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Thursday, July 16, 2015

Confession Statement= we have noticed is that the GCM has relied on the statement made vide Ext. 36. On a studied scrutiny of the statement of the accused, we find that the appellant was asked whether he was inclined to make a statement and also apprised that he was not obliged to say anything unless he wanted to say. That apart, a warning was given to him that whatever he would say would be taken down in writing and given in evidence. Thus, there was no compulsion. It was a voluntary statement and the meat of the matter is that it had been done under a statutory Rule and has been proven to the hilt before the GCM. We repeat at the cost of repetition, nothing has been elicited in the cross- examination or brought on record which will make the statement hollow and unreliable.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION



                      CRIMINAL APPEAL NO. 1112 OF 2011



Om Prakash                                   … Appellant

                       Versus

Union of India & Ors.                              … Respondents





                               J U D G M E N T



DIPAK MISRA, J.



            The present appeal, by special leave, is  directed  against  the
judgment of affirmation of conviction and order of sentence  passed  by  the
Armed  Forces  Tribunal,  principal  Bench,  New  Delhi  (for   short   “the
tribunal”) in T.A. 617 of  2009  whereby  the  tribunal  has  confirmed  the
conviction under Section 304 Part-II,  I.P.C.  and  the  sentence  of  seven
years of rigorous imprisonment imposed by the General Court Martial held  at
Babina in the State  of  Madhya  Pradesh  vide  order  dated  24.2.2007  and
further has maintained the order dated 18.3.2008  passed  by  the  Chief  of
Army Staff under Section 164(2) of the Army  Act,  1950  (for  brevity  “the
Act”).
2.    Be it stated, the initial order was challenged before the  High  Court
of Delhi in W.P.(C) No. 7266 of 2009 and after  coming  into  force  of  the
Armed Forces  Tribunal  Act,  2007  (for  short  ‘the  2007  Act’)  and  the
constitution of the tribunal the matter  was  transferred  to  the  tribunal
wherein it was treated as an appeal under Section 15 of the said  enactment.

3.          The facts necessary to be exposited  for  adjudication  of  this
appeal are that on 3rd of April, 2006, a ‘Barkhana’  was  organized  at  85,
Armoured Regiment to bid farewell to  the  outgoing  Risaldar,  Major  Madan
Lal.  At the Barkhana venue some heated arguments  took  place  between  the
appellant and Risaldar, Nand Lal Prasad, PW5,  and  in  course  of  argument
said Nand Lal  Prasad  slapped  the  appellant.   However,  the  matter  was
defused with the intervention of  Major  Raj  Nandan,  PW4,  who  instructed
Lance Dafdar Anil Kumar, PW6 and Lance Dafadar Murari Singh,  PW7,  to  take
the accused to his living barracks of Headquarter Squadron.
4.    As per the prosecution version  during  the  altercation  and  assault
between the accused and Nand Lal Prasad, deceased  Dafadar  Ram  Pratap  had
tried to intervene and was abused by the accused.   After  the  accused  had
left for the barracks of the Headquarter, about 12.30 a.m., Sowar  Balwinder
Singh, PW6, came to the line after finishing his  duties  allotted  to  him,
and after entering the room switched on the  light  and  found  Dafadar  Ram
Pratap was lying in a pool of blood and blood was also oozing out  from  his
mouth.  He was immediately  shifted  to  the  Army  Hospital  where  he  was
declared dead.  About 1.30 a.m. on 4.4.2006, information was  received  from
the police station Babina  by  the  85,  Armoured  Regiment  that  a  person
belonging to their regiment  had  surrendered  at  the  police  station  and
stated that he had stabbed one person with a knife.  On receipt of the  said
information, the concerned J.C.O. was sent to the police  station  where  he
saw that Dafadar Om Prakash was present.  After  receiving  the  information
from the J.C.O., the Commanding Officer, Col. Rajiv Chib, PW27,  along  with
Lt. Col. Atul Kumar Bhat, PW15, reached  the  police  station  Babina  about
1.50 a.m. and enquired from the  accused  about  the  details  to  which  he
confessed that he had stabbed the  deceased.   Thererafter,  an  F.I.R.  was
lodged by the Adjutant Captain Abhishek, PW3, and  the  accused  was  handed
over to the Military Police.  As the narration  would  further  unfurl,  the
proceedings of the General Court  Martial  (GCM)  under  the  Army  Act  was
initiated by order dated 8.10.2006  passed  by  Major  General  A.K.  Singh,
General Officer Commanding, 31st Armoured Division.

5.    Be it noted, the accused was charged for the  offences  under  Section
302 of I.P.C. for intentionally causing death of Ram  Pratap  of  his  unit,
but subsequently stood convicted for  culpable  homicide  not  amounting  to
murder under Part-II  of  Section  304,  I.P.C.   As  is  demonstrable,  the
prosecution in order to substantiate the charge had examined as many  as  31
witnesses and during the court martial number of documents  were  exhibited.
The Court Martial relied on Exbt. 36 which  was  recorded  at  the  time  of
summary of evidence wherein the accused had admitted that the  deceased  and
he were involved in a fight.  He had also stated that the  deceased  in  the
room had abused him and tried to kick him but  failed  in  the  attempt  and
when the accused stood up on ‘charpai’ the deceased boxed him  on  the  face
and at that time he pushed him back with both hands as a result of which  he
fell on the box and  was  hurt  on  his  back.   As  the  statement  further
proceeds, the deceased left the room and  came  back  within  five  minutes.
The accused, in the meantime, had picked up the knife from  the  locker  and
kept it on the box.  While he was sitting  in  the  ‘charpai’  the  deceased
came into the room and caught hold of the neck of the appellant  and  pulled
him towards his own locker.   The  appellant  got  hold  of  the  knife  and
stabbed the deceased on the chest so that he would leave  his  neck.   Apart
from the aforesaid, a confessional statement made by  the  accused  to  Col.
Rajiv Chib, Commanding Officer of the  regiment,  PW27,  at  police  station
that he had stabbed the deceased was also given credence to.  The  testimony
of Lt. Col. Atul Kumar Bhat, PW15, who  had  witnessed  the  confession  was
also taken into consideration.  In addition, during the  court  martial  the
corroborating statement of Court Witness No. 7  Naib  Subedar  J.M.  Sharma,
wherein the accused had stated to CW-7 at Police Station on  4th  of  April,
2006 about the incident that was caused due to anger and  intoxication,  was
also exhibited.  The GCM also believed that part of the  testimony  of  CW-7
wherein he had stated that from the condition of dress worn by the  accused,
it appeared that he was involved in a quarrel, for the accused had  a  minor
bruise on his right temple of the head.  The GCM referred  to  the  evidence
of Major (Dr.) M.C. Sahoo, PW1, and  Dr.  R.K.  Chaturvedi,  PW28,  who  had
deposed that the stab wound injury inflicted on the chest  of  the  deceased
was sufficient in ordinary course of nature to cause death.   The  GCM  also
took certain circumstances, namely, that  the  deceased  was  lying  on  the
floor in a pool of blood; that the accused was found lying on the  ‘charpai’
in the room in an injured condition; that he was present  in  the  room  and
eventually held thus:-

“Even though the accused had no intention to kill the deceased, the  accused
should be knowing the consequences of his action.   The  accused  should  be
conscious, that by stabbing at chest, which is  a  vital  part  of  a  human
body, the injured person is likely  to  die,  due  to  the  effect  of  such
injury.  A man expects the natural consequences of his action.   By  causing
such bodily injury on Dafadar Ram Pratap,  the  accused  should  be  knowing
that death is the likely consequence of  that  injury  even  though  accused
never intended to kill Dafadar Ram Pratap.

      Hence the court finds him Not Guilty of  committing  a  civil  offence
that is to say Murder contrary to Sec. 302 of IPC but Guilty  of  committing
a civil offence that is to say, culpable homicide not  amounting  to  murder
under Part-II of Sec. 304 of IPC.”



6.    In appeal the tribunal after adverting to the facts and  the  evidence
brought on record took note of the chain of circumstantial evidence  brought
on record and opined thus:-

“The appellant/accused himself reached at  the  Police  Station  Babina  and
reported with regard to the incident  and  desired  him  to  be  taken  into
custody.  From the statement of the PW31 Constable  Clerk  Munna  Lal  Verma
who informed to the military authorities about the surrender of the  accused
at Police Station Babina.  It was also clarified by  him  in  his  statement
that it was the intervening night of 3/4th April 2006 at  about  1.30  hours
or 2.00 a.m. the accused  came  to  the  Police  Station  and  was  slightly
frightened and told that in the Unit there  was  Barakhana  party.   He  had
quarrel with few people and so  he  be  protected.   The  timings  when  the
accused surrendered at the Police Station would itself  reconcile  with  the
time of the causing of the fatal injury and it would lead to the  conclusion
that after causing injuries  when  PW13  Dafadar  Muneshwar  Shah  and  PW23
Acting Lance Dafadar Vikram Singh reached at  that  room,  he  slipped  away
from that place and could possibly reached at  Police  Station  at  1:30  or
2:00 a.m. on the intervening night of 3/4th April, 2006.  There the  accused
also confessed his guilt before PW3  Abhishek  Sharma  that  he  had  caused
stabbed injury to Dafadar Ram Pratap.   The  testimony  of  these  witnesses
could not be assailed.  However, PW29 Sub Inspector Lal Singh made it  clear
that on the first day the accused  confessed  his  guilt  and  for  that  an
application was also moved before the Magistrate but on next day he did  not
give his confessional statement.  The fact  remains  that  before  informant
Captain Abhishek Sharma he confessed his guilt and  his  testimony  remained
uncontroverted and it was supported  by  the  statement  of  PW30  Lt.  Col.
Sandeep before whom in  the  course  of  Summary  of  Evidence  the  accused
produced original copy of the statement (unsworn statement) vide  Exbt.  36.
In  his  statement  he  has  also  admitted  his  guilt.   There  is   ample
incriminating circumstances appearing against the appellant and proving  the
complete chain of circumstances  consistent  only  with  hypothesis  of  the
guilt  of  the  appellant.   Each   circumstance   are   appearing   to   be
incriminating in nature and  in  totality  the  conclusion  established  the
guilt of the appellant.  In that regard, reliance may be placed  on  Gilbert
Pereira v. State of Karntaka AIR 2004 12 SCC 281  wherein  it  was  held  as
under:

The  incriminating  circumstances  proved  against  the  appellant  form   a
complete  chain  of  circumstances  which  is  consistent  only   with   the
hypothesis of guilt of the appellant.  Each  circumstance  is  incriminating
in nature and the totality of  circumstances  conclusively  establishes  the
guilt of the appellant.

10.   From such incriminating circumstances  which  were  incompatible  with
the innocence of the guilt of any other person  the  GCM  was  justified  in
drawing the inference of guilt of the accused/appellant.”



             Being of this view, the tribunal  concurred  with  the  opinion
expressed by the GCM.

7.    We have heard Mr. Mohit Kumar Shah, learned counsel for the  appellant
for the  appellant  and  Mr.  B.V.  Balram  Das,  learned  counsel  for  the
respondent.

8.     It is submitted  by  learned  counsel  for  the  appellant  that  the
substantial  evidence  which  has  been  relied  upon  for   recording   the
conviction by the GCM  and  the  tribunal  cannot  form  the  foundation  of
conviction, for the confession made by the appellant at the  police  station
in presence of the authorities cannot be taken into consideration, and  that
apart heavy reliance  placed  on  the  statement  recorded  in  the  summary
enquiry under Rule 23 of the Army Rules, 1954 (for  short  “the  Rules”)  is
totally sans legal  substratum.   Learned  counsel  would  submit  that  the
tribunal has failed to analyse the unacceptable and incurable  discrepancies
in the evidence of witnesses  and,  in  fact,  at  places  has  relied  upon
certain hearsay evidence  which  make  the  analysis  perverse  and  in  the
ultimate eventuate the judgment has become absolutely dented.  It  is  urged
by him when the weapon of causing injury, that is, the knife  has  not  been
recovered, and the evidence as brought on record would show that apart  from
the appellant other  persons  were  also  present  in  the  room  while  the
deceased was murdered, the  circumstantial  evidence  could  not  have  been
regarded to have brought home  the  charge  against  the  accused.   Learned
counsel would submit that the  presence  of  the  accused  at  the  time  of
incident  as  per  the  evidence  available  on  record  is  doubtful   and,
therefore, the conclusion that has been arrived at deserves to be  dislodged
on the bedrock that it does not meet  the  criteria  of  proof  as  per  the
principles laid down  by  this  Court  in  relation  to  acceptance  of  the
circumstantial evidence.   Learned  counsel  has  seriously  criticized  the
approach of the tribunal in appreciation of the evidence on the ground  that
it is extremely perverse and does not withstand scrutiny.   To  bolster  his
submissions,  he  has  commended   us   to   decisions   in   Ravindran   v.
Superintendent of Customs[1] and Rumi Bora Dutta v. State of Assam[2].

9.    Learned counsel appearing for the respondent, resisting the  arguments
canvassed by Mr. Saha, has urged that  ample material has been  brought   on
record by the prosecution to establish  the  chain  as  required  under  the
concept of circumstantial evidence and  the  minor  discrepancies  here  and
there would  not  destroy  the  prosecution  case.   Learned  counsel  would
contend that 31 witnesses were examined during the GCM and their  deposition
appreciated in entirety undoubtedly and  decidedly  bring  home  the  charge
leveled against the appellant.  It is canvassed  that  the  non-recovery  of
the kitchen knife with  which  the  injury  was  caused  does  not  mar  the
prosecution case. Emphasis has been laid  on  the  statement  recorded  vide
Exhibit 36 under Rule 23 of the rules by Col. Sandeep Nagrat, PW  30,  which
has been corroborated by the court witness No.2, Risaldar Rajesh  Kumar  and
on that base, it is urged that there is no reason to discard the version  of
the prosecution.  It is further argued that the appellant  in  his  petition
dated 30.05.2007 under Section 164 of the Army Act had admitted that he  had
used the vegetable knife in his self-defence which resulted in the death  of
the victim and he had no  intention  to  cause  the  death  and  hence,  the
punishment awarded was very harsh, and the said admission goes  a  long  way
to establish the case of the prosecution.   Certain  authorities  have  been
cited to show how the proceedings before the GCM are meant  for  maintaining
military discipline under the Act and how the statement recorded under  Rule
23 can be placed reliance upon.

8.    First we shall record the injuries inflicted  on  the  deceased.   Dr.
R.K.  Chaturvedi,  PW28,  who  had  conducted  the  autopsy  had  found  the
following injuries on the body of the deceased:-

“The two ante mortem injuries were found on the dead body.   The  one  which
can be called Number 1 injury was stab wound on chest, at the left  side  of
size 3 x 2 cms and the second injury was linear abrasion at right back  side
of chest.  The size of linear abrasions was 3 ½ x 1 ½ cm.

The stab wound was 3 x 2 cm, at the margin of wound.   The  wound  was  deep
upto chest cavity, it was sharp and averted meaning protruding outside.

The linear abrasion was below the lower angle of right scapula.”

9.    In the opinion of the autopsy surgeon the injury  number  1  could  be
caused by knife which had caused  the  death  of  the  deceased.   From  the
evidence brought on record it has been established that  on  3.4.2006  there
was a farewell party, that is,  ‘Barkhana’   to  bid  farewell  to  Risaldar
Major Madan Lal;  that drinks were  served  in  the  said  party;  that  the
appellant had entered into an altercation with  Risaldar  Nand  Lal  Prasad,
PW5, and the appellant had fought with him and abused him  and  consequently
PW5 had slapped the appellant; that the appellant had  abused  PW5  and  the
deceased; that the said altercation was intervened  by  Risaldar  Major  Raj
Nandan Rai, PW4, and at that juncture he had  directed  Lance  Dafadar  Anil
Kumar, PW6, and Lance Dafadar Murari Singh, PW7, to take the accused to  his
living barracks;  that as per the directions of the authority PW-6 and  PW-7
had guided the appellant to the barracks; that the deceased was found  lying
on the floor bleeding from mouth and nose and the appellant was found  lying
on his bed on his stomach with hands folded beneath  in  the  same  room  by
Sowar Balwinder Singh, PW26, at about 0030 hours when  he  had  returned  to
the barracks; that on being alerted by PW 26, Dafadar Muneshwar,  PW13,  and
Sowar Nakul Prasad, PW12 had made arrangements for taking the  deceased  for
medical aid; that apart from the deceased and the  appellant,  no  one  else
was present in the room as per the  testimony  of  Dafadar  Major  Ghanshyam
Pukan, PW18, Sowar Balwinder Singh,  PW26,  Sowar  Nakul  Prasad,  PW12  and
Dafadar Muneshwar, PW13; that  Dafadar  Major  Ghanshyam  Pukan,  PW18,  and
Dafadar Muneshwar, PW13,  had  witnessed  the  appellant  leaving  the  room
quietly via the rear door; that the appellant was absent from the  ‘fall  in
parade’ that was conducted at  0200  hours;  and  that  at  0150  hours  the
Commanding Officer, Col. Rajiv Chib, PW27, and Lt.  Col.  Atul  Kumar  Bhat,
PW15,  met  the  appellant  at  PS  Babina,  wherein   the   appellant   had
surrendered.

10.   From the aforesaid established  facts  which  are  founded  on  proper
appreciation of the evidence by the forums below, and  we  are  inclined  to
think rightly, it  is  quite  vivid  that  the  chain  of  circumstances  is
complete.  We have  concurred  with  the  analysis  of  the  evidence  after
critically scrutinizing the evidence of  the  prosecution  witnesses.   What
has weighed with the forums below is that the appellant was present  in  the
room and had escaped.  The  circumstances  that  really  weigh  against  the
appellant are that he had indulged in an altercation in the party;  that  he
was in a drunken state and he was alone present in the  room;  and  that  he
had escaped by the rear door and his presence at the police  station  at  an
odd hour and his absence at the “fall in parade”.  Learned counsel  for  the
appellant had endeavoured to argue that other persons were  present  in  the
room and for the said purpose he has shown some lines from  here  and  there
but the evidence read in entirety established beyond  any  shadow  of  doubt
that the accused was alone in the room.  He  being  present  at  the  police
station and not being present at the  “fall  in  parade”  are  circumstances
which would go against him.  He has not been able to  give  any  explanation
about his presence at the police  station  and  the  factum  that  on  being
informed by the Head constable the army officers arrived  at  the  concerned
police station.    There can be no cavil over the proposition  as  has  been
laid down by this Court in  Hema  v.  State[3],  Union  of  India  v.  Major
Rabinder Singh[4], Appabhai v. State of  Gujarat[5]  and  Rohtash  Kumar  v.
State of Haryana[6] that the circumstances  from  which  the  conclusion  of
guilt is sought to be established must be conclusive in nature. In the  case
at hand the series of  circumstance  clearly  establish  the  guilt  of  the
accused and the minor discrepancies  that  have  been  pointed  out  by  the
learned counsel for the appellant,  really do not create any  kind  of  dent
in the testimony of the prosecution witnesses to treat them as  reproachable
and remotely do not destroy the prosecution version.

11.    Apart  from  the  aforesaid  evidence,  we  have  to   consider   the
evidentiary value of Exhibit 36, the  statement  recorded  at  the  time  of
summary of evidence under Rule 23 of the Rules.  The said  Rule  deals  with
procedure for taking down the summary of evidence.  Rule  23  of  the  Rules
being pertinent is reproduced below:-

“23.  Procedure for taking down the summary  of  evidence.-  (1)  Where  the
case is adjourned  for  the  purpose  of  having  the  evidence  reduced  to
waiting, at the  adjourned  hearing  evidence  of  the  witnesses  who  were
present and gave evidence before the commanding officer, whether against  or
for the accused, and of any  other  person  whose  evidence  appears  to  be
relevant, shall be taken down in writing in the presence and hearing of  the
accused before the commanding officer or such officer as he directs.

(2)   The accused may put in cross-examination such questions as  he  thinks
fit to any witness, and the questions  together  with  the  answers  thereto
shall be added to the evidence recorded.

(3)    The evidence of each witness after it has been recorded  as  provided
in the rule when taken down, shall be read over to him, and shall be  signed
by him, or if he cannot write his name shall be attested  by  his  mark  and
witnessed as a token of the correctness of  the  evidence  recorded.   After
all the evidence against the accused has been recorded, the accused will  be
asked: “do you wish to make any  statement?  You  are  not  obliged  to  say
anything unless you wish to do so but whatever you say will  be  taken  down
in writing  and may be given in evidence.” Any statement thereupon  made  by
the accused shall be taken down and read to him, but he will not  be  cross-
examined upon it.  The accused  may  then  call  his  witnesses,  if  he  so
desires, any witnesses as to character.

(4)   The evidence of the witnesses  and  the  statement  (if  any)  of  the
accused shall be recorded in  the  English  language.   If  the  witness  of
accused, as the case may be, does not understand the English  language,  the
evidence or statement, as  recorded,  shall  be  interpreted  to  him  in  a
language which he understands.

(5)   If a person cannot be compelled to attend as a witness,  or  if  owing
to the exigencies of service or any other  grounds  (including  the  expense
and loss of time involved), the attendance of  any  witness  cannot  in  the
opinion of the officer taking  the  summary  (to  be  certified  by  him  in
writing),  be  readily  procured,  a  written  statement  of  his   evidence
purporting to be signed by him may be read to the accused  and  included  in
the summary of evidence.

(6)   Any witness who is not subject to military  law  may  be  summoned  to
attend by order under the hand of the commanding  officer  of  the  accused.
The summons shall be in the form provided in Appendix III.



12.   As we have seen from the statement recorded in  the  said  proceeding,
all the safeguards were followed.  The  appellant,  as  has  been  indicated
hereinbefore, had stated thus:-

“10. After  Squadron  Dafedar  Major  left,  Lance  Dafedar  Chunbad  Prasad
reached.  He was going on posting.   He  closed  his  bedding  and  got  his
luggage lifted by two Ors.  He before leaving the barrack/room said  to  me,
“Adjutant Mera, Officer Commanding  Mera,  Troop  Leader  Mera,  Senior  JCO
Mera, Agar to Report Karega to Teri Maa Chudwa Doonga”.

11.  After this Dafedar Ram Pratap came inside the room while Lance  Dafedar
Chunbad Prasad and Dafedar Muneshwar Sah were  standing  outside  the  room.
Dafedar Ram Pratap kicked me, but it hit the Charpoy.   He  said  “Madarchod
Raste Me Charpoy Dal Kar So Raha Hai”.  As soon, I stood up on the  Charpoy,
be boxed me on my face.  At that time I pushed him  back  with  both  hands.
He fell on the box.  His vest got torn and was hurt on his back.

12.  Thereafter, Dafedar Ram Pratap went out of the room.  He came  back  to
the room after approximately 5 minutes.  I picked up my  knife  from  locker
and kept it next to me on the box.  I kept sitting on the Charpoy.  He  came
back to room and got hold of my neck and pulled me towards his  own  locker.
Meanwhile, I was hit by a stick on my shoulder.  I got  hold  of  the  knife
and stabbed him (Dafedar Ram Pratap) on the chest so that he would leave  my
neck.  He fell on the ground between the two charpoys.”



13.   The said statement has been proven during the GCM vide  Exhbt.  36  by
Col. Sandip Nagra, PW30.  It has also  been  supported  by  Risaldar  Rajesh
Kumar, CW2.  Despite  roving  cross-examination,  both  the  witnesses  have
firmly stood embedded to their version.  The challenge to the said  document
shows the hollowness of assault on  the  part  of  the  appellant.   We  may
hasten to make it clear  that  we  are  not  placing  any  reliance  on  the
confession made by the appellant before the  Army  officers  at  the  police
station in  the  presence  of  police  officers.   We  are  restricting  our
analysis only to the statement recorded under Rule 23 of the Rules  and  how
the testimony of the witnesses deposing about the statement have  absolutely
stood firm during cross-examination.   In  this  regard,  reference  to  the
pronouncement in Bachan Singh v. Union  of  India  and  others[7]  would  be
seemly.  In the said case, the appellant  therein  faced  the  GCM  and  was
found guilty of the charge and sentenced to suffer  two  years  imprisonment
and dismissal of service.  The said order  was  set  aside  by  the  learned
Single Judge of the High Court against which the Union of India preferred  a
Letters Patent Appeal and that was allowed by the Division Bench.  That  led
the appellant therein to approach this Court in  appeal  by  special  leave.
The Court apart from taking note of the  statement  made  by  the  appellant
therein before the  GCM  also  took  note  of  the  first  summary  evidence
recorded in presence of the  witnesses.   In  that  context,  the  two-Judge
Bench opined:-

“11. The record of the Court Martial  produced  before  us  by  the  learned
Additional Solicitor General would reveal that the GCM was held against  the
appellant on different dates at Udhampur. The  record  would  disclose  that
the appellant had made voluntarily  written  confessional  statement  before
the GCM admitting the allegations levelled against him in the  charge-sheet.
On bare perusal of the GCM, it becomes  quite  clear  that  the  proceedings
were recorded by the GCM in the presence of  the  appellant,  his  defending
officer and other witnesses. The statements of Major S.K. Sareen, Smt  Vidya
Devi, Veena Kumari, Tara Chand, Rattan Singh, Prabhu Ram, Major S.B.  Ambel,
Pritam Singh, Capt. A.K. Chowdary, Major Amin Chand  Bhattee  were  recorded
by the GCM on behalf of the prosecution in support  of  the  charge  in  the
presence of the appellant. The appellant was afforded  full  opportunity  of
cross-examining the witnesses but he did not avail of the said opportunity.

12. It appears from the record that despite giving warning to the  appellant
to the effect that he was not obliged to make  any  confessional  statement,
the  appellant  made  written  confessional  statement  on  22-10-1980.  The
appellant  made  additional  statement  in  addition  to  first  summary  of
evidence on 10-9-1981 in the presence of witnesses, namely, IC-25616Y  Major
S.L. Gautam, independent witness and Major  Amin  Chand,  officer  recording
summary of evidence. It appears  from  the  record  that  second  additional
summary of evidence recorded on 10-9-1981 was in compliance  with  the  Army
Rules 23(1), 23(2), 23(3), 23(4)  and  23(6)  in  which  the  appellant  did
confess his guilt.”



14.   Learned counsel would submit that there was  a  confession  which  was
retracted in the proceeding before the GCM.  But what  we  have  noticed  is
that the GCM has relied on the statement made vide Ext. 36.   On  a  studied
scrutiny of the statement of the accused, we find  that  the  appellant  was
asked whether he was inclined to make a statement and also apprised that  he
was not obliged to say anything unless he wanted  to  say.   That  apart,  a
warning was given to him that whatever he would say would be taken  down  in
writing and given in evidence.  Thus, there was no  compulsion.   It  was  a
voluntary statement and the meat of the matter is  that  it  had  been  done
under a statutory Rule and has been proven to the hilt before the  GCM.   We
repeat at the cost of repetition, nothing has been elicited  in  the  cross-
examination or brought on record which will make the  statement  hollow  and
unreliable.

15.   In view of our aforesaid analysis, we find no merit in the appeal  and
accordingly the same stands dismissed.



                                             .............................J.
                                                               [Dipak Misra]


                                            ..............................J.
                [N.V. Ramana]
New Delhi
July 9, 2015

-----------------------
[1]

      [2]               (2007) 6 SCC 410
[3]

      [4]               (2013) 7 SCC 417
[5]

      [6]               (2013) 10 SCC 192
[7]

      [8]               (2012) 12 SCC 787
[9]

      [10]              AIR 1988 SC 696
[11]

      [12]              (2013) 14 SCC 434
[13]

      [14]              (2008) 9 SCC 161



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