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PUCL May, 2003

Killing of Subhash Sahani, an alleged criminal in police encounter on 21.4.2003 at Belmuri, Dhaniakhali PS, West Bengal

A fact finding report by Association for Protection of Democratic Rights
Hooghly district committee (APDR), 12 May 2003


On Monday, 21st April 2003 a youth was killed by plainclothes policemen in a telephone booth near Belmuri station on Eastern Railway s Howrah-Burdwan chord line. The place is under the jurisdiction of Dhaniakhali PS in the District of Hooghly. The incident took place at about 5-15 PM after the 4-40 PM Down Burdwan local left Belmuri. TV news telecasts and the next morning newspapers covered the incident quite extensively. Some reports also mentioned that apart from the man killed, another person was also seriously injured and was taken into custody. Electronic and print media reports also said that a police officer was also injured in the action and was hospitalised.

The stories were full of all sorts of sensationalism, almost each of which cited police sources as the source of information given and each giving a different and confusing version from its police source . The leading morning newspapers including Anandabazar Patrika, Bartaman, The Telegraph did not mention the name of the person killed, while the CPI(M) daily Ganashakti identified the slain youth as Subhash Sahani.

According to Anandabazar Patrika, a militant was killed, Bartaman described him as a dreaded criminal and Ganashakti as a Bihar coal mafia . Citing police sources, Ganashakti also connected him with a Trinamul Congress leader of Dhaniakhali area. Going through the confusion created by the stories and considering the fact that most local correspondents of Calcutta x-udd dailies are known to have good sources inside the district police and that they were fed with confusing versions by their sources, above all prima facie this was a case of extra-judicial killing, APDR, Hooghly District Committee decided to conduct a fact-finding on the incident that took place at Belmuri station on 21.4.03. afternoon.

A seven-member APDR team visited the place of incident on 23.4.03 and talked to a large no. of people including about twenty eyewitnesses. The team recorded the versions of the incident given by Sri Asoke Dhara, the owner of the Telephone Booth-cum Electronic Shop & Service Centre inside which the alleged shoot-out took place, his employees including Netai Das, who was manning the booth at the time of the incident, his elder brother and some other shopkeepers and street vendors.

An APDR team also visited Malgudam (a Ganges side shanty near Tentultala under Bhadreswar PS ) where the slain youth Subhash Sahani lived with his family on 28.4.03. An APDR team also succeeded in meeting SI Debashis Chakrabarty, O/C, Bhadreswar PS after two attempts and about three hours waiting on the second day and Shri Sankhasubhra Chakrabarty, SDPO, Serampore with a prior appointment. APDR also talked with the DSP (HQ), Hooghly over the phone and tried to contact the SDPO Chandernagore, who was also in the police force taking part in the operation but did not succed. APDR also talked to Trinamul Congress leaders of Bhadreswar and Dhaniakhali areas.

I. The substance of APDR fact-finding is as follows
1. The incident at Belmuri on 21.4.2003: There are two distinct and contradictory versions of what happened between 5 and 5-15 PM at the PO on that day.

(a) The statements made by at least twenty local people while talking to APDR team on 23.4.2003 are essentially similar. It is needless to mention that they took notice of what was happening only after when they heard three to four gunshot fires. Local people spotted some unidentified persons assembled near the Telephone Booth owned by Ashoke Dhara from about 4-30 PM that day. But they were not apprehensive, as the place was generally peaceful. A man said that he was standing in the sweetmeat shop almost facing the booth and that he saw two men coming along the station road. One of them stopped in the Cigarette shop at the gate of the booth and was buying Pan Masala or something like that, while the other entered the booth.

One of the unknown faces waiting in front of the sweet shop gestured something to another near the booth who also entered the booth. Immediately sounds of scuffle were heard followed by several bursting sounds, which were later realised as gunshot sounds. The unknown plainclothes persons took out their firearms and identified themselves as police personnel and ordered everyone to disperse saying that they were confronting dreaded militants . The other man in the cigarette shop was also grabbed in the meantime. Barring a few shop owners and those sitting inside, everyone ran helter-skelter. Telephone booth hand Netai Das said that he was watching TV sitting just beyond the notch connecting the booth and Electronic shop while he heard sounds of scuffle and he was asked by someone inside to run.

He also heard sounds of two or three gunfire shots. Witnesses also said that they saw a man grabbing another from behind, groping him by one hand and holding a pistol at his forehead by the other hand before the gunshot sounds were heard. After the shots were fired a man inside was seen through the glass panes of the booth trampling the other by his legs. According to them, the man inside did not die immediately because of gunshots he was throttled to death by pressing leg on his neck. After that the man inside was dragged out of the booth.

Ashoke Dhara, the telephone booth owner testified that policemen washed bloods spilled on the floor of the booth. On seeing armed plainclothesmen in front of their two storied building which houses the telephone booth and hearing gunfire shots Ashoke Dhara s elder brother who was in his shop about 25 meter in front, thought that a dacoity was going on in their house and he rang to the Dhaniakhali PS from a fertiliser shop. A vehicle came within a few minutes and the dead body was dumped in it.

The other arrested man was also taken away, who was also injured. The local people did not speak of any injury sustained by any one of the police party. Local people, including the telephone booth owner also testified that no official from the police had taken their testimonies, but the CI has come on the previous day (i.e. on 22nd) and taken signatures of some of the shop owners on a plain sheet of paper each. Witnesses did not see any arms seized from the slain and arrested persons, nor any of them was asked to sign in any seizure list. Except 3 to 5 gunshot sounds, they did not hear or see any bombs being exploded. All the witnesses firmly affirmed that there was no exchange of fire; the firings were all from the persons, who later identified themselves as police personnel.

(b) The police version of the incident as narrated by SI Debashis Chakrabarty, O/C, Bhadreswar PS and Shri Sankhasubhra Chakrabarty, SDPO, Serampore asserts that the encouter took place outside the telephone booth. The SDPO was himself not present at the spot of encounter as he was manning another spot. But his version of the chain of events largely corroborates what SI Debashis Chakrabarty told to APDR.

The slain youth identified as Subhash Sahani was very well acquainted with SI Debashis Chakrabarty, who claimed to have killed Sahani with his service revolver. He had arrested Subhash Sahani earlier in connection with several criminal cases in his area and even claimed to have once offered him money to start a crime-free descent life after Subhash was released on bail in a murder case. According to him he had prior information that Subhash Sahani will be at that spot with a gang of criminals at that time to commit a dacoity in a local petrol pump. At about 5 PM the SI spotted Subhash along with 5-6 other accomplishes approaching along the station connector . SI Chakrabarty claimed that Subhash also recognised him and shot at him.

A bomb was also exploded by his accomplishes. SI Chakrabarty further claimed that instantly he fired upon Subhash thrice from a distance of three to four feet and he died instantly. According to him all of Subhash s accomplishes fled and there was no arrest and none except the killed person was injured. SI Chakrabarty further said that the shot fired by Subhash bruised past his left waist slightly (he used the Bengali word ektu) injuring him.

2.About Subhash Sahani : (a) Like many other day labourers, porters and transport workers living in shanties on the either sides of the railway track and terminal of kayla depo and on the bank of the Ganges there, Subhash Sahani also came from Bihar in search of a living and ultimately became a part of the flourishing criminal world operating in the area. According to police and newspaper reports about forty criminal cases in different PSs are pending against him. He was named in the sensational daylight murder of Bhadreswar Foundry owner Sambhu Ghosh a couple of years back.

(b) According to Subhash s neighbours in kayla depo Subhash had a very good buisiness relationship with the local PS and succsessive O/Cs and other personnel from the PS would regularly visit his shanty at night, ostensibly for investigation . (APDR is quite aware of police-criminal-politician relationship in the PS, like most other PSs, based on facts collected in course of its extensive fact-findings in Bhikhari Paswan abduction and murder, Bholananath Bhaduri Murder and several communal riots in Telinipara). After Shambhu Ghosh s murder an influential local club headed by a key political figure of the area ransacked and demolished several shanties including Subhash s, which had a partial brickwork. Since then the family, including his wife and two minor children was living in a makeshift shanty on the adjacent slopes of the Ganges. According to police Subhash was released a few days earlier from jail. APDR tried to contact Subhash s family.

When the APDR team visited his place on 28th April, the family had already moved out day before. APDR also learnt that in the night before, few strongly built armed men identifying themselves as policemen from Lalbazar raided the area, threatened the people, demanded Rs 10,000 from a labour sarder and tried to kidnap the wife of a transport worker. They collectively went to the Bhadreswar PS to lodge a complaint in the morning, but no written complaint was recorded and the police was yet to visit the place less than a kilometer away from the PS. According to Subhash s neighbours, this was first such incident, even Subhash and his accomplishes, did not carry on any criminal activity or extortion in the locality.

(c) Bhadreswar and Dhaniakhali Trinamul Congress leaders, when contacted by APDR, strongly denied that they had ever any connection with Subhash. His neighbours and also the police asserted that Subhash did not have any political connection.

II. Observations of APDR
1. APDR has noted the criminal antecedents of the slain youth Subhash Sahani as stated by the police and reported in newspapers. APDR time and again reiterated that one of the guarantees of curbing criminal and antisocial activities is to deal them in accordance with law. The very fact that the man with forty odd criminal cases could continue his criminal activities without being punished in a single case, itself tells about the miserable inefficiency of the police in investigation and criminal prosecution. This inefficiency, coupled with the nexus of a section of the police force with criminals, activities of the Dak babus and extortion of protection money from criminals by the PSs are the two most important factors which make Subhash Sahanis.

2 APDR did not probe into details of the slain person s nexus with the police, and does not want to comment on it at the moment, except that an alleged criminal with forty odd cases including at least one broad daylight murder could not escape the long arm of justice without active connivance of a section of the guardians of law.

3. The wide difference between the police version and the version given by the local people about the incident of 21.4.03 as reflected in para I above only suggest that truth is the first victim here. The local people who witnessed the incident, became aware of it only after it happened and some details of their description might be out of conjecture and an attempt to reconstruct the events after it happened. But from all accounts, even from the version given by SI Debashis Chakrabarty, O/C, Bhadreswar PS to APDR clearly it was not at all a case of encounter . The assertions of SI Chakrabarty, that he seized the first opportunity to eliminate the victim to preempt any attack by the gang on the general public, which, according to him would create adverse public reaction is not at all tenable.

Firstly, in spite of having prior information on Subhash s movement, the crowded place was chosen for intercepting him by the police itself. Secondly, the police force had strategically positioned themselves much ahead of the victim s arrival. Thirdly the police force was heavily armed and far outnumbered the victim and his associates (if any). From the facts it appears that there was not more than two persons including the victim himself. Fourthly, the victim and his sole companion did not offer much resistance except for the scuffle inside the booth none noticed any sort of clash or encounter. Everyone testified that there was no bomb throwing and no exchange of fire. The furniture inside the booth could well have caused the injury of SI Chakrabarty during the scuffle reported.

4. Shri Sankhasubhra Chakrabarty, SDPO, Serampore said that he was in a separate team other than the one, which killed Subhash. But to APDR s pointed query about his assessment a senior police officer of the situation from the information he had, he agreed that it couldn t be said that there was no scope for arresting Subhash Sahani alive. SI Chakrabarty s argument was that he wanted to avoid public casualty and unfavourable public reaction and so he seized the first opportunity to eliminate the victim means that he too considered that there was a scope for arresting Subhash Sahani alive, which he did not avail of.

5. SI Chakrabarty said that there were five or six members in the gang that assembled for a dacoity at a Dhaniakhali Petrol Pump. It is surprising that all other gang members could escape the police dragnet and that too when surrounded by an outnumbering alert force, with teams sealing all exit points and again in a terrain not fully familiar to them. If SI Chakrabarty s statements are to be believed, then it must be said that the aim of the force mobilised there was not for preempting any attempt of dacoity or nabbing the whole lot of alleged criminals including the victim. The sole purpose of the mobilisation was to eliminate the victim. Nothing else could explain the simple vanishing up of all other accomplishes.

6. It is surprising that though senior police officers like SDPO, Serampore, SDPO, Chandernagore were part of the operation, the decision to execute the victim was taken by and carried out by SI Chakrabarty alone. According to SI Chakrabarty, Subhash Sahani was an excellent marksman. His single shot from a distance of three to four feet missed his target, but all the three shots fired by SI Chakrabarty hit the bull. This also raises questions about SI Chakrabarty s version.

7. From all accounts and in the eyes of law, the killing of Subhash Sahani on 21.4.03 at Belmuri by SI Chakrabarty is a culpable homicide. Whether or not it was done in the exercise of right to self-defence or power of arrest can only be decided by an appropriate judicial court empowered to try offences under Sec 302 IPC. It may be mentioned here that in 1996 the National Human Rights Commission (NHRC) dwelt elaborately on the question of encounter killings by police and other security forces. Mr. Soli Sorabjee, the then Attorney General took part in the deliberations on behalf of the Govt. of India. In a landmark decision the NHRC said When the information received indicates that death was caused in the encounter as a result of the firing by police, prima-facie the ingredients of Section 299 IPC which defines culpable homicides, are satisfied.

This is sufficient to suspect that an offence of culpable homicide has been committed .Thus, Section 157 of the code is attracted calling for investigation. Accordingly NHRC recommended Any plea like causing of the death in the case does not constitute an offence either because it was done in exercise of the right of private defence or in exercise of the right of arrest conferred by section 46 of the code, can be accepted only after investigating into the facts and circumstances. NHRC further recommended To avoid the possibility of bias, the investigation in such cases should be entrusted to an independent agency NHRC also commented, The hardship of the state, in our views, cannot take away or abridge the guarantee under article 21 of the Constitution or Article 6 of the Covenant (ICCPR) and while enforcing the guarantee and working in favour of its sustenance in full form, we cannot invoke the doctrine of necessity and apply it as a cover against the fundamental right [ REF : NHRC FILE NOS. 234 (1-6), 1993-94 PARAS 25-28]

8. All eyewitness accounts emphatically stated that a second man was injured in the Belmuri incident on 21.4.03 and that the police had taken him away. Since this they witnessed after being aware of the events, there can be no falsification or conjecture. Newspapers including the ruling party organ Ganashakti usually report such incidents basing solely on police briefings. All such reports stated that a second man was also injured, whom the police had taken away. But now that second man has simply vanished. According to SI Chakrabarty accomplishes of Subhash Sahani were all criminals from different areas. No body would know immediately if a criminal from a different area is subjected to enforced disappearance in a Hooghly village.

The apprehension is particularly grave because we know how Bhikhari Paswan was subjected to enforced disappearance and the whole police and district administration fabricated and tampered records to protect the murderer police officials. And also to be noted that the PS involved is the same Bhadreswar PS again.

III. Demands of the APDR

1. A case of culpable homicide must be started against SI Debashis Chakrabarty, O/C, Bhadreswar PS who claimed to have killed Subhash Sahani on 21.4.03 at Belmuri and procedures set up under section 157 Cr.P.C. shall have to be followed in the investigation of the case

2. A thorough investigation shall have to be made into the whole episode. Such investigation shall have to be entrusted to an independent agency.

3. Whereabouts and identity of the second person injured and arrested on 21.4.03 at Belmuri shall have to be disclosed.

for APDR fact finding team
Sanjib Acharya
Secretary, Hooghly Dist.

 

Senpara, P.O.Burashibtala,Chinsurah, Dist Hooghly, W.B., PIN 712105

President: Jatin Lahiri Phone 033/6801439
Working President : Amitadyuti Kumar
amitdyu@vsnl.net
Secretary : Sanjib Acharya.

 

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