Srinagar: The suspension of a life-term for an army captain—for the murder of three civilians in a extrajudicial killing in south Kashmir on 18 July 2020—by an Armed Forces Tribunal has revealed a series of contradictions between its findings and investigations by the Jammu and Kashmir (J&K) police and an army court of inquiry, leaving the truth of what happened that day unclear.

While the trial goes on, the Tribunal, in an interim order on 9 November 2023, disregarded the primary evidence considered by the police and the army against Capt Bhoopendra Singh of 62 Rashtriya Rifles, an army unit specially raised for counter-insurgency tasks. 

The Tribunal is independent of the army, but, like the army, functions under the union ministry of defence. It was staffed, in Capt Singh’s case, by a retired lieutenant general and a former chief justice of the Patna and Delhi high courts. It is not clear when the final order will be delivered.

 “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,” said the Tribunal. 

As families of the three men, who were cousins, expressed outrage and anguish at the Tribunal's decision and human-rights monitors questioned the army’s justice system, among the few things that the Tribunal and the army court of inquiry appear to agree on is that the army provided doubtful or fake accounts of the murders. 

The first anomalies were legally recorded in a on 26 December 2020 police chargesheet, which contradicted a public claim made on 19 July 2020 by the sector commander, Brigadier Ajay Katoch, that the three cousins killed were “hardcore terrorists”. 

The police charge sheet said that the captain did not inform senior officers about his “operation”. The Tribunal said Capt Singh could have no “motive” for such action without the knowledge of his superior officers, adding it would not accept the statement of his commanding officer, a colonel, who—in direct contradiction of Brig Katoch’s assertion—claimed to have no knowledge of the incident. 

“It was a unit operation and out of many people, Singh was chosen as executor of the act,” Capt Singh’s counsel at the Tribunal, Maj (retd) Sudhanshu S Pandey, told Article 14. Maj Pandey also said despite the bail, they were not satisfied with the sentence because the army and police had no evidence that it was Singh who carried out the “operation”. 

The three cousins killed, allegedly in a staged firefight by the army in Amshipora village in Kashmir's Shopian district, were Ibrar Ahmad (25), Imtiyaz Ahmad (22) and Muhammad Ibrar (16) of Jammu’s Rajouri district. 

After outrage (here and here), the J&K police and army ordered separate inquiries and found Capt Singh and two civilians, Tabish Nazir Malik of Shopian and Bilal Ahmed Lone of Pulwama, guilty, as the police investigation concluded, of faking a gunfight and killing the trio for “prize money” of “Rs 20 lakh”. The army, however, said soldiers were never given cash rewards.

As Article 14 reported in March 2021, the events after the murders unfolded thus: Brig Katoch said there was intelligence about terrorists, claiming a pursuing army unit led by Capt Singh came under heavy fire; after they were shot, the bodies were handed over to police. A police investigation concluded the victims were abducted; they were dead before army reinforcements arrived; and Capt Singh allegedly tried to burn the evidence.

The J&K government paid compensation of Rs 500,000 to each family and provided a job to one member. 

The Tribunal accused the army court of inquiry of having “selectively picked-up (sic)” evidence to find Singh guilty and said with current evidence against the officer, the likelihood that he would be acquitted after his appeal was heard “cannot be ruled out”. 

The Tribunal refused to stay other punishments, such as “cashiering”—which the army confirmed on 15 November 2023—a dishonourable discharge, depriving him of pension and other benefits. 

"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 Tribunal said.

Witness Statements Can’t Be Used: Tribunal

The foundation of J&K police case against Capt Singh was based on confessions from two eye-witnesses who were Capt Singh’s “sources” and who accompanied him in the alleged extrajudicial killings. Based on their statements, the police filed a case and later a charge sheet, a report recommending the prosecution of Capt Singh.

The J&K police accused Capt Singh and his two accomplices of six offenses under the Indian Penal Code  1860, including murder, kidnapping for purposes of murder, disappearance of evidence and criminal conspiracy; and two under the Arms Act, 1959.

The captain was not prosecuted in civilian court because the 65-yr-old Armed Forces Special Powers Act 1958, in force in J&K for the last 33 years, forbids arrest or prosecution of armed forces personnel in “disturbed areas” without permission of the union government, which is almost always denied (here and here).

In their chargesheet, the J&K police said that they could not arrest Capt Singh, except once recording his statement, because of the protection afforded to him by the AFSPA. 

The police chargesheet contradicted almost every claim Brig Katoch made. Soldiers who arrived later at the site of the killings heard a “few bursts of fire” as they were approaching on foot, according to the chargesheet. This meant the first shots were fired and the alleged militants dead before the Army team arrived. 

On 5 March 2023, after the court of inquiry and a subsequent summary of evidence, the army concluded that Capt Singh “exceeded powers vested” under the AFSPA. 

The prosecution said they had examined 39 witnesses in the case but primarily relied on one of two main witnesses against Capt Singh, one of his “sources” who accompanied him during the “operation”, and on the officer’s confessional statement to the army court of inquiry.

The Tribunal said Capt Singh’s confessional statement was “totally different” in the “summary of evidence”, a preliminary record before a court martial, and as recorded by the court of inquiry. In any case it was “a well settled principle of law that no person can be implicated” on the basis of such a confession, the Tribunal said.

The Tribunal said statements of the witnesses were not admissible because one turned approver on 14 December 2020 and was pardoned five months later by the chief judicial magistrate of Shopian. 

The other witness turned hostile during the trial. Quoting the Indian Evidence Act 1872, the Tribunal said “a conviction cannot be ordered” on the statement of a co-accused. 

Capt Singh Had No Motive: Tribunal

The army court of inquiry had said that Capt Singh did not inform senior officers about the operation against the so-called terrorists, but the armed forces Tribunal said he could not have had “motive” or done what he did without the knowledge of senior officers, one of whom clearly lied in public.

On 19 July 2020, Brig Katoch addressed a press conference at an army unit in Awantipora, 33 km from Srinagar, vividly describing an operation by his unit that led to the fatal shooting of three “hardcore terrorists”. 

Brig Katoch had said that on 18 July, “precisely at 02:00 hours”, the Army received “human intelligence inputs” about the presence of four to five unidentified militants in Amshipora. However, the police and army investigation said there was no civilian intelligence and that Capt Singh did what he did on his own.

At 2.45 am, soldiers came under “heavy fire”, according to Brig Katoch, and at 5.30 am, a search party sent into a small, newly constructed house was met with gun fire. Three “terrorists” were “neutralized”, Brig Katoch said, when soldiers “retaliated”  and threw grenades.

The Tribunal said that it would not accept the statement of the commanding officer of the 62 Rashtriya Rifles, a colonel, who said he did not know of the incident. “This is highly doubtful and cannot be believed on (sic) its face value,” said the Tribunal.

“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 [summary general court martial], 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,” said the Tribunal.

Court Martial ‘Illegal, Arbitrary’: Capt Singh

Capt Singh’s counsel, Maj Pandey, told Article 14 that the army court of inquiry used “circumstantial evidence” and the prosecution had to prove every “hypothesis”, which, he argued, had not been done.

“In this case, a lot of details are missing, and the Tribunal found that the evidence is not admissible and [should not be] relied upon,” said Pandey.

After he was sentenced to life imprisonment, Singh petitioned the Tribunal through Pandey, arguing that the court martial proceedings were “arbitrary” and “illegal manner”, violating rule 180 of the Army Rules 1954 by not allowing him opportunity to adequately defend his case or examine witnesses.

Maj Pandey alleged “command influence” and argued before the court of inquiry that there were “illegalities” in the general court martial, where 39 witnesses were examined. 

“..Based on an illegal COI (court of inquiry), a tentative charge sheet, summary of evidence and in an illegal manner without giving proper opportunity to the applicant to defend his case and examine the witnesses, the SGCM (summary general court martial) was conducted and finding the applicant guilty, he has been punished,” read Pandey’s submission.

The Tribunal agreed and said that the SGCM failed to consider many statements of witnesses and placed reliance only on certain evidence which was “inadmissible” in law.

In his appeal, Capt Singh said a “situation report” and a “sequence of events” shared in a WhatsApp group among his company and battalion were deleted once the army announced a court of inquiry. This, he argued, was part of the evidence that disappeared.

Capt Singh’s case reached the Tribunal because he cannot, as we said, be tried in a civilian court under the AFSPA without union government authorisation, a process that is criticised by human-rights monitors.

Law Grants ‘Effective Immunity’

 Meenakshi Ganguly, South Asia director at Human Rights Watch told Article 14 that the absence of civilian control over the military justice system was “concerning” because a “genuinely independent and impartial judiciary should be separate from the executive branch of the government”. 

“...that is why we oppose the AFSPA because it can grant effective immunity from civilian prosecution for serious rights violations,” said Ganguly. 

Ravi Nair, executive director of South Asia Human Rights Documentation Centre, an advocacy group, argued that the Tribunal decision in Capt Singh’s case was “troubling” but not “surprising”.

In March 2023, SAHRDC, while welcoming the life sentence for Capt Singh, had cautioned that the sentence would only be final if and when confirmed by the northern army commander, a lieutenant general who oversees military operations in Kashmir. 

“The brooding presence of the past cautioned one’s reaction,” said Nair. “The caution, unfortunately, has only confirmed our worst fears in the decision of the Tribunal.”

Former northern army commander Lt Gen D S Hooda (retd) argued that the Army had done its job, pronounced the officer guilty and sentenced him to life imprisonment.

“The Army took the decision very quickly and the officer was court martialed,” Lt Gen Hooda told Article 14. “You need to understand that ATF (Armed Forces Tribunal) is not part of the army. It’s a completely independent institution. Since they have given a verdict, we cannot blame the Army for this.” 

“If the families aren’t satisfied with the verdict, they can take the legal route to challenge the decision,” Hooda said. 

Singh’s counsel, Maj Pandey, said that sections 30 and 31 of the The Armed Forces Tribunal Act barred a challenge to its interim order before any court. The families can challenge the final verdict of the Tribunal in the J&K High Court. 

Such challenges were not allowed until a Supreme Court ruling on 23 May 2023 overturned a 2015 verdict that  barred jurisdiction of high courts over armed forces Tribunals’ decisions. 

How Soldiers Escaped Prosecution

This is not the first time that a Tribunal has suspended sentences of soldiers held guilty of killing civilians and passing off them as militants. 

On 16 July 2017, an armed forces Tribunal suspended a life-imprisonment sentence pronounced two years earlier on six soldiers by a military court, which said they had killed three civilians in Kashmir’s Kupwara district and passed them off as Pakistani terrorists.

Other accusations of murders by soldiers have similarly escaped prosecution.

In the Pathribal fake encounter case of 2000, where the army allegedly killed five civilians and later passed them off as foreign militants, according to the Central Bureau of Investigation, there’s been no progress after 23 years. 

In central Kashmir’s Ganderbal district, a civilian was allegedly in army custody, after which the J&K police filed murder charges against five soldiers in 2007, but the army contested jurisdiction the same year, citing AFSPA.

In March 2018, the J&K police requested approval from the Centre to pursue charges against 23 soldiers over their suspected role in the death of a 30-year-old college lecturer, allegedly beaten in army custody in August 2016. The approval was not given.

That year, the union government informed the upper house of Parliament, the Rajya Sabha, that it had received 50 requests from the J&K government to prosecute armed forces personnel. These requests were denied in 47 cases, three were “pending”.

Nair said “unhappy” past experiences had shown that the army resists any move by the J&K police to get custody of or prosecute soldiers.

“A military jurisdiction can be problematic both for military defendants who feel they are being treated unfairly, and victims of abuses and their families, who wish to see justice done,” said Ganguly. 

That certainly appears to be in the case in the Shopian killings.

‘What Kind Of Justice Is This?

When news of Capt Singh's suspended sentence became public, agitation was apparent in the Dharsakri and Tarkasi villages of Rajouri, where the families of the three slain men live.

“The Army and police have proved that Singh killed our kin in a staged encounter, but the same institutions have granted bail,” said Mohammad Yousuf, father of Ibrar Ahmad. “What kind of justice is this?” 

Yousuf said they would challenge the decision and fight the case “come what may”.  Ahmad is survived by wife and a child.

Mohammad Yousuf's family in Tarkassi village of Rajouri, Jammu, on 18 August 2020, before the Armed Forces Tribunal verdict suspending the life sentence to Capt Bhoopendra Singh was pronounced on 13 November 2023. Photo: Ayushi Malik

Bagga Khan, father of Muhammad Ibrar, said news of Capt Singh’s suspended sentence and bail sparked a “familiar feeling”, from three years earlier, when his son was “unjustly” killed and accused of being a militant. 

“We were absolutely shocked to know that the sentence of the captain has been suspended,” said Khan. “We are hurt because the Army has accepted that it was their fault.”

The Tribunal decision in Capt Singh’s case also sparked political outrage, including from two former chief ministers.

Altaf Bukhari, president of newly created J&K Apni party, said the ATF ruling was “regrettable” because the killing of the three cousins was “cold-blooded murder”. 

“I don’t know what were the considerations of the Tribunal in bailing him (Capt Singh) out, but it has hurt our sentiments,” said Bukhari, “And it makes us believe that when it comes to justice for the people of Kashmir, the standards are different.”  

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