Rebuttal of the Prosecution and the Verdict

There was no evidence whatsoever led by the prosecution to substantiate the charges on which I was arraigned. The whole case of the prosecution hinged around the confessional statement. And the prosecution did not, as they could not, lead any evidence required to give corroboration to the circumstances which were allegedly disclosed by me. Interestingly the statement was instead, contradicted by the prosecution witnesses. More interesting was the deposition by Captain Sudhir, who said that he was the person who obtained the confession and by Majors Jolly and Solanki who said that they were the independent witnesses to see to the recording; neither of them said they had read the contents of the statement to which they claimed they were the witnesses.

The statements of Gnrs Aya Singh and Sarwan Dass were the only evidence which showed my connection with the Pak FIU. But their statements were inadmissible in evidence because of various factors like the "immediacy and spontaneity" of the disclosure of my name as their accomplice, as both of them deposed for 3 years in retrospect. Otherwise too, they were materially contradicted.

At the time when I was forced to write that though I was on leave, I had spent the leave in station, I had wanted to insist that I did not, but as I had become apprehensive of the pernicious designs of my interrogators I had refrained from saying so. I could insist on further proofs that as per their story I was in my village and not in Samba, but I was afraid lest they played the proofs against me by changing the period of my deception for a time when I was infact in Samba. If they do so, I have cooked my goose, I thought.

I was allotted a house in Samba in June 1974. But I had not brought my wife to the station because of my child was very small. Hence I had stayed in the house along with Captain VK Dewan, the GSO 3(Int) of the Brigade and dined in the officers mess.

Following the news of my child's sickness in the first week of July 1974, I had gone to Yol and applied for a month's leave, which was the balance of my annual leave. However I was sent back to Samba to conduct the interrogation of a Pak National named Barkat Masih, apprehended by the BSF at the border while corssing it. After the interrogation I had proceeded again to Yol on 14 July 1974 on a temporary duty. From there I had left for my home on 17 July 1974 for a period of one month. (This was the date when Captain Nagial was alleged to have been taken across the border by the Aya Singh for the first time).

While I was absent from Samba, there was a sudden requirement of an Intelligence Officer at Samba. So Captain Gulshan Kumar the Intelligence Officer of 527 Int. and Fd. Security Company, was sent on temporary duty. He stayed there till the first week of August 1974.

Thus apart from other evidence, Captain Gulshan was the officer who could smash the story of prosecution. He could depose from the documentary evidence to show that I had never spent the leave in station as he was the officer who had been sent to Samba in my absence. Then there was plenty of other evidence to show that I had spent the leave in my village, during the period when I was alleged to have been deceived across the border.

During the leave I had filed a number of applications in the office of State Electricity Board, in order to obtain an electricity connection for my house. This I had done on the advice and with the help of Shri OP Sawhney whom I had been meeting almost daily.

I could also show my presence in the village from the credit detail register of a local Baniya, from whom I used to take items of daily use on credit. Thus if I could show my presence away form Samba, as I was, then the evidence on which I was arrested by the MI Directorate would be proved as false and deliberately created with some ulterior motive. And if the basic evidence was fake then the confessional statement could not be held as voluntary. This fact was required to be proved.

Captain Gulshan Kumar was summoned as a DW. I requested an interview with him before his deposition in the court. And when I reminded him, Captain Gulshan denied that he came to Samba during the alleged period. He was not prepared to remember even when I apprised him that there were documents like the Move Order and the TA/DA claims to show that he in fact, was an officer present at Samba during the alleged period.

In a desperate bid to remind him, I said, `Gulshan look, I distinctly remember that you had gone to Samba, during my absence in the last week of July and first week of August 1974. I remember this also because of the fact that it was I who paid your mess dues of the period on my return, following your request. I implore you to kindly check up the documents. This is very important.... You see it is not a question of my life alone; there is something much deeper, pernicious, which must come out...'

`Rathaur you are unnecessarily stressing upon it. I told you I don't remember going to Samba in your ansence. Hence there is no question of checking anything,' replied Gulshan.

`Alright; tell me if you remember that I proceeded on leave from Yol and the person who'd signed the leave certificate was you?', I asked contemptuously.

I felt a stabbing pain to find the callous attitude of the army officers known as gentleman and who were once my close associates. They were not prepared to support my plea even on the strength of documents! And the most painful part of the story was the meanness with which Captain Gulshan had denied to remember the facts. Because it was for Gulshan that I had to probably undergo the torture. I had suspected Captain Gulshan and had said to Colonel Gupta, ".... while their real accomplice appears to be some one else, I can help you to trace the real culprits..." But the Colonel had not listened to me then, and later I had refrained from even thinking about Gulshan let alone giving his name and revealing to the interrogators that it was not me but Gulshan who was present in Samba during the alleged period. I thought, "The poor fellow will not be able to rebut the allegation if this is put on him." And it was this same officer denying everything, including the existence of documents.

While deposing in the court Captain Gulshan, however, did say that I had proceeded on leave from Yol. He also deposed that my work of collecting Intelligence was praised by the authorities concerned.

Though various other documentary evidence and oral testimonies, I was able to establish my presence in my village Rakkar, during the period when I was alleged to have been deceived across to Pakistan by Captain Nagial and Gnr Aya Singh.

Captain Nagial was summoned and produced as DW. He categorically denied having met me in July 1974, let alone deceived me.

`.... I met Rathaur, after my passing out from the academy in June 1969, for the first and the last time in May or June 1975, in the office of the GSO 2 (Int) Major SC Jolly,'deposed Nagial.

During the cross examination Nagial said that he was arrested under suspicion of spying following the false disclosure of his name by Gnr Aya Singh, who was also the only witness from the prosecution, against him.

Nagial was charged for committing a civil offence under the Official Secrets Act Sec 3 (1) (c), under AA Section 69, but was acquitted by the court that tried him, of the charges.

"I was sentenced to 7 years RI under Section 63 of the AA i.e. Prejudicial to good order and military discipline and in that the court, probably suspected that I had knowledge of Gnr Aya Singh's activities, which I did not. Gnr Aya Singh was a relation of mine who had not only implicated me in spying but had also tried to implicate me in the false charge of murdering his wife, who was a niece of mine."

Nagial also revealed that he had obtained stay orders against his conviction from the High Court at Simla. However, not withstanding the orders of the court, the army authorities had confirmed the punishment and committed him to Central Jail Jammu.

It showed the gross neglect and the respect for the orders of even the High Court, by the Indian army authorities!

Nagial also denied any responsibility for my involvement, `I did not incriminate Captain Rathaur at anytime during or after my interrogation under torture."

Then who did it? And why was it done? It was a question which baffled me, as I had thought that my name was given by Nagial under the threat of torture. This it became a question which was very hard to answer.

Though no evidence whatsoever was produced by the prosecution to show that I, as per the charge was seen in or around Samba, let alone at or even around the border, for the purposes of spying or otherwise, I produced documentary evidence to show that during my leave from June to August 1976 and June to July 1977, I was present in my village. The evidence so produced was in the form of Central Bank of India, Nadaun branch office records, the records of the village Cooperative Society and through the testimonies of the village Surpanch and Secretary of the Cooperative Society. Thus there was nothing which stood against my acquittal except for one most pertinent question: what will happen to the top brass who had already convinced the Central Government about the involvement of the spies of Samba, if I, the first stone of the inverted pyramid, was acquitted?

In order to give credence and strength to the allegation of torture, I insisted, against the advice of my counsel, to call Lieut Colonel SN Tandon, the then 21C who'd accompanied me to Delhi. Lieut Colonel Tandon was the last person from my unit who had seen my physical condition just before the torture.

I was sure that Major Tandon, who had served with me for two years and had not only seen me at close quarters but had also eaten from the same place and slept under the same roof, would tell in the court about my two injuries, mutilation of left ear cartilage and the slurring of speech. These defects did not exist earlier; the defects which were at present, noticeable clearly. But I was wrong. Lieut Colonel Tandon, no doubt, had been pressurised and tutored. Probably he was afraid of saying anything which was unfavourable to the prosecution, except that he had to admit about the slurring. But he also gave his unqualified opinion, `I dont know if it is due to feigning.' About the ear he denied any knowledge.

During the cross examination he said that I knew about the impending interrogation which I had discussed with him.

`Did you ask the accused as to how he knew, it was interrogation?' The counsel for the prosecution asked.

`Yes. He told me what the cause of his suspicion was, and why we two were going,' replied Tandon.

Since a DW prosecution, objected to any suggession or leading question put to him by the defence counsel with a view to reminding Tandon, of the correct and complete circumstances under which I had discussed about my apprehension regarding the nature of our duty.

Was that a coincidence that Tandon had forgotten all about the manner of discussion of various points put forward by me, leading to my suspicions?

In order to further refute the story of Gnr Aya Singh, I requested to summon the revenue authorities of the area and accordingly Shri Bishan Singh Girdawar (a rank junior to a Naib Tehsildar in the hierarchy of Indian revenue department) alongwith the patwaries of the area subordinate to him came and deposed in the court. It was established that no taxi could ply on the route described by Aya Singh, let alone on the route described in my CS, during the period as it was alleged.

The distances as mentioned by Aya Singh during his deposition were contradicted materially by the witness who deposed after having ascertained the distances on the ground physically. It was also established through the revenue records that the BOP Kandral as well Kandral village were in India (Revenue records were referred because the military map was not made available) There was no village Kandral in Pakistan in that area.

I had brought out in my statement in the court that I had become a victim of Pakistan's Intelligence conspiracy. Since I had collected valuable information and hampered their interests, the Pakistan FIU wanted to neutralise me. In order to render my operations suspect, they utilised the services of their trusted and trained agents like Aya Singh and Sarwan Dass. In that, not only was I neutralised, but the entire Intelligence Organisation at Samba wiped out. The motives were as follow :

(a) To obtain pardon for their agents

(b) To create a sense of insecurity, demoralisation and frustration among the troops serving on the border areas, by implicating loyal officers and men of the Indian army in false cases of espionage.

In closing address of the prosecution, my earlier knowledge of the interrogation was the only main argument for demanding conviction. The other was, "Since in such cases another country is involved it is neither possible nor feasible to acquire evidence from across the border. So if the prosecution has been able to create even a "little doubt" in the minds of the members of the Hon'ble court, it has been "proved" its case. Since the offence has been committed by an officer he should be given the maximum permissible punishment", was the contention of the prosecution.

The defence counsel had intelligently proved by quoting various rulings of the Supreme Court and High Courts of the country that the "confession" was not voluntary and it could not be made the basis of the charges framed against me; testimonies of the Gnrs could not be relied upon, because, they had been in the past, proved to be liars by other courts, their character was shady, the manner of their deposition in the court was questionable, the fact that they themselves were not tried alongwith the accused or otherwise for the offence committed by them i.e. espionage, and that they have been materially contradicted by the defence witnesses. "There are two options for the court either to believe Gnr Aya Singh, or Shri OP Sawhney the Junior Engineer, and Shri Bishan Singh Girdawar the independent witnesses who have nothing to do with the outcome of the case. And there is no reason to disbelieve these witnesses who have deposed on the basis of the documentary evidence against the oral testimony of the Gnrs...."

But everything else was ignored by the court, except the prosecution!

On 2 August, 1979, the sky was overcast with clouds and the atmosphere was changed with eariness. But I did not notice what was happening outside my cell, as I was busy talking with my defending officer, who had come to meet me early in the morning.

`Your case has gone extremely well; even beyond my expectations, Rathaur,... but I've my own apprehensions,' Colonel Desai told me, `I just cannot visualise the very thought of what would happen, to so many people right from the top after your acquittal... so dónt feel overjoyed till the final outcome.'

It was the day of verdict.

The inevitable always shows in advance. I had also seen it coming on the day when the arguments in my defence were led. It had taken over five hours to argue the defence case on the day of its closing. Some of the senior members except the Presiding Officer who looked forlorn, while listening, were observed dosing off, when the same set of members listened to each word with full affention during the prosecution arguments.

Notwithstanding such indication I was sure I would be acquitted and was overjoyed. And why not, had I not waited for that day to come, the day I would breathe in freedom!

The court was ordered to assemble at 0900 hours. Accompanied by the guard, I was led to the waiting room and from there shifted to the veranda, a place reserved for the Prosecution.

All members of the G.C.M. had arrived in time except the Presiding Officer Brigadier Anand Keleor, who was absent. At a quarter to ten he rang up the court room. The call was attended by the Prosecutor. The Presiding Officer asked, `Has Mr. Sethi come?'

`No, sir,' replied the Prosecutor.

Then the Prosecutor asked me if the Defence Counsel was coming, which he was not. The Prosecutor informed the Presiding Officer accordingly... The Presiding Officer disclosed to the Prosecutor that he was speaking from the MI Room and that he would come after ten or fifteen minutes.

The Presiding Officer did not come even till 10.30 A.M. Instead Lieut SS Sohi came. He enquired from the escort officer if the verdict was over he had been called to produce the character roll of the accused.

The character roll is required to be produced in the Army Courts to ascertain the extent of punishment after an accused has been held guilty of the offence he is charged with.

Then where was the requirement of calling the Commanding Officer at a time when the court had not even assembled let alone considering its decision.!

When the Presiding Officer did not come even till around 11 A.M., a senior officer Lieut Colonel Surinder Nath rang up the MI Room.

`The Presiding Officer did not come here,' replied someone from the MI Room attending the phone.

`But he said he was talking from the MI Room,' enquired Colonel Surinder Nath.

`No, he did not,' was the short reply.

Thereafter Colonel Surinder rang up the residence of the Brigadier and finally the AAG at the Corps Hqs, but the Presiding Officer was not to be traced at any of these places.

Brigadier Anand, the Presiding Officer came to the court at about 00.45 PM.

Where could he have disappeared, I had been speculating. Of course I could deduce an answer by the evening of the same day. He was attending a "secret conference" of senior delegates of the MI Directorate.

So my case has been decided even before the court could do so, I thought to myself. The closing address by the DJAG was read out and the court was closed for "deliberations". After about thirty five minutes, I was marched in and the verdict was read. "... You have been found guilty of both the charges," The Presiding Officer announced and he declared the court adjourned for lunch.

It reassembled at 4 P.M for deciding my fate. And finally, the price of my loyalty, sincerely and devotion was announced:

"1. Dismissal from service.

2. To be cashiered; and

3. Sentenced to undergo 14 years of Rigorous Imprisonment."