Jammu & Kashmir

HC dismisses petition seeking compensation for ‘custodial killing of civilian’ in south Kashmir

A deployment of armed forces personnel in Kashmir. [FPK File Photo/ Zainab]

Srinagar: Abdul Razak Ahanger, a petitioner, who died during the pendency of the petition, had approached the Jammu and Kashmir High Court in 2005 seeking compensation for the death of his son and also an inquiry into the circumstances in which the death occurred.

Petitioner’s case before the High Court was that on 19,03,004, police personnel of Special Task Force, Camp Achabal, apprehended his son, namely, Bashir Ahmad Ahangar and handed him over to 5 PARA of Vailoo Kokernag Army Camp.

It was also alleged in the writ petition that his deceased son, Bashir Ahmad Ahanger, was mercilessly tortured before being fired upon by the Army and then falsely termed as militant.

The deceased wasn’t involved in any militancy-related activity and had no criminal antecedents, claimed the petitioner.

Respondents countered the case of the petitioner by stating that the deceased Bashir Ahmad Ahangar was apprehended on suspicion and on preliminary questioning he admitted to be an active militant of LeT operating with the code name “Abu Humeera”.

Respondents further contended the deceased revealed about a hideout of “Abu Maaz”, divisional commander of LeT which was located at Mati Gawran Larnoo.

“The deceased Bashir Ahmad Ahangar led the forces towards the said hideout for the purpose of recovery of arms/ammunition etc. from there. When the forces along with the deceased reached near the hideout, the militants fired indiscriminately from inside the hideout, which was retaliated by the armed forces and, as a result of this, Bashir Ahmad Ahangar received a bullet injury and he succumbed to the same,” respondents claimed.

The counsel for the petitioner, cementing his case for compensation, pointed out the contradiction in the FIR and the reply Affidavit filed by the Government of India wherein two different versions were put forth one suggesting the personnel of 5 PARA of the Army were involved in the joint operation and the reply filed by Government of India suggesting the personnel of 1 PARA (SF) of the army were involved in the joint operation.

Justice Sanjay Dhar observed: “There are certainly contradictions in the version of respondents…However; there is unanimity in the stand of the respondents that the death of the deceased occurred as a result of the encounter between troops and the militants. The respondents have not given any contradictory version as regards the cause of death of the deceased, though there may be contradictions in their versions as regards the identity of the battalion to which the forces of the Army who had participated in the joint operation, belonged.”

Taking recourse to the case diary relating to the FIR that was registered in respect of the death of the deceased, the court noted that police personnel belonging to the STF Achabal have, in their statements made during the investigation, unanimously stated that “the deceased had died in the encounter that took place between the troops and the militants.”

In view of the contradictory stand taken by UOI the Court noted the statement of  Major Patil of 5 PARA, recorded  under Section 161 of the CrPC may be doubtful  “but then the other material on record of the Case Diary clearly points towards the fact that the death of the deceased had taken place as a result of the encounter and not as a result of the custodial torture committed by the troops…”

“There is also material on record of the Case Diary to prima facie suggest that the deceased was working for a proscribed militant organization,” the Court order reads.

In view of the “serious dispute” regarding the cause of death between the pleadings of the petitioner and respondents the court noted: “It is not a clear-cut case where the petitioner’s claim that the death of the deceased has been caused by the respondents is substantiated by the material on a record or that the same stands admitted by the respondents.”

The court went on to say that it would not, in its writ jurisdiction, venture into the arena of determining the disputed questions of fact, particularly the one relating to the cause of death of the deceased on which hinges the fate of this case.


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