(From a Fact-Finding Report by All India People’s Forum (AIPF), National Alliance of People’s Movements (NAPM) and People’s Union for Civil Liberties (PUCL))

On 9th and 10th November 2019 a team consisting of Dr E. Rati Rao, Maitreyi Krishnan and K. M. Venugopalan (All India People’s Forum), Adv. P A Pouran & G. Haridasan (People’s Union for Civil Liberties), Vilayodi Venugopal (National Alliance of People’s Movements) and T. Vijayan Karippode (social activist) conducted a fact-finding enquiry into the reported encounters and death of 4 maoists in firing by Thunderbolt police. The team visited the Mele Manjikandi, which is the nearest village to the encounter spot, about 2.5 kilometres away and spoke to the resident adivasis. The team also spoke to others from different locations across Attappadi including the Adivasi hamlet Danyam, which is located in the valley on the other side of Manikandi hill. The team met and talked with Smt. Shivani, a member of Thaykulam, an adivasi women’s organization based in Attappadi, and who works on the issues faced by adivasis. The Team also visited Agali police station and spoke to the Station House Officer and Inspector Mr Hidayathulla and few local police officials.

On the second day, the team went to the district police headquarters at Palakkad with a view to meeting few higher police officers including the SP. However, most of the higher officials were out of station and thus were not available in the concerned offices. The Team was able to have a telephonic conversation with Mr Feroz M. Shafi, DySP (Crime Branch), who is the investigating officer in respect of the incident. The Team spoke to Mr Sunil Kumar, Mannarkhad Divisional Forest Officer, Ms Shyamala, Range Officer over telephone and had conversation with few local forest officials as well. The Team also spoke with the lawyers representing two close relatives of slain Manivasakam and Karthi before the High Court and Sessions Court in the cases filed in relation to the “encounter”.
Version of the police

The following is what the Team learnt from their conversations with Police Inspector, Agali Police Station, Mr Hidayuthulla and had DySP (Crime Branch), Mr Feroz M. Shafi.

We were informed that two cases have been registered in regard to the “encounters”. In regard to the incident that took place on 28th October, 2019 Crime number 291/2019 was registered. As per the said complaint registered on 28th October, 2019, 14 members of the Thunderbolt unit were on patrol, when, at around 12.20 p.m., a group of persons who belong to the Communist Party of India (Maoist) opened fire at the police. The members of the Thunderbolt unit fired back killing 3 persons, including 1 woman. The Police claim that the Maoists had camped at the said spot and that they had found cooked rice in a tent. Crime Number 291/2019 has been registered under Section 143, 144, 147, 148, 253, 307 read with Section 149 IPC; Section 3 read with Section 25 (1)(b) of the Arms Act; Section 16, 20, 38, 39 and 49 of the Unlawful Activities Prevention Act (UAPA) and Section 27(1)(e) of the Kerala Forest Act against an unnamed group of people on the basis of a complaint given by one of the members of the Thunderbolt unit.

About the three slain persons, we were informed that one of them is Shri Karthik. In regard, to the other two persons, we were initially informed by the Police Inspector, Mr Hidayuthula that the two of them were Shri Aravind and Smt. Rema. When we asked him how they found out the names, he stated that it was through “sources”. However, thereafter, Mr Feroz M. Shafi, DySP (Crime Branch) informed us that the person initially identified as Shri Aravind had actually been identified as Shri Srinivasan, by his family, through photos. However, he stated that his family was still to identify the body of Shri Srinivasan. To date Smt. Rema is not identified except by the name which the police claims it has received from its “sources”.

When we asked them, as to how the provisions of Unlawful Activities Prevention Act had been invoked when the deceased persons had not been identified, we were informed by Mr Feroz M. Shafi, DySP (Crime Branch) that the same had been mentioned in the complaint itself given by one of the members of the Thunderbolt unit. No further information in this regard was provided.

As per the police, no FIR has been registered against any of the members of the Thunderbolt unit, and the only FIR registered, as stated above, is against those who were killed.

In regard to the incident that occurred on 29th October, 2019, we were informed that about 60 people including several members of the Thunderbolt unit, members of the Q branch, Tamil Nadu, the Deputy Commissioner, Palakkad, the Superintendent of Police (Operations), the Police Inspector, Agali Police Station were present and the inquest was being conducted. According to Mr Hidayuthulla, they heard shots from the Western side, and all of them were directed to duck down. The Thunderbolt then shot and one person was killed, his name being Shri Manivasakam. They also said that other persons who were with him ran away. Crime number 292/2019 was registered against one accused, i.e. the deceased himself. Mr Feroz M. Shafi, DySP (Crime Branch) informed us that as per the postmortem, Shri Manivasakam had two fractures, on his knee and thigh. He said that those injuries were perimortem (i.e, injuries taking place at or around the time of death).

In regard to the incident that occurred on 29th October, 2019, it is necessary to note that after the incident occurred on 28th October, 2019, the entire area was cordoned off to a circumference of 400 metres. The body of Shri Manivasakam, according to the Inspector, Mr Hidayuthulla, was found within 40 metres from where they were standing, within the 400 metre cordoned off region.

We were informed by the DySP (Crime Branch), Mr Feroz M. Shafi that these cases after having been transferred to the District Crime Branch have been renumbered respectively as Cr No-495/CB CU-III/KKD/R/19 (Agali PS Cr. 291/2019) & Cr No-496/CB CU-III/KKD/R/19 (Agali PS Cr. 291/2019)

Meeting with the villagers and members of Thaikulam

The team met with some of the villagers of Mele Manjikandi, who told us that the incident had occurred the day after Diwali, and there was too much noise and they could not hear the firings on 28th October, 2019. While expressing that the killings were inhuman, they were apprehensive about giving specifics about the incident.

We also met Smt. Shivani, Smt Narjari and Smt Shivakami from the organization, Thaikullam. Smt. Shivanni is also a member of the district monitoring committee under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. She stated that there was serious doubts in the versions of the police, and that these doubts showed that the killings were not “encounters”, but in fact extra-judicial killings. She stated that the body of the woman who was killed on 28th October, 2019 was decomposing at the time itself indicating that she had been killed at an earlier time. They said that they had visited the place on 29th October, 2019 and could see that there was cooked food there, indicating that those who had been killed could have been eating when they had been killed. She stated that she was informed that on 28th October, 2019, stretchers were brought before the incident took place, indicating the pre-planned nature of the incident. While it was being said that three casualties happened in the encounter on 28 October, why did they bring 4 stretchers instead of 3? She asked, suggesting that the second day’s incident was obviously pre-planned. These women also wondered while Shri Manivasakam had suffered two fractures on his legs, how could he have walked or could have been agile to be able to shoot at the police or the Thunderbolt.

They said that the conditions of the adivasis living in Attapaddi was very poor and they were a neglected population, and the State instead of addressing their needs was treating them with suspicion and harassing them. They said that subsequent to the incident the surveillance of persons residing in the nearby hamlets and those who were vocal, including themselves, has risen. This led to the people living a life of constant fear, knowing that their every move was being watched upon.

They also said that posters purported to be put up by an organization Adivasi Yuvata supporting the police action in the killings were put up. She said that such organization had not been heard of and it appears that the posters had been put up by the police themselves.

Response of the State Government

Mr Pinarayi Vijayan, Kerala Chief Minister has defended the killing of the 4 persons and in fact has stated before the media not to paint the Maoists as “lambs” or “holy souls”. The Chief Secretary of Kerala, Mr Tom Jose, has written an article titled “It is like war: Kill or be killed” appearing in Times of India on 5th November, 2019, where he makes the following statements amongst others:

“There is no rationale in stating that Maoists who indulge in armed conflict have got the same human rights and privileges as normal citizens. Not only that it cuts at the very root of the principles we live by, but also mocks and insults the ordinary people who go about their daily lives obeying the laws of the society….

It is either kill or be killed. When our soldiers fight our enemies across the border, we don’t portray them in bad light. We applaud them. Then why blame our police forces when all they do is to protect the citizens from Maoist terrorists?”

The statements made by the Chief Minister, Mr Pinarayi Vijayan and the article penned by the Chief Secretary, Tom Jose are highly condemnable. The branding of those killed as Maoists, when admittedly they have not even been identified displays the pre-judged manner in which the State has responded. Even otherwise, comparisons of Maoists to terrorists or enemies from across the border and stating that they do not have human rights goes against the fundamental principles of the rule of law which assures equality and equal protection of the law to all citizens.

The pre-determined statements of the Chief Minister and the Chief Secretary also give cause for apprehension that the investigation being carried out would not be independent and would be coloured by the existing bias and prejudice from which these statements stem. Short-circuiting of the judicial process and the encroachment of the executive into the judicial realm by passing judgment through such extra-judicial killings is a cause for serious concern.

While looking into the response of the State into the incident, it is also necessary to note a subsequent development, which indicates the manner in which the Government has responded to the issue at hand. Alan Shuhaib and Thaha Fasal, both law students, were arrested for distributing brochures criticising the extra-judicial killing killing of the four suspected Maoists at the Pantheerankavu market, Calicut on 2nd November 2019. Stating that they were distributing “pro-Maoist” brochures, both the students have been arrested and an FIR under the Unlawful (Activities) Prevention Act has been filed. This arrest which has met with heavy criticism from all quarters once again raises very serious issue on the manner in which the CPIM-led LDF Government is dealing with dissent of any form, and the labelling of all persons who dissent in any form as Maoists and members of terrorist organization.

It is also necessary to note the words of the Kerala High Court in its order dated 22.05.2015 in W.P. (C) No. 24902/2014 in Shyam Balakrishnan vs. State of Kerala and Ors., where the Court awarded compensaiton of Rs. 1 lakhs to the Petitioner who was arrested on suspicion of being a Maoist and was thereafter released for lack of proof.

“12…Being a Maoist is no crime, though the political ideology of Maoists does not synchronize with our constitutional polity. It is a basic human right to think in terms of human aspirations. The freedom of thought and liberty of conscience is a natural right and cannot be surrendered by any human being and that freedom is ingrained in human mind and soul.”

17…The action which resulted in deprivation is only on account of impervious outlook towards individual liberty and the inability of the law agency to regiment their power in tune with declaration of law by the Hon'ble Supreme Court while combating any criminal activities of Maoists. It is the activities of the Maoists which have to be curbed if it affronts to the law of the land. But, the State moved to nab the Maoist like a predator vying for prey. This is nothing but disguised aberration of law in the cloth of uniform and the protector has become aggressor.

Summary executions of suspected militants and militant sympathizers in staged "encounters" have a history in counter-insurgency operations throughout India. The present incident is required to be seen in the context of other extra-judicial killings that have taken place in the past in Kerala.

Guidelines of the Supreme Court in regard to extra-judicial killings

The Supreme Court in its order dated 23.09.2014 in People's Union for Civil Liberties vs. Union of India [(2014) 10 SCC 635] has laid down detailed guidelines in respect of encounters and the steps required to be taken in case of the same placed in Appendix – II. The Guidelines include inter alia the registration of an FIR in every case of an encounter, independent investigation into the same, information to the next of kin and surrender of the weapons for forensic and ballistic analysis.     

In the instant case it becomes clear that the guidelines have not been complied with. Firstly, there is requirement that if any information in respect of any persons suspected of having arms is received the same must be immediately put down in writing. However no such information appears to have been put down in writing. Secondly, the Supreme Court has clearly stated then FIR must be registered immediately on any such encounter. In the instant case an FIR has been registered only against those who have been killed whereas no FIR have been registered against the members of Thunderbolt or the police. Thirdly, the question of surrendering the weapons has also not been done by the officers involved.

The Team met Advocate Soya and spoke to Advocate Tushar who are representing Smt. Lakshmi, sister of Shri Manivasakam and Shri. Murugesan brother of Shri Karthi. A petition had been filed before the Sessions Court at Palakkad praying for an order to preserve the bodies until postmortem examinations were done and further seeking for the strict compliance of Supreme Court guidelines in People's Union for Civil Liberties vs. Union of India [(2014) 10 SCC 635]. The Sessions Court while directing the Police to preserve the body until 04.11.2019, rejected the prayer to register an FIR against the members of the Thunderbolt.

The Kerala High Court has passed order dated 12.11.2019 directing the Police to comply with the directions in People's Union for Civil Liberties vs. Union of India [(2014) 10 SCC 635] and has held that “Causing death in fake encounters is nothing but cold blooded and brutal murder by persons who are supposed to uphold the law. The encounter philosophy is a criminal philosophy”. The High Court has, while finding that there was delay in handing over the weapons, directed for the immediate seizing of firearms. The High Court has also directed the investigation of the circumstances and causes of the death of Shri Karthik and Shri Manivasakam.

Conclusions and Findings

1. Contradictions and circumstances that place serious doubts on the versions of the police: Three persons were killed on 28th October, 2019, allegedly after they opened fire on the Thunderbolt. The police have categorically admitted that not a single member of the Thunderbolt unit has suffered any injury. The presence of cooked food as has been noted in various reports, raises doubt in regard to the version of the Thunderbolt especially in regard to the police claim of firing from the other side.
2. The incident that occurred on 29th October, 2019 raises several questions. Admittedly Shri Manivasakam had fracture of his knee and his thigh, and was found around 40 metres from where everyone was standing, within the cordoned areas (of circumference of 400 metres). How did Shri Manivasakam enter the area armed undetected and how could he have made such attempts to shoot when he was so severely injured?
3. The Police admit that of the 3 people killed on 28th October, 2019, they have not identified two of them. When such persons remain unidentified, on what basis have they been declared as Maoist and how has the Unlawful Activities Prevention Act been invoked against them?
4. The failure of the police to register an FIR in respect of the death of the four persons is in violation of the order of the Supreme Court in PUCL vs Union of India, and raises questions as to what they State does not want investigated.
5. The statements made by the Chief Minster and the Chief Secretary branding those who have been killed as Maoist and justifying the action of the Thunderbolt, apart from being wholly improper and violative of constitutional obligations, raise concerns about the possibility of a free and fair investigation into the extra-judicial killings that have taken place.
6. The complaints of harassment and surveillance of the members of the adivasi communities by the Government in the name of investigation or “combing operations” suggest further assault on an already vulnerable and historically exploited community. The Government instead of addressing socio-economic issues at hand is further victimizing the adivasi community

Demands

In this context we demand the following:

1. An FIR under Section 302 of the Indian Penal Code for murder must be immediately registered against the members of the Thunderbolt unit, who are responsible for the killing of the four persons and a fair and impartial enquiry must be conducted into the same.
2. The directions of the Supreme Court in its order dated 23.09.2014 in People's Union for Civil Liberties vs. Union of India [(2014) 10 SCC 635] must be strictly complied with.
3. No out of turn promotion or gallantry awards must be given to any of the members of the Thunderbolt unit involved in this incident
4. Immediate steps must be taken identify the families of those who have been killed, who must also be compensated for such extra-judicial killing.
5. The government must stop all forms of harassment and surveillance of the Adivasi communities and must instead address the socio-economic issues being faced by them.
6. We condemn the arrest of Alan Shuhaib and Thaha Fasal, both law students under the Unlawful Activities Prevention Act and demand their immediate release.
7. The article written by the Chief Secretary and the statement given by the Chief Minister are highly condemnable and are violative of the fundamental principles of the Constitution. We seek that the same is immediately retracted and an assurance must be given that a fair and proper enquiry into this incidents will be carried out.
8. We demand a judicial enquiry to look into all extra-judicial killings that have taken place in Kerala and for steps be taken to punish those responsible for the same and further compensate the families of those killed.