Azad, Hemchandra Apprehended, Shot Dead By Police In Sarkepally Forest: HRF

To,                    
The District Collector
Adilabad

Sub: Submission by Human Rights Forum to Magisterial Enquiry into alleged encounter deaths of Maoist functionary C Rajkumar alias Azad and journalist Hemchandra Pandey

Sir,

We have gathered from media reports that a magisterial enquiry under Section 176 of CrPC is being conducted into the deaths of C Rajkumar alias Azad, a member of the Maoist party and a journalist Hemchandra Pandey, in an alleged encounter with the police in the Sarkepally forest region of Wankhedi mandal in Adilabad district on the intervening night of July 1-2, 2010.

The Human Rights Forum (HRF) is a citizens’ forum established with the objective of working for the 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:

A five-member fact-finding team of the HRF enquired into the alleged encounter in the Sarkepally forest. The team visited the area on July six and apart from examining the exact place where the two bodies were found, we also spoke with local residents. We are of the firm belief that there was no exchange of fire as is being stated by the police on that occasion. Rather, it was a cold-blooded deliberate liquidation of two persons by the police.

That the police version of a nearly four-hour encounter in the dead of night in the course of which over 300 rounds were exchanged following which ‘two top Maoists’ died is an utter falsehood is proven by a perusal of the hillock where the alleged encounter took place. The hillock is about a km from Kensuguda village amidst fairly thick forest. Apart from a few bullet holes in the tree trunks below which the bodies of Rajkumar and Hemachandra were found, there are no other details of bullets lodged elsewhere or ricocheting off the rocks in the area, something that surely would have happened if there was a fierce gun-battle as the police claim.

According to the police, there were about 25 armed Maoists who took part in the encounter. It raises the question why not a single policeman was even injured. If indeed there was an exchange of fire, the police could not have come out unscathed as the Maoists clearly had the advantage of terrain with the police below the hillock and clearly at a disadvantage. Moreover, Adivasi residents in the area did not hear any prolonged exchange of fire which they would have if it was really a fiery four-hour gun-battle as the police claim.

We believe that Rajkumar and Hemchandra Pandey, the latter who, contrary to police claims, was not a ‘dreaded Maoist’, but a journalist, were both apprehended by the police, brought to the Sarkepally forest region and shot dead on the said hillock. Instead of abiding by the law and producing the two in a court of law, the police killed them and subsequently put out the story of an encounter. We have no hesitation in stating that this was an incident of deliberate and intentional killing of two persons by the police.

As you are aware, an encounter by definition means an exchange of fire. Every killing in an encounter, is therefore a killing in self defence. 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 appropriate 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.

It is the HRF’s considered view that such an incident must be registered as two crimes, that is under Section 307 and 302 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.

Thus every alleged encounter, as the one on the intervening night of July 1-2, has to be registered as a crime under Section 302 IPC (read with other appropriate statutes) against the police, and the concerned police personnel have to be arrested and put on trail for Culpable Homicide Amounting to Murder. The burden of raising sufficient presumption in favour of the plea of self-defence then rests with the accused police officer/personnel.  Importantly, the case must be investigated by an agency completely independent of the State police. This lawful procedure has not been followed by the law enforcing authorities in the present case. We reiterate that this must be done without further delay in the present case.

We also urge you to issue a public statement assuring those 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.