The Defence

Nagrota was a family station. Yet when my wife applied for accommodation, it was denied to her. She was forced to make temporary accommodation arrangements. A small room was rented in "Dogra Brahman Sabha (Regd)" one of the inns in Jammu.

Even there she was not allowed to stay. The incharge of the inn forced her to vacate the room. It was done under the pressure of some people posing as the representatives of CBI. The incharge was threatened with dire consequences, if he allowed my wife to stay in the inn, who, they told the incharge, was followed by them for a serious offence. The process was repeated when she hired a room in another inn.

It was a most trying time for my wife. There was nobody to help her. She felt lost in the wilderness of the world, accompanied only by her two small daughters and everyone else wanting to harass her.

If there are bad specimen of humanity, there are good people also. And probably this could explain the reasons why this treacherous race is still in existence; tough, resting on the point of explosion.

The accommodation problem was finally solved and for the better of it by the help of an officer, who was one of the rare officers who had shown courage without fear of retribution, for his action of helping the harassed family of an alleged traitor.

It happened, when my wife had come from Jammu to meet me and had broken down in tears while telling the tales of harassment to me. The officer on duty supervising the meeting, offered to get a house for her. She got a small room in Nagrota.

The CBI persons, were none other than the people of the DMI, who continued to harass my wife in Nagrota as well. They threatened the owner of the house with similar consequences as they had possibly conveyed to the incharge of the Dogra Brahman Sabha and others. Such a harassment was at his peak at the time when my wife had also to search, contact and engage a counsel for defending my case. So finally, fed up after suffering continued harassment, she requested for an interview with the Corps Commander, Lieut General D.K. Chandorkar.

The General was a DMI before he took over the command of a Corps in 1974, other than the one which he was presently commanding. I had know him well because the General was related to the Brigade Commander of Samba Brigade and apart from the official visits, he used to visit his sister the wife of Brigadier S.K.A. Borwanker, occasionally. I had conducted the General along the border on two occasions when the latter was in Samba. Apart from that, I was the one who always looked after the reception part of the V.I.Ps alongwith Captain V.K. Dewan, the GSO (Int) of the brigade.

Later when the Brigadier died in July 1975, in the floods, the Chandorkars came to stay in Samba for a week to perform the last rites of Brigadier S.K.A. Borwanker.

During the stay the Chandorkars had come to know every officer of the brigade intimately, because of their concern and help to the aggrieved family.

With that in mind my wife met and apprised the General about the harassment, caused by some of the personnel of the Army Intelligence Staff, posing as CBI men.

The General's behaviour with a harassed lady was not only unsympathetic and callous but also unbecoming and demeaning of his rank.

He shouted at her saying, `If you think you can threaten us by filing writs in the Supreme Court and elsewhere, then you're mistaken...'

Why should the General have mentioned writs and Supreme Court? The time and the place didn't require it! She had gone to the General to seek help and not offer a challenge. My wife who was very surprised, said, `Every human being who feels terribly wronged, tries to seek justice. I also, tried to seek justice from every nook and corner, first in the army and later in the government, but failed. Now General, tell me then what wrong have I done by going to the Supreme Court?

Although further harassment of the kind stopped, it was evident that the Indian Army had already made up its mind and was bent upon taking revenge. I was asked by the court and I submitted a list of my defence witnesses to my CO.

In the army all expenses of the Defence Witnesses (DW) are borne by the State. The accused is required to pay the expenses of the defence witness only if he is charged with offences involving money bills. But I was not aware of this clause. And I was asked to undertake in writing that I would pay the expenses, quoting army rule (AR 137 (2). I was given a certificate which read : * I shall comply with AR 137 (2) "

The CO was bound by law to explain the provisions of the rights to the accused, such as this but instead of doing so the CO brought back the certificate and forced me to write at the end of the certificate.

"And also undertake to defray the cost on the attendance of the Dws."

After having obtained the certificate, the CO discourged and dissuaded me from calling the witnesses saying that the Dws may be at places as far away as Hyderabad; some of them may be under arrest. If you insist on calling them, then you will have to pay for the 1st class rail fare not only of the witness, but also that of the guard.

This indeed was beyond my financial powers. So I cut down the list of the bare minimum. And sure enough when one of the Dws had later forwarded the claim, the Corps Hqs directed the claimant to take the money from me.

Such similar facilities were given by the army authorities to me for the perparation of my defence.

In any case who could I call in my defence? The officers and the men of the brigade with whom I had served? If it was so then I could have taken consolation. The great spy masters had made sure they had arrested every such person.

My wife also broke the news of Havildar Ram Sarup's death in custody. Hearing the news, I lost the balance of my mind. I started raving. I abused and cursed saying the bastard had finally tortured in innocent person to death. I cried, while asking to my wife, `Sabu, where's God? Its only the might that is God... And why, why did I not die? I am responsible, for the death and similar miseries to God knows how many people. I do not want to carry a part of the sins on me for the rest of my life and beyond. I wish to clear the debts here'. I kept brooding for days together.

As per the direction of the Supreme Court of India, an application was immediately moved on behalf of the accused. But the authorities replied that they were not aware of the direction. In the same letter they also wrote :

".... It is not understood why you are insisting. Your husband's medical examination was carried out on 09 April 79. In fact he was being medically examined daily... He is in a perfect health...... the medical report would be shown to him on 04 May 79.... alongwith other documents."

The other and the only document shown to me were the appeal submitted to the CEME on 10 January and the letter written by me to the COAS on 01 February 1979.

While writing the appeal and the letter, I did not envisaged the requirement of producing them in my defence. This combined with other factors, I had not mentioned about the manner, time and place of the recording of the S of E, thinking that to be irrelevant to the facts in issue. And the fact in issue was the time of medical examination which I had requested in the appeal. Other facts I had already declared in the court while deposing in the trial of Karam Singh. I had also apprised and heard the reply of the CO. While writing the appeal I had apprehended being sent to the Interrogation Centre and avoided mention of the illegal recording of the S of E and while writing to the Chief, I had not thought of myself but had pleaded the case in general, with a request to stop further arrests till my trial was over.

My apprehensions were not unfounded. The poeple who raised any protest in the case were sent back to the interrogation Centre at Delhi. Havildar R.S. Karki one of the victims was brought from Delhi and attached to an army unit in Palampur. He had refused to make any statement and was consequently taken back and tortured in Delhi, till he signed on a blank sheet of paper purporting that to be his statement under Army Rule 23'.

And even if I had mentioned the circumstances, and even if it is assumed that I was not taken to the torture centre, it was definite that the document would not have been produced. The existence of this document would have been suppressed, as they suppressed the other documents viz. mess bills and the appreciation letters, according to which the work of acquiring valuable information was commended by the higher commander.

The prosecution took advantage of the lapse, when the appeal and letter to the Chief were produced by the CO on the direction of the court. The prosecution argued, that I would have mentioned about the circumstances in the appeal if the S of E was recorded as I had alleged. They, however, were silent when they were asked why should the accused have declared his innocence in the GCM of Karam Singh, within a week of recording of the S of E, if the statement was to be believed as voluntary. Not only that, why should the accused have written the appeal claiming himself to be innocent, if it is to be believed that there was no pressure and coercion to which I was subjected to, even after the recording of the alleged S of E.

The most vital factor in my favour was the medical examination, if it had been conducted in time. Yet it was not done when I had asked for it and nor was it done when my wife had appealed to the authorities concerned. The permission for such an examination was not given, even when there was a direction of the Supreme Court to the army authorities to do so. On the other hand, I was subjected to such an examination but without records, later, by the army surgical specialists like Lieut Colonel S.K. Dass. It was apparent that such oral examinations were done with the sole aim of ascertaining the extent and to mark time, beyond which it was not possible to fix the period of the injuries before they gave permission.

Since this was in the knowledge of the army authorities, despite playing delaying tactics, they were apprehensive lest the torture was proved. And when the counsel for defence Mr. R.P. Sethi moved the G.C.M., for the medical examination by the Principal, Medical Collage Jammu, the Prosecution opposed the application vehemently. The objections were :

"The application of the accused is misconceived and does not deserve any consideration by this Hon'ble Court on the following grounds :

a) that from the moment the accused was brought to the present location and till date he has been medically examined by two army doctors namely Captain Asis De and Lieut Colonel S.K. Dass Surgeon Specialist of Command Hospital. The reports of these doctors are available with the authoritiess and the accused is at liberty to summon these doctors alongwith their reports.

b) In view of the submission made in para (a) above, the prayer of the accused is wholly malicious in as much as that there is no reason or ground for the accused to be examined by a civilian doctors when he has already been examined by the army doctors. In this regard, it is also submitted that if on some account the examination of the accused by the aforesaid army doctors was deficient, the Hon'ble court may consider the desirability of the accused being examined by another army doctor or a board of army doctors.

c) The prayer is apparently motivated and the prosecution is at a loss to understand as to why the accused has been pressing hard on a particular civilian doctor. it may be pertinent to observe, that it appears that the accused is perhaps harbouring under a mischievous, mistaken and unfounded notion that the army organisation as a whole has conspired together to harm him, otherwise there is no reason as to why the accused, a serving officer should insist for any examination by a civilian doctor to the entire exclusion of the army doctors and that too from a particular civilian doctor and no one else.

d) That from the proceeding held so for and from the contents of this application the only requirement of the accused appears to be that he was, allegedly tortured.

In the absence of any motive imputable to army doctors, the application of the accused warrants rejection."

The denial of medical examination proves the guilt of the authorities. I was right in refusing, to be examined by the army doctors. Was not the treatment given to me from the beginning, a clear indication of the authorities concerned' designs who were sufficiently misled by the interrogators? Then how could the prosecution have said "accused is wholly malicious?" Had I not made repeated requests to my CO for getting me examined by the army doctors? Then why was I not given a doctor when I had asked for one, not a civilian but an army doctor; and then how could the army doctors have been put to disrepute if the medical examination was allowed to be done by a civil doctor? Unless of course, there was enough evidence to prove the torture, which the army doctors had either under pressure or the direction of the higher authorities, suppressed.

Why should the prosecution have contended "If on some account the medical of the accused by the army doctors was deficient" unless they knew it was deficient?

I did harbour a notion that if not whole, then a section of the army, has conspired to harm me and such a notion was neither mischievous and mistaken, nor was it unfounded. And the prosecution knew that well. The contention of the prosecution, tantamounted to prejudice the minds of the Hon'ble court.

Then was it I, pressing for my medical from a particular civilian doctor, or was I merely following the direction of the highest court of justice of the land? And had not the Supreme Court said while passing the directions, that "... such examination by a civil doctor should not be taken as casting any reflections or aspersions on the impartiality or competency of the doctors of the Military department".

If it had, then where was the necessity of contending for imputing the motives of the Army doctors?

The GCM hearing the arguments, closed the Court for deliberations. It directed the convening authority to get me medically examined from the Principal medical College, Jammu and at the same time by a board of army doctors.

Why did the GCM pass the conflicting order? Did the GCM doubt the impartiality of the Dean of a Medical College and his team of doctors, or was it merely a coincidence that the GCM wanted to make doubly sure of the medical evidence. In that case, was I not already examined by the Army doctors as the prosecution had claimed? Then why have a second board of Army doctors? Or was it that the GCM also was not ready to rely on those reports by Capt De and Lt. Colonel S.K. Dass!

After having made sure of everything, the convening authorities sent me to the civil hospital under an escort of an Army Medical Corps (AMC) Major, a doctor; who during the examination started interfering by giving suggestions to the civil doctors. I objected to his interference and even his presence during the course of examination. Then I was told by the CO who had also accompanied me, that the AMC Major was detailed as the second escort! It certainly was a virgin attempt in the Armed Forces for a doctor to be detailed as an escort officer, for an alleged criminal. Could that be without a motive?

The medical examination was this finally carried out on 14 June 1979. The medical examination by the Army Medical Board was conducted on 27 June 1979.

It was very amusing to find that all the three reports differed in finding the injuries and in their opinions.

The medical report prepared by Captain De did not show any injury or evidence of the alleged torture. It was a clean report declaring the accused as physically fit in all respects.

The injuries mentioned in the report of the Army Medical board were termed as old injuries. They also had not mentioned about the main defects in their reports, which had otherwise been mentioned in the report of the principal, according to whose reprt there were multiple injuries including an injury which looked unnatural. The X ray of the right ankle showed fracture. The left ear was found thickened and distorted with conductive deafness. And the slurring or speech that was caused due to severe mental torture.

However the duration of any injury could not be given by the doctors. As per medical evidence any healed injury is termed as old. Such an injury could be either three months, or three years old, since the duration cannot be ascertained.

The slurring of speech was termed as deliberate feigning by the Army doctors who had, six to seven years experience as doctors, as against the Dean of a Medical College who had thirty years of experience. The Dean had categorically said that the defect was not due to feigning, nor can such a type of defect be feigned. `I have examined people, not one or two, not in even hundreds but in thousands with this type of defect, in thirty years of my medical experience. Such defects are caused due to a nervous breakdown of the victim,' the Principal deposed. He went on to explain, when the court asked, the exact nature of the functioning of certain nervous systems of the vocal cords, the tissues of which are linked with the brain, and the causes of the breakdown of the system as in my case.

The Army Medical Board had not made any mention of the fracture of the right, chip fracture in the right wrist and about the conductive deafness of the left ear. However, while deposing in the court they admitted to the existence of such defects as they were mentioned in the report of the civil doctors.

`Why were the defects,' the court enquired, `not shown on the report,' the army doctors replied that it was not necessary since they had been asked to check only the medical category of the officer. The army doctors also claimed the injuries were eighteen months to two years old, even when, as per the medical evidence book the duration of old injuries cannot be determined.

In any case, if the prosecution wanted to prove through their doctors that the injuries were two years old and were not the result of torture, then it would have been easier for them to substantiate their claim by producing my medical records. Due to the nature of the injuries, the fracture would have required me to be hospitalised for a minimum of one month, if I had received the injuries during the normal course of my duties. Thus such records then should have been available with the authorities. Why was any effort not made to produce such records, was a difficult question to answer.

The prosecution could also not argue that the injuries were prior to my having joined the army and that as such there were no records available. Because no person with fractured ankles, wrists and conductive deafness is enrolled and specially commissioned as an officer in the Armed Forces. Thus the torture stood proved.