Encounter Truth : Gujarat police as investigator,
prosecutor and judge (uploaded 21 July 2004)
By Mukundan C Menon
Even after three weeks of making all that orchestrated loud
claims, charges and accusations against the four alleged Lashkar
terrorists killed in the June 15 encounter at Ahmedabad outskirts,
the Detection of Crime Bureau (DCB) of Gujarat is faced with
two embarrassing questions: One, why and how its carefully
scripted encounter story failed to act as a best-seller among
the general public? And, two, how to convince the Union government
that two of the corpses, which still remain unclaimed and
unidentified in the city civil hospital mortuary, are indeed
of Pakistani nationals?
To their dismay, the Modi police also found that except the
devout Sangh Parivarites, the general public are not prepared
to swallow their encounter story for numerous reasons : For
one, this is not the first encounter killing of the so-called
Lashkarites who came to Ahmedabad with the alleged intention
of killing Modi, Togadia, Advani, et al. Like the present
one, all earlier encounters also left numerous unanswered
questions on the claims and allegations made by Modi police.
Most importantly, the June 15 encounter came close on the
heels of Vajpayee openly demanding for the first time Modi’s
ouster from chief ministership and, sure enough, after RSS
sudden interference, the so-called Lashkar targeted Modi was
favored by the Mumbai meet of BJP two days after the encounter.
The Modi police also failed to present any independent witness
who saw Mumbra college girl, Ishrat, and Kerala-born Javed
with the two unidentified dead persons when they were alive
anywhere in India to establish a firm connection among them.
All that the DCB had done was connecting four dead bodies
alleging that they belonged to Lashkar outfit out to kill
Modi – and without a single substantial evidence or
proof or witness in support of this charge.
All police personnel in India, of course, wanted everybody
to unquestioningly believe whatever they say. This is especially
true with Gujarat’s Modi police. However, too much has
come out of Gujarat ever since Modi occupied power in 2001,
with too little worthy facts to rely upon. What is vitally
at stake is sheer credibility of Gujarat police, if not its
total and absolute erosion.
That is the reason why retired Justice Hosbet Suresh and President
of Lok Raj Sangathan refused to comply with the June 15 encounter
story as well as questioned it. According to him, “the
question is not about the terrorist links of Ishrat, Javed
and others are alleged to have had, but is how, why and under
what authority the police killed them”. Unfortunately,
the media debate is confined to the former question and not
the latter, Justice Suresh said and added : “Assuming
that they had terrorist links, what did they do? Did they
take part in overt or covert acts? Question arises whether
mere terrorist links, without any act of commission or omission,
is sufficient to kill any person?”
He also raised several other vital questions: “What
were the police doing? Was it an investigation? If so, who
lodged the FIR and when? What does it say? If it was not an
investigation, what was it? Was it any dispersal or any unlawful
assembly? Obviously, there was no unlawful assembly. Was it
a preventive action of the police within the meaning of Section
149 of Criminal Procedure Code? If so, what information they
had of these persons committing a cognizable offence? When
did they get the information? And what information? Was there
any information that at the place where they were killed,
they would commit a cognizable offence? Could the police not
have prevented the commission of cognizable offence, without
killing them?”
Justice Suresh ascertains that “there is no provision
either in the Constitution or in the Criminal Procedure Code,
giving any right to the police to kill”. However, according
to him, the only provision that gives any person, including
the police, the right to kill is under Section 100 Indian
Penal Code, which is as a matter of private defense. “But,
then, a Sessions Court has to decide that the killing was
justified. All other killing, prima-facie, is murder under
Section 302 IPC. It is for the accused to plead that he killed
as a matter of private defense, or else the killed person
would have killed the accused or would have caused injury.
The Court, and not the police, would decide whether killing
was justified or not”..
Pointing out that in the case of an unlawful assembly and
dispersing a crowd, the police may have to use armed forces,
which may result in death or injury to several persons, Justice
Suresh added: “Even in that event, there are provisions
of Section 130 to 132 of CrPC for an enquiry by Executive
Magistrate. However, this does not arise in the present case
June 15 encounter, as there was no question dispersal of unlawful
assembly”.
According to Justice Suresh, the legal position is clear:
“The Police cannot justify killing under any provision
of Law. On the other hand, the police who killed these persons
in the June 15 encounter are patently liable to be charged
for murder under Section 302 of IPC.”
Justice Suresh also pointed out that it is mostly the police
who select a spot and time for encounter killings. “Generally,
there is no witness. No policeman is hurt. After the killing,
it is only the police version. They kill, they decide, and
they justify. The police thus become the investigator, the
prosecutor and the Judge!”
More than anything else, this dangerous phenomenon of the
police dolling the all-in-one role of investigator-prosecutor-judge
under the present system of Constitutional Rule of Law was
more than exemplified by the actions and events that followed
the post-June 15 encounter killings. The Gujarat police wanted
the Central Government to make the Pakistan diplomatic mission
to accept the two dead bodies. The new UPA dispensation at
Delhi, however, insisted them to furnish full proof and evidence
to establish the dead persons identity as Pakistan nationals
before taking-up the issue with Pakistan. The Gujarat police
drew blank. Without establishing the Pakistani national identity
of the two the Gujarat police cannot link them with Lashkar.
It was also a pre-requisite to connect the already identified
Indian victims, Ishrat and Javed, with the Pakistani terror
outfit.
Participating in the one-and-half hour live telecast programme
on the encounter killing in Asianet TV on July 3, Ahmedabad
City Addl. Police Commissioner (Crime), Mr. D. G. Vanzara
was grilled on this question. He tried to excuse himself under
the plea that “investigation has to be held in Pakistan
to establish the Pakistani identity of the two”.
On the same day, Vanzara told presspersons at Ahmedabad that
“that there is no iota of doubt” that Ishrat was
actively involved in the conspiracy to assassinate Modi: “Our
probe has made it clear that Ishrat, her mother Shamima and
Javed were in close contact since long time. Both had visited
Lucknow and Faizabad and visited Ahmedabad and Gandhinagar
twice.” Also reported that day was the Gujarat police
seriously considering of arresting Shamima.
According to Shamima, her killed daughter Ishrat was sustaining
the large family by taking tuition after her father died two
years ago. Income from tuitions stopped due to closure of
educational institutions for summer vacation, which forced
her to accept the job as an account assistant in Javed’s
business. Started in May, it also involved her going to places
with Javed a couple of time. Neighbors also vouch that Shamima’s
family is so poor that they still owed seven-months’
rent dues at the time of Ishrat’s killing - something
which can hardly co-exist had she been a Lashkar operative
for long as the Ahmedabad DCB allege.
In fact the Gujarat police fed the newspapers several such
stories about those killed. However, it only exposed their
role of searching in the dark for evidence against the victims
after they were gunned down. For example, it was alleged that
several CDs were “seized” from Javed’s Pune
residence, including one on Gujarat riots. Javed’s widow,
Sajitha, however, said in the Asianet programme that these
CDs were mostly of films, especially starring Malalayalam
actor, Mammootty, whom Javed liked most. Originally named
Pranesh Kumar Pillay, Javed’s conversion into Islam
as well as his working in Gulf for a few years were all projected
with a tinge of suspicion so as to link him with Lashkar terrorists.
This despite, Javed’s father Gopinathan Pillai repeatedly
ascertaining that his son had converted into Islam while working
in Pune almost ten years ago to “marry Sajitha and not
to join any terrorist group”.
In a petition submitted to Kerala Chief Minister A. K. Antony
on June 26, Gopinathan Pillai said : “Gujarat police
claims that my son and other murdered persons belong to a
terrorist group. This allegation is raised without any foundation
or any credible investigations. I have the bona-fide impression
that it was a trap shooting done by the Gujarat police for
some ulterior motives. My son is a law-abiding citizen who
have not involved in any criminal activity. Not satisfied
with murder my son’s murder, the Gujarat policies frequently
harassing my daughter-in-law under the guise of investigation.
Police is compelling my daughter-in-law to give statement
as dictated by them and also they are propagating false information
and allegations through media as if told by my daughter-in-law.”
According to Sajitha, mother of three infants, the police
forcibly evicted her from her Pune residence before taking
possession of the same for no valid reasons. Sheltered by
her relatives at Pune, she moved the Court to get back possession
of the house.
In other words, this post-encounter newspaper trial by the
police also gave credence to the overall belief that the DCB
had no evidence against the victims when they were alive.
Although the Gujarat police claimed that the victims were
under their surveillance for long, they failed to give a convincing
answer as to why they did not arrest them prior to the June
15 shoot-out.
Meanwhile, prominent social and human right activists of
Gujarat, like Advocates Girish Patel and Mukul Sinha, are
moving ahead with a Public Interest Litigation in the Supreme
Court pleading a CBI inquiry into the June 15 encounter. Supported
by NGOs like Lok Adhikar Manch, the petitioners plan to focus
whether the four killed persons were dangerous terrorists
out to kill Modi, and whether the encounter was genuine?
Rediff News quoted the social thinker and writer, Achyut
Yagnik, opining that the society should not tolerate such
encounters. “Because today some terrorists have been
killed, tomorrow it could be civilians’ turn if they
are perceived as criminals or a threat to the police. The
existence of such infrastructure is dangerous.”
Advocate Hashim Kureshi, the leading lawyer holding the
brief for more than 55 POTA accused in Gujarat and who support
the PIL, said: “Gujarat police is excellent in writing
filmy scripts. And like filmy writers, they make mistakes
too. We are probing into the identities of the Pakistani terrorists
who have been allegedly killed in the encounter.”
According to Kureshi, like several other encounters, the
June 15 encounter also did not follow the rulebook. “The
accused were not shot in lower parts of their bodies,”
he pointed out as an example. Terming the police claim of
having recovered a diary from the terrorists detailing their
plans as “suspicious”, he says : “No sane
person would keep a diary of his/her movement and the intentions
to kill prominent persons. Before her murder, Ishrat must
have been forced to write the diary in the presence of Gujarat
police. Like four previous encounters in the city, all the
alleged terrorists in the June 15 encounter were wearing cheap
bathroom slippers. These similarities will be brought before
the court.”
Pointing out another “obvious flaw in the police theory”,
Kureshi asked why would Javed use a car registered in his
brother-in-law’s name if he was on a mission to kill
Modi as claimed by cops. “It takes just two hours to
arrange for a stolen car. Why would he use his relative’s
car,” Kureshi asked.
According to Kureshi, Gujarat police’s another “ridiculous”
claim is that they were following the terrorists in their
official vehicle long before the terrorists reached near Ahmedabad,
where they were shot down : “It’s impossible to
believe that the ‘terrorists’ could not see and
recognize a police car following them,” Kureshi commented.
Within three days after the June 15 encounter, the National
Human Rights Commission (NHRC) acting suo-motto upon newspaper
reports, sought a detailed report on it from the Gujarat Police.
It is to be recalled that after the Delhi police gunned down
two businessmen at Connaught Place shoot out on March 31,
1997, mistaking them as gangster Mohammed Yaseen and his associate,
the NHRC issued the following guideline to all state governments:
* All encounters should be probed properly and without bias.
* Any death caused in an encounter with any local police
force or para military force in peace area would amount to
culpable homicide unless it is established that the action
was taken in self defense.
* The probe report has to be submitted to the Commission
within six weeks..
* Investigation should be independent, cops involved in encounter
should be kept out.
The NHRC guidelines hold good for the June 15 Ahmedabad encounter
as well.. In fact, all the post-Godhra 2002 encounters in
Gujarat have a set pattern and striking similarities. At least
seven inspectors of DCB made their presence as common participants
in all the four encounters in Ahmedabad.. These encounters
took place in the wee hours. As there was no independent witness
for any of the shoot-out, only police versions were available.
In at least two instances, the victims were under custody
in jail or police station, from where they were taken out
in wee hours to the spot where the encounters supposedly took
place. In all such encounters, the police claimed that the
victims were killed in “retaliatory fire opened by them
in self-defense”. Although it was alleged that the killed
“terrorists” used sophisticated weapons, as in
June 15 encounter, none of the police officer was injured
in all such incidents. And, the post-encounter allegation
by police consistently maintained that all the culprit-victims
were Lashkar activists with a mission of deep conspiracy to
liquidate Narendra Modi. Details of formal post-mortem or
forensic examination held on the dead bodies were not disclosed
in all such cases.
Yet, Modi police wanted all of us to blindly believe their
version - for the sake of his safety and, of course, to protect
our national security under threat from dreaded Pakistani
terror outfits like Lashkar!
Confederation of Human Rights Organizations (CHRO) 3, Rams’
Cottage Ambalathumukku, Pettah Thiruvananthapuram-695 024
(Ph.: 0471-2476262) Web: www.humanrightsindia.com www.humanrightskerala.com
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