Judgment In Fake Encounter Case: Setting A Much-Needed Precedent?
By Yambem Laba
Major General AK Lal, Colonel Thomas Matthew, Colonel RS Sibiren, Captain Dilip Singh, Captain Jagdeo Singh, Naik Albindar Singh and Naik Shivendar Singh have been given life sentences by a Summary General Court Martial of the Indian Army for killing five Assamese youngsters 24 years ago. The landmark judgment followed sittings of the SGCM, which began at the Langpuli Army Camp in Mizoram under the 2-Mountain Division.
They were found guilty for their involvement in the killing of Prabin Sonowal, Pradip Dutta, Debajit Biswas, Akhil Sonowal and Bhaben Morah out of nine picked up by them, while they were posted with the 18 Punjab Regiment at Dholla in the Doomdooma area of Tinsukia District of Assam between 17 and 19 February, 1994. The boys were suspected to be Ulfa militants but all of them were local leaders of the All Assam Students’ Union.
In the same year, Jagdish Bhuyan had approached Gauhati High Court on 22 February in a habeas corpus case. The High Court had then asked the Indian Army to produce the nine youths at the nearest police station. The Army subsequently produced five dead bodies at Dholla Police Station, which the police apparently refused to accept. Even as statewide protests erupted across Assam with the AASU terming them “Pancha Swahid” or Five Martyrs, the High Court directed the Central Bureau of Investigation to probe the killings.
The CBI had charge-sheeted the Army personnel after recording the statements of witnesses, including the four surviving AASU leaders, during the course of its investigation. However, it is not clear whether the headquarters of the Indian Army ordered the SGCM as a suo motu case on the basis of the findings of the CBI or because the Assam government had pleaded for prosecution sanction to the Centre to bring the perpetrators to book. The latter is mandatory for acts of commission and omission committed by all personnel of the security forces under the draconian Armed Forces (Special Powers) Act, which is still in force in Assam and elsewhere in the North-east.
The distinction between the two bears significance as there remains a similar case in Manipur — that of a tailor by the name of Tayeb Ali. His story dates back to 1999 when I was a member of the State Human Rights Commission. We recorded the statement of his wife, Mina Khathun at the Commission.
She had said that her husband Tayeb Ali, a tailor by profession, was waylaid near Sangakpham en route from his home at Kairang Muslim in Imphal East District on 27 July 1999. He was going to Thangal Bazar in Imphal to meet his employer. His abductors came in two unmarked civilian vans and after they grabbed him, entered the northern gates of the17th Battalion Assam Rifles, then headquartered in Kangla. Five fellow village men, who witnessed the abduction, then followed the vans and saw them, entering the 17th Assam Rifles camp.
The next day Mohammed Baniyamin, his eldest son, visited the 17th Assam Rifles, where he was told that Ali has been taken into custody and would be released the next day through the police. When that did not happen, Baniyamin filed a missing report with the Heignang Police Station and the matter was flashed in the local media.
The SHRC directed then Inspector General of Police (Law and Order) Ahanthem Romen Kumar Singh to make enquiries with Army authorities and submit a detailed report. While the Army denied to the police that Tayeb Ali was picked up by them, Singh did a thorough police job and recorded the signed statements of all five witnesses that saw Ali being taken inside the 17th Assam Rifles camp.
The SHRC packed all the reports thereafter and shipped them to the National Human Rights Commission. To the NHRC’s query, the Army headquarters said that Ali was killed in an encounter on the 25 April 1999 by a column of the 17th Assam Rifles while he was reportedly trying to flee a mobile check post, which was set up at Motbung under Kangpokpi Police Station. The body was then identified to be that of Ali and handed over to police station where it was later disposed off as being unclaimed.
The NHRC then directed the Army to show the photograph of the slain person to Mina Khathun and have it identified. Mina Khathun later told me that there was no way she could identify the body of dead man in camouflaged battle fatigues to be that of her husband. Then the NHRC, for the first time since its inception, interpreted Section 19 of the Protection of the Human Rights Act and ruled that “the onus to prove that the person is not in their custody lies with the accused persons or body”, which in this case was the Assam Rifles. The NHRC went one step further and awarded a compensation of Rs three lakh to Mina Khatun as an interim relief.
Then the matter went up to Gauhati High Court through the Human Rights Law Network and its local director, Meihoubam Rakesh. The Gauhati High Court then asked the CBI to probe the disappearance of Ali, which subsequently registered an FIR, dated 16 November 2005, and began the hunt.
It did not take long for the CBI to zero in on the real culprits behind Ali’s abduction and killing. In its charge sheet, it held then Captain P S Banafar (now Lt Colonel), then Captain Ashish (Now Lt Colonel), Havildars Ashok Kumar Singha and Babulal Pradhan along with Rifleman Laxman Singh of the 17th Assam Rifles guilty of murder. Also, charge-sheeted was then officer-in-charge of the Kangpokpi Police Station, Mohammed Abdul Latif, who is now an Assistant Commandant of the 2nd Battalion India Reserve Battalion.
The CBI report also indicated that the so-called encounter took place at Motbung, which is in an area out of the operational jurisdiction of the 17th Assam Rifles and that Captain Bannafar did not record his movement in and out of the Battalion headquarters on that day. It also mentioned that Ali was shot from a range of three to four feet only.
In 2012, the Army had moved the Supreme Court praying to put on hold the findings of the CBI in two other cases against them. The first was the killing of seven men in Chattingpora, Jammu and Kashmir, in 2000 and second, the killing of the five Assamese in 1994. However, a Division Bench of the Supreme Court comprising Justices B S Chauhan and Swatanter Kumar had ruled that the Army can no longer hide behind the cloak of the Armed Forces (Special Powers) Act to shield officers who commit human rights violations (read fake encounters).
The recent life sentencing of seven Army personnel including a Major General for a crime they committed 24 years ago has once again brought to life the long rope of the law. The next case the Army should take up is that of Ali.
Meanwhile, his 85-year-old father told me that he will not perform his son’s last rites till he sees his killers punished.
(The writer is the Imphal-based Special Representative of The Statesman)
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