तत के अवधै रुऩ से अऩने आगधऩत्य में रखे

हुए ऩाये गये?”

Subsections never specified, making implementation of s436A of CrPC

impossible.

Multiple Trials One person is often implicated in multiple trials, ensuring a long prison

stay

Bhima Kadati – a 19 year old boy, was implicated in 12 cases. These cases

continued for about 4 years and though all of them resulted in acquittals, justice was

never served to Bhima who died during the pendency of the cases due to medical

negligence. He was acquitted only in 5 cases during his lifetime.

Joga, Jugal and Sudar - In this case, three young men Joga, Jugal and Sudar were

illegally detained before being produced in court and slapped with 13 cases. They

were finally acquitted in all.

(Madkam Kosa and others from Phoolpad): Charged in 19 cases. Acquitted in all

after 5 years in jail.

Deliberate Delays in Trials Non-appearance of witnesses – usually policemen/ doctors – leads to

delays of several years, as courts fail to close prosecution evidence.

Acquittal - State v. Madkam Handa -

Prosecution produced a list of 9 witnesses, including 4 from the Naga

battallion

Even after 40 summons and 4 years, the Naga witnesses didn‟t show up.

Eventually acquitted after 5 years due to lack of evidence

Ongoing trials -

State v. Irpa Narayan and others - First witness (I.O.) arrives after 6 years

of arrest. All witnesses are serving policemen. Bail repeatedly rejected.

Application for closure of evidence dismissed.

State v. Kunjami Puska – Accused is more than 60 years old. Case

ongoing since 2007. All witnesses except I.O. and Doctor examined by

May 2010.

State v. Kawasi Hidme – Young girl in prison since 2008. Bail rejected.

I.O and Doctor have not been examined even after 80 opportunities.

Deliberate Delays in Trials Special Acts (UAPA) used to extend pre-trial detention (in Bastar,

Kondagaon and Kanker)

State v. Joga, Jugal and Sudar

Dates in Chargesheet Event

October 2011-February 2012 Occurrence of 13 events of Naxalite violence

21 June 2012 Three young men arrested and charged with

UAPA in those 13 crimes

24 June 2012 By this date all police statements of witnesses, and

all seizures have been concluded

5 December 2012 Sanction for prosecution under UAPA applied for

12 December 2012 Chargesheet presented in court

Deaths in Judicial Custody

State v Beko Bhima-

Case was initiated in 2008 and till September 2012 only four

prosecution witnesses had testified before the court and 5 were yet to

testify despite repeated summons.

Defense lawyer filed an application for closure of evidence on 3.9. 2012,

again in 24.9.2013 and again on 7.4.2014, all these application led

several „last opportunities‟ being granted. Finally, the Court decided to

close evidence and listed the case for statement of the accused.

The undertrial‟s health was deteriorating and on 13.4.2014 the

undertrial was transferred to Raipur hospital for treatment.

On 25.8.14, wireless message was transmitted to the court stating that

the condition of the undertrial was very serious. Despite this, the judge

refused to grant bail claiming that he needed a report on his health to be

satisfied.

Beko Bhima succumbed to his ailments on 4.9.14.

Reopening of Old Cases

Avadhesh Gautam Case-

Attack on the house of the ex MLA Avadesh Gautam on the night between

7th and 8th July, 2010. The primary investigation in the case was initiated

by a letter written by „eye-witness‟ Gautam, wherein he had painstakingly

listed out a total 67 people. The letter was later found to be inadmissible

when Gautam admitted to writing the letter not based on what he had seen

but what was narrated to him by one Bandi who had been brought by the

police. Despite the court ruling out the evidentiary value of the letter, the

same is being used by the police to re-arrest people in the same case.

Noble Xalco case:

In September, 2010 Noble Xalco a police constable was fatally injured.

Eyewitness Baman Ram mentioned 5 names during the police

investigation, but later told the court that he was not at the scene. Yet, the

case has been re-opened based on another statement of Baman Ram,

after his court testimony, where he claims to have witness involvement of 3

other people in the crime.

Documented Atrocities by Police

and Security Forces

Atrocities documented by JagLAG

Date Place Event

28th Jul 2014

Ramaram and Pidmel villages,

Sukma District

Fake Encounter of Vetti Hadme and

Markam Idmal

20th Nov 2014 Bade Gurbe village, PS Kukanar,

Sukma District

Illegal Detention of Madvi Sukdi w/o

Ayata for over 4 days in a police camp

26th Nov 2014 Chote Tongpal and Jangampal, PS

Kukanar, Sukma District

Police Beating of 10 village women,

leading to grievous injuries of some

women

6th Jan 2015 Revali village, PS Aranpur,

Dantewada

Extra judicial killing of Nuppo Bhima by

security forces

17th Feb 2015 Tongpal, PS Tongpal, Sukma

District

Custodial Beatings of 3 protesters

17th Apr 2015 Chote Tongpal and Jangampal, PS

Kukanar, Sukma District

Bhima Madkam injured in police

shooting

27th Apr 2015 Kormagundi, PS Kukanar, District

Sukma

Illegal detention of 3 minor girls and

police beating of their parents

Atrocities documented by JagLAG

Date Place Event

29th July 2015

Nahadi village, PS Aranpur,

Dantewada

Fake Encounter of Hemla Podiya by

security forces

29th Sept 2015 Darbha, PS Darbha, Bastar Arrest of journalist Santosh Yadav on

fabricated cases

6th Oct 2015 Nilavaya PS Aranpur, Dantewada Extrajudicial killing of Bhima Madvi

19th-24th Oct

2015

Peddagellur, Chinnagellur,

Gundam, Burgicheru, Pegdapalli,

PS Basaguda, Bijapur

Mass sexual violence of dozens of

women, including gangrape of 3 women

12th Jan 2016 Kunna, PS Kukanar, Sukma

district

Mass sexual violence against 10 women

detained by security forces

11th-14th Jan

2016

Nendra, PS Basaguda, Bijapur Mass sexual violence of village women

by police and security forces, including

13 gangrapes

4th Feb 2016 Sunga, PS Mardum, Bastar Fake encounter of Hidma, who was

picked up at home.

Persecution of JagLAG

Persecution by Bastar Bar Association

Persecution by Samajik Ekta Manch

Direct Police Pressure And Eviction

Date Description 17.02.2016 JagLAG’s landlord, Pravin Baghel is also visited by the traffic police and asked to

report to the PS with his car. He comes back at 1:30 am, but his car is impounded.

He requests JagLAG to vacate his premises within 7 days at 2:00 am at night.

JagLAG agrees to vacate the house within 7 days.

18.02.2016 In the afternoon, Mr. Baghel is again asked to report to the PS. This time Mr. Baghel

comes back and right away, tells JagLAG that they have to vacate their house within

one or two days. JagLAG requests two days time to pack up and move out.

Samajik Ekta Manch takes out a rally in front of JagLAG’s office.

Special DGP, DM Awasthi, is contacted over phone. The CM is apprised of the

situation by the Leader of the Opposition, Mr. TS Singhdeo. Shalini Gera and Isha

Khandelwal (lawyers of JagLAG) visit the Commissioner, Mr. Wasnikar and apprise

him of the situation. These two lawyers, along with Ms. Bhatia, visit the Bastar

Collector, Mr. Kataria and inform him of the situation also.

Eventually, Mr. Baghel’s car is released from the Kotwali PS, but only after promises

that JagLAG will vacate after 2 days

Direct Police Pressure And Eviction Date Description 19.02.2016 Police reach the family of Ms. Bhatia’s landlord, and visit the landlord at his

workplace. They ask a lot of questions and also take many photographs, with a clear

intent to intimidate the family.

Arvind Netam, ex – Minister of State and currently resident in Jagdalpur, informs

the Chief Sectretary of Chhattisgarh, Vivek Dhand, about the situation and registers

his strong protest.

Police keep patrolling the area around JagLAG’s office to keep an eye on the packing

process. JagLAG’s landlord receives many calls seeking to know who all is present

in the house, how is the packing proceeding, etc. 20.02.2016 Shalini Gera meets with the Dantewada Collector, and apprises him of the situation.

Mr. Baghel continues to receive many calls from the police seeking information

about the progress of the packing up of JagLAG and whether the lawyers have

already left, and what they are doing currently.

JagLAG vacates house and office and all leave for Bilaspur 22.02.2016 JagLAG’s landlord is summoned to the Bodhghat PS, this time to respond to a

complaint by one Dipankar Sahu, that three women of “anti-social antecedents” are

living in his house.

legal aid in conflict zones - bastar

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