STRUCTURES OF VIOLENCE

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419| Structures of Violence Case No. 149 Victim Details Javaid Ahmad Magray [Extra-Judicial Killing] th Occupation: 12 Standard student Son of: Ghulam Nabi Magray, Ameena Resident of: Soiteng [Lasjan], Tehsil Chadoora, Budgam District Alleged Perpetrators th 1. Major Srivastava, 119 Infantry Battalion 131 [Territorial Army], Assam Regiment , Army, Camp Soiteng th 2. Lieutenant Verma, 119 Infantry Battalion [Territorial Army], Assam Regiment, Army, Camp Soiteng th 3. Subedar Surinder Sinha, 119 Infantry Battalion [Territorial Army], Assam Regiment, Army, Camp Soiteng th 4. Havaldar Hamanta Bordoloi, 119 Infantry Battalion [Territorial Army], Assam Regiment, Army, Camp Soiteng th 5. Havaldar Naba Ch. Sinha, 119 Infantry Battalion [Territorial Army], Assam Regiment, Army, Camp Soiteng 6. Lance Naik [Lance Corporal], Romesh Singh, th 119 Infantry Battalion [Territorial Army], Assam Regiment, Army, Camp Soiteng t h 7. Sepoy S.U. Borbhuiya, 119 Infantry Battalion [Territorial Army], Assam Regiment, Army, Camp Soiteng th 8. Sepoy Zakir Hussain, 119 Infantry Battalion [Territorial Army], Assam Regiment, Army, Camp Soiteng th 9. Sepoy Ashok Choudary, 119 Infantry Battalion [Territorial Army], Assam Regiment, Army, Camp Soiteng th 10. Sepoy David Lalthanmawia, 119 Infantry Battalion [Territorial Army], Assam Regiment, Army, Camp Soiteng 132 th 11. Sepoy Bijoy Sinha , 119 Infantry Battalion [Territorial Army], Assam Regiment, Army, Camp Soiteng Case Information Javaid Ahmad Magray's father states that in the morning of 1 May 2003 his son was missing from his room. His bed appeared as if it had not been slept in the night before. The window in the room was half open. His bicycle was in the lawn of the house, suggesting that he had not gone outside the house. Outside, on the main road, there were many persons from the army. The army persons denied having seen the victim. A large crowd gathered concerned about the victim. They claimed to have heard gunshots at midnight. There were blood stains, and a tooth, lying on the ground, encircled by a chalk marking. Lieutenant Verma told the people concerned for the victim that he was in the army camp. They accompanied him to the Camp where Lieutenant Verma said the victim would be brought out in ve minutes. But, he then told them that the victim had been handed over to the police. It seemed that the only reason that Lieutenant Verma had given them this information after entering the camp was to ensure that he would not be questioned repeatedly by the family and others demanding information. The people then proceeded to the police station where they were told that a boy was brought in serious condition to the police station at 3:00 am and they had shifted him to Bone and Joints Hospital, Barzulla and then the Shri Maharaja Hari Singh [SMHS] hospital. After that the residents of the area went to the hospital where the victim was undergoing an operation. After the surgery, the doctors shifted him to Sher-e-Kashmir Institute of Medical Sciences [SKIMS], Soura where the doctors declared him brought dead. An autopsy report conrmed death by shooting. The victim was shot from a close range, and he was shot in his legs, shoulders and inside his mouth. The family of the victim believes that the motive behind the killing of the victim was that he used to pass by the camp in the early hours of the morning, and may have identied someone at the camp as working with the army. They believe he was taken out of his room through the window. The family also states that Subedar Surinder Sinha camped at Soiteng headed the patrol party that killed the victim. The army led First Information Report [FIR] no.63/2003 u/s 307 [Attempt to murder]Ranbir Penal Code, 1989 [RPC] and 7 [Prohibition of acquisition/possession/manufacture/sale of prohibited arms/ammunition]/27 [Punishment for possessing arms etc. with intent to use them for unlawful purpose] Arms Act, 1959 at the Nowgam Police Station on 1 May 2003 that on the intervening night of 30 April 2003 and 1 May 2003 a militant had been injured in ring while another 133 militant escaped .The FIR, according to the family of the victim was “misleading and concocted” and th was led by Major Srivastava of the 119 Battalion Assam Regiment under the signature of Lieutenant Verma, the head of the Soiteng Camp. By communication dated 30 November 2013 from the Jammu and Kashmir Police it was stated that the case was closed as not admitted. By communication dated 22 April 2014 from Jammu and Kashmir Police a copy of the closure report was provided. 131 Possibly a part of the Territorial Army, but not expressly stated as such in the documents available. 132 The names of the perpetrators vary from document to document. The above listing is therefore subject to these variations. 133 Information on this FIR was sought through the Jammu and Kashmir Right to Information Act, 2009 [RTI] on 5 May 2012. By communication dated 2 June 2012 from the Jammu and Kashmir Police a copy of the FIR was provided. Further information sought through RTI on 15 October 2013.
420 | Structures of Violence The victim's family lodged FIR no.64/2003 u/s 302 [Murder], 120-B [Criminal Conspiracy] Ranbir Penal Code, 1989 [RPC] at the Nowgam Police Station on 1 May 2003 against Lieutenant Verma, which the police rst refused to lodge, and only on the 134 intervention of a Minister was it nally registered . By further communication dated 9 July 2012 from the Jammu and Kashmir Police, information was provided in the form of a letter dated 15 June 2012 from the Deputy Superintendent of Police [DSP], Headquarters, Srinagar that a chargesheet had been led in the case and that the Home Department had raised some observations which were being rectied, following which the case would be resubmitted for sanction for prosecution under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 [AFSPA]. By communication dated 30 November 2013 from the Jammu and Kashmir Police it was stated that the case was under investigation. By communication dated 22 April 2014 from the Jammu and Kashmir Police this position was reiterated. By communication dated 23 January 2015 information was provided that sanction had been declined and the decline of sanction communication was provided. The date of the document is unclear [buts its possibly 3 January 2011] but the sanction is declined on grounds of their being only circumstantial evidence in the case and weaknesses in the investigations carried out are cited. On 3 January 2011, as per a 10 January 2012 response to a RTI, the Ministry of Defence declined sanction with regard to “Sub Surendre Sinha” and stated that “the individual killed was a militant from whom arms and ammunition was recovered. No reliable and tangible evidence has been referred to in the investigation report”. The Deputy Commissioner of Budgam ordered an enquiry on 10 May 2003 and the Assistant Commissioner, Budgam was appointed as the enquiry ofcer. The enquiry report was submitted on 12 August 2003 and conrms that the victim was not involved in any militancy activity and was killed without justication by Subedar S. Sinha and his associates. On record is a report sent to the Deputy Commissioner, Srinagar on 19 July 2003 from the Senior Superintendent of Police [SSP], Srinagar. This states that the victim was not involved in militant activities, as claimed by the army. It also states that investigation on both cases [the FIR led by the army and the victim's family] is ongoing. The report also states that FIR no.63/2003 was based on a written report from a “Major Sh. Wastoo” of the 119 Battalion Assam Regiment, Camp “Soitong” which suggested that the victim was a militant and was killed in cross ring. The family of the victim led a petition before the High Court of Jammu and Kashmir [Service Writ 135 Petition (SWP) 1842/2003 ]. The petition sought the status of the investigations, action to be taken and compensation/ compassionate employment under SRO-43 [Statutory Rules and Orders] for the brother of the victim. The petition was dismissed on 21 February 2006 for non-appearance. An application was led subsequently for its restoration and the petition was restored. The response of the State of Jammu and Kashmir before the High Court stated that compassionate employment for the brother of the victim could not be allowed as the victim was a minor at the time of his death. The petition remains pending in the High Court. The alleged perpetrators 3 to 11, based on the State of Jammu and Kashmir's representations before the High Court, were chargesheeted u/s 302 [Murder] and 120-B [Criminal Conspiracy] Ranbir Penal Code, 1989 [RPC]. In relation to the FIR led by the family, the Ministry of Defence, on an order of the High Court, led an afdavit before the High Court in 2009 on sanctions for prosecution, and stated that this case remained under consideration with regard to alleged perpetrators 3-7 and 10-11 listed above. Sanction for prosecution of alleged perpetrators 3 to 11 was sought from the Ministry of Defence, by the Jammu and Kashmir Home Department, on 16 July 2007. The FIR led by the army was closed as not admitted. The family approached the State Human Rights Commission [SHRC] on 2 September 2003 and a nal decision was issued on 26 February 2004 based on a report of the Inspector General of Police [IGP], Kashmir, which recommended ex-gratia government relief of Rs. 2,00,000 to the family of the victim and compassionate employment under SRO-43 [Statutory Rules and Orders]. On 17 March 2009 the National Human Rights Commission [NHRC] directed payment of Rs. 3,00,000. The two documents on record that may be analyzed, in a case where no charge sheet was led in a court [although a case appears to have been made out against alleged perpetrators 3 to 11], are the SHRC judgment of 26 February 2004 and the Assistant Commissioner, Budgam enquiry report of 12 August 2003. The SHRC found that the factum of the death of the victim was established, and that the victim was not a militant and was not involved in any anti-national activities. The SHRC decision was based, in part, on a report from the IGP, Kashmir which found that the deceased was not involved in any militancy related activities. But, the SHRC placed “complete reliance” on the Assistant Commissioner, Budgam's enquiry 134 Information on this FIR was sought through the Jammu and Kashmir Right to Information Act, 2009 [RTI] on 7 October 2011. By communication dated 21 December 2011 from the Jammu and Kashmir Police a copy of the FIR was provided. Further information sought through RTI on 15 October 2013. Further information sought through RTI dated 14 November 2014. 135 Information on the petition number was sought through RTI on 16 February 2012. Information was provided.
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