Responses and Comments of the Government of Nepal to and on the Draft OHCHR Report about Extra-Judicial Killings in the Terai

Responses and Comments of the Government of Nepal to and on the Draft OHCHR
Report about Investigating Allegations of Extra-Judicial Killings in the Terai-Nepal
Summary of Concerns

(July 2010)

 

1.         The Government of Nepal (the "GON") has received for comments a draft OHCHR report about allegations of extra-judicial killings (the "Report"), vide the OHCHR's letter addressed to the Joint Secretary at the Ministry of Foreign Affairs. The GON appreciates the OHCHR's initiative to attempt at highlighting the issue of extra-judicial killing, which is in itself a serious violation of the right to life. The GON is also appreciative of the activities being carried out by the OHCHR Nepal in the filed of human rights, which has been supportive to the GON in further streamlining its policy, legal and institutional measures towards better protection and promotion of human rights and fundamental freedoms on the ground. Since the establishment of the OHCHR in Nepal, the GON has extended its cooperation and support to the OHCHR Nepal in its activities. At this juncture, the GON would like to reiterate that it will continue such cooperation and support in the future. 

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. Nepal has also joined the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of death penalty. It is mention worthy that Nepal is only the country in the South Asia that has joined this Protocol. In view of this fact, the extra-judicial killing is per se illegal and intolerable in any form. In the field of protection and promotion of human rights, Nepal has also developed effective national human rights institutions including the National Human Rights Commission (NHRC). The NHRC has, in exercise of its wider mandate, conducted a range of inquiries and investigations into alleged violations of human rights including those as mentioned in the OHCHR's report. The GON has received a range of recommendations from the OHCHR, and has made sincere efforts to carry out them.

3.         Moreover, in spite of poverty and underdevelopment, Nepal has made various achievements in the field of protection and promotion of human rights. Being a party to a great number of international human rights treaties, and as an active member of the United Nations, Nepal has adopted the right-based approach in its development plans and pursued specific policies on human rights. It is also committed to make necessary legal reforms, particularly in criminal justice system. The civil and criminal codes and procedure codes are being drafted. Such legal reform is obviously a gradual process. The GON is seriously concerned about peace and security, in the absence of which no human being can live with dignity and worth. In view of this fact and severe and rampant killings of innocent people by non-state actors in recent days, the GON has enforced the Special Security Program, 2009. Consequently, security situation is being gradually improved. Moreover, dissemination of human rights knowledge and orientation to the security forces are being undertaken in an institutional fashion. The GON believes that the OHCHR Nepal is well aware about these facts. Amid this, the GON is seriously concerned about the contents and contours of the draft Report, which do not seem to be founded on reality. The Report seems to ignore, or give no importance to, achievements and positive developments. The Report seems to be based on some 57 allegations. However, these allegations are not per se instances of extra-judicial killings, and the presentation of which in the Report is far from the truth. It is felt that even diplomatic norms have been ignored in making statements in the Report.  

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 Nepal is in a transitional phase and difficult situation. Armed groups are proliferating in the Terai, eastern hills and even other parts of the country. By stating this, we are not, however, trying to justify any criminal activities if they have taken place. Despite weaknesses, which can, of course, be addressed gradually, it is not and should not be acceptable that the entire state system be undermined and brought under blanket criticism. In addition, the Report mentions that the summary of concerns was developed in consultation with, and formal comments were received, from the Nepal Police and the Armed Police. But these institutions have denied this. It is mention worthy that the Ministry of Foreign Affairs is the liaison institution in relation to the OHCHR, as clearly mentioned in Article 20 of the Agreement between the GON and the OHCHR. When the OHCHR was seeking such comments from such government institutions individually, it was obviously acting outside its mandate and ignoring the Article 20 provision.

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 Nepal, like those of other countries, strongly outlaw extra-judicial killings. Any official acting beyond his or her jurisdiction in contravention of law, and not in good faith, is personally liable. The Report seems to give an impression that extra-judicial killing is systemic in Nepal. The GON is seriously concerned about this, and intends to make a note that this is highly objectionable to it.

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 Nepal. Even though strict and harsh measures are required to prevent and deter such mafias, the Nepal Army, considering the basic norms and values of international human rights standards such as the use of fire arms for law enforcing officers, has opted for less harsh methods. This can be more emphasized by the fact that there have been more cases of arrests by the Nepal Army deployed in national parks and wildlife reserves than cases of killing. Data show during the fiscal year 2009/2010 (one year period) 411 persons were arrested by the Nepal Army and handed over to the authorities of the Chitwan Wildlife Reserve. While performing their duty of guarding national parks and wildlife reserves, seven Nepal Army personnel have lost their lives and dozens have been gravely injured.

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.

Annex

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 7/2/2008 in the evening, a joint police patrol team from Zonal Police Office, Sagarmatha and District Police Office, Saptari was attacked by an armed group at Belhichapena-9. Raj Kumar Mandal and Chandeshwor Sada died in the ensuing counter-attack by the police. Police recovered one locally made pistol, four live cartridges and one empty cartridge case from the scene of incident. The dead were identified as members of Jantantrik Terai Mukti Morcha (Jwala Singh). The case has been registered and is under investigation.

6-12.     On 08/04/2008 at about 19:00 hrs police received information about confrontation between the members of Nepali Congress and Maoists at Dang Satbariya-5. A police team immediately responded to the incident and gathered information that there was a shooting. In the meantime, Ex. Home Minister and Candidate of Nepali Congress, Khum Bahadur Khadka was returning to his house in Satbariya via Lamahi. He was informed about the situation and he decided to retreat. But on his way back to Lamahi his vehicle came under attack near the office of Village Development Committee. To take control over the situation and protect the principal and other entourage members, security personnel deployed in his security opened fire. Seven people died and 15 were injured in the incident. The bodies of the deceased were handed over to Dhirendra Sepali, a member of Maoist State Committee.

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 29/08/2009 at around 19:15 Ex. Police Constable Ramprit Sahani was attacked by a group of Terai Army at Birta Bazar of Rautahat. Police arrested Mahendra Sahani, with one hand made pistol and 17 bullets in the incident and he was under detention. As informed by Mahendra Sahani, other criminals had been hiding themselves in the house of Mr. John at Raghunathpur. A joint police team headed towards Raghunathpur for cordon and search operation. While on cordon and search around 3:30hrs, some of the people tried to escape from the village. Police asked them to surrender but suddenly they fired on police. In counter-attack, two persons were killed. Later on, one of them was identified as Mr. John also known as Kaushal Sahani, Central Commander of Terai Army and the other as Mahant Sahani, bodyguard of Mr. John. Police found one US made 9mm pistol, bullets, one locally modified pistol from the incident site. After necessary documentation and post mortem, the bodies were handed over to their relatives. A case of accidental death is under investigation.

16.        On 20/08/2008 Nepal Police received information that an armed group had been terrorizing the people in the responsibility area of temporary police post Gandak Bara. A police team was immediately deployed in the area. While patrolling in the area, police found Nagendra Yadav also known as Battu who also had been allegedly involved in the attempted murder of Lukesh Singh. While police tried to approach him, he ran away and entered into a cattle house at Prastoka VDC-6, Bara and fired on police team. In counter-attack, he was killed in the incident. Police found one locally modified pistol with three rounds loaded in it, three empty bullets, mobile etc. Dharmendra Yadav, Harinarayan Manadal and Ramesh Mandal of Buniyad VDC-9 were the eye witnesses of the incident. A case of accidental death is under investigation.

17.        Sone Lal Yadav was under pre-trial detention in Siraha Jail on drug case by the order of the District Court, Siraha. On 13/8/2008, as police personnel entered the main gate of the Jail to conduct head-count, prisoner forcefully tried to escape from the jail. Sonelal Yadav was killed while the Sentry at the main gate opened fire to prevent the prisoners from escaping from the jail. His dead body was received by his brother Pannalal Yadav. The case has been registered as circumstantial death and is under investigation.

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.

19.        On 25/09/2008 at around 21:30hrs there was a cross fire between criminal gang and police. Next day at 17:00 hrs local people informed police that there was a dead body in the jungle (incident site). The body was identified as of Khaheru Dewan, Area In-Charge of Terai Jantantrik Mukti Morcha (Jwala Singh) and In-Charge of Terai Muslim Mukti Morcha Bhojpura Rajya Bara, Parsa and Rautahat. After necessary documentation, his body was handed over to his wife Hakima Dewan. A case of accidental death is under investigation.

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 20/12/2008 at around 23:45 hrs a team of police had set-up check point at Bharampura Road of Janakpur Municipality-7 when four armed men suddenly attacked the police team. When police retaliated, Manoj Kumar Yadav and Suresh Kumar Yadav sustained serious injuries and died on the way to Janakpur Hospital. Police recovered two locally made pistols, six empty cartridge cases, one misfired cartridge and two live cartridges from the scene of crime. The dead bodies were handed over to their next of kin after completing the necessary documentation and post-mortem. A case of circumstantial death has been registered and is under investigation.

24.        On 5/12/2008, a joint police team was mobilized on a search operation at Bhagwatpur-2 of Saptari District based on the information that an armed group of 10 to15 people were hiding in the area. During the search operation, the armed group suddenly fired at police. Police immediately retaliated and Bechan Yadav alias DSP died in the exchange of gunfire. Police recovered one hand-made pistol and five cartridges from the scene. The deceased was identified as the member of Madhesi Maukti Morcha Tigers. His body was handed over to his relative. Case has been registered and is under investigation.

25 & 26. On 28/12/2008, when Police Constable named Santosh Kumar Yadav, a member of police team mobilized in plain clothes, arrived Bhvangamakatti-4 on a motorbike, three armed men attacked him. The Police Constable retaliated and as a result   Kameshwor Mukhiya was seriously injured and taken to Dharan Ghopa Hospital. He died while undergoing treatment in the hospital. Police recovered one U.S. made pistol and three three rounds of ammunition from him. He was identified as the member of an underground armed group. His body was handed over to his uncle Bisun Mukhiya. The case has been registered and is under investigation.

27.        On 19/12/2008, at around 19:00 hrs, while Police Patrol of Nepal Police was on its way to Panwari, Chandayodhapur VDC-8, Siraha District, an unknown armed group suddenly fired at police patrol. In response, the police also opened fire. In the exchange of fire, Indal Kumar Mahato was injured and later succumbed to the injury en route to the hospital. His father Ram Ashish Mahato identified the dead body as of his son and received it. Police recovered one Chinese pistol, one magazine, five live bullets and two empty bullets from the scene of incident.

28.        On 8/2/2009, acting on information that an armed group was at the house of Khusilal Yadav at Kamalpur-4 Saptari, an armed police team from Armed Police Force Dantakali and Security Base Camp Fattepur cordoned the house of Khusilal Yadav. Lalan Kumar Yadav (Bikrant), District In-Charge of Jantantrik Terai Mukti Morcha, opened fire on the police team and tried to breach the cordon. He died in counter-attack by the police team. Police recovered one hand-made pistol and one Khukuri from him. After necessary documentation and post-mortem, his body was handed over to his brother in law Sanjaya Kumar Yadav. The case has been registered and is under investigation.

29 & 30. On 19/5/2009 at approx. 19:55, Ram Bilash Shah of Kanakpatti VDC-4, Dhanusha District, was abducted by an unidentified group. On 24/5/2009 at 10:30 while police team was pursuing the kidnappers, they suddenly fired upon police at Janakpur Municipality-13. Police retaliated and fired at them. Udgar Mandal and Santosh Shah alias Ghuran Shah (members of the kidnapping group) were seriously injured in the exchange of fire and both collapsed while being transported to hospital. The police team was successful in releasing the abductee safely. Police recovered one Sixer pistol, two empty cartridge cases, two live cartridges, two home-made pistols, two live cartridges and two empty cartridges cases of the same pistol from the scene of incident. After on-the-spot documentation and post-mortem report the dead bodies were handed over to the guardians of the dead, and the case has been registered and is under investigation.

31.        On 28/6/2009 at 2130hrs an unidentified armed group suddenly fired on the police patrol team at Bhutahi Partewa-9 of Dhnusha District. Police retaliated against the attack. 4/5 persons ran away while Ajay Kumar Mandal of the same group sustained bullet injury. He died on the way to Janakpur Hospital. Following, on-the-spot documentation and post-mortem, his body was handed over to his father Syamnandan Mandal. Police recovered one loaded home-made pistol, one improvised 'Sutali' bomb, two letter pads of Madheshi Silence Killers, four plain letter pads, 2.303 cartridge from the scene of incident. A case of circumstantial death has been registered and the case is under investigation.

32.        On 7/6/2009 at around 1730 hrs police team had set-up a vehicle check point at Hariharpur VDC-7 of Dhanusha District. Surendra Mahato and Ajay Kumar Mahato arrived at the checkpoint riding on motorcycle with license plate No. Ja 3 Pa 4521. When police asked them to stop the vehicle, they stopped and started arguing with police. During the argument, Surendra Mahato suddenly grabbed the muzzle of the S.L.R. Rifle carried by Police Constable Ram Singh Bhat causing an accidental discharge from the rifle and killed him on the spot. The dead body was handed over to his relative after completing necessary documentation and post-mortem. A team was formed under the chair of Dy. S.P. Uma Prasad Chaturbedi in order to investigate into the incident. As recommended by the probe committee, the Police Constable was suspended and a Special District Police Court was established. The court fined the police constable with 11 months' salary equivalent to a sum of NRs. 82,280.00 

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.

34.        On 19/7/2009 at around 03:20 morning, a team of Nepal Police was camped at Hakpara VDC-2 of Siraha District. Two persons riding ON-TEST Platina Motorbike arrived at the location and suddenly fired upon the police team. Police immediately retaliated by firing at them; as a result, one of the riders got hit and died on the spot while the other person managed to escape. Later the dead person was identified as Ram Narayan Mahato. The body of the deceased was received by Dhyani Mahato (in-law of the deceased) and a case has been filed under circumstantial death. Police recovered one home-made pistol, one live .303 cartridge and three empty cases from the scene of incident.

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 13/8/2008. He was later arrested by Metropolitan Police on 19/7/2009 at Baneshwor Kathmandu. When he was being taken to Siraha District from Kathmandu, at the eastern bank of Kamala River in Badahara VDC-3, Siraha District, Yadav requested to go to toilet and tried to escape from there. Yadav tried to snatch a police weapon when police tried to control him physically. As a consequence, the police was compelled to fire at him and was seriously injured. He was immediately rushed to RAU Memorial Hospital. He died while undergoing treatment. His body was received by Pramod Yadav (brother in relation) and a case is under investigation under circumstantial death. 

36.        On 22/7/2009 at 4:00 hrs, Nepal Police Patrol team was heading towards Barsawatti village of Jankapur-7 where an unknown group of three to four armed men suddenly attacked the police team with firearms and improvised bombs. Police took cover and retaliated as a result of which Akash Tyagi alias Ram Yadav sustained serious injury and died while transporting to Janakpur Hospital. Police recovered two cartridges, a letter pad Terai Liberation Army, a book titled "Nepalio ke Khilaph Jang Ka Ailan" (War against Nepalese) from the dead. Also recovered from the scene were improvised bombs- one socket bomb and one sutali bomb- along with one sixer pistol, two cartridges and one empty cartridge case. After necessary documentation and post-mortem, his body was handed over to his relative. A case of circumstantial death has been registered and is under investigation.

37, 38 & 39.      On 24/9/2009, a police patrol team deployed from Area Police Station Kanchanpur was attacked by an unknown armed group at Koshi Tappu of Bairvab VDC-6. Police carried out a counter attack. In the scene, police discovered that one person was seriously injured and other two were dead. While taking the injured person to Sagarmatha Hospital he succumbed to the injury. Police also recovered firearms and ammunitions from the scene. The deceased were later identified as Humayu Yadav (Bhawani Singh), Likeho Mandal and Jitendra Yadav, and handed over to their respective relatives. Two police personnel were also injured in the incident. The case has been registered and is under investigation.

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 Pa. 8287 fired at the patrol team. In retaliatory police action, one of them (i.e. Ram Kumar Kapar) was seriously injured and died on the way to Janakpur Hospital, while the other two escaped. Police recovered one 9mm pistol, a magazine with three cartridges, one hand-made pistol, one .303 cartridge, four empty cartridge cases and four 9mm cartridges from the scene. After necessary documentation and post-mortem, the dead body was handed over to Janakpur Municipality as nobody approached the police to identify him despite announcements in the local newspapers and FM Radios. A case of circumstantial death has been registered and is under investigation.

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 (7 am) on 2066/08/12 (26 November 2009) from Amrite Outpost in the Chitwan Wildlife Reserve. Approximately six kilometers south of the outpost, in the Churefedi area situated at the base of Chure Hills, the patrol came across a group of people cutting trees. As the patrol tried to arrest them, they started fleeing towards the high grounds. When the patrol chased after them , they started throwing stones and started rolling down rocks at the patrol from the high grounds. The patrol warned the offenders that  it would open fire if they didn't stop. But when the offenders neglected the patrol's warning, the patrol was forced to open fire. As a result, a person, who was later identified as Raj Kumar Darai, died on the spot . All the legal procedures regarding the incident have been completed by the authorities of the Chitwan Wildlife Reserve and the Nepal Police. On 2066/08/16 (30 November 2009) the authorities of the  Chitwan Wildlife Reserve made a recommendation to give a reward of Rs. 10,000.00 (ten thousand rupees) as an incentive to the army personnel stationed at the Amrite Outpost.

43.        On 04/12/2009 a police patrol team was deployed from Police Station Swobarnapur. While the patrol team was at Madebpatti VDC-7, Asraf Mohammad, driver of the tractor which was carrying illegal drug marijuana, fired on police. In self-defense and counter attack, Asraf was seriously injured and died while being taken to Birgunj for treatment. Police confiscated 1070 kilograms of marijuana from the tractor with license plate no Na. 2 Ta. 9680. His body was handed over to his father Thakur Mahato Kewat. The case is under investigation in the District Police Office.

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 Narayani Sub-Regional Hospital for treatment. Later on, the deceased was identified as Hasmoddin Miya and his body was handed over to his father Lal Miya Dhobi.

45 & 46. On 22/02/2010 a police patrol team was attacked by armed group at Jigdawa Belbikhawa VDC-7 from the both side of the road at around 21:45hrs. There was exchange of fire from police and the armed group for about half an hour. Later on while searching the area, police found bodies of Jhaman Raya Yadav and Birendra Raya Yadav, Deputy Chairperson and Army Commander of Terai Jantantrik Mukti Morcha (Jwala Singh) and his bodyguard respectively. Police also found 2 Three Fifteen modified pistol, four empty bullets and two live bullets from the incident site. Father of Jhaman Ray Yadav and brother of Birendra Ray Yadav received the bodies and admitted that the deceased were involved in illegal armed activities against their will and were killed in security operation. A case of accidental death is under investigation.

47.        On 01/02/2010 at around 19:00 hrs, a police patrol team saw a motorbike at Bauratar VDC-5 Phulkaul of Parsa District. While Police Patrol team moved towards the motorbike, suddenly, there was firing from the side of motorbike. Police cordoned the area and asked to stop firing and surrender. However, the person kept on firing and went towards west. In self-defense and counter-attack, police also fired. Moving forward, after while, police found the motorbike with license plate no. Ga. 1 Pa. 707 on the road and about 50 meters west from the motorbike, a dead body, 1 locally modified pistol, 1 bullet, empty bullet. Later on the person dead was identified as Moti Ram Chamar also known as Kalicharan. He was army commander of underground armed group (Jwala Singh Group). His body was handed over to his father. According the incident report and voice of the locals he was killed in security operation, not in police custody. The case is under investigation in the District Police Office.

48.        On 07/02/2010 at around 16:45 police received information that a criminal group had bombed at Birgunj Ghantaghar and some people had been injured. Police immediately rushed to the incident site and cordoned the area. With the information that the criminals had headed towards Sarshiya River side of Shripur-16, police moved towards the area. During the search at around 22:00 hrs, suddenly, there was firing on police team. In self-defense and counter-attack one person (Guddu Yadav) was killed. Police found one locally modified gun, bullets and three socket bombs from the incident site. After the necessary documentation and as the deceased was unidentified, his body was handed over to the Office of Birgunj Sub-municipal Corporation. The case is under investigation in the District Police Office.

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 03/02/2010. Police found 1 locally modified pistol, 2 bullets of S.L.R. Rifle. A case of accidental death has been filed by the brother of Yadav and is under investigation. Nebal Kishor Yadav was In-Charge of area-5 of Dhanusha of Jantantrik Goit Faction and was an alleged criminal at large under the charge of abduction and murder of Jagdish Mahato of Umaprampur-7, Dhanusha.

50.        On 06/03/2010 at around 02:30 a police patrol team was suddenly attacked by armed group of 10/12 people at Pasaha River of Manharwa VDC-2 of Bara District. In self-defense and counter-attack, one person of age around 20/21 was killed. Police found 1 loaded locally modified gun, bullets, 1 socket bomb. Later on, the dead person was identified as Ram Babu Sahani and his body was handed over to his father Laxman Sahani. A case of accidental death is under investigation. The incident site and documentation was witnessed by Nandalal Chaudhari, Abhijan Miya Mansari, Kisun Saha, Jivan Neupane, Sitlal Tamang, Bijuli Saha and Sukdev Dahal. The allegation of the father of the deceased that his son was arrested by police near Gupta Oil Tank at Kalaiya while he was going to Birgunj by bus with the license plate No. 5359 and killed was falsified as the driver Mojahar Ansari and the conductor Kapil Dev Shah of the same bus told in their written statements that Ram Babu Sahani had not traveled by the bus that day. Based on the case file, the Office of Attorney decided not to file the case against any particular person.

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.

(6)        The  Bardia National Park and Wildlife Reserve is extended over an area of  968 square kilometers. There is only a battalion of the Nepalese Army deployed in the national park. Therefore, the most challenging responsibility that the battalion  faces is providing security.

(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 Bardia National Park, only twenty two are now left. Available data show in the fiscal year 2009/10 (a period of one year), eleven one-horned rhinos have fallen prey to  poachers.

(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 (10 March 2010), while the patrol was still out, sound of gunshots was heard and the patrol team reached the place of the incident at around 2030 hrs (8:30 pm) of that night to investigate the sound.

(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 08/02/2010 and after taking ransom released him after four days. He had been threatening the secretaries of the Village Development Committees and others for either money or to be killed. He had also admitted about his demand and threat through a local F.M. Radio (Bappan Mithila Radio). Police found a receipt of Rs. 50,000/- in the name of Rambriksha Shah, the then Chief of District Education Office, Mohottari from his pocket during the inspection of the dead body. The information indicated that Sudhir Pandey was Killed by his own party member (commander of the armed group) Nur Alam (Badal) for misguiding and mishandling the extorted money. His father and mother have also suspected that Badal was involved in killing. Badal was also killed in a police encounter. A case of murder is under investigation.

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 18/05/2009 a police team was following suspected 3 persons. While the police team reached at Bhediyani at around 21:00 hrs following the persons, suddenly those persons fired on police team. In self-defense and counter-attack a person of age about 25/26 was seriously injured and taken to the hospital for treatment. Police found one loaded locally modified gun, bullets and one socket bomb in the incident site. The person died in the hospital while under treatment. After the necessary documentation and as the deceased was unidentified, his body was handed over to the Office of Birgunj Sub-municipal Corporation.

56.        On 13/06/2010 at around 19:45hrs a police team was at checkpoint near the Telecom office at Janakpur Municipality-10. While in checking, Abdesh Kumar Mandal suddenly fired on police and was seriously injured in counter-attack by police. He was taken to Janakpur Hospital and referred to Dharan Hospital. He died while being taken to Dharan Hospital. Police obtained 1 9mm pistol and 5 bullets from the incident site. He was Platoon Commander of Jantantrik Rajan Mukti Samuha and an alleged criminal at large under the charge of murder of Shiv Narayan Bhandari on 2067/02/29. A case of accidental death is under investigation.

57.        On 14/06/2010 at around 21:00 hrs a police patrol team was attacked by a criminal gang at Basahi River of Naktajhijh-3 of Dhanusha District. In counter-attack, Mohammad Badal, a resident of Sitamadi, India was seriously injured and taken to Janakpur Hospital for treatment. He died in the hospital while under treatment. Police obtained 1 locally made pistol, 1 bullet and 1 sutali bomb from the incident site. He was District In-Charge of Jantantrik Jwalasingh Group, and was alleged criminal at large under the charge of murder of Sudhir Pandey. The case is under investigation in the District Police Office.

 

THE END

(Source: MPO)