Evidence of Custodial Killings in 3 Guj ‘Encounters’: Justice Bedi

Justice HS Bedi has recommended that the policemen who killed Kasam Jafer, Haji Ismail & Sameer Khan be prosecuted.

The much-awaited Justice HS Bedi Report on Gujarat encounter cases has recommended the prosecution for murder of the police officers involved in three of the 17 cases he was monitoring, in which he found “prima facie evidence of custodial killings.”

In March 2012, Justice HS Bedi (a former judge of the Supreme Court) had been appointed by the apex court as Chairman of the Monitoring Authority set up to oversee investigations into alleged fake encounters in Gujarat from 2002-2006. This was ordered in connection with two petitions filed before the Supreme Court by BG Verghese as well as Javed Akhtar and Shabnam Hashmi.

Justice Bedi submitted his final report to the court on 26 February 2018, which contained his assessments about which allegations appeared to be substantiated.

The Gujarat Government had opposed the publication of the report, but on 9 January 2019, a Supreme Court bench headed by CJI Ranjan Gogoi had ordered the report to be shared with the petitioners. The Quint has accessed a copy of the report.

With each of the 17 cases, Justice Bedi had to consider whether the circumstances justified a trial or not. The standard he set for considering a case as a custodial killing was:

1. Where the police version seemed to be deeply suspicious and difficult to believe; AND
2. Evidence was of a quality that in case a trial was held, there was a reasonable chance of conviction.

This standard was met in the cases of three of the deceased men: Kasam Jafer, Haji Ismail and Sameer Khan.

Kasam Jafer

Case 12, assessment at pages 115-136 of the Report.

“The very conduct of the Police Officers is so unnatural that it raises very great suspicions about what had happened in the matter.”

Justice HS Bedi Report, page 127

THE INCIDENT

• The police received information on 13 April 2006 that members of the ‘Irani Gang’, who were suspected to be planning to commit fraud on banks and cheat people, were putting up at the Royal Hotel, Sarkhej.
• A police group led by Sub-inspector JM Bharwad, took 18 persons from the hotel at about 11 pm, brought them back to the Sector 2 police station, including Jafer. At around midnight, he allegedly escaped after the constable guarding him went to the toilet. Search efforts failed to recapture him.
• At about 1 am on 14 April 2006, Sub-Inspector Modiya of Shahibaugh PS (close to the other PS) was informed that a person was lying unconscious near an underbridge. He reached the scene and found the deceased, who appeared to have died in a motor vehicle accident. Case registered, post-mortem on 14 April 2006 at 9 am.
• Deceased identified as Kasam Jafer, his wife and mother-in-law identified the body on 18 April 2006 after coming from Mumbai. Dead body showed signs of beating and torture, according to them.
• Deceased’s wife Mariam Jafer filed an application in the High Court, and the death was supposed to be investigated, but nothing happened.
• The case became part of the writ petition filed by Javed Akhtar in the Supreme Court after his wife approached Teesta Setalvad.

WHY JUSTICE BEDI CONSIDERS THIS A CUSTODIAL KILLING

• Police version implausible as it was unnaturally negligent for policeman left to guard member of notorious Irani Gang, would just leave Jafer while he went to the toilet. The constable, Ganeshbhai, was not punished.
• Police didn’t inform the 17 companions of Jafer’s death when they were let go at 5 pm on 14 April 2006, even though the body had been identified at 9 am – this raises suspicions.

• According to the post mortem, death was caused due to “external and internal injuries shock and hemorrhage”, caused by a “hard and blunt substance”, though it was inconclusive whether this was because of a motor vehicle accident or beating. The police made several attempts to get the doctors to clarify that this was because of a MV accident, which indicates an attempt at a cover-up.
• Police also invented a theory that Jafer had psychological problems, which was why he’d run from the police station. The statement by a psychiatrist on 5 August 2013, who claimed he had come to her for treatment in 2004, was implausible, as was the statement and certificate about this she was supposed to have given the police in 2006. This appeared to be a post-facto invention.
• Statements of 17 companions not taken when the case was first investigated. Six statements recorded by STF after 2012, who all said police had got angry when deceased made inquiry from police officers, then manhandled him and taken him to Sub Inspector Bharwad for interrogation. Policemen had subsequently taken a rope, a rod, pieces of saree and other articles from a police vehicle. After 15 minutes, police asked them if Jafer had returned, told them he’d been caught stealing and run away.
• The version of events of the six companions after 2012 matches what Mariam Jafer said in her statements and applications (based on what the six men had told her) filed in court immediately after the incident.
• No evidence produced to show Jafer and the others were involved in any crime, and their detention on night of 13 April 2006 was unjustified.

PROSECUTION RECOMMENDED AND COMPENSATION GRANTED

• Sub-Inspector JM Bharwad and Constable Ganeshbhai prima facie involved in killing of Kasam Jafer, need to be prosecuted for murder.
• Rs 14 lakhs as compensation already awarded on 21 November 2013. Applications for further compensation by Mariam Jafer rejected.

Haji Ismail

Case 16, assessment at pages 176-192 of the Report.

“The fact that as many as 20 rounds had been fired at the deceased from almost point blank range are indicative of a cold blooded murder.”

Justice HS Bedi Report, page 190

THE INCIDENT

• On 9 October 2005, Sub-Inspector Prag P Vyas and a special police group were informed that Haji Ismail and a “notorious smuggler” would be travelling on NH-8. Part of the highway was cordoned off, and a large group of police including SI Vyas and Inspector KG Erda attempted to arrest the two of them as they travelled in a Maruti Zen.
• At about 3:05 am on 9 October 2005, a lookout notified the police, and the car was stopped ten minutes later. The driver of the car allegedly came out firing at Inspector Erda, leading to firing by both sides. 20 shots were fired at Ismail.
• Haji Ismail was taken to hospital where he died during treatment. Inquest conducted on 9 October 2005 between 7:30-9:30 am. After an investigation, the DSP opined that the police officers had fired in self-defence and were justified in killing Ismail.
• The STF monitored by Justice Bedi started investigating in January 2013.

WHY JUSTICE BEDI CONSIDERS THIS A CUSTODIAL KILLING

• All eyewitness accounts were of the police involved, which meant there needed to be a focus on the forensic and medical evidence.
• According to police version, Ismail was hit by six bullets, one of which remained in his body while the others exited. However, there were six exit wounds and a bullet remained inside Ismail’s body, according to the post-mortem report.
• Of the six entry wounds, , five had blackening around them, which meant they had been fired from a close range: nor more than 2 feet away. This was suggestive of a custodial killing, and 'completely falsified’ the police version of a firefight at a distance of 17 feet.
• No presence of nitrites on the hand of the deceased – which indicates that Ismail had not used a firearm.
• No evidence on record to show that Ismail was a notorious smuggler. Police responses to Justice Bedi’s questions revealed no details of cases or prosecutions.

PROSECUTION RECOMMENDED

• The five officers who fatally shot at the deceased – Inspector KG erda, PSI LB Monpara, PSI JM Yadav, PSI SK Shah and PSI Prag P Vyas – should be brought to trial for murder and other offences.

Sameer Khan

Case 17, assessment at pages 192-221 of the Report.

“It is, therefore, obvious that the police officers were close and towering over the deceased and he was probably sitting on the ground and perhaps cringing for his life.”

Justice HS Bedi Report, page 208

THE INCIDENT

• Sameer Khan and his cousin allegedly tried to steal a necklace from a woman in 1996, and when trying to get away, Sameer had allegedly stabbed a police constable to death. His cousin was arrested, tried and sentenced to life imprisonment while Sameer managed to run away.
• According to the police, Sameer got involved with terrorist organisations and trained with the Jaish-e-Mohammad in Pakistan for three years. He then re-entered India and was on a mission to kill then-Gujarat Chief Minister Narendra Modi, but was arrested by the Ahmedabad police on 30 September 2002.
• While in custody, he was taken to the spot where he allegedly killed the constable in 1996. According to the police, he was able to get out of his handcuffs, then snatched the revolver of Inspector KM Vaghela, fired two rounds at him and tried to escape.
• Inspector AA Chauhan (since deceased) and Inspector Tarun Barot managed to shoot him in the head and the chest, and though taken to hospital, he died. An inquest was conducted on Sameer Khan’s body at 10 am on 22 October 2002.
• An investigation was conducted from October 2002 - May 2003, and the third investigating officer, DSP HK Sharma confirmed the police version of the accused’s death.
• When the STF reinvestigated the killing in 2014, the investigating officer found that statements recorded by the second investigating officer (DSP Yadav) from 8 November 2002 to 1 May 2003 could not be taken into account as he had pressurised the witnesses and threatened them to make statements and sign them implicating police officers.
• The STF headed by DSP Patel also ended up confirming that the police version was correct and that Sameer Khan had been shot dead in self-defence.

WHY JUSTICE BEDI CONSIDERS THIS A CUSTODIAL KILLING

• All the other 15 men accused of being involved in the alleged plot to kill Gujarat chief Minister Narendra Modi were discharged by the lower courts. The Gujarat Government filed appeals against the discharges, but the allegations were “completely disbelieved by the courts right upto the Supreme Court.”
• The police claimed that Sameer had travelled to Pakistan in January 1998, but the passport on which they claimed he’d done this was only issued on 27 March 1998. Furthermore, no travel entry records showed that a Nawab Khan (the name on the passport), had travelled to Pakistan.
• Despite the deceased being such a “dreaded terrorist”, the police took few precautions and ignored vital security details when taking him for the site inspection – for eg, he hadn’t been handcuffed properly, which appears to have been “done deliberately so as to make out a plausible story to justify the killing.”
• Transfer warrants required when Sameer’s case had been moved to the Crime Branch were not obtained.
• According to the post-mortem, entry wounds for two bullets had blackened margins, which indicates the shots had been fired from less than 2 feet. Dr Kiran Pensuria had given a categorical opinion in December 2002 itself that the firing had been “done from the front side by standing very near.” This “completely falsifies” the police version, in which the shots were allegedly fired from 5-6 feet away.
• One of the bullets was also fired from above, which would have been impossible in the police version, since the deceased was taller than the officers who shot him.
• The second investigating officer during the initial investigation, DSP Yadav, had noted that the police was using witnesses who couldn’t have been at the scene of the crime, and his reservations about the bullet wounds. He also complained that the Crime Branch officers involved refused to meet him, leading to an admonishment from DCP Crime Branch DG Vanzara.
• A recording of comments by Tirth Raj, Inspector General of Police, in a sting operation by Tehelka, was admitted to be true by Raj himself, in which he appears to have agreed that the case involved a follow-up. While Raj claimed that these comments were his opinion rather than the result of an inquiry, and had been made out of sympathy, the “conviction and confidence with which he has spoken out confirm my suspicion that there was something drastically amiss in the death and investigation in Sameerkhan’s case.”

PROSECUTION AND COMPENSATION

• Inspector KM Vaghela and Inspector TA Barot should be prosecuted for murder and other relevant offences.
• Rs 10 lakh compensation to be awarded to the deceased’s father, Sarfaraz Khan.