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The five they shot, buried and blamed for a massacre-Mir Ehsan

On March 25, 2000, the Army and the Jammu and Kashmir police claimed to have made a breakthrough, killing five men they described as Lashkar-e-Toiba militants in what they called an encounter in Pathribal.
These militants, the Army said, had been involved in the massacre of 35 Sikhs in Chittisinghpora five days earlier when then US President Bill Clinton was on his way to India for an official visit. The Army and the police gave a detailed account of the “operation” to then Union Home Minister L K Advani when he visited Chittisinghpora.

This was the encounter, allegedly staged, that has led to the Supreme Court now asking the Army to decide whether the officers accused should be tried by a court-martial or should face a criminal trial.

The alleged encounter had aroused the suspicions of villagers immediately. They linked the deaths to the disappearance of five civilians a day before the “encounter” from the neighboring villages of Brare Angan, Hilan and Anantnag town. The families of the missing men accused the Army of having killed them and staged protests in Anantnag town and the neighborhood.

The protests peaked that April when the chowkidar of Pathribal registered a complaint against the Army at Mattan police station. He alleged that soldiers had abducted five innocent civilians from their villages and killed them in a fake encounter. The Army registered a counter-FIR at Achabal police station.

More deaths would follow. On April 3, two large protests were taken out in Anantnag town, mostly involving relatives of the missing men. When they approached Brakpora village, CRPF and police personnel fired on them, leaving seven dead and 13 injured.

With protests spreading to other parts of the Valley, the government ordered exhumation of the bodies of the alleged militants under the supervision of a magistrate. And once the bodies had been exhumed, the relatives of the missing men identified them. Among those buried and dubbed militants, two were elderly Gujjar tribals from Brari Aangan village and one was a businessman of Anantnag town.

The state government ordered two separate probes. On October 31 that year, one probe report indicted 12 police and CRPF personnel for the firing on protesters at Brakpora.

Meanwhile, reports surfaced about the alleged fudging of DNA samples taken from relatives of the five killed in the “encounter”. On March 9, 2002, the state government ordered a probe; 11 days later, it suspended six officers including five doctors over the alleged fudging. The government had fresh samples taken from the relatives and sent these to the Central Forensic Scientific Laboratory. On July 16, 2002, the CFSL established that the five people killed by the Army were indeed the villagers who had gone missing from Anantnag.

Months later, the Anantnag police exonerated Mohammad Yousuf Wagay alias Chatti Guur, who had been described by then Union home secretary Kamal Pande as the link between the massacre and the alleged encounter. Wagay, a milkman from Chittisinghpora, had been accused of being the local helper of the “foreign militants” who killed the 35 Sikhs. Wagay was interviewed by The Indian Express in jail on November 19, 2000, when he was in preventive custody after his father had requested the police to keep him there for his safety.

The Pathribal case was handed over to the CBI in late 2002. It registered a case in February 2003, charging five Army personnel — Ajay Saxena, Brijendra Pratap Singh, Sourabh Sharma, Amit Saxena and Idress Khan, all of 7 Rashtriya Rifles — with abduction, murder, criminal conspiracy and destruction of evidence.

In 2006, the CBI filed a chargesheet in the chief judicial magistrate’s court in Srinagar, designated for the agency’s cases in the Valley. Before the trial could begin, the Army objected on the ground that prior sanction under law is needed for prosecuting Army officials; the CJM, however, turned this down. That court, too, had provided the Army with the option of a court-martial.

The Army later filed appeals in an additional sessions court and the High Court. On November 30, 2006, the additional sessions court rejected the Army plea that the accused couldn’t be tried without sanction from the Centre. Six months later, the Jammu and Kashmir High Court too rejected the plea.

The Army then moved a Special Leave Petition in the Supreme Court, which gave its ruling on Tuesday.