HRF petition to NHRC about the extra judicial killings at Seshachalam and Alair in AP and TS states
Justice Shri K.G. Balakrishnan Hyderabad
National Human Rights Commission
Sub: Killings by police of 20 labourers in the Seshachalam forests of Chittoor district, Andhra Pradesh and five undertrial prisoners near Alair in Nalgonda district, Telangana on April 7, 2015—seeking criminal prosecution of police personnel responsible—regarding.
The Human Rights Forum (HRF) is a citizens’ forum established with the objective of working for protection of constitutionally guaranteed/internationally recognised rights of the people and for the right of the people to propose and strive for new rights not yet recognised in national or international law. The right to a wholesome and dignified life is the touchstone for the rights that may be aspired for. We are concerned with, among other things, ensuring that the agencies of the State, like the police, adhere to the law in the discharge of their duties. We believe that citizens must be tried and punished, if found guilty, only in accordance with a procedure laid down by the law of the land and no one can be subjected to extra-judicial liquidation by the State. That would be contrary to Articles 14 and 21 of the Indian Constitution.
The death of 25 persons on April 7 in Andhra Pradesh (AP) and Telangana (TS) in alleged encounters has led to much disquiet across the nation. However, the police averment that the killings are the result of “firing in self-defence” is in serious doubt.
Seshachalam: In respect of the Seshachalam killings, the highest number killed in any single “encounter” in these two States, we were pleasantly surprised by the NHRC’s direction to the Andhra Pradesh government to constitute an inquiry by a judicial first class magistrate under Section 176 (1A) of the Criminal Procedure Code. The Commission has also asked the government to submit the names of all police and forest personnel of the Special Task Force who were involved in the alleged encounter. The AP police were also cautioned against tampering with any evidence or documents and were also asked to keep all weapons used by the STF and by those killed in safe custody.
However, these directions, though timely and highly welcome, do not meet the full requirement of the law. For that to happen crimes against citizens must be fully investigated and those engaging in criminal acts must be punished by law. In the Seshachalam case, the HRF has, as it does in most cases of “encounter” killings, constituted a fact-finding team to look into the veracity of the police claim of “firing in self-defense”. Apart from a visit to the two sites, located close to Tirupati, where the bodies were found, we also met with relatives of seven of the deceased labourers in Dharmapuri district of Tamil Nadu.
The STF version is that before day-break on April 7, two of their combing parties of about 20 men came upon well over 100 smugglers at Satchinodibanda and Cheekateegalakona in the Seshachalam sanctuary of Chandragiri mandal, Chittoor district. The official version is that the smugglers were carrying red sanders logs and when asked to surrender they attacked the STF with sickles, stones, axes and country-made weapons. This forced the STF personnel to resort to ‘random firing’ in self-defence resulting in the death of 20 smugglers while the rest fled.
It is our considered opinion that the incident is a case of deliberate and cold-blooded murder by the STF. A perusal of the two sites where the alleged encounter took place is enough to demolish the police version. In fact, the site visit only confirms what almost everyone thought about the Seshachalam incidents: That they were plainly murders by the STF. The two sites are Sachinodibanda, where 11 labourers lost their lives and Cheekatigalakona, about a km away, where 9 labourers bodies lay. The 2 spots are about 20 km from Tirupati and close to Srivarimetta. Both sites are clearings, and more or less accessible from a kutcha and jeepable road.
At both places there was clearly no evidence of the “deadly attack” on the STF by smugglers forcing the former to resort to firing in self-defence. The bodies, from what we were able to reconstruct, were strewn across a radius of about 10 to 15 meters at both the spots. There is absolutely no evidence of any stray bullet pock marks in the area, either in the sparse shrub that dominates the landscape or the sand and clay mounds. Not a single bullet hole. This was fantastic precision shooting in the dark by the STF. Every single bullet found its mark! There was no scattered blood marks as one would except from random firing. No spatter of blood except a thick patch where the bodies lay indicating that they were shot at close range and immediately collapsed and died on the spot. According to media reports quoting a doctor who conducted the autopsy and several others who had seen the bodies, most injuries were on the upper and frontal portion of the bodies. There were also many exit wounds indicating short range firing.
There are barely any stones at Satchinodibanda. But going by the STF version, the smugglers were carrying a very heavy load and throwing deadly stones and sickles at an STF party — armed to the teeth with automatic weapons — which had to resort to extremely aggravated firing resulting in the death of 20 persons! The other smugglers, it was stated, managed to flee.
The bodies were not lying among the shrub or spread all over the space, as one would expect in a random encounter. They were very found lying next to each other, conveniently, in two clearings inside the forest with logs by the side. This was evidently done to create the impression of veracity. Which raises the question: Whatever happened to the other logs those who escaped were said to be carrying. Surely, they could not have managed to escape with such heavy loads? Also, most of the red sanders logs found next to the bodies had markings that indicate they were from an earlier seizure. They certainly did not have the look of logs recently felled.
The NHRC has recorded testimonies of three persons, Sekhar, Balachandran and Illangovan, who have come forward with very convincing versions about how their relatives and friends were picked up by police on April 6, the day before the alleged encounter. Their testimonies reveal that most, if not all of the 20 deceased were in detained by the police the day before. Their accounts totally demolish the police concoction of an encounter.
In all, what was evident at both the spots was that the labourers were shot at from close range in two groups of 11 and 9. This was no spontaneous shooting in self-defence but a calculated pre-meditated execution by the STF.
Also, all 20 labourers were poor and by no stretch of imagination “well-heeled smugglers” as is being made out by the police and sections of a very unethical Telugu media. While 12 of them are from various villages in Tiruvannamalai district, seven are from Dharmapuri district and one is from Salem district. HRF visited the village of Balachandran. He is resident of Arasanatham, a village amidst the Kalrayan Hill Forest in Papireddipatti panchayat of Dharmapuri district. All residents are adivasis belonging to the Malayali tribe listed as Scheduled Tribes in TN. (In fact, 13 of the 20 deceased labourers are STs, belonging to the Malayali tribe). According to them, Balachandran had gone along with his father Harikrishnan and six others from the village on April 5 for work. The next day, as they were waiting for a bus, Balachandran went to get a drink at a government liquor shop and hence missed the bus in which the others left. He was later informed by one of the labourers that the group was taken into custody and he had better go back. Balachandran then told his brother Prabhakaran that he was returning and they both contacted an advocate in Tirupati who said she would apply for bail and asked them to get the necessary identity cards etc. They were in the process of collecting them in the village and leaving for Tirupati when they learnt that the 7 were killed by the STF.
The HRF is of the view that in all such ‘encounter’ cases, following upon the very report of the police officer who has committed the killing and who thereupon goes to the local police station to give his report, a case of culpable homicide amounting to murder and other appropriate sections of the IPC has to be booked against him as well as all members of the police party, if any, that he was part of. Further, the case has to be investigated fairly and impartially by an agency as independent as possible of the perpetrators of the offence; and the final decision whether life has been taken or injury has been caused by them in permissible circumstances that would exonerate them has to be that of a competent Court and not that of the executive, namely the police themselves, much less the killer himself.
NHRC’s Recommendations: While saying this, we are not indulging in any novel interpretation of the law. In fact, the NHRC while dealing with a complaint on encounter killings in Andhra Pradesh issued clear directions to the AP government on November 5, 1996 stating as much. The relevant portion of the Commission’s recommendations on that occasion are:
“i) As the information furnished to the Police officers in charge of the respective police stations in each of these cases is sufficient to suspect the commission of a cognizable offence, immediate steps be taken to investigate the facts and circumstances leading to the death of the PWGs, in the light of the elucidation made in this order.
ii) As the police themselves in the respective cases are involved in perpetrating encounter, it would be appropriate that the cases are made over to some other investigating agency — preferably the State CID. As a lot of time has already been lost, we recommend that the investigation be completed within four months from now. If the investigation results in prosecution, steps for speedy trial be taken. We hope compensation would be awarded in cases ending in conviction and sentence.”
These directions were considered to be of general applicability and accordingly were communicated by the then NHRC Chairperson Justice MN Venkatachalaiah in his DO letter dated 29 March 1997 to all Chief Ministers of States to be followed in all cases where deaths were caused in police encounters. It was clearly stated that if an encounter death is not justified as having been caused in exercise of the legitimate right of private defense, or in proper exercise of the power of arrest under Section 46 of the Criminal Procedure Code (CrPC), the police officer causing the death would be guilty of the offence of culpable homicide. Whether the causing of death in an encounter was justified as falling under any of the two conditions could only be ascertained by proper investigation.
Regretfully, this lawful procedure is not being followed in Andhra Pradesh. The practice of the police in AP, as in other parts of the country is to register only a single FIR. Principally, it relates to Section 307 of IPC relating to attempt to murder by the now deceased along with various other sections of the penal code. The contention of the police is that this single FIR is sufficient for recording both the offences, namely the offence of attempt by the deceased on the life of the police and the offence of killing of the deceased by the police. This is an untenable practice that is plainly contrary to legal procedure.
We feel that every such incident must be registered as two crimes under Section 307 and 302 of IPC respectively. The first is a crime of attempt to murder by the now deceased and the other a crime of culpable homicide amounting to murder by the police purportedly in self-defense. The burden of establishing a preponderance of probabilities in favour of the exception relating to self-defence to a competent court rests upon the police personnel who have fired causing death. Investigation must be done into the case of killing by the police in purported self-defense. To come to the conclusion that there is no sufficient reason to investigate is to accept at face value the killer’s version. This is impermissible in our view since it would not meet the requirement of just, fair and reasonable procedure under Article 21 (Right to Life) of the Constitution. Under no circumstances must police personnel escape judicial determination of their criminal culpability.
We recall that following the tragic killing of two forest officials – David Kumar and Sridhar by alleged red-sanders smugglers on December 15, 2013 in these very Seshachalam forests, the police immediately lodged an FIR under section 302 of the IPC and sections of the Indian Arms Act, apart from several provisions of the AP Forest Act and Biological Diversity Act. Over the next several weeks and months over 350 persons were arrested of whom a large number are still in prison.
While the law takes its normal course, and quite rightly so, in such a case, with regard to the deaths of April 7, there has been no such “abiding by the law” on the part of the AP police. The FIR lodged at the Chandragiri police station only notes section 307 (attempt to murder) by the now deceased along with several other sections of the Indian Arms Act, AP Forest Act and Biological Diversity Act. This FIR contains patently absurd assertions, inconsistencies and a litany of falsehoods. Glaringly, there was no registering of a 302 (murder) against those STF personnel who participated in the alleged encounter. (Now of course, following a complaint from Muniammal, wife of one of one of the deceased Sasikumar, the Chandragiri police have registered cases of murder and kidnap. But even this is ambiguous as the FIR states “unknown persons”).
Undertrials: Over the past several years there have been widespread arrests of well over 2000 persons accused of cutting down and transporting red sanders. Needless to add, a majority of them are those from marginalised and poor sections and mostly from TN. Not many of them have managed to obtain bail. A large number of them are lodged in the Central Prisons at Kadapa and Nellore, the Chittoor District Jail and the Special Sub-Jail, Tirupati. A few are also in the Rajahmundry Central Prison. In fact, it is common knowledge that it is the labourers who are the principal targets of the State’s anti-smuggling operations while those further up the smuggling chain including very powerful persons are left untouched.
Alair Killings: The killing of 5 persons in an escort van by the police at Kandigedda Thanda near Tangutur village on the Warangal-Nalgonda border in the limits of Alair police station (Nalgonda) needs no detailed explanation. It is a brazen liquidation of five unarmed Muslim undertrial prisoners eliminated enroute a court hearing in Hyderabad in broad daylight on a prominent National Highway in Telangana. The police story is that one of the undertrials asked the vehicle to be stopped for a toilet break. Upon getting back into the vehicle he grabbed a rifle from a policemen and fired some rounds at a sub-inspector who, however, managed to escape. Following this, the other policemen, sensing immense danger, opened fire resulting in the death of the five undertrials.
While there were strategically placed logs in the Seshachalam case, here it is an INSAS rifle planted on a person firmly chained to the bus seat! The pictures of this incident are self-evident. It is plausible that a genuine encounter could be like the one at Janakipuram under Mothkur police station in the same Nalgonda district a few days before (April 4) during which a constable died on the spot and an SI later on in hospital and the two persons with alleged terror links responsible for their deaths were also shot dead.
We believe the April 7 killings at Alair were in the nature of revenge for the death of four policemen in all during the preceding week in the same Nalgonda district. In fact, the deceased were apprehensive they would be liquidated and one of them had even petitioned the court asking to be shifted to Hyderabad as they feared they would be killed enroute while being taken from Warangal.
What is striking about both these extra-judicial massacres is that the police of AP and Telangana are not even making too much of an effort to put out a plausible story to explain such a large number of dead. This is a brazenness that can only come from clear sanction from the political establishment.
Invariably, the police narrative is the same — that the duly handcuffed person asked to answer call of nature, then proceeded to grab the gun of the escort policeman and in self-defense had to be shot! This is not the first time that the police have liquidated persons in judicial custody while being escorted to court and subsequently put out such ludicrous stories. The NHRC has itself considered complaints by the HRF in the past in respect of such killings in Kurnool and Guntur districts of Andhra Pradesh and even recommended compensation to the families of those killed. But the brazenness of the Alair killings is a first. This was a daylight murder of five undertrial prisoners on a National Highway between Hyderabad and Warangal (NH 202 from Hyderabad to Bhoopalapatnam in Chhattisgarh).
HRF does not believe that these killings are the result of some trigger happy policemen but that they are part of a calculated operation having clearance at the highest levels. The police are only as lawful or lawless as the political dispensation wants them to be. And State impunity is a matter of extreme concern. Time and again, police personnel have escaped judicial oversight for plain murder. We are a democratic, civilized nation, not a police State where those endowed with the responsibility of investigating crime and maintaining public order can merrily escape judicial scrutiny. Such staged encounters mock at the rule of law and constitute a gross violation of the right to life, a tenet enshrined in the Indian Constitution as well as international human rights law.
In view of the above, we pray that the Honourable Commission may, in the interests of justice:
—- Direct the governments of Andhra Pradesh and Telangana to file cases of culpable homicide amounting to murder and other appropriate sections of the IPC and relevant sections of the SC, ST (Prevention of Atrocities) Act, 1989 against all police personnel responsible for the wanton and deliberate killing of 25 persons in both these “encounters.”
—- Since it is the STF personnel in AP and the police in Telangana who will be the accused, the criminal investigation into the case must be handed over to an agency as independent as possible of the perpetrators of the offence. Either the CBI or a Special Investigation Team monitored by the Supreme Court must be handed over the cases for there to be a credible investigation. A magisterial or judicial enquiry is no substitute for this lawful process. We therefore urge upon the NHRC to recommend this to the AP and Telangana governments. This would be in accordance with the spirit of the NHRC’s 1996 order.
—- Call upon the Andhra Pradesh government to see that judicial officers visit the prisons where the undertrials accused in offences relating to red sanders smuggling are languishing and release those prisoners who have already undergone detention for half the maximum period of imprisonment their offence prescribes under law. This would be in line with the Supreme Court’s order of September 5, 2014 with regard to Section 436-A of the Criminal Procedure Code.
—- Recommend to the governments of AP and Telangana modalities for payment of substantial compensation to the families of the 25 killed.
—- Issue concrete suggestions to the local judiciary regarding the taking into cognizance suo moto of “encounter” killings as cases of murder under section 302 IPC.
—- Constitute a special investigating team of the NHRC into both these cases and as a first step visit the sites where the alleged encounters took place.
VS Krishna S Jeevan Kumar
(HRF general secretary, AP and TS) (HRF president, AP and TS)