The Asian Human Rights Commission (AHRC) has received information regarding the death of Som Bahadur Barai, a 49 year old man, while in the custody of the Area Police Office, Ratnanagar, Chitwan District, on 22 September 2010. The police claimed that the victim hanged himself in his cell a few hours after his arrest. Nevertheless, the victim's family challenges this version of events and suspects that the victim was tortured to death and that the police are trying to cover up the case. The family was not informed of the arrest and death of their relatives until 19 October and the police had repeatedly ignored their request for assistance in finding about Som Bahadur's whereabouts. Although the victim's father has filed a First Information Report on 19 October 2010 to ask for a proper investigation into the circumstances of his son's death, no such investigation has been launched into the case so far.
According to the information we have received from a local human rights NGO, Som Bahadur Barai was arrested on 22 September 2010 from Prasauni-8 Ratnanagar municipality, Chitwan district by four to five residents of Ratnanagar Municipality who accused him of having stolen a bicycle. The victim was handed over to the Area Police Office (APO) at 4pm, Ratnanagar and detained there. At the time of arrest, Som Bahadur Barai was reportedly heavily drunk.
According to police inspector Ram Prakash Chaudhary, in charge of the APO, Som Bahadur Barai was not taken to the hospital for a medical check-up as is mandatory for every arrested person because he was supposed to be released soon. According to the police, on the same evening at around 7.30 pm, as Som Bahadur Barai was left alone in his cell -- his co-detainee being in the T.V. room -- he tried to hang himself to a window panel after having torn a blanket. The police reportedly took him to Bharatpur hospital where he was declared dead at 9p.m.
According to Samshed Alam who participated in the arrest and the handing over of Som Bahadur, two days after the arrest, the police called him to the police station and made him sign a paper but he claims he does not know what was written on it. At that time, the police did not ask him about the address of Som Bahadur neither did they inform him of the death.
Similarly, Mr. Ramesh Regmi, the victim's co-detainee, reports that on 24 September he was called to the District Police Office, Bharatpur. There, he was reportedly shown photographs of the deceased and asked to sign a paper stating that the deceased had not been tortured in custody. Nevertheless, Mr. Ramesh Regmi reports that when he heard the news that Som Bahadur had hung himself in his cell, he did not go out to see what happened exactly and he does not know whether Som Bahadur had been subjected to police torture or not.
Ms. Ganga Darai, the victim's wife, was without news of her husband since the morning of 22 September. On 25 September, she visited the APO with her relatives and showed Inspector Ram Prakash Chaudhary pictures of the missing person. Nevertheless, he reportedly asserted that Som Bahadur had not been arrested by the APO and suggested that they visit the District Police Office (DPO), Bharatpur. When they visited the DPO, the police told them that there was no detainee with that name. On 19 October she heard about Samshed Alam's role in her husband's arrest and visited him. Together they went to the APO, Ratnanagar where the police informed them that he had been transferred to DPO, Bharatpur. When they went to the DPO, the police showed them the clothes and photographs of the deceased. After they had identified him on the photographs, the police asked Deepak Darai, Som Bahadur's younger brother, to sign a receipt for the body but by then the body had already been cremated.
The victim's family claims that the police tortured the victim to death and tried to hide his body. Indeed, the police did not try to contact the victim's relatives who are live only 500 meters away from the police office or to ask Samshed Alam for the victim's name when he was asked to come to the police station, neither did they respond to the relatives' queries when they first visited the APO with pictures of the deceased.
According to police inspector Ram Prakash Chaudhary, police had been unable to find the relatives of the deceased and therefore handed the body over to Bharatpur Municipality for it to be cremated. The police inspector reportedly explains the fact that his name and address were not kept in the police record by saying that the victim did not say anything about himself. Section 23(2) of the Police Act 1956 mandates that all police stations must keep a daily record of all the detainees.
Moreover, according to the NGO investigation team who visited the scene, the window panel where Som Bahadur allegedly hanged himself is only 5 feet high when the victim's height was almost 5.4 feet, which makes it unlikely that the victim hung himself there. Further, the window panel was not bended or broken. Questions have also arisen regarding the reason why the deceased's body was handed over to Bharatpur Municipality instead of Ratnanagar Municipality where the victim was detained and died.
The postmortem report concludes that the cause of death could not be ascertained and that it will be determined after the viscera examination is conducted. Dr. Apurb Thakur who examined the body the night he was brought to the hospital asserts that he found no mark on the throat of the deceased but that the "deep tendon reflex" was absent.
On 19 October, Magara Darai, Som Bahadur's father, filed a First Information Report at DPO, Bharatpur. Since then and at the time of writing, no independent investigation has been conducted to determine the cause of the death.
As a grade "B" police station, the APO Ratnanagar does not have the authority to detain or file a case against anyone without referring to the District Police Office.
In spite of the strong lip-service being paid by political parties and the Nepal Police to the eradication of torture and to the accountability of the police system, this commitment is still to translate into actions and the persistence of some practices perpetuate the impunity of the perpetrators and increase the risk of the detainees to be subjected to torture.
Detaining people incommunicado increases the risk to see them subjected to torture and ill-treatment. To prevent that incidence, in his 2005 Nepal visit, the UN Special Rapporteur on Torture had expressly recommended that the custody register must be properly kept and that the state of health of the detainee on arrival should be checked. The Nepal Police Act made it mandatory for all the police station to keep a standardized register recording the names of all the arrested and detained persons. In this case, the victim was detained, without having his name recorded in the police register and being provided with medical examination, in a "grade B" police station which was not allowed to file a case against him nor to keep him in detention without the prior approval of the District Police Office. No one was informed of his detention, making him vulnerable to abuses with the perpetrators guaranteed that it would not be known.
Further, the victim's co-detainee was asked to sign a paper on which he testifies that Som Bahadur had not been tortured, even though he did not know about it for sure. Similarly, Samshed Alam was asked to sign a paper whose content he ignored. Those incidents recall a recurrent trend of police attempts to cover up incidents of torture by pressuring the witnesses to testify that no torture had taken place. For instance, in 2009 in Morang District, the police launched a petition stating that two men who had been severely beaten up in public by police officers had in reality been beaten up by the public and hence not subjected to torture. Please see UAC-086-2009 for more information.
The absence of independent investigation being held in all the cases of death occurring in custody provides impunity to the perpetrators and encourages further abuses as it is less likely that cases in which torture has been the cause of death come to light and lead to severe sanctions. Further, the absence of any independent body to conduct the investigations implies that in the few cases that an investigation is lead it is conducted by police officers, sometimes from the same police station as the alleged perpetrators. In the case of 16-year-old Dharmendra Barai, dead in questionable circumstances while in custody of the Khajuriya Police Post, in Rupendehi District, on 4 July 2010, it is only after repeated pressure from the civil society and the victim's family that an investigation team was eventually established. Nevertheless, the team was composed exclusively of policemen under the leadership of a government official and it has reportedly failed to show diligence in int erviewing the protagonists and studying the evidence. (Please see: AHRC-UAU-034-2010 for more information)
The necessity to have an independent investigation held in every case of custodial death is an indispensible element of a torture-free police system, which was recognized by the UN Body of Principles for the protection of all persons under any form of detention or imprisonment which establishes in its principles 34 that "Whenever the death or disappearance of a detained or imprisoned person occurs during his detention or imprisonment, an inquiry into the cause of death or disappearance shall be held by a judicial or other authority".
Several inconsistencies in the way the police have explained the death of the victim and several lapses in their handling of the case make the circumstances of Som Bahadur's death unclear. It should therefore be immediately investigated by an independent and impartial body to determine exactly the part the police played in this case.