Thursday, December 30, 2010

What does Court say in Dr Binayak Sen’s case- English version of decision (Amitabh Thakur)

We have been listening and reading about Dr Sen’s court decision since the day it has been pronounced. But since the original decision is in Hindi and is 92 pages long, hence many would be possibly have got the opportunity to read and understand it. I hope, u appreciate the fact that the judgement can be fully appreciated only when one has gone through it in its totality.

Here is my attempt at presenting the basic and more important facts of the Court judgement in the much-discussed Dr Binayak Sen case (translating the Hindi version to the best of my abilities). This being a highly sensitive matter, I extend my apologies for any unintended error or misrepresentation.

Amitabh Thakur

Indian Police Srvice (IPS)


The prime accusation against the three convicts is that they have been they were guilty of waging war, or of attempting to wage war or of conspiring to wage war against the Indian government or the State government as on 6th May 2007 or before. 6th May 2007 is the presumed date on which one of the three convicts, Pijush Guha was allegedly arrested near Raipur police station at about 16.10 PM. The related accusations were of culpable membership of, association with, and furthering the interests, financially or otherwise, of organizations notified and banned under the Chattisgarh Vishesh Jan Suraksha Act 2005 as unlawful and having membership of a terrorist gang or association, holding proceeds of terrorism, or support given to a terrorist organization under the Unlawful Activities Prevention Act, 1967.

As per the prosecution story, from the Railway station Guha was brought to Ganj police station where his search resulted in getting some Naxal literature and three hand written letters, two in English and one in Bengali. A case was registered against him and he got formally arrested. During enquiry, he accepted that the three letters were given to him by Sen to be delivered at the secret codes. This was followed by search of Sen’s house in which a postcard written by Narayan Sanyal, another letter by Madan Barkade (proclaimed as a Naxal commander) and other Naxal literature were obtained. He was later arrested, investigation done and charge sheet filed in the Court.

During trial Guha claimed himself as a Beedi leaves trader and said that he arrested from the Mahindra Hotel where he was staying, kept in illegal custody for 5 days and finally officially arrested on 6th May. He denied knowing either Sen or Sanyal. Dr Sen said that he was a member of PUCL and a Human Rights activist who opposed the Human Rights violation and was deliberately implicated in this case. Sanyal denied all his previous alleged crimes and said that the jail authorities forced him to write these letters. He never knew Guha.

The trial consisted of 97 prosecution witnesses and 11 defence witnesses for Sen, none for Guha and Sanyal. Key initial prosecution witnesses like B S Jagrit, Sub-Inspector of Ganj police station, Inspector Ravindra Upadhyay held their account of the prosecution story, saying that Anil Kumar Singh and Rajesh Gupta, who were passer-by at the Railway station and came along with Guha to the police station also, were signatories to the seizure list. They said that of the two English letters, one was marked V and other P. Anil Kumar Singh also dittoed the prosecution story, saying that Guha had accepted in his presence of the letters obtained from Sanyal to be delivered to Sen. He also said that Guha signed on these seizure list in his presence. These three witnesses stuck to their facts even during the cross examination.

Based on these three statements and the entries on the seizure list, the Court concluded that the articles alleged to belong to Guha were conclusively proved to belong to him. Some procedural measures like permission to register a case under Chattisgarh Act of 2005, BBS Rajput, the City SP getting appointed as the investigating officer were properly followed.

The manager and employees from Mahindra Hotel, Geetanjali Hotel etc. did recognize Guha but at the same time did not remember whether Sen came to meet Guha there.

A R Kunjam, Assistant Jailor of Raipur Central Jail gave facts about a case No 20/2005 of similar nature being registered against Guha in police station Bandwan in Purulia (West Bengal) in which Charge sheet had been submitted in Purulia Court against Guha, among other accused. Sadhan Kumar Pathak, the then in-charge of Bandwan police station stated that the crime related to land mine blast of a CRPF camp at Gurpana. Fact about another case No 5/2006 at Bhadrachalam, district Khammam (Andhra Pradesh) were also brought before the Court in which Narayan Sanyal (also known by other names like Vijay and Navin Prasad), resident of Kolkata but then living in Raipur had been arrested by the Bhadrachalam police. He had been arrested with a pistol, some cartridges, a walkie-talkie and other Naxal literature etc. After investigation he had sent Charge sheet in the Khammam Session Court. Andhra Pradesh police witnesses deposed that Sanyal had accepted being the member of the Central Committee of CPI (Maoist) and its Polit Bureau. Another witness brought the fact that a case No 17/2007 was registered at police station Jangla, distyrict Dantewada in which Sanyal was charge sheeted as an accused. Another witness deposed that Sanyal was arrested on 19/04/2005 and case No 9/2005 was registered at police station Konta, district Dantewada in which trial was going on in Dantewada Court.

Vijay Thakur, the then Inspector of Konta claimed from his knowledge that Sanyal was a hardcore Naxal and held many meetings in that region. Among others Sen also attended these meetings. As per his version, he knew Vinayak Sen along with Shankar Singh and Amita Srivastava, who were absconding at the moment and they were hard-core Naxals. Similarly, Sher Singh Bande, then Inspector of Chhuria in Dantewada also said that Amita, Shankar, Sanyal were hardcore Naxals. He said that both Vinayak and his wife Elina attended these meetings. He cited case No 113/2007 in 21/05/2007 in which during a raid in the jungles, many Naxal-related documents were seized.

Another crime No 295/2005 dated 11/11/2005 belonging to police station Sadaranchal, Giridih was brought up with Sanyal as one of the accused in which more than 300 Naxals had being involved in a large scale looting and murders. A 21 page information on Sanyal by the Intelligence department, Andhra Pradesh was also brought up before the Court.

Based on all these facts, the Court concluded that Narayan Sanyal was a member of Polit Bureau and a Naxal activist.

About Sen’s involvement in Naxal activities, the Court relies upon evidence of Anil Kumar Singh who states Sen’s name being mentioned by Guha after his arrest. B S Jagrit, Sub Inspector says that he went to Binayak Sen’s house in Raipur three times on 09/05/2010, 15/05/2010 and 17/05/2010 but search could not be conducted because of absence of Elina Sen in whose name the house was in. In the raid/search conducted on 19/05/2010, a seizure report was prepared on which both Binayak and Elina made their signatures. The material in the seizure report included a book on unity between People’s War and MCCI, copy of a People’s March issue, Madan Lal Barkade’s letter calling Sen as a Comrade, a post card to Sen by Narayan Sanyal and other related matter. During trial, Sen accepted all these evidences having been seized from his house, except exhibit No 37 which was not mentioned in the original seizure list and about which the police version is contrary to Sen’s statement and thus dispute remains about its acceptance, though the Court has accepted the police version about it having being there at the time of search and having got stuck between some papers.

Deputy Jailor C S Kaul said that on 27/12/2006, he obtained a letter written in English by Narayan Sanyal to be given to another prisoner Dheeraj Mohali. This information was obtained through a prisoner Ramesh and the letter was seized by the jail authorities. But in his statement, Ramesh did not exactly ditto this statement. In fact many of the letters written by Narayan Sanyal, which were produced by prosecution were accepted even by Sanyal to have been written by him. N K Sikkewal, who is the examiner of questioned documents in Raipur gave the opinion that the sample handwriting of Sanyal and that in the letters were found to be the same. This proved beyond doubt the veracity of the letters written by Sanyal and found in Guha’s possession.

Jail authorities and jail records at Bilaspur jail and Raipur central jail made it clear that Sen and Sanyal met on about a dozen occasions. The jail authorities like Deputy jailor S R Thakur, jailor P K S Chauhan , etc. claimed that Sen met Sanyal by claiming to be his relative but the jail documents did not substantiate this claim. Based on these facts, the Court concluded that Sen did meet Sanyal on many occasions claiming as being a relative.

Witness Deepak Chaube from Raipur who hired his father-in-law’s house in Raipur on rent said that in that house Narayan Sanyal and one Amita Srivastava lived in 2005 but in January a raid by Andhra Pradesh Police took place in which Sanyal was arrested and Amita absconded. Manish Daga, the Principal of a school at Raipur said that Amita Srivastava taught in the school but did not come after March 2005. Meena Singh, another school Principal, deposed that Amita had worked in her school some two years ago and was brought to her by Sen’s wife Elina. Both of them later read about her Naxal involvement from newspapers. Arun Kumar Dubey, a Bank employee said that one Shankar Singh, who claimed to be a social worker, was his tenant for some time. After some time he moved out, saying that his elder brother and his wife will live there. He recognized the woman as being Amita. He also said that Sanyal and Sen often came to meet Shankar and Amita.

C L Sirdar, who was then Inspector at Farrogarh, district Bijapur said that a case No 07/2007 was then registered related to Naxal activities and some documents seized in the process. In exhibit 140 related with these raids, names of Binayak, Elina, Rajendra Sayal, Vijjaiya etc were written

Another witness Ramswarup said that he had given his house on rent to Shankar Singh who had said that he worked in Rupantar organization belonging to Elina Sen. Even the records of Corporation Bank, Raipur stated the fact that Elina was the introducer in opening of Shankar Singh’s bank account.

Based on all these facts, the Court concludes that Binayak and Elina had close relations with Shankar and Amita, who the Court declares as being hardcore Naxals.

Another witness A R Wankhede, ex-Principal of a College says that one Soma Sen w/o Tusharkant Bhattacharya worked in the College. Soma also accepted in her statement that she knows both Binayak and Elina. Incidentally, Soma’s husband Tushakant is in Hyderabad jail since September 2007 in some 30 year old Naxal crime. She said she knew Binayak after meeting in World Social Forum meet and admitted the veracity of letter written by Madan Barkhade in which addressed Binayak as Comrade.

During trial it was found that Dr Binayak Sen had conversations with Bula Sanyal, the wife of Narayan’s elder brother, a fact accepted by Sen himself.

K R Pisda, ex-Collector Dantewada deposed about Naxal activities, their modus operandi and Salwa Judum. His statements, that of others and the documents made is clear that CPI (Maoist) and some other frontal/ local organizations were declared as prohibited organizations from time to time under section 3(1) of the Chattisgarh Act, 2005. Similarly under the Unlawful Activities Prevention Act 1967, CPI (Maoist) was declared a prohibited organization.

Documents from Andhra Pradesh showed that Narayan Sanyal of CPI (Maoist) was a rewarded criminal with an award of Rs. 12 lakh. B S Jagrit also claimed in the Court that the accused were members of CPI(Maoist) and were part of urban network of CPI (Maoist) which assisted the rural network. The computer hard disk seized from Sen’s house also had names of people like K S Priya alias Malti (known by various other names), Gudsa Usedi and Prafulla Jha who were arrested with huge Arms cache and cases were under trial in Raipur and Durg.

Statement of B S Jagrit, the police Inspector claimed Sen as being member of Rupantar (a fact accepted by Sen himself) and also that Rupantar was a Naxal organization.

Magazines found from possession of Guha and Sen (Prabhat Patrika, People’s War, People’s March)were argued by prosecution as being Naxal literature as it eulogized the Naxals killed in police encounters as martyrs, condemned Salwa Judum, called for Jantana Sarkar, wanted Dandakaaranya to be declared a liberated zone and also claimed responsibility on Chandra Babu Naidu’s cavalcade, interviews of Ganapati and Kishen, two Polit Bureau members.

The two English letters are marked to Dear P and Dear friend V. Letter to P expresses happiness on the success of 9th Congress. It calls the murders as reactionary and talks of International Organization Repatriation Plan along with the Nepalese Maoist reaching the Parliament directly. It talks of giving money to someone called SR. Letter to V accuses of not helping the Jail comrade and great potentials in V’s area.

Two very important issues are brought up in the decision. One is about the arrest of Pijush Guha, which he claimed was done on 01/05/2007 from Hotel Mahindra and not on 06/05/2007 from Station Road, as claimed by police. For this the defence side even produces the Affidavit given by City SP BBS Rajput in the Supreme Court where he said that Guha was arrested from Hotel Mahindra. Later, the prosecution claimed that it was a clerical mistake and the Court seemed to accept it as such. The Court also said that since Guha could not bring any evidence in favour of his being arrested on 01/05/2007, hence his plea was not acceptable. Also that Guha could not satisfactorily explain how he came in possession of the these letters written by Sanyal.

Narayan Sanyal’s lawyer claimed that the letters written by him and obtained from Guha were not written voluntarily by him but the jail and police authorities forced him to write these letters so as to implicate him and others. But the Court did not accept this argument because Sanyal could not produce any evidence in this regards.

About discrepancies and contradictions in the statements of the prosecution witnesses, the Court concludes that they are not material in nature so as to make their statement unreliable and suspicious.

About exhibit A-37 being attached later, Sen said that it did not carry his signature and was not also mentioned in the seizure list at that time. One defence witness Mahesh Mahobesaid that the police took away all the documents and the Computer CD cassettes in an open manner which were not sealed properly. The prosecution side said that all these documents, including exhibit A-37 were received by Guha’s lawyer and Sen themselves as a part of the Charge sheet submitted by the police but they did not, for once, raise this objection at that time. The Court seemed to go by the prosecution argument and did not give the benefit of doubt to Sen.

The defence witnesses for Sen mostly consisted of mainly local reporters (Shashank Sharma from Deshbandhu, Ajit Parmar from Navbharat, Anil Jha from Dainik Chattisgarh, Prabhakar Sinha from Hitwad, E V Murli from English Haribhoomi), a Chartered accountant of Rupantar Md Arif , documentary film maker Ajay T G and Convener of Ryupantar,Prahlad Sahu.

These defence witnesses mostly criticized the government action against Naxal movement and deposed of having published newspaper reports and articles condemning these acts as being revengeful and wrongful.

Based on all the above-mentioned facts, the Court came to the conclusion that the three accused were guilty of offences under sections Sections 124 A read with Section 120 B of the Indian Penal Code, Sections 8(1), 8(2), 8(3) and 8(5) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 (Chhattisgarh Special Public Safety Act) and Section 39(2) of the Unlawful Activities Prevention Act, 1967.

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