New Delhi: The armed forces tribunal here has suspended the life sentence of an Army captain who was found guilty of killing three men in a “staged” encounter in south Kashmir’s Amshipora village in July 2020.
The tribunal also granted conditional bail to Captain Bhoopendra Singh and directed him to appear before its principal registrar on the first Monday of every month starting from January next year.
When contacted, Captain Singh’s counsel Maj (Retd) Sudhanshu S Pandey declined to share details of the case, saying it is still sub-judice.
He, however, confirmed the grant of bail and said the stand of the defence which the Summary General Court Martial (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.
The case relates to the July 18, 2020 encounter at Amshipora in which three men of Rajouri district — Imtiyaz Ahmed, Abrar Ahmed and Mohammed Ibrar — were killed and branded as terrorists.
Report said that the court stated that 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.
Assessing the evidence including the confessional statement given by the officer to a Board of Officers, the court said, “Trial is violative of the requirement of Section 27 of the Indian Evidence Act. It is a well-settled 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.”
The Tribunal pointed out that the other evidence in the case is the statement made by co-accused Bilal Ahmed Lone whose statement has been relied upon to convict the man driver.
Lone later turned approver and has already been granted pardon by the Chief Judicial Magistrate’s court in Shopian, Jammu and Kashmir.
“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 court stated.
Further ahead, the court on its order also observed that the exorbitant expenditure of arms and ammunition, as indicated in the satiation report, discredits the case of the prosecution as brought out in the trial to a large extent.
“Further if the SITREP and the expenditure of arms and ammunition are taken note of, the statement of the commanding officer to the effect that he was unaware of the event seems to be totally untrustworthy and cannot be given due credence at this stage,” the court opined.
The Tribunal observed that “In our considered view, the totality of the evidence available on record clearly shows that there cannot be any motive for the officer to eliminate three civilians and conduct such an operation without the knowledge of the commanding officer. This is highly doubtful and cannot be believed on its face value.”
That apart, it is surprising to note about the absence of anyone from combat action team I along with the accused while the alleged act/operation was conducted, the entire operation becomes suspect.
“In this regard, if we consider, the SITREP, particularly para 5, we find that one Junior Commissioned By driver was there with the accused when the operation took place, the court stated.
Reference to the cross-examination of the witnesses by the accused as per Army Rule 23(2) also indicates certain doubt with regard to the happening of the incident as narrated by the prosecution.
“Even the recovery of weapons and other material from the deceased becomes doubtful on due consideration of the statement of the CO and other personnel Their statements 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 chats from WhatsApp group,” the order said.
The court stated that further a perusal of daily SITREP and the statement of witnesses indicate about the retaliatory firing on the party that had visited the place of the incident for the operation and the presence of some persons inside the target house indulging in counter-firing from the target house and recovery of large scale arms and ammunition indicated in the SITREP throws light on the retaliatory firing emphasis on which was laid on behalf of the applicant at the time of hearing. (With additional inputs)

Press Trust of India