Responses and Comments of the Government of
Report about Investigating Allegations of Extra-Judicial Killings in the Terai-Nepal
Summary of Concerns
1. The Government of
2. At the outset, it may be noted that the Interim Constitution of Nepal, 2007, like its predecessor 1990 Constitution, has abolished death penalty, and consequently, the sentence of death is not a part of the penal system in Nepal.
3. Moreover, in spite of poverty and underdevelopment,
4. The Report seems to be biased in the sense it makes completely one sided representations. It has confined itself with what it considers 'credible allegations' of 'extra-judicial killings' by the public security forces and failure of meeting the obligations by the State in 'thoroughly' and 'impartially' investigating the allegations. It appears highly selective and partisan in that the Report has ignored the reality and positive developments in the field of protection and promotion of human rights. Fair and through overseeing of human rights situation may find it equally imperative that the OHCHR Nepal should have taken stock of such reality.
5. Moreover, the Report is unconvincing and incredible for a range of reasons. It suffers some serious contradictions. Contrary to what the Report is expected to do, it makes many conclusions about the truth or falsity of the allegations. It attempts to give impression as if there is law and order vacuum in the country, and most credible allegations of unlawful killings have gone uninvestigated. Needless to say that
6. Under the heading of Relevant Legal Standards, the Report mentions, inter alia, that the current legal framework allows or encourages the use of violence, and goes on to say that the local administration and national parks and wildlife conservation legislations, for example, encourage the use of lethal force in situations where it is not justified; that the provisions of conducting internal investigations in the police forces are not sufficient to ensure independence and impartial investigations; and that special court systems under the police regulation do not seem to cover the excessive use of force. Such statements seeking to challenge the legislative wisdom inherent in these laws are not acceptable to the GON. Laws have general application, and wisdom to promote the welfare of people generally. The laws of
7. The Local Administration Act, 1971 comprehensibly provides for how, in the course of enforcement of laws, minimum force is to be exercisable according to the situation. These provisions focus on the safeguarding of life and property of the people and managing peace and security rather than on provoking the security personnel to use lethal force. The organizational policy as well as order relating to the mobilization of police also discourages the use of excessive force. Any police employee defying such order comes ipso facto under the Police Act and the domain of action by the special court. In relation to case number 32, as mentioned in the Report, action is, for example, being taken by the special court. Again, Section 35 of the Police Act does not bar the instituting of legal action against any police employee for any criminal offence.
8. The GON categorically disagrees with the sweeping statement in the Report that the pattern of refusing first information reports (FIRs) is so widespread that it appears to have become unofficial policy to avoid scrutiny of allegedly unlawful police action. Here, various important provisions by the State Cases Act, 1992 must not be overlooked. Accordingly, any person who knows the commission of an offence may give information in writing or verbally to the police organization, whose refusal to file the information enables the informer to inform to the higher police officer or the chief district officer. The informer may also recourse to the appellate court against refusal to file the information.
9. The GON dismisses the baseless statements that the authorities almost use 'encounter killing' as a justification for non-investigation into the circumstances of deaths and that some investigators use the two-year limitation related provision of Number 20 of Chapter on Homicide of the Country Code (Muluki Ain) in relation to prosecution of homicide as justification for holding back relevant case-file up to two years. The police are not allowed by law to hold back action on accidental homicide up to two years. According to the State Cases Act, 1992, a preliminary report on investigation into offence must be sent to the government attorney, who then may give necessary direction to the police. By the fundamental law of the land, the Attorney General has final authority to make decision on the nature of offence and law applicable to it.
10. The postulations against the independence and impartiality of police investigations are also exaggerated. After the police investigation of allegations of extra-judicial killing, the cases are filed under the accidental homicide based on the investigation report, and the case-files, accompanied by the preliminary investigation report and necessary evidence available, are sent to the government attorney. Investigations are then proceeded as directed by the attorney. If such direction is not complied with by the police, the prosecutor may refer the matter to the Office of Attorney General for a recommendation to take departmental action against the police concerned. Accordingly, a great number of police employees had faced departmental action upon such recommendation. There is also a coordination committee headed by the Attorney General to make coordination between the investigating and prosecuting bodies. If any accidental homicide cases fall under homicide in view of the available evidence, action is taken accordingly with the court order. The deed of scene of crime is an important document, which is signed by witnesses. As per the legal provisions, the police cannot file a homicide case as an accidental homicide. Instead, an accidental homicide case can be converted into a homicide case based on the available evidence or upon a complaint by any person. The postulation about non-cooperation between the Police and the Army is not also convincing because gradual improvement in security situation of the country is also a result of effective collaboration and coordination between these institutions.
11. In addition, probe committees have also been formed to investigate into various allegations or cases, for instance, the case of Sanu Sunuwar. The Police Headquarters has written to the relevant institutions to take action against the perpetrators. The accused police employees are now in custody and facing trial. The process of providing compensation to the victims has already started. Moreover, the National Human Rights Commission has also made impartial inquiries into allegations of misuse of powers by the police. Thus, postulation that there is no or effective investigation of allegations of extra-judicial killings is baseless.
12. The GON is seriously concerned with the statement that the extra-judicial killing is systemic. With the enforcement of the Special Security Program, a great number of criminal cases have been instituted. Those who were injured during encounter were lifted to medical treatment facilities. Also, there is a legal provision that seized weapons are to be handed over to the district administration offices.
13. The security forces are empowered by law to use required and reasonable amount of power in the course of implementation of laws. When they encounter armed groups, they resort to firing as the last resort to protect their and other bona fide people's life. It is to note that Nepal Army has been deployed in most of the national parks and wildlife reserves in the country, tasked with the protection of rare wild animals. The Army has been protecting wild animals like tigers and rhinos and protected plants which have a huge demand in the international black market. There are a lot of international and national smuggling mafias operating inside the national parks and wildlife reserves in
14. The GON believes that many of the recommendations proposed are already in place in respective institutions. For instance, the Report proposes for the establishment of a special investigation unit in the OAG. However, there is already a research and monitoring division in the OAG, with full mandate to address the issue as proposed in the Report.
15. The factual information relating to the allegations mentioned in the Report is attached with the Annex for information. It will help relevant stakeholders to have true, correct and fact based information about the allegations.
16. The GON firmly believes that the Report will be revisited and revised in line with the foregoing responses and comments. The GON would like to earnestly suggest that a fact based report about such a serious issue of extra-judicial killings be produced, which would definitely pave the way for further building effective collaboration and trust between the OHCHR Nepal and the GON.
Brief factual information on and responses to
allegations contained in Appendix- C
of the OHCHR's draft report
1, 2& 3. On 01/02/2008 following the information that some of the Indian Criminal had planned criminal activities in Ranighat area of Parsa District, a police team headed towards the area. The team was informed that the criminals, including Manoj Pattel, Bhim Chaudhari and Raj Dev Pattel, had been hiding themselves in a house in the area. While cordoning the house, the criminals suddenly fired on the police team and were able to escape from the house. The team reached Birgunj Municipality-1, there was an encounter with the criminals and exchange of fire. An additional support team of police also arrived at the incident site. While searching the area, police found three persons dead and arms and ammunitions at the incident site. The bodies were handed over to the relatives of the deceased. The case is under investigation in the District Police Office.
4 & 5. On
13. Jitendra Tiwari was not arrested by the Police. So, there is no police records about the incident as mentioned in the Report.
14 &15. On
17. Sone Lal Yadav was under pre-trial detention in Siraha Jail on drug case by the order of the District Court, Siraha. On
18. Sounds of firing were being heard three to four days before the poacher, Mahendra Marshyangdi, was killed by unified patrol team of Nepal Army and Parsa Wild Life Reserve within the area of responsibility of Charbhiya Post secured by Nepalese Army. In a series of operations carried out to restrict the activities of poachers and arrest them, a unified team of 4 military personnel and 2 persons from Parsa Wildlife Reserve was sent for patrolling on B.S. 2065/05/06 (22 August 2008). After hearing gun shots from area 2 KM northeast of Charbhiya Post, the team spotted 2 armed poachers within the Reserve at about 0530 when they operated in that direction. When those poachers were warned to stop, they aimed fire at the team and ran away. The spot from where they fired was within the Reserve - 400m north of fire line demarcating Wild Life Reserve and National Forest. The team even chased the poachers using cycle. The poacher and the team encountered each other in a forest area 300m north of the village. While attempting to arrest the poacher, one of the soldiers was being aimed from a distance of 25 meter. The other soldier quickly reacted and fired back preemptively in self defense aiming at his leg. Unfortunately, when the poacher tried to move away he was hit at his temple causing instant death. In this episode, the poachers fired twice and the patrol team fired 5 rounds, one being at the incident spot. All the legal procedures regarding this incident have already been completed through National Wild Life Reserve and Nepal Police. Moreover, the wife of the poacher, Mrs Saraswoti Marsyangdi, is being employed at the Reserve.
20. On 7/11/2008 police patrol team from Zonal Police Office, Sagarmatha and District Police Office, Saptari was attacked by an armed group of 5/6 people at Bishhariya of Gamhariya Prabaha-8, Saptari. Dhruba Narayan Saradar of the group died in police retaliation. Police recovered one hand-made pistol and one cartridge from his body. The deceased was identified as the area member of Terai Sanyukta Jantantrik Party, Saptari District. The case has been registered and is under investigation.
21. Ram Narayan Yadav created terror among the public through his involvement in the cases of murder, abduction and extortion. He was also involved in murder of Police Constable Briz Yadav. In course of search operation, Yadav was arrested by Nepal Police along with one small firearm (pistol) and bullets. While he was being conveyed to Police Office, Yadav tried to escape by pretending to go to toilet. Police warned Yadav to stop, verbally as well as by firing in the air, but he did not stop. As the last resort to prevent him from escaping, police fired at him as a result of which he got injured. Police captured him and transported him to hospital for treatment. He was declared dead at the hospital. Raj Yadav, son of the deceased, received the dead body. The case is under investigation in Ward Police Office (Ka) Lahan, Siraha.
22 & 23. On
25 & 26. On
29 & 30. On
33. At 1300 hrs (1 pm) on B.S. 2066/03/26 (10th July, 2007), a joint patrol team comprising of five Nepalese Army personnel and one game scout from the wildlife reserve was sent from the Mahadeva Outpost situated in Adhabhar of Parsa District, towards Bhalukhola Area. When the patrol team reached the Bhalukhola Area, they heard the sound of cutting trees coming from the north of the firelane inside the boundary of the wildlife reserve. In an attempt to encircle and arrest the offenders, the patrol team divided into two groups and started moving towards the location from where the sound was coming. When they reached that location, they came across a group of around 5/6 people. As soon as the offenders, including Indirajit Ray Bhar, saw the patrol, they started fleeing from the scene. The patrol team gave them a warning to stop but when it was neglected, one of the patrol members also fired a warning shot. The patrol team then chased after them ,but when one of the offenders swung an axe at a patrol member; he opened fire in self-defence and one of the offenders was killed on the spot. The rest of the offenders were able to escape. All the legal procedures regarding this incident have already been completed by the authorities of the Wildlife Reserve and the Nepal Police.
35. Parsuram Yadav, who was in pre-trail detention in Siraha Jail on the charges of illegal possession arms and ammunitions, escaped from the Jail on
37, 38 & 39. On
40. On 2/10/2009 at around 11:40 hrs, when a patrol team of Nepal Police reached Bharatpur VDC-7, three armed men riding on motorcycle with license plate No. Ja. 1
41. According to the communication received from Armed Police Custom Security Base Camp Birgunj, there was no involvement of Armed Police Force in the incident. However, as a case was filed by the wife of the deceased (Mojahir Miya Ansari), the case of murder is under investigation.
42. A patrol comprising of 7 Nepalese Army personnel, under the command of an officer, was sent out at 0700 hrs () on 2066/08/12 (
44. On 07/12/2009 police received information via telephone that an armed group of 4/5 people has entered in the M.D.S. Traders in Birgunj Sub-municipal Corporation-4 with the intention of looting and some of the armed group members have sustained injuries while firing by the same group. A police team immediately rushed to the incident site and found one person, with one locally modified gun, injured. The person died while being taken to
45 & 46. On
49. Newal Kishor Yadav was killed in counter-attack by a patrol team of Armed Police Base Camp Yadukaha Dhanusha while he and his armed group suddenly fired on the police patrol team at Balabakhar-5 on
51, 52 & 53. A joint patrol team, comprising of members of Bardia National Park and Jwaladal Battalion of the Nepal Army which went out on 2066/11/25 (9 March 2010) on the basis of information about poachers being present in Baspani area, heard the sound of gunshots around 1700 hrs (5 pm) and 1830 hrs (6:30 pm) of 2066/11/26 (10 March 2010) from Puran Khola area and Basaha area, respectively. When the patrol headed towards the likely location from where the sound of gunshots had come at around 2030 hrs (8:30 pm) of 2066/11/26 (10 March 2010), they came across an armed group of 5/6 people. When a warning was given to lay down their weapons, the group opened fire on the patrol and when a second warning from the patrol was negelected, the patrol was forced to open fire in self-defence. When the patrol saw people fleeing from the scene and heard people crying out in pain, the fire was stopped. When the patrol went to search the area after the firing was stopped, they were attacked by a hunting dog which the poachers had brought along with them. The patrol was forced to shoot the dog to defend themselves and to carry on with the search. The patrol found the bodies of two females along with a wounded woman. The patrol also found a man and apprehended him for investigation.The wounded woman was immediately given first aid, but she died before she could be evacuated. The following day, an investigating team, comprising of officials from the Bardia National Park and Nepal Police personnel; found a shelter near the place of the incident which appeared to have been built atleast a week ago.The investigating team also found 3 muskets, ammunitions and logistic supplies in the shelter. The place where the incident took place is approximately 30 km northeast of the Office of Bardia National Park in Thakurdwar. The nearest villages from the place of incident are Kapseri Village, Ward No. 2 and Telpani Village, Ward No. 8 of Hariharpur VDC, Surkhet District. Both the villages are approximately three hours walking distance away from the place of incident. The shelter, the muskets and the logistic supplies recovered indicate that the poachers in the area had been coming there along with their family and using such shelters while poaching in the national park in the past as well. Similarly, from the time of the incident it can be seen that the people whom the patrol encountered cannot be villagers who had come there to collect firewood, as villagers who come to collect firewood only come during the day time. The time of the incident clearly indicates that the people encountered by the patrol on that day were poachers and the three women were killed in a firefight.
(1) The recovery of muskets, ammunition and logistic supplies has been mentioned in the press release of 2066/11/28 (12 March 2010) by the Office of Bardia National Park and also in the official crime scene documentation of the incident (conducted by Nepal Police) that supports the press release.
(2) Allegations were made that the three women killed in the incident were raped by the members of the patrol before they were murdered. The relatives of the deceased also refused to claim the bodies after the completion of post mortem by the local doctors. Only after the commencement of the second post mortem by Forensic Expert Dr. Harihar Basti, the relatives agreed to claim the bodies of the deceased.
(3) In Dr Harihar Basti's autopsy report it is mentioned that the persons killed in the incident died from bullet wounds and the bullets seem to have been fired from a distance. The vaginal swab of the victims have also been sent for scientific examination; however, on the basis of the evidence available, the National Human Rights Commission has concluded that it is not evident that the deceased women had been raped and has made the following recommendations.
(a) It is seen that although there was a possibility of apprehending the two women (Devisara B.K. and Amrita B.K.) and the girl (Chadrakala B.K.) killed in the incident, the patrol opened fire and thus seem to have made excessive use of force. The persons responsible, including the patrol commander and other members of the patrol, should be identified and have to be put on trial in front of a regular criminal court. In the same way, any person found responsible for destroying the evidence should be identified and punished according to the law.
(b) The lawful next to kin of the deceased women and girl should be given rupees 300,000/- (three hundred thousand rupees) as compensation.
(c) The children of the deceased should be provided free education by the Government of Nepal.
(d) The deceased seem to have ventured inside the national park to collect edible roots and barks of trees because of their weak economic conditions. Therefore, the government must liase with the related departments and run appropriate programmes to develop the economic and social conditions of local population in the area.
(e) To prevent the repetition of such incidents, all the personnel actively working in the premesis of the National Park should be given training on the protection of human rights.
(4) Pannel of Parliamentary Committee for Women, Children and Social Development has also made some recommendations regarding the topic.
(5) Regarding the above recommendations, the Nepalese Army personnel, deployed in the national park, have already been instructed by concerned Directorate to continuously conduct various informative programmes to make the local population, around the national park area, aware about the fact that according to the law it is a crime to venture into restricted areas of the national park. In terms of education on human rights, the officers of the battalion have been getting knowledge about human rights in various trainings and they in turn, have been educating the rest of the battalion about it. Plans to conduct additional training on human rights from central level in the future have already been made. To perform the last rites of the deceased, Rs. 25,000.00 (twenty five thousand rupees) has been granted by the Government to the next of kin of the deceased.
(7) The high demand of the horn of a one-horned rhino in the international market has made the animal, already on the verge of extinction, a main target for the poachers. It is assumed by the concerned government authorities that among the eighty one-horned rhinos brought in from other parks and wildlife reserves into the
(8) In the investigation report prepared by the National Human Rights Commission, it is mentioned that during the seven hours journey on foot from Amreni to Baspani, shelters and stoves used for cooking and drying meat were found in 4/5 places. From this report, it is evident that the area had been highly affected by illegal poaching and there were a numerous number of poachers operating in that area. Based on the information that poachers had crossed over to Baspani area from Surkhet District, a patrol team comprising of one informer, three game scouts and 15 Nepalese Army Personnel, was sent out on 2066/11/25 (9 March 2010) towards Baspani area. On that pitch dark night of 2066/11/26 (
(9) It has been found that only thirteen rounds of ammunition had been expended in the incident. According to the crime scene documentation of the incident, it is seen that Devisara B.K. was hit by a single round, Chandrakala B.K. was hit by two rounds, Amrita B.K. was hit by a single round and the hunting dog was hit by a single round. Although there were 15 men armed with M-16 assault rifles that can be fired in either in single shot mode or in three round burst mode in the patrol, only 13 rounds seem to have been fired in the incident. Therefore, it doesn't seem appropriate to claim that excessive use of force had been made by the patrol. The patrol had given first aid to the wounded woman after the patrol found her. This proves that the patrol did not open fire extrajudiciously but did it in a disciplined manner. The minimum use of force has, therefore, been used.
(10) Cases in the past where security personnels have also been killed by poachers and wild animals, the growing illegal poaching of protected animals, information about poachers being present in the area at that time and the situation where people were present illegally in the the remote part of the restricted area at the time of darkness provide ample grounds to conclude that the people encountered by the patrol on that day were not innocent civilians but poachers. The army personnel involved in the incident were, therefore, just performing their duty in good faith at that time, in accordance with and subject to the provisions as contained in Section 22 of the Military Act, 2063 (2007).
(11) The report on the same case made by the investigating committee, formed vide the decision of the Government of Nepal (Council of Ministers) and headed by Deputy Attorney General Saroj Prasad Gautam of the Office of Attorney General, has already been submitted to the Government of Nepal.
54. Sudhir Pandey, also known as Dharma Das and Babad Das, was the District In-Charge of Terai Jantantrik Mukti Morcha (Jwala Singh). He had abducted Laldev Ray, Chief of Mohottari Land Revenue Office on
55. (Unidentified). Following the information that an Indian Criminal group associated with Munna Yadav is in Adarsanagar area of Parsa District with the intention of bombing, on