Rights

UP Police Affidavit on Vikas Dubey Encounter Puts Supreme Court Between Rock and Hard Place

If the bench refuses to accept this shoddy story, the DGP runs the risks of being jailed for perjury. But if the court fails to pick apart the police account, the Indian legal system will become a laughing stock around the world.

New Delhi: In an interview to The Wire, Justice Deepak Gupta – who retired as a judge of the Supreme Court in May this year – had this to say about the killing of the gangster Vikas Dubey by the Uttar Pradesh police: “indications are that this was not an encounter, he did not run away, he was killed… But police made up such a shoddy story, it seems they don’t even give a damn whether people think that we killed him or not.”

The “shoddy story” Justice Gupta was referring to was the sequence of events the police fed to the media: that the vehicle in which Dubey was travelling overturned when its driver swerved to avoid a herd of cattle crossing the road and that the gangster was able to snatch the revolver of one of the policemen in the vehicle with him and escape. The police chased him and in the ensuing shootout, Dubey was fatally injured and brought dead to a Kanpur hospital.

The UP police has now repeated this same story in the form of an affidavit signed by DGP H.C. Awasthy, submitted in response to a PIL alleging the encounter in which Dubey was killed was fake.

In submitting an affidavit in the name of the DGP, the Adityanath government has raised the stakes for all concerned: If the bench refuses to accept the police’s “shoddy story”, the senior officer runs the risks of being jailed for perjury. But if the apex court goes along with the police version, it will become a laughing stock around the world for accepting such outlandish fiction.

What makes this fiction even more improbable is the fact that Dubey’s custodial killing was widely anticipated. This journalist, like many others, tweeted his apprehension on the day of Dubey’s surrender in Ujjain and a PIL was filed in the Supreme Court that day expressing precisely this fear. For all of those who successfully predicted Dubey’s killing at the hands of the police, DGP Awasthy’s affidavit makes a sweeping indictment: “This seems to be arising more from [the] fertile imagination of advisors and defenders of criminals than reality.”

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The UP police affidavit attempts to offer an explanation for three suspicious events. The first pertains to its controversial demolition of Dubey’s house in Bikru, Kanpur. The second, why such a notorious, “wanted” gangster was not in jail despite the police knowing where he lived. And third, the encounter on July 10 in which Dubey was finally killed.

We shall examine each of these three issues in the sequence in which the police affidavit addresses them.

I. Demolition of Dubey’s house

In his interview to The Wire, Justice Deepak Gupta noted: “There is no procedure prescribed for destroying the house…You are destroying evidence! There would have been evidence in that house, something would have come out from that. And why it was done? I mean there is a lot of conjecture going around – was it done to protect other people? Was it done to protect the truth from coming out?”

The UP DGP says in his affidavit that the police received information about deadly weapons being kept in hollow chambers made inside the roof and ceiling of Dubey’s house. While in the process of  “excavating weapons and explosives from the hollow walls of the house, the load bearing capacity of the walls reduced” and parts of building then collapsed, it said. Whereupon the police recovered “weapons like AK-47, bombs etc”.

Quite apart from the fact that the police, which demolished Dubey’s house in front of media cameras, made no announcement of weapon recoveries on the day, the claim that there were AK-47 rifles, bombs and explosive substances plastered in the walls and floors of the house does not stand the test of either logic or science.Why would a gangster conceal weapons? Obviously, in order to keep them ready for use in an emergency. But emergency use means they should actually be accessible in a hurry. If Dubey and his gang had indeed stored weapons in the hollow of walls and floors, they would have been obliged to break open the cement/concrete walls and floors to take them out, just as the police eventually did. This would take time, thereby defeating the very purpose of keeping them there.

The police affidavit says that in the process of excavation, “the load bearing walls became weak” and hence the building collapsed. Didn’t the police realise that the same thing would have happened had Dubey himself tried to retrieve the weapons in an emergency? In other words, the police are trying to tell the court that a criminal had concealed weapons in his house in such a manner that in retrieving them, his house would have collapsed. And they expect the court to believe this.

Second, it is elementary knowledge that metallic objects which are plastered in cement/concrete structures, rust very fast. In fact, even the TMT steel bars used in concrete tend to rust. Weapons kept that way would quickly deteriorate to such an extent that they would become unusable. It does not make sense to keep them that way. The affidavit also speaks of mud having been used. But mud would make the weapons deteriorate even faster.

Obviously, the UP police has no idea of how weapons are stored. Storing weapons is a science in itself. They need to be freed of rust, kept in pits, and oiled frequently for proper storage.

It makes no sense for Dubey to have adopted such an outrageous method of storing weapons as the police claim. Indeed, a whole lot of simpler techniques for proper weapons storage are available in the public domain.

The claim made in the police affidavit is even more outrageous with respect to the so-called bombs and explosives recovered. Even military grade explosives made in proper factories degrade with time, become unstable and are extremely dangerous to use. That is why they have a given shelf life, after which they must be destroyed.

Criminals use improvised explosives, which are unstable even in the best of conditions – and criminals know this well. Keeping bombs and explosives buried would make them extremely dangerous.

II. Was Dubey a wanted man, or on parole?

In one place, the police affidavit says Vikas Dubey “was facing 64 cases, was serving a life sentence in one of the case [sic] and was out on parole”. Later, in trying to answer why the name of such a notorious gangster was not there in the list of 25 most wanted criminals, the affidavit says he “was in the list of wanted criminals in Kanpur Nagar and he was carrying a reward of Rs 5 lakhs… He was a history sheeter… He was under continuous surveillance”. [emphasis added]

Curiously, the affidavit does not say when Dubey was granted parole and when this was due to end. The Supreme Court on Monday said the fact that such a notorious gangster was “out on bail” showed the “failure of the institution”. However, what is truly astonishing is that the UP DGP cannot get his story straight on a relatively inconsequential matter even though he is on oath: Being “on parole” and “under continuous surveillance” means Vikas Dubey’s whereabouts were at all times known to the police. But his being on a list of wanted criminals and carrying a cash reward of Rs 5 lakh means Dubey’s whereabouts were not known to the police. So which was it? Or could it be that this politically influential gangster was, in reality, neither wanted nor under police watch prior to the disastrous shootout of July 2 in which eight policemen were killed?

In any case, the parole claim hardly does the UP police any credit. The police could not be so careless as to not keep watch over a dangerous criminal of Dubey’s notoriety when he is on parole. This is unprofessional at best and ridiculous at worst. If this criminal was so important to the police, they should have arranged a round-the-clock watch on him and his movements. Since this was not done, it is likely that the story of Dubey trying to jump parole is a post facto concoction which – like the “recovery” of arms from the walls of his house ­– is meant to cover up the real circumstances leading up to the July 2 massacre.

III. From surrender to shootout

After providing a detailed and irrelevant description of the July 2 shootout, the UP DGP’s affidavit provides the following account of the circumstances in which in which the UP police shot and killed Vikas Dubey:

“On July 10 at about 6.35 am early morning, when the convoy reached Sachendi… heavy rainfall started at Barajir Toll Plaza. After getting down elevated road, the Bharat CNG petrol pump was crossed, in front of Kanhaiya Lal hospital, a herd of cattle suddenly came running on the road from the right side. The vehicle was moving fast when the driver of the vehicle tried to swerve the vehicle to the left the SUV hit a divider at high speed and vehicle got overturned. All the four police persons in the police vehicle got seriously injured and lost consciousness. Accused Vikas Dubey snatched the pistol from Inspector Rama Kant Pichauri and escaped from the backdoor of the police SUV. The vehicle of STF which was coming from behind, reached the spot and the Dy SP Shri TB Singh was told by one of the injured policemen that the accused had escaped with the pistol.

“The STF party led Dy SP Shri TB Singh pursued the accused towards the kuchcha roadside. Vikas Dubey started firing indiscriminately towards the STF – he fired nine rounds in all by which Singh was hit in the chest but survived as he was wearing a bullet proof jacket.” (emphasis added)

It also noted that two policemen suffered bullet injuries – one was hit in the left arm, the other in the left palm and left thigh. Four other policemen – the ones in the overturned vehicle – suffered minor injuries, including, in the case of the officer whose revolver was taken while he was unconscious, a “fracture of nasal muscle”, whatever that is.

The account provided by the UP DGP on oath to the Supreme Court prompts a number of obvious questions.

A. The accident

1. The circumstances in which the vehicle carrying Dubey overturned are simply incredible. Footage of the scene makes it clear that the field of view on both sides of the road is absolutely clear, even in the rain, and is not obscured by any crop like sugarcane which could cloud the view. There is simply no scope for any herd of cattle to surprise the driver, certainly not at the speed herds of cattle normally move at. If at all there were any cattle, they would have been seen from hundreds of meters away and corrective action taken. Moreover, there are no hoof marks on the wet ground.

2. The vehicle apparently swerved to the left to avoid the herd coming from the right. The highway had a taut wire fence on the side, erected one foot away from the road on elevated concrete paving. At 0’27’’ in the Times Now video, one can see that the last section of the taut wire fence before the spot where the SUV is lying is damaged (the wire fence is no longer strung tautly and slopes down, suggesting wear and tear) but the elevated concrete paving it is on is not damaged at all, even though the police affidavit says a divider was hit “at high speed”. In fact, one of the TV channels interviewed local residents who noted this curious fact. By a quirk of fate, the vehicle was lying overturned at a spot where there was no barrier on the side of the road because there was a turnoff on to a mud track – conveniently located for Dubey to run down and then be followed and shot.

3. In any case, the car is lying practically parallel to the road. A car, which had skidded, hit a barrier and overturned, would at least lie at an angle and have left skid marks, but there were none. The affidavit covers this up by saying “there were ample skid marks of the vehicles all over the accident site” but is unable to credibly make that claim for the vehicle in question.

4. Since the media had noticed the fact that the SUV which met with an ‘accident’ was not the same as the vehicle Dubey was seen travelling in, the affidavit claims, “Accused Dubey was being transferred from vehicle to vehicle to ensure security and alertness.” Yet, despite this ‘security and alertness’, why was no other police vehicle able to see the accident or Dubey’s escape? It makes no sense for the police to switch cars for reasons of security but then allow the most crucial vehicle in the convoy to get separated from the rest.

5. Journalists following the police convoy were stopped from proceeding just before the ‘accident’ happened and were held back two kilometres away. The affidavit’s explanation for this is hilarious: “No media vehicle was stopped by UP Police. Media vehicle continuously followed the police vehicle from Ujjain and did live telecast. There was a traffic jam at the check points.” But the journalists stopped have said it was the police who prevented them from proceeding.

The police vehicle from which Vikas Dubey allegedly escaped is towed away while still on its side. (Left). Photograph submitted to the Supreme Court by DGP Awasthy as proof of damage sustained by the vehicle in the accident. Photo: Reply Affidavit in Anoop Prakash Awasthi vs State of Uttar Pradesh (WP (Crl) 178 of 2020.

6. For a vehicle involved in such a high speed accident, the lack of damage is surprising. The affidavit attempts to counter this fact by appending photographs of the ‘damage’ sustained. However, every TV channel showed the vehicle being dragged by a crane in its overturned position. No attempt was made to make it stand on its wheels even though it would have made towing a whole lot easier. Clearly, those drag marks are being passed off as the damage the car sustained in the process of overturning.

B. The getaway

7. The accident was serious enough to not just injure the four policemen travelling with Dube but render each and every one of them unconscious. All four sustained injuries serious enough to warrant mention in the affidavit. Yet Dubey was unscathed. This is highly unlikely.

8. The claim that the four policemen became fully unconscious is an improvement on the earlier official version which merely said they were injured and dazed. Has the claim that they were unconscious been made to obviate demands for an inquiry against the officer for allowing Vikas Dubey to snatch his revolver?

9. If Dubey was in the middle seat of the car, which was lying on its side, then he had the additional obstacle of an unconscious policeman lying on top of him to make his escape from the vehicle more difficult. He knew his vehicle was part of a convoy travelling at high speed and that there were police vehicles coming from behind, so he would have had at best a few seconds to push aside the body of the cop pressed against him in a confined space – no easy matter, gravity being what it is – find and unholster Pachauri’s service revolver amidst that tangle of unconscious bodies, move to the rear of the SUV, open the back door and flee. While fleeing, he also made sure to close the door properly, as is evident in all the photographs of the ‘accident’ scene.

10. In news footage of the police taking Dubey by road, the police vehicles can be seen travelling convoy style with, at most, a gap of a hundred metres between them and certainly well within visual range. In other words, the police vehicles ahead and behind were only a few seconds away. Braking, skidding, and overturning takes some time. There is no reason to believe that the accident of the vehicle with the dreaded gangster went unnoticed by others. Yet, if the police affidavit is taken at face value, the policemen in the vehicle carrying the head of the STF team, T.B. Singh, which was behind Dubey’s vehicle, did not see the accident or Dubey’s escape and learned of it only when Singh got down to inspect the overturned SUV, and was told by the injured policemen (who were, by now, no longer unconscious) what had happened.

The police vehicle from which Vikas Dubey allegedly escaped can be seen lying on its left side. Their view blocked, there is no way the policemen inside could have seen in which direction Vikas Dubey supposedly ran off and thus alerted the officer who found them in that state. Yet, this is what the UP Police special task force said in an official press release.

11. Though the affidavit does not say so, an official STF press release makes the bizarre claim that it was the policemen in the overturned vehicle (who had supposedly been so badly injured that they became unconscious) who informed T.B. Singh that Dubey had run down the kuccha road on the side. Given the manner in which the vehicle had overturned – with the windows on the left side now touching the road –the policemen trapped inside would have simply had no way of seeing where Dubey ran off to.

12. Dubey’s ‘escape’ was possible only because the gangster was not handcuffed. The explanation offered by the DGP in his affidavit is curious: “There were 15 police personnel and 3 vehicles to escort the accused directly to the court on Kanpur. He had to be produced at Kanpur within 24 hours before court which was expiring at 10 am on July 10.” This is hardly a credible explanation. Even if he was to be taken directly to court, he could have been handcuffed and the cuffs removed just before reaching the court. As the National Human Rights Commission’s ‘Manual on Human Rights for Police Officers’ explains, the Supreme Court is clear on this point: the police can indeed handcuff someone “previously convicted of a crime, of desperate character, likely to commit suicide, or likely to attempt to escape.”

C. The shootout

13. A pistol generally has just 12 rounds. There is no reason to believe that a gangster fleeing for his life is such a great marksman that he would believe the 12 bullets were enough for him to immobilise a whole police party. What could he possibly propose to do after his 12 bullets were exhausted? Since he seems to have had all the time in the world to escape, why did he not relieve the other unconscious policemen of their weapons? Do the UP police mean to tell the court that a hardened criminal who literally lived by the gun for over two decades, would be so stupid in the matter of combat as to run away in the face of scores of armed men with just 12 bullets? That too, when only a few days before, he is believed to have killed as many as eight policemen in a meticulous ambush – planned with military precision, which left no scope for the cops to fight.

14. Then there is the question of what all other policemen were doing while he was fleeing. In fact, for a man running in open fields and firing at the police who were armed with semi-automatic weapons, his body would have been found riddled with a hundred bullets. Instead he was hit with just four bullets, all of them on the front of his body. The police say that he was facing the police because he fired at them. In effect, he was either running backwards or running and stopping and then turning to face them, a scenario that is quite improbable.

15. Locals noticed the absence of any blood at the spot where Dubey allegedly was shot. Footage of his barefoot body on a stretcher shows no mud on his trousers even though he supposedly ran into a field and mud track in the rain.

16. The affidavit says two policemen were injured by Dubey’s firing, one on his left fore-arm and the other on his left palm and left thigh. Both these injuries were from bullets that supposedly grazed them. Curiously, a photograph of the policeman supposedly injured on his palm and thigh only shows him with a bandage only around his palm. There is no tear or blood visible anywhere near his thigh area.

Three of the policemen injured in the incident in which Vikas Dubey was shot and killed. Photo: YouTube video screengrab

17. On the day of the encounter, the police did not say anything about one of their officers, T.B. Singh, getting hit directly by a bullet. The STF press release also makes no mention of this. In the affidavit, however, it is stated that one of Dubey’s bullets hit him in the chest but that he was saved because he was wearing a bullet proof jacket. Curiously, in the footage shot by Times Now and Aajtak – which were the first TV crews to reach the spot – none of the police or STF personnel milling around the site were shown wearing bulletproof jackets. So why was Singh alone wearing one?

This article was prepared with inputs from serving and retired police officers who prefer to remain anonymous.