INDIA: CBI verdict in Udayakumar case finds police guilty 13 years after custodial death

On 25 June 2018, a CBI Special Court in Thiruvananthapuram awarded the death penalty to two police officers accused of murder in a custodial death case for the first time, while another three accused are facing three years in jail. The case is infamously known as the ‘Urutti Kola’ case due to the torture technique used; the rolling of a heavy rod on the victim’s body, which ultimately resulted in his death.

In September, 2005, two workers in a Kochi scrapyard were taken into custody by police on the ground of theft. The victim, Udayakumara, was taken into police custody in September 2005 together with Suresh Kumar, because the police believed that the Rs. 4020 found in their pocket was not theirs, but stolen. At the police station, during the questioning process, Udayakumar was subjected to extreme torture. According to the Central Bureau of Investigation, Udayakumar was made to lie on his back, spread-eagled on a wooden bench. The soles of his feet were beaten with a stick, and then the police officers rolled a heavy, hollow iron rod down his thighs in order to extract a confession from him. After torturing him continuously, when the police officers finally took him to the hospital, he was declared dead.

The incident resulted in massive protests across the state, which led the police to attempt a cover up by manipulating records and fabricating cases against the two workers. Due to shoddy investigation by police officials and having a witness turn hostile, the case was handed over to the Central Bureau of Investigation through a 2008 judgement by the Kerala High Court. The postmortem report confirmed torture, with more than 20 injuries on the thighs.

Of the accused charged with murder, two of them (K Jithakumar and S V Sreekumar) are currently in the position of sub-inspector and senior civil police officer, respectively. The third, after retiring from the police force, died on 10 March 2018. Three more police personnel were charged with conspiracy and awarded jail sentences for three years. Two of them are retired from the police force, and the other, SP Ajithkumar, is a current deputy superintendent with the state crime branch.

Judge J Nazar of the CBI Special Court in Thiruvananthapuram held that the “brutal and dastardly murder” is in the category of “the rarest of the rare cases” and just life imprisonment would be inadequate. This is keeping in consonance with the ‘rarest of rare’ doctrine for awarding death penalty as laid down in the Bachan Singh v State of India case. The court further ruled that, “The acts of the accused persons would definitely adversely affect the very institution of the police department… If the faith of the people in the institution is lost, that will affect the public order and law and order of the society and it is a dangerous situation.” According to recent news reports, the Kerala High Court has suspended the three-year imprisonment awarded to the three police officers accused of tampering with evidence.

Custodial deaths have not been uncommon in India, and especially Kerala, with the most infamous case being that of P. Rajan (TV. Eachara Warrier v. Secretary to the Ministry of Home Affairs 1978 CriLJ 86 ). In this case, during the Emergency period in India in 1976, an engineering student was taken into custody by the police in Calicut and subsequently went missing. Rajan’s father, Eachara Warrier could do nothing but wait till the emergency was lifted to take legal recourse. On filing of a habeas corpus writ petition, it was later understood that he had died in unlawful police custody, with his body never being found.

The Urutti Kola case of Udayakumar, amongst several others, shows just how dangerous admittance of custodial confessions could be. Even with the guidelines to prevent custodial abuse laid out in the DK Basu vs West Bengal case of 1997, the fear of in-custody violence still looms large. In the long years of struggle by Udayakumar’s mother, Padmavathi Amma, custodial violence has continued in India.

The Asian Human Rights Commission (AHRC) was one of the first organisations, along with our local partner, Nervazhi Human Rights Protection Council in Thrissur, to issue an urgent appeal in the Udayakumar case. While the AHRC does not support the death penalty in any form, and seeks commutation of this sentence to life imprisonment, the CBI Court’s judgment is welcome as a testament to the rule of law and the grit and determination of Udayakumar’s mother, who has fought tirelessly against the system for many years. It is rare for justice in any form to be served in cases of custodial violence and police torture, and the very fact that the CBI Court found police officers guilty is a positive development, a victory for anti-torture activists in the state of Kerala and across India. It is hoped that other cases of torture and custodial deaths that have engulfed Kerala will be quickly adjudicated upon.