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JUDGEMENT OF THE SUMMARY COURT MARTIAL OUGHT NOT TO BEEN INTERFERED BY THE TRIBUNAL: SC

 UNION OF INDIA v. DAFADAR KARTAR SINGH AND ANOTHER, Criminal Appeal Nos. 3-4 of 2015-  9th December, 2019

CORAM: Two judge bench comprising of Justice L. Nageswara Rao & Justice Hemant Gupta

Wherein, it was being held in this case that

“The judgement of the Summary Court Martial regarding house breaking ought not to have been interfered with by the Tribunal.”

The facts of this case are as follows – The Respondent, Mr. Dafadar Kartar Singh, was serving in the 74th Armoured Regiment at Panagarh, West Bengal in the year 1998, residing in the quarters of SBI Lines. A man named Mr. Sowar Kishore Kumar Yadav who is also residing in the same quarters, got hospitalized on 14.10.1998 & due to that his wife, Smt. Sudesh, was staying alone in the quarters. Since the latter was alone, her neighbour’s son Jayendra alias Master Bittoo was requested to stay with her. Around midnight of 14/15.10.1998, Smt. Sudesh heard the sound of a bottle breaking in the toilet of her home and she also spotted the movement of a person in the toilet. She saw a man wearing a light coloured sleeveless vest and a kuchha coming out of the toilet. He switched off the lights of the lobby & toilet & she called out Master Bittoo for help. The intruder meanwhile entered and switched off the bedroom light and Bittoo along with Smt. Sudesh woke up and started screaming that there is a man. Some people entered the bedroom and started inquiring what happened while some people were busy inspecting the toilet and were trying to find out as to how the intruder managed to sneak inside the house. Smt. Sudesh came out of her house and saw three people namely Mr. Lance Naik A Hussain, Havildar K. K. Thakaran and Naik Ramesh Yadav amongst other people who gathered outside the quarters. Amongst them, she spotted and recognised the intruder who was standing with them. Risalsdar Pritam Singh came visited the house on 15.10.1998 at 2 PM to investigate and found the window of the toilet & a bottle of acid been broken recently.

The respondent was then therein tried by the Summary Court Martial for the civil offence of house breaking & was found to be guilty of charge and gave a rigorous imprisonment sentence of seven months plus dismissal of service and reduction in the ranks. Challenging the Summary Court Martial’s order, the respondent had filed a writ petition in front of the Punjab HC, which got transferred to the Armed Forces Tribunal. The conviction was however set aside by the Armed Forces Tribunal, Regional Bench, Chandigarh. The Tribunal directed that the respondent shall be deemed to be in service w.e.f 10.11.1999 till the date of his superannuation in the rank of Dafadar, plus all allowances for the said period and pensionery benefits and then on 6.2.2012, the tribunal set aside the conviction and directed reinstatement of the respondent without consequential benefits.

The respondent was medically examined by the Army Doctor, Captain C.P. Patel on 18.10.1998 and he found out that the abrasions on the arm to be three or four days old almost close to the house breaking day, i.e., 14/15.10.1998

The question of law rose as to whether should the respondent be punished? Whose judgement is to be taken, the Summary Court Martial’s or the Tribunal’s?

The following witnesses were being examined:

Mr. Lance Naik A Hussain – He stated he knew the respondent who was also staying at a block of the quarters opposite to Mr. Sowar Kishore Kumar Yadav. The former stated that he had an ear ache so was unable to sleep & at about 11 PM, heard a boy shouting for help. He took a talwar and went outside & heard Smt. Sudesh & Master Bittoo crying. He shouted to Om Prakash a man who stayed in the same block, for help & they both entered by opening the door with the talwar. . Lance Naik A Hussain inspected the toilet and found the window was removed. He smelt a specific fragrance in Smt. Sudesh’s quarters which came from the respondent too while while he was examining the latter’s abrasions.

Smt. Mithilesh, mother of Master Bittoo, too came as a witness. She stays in the opposite quarter of the respondent. On 14.10.98, at about 10.30 PM, she was stitching & her husband was sleeping. She heard screams for help and woke her husband & saw the respondent running up the common stairs of the quarters, wearing a light coloured sleeveless vest and a kuchha.

Smt. Sunil Devi – She also stated that she smelt a perfume from the respondent & the same in Smt. Sudesh’s quarter.

The tribunal felt that the statement of Smt. Sudesh to be inconsistent and felt the evidence which Smt. Sudesh holds is not strong enough to prove that the respondent is guilty, as at the very next day of the incident, at 6. 45 AM she reported to witness Pritam Singh that she could not recognize the intruder. The Tribunal too highlighted the fact that Smt. Sudesh was well acquainted with the respondent. They felt there is a ring of truth in the statement she gave to Pritam Singh and there is no reason for her to falsely implicate the respondent.

It was observed that

“The judgements of acquittal may be reversed or otherwise disturbed for only very substantial and compelling reasons exist like when the trial court has ignored or misread the evidence/documents like dying declarations, report of ballistic expert, etc..”

It was also observed that the Tribunal miserably failed to consider the other oral testimonies, especially Master Bittoo who too stated that he saw the respondent especially at Smt. Sudesh’s quarters, where he was staying. The other thing the Tribunal has ignored is the bruises of the respondent and the opinion of the doctor.

Due to the above observations, it was held that the order of the Tribunal is to be set aside and the order of the Summary Court Martial to be restored.

– Nardhana Ram

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