INDIA: Alleged fake encounter killing of a man by the Border Security Force in West Bengal

Dear friends,

The Asian Human Rights Commission (AHRC) has received information from MASUM, a local human rights organization in West Bengal, regarding the alleged fake encounter killing of a man by the Border Security Force (BSF) in West Bengal on 31 December 2007. From the victim’s arrest until the time of his death many legal procedures were grossly violated by the BSF personnel. We were informed that despite the lapse of over two months since the incident, no charge sheet has yet been filed against the responsible BSF officer. The family has also not received a copy of a postmortem report and an inquest report of the case.

CASE DETAILS:

Basudeb Sarkar, aged about 30 was the son of Lt. Sudhansu Sarkar and a daily labour by profession. He was a resident of Balki, Gobindapur post office, Swarupnagar police station, North 24 Parganas district, West Bengal, India. 

According to Basudeb Sarkar’s mother, on 30 December 2007, personnel of the Border Security Force (BSF) attached to the 126 No Battalion of ‘F’ Company, Gobindapur Border Out-Post forcibly entered their house at night and tried to take Basudeb Sarkar away. The mother started crying and begged the BSF personnel not to take her son away with folded hands and even touched their feet. The BSF personnel then left the house without taking Basudeb Sarkar with them. However, it is reported that the BSF personnel arrested another person named Anup Dev Nath from the same village.

The mother says that her family is very poor and Basudeb Sarkar sometimes smuggled cows to earn some extra money to support the family. She further said that her son stopped his smuggling activities a long time ago due to fear for his life and started working as a daily labourer.

On the following morning on December 31, the villagers came to know about these two incidents. Then some neighbors of Basudeb Sarkar and some members of the Gram Panchayet (local government body at the village level) namely Milan Mondol, Abdul Jalil Mondol and Kayum Mondol and the ex-Gram Panchayat member Gopal Das went to the BSF camp along with many other villagers to inquire about the incidents from the BSF personnel.

While they persons were talking with the Assistant Commander, Subodh Joshi, Basudeb Sarkar arrived at the place. Then the Assistant Commander ordered the BSF personnel to take him into custody. He told everyone to go back home saying that they would release Basudeb Sarkar and Anup Dev Nath after doing a routine interrogation. When the BSF took the victim into custody, the guidelines of arrest as enumerated in the D.K. Basu judgment given by the Supreme Court of India was not followed at all.

However, Basudeb Sarkar was shot dead by the BAF personnel at about 2:30pm on the same day near the house of a villager, Majhar Fakir whose wife witnessed the incident. It is alleged that Basudeb Sarkar was shot in the chest twice at close range. Suspiciously, the BSF personnel took the injured Basudeb Sarkar in a BSF vehicle to J.R Dhar Hospital, Bongaon, which is located about 25 kilometers away from the place of the incident instead of taking him to nearby Sharapool Hospital or Basirhat Hospital. Basudeb Sarkar was declared dead upon arrival in the hospital.

Meanwhile, Anup Dev Nath was taken to the Swarup Nagar Police Station where he was bailed out on 2 January 2008. According to Anup Dev Nath’s version, when the victim and he were detained at the BSF camp, Basudeb Sarkar tried to escape and the BAF personnel fired at him. Subhasish Banik, the Sub Inspector of the Swarup Nagar Police Station also gave a similar version about the incident.

After the incident, the BSF personnel attempted to disguise the incident as an encounter killing to justify the death. The BSF insists that during the interrogation, Basudeb Sarkar tried to snatch a rifle from a BSF constable, attacked him and tried to escape so that Mr. Binoy Bist (Constable No. 04255029) fired at him. However, the National Human Rights Commission of India issued the detailed guidelines relating to an encounter killing in order to strictly prevent such killings and to protect the right to life of its citizens.

Besides, after the incident, the BSF promptly lodged a complaint against Basudeb Sarkar at the Swarupnagar Police Station under sections 323/353/379/511/307/224 of Indian Penal Code (IPC) vide Case no.430/2007 dated 31/12/2007 for committing attempt to murder, theft, obstructing the public servant in discharging their duties etc.

Meanwhile, the Bongaon police started an Unnatural Death case being no.425 dated 31/12/2007 in respect of the victim’s shooting.  

Although Basudeb Sarkar’s body was sent to J.R Dhar Hospital, Bongaon on December 31, a postmortem was not conducted until two days later.

It is also reported that Mr. Babu Ram Mandi, the Assistant Sub Inspector of Bongaon Police Station, conducted an inquest on the victim’s body, in violation of provision section 176(1A) of the Criminal Procedure Code under which the Judicial Magistrate is authorized to conduct an inquest. However, in this case, again an Executive Magistrate was also asked to perform an inquest over the victim’s body. The amended provision came into force on 23.6.2006 vide notification no 923(E), dated 21.6.2006. The provision 176(1A) is relating to “an inquiry by Magistrate into cause of death”.

The full text of the provision 176(1A) is as follows:

(1A) Where,- (a) any person dies or disappears, or (b) rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court, under this Code, in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed.”;

The victim’s family has received neither a copy of the postmortem report nor a copy of an inquest report from the authorities to date. The family suspects that the victim’s postmortem report might appear to be falsified due to influence/pressure to protect the interest of the BSF.

According to Sudhir Kr. Biswas, an investigation officer of the Case no.430/2007 at the Swarup Nagar Police Station, the victim’s wife namely Lilima Sarkar also lodged a complaint at the police station (case no 1/2008 dated 1/1/2008 under section 302 of the IPC) for her husband’s murder by the BSF personnel. Mr. Subhasis Banik, the Officer-in-Charge (OC) of the Swarupnagar Police Station took charge of the investigation of this case but the police have yet to complete its investigation and file a charge sheet against the responsible BSF constable. 

On 4 March 2008, the MASUM contacted the OC Mr. Subhasis Banik over the telephone and inquired about the progress of the investigation. The OC clarified that Basudeb Sarkar received one bullet injury on his left back side. The officer further admitted that the victim was sent by the BSF personnel to J.R. Dhar Hospital, Bongaon which is far away from the incident place, while he was in a critically wounded condition. He further said that the police arrested the responsible BSF Constable Binoy Bist but he was later released on bail by the Sessions’ Court, Barasat in North-24 Parganas district and the charge sheet is yet to be completed and filed against the BSF constable before the court.

In this case, the right to life of the victim, which is guaranteed under Article 21 of the Indian Constitution, was grossly violated by the BSF. The AHRC also gravely concerned that it is a recognized trend in India that the BSF attempt to hush up the killings on the pretext of a “fake encounter killing”.

The AHRC in the recent past has reported several cases of murder committed by the officers of the BSF stationed at various parts of India, particularly from West Bengal state and from the Northeastern states of India, particularly Manipur. From West Bengal alone the AHRC has reported more than a dozen cases in the past two years where the officers serving with the BSF has allegedly involved in murder, rape or brutal torture of innocent civilians. (To see more, please visit the website of Urgent Appeals: www.ahrchk.net/ua)

SUGGESTED ACTION:
Please immediately write letters to the authorities listed below urging them to ensure a impartial and competent investigation into this serious case and to bring the responsible person to justice without delay.

The AHRC writes a separate letter to the UN Special Repporteur on Extrajudicial, Summary, or Arbitrary Executions calling for his intervention in this case.

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