INDIA: A Dalit reportedly killed in custody in Gujarat

Dear friends,

The Asian Human Rights Commission (AHRC) has received information from Navsarjan, an NGO working on Dalit rights in Gujarat about the custodial death of a Dalit (untouchable) resulting from serious assaults by four policemen. It is reported that the police illegally arrested and detained Mr. Dhanjibhai Ramjibhai Patadia and his son Vijay on 21 March 2008. The police assaulted Dhanjibhai and Vijay that resulted in the death of Dhanjibhai. It is also reported that the police abused the father and the son referring to their lower caste.

CASE DETAILS:

On 21 March 2008, four policemen arrested Dhanjibai Ramjibai Patadiya, a 45-year old Dalit person belonging to the Valmiki community (a backward caste) from his home in Gujarat. The police arrested Dhanjibhai for no lawful purpose and without an arrest warrant, along with Vijay, his 17-year-old son. The four policemen, two of whom were visibly drunk, physically assaulted the father and the son before forcibly taking them to the police outpost at Valmiki Vas in Ratanpar near the victims’ house. Later, the police took the father and son to Jorawarnagar Police Station in Surendranagar district, of Gujarat state.

The victims were verbally abused using derogatory remarks making references to their low caste status while in police custody. The policemen also physically abused them with kicks and beat them with sticks on their legs, feet, hands, head, chest and genitalia. Further, they locked up the father and son in two separate cells. The police continued to assault them throughout the night. Dhanjibhai and his son were reportedly taken into custody for having a boundary dispute with their neighbour, which is the subject matter of a civil case, where the police have no right to intervene.

The following morning, Vijay found his father lying on the floor in his cell. Later, the police took Dhanjibhai by an ambulance to the Surendranagar Civil Hospital, where he was reportedly declared to be ‘brought dead’. The police failed to inform either his son in police custody or his wife at home about his death for a while.

The police removed the body outside the hospital. The police then informed Dhanjibhai’s wife and Vijay about the death later. When they came to the hospital they found Dhanjibhai’s body lying outside the hospital, abandoned by the police. When enquired, the police informed that Dhanjibhai had died from cardiac ailments (heart-attack according to the police version).

Two days later, the victim’s family, supported by Navsarjan, pleaded with the Deputy Superintendent of Police, Superintendent of Police, Circle Inspector of Police and the District Inspector General of the Rajkot Range to register a case against the four policemen who assaulted Dhanjibhai. Finally at around noon on 23rd March, the police recorded Vijay’s statement and sent the corpse for post-mortem to the Rajkot Civil Hospital. On the intervening night of 23rd and 24th March, the Circle Police Inspector at the Jorawarnagar Police Station finally registered First Information Report (FIR) number I 38/08 against four unnamed police officers under the Indian Penal Code, 1860.

The crimes alleged against the police officers are under Sections 302 (murder), 341 (wrongful restraint), 323 (voluntarily causing hurt), 504 (intentional insult with intent to provoke breach of the peace), and 114 (presence of abettor when offence is committed), and under the provisions of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989; Section 3(2)(v) (Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine”).

The police however failed to register a crime under Section 348 of the Indian Penal Code, 1860 that prescribes punishment for a public servant for wrongful confinement of any person for the purpose of extorting from the detainee or the person interested in the detainee to make any confession or any information. This offense, if proved, mandates a punishment of imprisonment for a period of three years and fine. The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, vide Section 3 (1) (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or Scheduled Tribe in any place within public view shall be punished with imprisonment for a term which shall not be less than six months but may extend to five years and with fine. Given the fact that the police officers abused the victims referring to their low caste origin at the time of arrest and at the police outpost, both being public places, an omission to charge sheet the officers under this section has to be viewed as an intentional omission by the investigating officer.

The domestic law in India clearly specifies the procedure that has to be followed by the law enforcement agencies while arresting and questioning a person. The Supreme Court, while deciding the D. K. Basu Vs. State of West Bengal; reported in (1997) 1 SCC 416; has categorically directed the government in India that a set of procedures are to be in place to ensure that the law enforcement agencies do not violate procedural formalities while arresting and detaining a person. The procedures directed by the court are as follows:

1. That accurate, visible and clear identification and designation of the personnel making arrests must be provided at the time of arrest; 
2. That a memo of arrest containing the time and date of arrest has to be prepared and is to be witnessed by a member of the family of the arrestee or a respectable person of the locality from where the arrest is made and countersigned by the arrestee; 
3. The arrestees have a right to have someone concerned with their welfare be made aware of the fact of their arrest; 
4. A right to have the time, place of arrest and venue of custody notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest;
5. A right of arrestees to be informed of the right to have someone informed of his arrest or detention as soon as he is put under arrest or detained;
6. A requirement to keep a record of the name of the arrestee and the person informed of the arrestee’s detention;
7. A right of the arrestee to be physically examined upon his request, to have his injuries recorded, and for the “Inspection Memo” to be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee;
8. Examination of the detainee by a trained doctor every 48 hours during custody;
9. A requirement for copies of all documents, including the memo of arrest, referred to in the guidelines to be sent to the Illaqa [District] Magistrate for his records;
10. A right of access of arrestees to a lawyer during, though not throughout, interrogation; and maintenance of a control room in all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and displayed on a conspicuous notice board in the control room

The Navsarjan Trust has reasons to believe that the investigation and prosecution of the case will suffer perpetual delays and defects, as is often the practice in cases of atrocities against Dalits.
 
BACKGROUND INFORMATION:

Police lock-ups and prisons in India are notorious for custodial crimes. Civil society in Gujarat as anywhere else in India dreads the long arm of the law. The common man keeps the policeman at an arm’s length and considers him a uniformed bully. Dalits are twice socially disadvantaged by virtue of their having been born into the lower strata of society.

The victim in this case was in the government service as a sanitary worker in the Surendranagar Dudhrej Municipality. His son is a daily wage labourer and a minor.

Atrocities against the Dalits continue unabated. In the last 18 years, as many as 184 custodial deaths have taken place in Gujarat. It is the Dalits, tribals and the minorities, who have been at the receiving end in most of these cases. The upper caste, and therefore the dominant caste, misuse state machinery, making the backward caste increasingly vulnerable in Gujarat.

The victims belong to the Valmiki community, a backward group among the lowest caste in Gujarat. The Valmiki settlement to which the victims belong is in Jorwarnagar village, Ratanpur, Surendranagar district, Gujarat. The perpetrators of the crime were posted at the Jorawarnagar police station at the time of the criminal offence.

India has ratified the International Convention on Civil and Political Rights (ICCPR) in 1979 and the International Convention against Racial Discrimination (CERD) in 1968. The conventions and the Constitution of the country guarantee remedies against discrimination. However, in reality, the remedies that exist in law remain in the law due to the failure of the state governments to provide adequate mechanisms to enjoy these rights.

According to the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Rules, 1995, the state is also responsible for specific interventions in case a crime is reported to have committed against the member of a Scheduled Caste or Tribe. For example under Rule 6 and Rule 12 of the above law, whenever a crime is brought to the notice of the authorities, an officer not below the rank of a District Magistrate or the Sub-Divisional Magistrate or any other Executive Magistrate or any police officer not below the rank of Deputy Superintendent of Police must inspect the scene of occurrence of the crime. The investigation of the crime, under Rule 7 must be conducted by a police officer not below the rank of a Deputy Superintendent of Police. According to Rule 12 (2) the Superintendent of Police must ensure that the FIR is registered concerning the crime at the relevant police station and immediate measures are taken to apprehend the accused and also investigate the crime.

In this case the deceased victim being poor, the chances of the victim’s body being subjected to an independent post-mortem report and that the report being made available to the victim’s relatives is little. The instructions issued by the National Human Rights Commission concerning custodial deaths, an autopsy carried out in the case of custodial death must be video recorded. However, this direction is often not followed by the state authorities in India.

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SUGGESTED ACTION:
Please write to the authorities named below expressing your concern in this case. The facts of the case have to be investigated and the findings made public. If the investigation reveals that the police officers have in fact committed the offense, they must be punished to the maximum extent possible for this heinous crime.

The AHRC has also written separate letters to the UN Special Rapporteur the Question of Torture and Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance calling for an intervention in this case.

To support this case, please click here: SEND APPEAL LETTER