NEPAL: Killing of a young man in an alleged encounter by police must be investigated

Dear friends, 

The Asian Human Rights Commission (AHRC) has received information regarding the killing of Sahid Ullah Dewan, alias Adbul, by three policemen from Police Post, Bethary, Rupandehi District. Abdul was shot in broad daylight on 26 October 2009 in Rupandehi District. The police claim that the victim was killed in an encounter and that they shot him in self-defense. However, several eye-witnesses assert that the victim was unarmed and shot in cold blood in a staged manner and that they saw police officers placing pistols around the dead body. The District Police Office, Butwal, refused to register an FIR in that case. Despite of an order from the Appellate Court, Butwal, Rupandehi to promptly register the FIR and initiate an effective investigation, no investigation has been conducted so far. It has surfaced that the Public Prosecutor Office, Rupandehi is trying to withdraw the case, putting an end to investigation and preventing prosecutions and has sought approval from the Attorney General’s office in that regard. This is in disregard of an order from the Appellate Public Prosecutor Office to investigate that case. 

CASE NARRATIVE: 

According to the information we have received from Advocacy Forum and from direct interviews with key eye witnesses, at around 11.30 am on 26 October 2009, Sahid Ullah Dewan, alias Abdul was at the barber shop in Bogadi VDC, Ward-8. When he was called on his cell phone by an unknown person he immediately rushed to the place where he was called. The location was a place almost 500 meters east of Parsahawa Chowk, Bogadi VDC. 

Three police officers in plainclothes and wearing handkerchiefs to mask their faces were waiting there. As the police officers had not covered their face on their way to the scene, they could be identified by eyewitnesses as Sub-Inspector Sambhunath Upadhyaya, in-charge of Police Post, Bethari, Rupandehi and police constables Awadhesh Yadav and Prem Dhawan from the same Police Post. 

When Abdul reached the spot, Sub-Inspector Sambhunath Upadhyaya reportedly immediately opened fire at him with 6-7 rounds. The victim died on the spot while his father was forced to look on powerlessly. 

After the victim was killed, SI Upadhyaya allegedly put a pistol in the dead body’s hand and took some pictures of it. As the father tried to prevent him from taking those pictures, he was beaten by the policemen and dragged away from the scene. The police took the victim’s mobile into their custody and did not allow any villagers to get close to the body, including the victim’s family members. 

A few minutes after the incident, a police van bringing around eight policemen in uniform came to the scene, encircled the place of the incident and took away the victim’s body without preparing a crime report. The father later managed to receive the body from the police, without a post mortem being conducted. 

The police report to the Appellate Court, Butwal states that while they were patrolling, they were shot at and that they had to fire back, killing the attacker instantaneously. The police further claim that they recovered one mobile set, one home-made pistol, one bullet and one cartridge from the dead body. 

Several human rights organizations and the National Human Rights Commission, Rupandehi, conducted a field visit in the village and concluded that the victim had not been killed in a cross-fire incident but rather a fabricated encounter. 

After the incident, the victim’s father tried to register a First Information Report at the District Police Office, Rupandehi on 29 October 2009, but the DPO rejected it, supporting the version of events of the police’s that the victim had been killed during a cross fire. The father also tried to submit an application to the District Administration Office but it was similarly rejected. The father then sent his application by post but did not receive any response from the authorities concerned. 

The victim’s father then filed a writ of mandamus at the Appellate Court, Butwal, Rupandehi on 4 November 2009 following which the court issued a mandamus order against the DPO to promptly register the FIR and initiate effective investigation. 

Nevertheless, according to the villagers, the police never went to their village to investigate the case, they did not call the victim’s father to collect his testimony nor did they interrogate anybody who had witnessed the incident. 

The victim’s family latter came to know that the case was withdrawn by the Public Prosecutor Office, Rupandehi, following a meeting of the Security Committee of the District. Investigation (and subsequent prosecutions) into the incident were suspended. The case was sent to the Attorney General Office in order to uphold that decision. According to the information we have received, the Attorney General Office is still waiting for documents from the Public Prosecutor Office, Rupandehi to make a decision in that case. 

On 6 August 2010, a writ petition was submitted at the Appellate Public Prosecutor Office, Butwal, Rupandehi, seeking to obtain order against DPO, Butwal, to initiate prompt investigation and subsequent prosecutions of the perpetrators. The Appellate Public Prosecutor Office issued its order to the District Public Prosecutor Office to immediately investigate into the case. Nevertheless, again, the District Public Prosecutor Office decided to withdraw the case, and sent his decision to the Attorney General Office, Kathmandu for uphold. 

The father has also sent a written application to the Prime Minister on 26 March 2010, drawing his attention to the case and asking for justice. He has not received any reply so far. 

At the time of the killing, the victim’s wife was seven-month pregnant with their first child. 

Seeking remedy and justice for human rights violations comes at a heavy price for the family. SI Sambhunath Upadhyaya has been posted in District Police Office, Rupandehi while the other two perpetrators have remained posted in the same police station. The father had to face repeated threats from the alleged perpetrators. Most recently, in April 2011, the father was called to the Police Post and made to call SI Upadhyaya, the main alleged perpetrator of his son’s killing. On the phone, SI Upadhyaya reportedly told him that he had not killed his son. He further indirectly suggested that as the father still had two daughters to take care of, he had better stop seeking justice so that nothing would happen to them. The victim’s family filed an application to the District Administration Office seeking protection for their security following those repeated threats. However, no security has been provided so far, leaving them vulnerable to threats and attacks to discourage them from seeking justice. 

BACKGROUND INFORMATION: 

Following the degrading security situation of the Terai region due to the proliferation of armed groups, allegations of extrajudicial killings by security forces have been numerous. In each case, the police claim having shot in self-defense in an encounter, a cross-fire, and claim having recovered pistol and ammunitions from the dead body as supportive evidence. Nevertheless, no police officers is ever hurt in such encounters and testimonies by eye witnesses often further contradict those claims, including frequent allegations that police have tampered with the evidence of the scene by planting ammunition and weapons on the victims. 

Extra-judicial killings are a violation of the right to life guaranteed in Article 6 of the International Covenant on Civil and Political Rights (ICCPR) of which Nepal is party. The Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions mandate that “there shall be thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances.” Nevertheless, in Terai, in none of the allegations of unlawful lethal use of force by the security forces was a proper investigation conducted and were the perpetrators prosecuted. 

This was pointed out in an investigative report by the Office of the High Commissioner for Human Rights published in July 2010 “Investigating Allegations of Extra-Judicial Killings in the Terai” which made several recommendations to address the “culture of impunity that pervades the security forces and erodes public confidence in the government”, notably fully investigating all the allegations of extra-judicial killings, taking action against the individuals potentially involved in extrajudicial killings, protecting witnesses and victims’ families, establishing external oversight mechanisms. Based on this report, several countries formulated recommendations to the government of Nepal to address this issue during the Universal Periodic Review procedure in January. 

Nevertheless, the government has rejected the report as a whole and denied the issue of extrajudicial executions in the Terai. Allegations of extrajudicial killings continue to go uninvestigated and the alleged perpetrators can enjoy impunity and remain in a position of power, allowing them to further victimize the victims’ families as abundantly shown in this case. 

ADDITIONAL INFORMATION: 

Since the end of the conflict, withdrawal of criminal cases has been repeatedly denounced by national and international human rights bodies as a major tool promoting impunity and protecting the perpetrators, as well as a major challenge to the rule of law. This case shows that security forces in close cooperation with Public Prosecutors, not only political parties and armed groups, have also used withdrawal of criminal cases as a tool to avoid investigations and prosecutions of cases of gross human rights violations. 

In its 2011 report to the UN Human Rights Council, the UN Office of the High Commissioner for Human Rights in Nepal wrote that the government practice of withdrawing criminal cases under pressure “has […] expanded to cases occurring after the conflict, with political parties, armed groups and indigenous and ethnic groups demanding that criminal cases against their supporters be withdrawn. Successive governments have agreed to withdraw cases under such pressure, including some carrying serious charges such as murder and rape […]. The practice has continued despite a Supreme Court interim order in 2008 directing the suspension of further withdrawals. “The report further warns that “The practice encourages political interference in the rule of law, demoralizing police officials, prosecutors and judges working on such cases, contributing to public insecurity by allowing alleged criminals to escape prosecution, and further eroding public confidence in law and order institutions and the Government.” 

Such a concern had already been echoed by the National Human Rights Commission in its “Summary Report of NHRC Recommendations upon Complaints in a Decade” which reads “Inadequate efforts in taking action against human rights violators, withdrawal of the cases filed at the court of law have given path to develop the culture of impunity.” 

Of particular concern is District Public Prosecutor Office’s decision to purposely ignore an order from the Appellate Public Prosecutor Office to conduct investigation in the case by trying to withdraw twice the case while this had been rejected a first time. This blatant disregard to orders from a higher authority by a branch of the criminal justice system paving the way to impunity for human rights violations poses a serious challenge to the rule of law. 

SUGGESTED ACTION: 
Please join us in writing to the authorities listed below asking to ask to halt the case’s withdrawal to pave way for an immediate investigation of the circumstances of the killing and for subsequent prosecutions of the perpetrators. 

Please be informed that the AHRC is writing a separate letter to the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and to the UN Office of High Commissioner for Human Rights field office in Kathmandu. 

To support this case, please click here: SEND APPEAL LETTER