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INDIA: Woman brutally tortured and raped by police while in custody in West Bengal

February 9, 2012

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-020-2012

9 February 2012
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INDIA: Woman brutally tortured and raped by police while in custody in West Bengal

ISSUES: Torture; custodial rape; violence against women; impunity; rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from MASUM concerning yet another case of brutal custodial rape at the Hariharpara police station at Murshidabad District in West Bengal, India on 29 and 30 November 2011. In this case, too, it is alleged that the police officers have tortured a poor village woman. The officers threatened the victim who suffered serious injuries, to keep silent. The identity of the victim is not being disclosed by the AHRC in consideration of her right to social dignity and to prevent any potential social stigmatization. We urge your prompt intervention in this case so that the Indian authorities can identify the individual police officers, who allegedly raped the woman, and prosecute them immediately without any impunity.

CASE NARRATIVE:

The incident happened between 29 and 30 November, 2011. At about 12 midnight a group of police officers from the Hariharapara Police Station entered the victim's house illegally. The victim says that they were verbally abusive, physically assaulted her and destroyed many household articles. They then dragged her to a police vehicle in which they continued to beat her. She was then taken to the police station where they raped her.

On 30 November 2011 at about 10.30pm the victim was taken into the Hariharapara Block Primary health centre but the Officer-in-Charge of the police station threatened the victim to keep silent. She was told to make a false statement in order to save the policemen from any trouble. Then later, at around 11.30pm she was taken back to her house.

As her condition worsened as a result of the brutal torture and rape she was admitted to the Baharampur New General hospital on 2 December 2011. On 5 December 2011, she made a complaint to the Superindent of Police and the District Magistrate, Murshidabad about the torture and rape by the policemen. Even though the complaint was duly accepted she was not sent to the government hospitals for a medical examination in time and from the given information provided, MASUM and the AHRC is of the opinion that the governmental bodies in the above mentioned district are trying to protect their fellow policemen. It is also reported that the victim was tortured because the police officers were not able to catch her husband who is implicated as an accused in a bailable offence.

ADDITIONAL INFORMATION:

The police officers have violated the basic rights of a poor village woman, whom the police are legally obliged to protect. Torture of women in custody including rape is reported regularly in India.

Rape is the fastest growing crime in the country and India stands third, leaving behind countries like Sri Lanka, Jordan and Argentina, when it comes to the cases of rape, according to the latest data of the Union Home Ministry suggest. Ahead of India is only the United States and South Africa where custodial rape remains one of the worst forms of torture perpetrated on women by the law enforcement personal. The National Human Rights Commission India has reported 39 cases between the years 2005-2010. In fact, the actual number of cases is much higher than the reported statistics.

Section 46(4) of the code of criminal procedure mandates: save in exceptional circumstances no women shall be arrested after sunset and before sunrise and where such exceptional circumstances exist the women police officer shall by making a written report , obtain the prior permission of the judicial magistrate of the first class the offence is committed or the arrest is to be made.

Article 21of the Constitution of India mandates: No person shall be deprived of his life or personal liberty except according to procedure established by law.

The mandatory requirements prescribed in the code of criminal procedure for arrest and also guidelines made by the supreme court of India reported in D.K.Basu vs State of west Bengal 1997 All India Reporter Supreme Court 610 has not been complied with by the aforesaid police officers.

Section 450 of the Indian penal code 1860 mandates punishment for house trespass in order to commit offence punishable with imprisonment for life. Section 450 of the code prescribes by way of imprisonment for a term of not exceeding ten years and shall be liable to fine.

Section 326 of the Code mandates punishment by way of imprisonment for a term of ten years to a person who voluntarily causes hurt by dangerous weapons or means.

Section 366 of the code mandates punishment for kidnapping, or abducting or inducing women to compel her marriage etc. The Section mandates: whoever kidnaps a woman knowing that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either a description of a term, which may extend to ten years.

Section 376(2) (a) of the code mandates: Whoever being a police officer commits rape Section 376(2) (a) (i) of the code mandates: within the limit of the police station to which he is appointed or Section376 (2) (a) (ii) of the code mandates: in the premises of any station house whether or not situated in the police station to which he is appointed: or Section376 (2) (a) (iii) of the code mandates: on a woman in his custody or in the custody of a police officer subordinate to him: or Section376(2)(b) of the code mandates: being a public servant takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him Section 376(2) (g) of the code dealt with commits gang rape.

Anyone who commits any of the afore said offences shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.

Section 195A of the code mandates Threatening or inducing any person to give false evidence and it prescribes punishment for a term, which may extend to seven years.

Section 34 of the code mandates: acts done by several persons in furtherance of common intention that whenever several persons in furtherance of do a criminal act the common intention of the all each of such person is liable for that act in the same manner as if it were done by him alone.

The supreme court of India in Visveswaran vs State Represented by S.D.M. reported in 2003 All India Reporter 2471 confirmed the conviction of a police officer involved in a rape case.

The Committee on the Elimination of all forms of Discrimination against women stated in its general recommendation No.19 that gender based violence is a form of discrimination of all forms of discrimination against woman (CEDAW) requires its member parties to eliminate in all its forms. The declaration on the elimination of violence against woman (DEVAW) Article 2(c) makes clear that 'physical, sexual and psychological acts of violence perpetrated or condoned by the state wherever it occurs' also fall within the definition of the violence against woman .In order to take all measures to eliminate violence against woman states must 'refrain from engaging in violence against woman'. (Article 4(b)) and exercise due diligence to prevent, investigate and in accordance with the national legislation, punish acts of violence against woman, whether those acts are perpetrated by the state or by private person (Article4(c)).While India is a member nation of the Convention the state is having an obligation to make it sure that the recommendations are enforced, as not withered away by any governmental mechanism.

Had the police force in Bengal been operating in compliance with the Bengal police Act 2007 and its rules, such incidents would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in the force. Violence by the police against the poor village woman and other forms of corruption and crimes committed by the police force with impunity is a threat to the justice-oriented law enforcing system. Such a force is a threat to the entire country.

SUGGESTED ACTION:
Please write to the authorities listed below asking for their urgent intervention in this case. Please urge the authorities to conduct a credible investigation followed by prosecution of the alleged perpetrators. The victim must be protected from further harassment by the state-agents and be afforded adequate medical treatment and financial compensation for her sufferings.

The AHRC is also writing a separate letter to the UN Special Rapporteurs on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Violence Against Women calling for their interventions in this case.

To support this appeal, please click here:

SAMPLE LETTER:

Dear __________

INDIA: Investigate the case of custodial rape and torture by the Hariharpara police in Murshidabad of West Bengal

Name of victim: In order to prevent social victimization of the victims involved in sexual offences The AHRC takes the stand of non-disclosure of the Identity of the victim.
Names of alleged perpetrators: The inspector and other police officers on duty on 29 and 30 November Hariharpara police stations Murshidabad District West Bengal.
Date of incident: 29 and 30 November 2011
Place of incident: In the house of the victim and under the custody of the Hariharpara police of Murshidabad District in West Bengal

I am writing to express concern regarding yet another incident of torture and custodial rape reported by the West Bengal police within the Hariharpara Police Station, Murshidabad District West Bengal.

I am informed that the incident happened between 29 and 30 November, 2011. At about 12 midnight a group of police officers from the Hariharapara Police Station entered the victim's house illegally. The victim says that they were verbally abusive, physically assaulted her and destroyed many household articles. They then dragged her to a police vehicle in which they continued to beat her. She was then taken to the police station where they raped her.

On 30 November 2011 at about 10.30pm the victim was taken into the Hariharapara Block Primary health centre but the Officer-in-Charge of the police station threatened the victim to keep silent. She was told to make a false statement in order to save the policemen from any trouble. Then later, at around 11.30pm she was taken back to her house.

As her condition worsened as a result of the brutal torture and rape she was admitted to the Baharampur New General hospital on 2 December 2011. On 5 December 2011, she made a complaint to the Superindent of Police and the District Magistrate, Murshidabad about the torture and rape by the policemen. Even though the complaint was duly accepted she was not sent to the government hospitals for a medical examination in time and from the given information provided, MASUM and the AHRC is of the opinion that the governmental bodies in the above mentioned district are trying to protect their fellow policemen. It is also reported that the victim was tortured because the police officers were not able to catch her husband who is implicated as an accused in a bailable offence.

Rape is the fastest growing crime in the country and India stands third, leaving behind countries like Sri Lanka, Jordan and Argentina, when it comes to the cases of rape, according to the latest data of the Union Home Ministry suggest. Ahead of India is only the United States and South Africa where custodial rape remains one of the worst forms of torture perpetrated on women by the law

The police officers have violated the basic rights of a poor village woman, whom the police are legally obliged to protect. Torture of women in custody including rape is reported regularly in India.

Rape is the fastest growing crime in country India stands third, leaving behind countries like Sri Lanka, Jordan and Argentina, when it comes to the cases of rape, the latest data of the Union Home Ministry suggest. Ahead of India only United States and South Africa custodial rape remains one of the worst forms of torture perpetrated on women by the law enforcement personal. National Human Rights Commission India has reported 39 cases between the years 2005-2010. In fact, the actual number of cases is much higher than the reported statistics.

Section 46(4) of the code of criminal procedure mandates: save in exceptional circumstances no women shall be arrested after sunset and before sunrise and where such exceptional circumstances exist the women police officer shall by making a written report, obtain the prior permission of the judicial magistrate of the first class the offence is committed or the arrest is to be made.
Article 21of the Constitution of India mandates: No person shall be deprived of his life or personal liberty except according to procedure established by law.

The mandatory requirements prescribed in the code of criminal procedure for arrest and also guidelines made by the supreme court of India reported in D.K.Basu vs State of west Bengal 1997All India Reporter Supreme Court 610 has not been complied by the aforesaid police officers.

Section 450 of the Indian penal code 1860 mandates punishment for house trespass in order to commit offence punishable with imprisonment for life. Section 450 of the code prescribes by way of imprisonment for a term of not exceeding ten years and shall be liable to fine.

Section 326 of the Code mandates punishment by way of imprisonment for a term of ten years to a person who voluntarily causes hurt by dangerous weapons or means.

Section 366 of the code mandates punishment for kidnapping, or abducting or inducing women to compel her marriage etc. The Section mandates: whoever kidnaps a woman knowing that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either a description of a term, which may extend to ten years.

Section 376(2) (a) of the code mandates: Whoever being a police officer commits rape Section 376(2) (a) (i) of the code mandates: within the limit of the police station to which he is appointed or Section376 (2) (a) (ii) of the code mandates: in the premises of any station house whether or not situated in the police station to which he is appointed: or Section376 (2) (a) (iii) of the code mandates: on a woman in his custody or in the custody of a police officer subordinate to him: or Section376(2)(b) of the code mandates: being a public servant takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him Section 376(2) (g) of the code dealt with commits gang rape.

Anyone who commits any of the afore said offences shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.

Section 195A of the code mandates Threatening or inducing any person to give false evidence and it prescribes punishment for a term, which may extend to seven years.

Section 34 of the code mandates: acts done by several persons in furtherance of common intention that whenever several persons in furtherance of do a criminal act the common intention of the all each of such person is liable for that act in the same manner as if it were done by him alone.

The supreme court of India in Visveswaran vs State Represented by S.D.M. reported in 2003 All India Reporter 2471 confirmed the conviction of a police officer involved in a rape case.

The Committee on the Elimination of all forms of Discrimination against women stated in its general recommendation No.19 that gender based violence is a form of discrimination of all forms of discrimination against woman (CEDAW) requires its member parties to eliminate in all its forms. The declaration on the elimination of violence against woman (DEVAW) Article 2(c) makes clear that 'physical, sexual and psychological acts of violence perpetrated or condoned by the state wherever it occurs' also fall within the definition of the violence against woman .In order to take all measures to eliminate violence against woman states must 'refrain from engaging in violence against woman'. (Article 4(b)) and exercise due diligence to prevent, investigate and in accordance with the national legislation, punish acts of violence against woman, whether those acts are perpetrated by the state or by private person (Article4(c)).While India is a member nation of the Convention the state is having an obligation to make it sure that the recommendations are enforced, as not withered away by any governmental mechanism.

Had the police force in Bengal been operating in compliance with the Bengal police Act 2007 and its rules, such incidents would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in the force. Violence by the police against the poor village woman and other forms of corruption and crimes committed by the police force with impunity is a threat to the justice-oriented law enforcing system. Such a force is a threat to the entire country.

I therefore request you:

1. That the complaints of torture and custodial rape in this case be investigated by an independent agency:
2. That the statements of the Victim recorded immediately by a judicial officer:
3. The alleged officers placed on immediate suspension:
4. The victim should be produced before appropriate medical officer for treatment and to give evidence regarding rape and all sorts of torture:
5. The victim and the witnesses shall be provided adequate protection immediately:
6The victim shall be allowed to be represented in such proceedings by a lawyer of her choice:
7. The entire investigation supervised by a judicial officer and the victim or a member of their family is informed about the progress of the investigation:
7. The government pay an interim compensation to the victim pending the final disposal of their complaints by a court of law:

Yours sincerely,

----------------
PLEASE SEND YOUR LETTERS TO:

1. Director General & Inspector General of Police
Government of West Bengal
Writers Buildings, Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 4498 / 2214 5486
Email: dgp_westbengal@gmail.com

2. Chief Secretary
Government of West Bengal
Writers' Building, Kolkata
West Bengal
INDIA
Fax: + 91 33 22144328
Email: chiefsec@wb.gov.in

3. Additional Chief Secretary (Home)
Government of West Bengal
Writers' Building, Kolkata
West Bengal
INDIA
Email: sechome@wb.gov.in

4. Ms. Mamata Banerjee
Chief Minister
Government of West Bengal
Writers' Building, Kolkata
West Bengal
INDIA
Fax: + 91 33 22144328
Email: cm_wb@nic.in

5. Mr. P. Chidambaram
Home Minister
Government of India
Ministry of Home Affairs
North Block, New Delhi 110003
INDIA
Fax: + 91 11 23093750 / 23092763
Email: hm@nic.in

6. Chairperson
National Human Rights Commission
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax: + 91 11 2338 4863
E-mail: chairnhrc@nic.in

Thank you


Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-020-2012
Countries :
Issues :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.