Verdict is out! Some Stock-taking in the Binayak Sen Case going in for verdict on Dec. 24.
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Binayak Sen Case Update
Monday, 20 December 2010 06:44 | 
Written by Radical Socialist | 
| 
We reproduce this item, sent to us by Prof. Kavita Panjabi. This shows the real face of Operation Green Hunt.
The Binayak Sen Case Update
Five days later, on December 24, the Raipur sessions court will deliver its verdict in the Dr Binayak Sen case. Supriya Sharma in Raipur puts together the legal evidence and arguments by both the prosecution and defence on which the court will base its judgment.
Over the last week, a battery of lawyers engaged in a marathon summation of evidence and arguments in a two-and-half year long trial, in a small square court room, with three men crammed in the dock.
One among them was a familiar and famous face — award-winning doctor and civil rights activist Binayak Sen, whose arrest and two year incarceration had triggered headlines and protests.
The other two — Narayan Sanyal, an old man, in his 70s, allegedly a Maoist ideologue, and Piyush Guha, a 30-year-old Kolkata-based businessman — may not have elicited much attention, remaining peripheral in the public mind, but in the case, they are as central as Sen.
In fact, the fate of all three men is intertwined since the prime charge they face is conspiracy for war against the state and treason under Section 121A and 124A of the Indian Penal Code, apart from being members of a banned organisation.
"There can be no direct evidence for conspiracy," contended the special public prosecutor, T C Pandya, as he made a quick wrap up of the accusations levelled by Chhattisgarh government. Binayak Sen met Narayan Sanyal in prison 33 times between May 26 and June 30, 2007, carrying out seditious letters, and passing them to Piyush Guha, who was arrested on May 6, with three of the letters. Sen, Pandya alleged, was part of an effort to establish an urban network of the banned extremist group CPI (Maoist).
A handwriting expert verified in court that the letters were written by Sanyal. But is there evidence that they were handed over to Sen, or that he passed them onto Guha, or that Guha was indeed found carrying those letters?
With 'no direct evidence' to present, Pandya piled inferences over circumstances, while Sen's lawyer, advocate Surinder Singh cited a Supreme Court judgement from 2009: "There is no doubt that conviction can be based on circumstantial evidence but in cases where evidence is circumstantial in nature... all facts need to be consistent with hypothesis... and no alternative hypothesis should be possible".
Do the prosecution's inferences pass this test? Here is a brief wrap up of the prosecution's claims and inferences, and the defence's counter arguments:
Article 37
This is a letter purportedly written by the Maoists to Sen, that Pandya claims was seized from his house by the police. In the typewritten letter, the Maoists thank Sen for his work and ask him to take a fact-finding team to Sarguja to probe police atrocities. "It is evident from the letter that Sen was not just in correspondence with Maoists, he even acted on their behalf," said the public prosecutor. But the defence argued the letter was planted by the police. "For a letter sent more than two years ago, it is curiously fresh, without a single fold," said Surinder Singh, Sen's lawyer.
Besides, he argued, while all other objects found during the search were noted in a seizure memo and corroborated on the spot by signatures of Sen and the investigating officers, just this letter — the most significant of all the seizures — was unsigned. As explanation, the prosecution said it perhaps got stuck to other documents and went unnoticed and unsigned. The prosecutor also claimed: "If the police had to fabricate and plant evidence, they would have planted something more incriminating".
The Cloth Merchant
The prosecution produced Anil Kumar Singh, a cloth merchant, as the sole independent witness for Guha's arrest. In court, he testified that he was hailed down by the police on station road on May 6, 2007, where he saw Guha being searched by the police, and the three incriminating letters being found in his bag. He said he even heard Guha confess. But the defence pointed out a contradiction: in an affidavit to the Supreme Court, BBS Rajpoot, the investigating officer, stated that Guha was picked up not from station road but from Mahindra hotel.
The Hotel Managers
The prosecution claimed Guha stayed in Mahindra Hotel where Sen visited him. For this, they produced the statements of Rajkumar Namdeo, the manager of the hotel, and Balram Soni, the receptionist. In court, both witnesses turned hostile.
The Jailors
"Binayak Sen meet Sanyal 33 times in less than 35 days," underlined the prosecution. The defence responded that Sen visited Sanyal on his brother's request, applying on a People's Union for Civil Liberties (PUCL) letterhead each time, and getting clearances by the jail and police officers. "The meetings took place in the jailor's room. Instead of talking in English or Bengali, they stuck to Hindi, so that every word could be heard and understood by the supervising officer. Where does that leave room for conspiracy or passing letters?" contended Singh, Sen's lawyer. Half a dozen jail officials appeared in court and stated that all meetings between Sanyal and Sen were strictly supervised.
The Landlords
Much before the meetings in jail, Sen knew Sanyal. He even helped him find a house in Raipur, stated the prosecution. To prove this, they called Deepak Choubey to court. Choubey claimed he let out his father-in-law's house in Daulat Estate to Sanyal on Sen's recommendation. He said he did not realize anything was amiss till January 2006 when he went to collect rent and was told by his neighbour 'Sharma ji' that Andhra Police had swooped down and arrested his tenant in the last days of December. The defence pointed out a contradiction: according to the testimony of a police officer, Sanyal had been arrested not in Raipur, but in Bhadrachalam.
'Fronts'
When a sub-inspector Prakash Soni was kidnapped, the Maoists asked for the withdrawal of CRPF from Maoist areas in return for his release. So did PUCL, claimed Pandya. "This showed PUCL is a hiteshi sangathan or sympathetic front organisation of the Maoists. It is not even a registered body," he said. Even Rupantar, the NGO run by Sen's wife Ilina, was suspect. One of its employee Shankar Singh is a hardcore Naxal who is currently absconding, added Pandya.
The defence countered: PUCL was founded by the socialist stalwart, Jayaprakash Narayan in the post Emergency years, and has boasted a series of distinguished members, including former Justices V M Tarkunde and Rajinder Sachar. As far as Rupantar goes, there are no cases against Shankar Singh, responded the defence, adding: "the state government is funding Rupantar. Should we presume the state government is funding Naxalites? This is scandalous and defamatory".
'Comrades'
In two postcards seized from Sen's house, he is addressed as 'Comrade Binayak Sen'. In printouts of his computer's records, his wife Ilina Sen writes an email to 'Comrade Kusumlata'. "Comrade ussi ko kehte hai jo Maowadi hai," argued Pandya. Not true, responded the defence, even Communists use the term, it is just a takiyakalaam, a common expression. "It is a citizen's right to embrace Communism," said Singh. (Outside court, Ilina Sen clarified Comrade Kusumlata was Kusumlata Kedia of the Gandhi Institute in Varanasi).
Jungle Meetings
Investigating officer BBS Rajpoot claimed to have seen a video recording showing Sen meeting Naxalites inside a forest, but when questioned by the defence whether those Naxalites were armed and uniformed, he could not give a clear answer. The defence has requested the judge to watch the recording. Another police officer claimed Sen had participated in Maoist meetings in the jungle, but on cross examination, conceded it could be hearsay.
Naxal Literature
The objects seized from Sen's house included anti-imperialist pamphlets, postcards by jailed Maoists, and the magazine 'People's March', that the prosecution argued established Sen's sympathies for the Maoists, as well as close links. The defence pointed out that People's March was a registered publication. Invoking the freedom of speech and thought, and citing similar cases, Surinder Singh said, "reading Mao's collected speeches does not make someone a Maoist".
More Letters
The prosecution produced a letter that PUCL member Shoma Sen wrote to her husband, Tushar Kant Bhattacharya. Arrested in Patna and currently in Hyderabad jail, he was charged with being a Maoist. The letter said: "I am enclosing a small note from Bijoya da from jail, given to Binayak Sen". The prosecution claimed Bijoya Da is an alias for Narayan Sanyal. But the defence said it was instead a name used by Madanlal Barkhade, a jailed Maoist who had posted a note to Sen, complaining about the appalling conditions in the prison.
As he concluded his brief, Sen's lawyer Surender Singh asked, "Do we not have the right to criticize the government?" He accused the government of "fabricating evidence by hook or crook with the sole motive of crushing Sen's voice", since Sen had been a fierce critic of Salwa Judum, the state supported anti-Maoist movement.
These are broadly the arguments that sessions court judge B P Varma must take into account when he delivers a verdict in the case on Friday, December 24
The Binayak Sen Case Update
Five days later, on December 24, the Raipur sessions court will deliver its verdict in the Dr Binayak Sen case. Supriya Sharma in Raipur puts together the legal evidence and arguments by both the prosecution and defence on which the court will base its judgment.
Over the last week, a battery of lawyers engaged in a marathon summation of evidence and arguments in a two-and-half year long trial, in a small square court room, with three men crammed in the dock.
One among them was a familiar and famous face — award-winning doctor and civil rights activist Binayak Sen, whose arrest and two year incarceration had triggered headlines and protests.
The other two — Narayan Sanyal, an old man, in his 70s, allegedly a Maoist ideologue, and Piyush Guha, a 30-year-old Kolkata-based businessman — may not have elicited much attention, remaining peripheral in the public mind, but in the case, they are as central as Sen.
In fact, the fate of all three men is intertwined since the prime charge they face is conspiracy for war against the state and treason under Section 121A and 124A of the Indian Penal Code, apart from being members of a banned organisation.
"There can be no direct evidence for conspiracy," contended the special public prosecutor, T C Pandya, as he made a quick wrap up of the accusations levelled by Chhattisgarh government. Binayak Sen met Narayan Sanyal in prison 33 times between May 26 and June 30, 2007, carrying out seditious letters, and passing them to Piyush Guha, who was arrested on May 6, with three of the letters. Sen, Pandya alleged, was part of an effort to establish an urban network of the banned extremist group CPI (Maoist).
A handwriting expert verified in court that the letters were written by Sanyal. But is there evidence that they were handed over to Sen, or that he passed them onto Guha, or that Guha was indeed found carrying those letters?
With 'no direct evidence' to present, Pandya piled inferences over circumstances, while Sen's lawyer, advocate Surinder Singh cited a Supreme Court judgement from 2009: "There is no doubt that conviction can be based on circumstantial evidence but in cases where evidence is circumstantial in nature... all facts need to be consistent with hypothesis... and no alternative hypothesis should be possible".
Do the prosecution's inferences pass this test? Here is a brief wrap up of the prosecution's claims and inferences, and the defence's counter arguments:
Article 37
This is a letter purportedly written by the Maoists to Sen, that Pandya claims was seized from his house by the police. In the typewritten letter, the Maoists thank Sen for his work and ask him to take a fact-finding team to Sarguja to probe police atrocities. "It is evident from the letter that Sen was not just in correspondence with Maoists, he even acted on their behalf," said the public prosecutor. But the defence argued the letter was planted by the police. "For a letter sent more than two years ago, it is curiously fresh, without a single fold," said Surinder Singh, Sen's lawyer.
Besides, he argued, while all other objects found during the search were noted in a seizure memo and corroborated on the spot by signatures of Sen and the investigating officers, just this letter — the most significant of all the seizures — was unsigned. As explanation, the prosecution said it perhaps got stuck to other documents and went unnoticed and unsigned. The prosecutor also claimed: "If the police had to fabricate and plant evidence, they would have planted something more incriminating".
The Cloth Merchant
The prosecution produced Anil Kumar Singh, a cloth merchant, as the sole independent witness for Guha's arrest. In court, he testified that he was hailed down by the police on station road on May 6, 2007, where he saw Guha being searched by the police, and the three incriminating letters being found in his bag. He said he even heard Guha confess. But the defence pointed out a contradiction: in an affidavit to the Supreme Court, BBS Rajpoot, the investigating officer, stated that Guha was picked up not from station road but from Mahindra hotel.
The Hotel Managers
The prosecution claimed Guha stayed in Mahindra Hotel where Sen visited him. For this, they produced the statements of Rajkumar Namdeo, the manager of the hotel, and Balram Soni, the receptionist. In court, both witnesses turned hostile.
The Jailors
"Binayak Sen meet Sanyal 33 times in less than 35 days," underlined the prosecution. The defence responded that Sen visited Sanyal on his brother's request, applying on a People's Union for Civil Liberties (PUCL) letterhead each time, and getting clearances by the jail and police officers. "The meetings took place in the jailor's room. Instead of talking in English or Bengali, they stuck to Hindi, so that every word could be heard and understood by the supervising officer. Where does that leave room for conspiracy or passing letters?" contended Singh, Sen's lawyer. Half a dozen jail officials appeared in court and stated that all meetings between Sanyal and Sen were strictly supervised.
The Landlords
Much before the meetings in jail, Sen knew Sanyal. He even helped him find a house in Raipur, stated the prosecution. To prove this, they called Deepak Choubey to court. Choubey claimed he let out his father-in-law's house in Daulat Estate to Sanyal on Sen's recommendation. He said he did not realize anything was amiss till January 2006 when he went to collect rent and was told by his neighbour 'Sharma ji' that Andhra Police had swooped down and arrested his tenant in the last days of December. The defence pointed out a contradiction: according to the testimony of a police officer, Sanyal had been arrested not in Raipur, but in Bhadrachalam.
'Fronts'
When a sub-inspector Prakash Soni was kidnapped, the Maoists asked for the withdrawal of CRPF from Maoist areas in return for his release. So did PUCL, claimed Pandya. "This showed PUCL is a hiteshi sangathan or sympathetic front organisation of the Maoists. It is not even a registered body," he said. Even Rupantar, the NGO run by Sen's wife Ilina, was suspect. One of its employee Shankar Singh is a hardcore Naxal who is currently absconding, added Pandya.
The defence countered: PUCL was founded by the socialist stalwart, Jayaprakash Narayan in the post Emergency years, and has boasted a series of distinguished members, including former Justices V M Tarkunde and Rajinder Sachar. As far as Rupantar goes, there are no cases against Shankar Singh, responded the defence, adding: "the state government is funding Rupantar. Should we presume the state government is funding Naxalites? This is scandalous and defamatory".
'Comrades'
In two postcards seized from Sen's house, he is addressed as 'Comrade Binayak Sen'. In printouts of his computer's records, his wife Ilina Sen writes an email to 'Comrade Kusumlata'. "Comrade ussi ko kehte hai jo Maowadi hai," argued Pandya. Not true, responded the defence, even Communists use the term, it is just a takiyakalaam, a common expression. "It is a citizen's right to embrace Communism," said Singh. (Outside court, Ilina Sen clarified Comrade Kusumlata was Kusumlata Kedia of the Gandhi Institute in Varanasi).
Jungle Meetings
Investigating officer BBS Rajpoot claimed to have seen a video recording showing Sen meeting Naxalites inside a forest, but when questioned by the defence whether those Naxalites were armed and uniformed, he could not give a clear answer. The defence has requested the judge to watch the recording. Another police officer claimed Sen had participated in Maoist meetings in the jungle, but on cross examination, conceded it could be hearsay.
Naxal Literature
The objects seized from Sen's house included anti-imperialist pamphlets, postcards by jailed Maoists, and the magazine 'People's March', that the prosecution argued established Sen's sympathies for the Maoists, as well as close links. The defence pointed out that People's March was a registered publication. Invoking the freedom of speech and thought, and citing similar cases, Surinder Singh said, "reading Mao's collected speeches does not make someone a Maoist".
More Letters
The prosecution produced a letter that PUCL member Shoma Sen wrote to her husband, Tushar Kant Bhattacharya. Arrested in Patna and currently in Hyderabad jail, he was charged with being a Maoist. The letter said: "I am enclosing a small note from Bijoya da from jail, given to Binayak Sen". The prosecution claimed Bijoya Da is an alias for Narayan Sanyal. But the defence said it was instead a name used by Madanlal Barkhade, a jailed Maoist who had posted a note to Sen, complaining about the appalling conditions in the prison.
As he concluded his brief, Sen's lawyer Surender Singh asked, "Do we not have the right to criticize the government?" He accused the government of "fabricating evidence by hook or crook with the sole motive of crushing Sen's voice", since Sen had been a fierce critic of Salwa Judum, the state supported anti-Maoist movement.
These are broadly the arguments that sessions court judge B P Varma must take into account when he delivers a verdict in the case on Friday, December 24
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