Azad, Hemchandra ‘Encounter’: HRF Submission To CBI

VV Lakshmi Narayana    
Joint Director and Head of Zone
Central Bureau of Investigation
IIIrd Floor, Kendriya Sadan
Sultan Bazaar, Koti
Hyderabad – 95

Sub: Submission by Human Rights Forum (HRF) in respect of alleged encounter deaths of Ch Rajkumar alias Azad, Maoist functionary and journalist Hemchandra Pandey – 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. We are concerned with ensuring, among other things, 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 execution by the State. That would be contrary to Articles 14 and 21 of the Indian Constitution. We therefore place before you the following hoping you will take the views expressed below into serious consideration.

A five-member fact-finding team of the HRF enquired into the encounter which is said to have taken place on the intervening night of July 1-2, 2010 in the Sarkepally forest region of Wankhedi mandal in Adilabad district resulting in the death of Ch Rajkumar and Hemchandra Pandey. The team visited the area on July 6, 2010 where the alleged exchange of fire took place and also spoke with residents of Soyamguda and Chitthareddy villages located close by. The HRF fact-finding team consisted of VS Krishna (State general secretary), Md Anwar (State secretary), Atram Bhujanga Rao (Adilabad district general secretary), Soyam Chinnayya (Adilabad district vice-president) and M Kumar (Karimnagar district joint secretary).

We have no hesitation in stating that what took place on the night of July 1 was not an encounter but murder by the police. The Adilabad SP Pramod Kumar and Kaghaznagar DSP Sashidhar Raju’s version is that acting upon intelligence inputs, a police combing party equipped with night vision devices was deployed in the Sarkepally forest area and it was fired upon by a group of about 25 armed Maoists and that the police returned the fire in self-defence. They have stated that the encounter lasted for several hours following which the Maoists fled. The police say that they then discovered the bodies of two top Maoists. Not a single policeman was injured, it was stated.

The police version is an utter falsehood. That this is a concoction by the police is clearly proven by a perusal of the area. The bodies of Rajkumar and Hemchandra were on a hillock about a km away from Kensuguda village. There is a fairly thick forest across the hillock. If there was a fierce exchange of fire as is being stated by the police (they say over 300 rounds were fired in the course of the encounter), there should have been many bullets that would have hit the trees all around as well as clear signs of bullets ricocheting off the rocks. There were none except at the places where the two bodies lay. We hope these facts have also been duly recorded by the CBI team that has already visited the area.

Moreover, in the event of an exchange of fire, it is impossible for the police to have come out unscathed because the Maoists had the advantage of terrain being on a hilltop above the police. Also, Adivasis’ resident in the area did not hear any prolonged exchange of fire which they certainly would have if there was a fierce four-hour gun battle as is being claimed by the police.

Significantly, the post-mortem report clearly indicates that the bullets that hit the two leading to their death were fired at close range. Also, the entry and corresponding exit paths of the fatal bullet wounds show them travelling from above to below, of entering the chest and travelling downwards. This would not have been possible going by the police version of the alleged exchange of fire which states that the Maoists were on a hilltop and the police were at some distance below.

The HRF believes that Rajkumar and Hemachandra did not die in an exchange of fire but were apprehended by the police earlier and brought to the Sarkepally forest and shot dead on the hillock on the night of July 1. This was not an encounter but a case of administrative liquidation of two persons by the police. The police had the opportunity of abiding by the law, arresting them and producing them in a court of law but they made no effort in that direction choosing instead to kill them. As has become customary for the police, a story of an encounter was subsequently put out.

An encounter by definition means an exchange of fire. As you are aware, at the conclusion of every alleged encounter, the police officer in charge of the police party that has participated in the alleged encounter gives a complaint in the local police station, which is registered as a crime under Section 307 of the IPC (read with other sections). This means that the crime is registered as one of attempt to murder by the now deceased as a consequence of which the police, according to the complaint, had to resort to firing in self-defence causing death.

Every killing in an encounter, from the point of view of the police person involved, is a killing in self-defence. In the case of a killing/killings committed by a police officer/personnel in purported self-defence or in the purported exercise of his/her duty, the burden of raising sufficient presumption in favour of the plea of self-defence rests with the accused police officer/personnel. To arrive at the conclusion that there is no sufficient reason to investigate is to accept at face value the killer’s version, which is impermissible, since it would not meet the requirement of just, fair and reasonable procedure under Article 21 of the Constitution. It has been our contention since many decades that in all cases of encounter killing, a case of murder must be registered against the police who took part in it, arrests effected, proper investigation undertaken, and the case brought to court which is the proper authority to decide upon the veracity or otherwise of the police version. It will not do for the police to simply put out an “encounter” story and wash their hands off the matter.

Thus, every such incident, as the one at Sarkepally, has to be registered as a crime under Section 302 IPC (read with other appropriate statutes) against the police and investigated. Importantly, we have been stressing that the case must be investigated by an agency completely independent of the State police. We wish to bring to your notice that this plainly lawful procedure is not being followed by the law enforcing authorities in AP. The practice of the police in Andhra Pradesh, indeed as in other parts of the country is to register only a single FIR which is booked against the Maoists. Principally, as in these cases, it relates to Section 307 of IPC relating to attempt to murder by the Maoists along with various other sections of the penal code like Sections 121, 121A (waging war against State), various provisions of the Arms Act and Explosives Act as well as sections of the Unlawful Activities Prevention Act. 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 simply unacceptable.

It is our considered view that such an incident must be registered as two crimes under Section 307 and 302 of the 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-defence. 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-defence. The procedure being followed by the police now makes for a mockery of the law and the Constitution and we urge the CBI to delve into this matter as well.

In AP, time and again the police have shot dead both armed and unarmed cadre as well as sympathisers of various Naxalite party’s’, often after torturing them. Instances from the year 2010 include the extra-judicial killings of Sakhamuri Appa Rao and Kondal Reddy on March 12 in Prakasam and Warangal districts respectively, of Kanithi Pullaiah and K Lakshmi on Tadapala hill on the Khammam-Chattisgarh border on March 19 and S Rama Rao on July 20 at Bakkachintapally in the Kothaguda forest area of Warangal district.

We welcome the CBI taking up investigation of this alleged encounter at Sarkepally after having registered a case under appropriate sections of the IPC including 302 and criminal conspiracy. The process initiated by you vindicates our long-held position that the police cannot simply wash their hands off encounter deaths after registering case under IPC 307. There have also been reports in the media attributed to various sources that the two deceased were in fact picked up by the police from Nagpur on July 1 several hours before being brought to the Sarkepally area and shot dead. We hope the CBI would diligently probe this angle as well and also widen the ambit of the criminal conspiracy thereby building a strong case that would lead to criminal prosecution of all those involved in these reprehensible extra-judicial killings.  

We also urge you to issue a public statement assuring potential witnesses who wish to depose before you that no harm will befall them. We say this because in most cases relating to police lawlessness intimidation is resorted to by the police so as to prevent people from deposing.

VS Krishna
(HRF State general secretary)

S Jeevan Kumar
(HRF State president)

10 June 2011

S Jeevan Kumar
PS Colony, Ramanthapur
Hyderabad- 500 013

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