‘A conspiracy to pick up some innocent persons,stage-manage encounter’

The CBI chargesheet nails the “good faith” argument

Written by Muzamil Jaleel | New Delhi | Published:May 4, 2012 3:19 am

Letting the Army choose how should it bring its accused to trial for the killing of five civilians in Pathribal,the Supreme Court underlined the “good faith” argument.

It said the “presumption of good faith” can be “dislodged” only by “cogent and clinching material”,otherwise a duty in good faith should be presumed “to have been done or purported to have been done in exercise of the powers conferred under the statute” — a reference to Section 7 of the Armed Forces (Special Powers) Act that calls for government sanction for prosecution of Army personnel.

The CBI chargesheet,however,nails the “good faith” argument. The result of a two-year probe by investigating officer Ashok Kalra,it alleges “a criminal conspiracy” that includes burning the bodies to “pre-empt identification”. It says the officers “declined” to name others who participated in the encounter “lest any one of them should disclose the true facts”. And it notes how two top laboratories had to send experts to take fresh blood samples to establish the dead men’s identities after previous samples “had been fudged”.

From the CBI chargesheet,key excerpts that rebut the Army’s “good faith” defence:

The abductions

The Army unit of 7 Rashtriya Rifles at Khundroo,Anantnag,was under tremendous psychological pressure to show results after the massacre of 36 Sikhs at Chhittisinghpora on March 20,2000,by militants. Col Ajay Saxena,then Major B P Singh,Major Sourabh Sharma,Subedar Idrees Khan and other personnel of 7RR,whose identity could not be established,hatched a criminal conspiracy to pick up some innocent persons and stage-manage an encounter to create an impression that the militants responsible for the Chhittisinghpora killings had been neutralised.

***

Mirza Noori said 10 to 12 persons entered her house at about 1 am [March 23-24,2000 and took away her husband [Jumma Khan,55 at gunpoint. They were all dressed in Army uniform and armed. Jumma Khan [another man,same name,50,was abducted by 5-6 gunmen in Army uniform the same night at 2 am. Zahoor Ahmed Dalai disappeared into thin air from village Mominabad in the evening of March 24. Bashir Ahmed Bhatt and Mohd Yousuf Malik of Hallen disappeared from village Sheerpora on March 24 evening. The fact that they belonged to different villages in a radius of 5-6 km,had not been seen together… and had no history of militant activity establishes that the encounter [March 25 was fake.

***

Two among them were identified the next day. Moulvi Qasim of Pathribal,a relative,identified the bodies of the Jumma Khans. When the bodies were subsequently exhumed,Noori identified her husband from a cyst on his head and a finger ring.

The mismatches

It is claimed in the “After Action Report” by the Army unit that Mohd Yaqoob Wagey,arrested over the Chhittisinghpora massacre,had given information on March 24 about a hideout where a group of terrorists responsible were likely to be hiding. But in the list of names given by Wagey,the names of the five persons killed do not figure.

***

It is falsely claimed that the information given by Wagey was shared by the SSP with them at 11 pm on March 24 and immediately “Operation Swift” was planned. The investigation has disclosed that all the five persons were abducted well before that…

***

In the “situation report” sent by Capt Puneet Dutta of 1-Sect. RR to Victor Force on March 25 at 8 am,it was mentioned that based on information provided by STF/Anantnag… troops left for Panchalthan. Farooq Khan,then SSP,Anantnag,and other police personnel have denied having passed on any such information.

***

…In the special situation report dated March 25 sent by Major Amit Saxena at 4 pm to HQ-1 Sector,Rastriya Rifles,it was mentioned that based on police inputs,joint operation with STF was launched… This claim has been denied by the SSP and ASI Bashir Ahmed. Bashir Ahmed had been called to headquarters of 7RR on the night of March 24 by the then commanding officer,Colonel Ajay Saxena,and asked to stay overnight. He was taken to the place of the alleged encounter in the morning. He and his team did not participate in the operation.

***

It is highly improbable for the 7 RR personnel to have used such a huge quantity of arms against five unarmed civilians. This was done to create a false impression of an encounter.

***

…None of the 7RR men who participated suffered any injuries at the hands of the so-called militants who,as per the claim,exchanged fire…

***

…A memo was prepared regarding seizure of arms and ammunition by Major Amit Saxena. It was typed and bore his signature. If the encounter was genuine,no such typed memo could have been prepared on the spot. The typed memo appears to be an afterthought… prepared at [another place. The witnesses for this memo,Farooq Ahmad Gujjar and Mohd Ayub Gujjar,have stated that their signatures were obtained on blank papers by Army authorities.

***

A copy of the seizure memo was given to the police on April 4 and the arms were handed over on August 8 (recorded in an issue voucher). The details mentioned in these two documents do not tally. The seizure memo does not mention that the 5 AK-47 rifles were damaged but in the issue voucher,it is mentioned so…

***

Subedar Idrees Khan had prepared a handing-over memo [of the five bodies to Abdul Majeed of Anantnag police station,in which he mentioned the names of three killed persons and showed them as Pakistanis. The identity of the other two was shown as “unknown”. It is not known how the accused could determine that the three were Pakistanis. It is indicative of the preconceived notion of the accused persons with a view to justifying the alleged encounter…

The burns

Zahoor had 98%burns. Bashir’s body was with half the skull,the face distorted and unidentifiable. He had 10 gunshot wounds… Jumma Khan [age 50 had 97% burns,fractures in 5 ribs and 4 bullet wounds; Jumma Khan [ 55 had 95% burns,3 bullet wounds; Malik’s body was without the head,neck and upper third of the left side of the thorax; the left arm was [severed. The findings of the postmortem indicate… use of excessive and unwarranted force. It is impossible to have suffered such extensive burns in a genuine encounter.

***

…The bodies were burnt to pre-empt identification.

***

Compared to the burn injuries,the burn damage caused to the kothas (hutments where the five were killed) is insignificant…

***

…The arms allegedly recovered from their possession were not burnt or damaged correspondingly…

The relatives

After the disappearance,relatives… lodged reports with the police even before the alleged encounter on March 25…

***

The CBI has recorded that twice blood samples were taken from the exhumed bodies and their kin to establish their identity. CDFD Hyderabad and CFSL Kolkata conducted tests and opined that [samples had been fudged. A team headed by Dr Balbir Kaur took samples of relatives again on June 6. CFSL Kolkata again opined that the samples had been fudged. Subsequently,experts from CDFD and CFSL visited Anantnag and got the bodies exhumed and took fresh samples from the bodies and from relatives. After tests,both laboratories opined that the bodies were of the five persons mentioned above…

The officers

Brig Ajay Saxena,Lt Col Brajendra Pratap Singh,Major Sourabh Sharma,Major Amit Saxena [their ranks when chargesheet filed,2006 and Subedar Idrees Khan did not cooperate with the investigation and declined to give the names of the under-command who had participated in the encounter with a view to… shielding themselves and the under-command from criminal liability,lest anyone of them should disclose the true facts.

***

Ajay Saxena,along with B P Singh,Sourabh Sharma,Idrees Khan and other troops entered into a criminal conspiracy to abduct some persons and kill them in a fake encounter and project that the militants responsible for the Chittisinghpora massacre had been killed… After abduction,wrongful confinement and killing of the five civilians,Ajay Saxena,B P Singh,Sourabh Sharma and Idrees Khan,in connivance with Amit Saxena,prepared a false seizure memo,gave a false complaint to the police station… showing some of them [those killed as foreign militants and also passed on false information to senior officers…

The connection

After the massacre of 36 Sikhs on March 20 in Chittisinghpora… there was public hue and cry and the armed forces/security forces were under tremendous pressure to arrest the culprits. The area was under the operational command of 7RR,which had to bear the blame for operational inefficiency and ineffectiveness.

***

Col IJ Peoples,officiating commander 1-Sector RR,sent a confidential “After Action Report” dated April 1 in respect of Operation Swift to HQ Victor Force. In this report,it was mentioned that in a barbaric act of violence,ISI-backed terrorists killed 36 innocent Sikhs…

For all the latest News Archive News, download Indian Express App

    Live Cricket Scores & Results