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