INDIA: Custodial death of an under trial prisoner after brutal torture in prison

Dear friends,

The Asian Human Rights Commission (AHRC) has received information from its local partner Neervazhi based in Thrissur, Kerala state that an under trial prisoner was tortured to death while in remand custody. The AHRC is informed that the victim Mr. Shaji complained to the magistrate that he was subjected to torture in custody. However, the magistrate only directed the victim to be examined by a medical doctor and send Shaji back to remand custody where he was tortured further and allegedly killed on the same day.

CASE DETAILS:

According to the information received, Mr. Shaji, 38 year-old (estimated), son of Keshavan, residing at Koyikal Nikarthil house, Kodanthuruthu, Kuthiyathodu post, Cherthala, Alapuzha district, Kerala state was under detention at Kombara Sub Jail in Ernakulam district in connection with a crime. Shaji was transferred from Kombara Sub Jail to Viyoor Central Jail on 20 January 2007 for a reason that there was no space in Kombara jail. Viyoor central jail is about 85 kilometers from Kombara Sub Jail and is in Thrissur district. It has been reported that 17 other prisoners were also transferred from Kombara Sub Jail to Viyoor Central Prison on the same day along with Shaji. Shaji is from a poor family and lives in a temporary house in Kodanthuruthu in Cherthala district.

It is alleged that on arrival at the Viyoor Central Prison the detainees were assaulted by Mr. Yohannan who is one of the officers in the prison. Shaji questioned why the officer was assaulting him and others however the officer did not give them any explanations. Shaji then told the officer that he would complain to the court about the assault. In response to him, Yohannan shouted at Shaji saying that he doesn’t care whether Shaji informs or complain to the court. Then he caught the victim and forced him to bend down and started assaulting victim’s spine with his elbow. Shaji was later locked up in a cell. Due to the injuries suffered from the assault Shaji could not urinate.

On 22 January 2007 Shaji was produced before the Additional Chief Judicial Magistrate Court, Ernakulam. At the court Shaji met his father, wife Sheeba and his lawyer Mr. Vinod, and informed them what had happened to him at the Viyoor Central Prison. He also told them that he would complain about the brutal act of the prison officer to the magistrate when he is produced before the magistrate.

When Shaji was produced before the magistrate he stated to the magistrate that he was severely assaulted by the prison officer while he was in Viyoor prison. The magistrate asked Shaji to give his complaint in writing through his lawyer. The lawyer immediately wrote down the complaint and got Shaji’s signature in the complaint and filed it in the court. The magistrate ordered Shaji to be medically examined and directed Shaji to the District Hospital in Ernakulam. At the hospital the duty doctor did not examine Shaji properly. It is alleged that the doctor only tried to verify whether Shaji had any external injuries.

Shaji was returned to Viyoor along with the constables who produced Shaji in court with another detainee named Naseer alias Puli Naseer by the evening of the same day. Once they arrived at the Viyoor prison Naseer was asked to sign the reentry register and was send inside the cell while Shaji was asked to wait at the front office. Since then what is known is that Shaji was taken to the Medical College Hospital later at night in a prison ambulance and the victim died in the hospital at around 10:00 pm. There is no independent witness who saw what had happened between the time Shaji was returned to the Viyoor prison and his admission at the Medical College Hospital. It is now known that the Additional Chief Judicial Magistrate Mr. Cheriyan Kuriakose is conducting a judicial inquiry in the case.

Shaji’s family is of the view that by all probability Shaji was murdered by Yohannan, the prison officer. The postmortem report and the statement given by Shaji are being obtained from court and the AHRC will prepare further appeal as an update to this case. The AHRC also expects that the Judicial Inquiry report will be also available in a short time.

ADDITIONAL INFORMATION:

Prisons in India suffer from several problems including but not limited to overcrowding, lack of facilities, transparency of activities in the prison and inhuman treatment and torture of detainees. It is common in prisons of India that the detainees are assaulted as they arrive in the prison. This is a practice continued after the colonial period and due to wrong perception, allegedly to ‘soften’ detainees so that they could be easily controlled while in custody. We emphasize that violence is also widely used in prisons since many prison officials believe that it is only such punishments that will be ultimately available for the under-trial prisoners since the officials believe that many will finally get acquitted by the end of the trial.

The most common method is that of brutally assaulting the new detainee to the extent that the victim cries out loud thereby ‘declaring’ his or her arrival in the prison. Since there are no credible mechanisms in the existing set-up such torture and inhuman treatment are often left unreported and the culprits never get punished. This has resulted in several detainees being murdered while in custody. Similar tactics to ‘soften’ detainees are used by employing other detainees and allowing them to beat-up a cellmate so that at a later stage the authorities could easily escape liability by blaming the ‘bully’ cellmate.

Interestingly, in an article published by article 2, a publication by the sister organization of the AHRC, the Asian Legal Resource Centre titled ‘India’s Graduate School of Crime’, the author has referred to a quote by the same inquiring magistrate Mr. Cheriyan Kuriakose where the magistrate said “…the present intramural institutionalisation of an offender has proved to have done much harm than good, especially in the case of short-termers, as they come out after their detention period with a diploma in crime.” The AHRC expects that a judge of such insight into the prison system in India, particularly in Kerala state, will take all efforts to bring out the truth in his inquiry report.

India suffers also from the complete absence of any credible mechanism to prevent custodial torture. Torture is not a crime in India. As of now, custodial torture, in Indian legal theory, is viewed as a personal crime committed by one individual against the other, contrary to the settled international standard of classifying torture as a crime qualified as ius cogens. For further reading please see Natural Law Theories at the Stanford Encyclopedia of Philosophy. This restricted approach in dealing with custodial torture by jurists in India pose heavy restrictions on prosecuting cases of custodial torture in India.

SUGGESTED ACTION:

Please write to the relevant authorities listed below and demand proper investigation and the immediate arrest and prosecution of the alleged perpetrator. The judicial inquiry report by the magistrate must be made public at the earliest.

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