STRUCTURES OF VIOLENCE

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463| Structures of Violence The conduct of the police is questionable in this case as it has led a FIR against the protestors and the deceased but has ignored its responsibility with regard to the investigation of the extra-judicial killing. The 2 May 2011 order of the Principal District and Sessions Judge, Srinagar, conrmed by the High Court on 9 August 2011, should have specically ordered the ling of a FIR for the killing of Wamiq Farooq based on the prima facie evidence. This case was one of the triggers of the 2010 uprisings. Case No. 182 Victim Details Zahid Farooq Sheikh [Extra-Judicial Killing] Age: 16 Son of: Farooq Ahmad Sheikh Resident of: Sheikh Mohalla, Brein, Nishat, Srinagar Alleged Perpetrators th 1. Commandant Randeer Kumar Birdi, 68 Battalion Border Security Force [BSF] th 2. Constable Lakhwinder Kumar, 68 Battalion Border Security Force [BSF] Case Information On 5 February 2010, Zahid Farooq Sheikh left home to play cricket along with his friends. When they reached the playground they found it wet and decided not to play. All the boys except the victim and Mushtaq Ahmad Wani returned to the locality. The victim and Mushtaq Ahmad Wani went to the Boulevard road and sat on the bank of the lake on the roadside. Three BSF vehicles, a Bolero, a Gypsy and a 407 Matador, coming from Lal Chowk Side stopped in front of them. The Bolero was inscribed with a Hangul [Stag] sign on it. Few BSF personnel asked the boys why they were outside on the day of a strike. The family of the victim states that there was in fact no strike on that day. The BSF personnel then abused them and told them to leave the place immediately. The boys then started to leave. They got afraid and crossed the road for moving back to their locality. At this point, Commanding Ofcer Randeer Kumar Birdi stepped down from his car and asked Constable Lakhwinder Kumar to open re on the boys. Constable Lakhwinder Kumar did not re. Commanding Ofcer Randeer Kumar Birdi repeated his order upon which Constable Lakhwinder Kumar merely cocked his gun. At this the Commanding Ofcer Randeer Kumar Birdi abused Constable Lakhwinder Kumar and forced him to shoot. The boys started to run as they were red upon by Constable Lakhwinder Kumar. One of the bullets pierced through the victim's chest. Even after the bullets were red both the boys continued to run for safety and the BSF personnel chased them. The victim collapsed near his locality. First Information Report [FIR] no. 4/2010 u/s 302 [Murder], 109 [Abetment], 201 [Causing disappearance of evidence/giving false information] Ranbir Penal Code, 1989 [RPC] was led at the 177 Nishat Police Station . The 2 June 2012 communication of the Jammu and Kashmir Police stated that the case had been chargesheeted. An enquiry was ordered in the matter to be conducted by the Divisional Commissioner, Kashmir, Ms. 178 Naseem Lankar . A charge sheet against the alleged perpetrators was led before the Chief Judicial Magistrate [CJM], Srinagar on 6 April 2010. An application was moved before the CJM by the BSF to exercise the option of a court-martial by the BSF under the BSF Act, 1968 read with Section 549 [Delivery to military authorities of persons liable to be tried by Court-Martial] Criminal Procedure Code, 1989 [CrPC]. On 25 November 2010 the CJM passed its decision allowing for the court-martial of the alleged perpetrators. The CJM held, rstly, that the visit for an annual medical examination [and the return journey] were a part of the ofcial duty of the alleged perpetrators. Further, the CJM held that the specic instance took place while the alleged perpetrators were on “active duty”. On 21 October 2011 the High Court of Jammu and Kashmir [following Criminal Revision Petitions led [and combined] 30/2010 and 32/2010] conrmed the 179 decision of the CJM . Ultimately the Supreme Court also paved the way for a court-martial. The BSF instituted a trial by the Security Force Court against the alleged perpetrators. The present status is not known. The prima-facie involvement of the alleged perpetrators in the instant case is beyond doubt and uncontested by the BSF. A charge-sheet has been led and a court-martial process instituted by the BSF. The key issue that faces the family of the victim is whether the BSF has a right to try the alleged perpetrators in the court-martial. Before considering this legal issue, a few remarks may be made on the evidence established in the case thus far: - The chargesheet led in the case states that during investigations, Constable Lakhwinder Kumar implicated Commanding Ofcer Randeer Kumar Birdi. The chargesheet, based on investigations, implicates Commanding Ofcer Randeer Kumar Birdi u/s 302 [Murder], 109 [Abetment] and 201 [Causing disappearance of 177 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. 178 The Tribune, http://www.tribuneindia.com/2010/20100211/main3.htm, 10th February 2012. 179 Information on the petition numbers was sought through RTI on 2 July 2012. Information was provided.
464 | Structures of Violence evidence/giving false information] Ranbir Penal Code, 1989 [RPC], and Constable Lakhwinder Kumar u/s 302 [Murder] Ranbir Penal Code, 1989 [RPC]. - A BSF document on record conrms that on the day of the incident, the Commanding Ofcer Randeer Kumar Birdi had at his disposal a “Tata 407”, “Gypsy” and “Bolero” vehicle, thereby mostly conrming the eye-witness testimony on the three vehicles present at the scene of the crime. - The Section 164-A [Evidence of material witnesses to be recorded by Magistrate in certain cases] Criminal Procedure Code, 1989 (CrPC) statement of Mushtaq Ahmad Wani [dated 9 February 2010] conrms the details, as recounted above, of the incident. It should be noted that in his statement the witness does not refer to the “Bolero” vehicle at the scene of the crime. This would appear to be a minor inconsistency between the version of the family of the victim and the witness. - The CJM, in his order, terms the incident as “unfortunate and bizarre”. The CJM conrms that the incident took place and states that this was when the BSF personnel were on their way back from the Composite Hospital, Humhama after the annual medical examination of Commanding O f c e r R a n d e e r K u m a r B i r d i , t o t h e i r headquarters at Nishat. The CJM conrms that the victim and his friend were chased for about 50/60 yards, following which on the orders of Commanding Ofcer Randeer Kumar Birdi, Constable Lakhwinder Kumar shot at and killed the victim. The CJM in his order also states that the alleged perpetrators not only ed from the spot but also concealed the incident and fabricated evidence such as the number of rounds remaining in the gun. The main argument before the CJM [and then the High Court and presently the Supreme Court] revolves around the legal issue of whether the alleged perpetrators were on active duty during the incident. The BSF authorities argued that the alleged perpetrators were on active duty [Constable Lakhwinder Kumar as a bodyguard for Commanding Ofcer Randeer Kumar Birdi] as the medical examination came within the term “duty”. Reference was also made to a Government of India notication [SO 1473 (E)] dated 8 August 2007 that states that Jammu and Kashmir is an area of active service for the BSF. A detailed analysis of the provisions and the law will not be carried out here. But, the instant case serves as another example of the armed forces not submitting themselves to the civilian court process by interpreting provisions of the law to effectively shield themselves from a transparent prosecution. In this case the Supreme Court also stands by its decision that allowed for a court-martial process. Case No. 183 Victim Details Zubair-ul-Hassan Bhat [Extra-judicial killing] Age: 15 years Son of: Ghulam Hassan Bhat Resident of: Jamia Qadeem, Sopore, Baramulla District Alleged Perpetrators 1. Altaf Ahmad Khan, Superintendent of Police [SP], Jammu and Kashmir Police 2. Harmeet Singh, Deputy Superintendent of police [DSP], Jammu and Kashmir Police 3. Aftab, Station House Ofcer [SHO], Sopore Police Station, Jammu and Kashmir Police 4. Irfan, Assistant Sub-Inspector [ASI], Jammu and Kashmir Police Case Information On 13 April 2010, the victim was killed by personnel of the Jammu and Kashmir Police and Central Reserve Police Force [CRPF], and specically the alleged perpetrators named above. On that day, Zubair, along with four other young boys, went out to play cricket in the afternoon hours at MET School, Muslim Educational Trust Ground. After playing till afternoon he came home to have lunch then went again to play. The police and CRPF were deployed all over. While going back to the ground Zubair and other boys went by the river side and the alleged perpetrators were on the bridge on the river from where the boys crossed. This story was later narrated by the other boys who survived. They said that the SHO Aftab called on his men to arrest these boys. The forces came from two sides to arrest him. The boys tried to run away. They reached near the river where they had no choice other than to jump into the river. When the forces came nearer they jumped into the river. There were ve boys in total. Two of them were: Jan Mohammad Kanna son of late Mohammad Sha Kanna, and Mehrajuddin Radoo son of Mohammad Ashraf Radoo, both residents of Jamiaqadeem, Sopore. All the ve boys jumped into the river. The police threw stones towards them. There were many people who were watching this incident. But they could do nothing. Zubair did not know swimming but Mehrajuddin Radoo held him and tried to take him across. But a stone hit Mehraj on his arm due to which he lost hold of Zubair and he drowned away and died. Meanwhile the people who were watching started protesting against the police and started stone pelting. There was no stone pelting before this. The police party who were throwing the stones was commanded by ASI Irfan. Some locals who saw this approached the family and told them about the incident. People
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