NEW DELHI: The Armed Forces Tribunal (AFT) has suspended the life sentence of an Army Captain Bhoopendra Singh, who was found guilty of killing three men in a “staged” encounter in south Kashmir’s Amshipora village near Shopian in July 2020.
The Armed Forces Tribunal also granted conditional bail to Captain Bhoopendra Singh alias Major Bashir Khan and directed him to appear before its Principal Registrar at a regular interval starting from January next year, a PTI report said.
The three men hailing from Rajouri district of Jammu region – Imtiyaz Ahmed, Abrar Ahmed and Mohammed Ibrar – were killed in a remote hilly village in Shopian district on July 18, 2020 and labelled as “terrorists”.
However, as doubts were raised on social media over the killings, the Army promptly constituted a Court of Inquiry (COI) which found prima facie evidence that the troops had “exceeded” powers vested under the Armed Forces (Special Powers) Act, or AFSPA. The Court of Inquiry was followed by the summary of evidence, which was completed in the last week of December 2020, the PTI report said.
Completing General Court Martial proceedings in less than a year, an Army Court in March this year recommended life imprisonment for Captain Singh, subject to confirmation by higher Army authorities.
In a 25-page order on November 9, the two-member tribunal headed by chairperson justice Rajendra Menon said, “…in our considered view, the evidence relied upon by the prosecution and accepted by the SGCM (Summary General Court Martial) in the present case is not convincing enough to hold the applicant guilty of the charges levelled against him. Prima facie, based on the material available on record we are convinced that likelihood of the applicant being acquitted after hearing of this appeal cannot be ruled out.”
“The applicant has already been in custody for a period of about three years and therefore, it is a fit case where, prima facie, evidence available on record suggests that bail can be granted to the applicant by suspending the sentence,” the AFT stated.
The tribunal said the totality of the evidence available on record clearly shows that there cannot be any motive for the applicant to eliminate three civilians and conduct such an operation without the knowledge of his senior officer.
“…during the period the applicant is on bail, the sentence of imprisonment for life shall remain suspended. The applicant shall appear before the Principal Registrar of this Tribunal alternatively on first Monday of the month starting from January 2024 so that in case for any further requirement the applicant can be apprehended or contacted and appropriate action taken.
“On the applicant’s breaching any of the conditions stipulated hereinafter, this Tribunal will have the power to recall the order of bail,” the order read.
Responding to the apprehension of life threat to the applicant in case he was handed over to a civil prison in Srinagar, the tribunal said that after promulgation of the sentence by the confirming authority, the applicant shall be shifted to a civil prison in Jammu by the Army authorities under proper escort.
“On the same being done, the concerned Superintendent, Civil Prison shall release the applicant on bail on his furnishing a personal bond in the sum of Rs 50,000 with one surety of the like amount to the satisfaction of the Superintendent, Civil Prison, Jammu and other conditions,” the tribunal said.
The conditions put forth for the bail include that he shall not approach anyone who had testified against him and that he shall surrender his passport to the Principal Registrar and in case he does not possess a passport, he shall file an affidavit to that effect besides he shall not leave the country without leave of this tribunal.
“As we have only stayed the sentence of conviction to the extent of undergoing the jail sentence, all other punishments like cashiering etc. shall continue to remain in operation during the pendency of this appeal. The sentence of imprisonment for life shall remain suspended during the pendency of the Original Application (seeking stay on the findings and sentence passed by the court martial),” the tribunal said.
Earlier, Captain Singh’s counsel Maj (Retd) Sudhanshu S Pandey confirmed the grant of bail and said the stand of the defence which the (SGCM) had completely disregarded has been vindicated.
“Such conviction of the young officer in this manner would have a very demoralising effect on other officers who are sacrificing their lives for the defence of the nation. It would have led to a bizarre situation where the young officers instead of showing willingness to put their lives at risk for word of command will insist on written orders when such operations are conducted. I express my gratitude for the armed forces tribunal to uphold the rule of law,” he said.
Following the allegations against the Army, the Jammu and Kashmir Police had also constituted a special investigation team which filed a charge sheet against three people, including Captain Singh, for “staging a fake encounter”.
Jammu and Kashmir Lieutenant Governor Manoj Sinha had visited the families of the slain men in Rajouri in 2020 and conveyed to them Prime Minister Narendra Modi’s message that the government stood with the aggrieved families and they would be taken care of with all support from the government.
The identity of the three men was subsequently confirmed through a DNA test. The bodies were handed over to their families in Baramulla in October 2020 and buried in their native village in Rajouri.
On September 5, the Jammu and Kashmir administration handed over appointment letters for government jobs to family members of the deceased men.
The AFT has raised doubts over the findings of court martial proceedings that awarded life term to Captain Bhoopendra Singh alias Major Bashir Khan for allegedly killing three men at Amshipora in J&K’s Shopian district in 2020, calling them “perverse” and “improper”, a report The Indian Express said.
Headed by Justice Rajendra Menon, the AFT bench gave its “prima facie” opinion while suspending Singh’s sentence and granting him regular bail on 9 November.
In his appeal, Singh claimed that he had “obediently complied with the orders of his commanding officer,” who, like many others from his unit, was part of the operation.
The Army court had rejected Singh’s defense and took into account the statement of a co-accused — a civilian who turned an approver — and a statement made by Singh before a Board of Officers during the investigation by a Court of Inquiry (CoI). CoI is carried out before the matter is referred to the Army court.
However, in the tribunal bench’s view, the Army court took on record certain evidence, which was “inadmissible” and “not convincing” to hold him guilty at the present stage.
“Prima facie, based on the material available on record, we are convinced that the applicant being acquitted after hearing of this appeal cannot be ruled out,” the tribunal noted.
It found the Army’s side of the story on Singh’s Commanding Officer (CO) being unaware of the operation as “highly doubtful” on its “face value” and “totally untrustworthy,” which cannot be given due credence at this stage.
According to the tribunal, based on the documentary evidence, it looks like there was retaliatory firing on the party that had gone to carry out the operation.
“In our considered view, the totality of the evidence available on record clearly shows that there cannot be any motive for the applicant to eliminate three civilians and conduct such an operation without the knowledge of Pw-3 (CO). This is highly doubtful and cannot be believed on its face value,” the tribunal observed.
Captain Singh’s appeal
In his appeal before the AFT, Singh assailed the proceedings for being irregular and in utter disregard of the rules and procedures.
He alleged that manipulations were carried out to make him the scapegoat.
He also claimed that he was subjected to the court-martial proceedings to “quell media pressure and sustained political pressure, which affected the career of senior officers”.
Pointing to the weapons seized from the encounter spot, Singh’s appeal claimed that there was indeed a recovery of arms from the bodies of “slain militants”.
Fired rounds of pistol, two pistols with magazines, a bag of nails, live rounds of AK-47 and fired cartridges of AK-47 were all part of the recovery.
‘Violation of Indian Evidence Act’
According to the tribunal’s order, heavy reliance on these statements was “clearly in violation of the Indian Evidence Act”.
The tribunal was referring to the statements of two civilians, on whose tip-off Singh claimed his unit had planned the operation, and Singh’s own alleged confession, which became the basis for his conviction. The two civilians were initially clubbed as accused along with Singh.
While one of the two civilians was made an approver, the second was declared hostile during the court-martial proceedings, with the Army court discarding the latter’s statement made before it. The hostile statement had backed Singh.
With regard to Singh’s statement recorded during the CoI, the tribunal observed it was done by the Board of Officers at the time when he was in close arrest, which is “in breach of the Evidence Act” — the law which governs the procedure to be followed by courts during a criminal trial.
“It is a well-established principle of law that no person can be implicated on the basis of a disclosure statement made in the circumstances explained in the Evidence Act,” said the tribunal in its bail order.
On the admissibility of the statement given by one of the two civilians, who became an approver, the tribunal held the same cannot be accepted in view of the Evidence Act, which stipulates that a conviction cannot be ordered based on a co-accused’s statement.
As for the second witness’s version, the tribunal observed his “hostile” statement, which was in Singh’s favour, along with other material on record, became “credit worthy” and can be relied upon. “Yet, the court martial panel ignored his statement,” it said.
“It is clear that in recording the guilt of the applicant with regard to the charges, there being no independent evidence, reliance has been placed on the confession statement of the applicant, which is not admissible in evidence and the statement of the co-accused (approver),” the tribunal said.
It added that if both these statements are “discarded”, “nothing remains on record to hold the applicant (Singh) guilty”.
Tribunal on use of arms and ammunition
Apart from the hostile witness’s statement, the tribunal said, the exorbitant expenditure on arms and ammunition (for the operation), as indicated in SITREP — a situation report prepared by every unit before an operation is carried out — “discredits the prosecution’s case”.
According to Singh, his unit had hidden the SITREP and tried to downplay it even though it correctly reflects the nature of the operation and how it was carried out.
SITREP, the tribunal found, mentions the presence of a junior officer with Singh when the operation took place.
Considering this, the tribunal said, the Army’s claim that nobody was present with the accused was surprising and brought the entire operation under suspicion.
Though the tribunal briefly touched upon the statements made by some other crucial witnesses, it refrained from holding an elaborate discussion on them at the interlocutory stage of suspension of sentence.
However, it did note that these statements throw some “light with regard to the fact that prior information of the operation and permission from the Commanding Officer was available and there was also sharing of location, including deletion of chats from WhatsApp group.”
