Srinagar: The Armed Forces Tribunal has suspended the sentence and granted bail to the Army captain who was awarded life imprisonment by an Army court for killing three men in a staged gunfight in southern Kashmir’s Shopian district in July 2020.
Key observations
The tribunal’s principal bench comprising chairperson Rajendra Menon and member C.P. Mohanty, in its order on November 9, granted bail to the captain, Bhoopendra Singh, who, according to the separate probes carried out by the Army and police, was involved in the murder and abduction of three civilians, including a juvenile, on the intervening night of July 18 and 19, 2020 in Amshipora hamlet of Shopian district.
The court martial proceedings had held him guilty of six charges, including murder, and awarded life imprisonment to him.
The officer had approached the tribunal against the court martial proceedings, saying that they were conducted in an “illegal” and “arbitrary” manner and “manipulations” were carried out to make him a “scapegoat”.
In its observations on the plea for suspension of his sentence, the tribunal raised serious questions on the court martial proceedings, calling its findings as “perverse” and “improper”.
“In our considered view for the purpose of considering the application for suspension of sentence and bail, the prima facie assessment by us is sufficient enough to prima facie come to a conclusion that the finding recorded in the trial is not proper and seems to be a perverse and improper finding,” the tribunal noted.
The tribunal observed that evidence relied upon during the court martial proceedings is not convincing enough to hold the captain guilty of the charges levelled against him. “Prima facie, based on the material available, we are convinced that the likelihood of the captain being acquitted after hearing this appeal cannot be ruled out,” the bench said.
The tribunal bench, however, said that the findings recorded by it are only for the purpose of adjudicating the plea for suspension of sentence and “shall not cause any prejudice to any of the parties at the time of trial.”
Also read: Three ‘Militants’ Killed in Shopian ‘Encounter’ Were Ordinary Labourers, Families Allege
Questions on statements of accused and witnesses
The tribunal found that the confessional statement of the captain during the court of inquiry – when he was in close arrest – was not recorded in accordance with the requirements of the law.
It said that the statement of the captain recorded by the Board of Officers was in breach of different provisions of the Indian Evidence Act. “In our considered view, heavy reliance has been placed by the SGCM [summary general court martial] on the confession statement of the applicant recorded by the Board of Officers during the conduct of the CoI and at the time the applicant was in close arrest. In our considered view, the confession statement recorded by the Board of Officers is in clear violation
to the requirement of section 27 of the Indian Evidence Act, 1872, so also in breach of sections 24, 25 and 26 of the Indian Evidence Act,” the tribunal said.
It also raised questions on the validity of statements made by Bilal Ahmad Lone and discarding of the statement of Tabish Nazir Lone, during the trial. Both Bilal and Tabish were Army informants.
The tribunal said that the confession statement of Bilal Ahmad Lone, who was an accused in the case but turned an approver and has been pardoned by the chief judicial magistrate Shopian, cannot be used for convicting the captain.
“Relying upon the statement of a co-accused, in our considered view, and further, is in breach of the provisions of section 27 of the Indian Evidence Act wherein it has been stipulated that based on the statement of a co-accused, a conviction cannot be ordered,” the tribunal observed.
It questioned the discarding of the statement of Tabish Nazir Lone, who turned hostile, during the trial, saying it becomes creditworthy and can be relied upon when read along with material on record.
Also read: ‘They Were Poor Men’: Locals Question Army Version on Shopian ‘Encounter’
CO’s statement of being unaware ‘totally untrustworthy, highly doubtful’
Citing the situation report (SITREP) prepared by the Army and expenditure of arms and ammunition, the tribunal said that the statement of the commanding officer of the 62 Rashtriya Rifles that he was totally unaware of the event seems to be “totally untrustworthy” and “highly doubtful” and “cannot be believed on its face value” .
The tribunal, in its view, said that there cannot be any motive for the captain to conduct such an operation without the knowledge of the commanding officer.
It further noted that perusal of statements of some prosecution witnesses “throw some light with regard to the fact that prior information of the operation and permission from the CO was available and there was also sharing of location including deletion of chat from [W]hatsapp”.
The captain, in his appeal, has claimed that sequence of events shared in a WhatsApp group of the company and the battalion were deleted as soon as the Court of Inquiry was ordered.
Also read: ‘Give Me His Body’: Father Insists Young Man Killed in Shopian ‘Encounter’ Was Innocent
Expenditure of arms and retaliatory firing
The AFT said that exorbitant expenditure of arms and ammunition, as indicated in the situation report, discredits the case of prosecution to a large extent.
The tribunal said that the situation report and statements of some witnesses indicated retaliatory firing on the Army which had visited the place for the operation.
When contacted, advocate Sudhanshu S. Pandey, counsel for Bhoopendra Singh, said that their stand is vindicated because the summary general court martial had not followed the “basic principles of criminal justice system.”
“I am highly grateful to the court for delivering justice to the young officer,” he said.
We feel they have been killed again: Families
Meanwhile, the families of the victims registered their shock.
“It is another July 18 [the day when the three were killed in 2020] for us. I feel that they have killed our children for the second time. I couldn’t believe it when someone from Srinagar informed me over phone yesterday that the accused has been released from the jail,” said Yosouf, father of Ibrar Ahmed (25), one of the three civilians who had been killed in Amshipora.
“I was relieved after the captain was sentenced to life imprisonment but I couldn’t sleep last night after hearing that he had been released. I will do whatever is required to get justice again,” he added.
16-year-old Mohammad Abrar. Photo: By arrangement
Fifty-year-old Bagga Khan, father of 16-year-old Muhammad Abrar Ahmed, one of the victims, termed the verdict a grave injustice with the families.
“Everyone promised that justice will be done with us after they came to know that those killed were innocent civilians. Is it justice? We will fight for them till the last breath of life,” he said.
As reported by The Wire then, on August 15, 2020, young Abrar had gone to Shopian to work as labourer in the orchards to earn money for his Class 10 admission fee and books.
Disappearance of trio, Army’s claims, police’s probe
Abrar, Imtiyaz and Ibrar disappeared in Shopian area of southern Kashmir on the intervening night of July 18 and 19. The next day, the Army claimed to have killed three unidentified militants in a gunfight.
A day later, Brigadier Ajay Katoch, commander of 12 Sector Rashtriya Rifles claimed that the Army had received “human intelligence inputs” about the presence of four to five unidentified militants in Amshipora.
He claimed that the Army personnel came under fire twice from the militants before they were neutralised.
However, on August 10, 2020, three families from Rajouri district of Jammu province claimed that those killed by the Army were their relatives who had come to Shopian to work as labourers in orchards.
The families identified those who were killed based on pictures of the dead bodies which went viral on social media. After these claims, the Army and the J&K police ordered separate inquiries into the matter.
On October 3, 2020, the bodies of the deceased were exhumed from a graveyard in Baramulla. The investigations by the Army and the police, along with DNA tests, confirmed that the three who were killed in the alleged gunfight were the three youngsters from Rajouri.
The police investigation in the case revealed that Army Captain Bhoopendra Singh alias Major Basheer Khan first abducted the three young men in a private car from their rented accommodation at Chowgam Shopian with the help of two accomplices. The captain, as per police probe, killed the three men and planted “illegal weapons and material on their dead bodies and tried to tag them as hardcore terrorists”. The police claimed that the accused captain furnished false information and misled the senior officers to obtain the prize money of Rs 20 lakh. However, the Army said that there was no system of cash awards for its officers for any acts in combat situations.
