15th October 2011
National Human Rights Commission
Ref: - Your Letter dated 9.8.2011 in connection with the Case no. 426/25/13/09-10-AD
Our complaint dated 1.9.2009
Our reply against the decision of the Commission
We received your letter dated 9.8.2011 in connection with the Case no. 426/25/13/09-10-AD.
It appears from your aforesaid letter that the case was closed. The said letter also contains some highlighted portion of the BSF report and the magisterial enquiry report.
It transpires that the Commission did not send us the copies of the BSF as well as magisterial enquiry report to give us opportunity to place our comments on the said reports. Though the fact remains that we vide our letter dated 19.5.2010 requested the Commission to send us the copies of the reports submitted before the Commission in connection with the present case.
It is painstaking to note that we being the complainant in this case only confined by the Commission to lodge the complaint and receive the information that the case was closed and the whole process was done behind our back. We being the complainant did not get any opportunity to take part in the enquiries done either by BSF or the magistrate. And the Commission also did not give us opportunity to place our comments on the reports submitted by the BSF and the magistrate. This is completely against the rule of law and also against a just and fair proceeding.
It also transpires from the above referred letter dated 9.8.2011 of the Commission that the Commission did not peruse the Post Mortem Report and the Inquest Report in the matter of the victim. Moreover nowhere it appeared that any enquiring authority either BSF or the concerned magistrate perused the Post Mortem Report and the Inquest Report of the victim. We have specifically alleged in our fact finding that the family members of the victim and other villagers saw gunshot injury and one deep penetrating bleeding injury on the head of the victim just above his left ear. But the enquiring authorities did not address the issues on the point of the injuries suffered by the victim. The Commission can not ignore the fact that the injuries surfaced on the body of the victim and the medical reports in this regard would have been vital point in this case, but such vital and most important part of the case was completely ignored by the Commission.
The above referred letter dated 9.8.2011 of the Commission highlighted from the BSF report that during enquiry held by BSF, the victim's wife Laxmidasi Mondal reiterated her earlier statement but the allegation against the BSF was baseless for the reason she did not filed any complaint at the police station. We stated in our complaint that the victim's wife Laxmidasi Mondal submitted one written complaint before the Superintendent of Police, Murshidabad on 17.9.2009 wherein she stated that the police of Raninagar Police Station refused to take any complaint from her against the perpetrator BSF personnel. But it appears that such fact was completely ignored in the report of the BSF which can only be taken as a mean to put its (BSF) own gloss in the so called report submitted by it (BSF) before the Commission.
The above referred letter dated 9.8.2011 of the Commission highlighted from the magisterial report that "…Smt Laxmi Mondal did not lodge any complaint in the local Raninagar P.S. after the incident which is a mystery…" Again the concerned magistrate completely ignored the fact that the victim's wife Laxmidasi Mondal submitted one written complaint before the Superintendent of Police, Murshidabad on 17.9.2009 wherein she stated that the police of Raninagar Police Station refused to take any complaint from her against the perpetrator BSF personnel. It is also a mystery to us how the said magistrate can overlook the fact of lodging of complaint before the Superintendent of Police, Murshidabad by the victim's wife when the same has been stated in our complaint.
The above referred letter dated 9.8.2011 of the Commission highlighted from the magisterial report that "…Smt Laxmi Mondal was directed to appear in the hearing through two of her brother-in-law but she did not turn up…" It is surprising to us to note that the said concerned magistrate issued direction to the victim's wife to appear in the hearing (the place of hearing appears to be his chamber but not the residence of the victim) rather than the magistrate dared to put some labour to visit her residence and ask her to give her statement. It is relevant here to note that the BSF report (as highlighted in your above referred letter dated 9.8.2011) that the victim's wife reiterated her earlier statement.
The concerned magistrate failed to consider that there is plenty of justification for the reluctance of witnesses to come forward not only due to lack of facilities but by doing so they have to incur the wrath of the accused and jeopardize their life. The concerned magistrate here only acted as a stereotype table work and there is complete lack on his part to provide necessary confidence in the mind of the victim's wife that she would be protected from the wrath of the accused in any eventuality. In Zahira Habibulla H. Sheikh and Another vs. State of Gujrat and other (2004)4SCC158, (the Best Bakery Case), the Supreme Court made several observations on the question of protection of witnesses. The Supreme Court reiterated that "….legislative measures to emphasise prohibition against tampering with witnesses, victim or informant have become the imminent and inevitable need of the day". The court also referred to Witness Protection Programs being imperative in the context of alarming rate of somersaults by witnesses.
The commission should have considered that the report of BSF only gave sanction to the stand of BSF taken in these cases that in the course of the encounters that took place, person alleged to be a member of smugglers died as a result of the firing by BSF personnel without even a simple injury being suffered by the involved BSF personnel. Then in the firing there is killing of the alleged miscreant(s) and those who were not killed could not be apprehended by BSF at all. Every time the person hit with bullet in the firing succumbed on the spot and his body is being handed over to police after several hours since the incident. It is inevitable that there is no available witness who could be helpful to rebut the claim raised by BSF in justification of the killing. On the basis of the information furnished by BSF, entries were made in the respective Police Station stating that some alleged miscreants made an attempt to kill the involved BSF personnel and were, therefore, guilty of the offence of attempt to murder under Section 307 IPC and other related penal provisions. On that basis, they were described as accused and FIRs were drawn up by the Police. Therefore the stand of BSF is that they have not committed any offence as they acted in exercise of the right of private defence. In this case also an FIR was drawn being Raninagar Police Station Case no. 341/2009 under sections 147/146/149/353/307 of IPC on the complaint of BSF. It appears from your above referred letter dated 9.8.2011 that the Commission had issued notice to the Superintendent of Police, Murshidabad to submit the present status of the said criminal case (Raninagar Police Station Case no. 341/2009 under sections 147/146/149/353/307 of IPC) but in the same above referred letter dated 9.8.2011 the Commission did not make any whisper whether the present status report was submitted by the Superintendent of Police, Murshidabad or not.
Therefore under the above mentioned facts and circumstances we are deeply aggrieved and dissatisfied with the decision of the Commission and state that the decisions of Commission has been arrived under a shadow of doubt for the reason discussed above. For better understanding of the civil society, I am hereby copying this mail to our friends.
Hence we urge before the Commission to reopen the case and implement the guidelines issued by the Commission in case of encounter death in this case. We also request the Commission to consider the Post Mortem Report and Inquest Report of the victim and give an opportunity to the victim's wife and other witnesses in this case to give their statement before the Commission's own investigation wing.
We sincerely hope for your early response in this matter.
Kirity RoySecretary, MASUM
Banglar Manabadhikar Suraksha Mancha
National Convenor (PACTI)
Programme Against Custodial Torture & Impunity
40A, Barabagan Lane (4th Floor)
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Truth resides in every human heart, and one has to search for it there, and to be guided by truth as one sees it. But no one has a right to coerce others to act according to his own view of truth. - Mohandas Gandhi
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