Srinagar: Observing that there is an “overwhelming evidence” available about the Kunan-Poshpora mass rape of 1991, the J&K High Court on Tuesday directed state Home Department headed by Chief Minister Omar Abdullah to explore possibility of granting monetary relief to the victims as per the recommendations made by the State Human Rights Commission.
“You had to have some policy; you (government) cannot brush aside the recommendations by SHRC. After all constitutional body like SHRC have made recommendations after recording findings that these women were subjected to cruelty, lawlessness,” a division bench of Chief Justice M M Kumar and Justice Hasnain Massodi said after perusal of a status report filed by the Home Department in compliance to May 20 directions by it.
At least 40 women were ‘raped’ on the night of February 23, 24, 1991 by troops of army’s 4 Rajputana Rifles in the twin villages of Kunan and Poshpora in north Kashmir’s Kupwara district. Police had closed the case in 1991 as untraced.
“There is overwhelming evidence. Many women have been subjected to atrocities. There is a secret confidential letter sent by the (then) Deputy Commissioner (Kupwara) and number of other things. After all it was informal sort of investigation carried by the SHRC,” the division bench said.
In the status report, court observed, it has been stated that soon after receipt of copy of the recommendations made by SHRC on April 26, 2012, the matter was placed before an empowered committee.
In its 18th meeting held on July 4 last year, the committee decided that there was no policy in favour of the victims and therefore the recommendations made by the SHRC for payment of ‘compensation’ of Rs 2 lakhs in addition to Rs 25000 in favour of one (rape victim; name withheld) has not been accepted, the bench observed.
The government’s stand is based on assertion that ex-gratia rule in vogue in February 1991 (when the mass rape took place) envisaged payment of relief to the next of kin of those who suffered as a result of militancy and were not involved in ‘subversive’ activity.
The report said the state government in April this year notified victim compensation scheme vide SRO Notification 229 which provides compensation to the victims of different crime including rape but it does not apply to cases which have taken place before the notification of the scheme on April this year.
“It is appropriate to mention that in the code of Criminal Procedure, a new provision was inserted in the year 1989 in Section 545A , recognizing that victim of crime of their dependents who suffered loss or injury or who were required to be rehabilitated or to be given compensation,” the bench said. However, it said, the state government took 24 years to frame the rules and could notify them (vide the SRO 229).
“The deferment of framing of rules cannot confiscate the rights of the victim of crime who suffered atrocities at the hands of certain crime perpetrators. The recommendations made by SHRC are elaborate and are fully supported by evidence on record,” the court said and directed the Home Department to explore the possibility of granting relief as per the recommendations made by the SHRC.
In 2007, some victims of the mass rape knocked SHRC, and the Commission in 2012 recommended re-investigation, payment of Rs two lakh as ex-gratia to victims and action against then Director Prosecution for closing the case in 1991 as untraced.
“Proceeding for prosecution be initiated against Director Prosecution and such other officers who had approved his childish opinion which directly contributed to the shelving of investigation of the serious case and thereby directly benefitting the offenders who committed the crime,” the SHRC had said and had expressed apologies to the victims of the incident with then observation that successive government never offered helping hand or the “healing touch which words were adopted by one of the regime.”
The court was hearing a petition filed by survivors and torture victims of the ‘gruesome rape’ through their counsel advocate Parvez Imroz.
Imroz said only 40 rape survivors have come forward. “The number is of those who have come forward. The villagers say that because of social stigma many others did not come forward. The statements of nearly 35 women have been recorded and they have even been medically examined. Five victims have died during these years,” Imroz said.
In another direction, the court also directed the Home Department to file status report regarding the investigation in the case.
“In respect of investigation, after the filing of closure report, the Magistrate (in Kupwara) has already issued directions in its order on (June 18, 2013). According to the direction, an officer not below the rank of SSP is required to investigate the crime which was to be completed within a period of three months,” the court observed.
Imroz also apprised the court there has been extension after extension being sought by the state and investigation has yet not been completed.
He said while a police officer Mr Jabbar (IPS) was asked to complete the investigation within three months, he came up with application on September 13, seeking six months extension. However, he said, police was granted three months.
Then police sought more time and on December 14 last, it was given three months more. Then third exertion of three months was granted on March 14 this year and on 14 June last, another three more months were granted to police.
“A Magistrate cannot be given extension in a mechanical manner,” Imroz said, seeking to know whether police have protected the evidence in the case.
“In one letter they said they are trying to approach then DC Kupwara Mr SM Yasin who is living here in Srinagar. There has been no will and determination to conduct the investigation,” Imroz said.
Assistant solicitor General, S A Makroo pointed out that the order of June 18 2013, passed by Magistrate Kupwara has been challenged in Revision before the district sessions judge Kupwara.
However, the division bench observed that the investigation has not been stayed by the revisional court.
“Therefore, we do not see any reason for delay in the investigation which should be carried out in accordance with the direction issued by the Magistrate on June 18, 2013,” the court said. It directed that the status report with regard to the direction concerning ‘compensation’ as well as investigation shall be filed before the next date of hearing. The bench posted the case after three weeks.
On June 18, 2013, responding to a closure petition by the police 22 years after the investigation of the case was closed, the Judicial Magistrate had directed further investigation “to unravel the identity of those who happened to be the perpetrators of the alleged crime”.