Naxal Varghese Murder Case; father of fake encounter killings in India

# Prosecution case of Naxal Varghese Murder

Varghese, a leader of a naxalite gang, was involved in a number of murder and dacoity cases in Wayanad area of Kannur District in the early 1970. He was wanted as an accused person in crime numbers 22/70 to 25/70 of the Mananthawady Police Station for commission of offences of murder and dacoity in Thirunelli in the night intervening 9/10-2-1970.

Various parties of different police forces were involved in combing operations in the forest areas to apprehend the naxalites in Thirunelli area.

One unit of the 19th battalion of CRPF, headed by Subedar N.V. Peedikail was stationed in Thirunelli Vishnu Temple. Sub Inspector A.K. Achari (of the Kerala State Police Force) who was then posted at Chokkli Police Station, was attached to that unit of CRPF for liaison and guidance for that CRPF unit. He is now no more.

Keshwan Moseth of Thirunelli informed Subedar N.V. Peedikail and Sub Inspector A.K. Achari, in the morning of 18-2-1970, at Thirunelli Vishnu Temple, about the presence of Varghese in the hut of Shivaraman Nair at Thirunelli.

On the basis of the aforesaid information, Subedar N.V. Peedikail, Sub Inspector A.K. Achari and Ors. CRPF personnel including P.W. 21 – Mohammed Hanifa (a CRPF Constable) and the first accused – Constable Ramachandran Nair, rushed to the hut of Sivaraman Nair, duly armed.

The aforesaid police party broke open the door of that hut and apprehended Varghese. They brought Varghese towards the main road, with his hands tied behind his back. On the way, the police got Varghese identified by the villagers, in order to ascertain his identity.

While Varghese was being taken in a police jeep to the Mananthawady Police Station, by the CRPF personnel, including first accused Ramachandran Nair, P.W. 21 – Mohammed Hanifa and Sub Inspector A.K. Achari, they were stopped at Kattikulam Bridge and were ordered to return to Thirunelli Forest with Varghese in the custody of the second and third accused, namely, K. Lakshmana, Dy. S.P., Tellicherry and P. Vijayan, D.I.G., Northern Range, Calicut.

Varghese was interrogated in Thirunelli Forest by the second and third accused, namely, K. Lakshmana and P. Vijayan. After the interrogation of Varghese, the second and third accused, namely, K. Lakshmana and P. Vijayan, ordered the first accused Constable Ramachandran Nair of CRPF to shoot Varghese dead in Thirunelli Forest, in furtherance of their common intention to eliminate Varghese in police custody.

Accordingly, first accused Ramachandran Nair fired a single shot from a service rifle and shot Varghese dead at 6.55 p.m. on 18-2-1970 in Thirunelli Forest.

After Varghese was killed as above, a case was got registered as Crime No. 28/70 of the Mananthawady Police Station, under Section 174(1) Code of Criminal Procedure, on a complaint by the second accused K. Lakshmana, who was then the Dy. S.P., Tellicherry, against the deceased Varghese for having fired at the police party.

In connection with the aforesaid crime, P.W. 17, V. Vasudevan Nair, the then Revenue Divisional Officer, Tellicherry, conducted inquest proceedings on 19-2-1970 under Section 174 Crl. P.C. and statements of witnesses were recorded. Subsequently, the police had sent the inquest papers to him, which he filed, being the RDO/SDM, as he did not suspect any foul play in this regard.

After the inquest proceedings, post-mortem examination of Varghese’s dead body was conducted on 19-2-1970 by Dr. A.M. Lazar at the Government Hospital, Mananthawady, assisted by K.K. Gangadharan, nursing assistant. Dr. A.M. Lazar noticed a firearm injury on the left side of the chest of that dead body and the cause of death was due to injury to the lungs and heart and bleeding. K.K. Gangadharan, the nursing assistant, noticed a firearm injury on the chest and back of the dead body of Varghese. The injury on the chest was small whereas the injury on the back was larger. There were blackening signs on the legs and hands of the dead body.

After post-mortem, Varghese’s dead body was handed over to his relatives and was cremated at his native place on 19-2-1970.

The first accused, Constable Ramachandran Nair and P.W. 21 – Mohammed Hanifa were promoted as Officiating Lance Naiks (L/NK) w.e.f. 18-2-1970 by the Commandant of the 19th Battalion of CRPF on account of killing of Varghese at 18.55 hours on 18-2-1970 in Thirunelli Forest and both of them were also awarded Rs. 75 each for the said alleged encounter.

P.W. 3 – Prabhakar Waryar, Vella @ Adyati and P.W.7 – Jogi, all residents of Tirunelli, had seen Varghese in police custody, of 10 to 15 policemen, at about 10/10.30 a.m. on the day of the alleged encounter. They saw Varghese, his hands tied behind his back, being taken on foot towards the main road at Thirunelli. According to the prosecution, these witnesses had discredited the claim and contents of the complaint made by the second accused K. Lakshmana, Dy. S.P. in Crime No. 28/70 of Mananthawady Police Station, wherein he had alleged that Varghese was killed in a police encounter on 18-2-1970.

In 1977, first accused Ramachandran Nair, while working in Malabar State Police, made an extrajudicial confession, before his colleague P.W.22 -M.K. Jaidevan, that he shot dead Varghese in police custody on 18-2-1970 on the orders of superior officers, namely, the second accused K. Lakshmana, Dy. S.P. and the third accused P. Vijayan, D.I.G.P.W. 22 contacted his friend K. Vellaiudhan in Calicut, who in turn, arranged a meeting with A. Vasu at Calicut.

First accused Ramachandran Nair repeated his confession during that meeting with Vasu in the presence of P.W. 22 and K. Vellaiudhan. On being asked by Vasu to give details of his confession in writing, the first accused Ramachandran Nair, dictated his confessional note after a few days to P.W. 22 under the pretext that his handwriting was not good and that Vasu may find it difficult if the first accused were to write it down.

P.W. 22 wrote down the detailed confession of the first accused Ramachandran Nair in Malayalam and delivered it to Vasu at Calicut. A similar confession was made by the first accused Ramachandran Nair, also to P.W. 10 – K.K. Suguna Prasad. Vasu contacted P.W. 22 in 1998 over telephone, informing that the confessional note of the first accused Ramachandran Nair, kept by him earlier, has been located.

The confessional note was released to the Press and news reports appeared in the newspapers/magazines, about Varghese being killed in police custody on 18-2-1970, by a police constable Ramachandran Nair (first accused) on the orders of superior officers, namely, K. Lakshmana, Dy. S.P., Tellicherry (second accused) and P. Vijayan, D.I.G., Northern Range, Calicut (third accused).

The aforesaid acts of the then CRPF constable Ramachandran Nair (first accused); the then Dy. S.P., Tellicherry K. Lakshmana, (second accused) and the then D.I.G., Northern Range, Calicut, P. Vijayan, (third accused) constitute offence punishable under Section 302 read with Section 34 I.P.C.

# Fake encounter killings in India

In a case of indictment for the offence of murder emanating from, and imputing of, custodial death of a victim, the fundamental and most significant question that will arise for consideration is whether the victim was under custody at or immediately before his death, and if so, had he been subjected to torture by third degree methods, or his person abused and inflicted of grave injuries, which had resulted in his death, by his custodians.

If it is established by cogent, reliable and convincing evidence from the materials produced by the prosecution, that the indictees had custody of the victim and his death arose under the circumstances as aforesaid the question is whether an explanation is warranted from them as to how the death of the victim while in custody took place. of course the onus to prove its case as a whole, not only of the custody of the victim with the perpetrators of the crime but also the taking away of his life while in custody by the acts done by the indictees, rests with the prosecution, and it never shifts.

However, once custody of the victim is proved, in a case of custodial death, continuous silence or a specious plea that death of the victim was in an encounter even denying his custody, could only be taken as a false plea, and it can be taken as an incriminating circumstance with other proved circumstances if so made out, establishing the culpability of the indictees in the custodial death of the victim.

Encounter is often blamed as a cover for targeted killings. Colonial police strategies which followed the use of targeting killings, covertly, have no place in a Republic founded on rule of law and governed by the Constitution upholding human rights.

‘Right to life’ of a person guaranteed under the Constitution is so sacrosanct that any intrusion into such right, leave alone the deprivation thereof, can be done only as regulated and permitted by law.

The principles enshrined under the maxims ‘salus populi est suprema lex‘ (the safety of the people is the supreme law) and ‘salus republicae est suprema lex‘ (safety of the State is the supreme law) must coexist and go together, and the one is not the less important of the other whatever be said that the welfare of an individual must yield to the interest of the State.

The action of the State against the individual must be within the four comers regulated by law, it must be right, just and fair. The victim in the case, Varghese, believed in an ideology that a change of social order could be brought out through the barrel of gun by collective armed action of the peasants and working class, and had unleashed violence, committed dacoity, decapitated one or more, dubbing them as class enemies, and, perhaps, even waged war against the State, cannot justify the taking of his life by the police, after he was taken into custody.

Policemen cannot be the arbiter of the wrong and wrongdoer, nor be the judge and executor of the punishment even where the worst crime is perpetrated by the offender. Any licence to the police officials, who are infact guardians of the law, to gore the human rights to death deserves to be deprecated in the strongest terms, and any such act should be curbed, awarding the punishment called for, to uphold the majesty of law and the invaluable and indefeasible rights of a human being.

‘Law of the jungle’ where might is right or a vengeful thirst of ‘eye for an eye, tooth for a tooth’, has no place where a justice delivery system through the instrumentality of courts prevails in a Republic governed by a Constitution insulating and safeguarding ‘fair trial’ to an individual who is suspected of the most heinous crime. Even a terrorist once disarmed and apprehended has to be dealt with and in fact entitled as of right a ‘fair trial’.

[The above discussion on Naxal Varghese Murder Case is extracted from the judgment of Kerala High Court in K. Lakshmana I.P.S. Vs. C.B.I., 2011 (3) KLT 75 : 2011 (3) KLJ 274 : ILR 2011 (2) Ker. 929 : 2011 (2) KLD 160 dismissing the appeal challenging conviction and the sentence imposed pronounced by a bench comprising of Justice Thottathil B. Radhakrishnan and Justice S.S. Satheesachandran]