AFT order on Amshipora Captain’s bail says he may get acquitted eventually

“In our considered view, the evidence relied upon by the prosecution and accepted by the SGCM in the present case is not convincing enough to hold the applicant guilty of the charges leveled against him. Prima facie, based on the material available on record we are convinced that the likelihood of the applicant being acquitted after hearing of this appeal cannot be ruled out,” the bench said.

The bench clarified that they are only examining the issue for the purpose of suspension of sentence and grant of bail and deem it appropriate not to discuss the statement of witnesses in detail at this stage of the proceedings when only an interlocutory hearing is going on.

“We have gone through the statement of each witness in detail as was pointed out to us to satisfy ourselves with the tenability of the same and its credit value. After analyzing the entire evidence, we find that there are enough material on record which pin point to the defects and perversity in the finding recorded by the SGCM, selective picking up of evidence for the purpose of holding the applicant guilty and selectively discarding reliable evidence and accepting the evidence which is not permissible in law,” the order says.

The bench further said that the findings recorded by it is based on a close scrutiny of the evidence considered for the purpose of adjudicating the miscellaneous application for suspension of sentence.

“It shall not cause any prejudice to any of the parties at the time of trial. In our considered view for the purpose of considering the application for suspension of sentence and bail, the, prima facie, assessment made 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 order says.

The counsel for Captain Bhoopendra, S.S. Pandey, pointed out various illegalities committed in the SGCM alleging command influence was used to influence witnesses. He also pointed out to the Commanding Officer’s statement that he had been unaware of what had been transpiring despite evidence to the contrary.

He referred to several documents, including the Situation Report (SITREP) prepared on July 18, 2020, where the ammunition and explosives were shown to have been used in the operation and argued that in a fabricated manner, evidence had been collected to implicate the Captain.

He also argued that the SGCM failed to consider the statements made by various witnesses while holding the applicant guilty of the charges of abduction.

Captain Bhoopendra Singh was commissioned in the Corps of Signals in June 2015. He joined 62 RR (Dogra), Zoramanlo, Shopian in the month of September 2019. He was given the duties of an Adjutant of the unit and thereafter sent to HQ 15 Corps to perform temporary duty wherein he was given the task of ammunition Quick Reaction Team (QRT).

In the months of May-June 2020 he was given the responsibility of Bravo Company (B Coy) second in command and was deployed at Chowgam and he was also given the duties of Tactical Operating Base Cdr at Dubjan.

His petition before the AFT mentioned that in July 2020, he was given the duties of Company Commander of Echo Coy, Rishinagri, by his Commanding Officer even though he was the youngest officer in the Battalion since his area of responsibility (AOR) was infected with hardcore militants and he used to gather inputs about the movements through different channels with the help of J&K Police and local human resources.

His petition further mentioned that on receipt of certain information on the intervening night of July 17 and 18, 2020, an operation was conducted by the 62 RR Battalion in the area of Amshipora, resulting in neutralisation of three terrorists. The operation was carried out based on the inputs received from local human resources and in the operation, according to the applicant, recovery of huge war-like stores, weapons and ammunition was also made from the site of the operation.

“It is the grievance of the applicant that this operation received adverse inputs from the media almost for a month as a result of which a Court of Inquiry (COl) was assembled and subsequently an FIR was registered against the applicant and his two source persons and, according to the applicant, the successful operation was termed as a fake encounter in which it was said that three civilians were killed in the encounter,” the AFT order states.

The AFT order further says that the Captain has alleged that a whitewash of the incident was undertaken on the directions of the higher authorities. He alleged that based on an illegal COl, a tentative charge sheet, a summary of evidence and in an illegal manner, without giving a proper opportunity to him to defend his case and examine the witnesses, the SGCM was conducted and found him guilty, he was punished.