Kashmir – Statements condemning the acquittal of army personnel responsible for Pathribal fake encounter

January 30, 2014

Statement by People’s Union for Democratic Rights, Delhi

Press Statement :: 28th February 2014

Pathribal Killing: Requiem for Justice Denied

PUDR, condemns the dismissal of charges by the Army’s 15 Corps against four senior officers, a retired Major General, two colonels, a Lt Colonel and a Subedar, belonging to 7 Rashtriya Rifles. The five were accused of abduction, killing followed by mutilation of the bodies along with fake recoveries of weapons and ammunition, on March 25th 2000 in Pathribal. Nearly fifteen year struggle to bring the perpetrators of this heinous crime to justice has come to a grinding halt.

Lest we forget, on 20th March, 2000, at Chittisinghpora of Anatnag district, 36 Sikhs were massacred by unidentified gunmen. Few days later on 25th March 2000 five persons from three villages in Pancehalthan were abducted and then killed in an alleged encounter. The FIR filed by the Army maintained that they had killed five “foreign militants” who had massacred the Sikhs. On 3rd April 2000, nearly 5000 persons including, the kith and kin of the victims of Pathribal killing and other villagers, held a protest in Barakpora and were marching towards Anantnag town to submit their plea for justice when they were fired upon by the CRPF and SOG resulting in killing of eight persons.

Following this bloodletting the Chief Judicial Magistrate ordered an inquiry headed by the Deputy SP. His report concluded that people killed were local civilians and not “foreign militants”. And that it was a fake encounter. Complaint of the villagers was then registered. In 2003 the case was transferred to the CBI. Three years later, having exposed the attempt to fudge DNA samples by the then Head of Department of Forensic Medicine, Government Medical College, Srinagar, and other attempts by the Army to delay joining the investigation, CBI filed its charge-sheet contending that from “facts and circumstances of the case, it is established that these five innocent civilians were picked up by the personnel of 7RR….. (and) eliminated in a fake encounter…” It charged five army personnel under S120 B (Punishment of Criminal Conspiracy) read with S 342 (Wrongful Confinement), 364 (Kidnapping for Murder), 302 (Homicide) and 201(Causing disappearance of evidence or giving false information to screen offenders) of the IPC.

In 2006 Army moved the apex court claiming that criminal court has no jurisdiction to try its personnel. Six years later in May 2012 the court pronounced its judgment. Although the Supreme Court rejected Army’s claim that sanction is required even for undertaking investigation, it upheld Army’s claim that once charge-sheet is filed sanction is needed for trial to begin. The Court also opined that although S126 of the Army Act confers power on the criminal court to try personnel of the armed forces, he/she cannot take cognizance of the case unless the Central Government provides sanction. Thus a Magistrate has no power to decide, where armed forces personnel are concerned, whether there is prima facie case to be made or not. It also upheld that whereas the choice rests with the Army under S125 of the Army Act to either opt for trial of its personnel before the criminal court or the Court Martial, no sanction is required for court martial. Army opted for the Court Martial

Then in a brazen subversion of justice the Army chose to order a Court of Inquiry instead of proceeding with trial under Court Martial. This when more than 14 years had elapsed since the crime was committed and the crime had been investigated by the state police and the CBI filed a charge-sheet after 3 years of investigation. For Army to rubbish all this and declare that “in conformity with the due process of law…(they) dismissed the charges” against its personnel shows the opaqueness of the Army’s general court martial. Indeed going by the response of the kith and kin of the victims, which has appeared in media in Kashmir, the main query posed to them by the Colonel was whether they could identify the perpetrators. Failing to do so was proof enough for the Army to dismiss the evidence gathered by the CBI. Abductions had taken place the night before and the fake encounter took place in the early hours of 25th March 2000 with only uniformed persons to witness the crime. Also by placing the onus on the police and claiming it was a joint operation, something CBI rejected, Army is clearly shielding its own personnel.

This only brings the opaqueness of the Court Martial into full view. The very same force which is accused of commission of crime can scarcely prosecute its own personnel. Especially when it also offered them incentives for ‘kills’! Besides, in a Court Martial victim have few rights whereas accused enjoys full protection as armed forces personnel, especially if it is senior officers and not a lowly soldier. Moreover, the victim has neither the right to be represented by a lawyer nor can they move the higher courts to challenge Court Martial judgments. Army Act provides this option only to the accused.

PUDR draws public attention to the fact that Pathribal case was an exception to the rule from an armed conflict area where few cases merit investigation let alone reach the stage of charge-sheet. Given that victims of Army personnel’s heinous act have been denied justice we demand:

1. That pursuant to the above the Pathribal case be handed over to the civilian court ;

2. That all crimes committed by the Armed Forces of the Union in so called “Disturbed Area” against civilians must invite civil jurisdiction over armed forces of the union and all such cases be tried in criminal court;

3. And that all provisions which create impunity, including but not limited to AFSPA, are forthwith withdrawn.

D. Manjit and Asish Gupta
(Secretaries)

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Statement by Democratic Students’ Union (JNU)

How many deaths will it take till we know,
that too many people have died.
The answer my friend is blowing in the wind.

Five Kashmiri dead bodies that sustained more than 95% burns and had received an average of 5 bullets at the hands of the killer Rashtriya Rifles of the Indian Army 14 years ago are not numbers that merely pertain to the Pathribal massacre. They are the one of the many lightless lanes of the labyrinth called Indian ‘democracy’ (read military occupation) in Kashmir. In the past more than six decades, all the organs of this ‘democracy’ – from the police, paramilitary, army to the media, judiciary and even the so called ‘elected’ representatives – have all colluded to first torture, rape and kill countless Kashmiris and then justify all of it. The recent acquittal by the army of five of its own personnel who were responsible for the cold blooded massacre of 5 kashmiris in Pathribal is simply another case which illustrates the workings of this state.

On the 20th of March, 2000, about 20 army men opened fire in Chattisinghpora village in Kashmir killing 36 Sikhs and claimed that it was the work of ‘foreign terrorists’ of Lashkar-e-Toiba. This happened when the then US president Bill Clinton was on a visit to India and the attack was shown as evidence of the ‘threat’ of terrorism that India faced and the need for joint India-US efforts in the so called ‘war against terror’. The Indian state through this orchestrated massacre of the Sikhs also sought to delegitimize the national liberation struggle in Kashmir by portraying it as an evidence of its ‘communal’ nature. Five days later, on the 25th of March the Rashtriya Rifles picked up five innocent Kashmiris from a neighbouring village Pathribal, shot them in cold blood, mutilated and burnt their bodies. It then reported to then Home Minister LK Advani that the ‘terrorists’ responsible for the Sikh massacre had been eliminated in a ‘surgical operation’. Vehement protests broke out against the army for staging the so-called encounter demanding the exhumation of the bodies for examination and enquiry. In one of these protests at Brakpora on 3rd April attended by thousands of Kashmiris the CRPF opened fire killing 7 more and injuring 15. Because of the popular protests, the then Chief Minister Farooq Abdullah was forced to constitute an investigation and the responsibility for investigating all the three massacres (i.e. Chattisinghpora, Pathribal as well as Brakpora) was given to the Pandian Commission. However admonition in a week’s time from the then Prime Minister Atal Behari Vajpayee on the suspicion around the army’s involvement in the massacres at Chattisingpora and Pathribal led to their exclusion from the scope of the investigation. It was since then that the Commission was ordered to look into just the Brakpora killings. Meanwhile, the various organs of the state machinery, specially the media, spread the Gobblessian propaganda that LeT was responsible for the Chattisinghpora massacre. By Oct 27th, the Pandian Commission came out with its report on Brakpora, indicting some police and CRPF personnel. Even these were not made public and its recommendations were not implemented.

Though Chattisingpora was completely blacked out from public memory, the demand for justice in the Pathribal case remained. Unable to contain this demand, the investigation of Pathribal was handed over to the CBI in February 2003. By 2006, even the CBI in the face of overwhelming evidence, was forced to come out with its report indicting five officers of the 7 Rashtriya Rifles. It charge-sheeted these personnel in the local court: Brigadier Ajay Saxena, Lt. Col. Brijendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar Idrees Khan of staging a fake encounter, abduction, criminal conspiracy and evidence destruction. Now it was the turn of the army itself to protect its own officials. They appealed to the High Court and finally to the Supreme Court that the state government had no jurisdiction to punish the army as the Armed Forces Special Powers Act (AFSPA) was in force in the state. It took another six years for the Supreme Court to re-ascertain that the 5 killed in Pathribal were in fact “not foreign militants of the terrorist outfit LeT” but innocent civilians. On the question of the whether the encounter was fake the SC simply passed the buck back to where it came from – that is the army’s own court or court martial in 2012. Last week, on January 23rd 2014, the army court gave its judgement stating that they found no evidence against the five army personnel involved in the Pathribal fake encounter. So after 12 years, the family members of those who were killed in Pathribal find themselves exactly the same spot from where they had begun their journey.

The military occupation of Kashmir provides the armed forces of the Indian state to maim, torture, kill and rape with impunity. After all, how can justice be expected when the occupation, killers and the judges are one and the same. Several courts and investigating agencies keep passing the buck to each other ultimately to exonerate the killers in uniform. In the case of Pathribal, the army acquitted its own men who had been found guilty by the CBI. However, it is the same CBI that gave a clean chit to the army in the rape and murder of Asiya and Neelofar in Shopian in 2009, and instead ridiculously claimed that two had drowned in ankle length water. Even the highest courts of this self-proclaimed world’s largest democracy are no different. Afzal Guru, who was executed in a secretive hanging last year, was sentenced to death by the Supreme Court, not on the basis of any evidence (which it itself accepted that it had none), but rather to satisfy what it termed as the ‘collective conscience’ of the society. In the valley, the repressive measures employed by the Indian state to suppress the aspirations of the Kashmiri people can put even Pincohet or the torturers of Abu Ghraib to shame. Kashmir continues to remain the most militarized zone in the world with over a 8 lakh armed personnel and in the past two decades over a lakh have been killed, thousands of women raped, tens of thousands simply disappeared only to be rediscovered in mass graves years later while countless Kashmiris have been tortured and maimed. But all these machinations of the Indian state far from suppressing the struggles of the Kashmiri people for Azaadi has only forged further resolve and new solidarities.

DSU appeals to all progressive and democratic sections to unequivocally condemn the acquittal by the army of the killers of Pathribal and stand in solidarity with the fight of the Kashmiri people for their inalienable right to self-determination including the right to secede from the Indian Union.