The Report of the V.S. Sirpurkar Commission of Inquiry, now in the public domain, will help to mobilise public opinion against fake encounters, often resorted to by the police to please those in power, and play to the gallery, in violation of the rule of law.
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RECENTLY, the Commission headed by former Supreme Court Judge, Justice V.S. Sirpurkar had submitted its report on the 2019 Hyderabad police encounter to the Supreme Court.
On November 27, 2019, an incident of rape was reported in the outskirts of Hyderabad and on the next day, the victim, Disha's (name changed) dead body was found burnt. On November 29, 2019, four persons, namely, Mohammed Arif, Jollu Shiva, Jollu Naveen, and Chintakunta Chennakesavulu were arrested in connection with the rape and murder of Disha.
On December 6, 2019, it was reported that the four suspects were killed when they attacked the police, which had taken them to Chatanpally from a "safe house" to recover Disha's articles. It was further reported that the deceased suspects had snatched arms from the police and opened fire upon them, and were subsequently killed in an exchange of arms. Later, by an order dated December 12, 2019, the Supreme Court constituted a Commission of Inquiry headed by one of its retired judges, Justice V.S. Sirpurkar, along with former Bombay High Court Justice R.P. Sondurbaldota and former director of the Central Bureau of Investigation, D.R. Kaarthikeyan to inquire about the alleged 'encounter' of the deceased suspects.
In a report running almost 400 pages, the Sirpurkar Commission has, in short, called the entire Hyderabad encounter episode a 'fake' one. It has recommended that the ten police officers involved in the encounter, be tried under Sections 302 (murder) read with 34 (common intent) and 201 (causing disappearance of evidence, providing false information) of the Indian Penal Code ('IPC'). The ten police officers are: V. Surender, K. Narasimha Reddy, Shaik Lal Madhar, Mohammed Sirajuddin, Kocherla Ravi, K. Venkateswarlu, S. Arvind Goud, D. Janakiram, R. Balu Rathod and D. Srikanth.
The key findings on various aspects of the encounter are concerning. It highlights the extent of police excesses that are still capable of being committed despite the legal safeguards to prevent them.
The police had alleged that the four deceased suspects had started pelting stones, tried to snatch their weapons and fired at them, ran out of police custody, and committed assault on them.
Paragraph 20.50 of the report conclusively states, "…there did not arise any occasion for exercising the right of private defence and consequently, there is no question of invocation of Section 96 IPC, 97 IPC (firstly), 100 IPC and Exception 3 to Section 300 IPC r/w Section 6 IPC."
The narrative of the police party falls flat because the report finds that no bullets were recovered from the site where the alleged exchange of arms is said to have occurred. Further, there was also no evidence to show that the entire site where the alleged exchange of arms occurred, was secured.
The report makes an interesting finding. It is believed that if the narrative of alleged firing and exchange of arms were true, there is no evidence or witness to support that any kind of first aid was given to the injured policemen. This must be considered in light of the fact that the police party had also claimed that two police officers were seriously injured.
Paragraph 14.3.3.1 of the report states, "There is something very unnatural about the way in which the other members of the police party are said to have reacted to a situation where some of the members have sustained injuries…"
Paragraph 14.3.3.2 states, "When it is claimed that two of the police officers were seriously injured and lying unconscious, they ought to have been sent to a hospital without loss of time. If really, they were so critical that they had lost consciousness, the other police officers present would lose no time in calling for 108 ambulance. None of them made any such attempt…."
In such a case, where the deceased suspects were not the first ones to attack, the police is not justified to either take the exception of private defence, or justify their acts under Sections 46 (how an arrest is made) read with Sections 60 (power to pursue and retake a person who has escaped from custody) and Section 149 (police officers' duty to prevent cognizable offences) of the Criminal Procedure Code ('CrPC').
The report finds that the ten police officers and personnel had the common intention to commit murder of the deceased suspects. The same is evidenced from their subsequent conduct in falsifying records, such as, for instance, altering the CCTV footage. Furthermore, there was unjustified delay in sending the First Information Report ('FIR') of the encounter to the police station.
Paragraph 19.1 of the report states, "…the incident is said to have occurred at 6.10 AM…it is stated that the complaint lodged by CW-44 was sent to the police station by 8 AM. It is received by SHO at 8.30 AM as per the endorsement in FIR…It is also admitted that the court premises is at a distance of 3 kms from the police station. It should not have taken more than half an hour to fill up the columns in the FIR and the FIR should have reached the Magistrate within an hour at the most. But the FIR is received by the Magistrate at 4.40 PM as seen… There is absolutely no explanation for the delay in sending the FIR to the court…"
In paragraph 16.1.45, the report finds, "The multiple variations in the statements of the police party and the panch witnesses make it unclear whether the counter firing was initiated (i) in self-defence, (ii) to apprehend the accused or (iii) to open retaliatory fire."
Evidence and witnesses stated that there was no one other than the deceased suspects on the site. All the four deceased suspects were in the custody of those ten police officers. After medical and forensic examination, it was revealed that the deceased suspects were killed only by the bullets that belonged to the ten police officers. The Commission, therefore, relied on the doctrine of res ipsa loquitur, which implies that the act speaks for itself.
Paragraph 20.45 of the report states, "Above all, there is a grave suspicion that the best evidence in respect of CCTV footages, video recording of inquest and crime scene etc has been withheld from the Commission."
The report finds that two of the four deceased suspects were juveniles, and the same was not unknown to the police officers. Shiva and Chennakeshavulu were born in the years 2002 and 2004 respectively. The same is evidenced from their school records. There are witnesses to confirm that the police had visited the school a few times, and they were told about the deceased suspects' age from the official records of the school.
Paragraph 7.6.2 of the report states, "They (police officers) went to the school where Jollu Shiva and Chennakeshavulu had studied, took photographs of the relevant school registers and thus had knowledge of the dates of birth of the two. Yet the entire investigation record is silent over this. The only logical inference is that the facts on juvenility have been deliberately suppressed."
Apart from those mentioned above, the Commission found the conduct of the police party before and after the alleged 'encounter' questionable. For example, the police party has itself admitted that the memoranda of arrest were not executed while the deceased were being picked up; rather, they were executed after the deceased were 'rearrested'. According to the report, the term 'rearrest' has no legal recognition in the Indian criminal justice system, and that the arrest memo is to be prepared at the time of arrest and not 'rearrest', according to Section 41B(b) of the CrPC.
The report highlights that no attempt was made by the police to identify Disha's articles. None of the family members of Disha were summoned by the police to confirm if the articles recovered from the crime scene actually belonged to Disha.
The Commission makes some important observations about the articles recovered from the site, which raise questions over the claim that the recovered articles actually belonged to Disha.
Paragraph 13.2.11 of the report cites State Witness-3 as having admitted: "…the fingerprints of the deceased suspects were not found on the alleged articles of Disha and also stated that they were not sent for forensic examination. In fact, he admitted that the fingerprints of the deceased suspects are not found on any of the objects allegedly recovered from the scene of occurrence on 06.12.2019."
Further, paragraph 13.2.12 of the report conclusively holds, "… it is difficult to accept that there was any recovery of articles of Disha at the scene of incident…"
Additionally, the use of a 'safe house' to keep the four deceased suspects was unusual. Witnesses testified that keeping people in a safe house was not a routine practice; rather, it was known that the same can be done only with permission of the Commissioner of Police.
Paragraph 11.1 of the report states, "When asked on how many occasions he had rented a private guest house as a safe house and whether it was a normal practice in State of Telangana to engage a private guest house as a safe house, N. Prakash Reddy (CW-18), states that only once in his career, he had rented a private guest house as a safe place and that he is not aware whether it is a normal practice. Hence it should be inferred that it is not a routine practice and therefore such a course could not have been adopted without the approval of CP, V.C. Sajjanar."
In the present case, the police officers have failed to clearly justify the need to use this safe house to keep the deceased suspects and thus, the confessional statements of the deceased suspects recorded in the safe house were not accepted by the Commission.
The final report has been sent to the Telangana High Court to be considered and adjudicated upon. It has been more than two years since the incident has occurred. The report is a revelation of the facts behind the fake encounter, as ascertained by the former judge of the Supreme Court, known for his impeccable credentials. Therefore, the report has a lot of persuasive value for the High Court, which will now have to monitor the prosecution of the ten indicted police officers.
In Prakash Kadam versus Ramprasad Vishwanath Gupta (2011), the Supreme Court had observed that "fake 'encounters' by the police are nothing but cold-blooded, brutal murders by persons who are supposed to uphold the law. "[I]f crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties", a division bench comprising Justices Markandey Katju and Gyan Sudha Misra had held.
The trial court should not follow the obiter in that case that the accused in fake encounters must be sentenced to death. This is because death penalty, by itself, has not been a mitigating factor in controlling any crime. However, even ensuring a harsh punishment to the cops in this case, as the Supreme Court had recommended, may prove to be a huge challenge, as in the immediate aftermath of the encounter, sections of the civil society had no qualms in greeting them as heroes for their actions, indicating the presence of significant public opinion in favour of the 'encounter'.