New Delhi: The principal bench of the Armed Forces Tribunal (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”.
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.
The 27-page order was based on Singh’s appeal against the Army court’s 16 January ruling that found him guilty on six charges including murder, and sentenced him to life. ThePrint has a copy of the order.
Imtiyaz Ahmed, Abrar Ahmed, and Mohammed Ibrar were shot dead at Amshipora in Shopian district in July 2020. A Special Investigation Team (SIT) of the Jammu and Kashmir Police filed a charge sheet months later, which claimed that Singh had staged the encounter.
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.
Meanwhile, speaking to ThePrint Monday, Singh’s lawyer, advocate Sudhanshu S. Pandey said the order vindicates the stand of a young officer on whom the court-martial proceedings have had a very “demoralising effect”. He, however, declined to say anything more on the order, saying the matter is still sub judice.
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What does Singh’s appeal say
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.
‘Clear 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”.
Also Read: Shopian ‘encounter’ staged, Army capt, 2 others planted illegal weapons on bodies — J&K Police
AFT 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.”
Bail conditions
Directing Singh’s release on his furnishing a personal bond of Rs 5,000 with one surety of the same amount, the tribunal directed him to appear before its registrar on the first Monday of every month starting from January 2024 so that he can be apprehended or contacted.
The order prohibits Singh from approaching anyone who testified against him during the proceedings before the Army court, asks him to surrender his passport and directs him not to leave the country without the tribunals’ leave.
On a breach of these conditions, the tribunal said, it will have the power to recall the bail order.
(Edited by Richa Mishra)
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