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Published in the 16-31 July 2004 print edition of MG; send me the print edition

An Encounter — fake or real?
By N. D. Pancholi

People at large are finding it difficult to believe the version of the Gujarat Police regarding the recent encounter near Ahmedabad on 15 June 04 in which they claimed to have gunned down four Lakshar-e Toiba terrorists who were said to be on a mission to kill Gujarat Chief Minister Narendra Modi. It appears to be a fake encounter but the Gujarat police is feeding media day in and day out with new pieces of evidence against the dead accused to convince the people about the genuineness of its action. However the police has been trying to divert attention of the people from the main issue.

The main issue is whether it was necessary to kill them even if it is assumed that they had terrorists links? If they really belonged to a dangerous terrorist organization, was it not necessary for the police to arrest them alive - so that the whole conspiracy could be unearthed? According to the police the accused were under the surveillance of the police for the last about six months and in such a situation it was not difficult for the police to nab them alive. According to police version it were the accused who were the first to start firing at the police party and the latter fired only in retaliation. The surprise is that there was no scratch to any policeman while all the four accused were killed when the police fired in reply – even the 18 year old girl student Ishrat who did not fire any shot! The argument of the police that they were saved because they hid themselves behind their vehicle, is not convincing. If the dead accused were dangerous terrorists and if they were on such a gruesome mission, they could be in possession of more destructive lethal weapons like bombs, grenades or rocket launcher or any other explosive material against which even their vehicle could not provide them any protective cover. What precautions policemen had taken to save themselves against explosives, if any? Or did the police already know that the accused did not have any explosive with them or that they would not use the same if they had ?

Gujarat police has been trying to dig out lot of evidence against the dead accused and present the same to the media but there is no explanation as to why it did not make any attempt to catch the accused alive, and if such an attempt was made, what was the nature of such attempt and as to why it failed! After perusing the sequence of events, it appears that the four dead accused were already in the custody of the police for about 2/3 days before the incident, and on the night of 15th June they were taken to a lonely place and killed by staging a fake encounter where there was no public eye witness. 

If any person is killed by another person, it is an un-natural death and comes under the category of ‘culpable homicide’ as defined under section 299 of the Indian Penal Code and it is an offence punishable with life imprisonment. If it is proved that the concerned policemen intentionally killed the said persons, then it is murder and punishable with death penalty. In any case the cause of such un-natural death has to be investigated –it does not matter whether the death is caused by an ordinary person or by a policeman. The person causing the un-natural death of another person can save himself from the charge of homicide only when he is able to prove that he had to kill the concerned person in self-defence and that there was no other alternative. An un-natural death has to be investigated. For example, if an husband comes to the police station and reports that his wife had committed suicide, it becomes the duty of the Incharge of the police station to find out whether it was a suicide or a murder. Similarly if some policemen reports to the police station that they had to kill some accused in an encounter, in such a situation it also becomes the duty of the Station House Officer to investigate whether it was a real encounter or whether the policemen have committed the offence of murder. The police cannot make a presumption without investigation that causing of death by the bullet of the police is not an offence. These deaths should be investigated by some other reliable department. The report of this investigation has to be sent to the magistrate who has to examine such reports thoroughly to find out whether the investigation has been done properly and honestly or whether the report is only an eye wash to protect the guilty police officers. The magistrate may accept the report or disagree with it and may call for further investigation. This procedure is part of the Criminal Procedure Code and the policemen do not possess any special privilege to avoid this procedure. Only after going through this procedure it can be said whether the encounter was real or fake. But the Gujarat police and administration are already claiming that the encounter was real - though the prescribed procedure has not been followed. According to the aforesaid report of the National Human Rights Commission " there is also a general feeling that most of the encounters are fake. It is therefore , in public interest, that the conduct of the police involved is subjected to proper scrutiny by investigation."

Those who have been dealing with the complaints of human rights violations by the police and security forces, and making investigations into them, especially the human-rights activists , know how the police fabricates evidence to hide its criminal actions. It has been found out that in most of the cases of the alleged "encounters" the victims are already in the illegal custody of the police before such incident and they are tortured to write and sign various documents against themselves during this period of illegal confinement. In most of the cases it is the police who fabricates forged driving license, ration cards and passports in their names and later on produce such documents in evidence in the Courts against the accused. The police also gives the accused several names like "Tariq alias Rana alias Dilshad etc. etc." which are invented by the police itself. Weapons and explosives are also planted on them. E-mail accounts are also opened in their names or pseuodonyms. Witnesses are set up and tutored to give false evidence. Misleading stories about the accused/victims are spread through the media during investigation to prejudice the people against them. 

There are hundreds of Pakistani nationals who have been illegally residing in India. Their motives for such illegal stay may be the compulsion of earning their livelihood, marriage or relations or any other similar reason. Some of them might be involved some petty criminal activities like smuggling etc. They often change their names to hide their identities. Foreigners Registration Offices have lists of hundreds of such Pakistani nationals who entered India on valid visa but later on disappeared. In many cases police know about their whereabouts but due to corruption do not take any action against them. There are reasons to believe that such Pakistani nationals residing incognito are easily available to the police to stage false encounter and later on claim that the victim was Pakistani terrorist. None of the relatives or friends of such victim would come out in his support lest they should also be framed in the terrorist offence. 

Human Rights organizations have exposed the falsehood of fake encounters from time to time. The National Human Rights Commission has emphasized the need to investigate such encounters in accordance with the established legal procedure. It should be a matter of serious concern for all that, generally, there is no serious investigation to find out whether such encounters are real or fake. Police investigation is devoted to only one aspect - to establish the guilt of the victims by hook or crook. The Commission has stated if required procedure for investigation is not followed with respect to police encounters, "it would give licence to the Police to kill with impunity any citizen in the name of an encounter by just stating that he acted ‘in the right of private defence’ or under section 46 of the Code". The Gujarat encounter strengthens the above apprehension of the National Human Rights Commission.


Advocate N.D.Pancholi is Vice-President of PUCL (Delhi). 
He may be contacted at azadpancholi@yahoo.com 

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