Maoist Leader Azad’s Encounter Death: Sessions Court Allows Widow’s Pleas To Relook Into CBI’s Clean Chit To Accused Cops [Read Order]

Paving the way for a re-look into the alleged fake encounter killings of CPI (Maoist) spokesperson Cherukuri Raj Kumar alias Azad and freelance journalist Hemchandra Pandey in Adilabad forests of Andhra Pradesh in 2010, a Sessions court in Adilabad has allowed revision petitions moved by widows of the two deceased challenging the clean chit given by the CBI to the accused policemen on the ground that they had fired in exercise of their right of self defense.

Additional District and Sessions judge GVN Bharatha Laxmi allowed the revision petitions moved by Cherukuri’s wife K Padma and Hemachandra’s wife Bineetha Pandey challenging March 23, 2015 order passed in their protest petition by Judicial Magistrate, First Class, Adilabad, wherein they had opposed the clean chit given by the CBI to accused cops in its final report.

The Sessions judge also set aside the March 23 order while holding that the lower court has committed error in considering the facts and evidence on record and taking cognizance of offence against the accused.

Sessions judge Laxmi said the court could not have arrived at a conclusion that the policemen acted in exercise of right of self-defense since the same can be decided only after a full-fledged judicial trial and not after investigation (by CBI in this case) or at a pre-trial stage.

“The law is the same for common man and the policemen. This is a fit case for trial. As such the liability of the policemen mentioned in case registered by CBI shall not be exempted on the plea of right of self defense at the stage of investigation as well as pre-trial stage,” said the Sessions judge.

In this case, K Padma was represented by advocates D Suresh Kumar and P Vishnu while Bineetha Pandey was represented by advocate V Raghunath.

The Sessions court has now directed the lower court to take cognizance of offence against the accused policemen and issue process under Section 204 CrPC.

Background

The case finds its genesis from exchange of fire during intervening night of July 1-2, 2010, between police party, Andhra Pradesh police, and suspected Maoists at Sarkepalli-Velgi forest area in Adilabad.

In this fire, two persons – Cherukuri Raj Kumar, a central committee member and Polit Bureau Member of CPI (M), and Hemchandra Pandey, a journalist – were killed.

A case of rioting, attempt to murder under the IPC and Arms Act came to be registered by the local police on October 2, 2010.

Bineetha Pandey, wife of deceased Hemchandra Pandey and social activist Swami Agnivesh, who purportedly mediated peace talks between Maoists (CPI) and the Centre, moved the apex court saying the two men were killed in fake encounter by Andhra Pradesh Police in violation of Article 21 of the Constitution.

The Supreme Court on April 26, 2011 directed the Director, CBI, to constitute a team to investigate the circumstances and manner in which Cherukuri and Hemchandra met with their deaths.

The CBI registered a case of murder and conspiracy and filed a final report before judicial magistrate first class, Adilabad, who allowed present petitioners to file objections wherein they prayed that the CBI report, which had not chargesheeted all the accused, be rejected and cognizance of offence against the accused be taken for cold-blooded murder of the two men by 29 police personnel.

After considering all oral and documentary evidence, the lower court dismissed the protest petitions.

It was against this order that the instant criminal revision petitions came to be filed.

Cherukuri’s wife told the court that on June 30, 2010, Cherukuri left to catch Gindwana Express to go to Nagpur but she saw TV reports the following day that he has been killed in an encounter in Adilabad forest area. She said her husband must have been kidnapped by the police, killed and his body abandoned in the forests.

Bineetha said her husband Hemchandra Pandey was sub-editor in Chethana magazine and worked as freelance journalist. On June 30, 2010, her husband had lunch at home and left for Nizamuddin railway station to go to Nagpur. He was to return on July 2, she said, adding that he had told her to keep his breakfast ready.

However, on July 2, he did not return home. On July 3, while she was attending Gandhi Peace Foundation meeting, a senior journalist informed her about a man named Azad alias Cherukuri and an unnamed man having been killed in police encounter in Adilabad. When she saw the photographs in Eenadu paper, the unnamed man turned out to be her husband.

She said her husband might be interviewing Cherukuri and the police killed him to destroy all evidence of the latter’s fake encounter.

The petitioners also raised 16 questions which they claimed were not answered by the CBI investigation, including the Home Ministry manipulating the CBI probe and the post-mortem report revealing that the two were shot from a very close range.

The Sessions court noted that the CBI had also not taken on record statement of Dr Neelakanteshwar Rao, who was the in-charge of the post-mortem, and that he was not even allowed by the lower court to explain his findings when he appeared as a witness of the protest petitioners.

They also argued that while the lower court did not allow Dr Rao to explain his version of injuries on the ground that the same was a matter of trial, it allowed the accused cops to plead right of self defense at the pre-trial stage.

The CBI, on the other hand, contended that it did not find any evidence to support the contentions of the revision petitioners and hence, recommended to close the case.

The Sessions court said, “The magistrate is not required to fill in the test tube of his discretion to find out the molecules of a prima facie case with a microscopic eye which should be left open for trial.”

The court noted that, “the allegations of protest petitioners that their husbands were killed in encounter in the intervening night of July 1-2, 2010 get support from the evidence of PW4 Neelakanteshwar Rao … Further, their allegation gets support from the contents of FIR registered by Circle Inspector of Police, Asifabad, which made clear that during exchange of fire between Maoists and AP local police party, the police party opened fire at Maoists in exercise of right of self defense in which both the deceased – Cherukuri Raj Kumar and Hemachandra Pandey were killed”.

The court said this prima facie establishes that there was an exchange of fire and the police had fired in exercise of right of self defense.

It, then, went on to add that both the deceased were said to have been killed in exercise of right of self defense which comes under general exceptions of Indian Penal Code but the plea of self defense is available only at the stage of trial and not before a pre-trial stage.

The proviso under the general exceptions has to be read in conjunction with Section 105 Indian Evidence Act which enjoins the burden of proving existence of circumstances bringing the case within the general exception upon the claimant and the court shall presume absence of such circumstances.

The court said, “As the police/ accused has taken plea of right of self defense, as per Section 105 of the Evidence Act, the burden of proof lies on the accused … The plea of self defense is available to everyone at the time of judicial trial … It is not for the investigating officer to decide the truthfulness and all the conclusion is his opinion which has to be decided in a full-fledged judicial trial.”