Wednesday, July 13, 2016

Acquittal in a criminal case does not entitle a person to automatic reinstatement. = The tribunal came to the collective conclusion that no satisfactory evidence had been adduced by the prosecution to sustain the conviction of DK Singh and therefore the tribunal set aside the conviction giving him the benefit of doubt. From a perusal of the impugned judgment, it is clear that the tribunal has acquitted the appellant-DK Singh on the ground that the prosecution has not established the guilt of the accused beyond reasonable doubt. It is not as if, the appellant-DK Singh was honourably acquitted. It is also to be pointed out that as discussed above, that we have taken the view that the identity of the appellants by PW-14 (Manager) and PW-18 (Cashier) is credible and acceptable. Evidence of PW-14 and PW-18 identifying DK Singh as one of the culprits is a factor to be reckoned with while considering the plea of the appellant-DK Singh for reinstatement. Additionally, it is to be pointed out that as seen from the evidence of K. Rama Krishna Rao-Inspector of Police (PW-17) on 10.06.1998, DK Singh deposited Rs.90,000/- in his bank account No.3395 of SBI BR Township Branch and the explanation of the appellant for this deposit is not convincing. Having regard to our findings on the evidence of PWs 14 and 18, the acquittal of appellant-DK Singh itself becomes a debatable point. However, we do not propose to go into this aspect since the Union of India has not filed any appeal challenging acquittal of DK Singh. Appellant–DK Singh who was only granted benefit of doubt cannot seek for reinstatement and the consequential benefits and his appeal is also liable to be dismissed.


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPEAL NO. 325 OF 2012

AJAY KUMAR SINGH                                               ...Appellant
& ORS.                                              ...Respondents
                      CRIMINAL APPEAL Nos………..… OF 2016
             (Arising out of SLP (Crl.) Nos. 8037-8038 of 2012)

DHIRENDRA KUMAR SINGH                         ...Appellant
INDIAN NAVY & ORS.                                        …Respondents
                     CRIMINAL APPEAL NOS. 471-472 OF 2013

UMESH KUMAR SINGH                                            …Appellant
& ORS.                                              …Respondents

                               J U D G M E N T


              Delay condoned and leave granted in  SLP  (Crl.)  No.8037-8038
of 2012.
2.           Appellant-Ajay Kumar Singh (AK Singh), Ex-Seaman,  First  Class
(appellant in Criminal Appeal No.325 of 2012)  and  Umesh  Kumar  Singh  (UK
Singh), Ex-Radio Operator (Special),  First  Class  (appellant  in  Criminal
Appeals No.471-472 of 2013) have assailed  the  judgments  of  Armed  Forces
Tribunal, Chennai in T.A. No.139 of 2010 dated 11.11.2010 and T.A. No.11  of
2011 dated 05.01.2012 and order dated 17.02.2012 passed in  Review  Petition
No.2 of 2012 in and by which the tribunal affirmed  the  conviction  of  the
appellants under Sections 342 and 392 IPC read with  Section  77(2)  of  the
Navy Act, 1957 and modified the sentence of  imprisonment  to  that  of  the
period already undergone by  them.   Appellant  Dhirendra  Kumar  Singh  (DK
Singh), Ex-Leading Seaman, Physical Trainer, Second Class who was  acquitted
by the tribunal with pensionary benefits,  has  preferred  separate  appeals
seeking direction for reinstatement  and  other  monetary  benefits.   These
criminal appeals though assail separate judgments of Armed Forces  Tribunal,
Chennai, as the appeals arise out of the same  bank  robbery  incident,  all
the appeals  were  heard  together  and  are  disposed  of  by  this  common
3.          Brief facts  which  led  to  filing  of  these  appeals  are  as
follows:  Mr.  N.K.  Marwaha,  Branch  Manager  of  Andhra  Bank,  Extension
Counter, situated at Utility Complex,  INS  Virbahu  filed  a  complaint  on
04.06.1998 at Malkapuram Police Station alleging that  at  about  7.20  p.m.
while settling the accounts for the day  along  with  Nallamuthu  Dass,  the
cashier, noticed two persons entered the bank stating that  they  wanted  to
open a bank account and the third  person  entered  after  them.   Of  three
persons, two were armed with two countrymade pistols, a khukri and  an  iron
rod and they together threatened the manager and cashier to open iron  safe.
Manager-Marwaha and cashier opened the iron chest and the  culprits  removed
Rs.2,54,376/- from the cash tray of the iron safe and kept the same  in  the
blue colour rexin bag which they were carrying.   They  removed  the  money,
the three persons locked the manager and the cashier inside the strong  room
of the bank  before  escaping  in  a  metallic  blue  Bajaj  Chetak  scooter
alongwith the blue colour cash bag.  During the commission of  the  offence,
the culprits were concealing their identity by wearing helmets  with  visors
and masks. After forcing open strong room where they had  been  locked,  the
manager filed a complaint on 04.06.1998  before  Malkapuram  Police  Station
based on which first information report was registered  in  Crime  No.34  of
1998 under Sections 392 and 342 IPC read with Section 25 (1-A) of  the  Arms
Act.  The Naval Police had taken  over  the  investigation;  but  they  were
unable to  make  headway  into  identity  of  the  accused  persons  despite
recovery  of  the  scooter  and   other   articles   on   23.07.1998.    The
investigation was then handed  over  to  the  civil  police.  After  further
investigation, civil police arrested appellants AK Singh  and  UK  Singh  on
30.07.1998.  Appellant DK Singh was arrested at Howrah  Railway  Station  on
24.07.1998  and  thereafter  brought  to  Visakhapatnam  on  28.07.1998.  On
30.07.1998 all three persons were  remanded  to  custody  in  central  jail,
Visakhapatnam. Based on  the  statement  of  the  accused  persons,  certain
recoveries were made. On 17.08.1998,  identification  parade  was  conducted
and PWs 14 and 18 identified the appellants.
4.          The Commissioner of  Police,  Visakhapatnam  vide  letter  dated
28.10.1998 advised the  Flag  Officer,  Commanding-in-Chief,  Eastern  Naval
Command,  Visakhapatnam  to  try  the  accused  persons  by  Court  Martial.
Therefore, the appellants  were  transferred  to  naval  custody  under  the
provisions of Section 475  Cr.P.C.  read  with  Criminal  Courts  and  Court
Martial  (Adjustment  of  Jurisdiction)  Rules,  1978  and  the  matter  was
investigated  afresh  by  the  Commanding  Officer,  INS   Circars.    After
completion of investigation, chargesheet was filed  against  the  appellants
on 26.06.1999 under Sections 392 and 342 IPC read with  Section  77  (2)  of
the Naval Act and Section 25(1-A) of the Arms Act read  with  Section  77(2)
of the Navy Act:-(i) for  committing  a  robbery  of  Rs.2,54,371/-  at  the
Andhra Bank Extension Counter at INS Virbahu; (ii) for wrongful  confinement
 of the bank manager and cashier;  (iii)  for  possession  of  country  made
pistol and three rounds of ammunition whilst committing   the  offence;  and
(iv) that  accused  had  remained  absent  without  leave.        The  Court
Martial was convened on 16.07.1999 and the appellants were tried before  the
Court Martial.
5.          Before the Court  Martial,  twenty  nine  prosecution  witnesses
were examined. Upon consideration of evidence, the Court Martial  found  the
appellants guilty of various charges and sentenced them to  undergo  various
imprisonments. Additionally, all three appellants  were  imposed  punishment
of dismissal with disgrace and to suffer such other consequential  penalties
involved. The appellants preferred statutory appeals  before  the  Chief  of
the Naval Staff in accordance with Section 162 of Navy Act 1957.  The  Chief
of Naval Staff confirmed the conviction of the appellants  and  reduced  the
imprisonment and maintained dismissal of the appellants with  disgrace  from
the naval service.
6.          The details of charges framed against the  appellants,  findings
of  the  court  martial,  punishment   and   findings   of   the   appellate
authority/Chief of the Naval Staff are as under:-
|Name of  |Charges Framed     |Findings of the     |Findings of the  |
|the      |                   |Court Martial and   |Appellate        |
|Appellant|                   |Punishment          |Authority/Chief  |
|         |                   |                    |of the Naval     |
|         |                   |                    |Staff            |
|AK Singh |1. Under Section   |Found guilty of     |Maintained the   |
|         |392 IPC read with  |charges 1 and 2     |conviction and   |
|         |Section 77 (2) Navy|under Sections 392  |reduced the      |
|         |Act.               |and 342 IPC read    |sentence to      |
|         |2. Under Section   |with Section 77(2)  |twenty four      |
|         |342 IPC read with  |Navy Act and        |months;          |
|         |Section 77 (2) Navy|sentenced to undergo|Confirmed        |
|         |Act.               |RI for sixty months;|dismissal from   |
|         |3. Under Section 25|dismissal from      |service with     |
|         |(1-A) Arms Act read|service with        |disgrace.        |
|         |with Section 77 (2)|disgrace and to     |                 |
|         |Navy Act.          |suffer consequential|                 |
|         |                   |penalties involved. |                 |
|UK Singh |1. Under Section   |Found guilty of     |Maintained the   |
|         |392 IPC read with  |charges 1, 2 and 4  |conviction and   |
|         |Section 77 (2) Navy|under Sections 392, |reduced the      |
|         |Act.               |342 IPC read with   |sentence from    |
|         |2. Under Section   |Sections 77(2) and  |ninety six months|
|         |342 IPC read with  |51 of Navy Act and  |to seventy two   |
|         |Section 77 (2) Navy|sentenced to undergo|months; confirmed|
|         |Act.               |RI for ninety six   |dismissal from   |
|         |3. Under Section 25|months; dismissal   |service with     |
|         |(1-A) Arms Act read|from service with   |disgrace;        |
|         |with Section 77 (2)|disgrace and to     |forfeiture       |
|         |Navy Act.          |forfeit fourteen    |mullets of pay   |
|         |4.  Under Section  |days mullets of pay |and allowances   |
|         |51 Navy Act.       |and allowance and   |for fourteen days|
|         |                   |suffer consequential|and to suffer the|
|         |                   |penalties involved. |consequential    |
|         |                   |                    |penalties.       |
|DK Singh |1. Under Section   |Found guilty of     |Maintained       |
|         |392 IPC read with  |charges 1, 2,3 and 5|finding of Court |
|         |Section 77 (2) of  |under Sections 392, |Martial except on|
|         |Navy Act.          |342 IPC read with   |charge No.5 under|
|         |2. Under Section   |Sections 77 (2), 60 |Section 49(2)(b) |
|         |342 IPC read with  |(a) and 49 (2)(b) of|who is found     |
|         |Section 77 (2) of  |the Navy Act.       |guilty of        |
|         |Navy Act.          |Sentenced to undergo|alternate charge |
|         |3. Under Section   |RI for 120 months   |under Section 51 |
|         |60(a) Navy Act.    |dismissal from      |of the Navy Act  |
|         |4. Under Section 25|service with        |and reduced      |
|         |(1-A) Arms Act read|disgrace and        |sentence from 120|
|         |with Section 77 (2)|consequential       |months to 96     |
|         |Navy Act.          |penalties involved. |months. Reduced  |
|         |5. Under Section 49|                    |the rank to  Sea |
|         |(2) (b) of Navy    |Charge No. 4 – Not  |I.               |
|         |Act.               |guilty.             |                 |
|         |Alternatively,     |                    |                 |
|         |under Section 51   |                    |                 |
|         |Navy Act.          |                    |                 |

7.          Challenging the conviction and the punishment of dismissal  with
disgrace, the  appellants  have  filed  writ  petitions  before  the  Andhra
Pradesh High Court which upon constitution  of  the  Armed  Forces  Tribunal
were  transferred  to  Armed  Forces  Tribunal,  Chennai  and  the  tribunal
disposed of the appeals confirming  the  conviction  of  the  appellants  AK
Singh and        UK Singh. The tribunal disbelieved the  versions  of  PW-14
(Manager) and PW-18 (Cashier) and held that PWs 14 and  18  could  not  have
seen the faces of the culprits at the time of  committing  the  crime  since
even according to the prosecution  the  accused  covered  their  faces  with
masks and helmets and were conversing only by  lifting  the  visors  of  the
helmets. PW-15 fingerprint expert opined “that fingerprints  marked  as  ‘A’
and ‘B’ tallied with the specimen fingerprints of appellants  AK  Singh  and
UK Singh” (Exs.P46 and P47).  Based on the evidence of PW-15  V.  Hanumantha
Rao, Fingerprint Expert,  the  tribunal  confirmed  the  conviction  of  the
appellants-AK Singh and UK Singh and reduced the  sentence  of  imprisonment
imposed on the appellants AK Singh  and  UK  Singh  to  the  period  already
undergone by them and maintained their dismissal.
8.          In so far as DK Singh  is  concerned,  the  tribunal  held  that
there is no satisfactory evidence to establish his guilt and  acquitted  him
giving him benefit of doubt.  The tribunal directed that DK  Singh’s  period
of arrest till the date of sentence by the Court Martial  shall  be  counted
for the qualifying service to enable DK  Singh  to  get  his  pension.   The
tribunal however held that DK Singh shall not be entitled  to  any  monetary
benefit like backwages etc. for the interregnum period except that the  same
is counted for qualifying service for getting pension.  Being  aggrieved  by
declining the relief of reinstatement and other monetary benefits, DK  Singh
has preferred Criminal Appeals arising out of SLP (Crl.)  No.  8037-8038  of
9.           Learned counsel for the appellants  and  appellant    DK  Singh
who appeared in person reiterated the pleas urged before the  court  martial
and the tribunal and submitted that great injustice has  been  done  to  the
appellants in not following the procedure established  by  law  inasmuch  as
there  was  non-compliance  of  the  provisions  of   Section   5   of   the
Identification of Prisoners Act, 1920 in  taking  the  fingerprints  of  the
appellants.  It was submitted that the photographs of  the  appellants  were
taken and were shown to the PW-14 (manager) and PW-18  (cashier)  to  enable
them to identify the appellants-accused without which,  it  would  not  have
been possible for PW-14 and PW-18 to identify them since even  according  to
the prosecution version when they entered  the  bank  in  order  to  conceal
their identity, they were wearing helmets  and  visors.   It  was  submitted
that  the  Court  Martial  and  the  Tribunal  committed  serious  error  in
appreciating the evidence and material on record.
10.         Per contra, learned counsel for the respondents  submitted  that
the case of the appellants have been extensively dealt with by the  tribunal
and all the questions of law and fact have been  considered  at  length  and
the tribunal has passed a reasoned order wherein all the  issues  raised  by
the parties  have  been  considered  and  the  impugned  order  warrants  no
interference.  In so  far  as  appellant–DK  Singh  it  was  submitted  that
acquittal in the criminal case does not entitle him for reinstatement as  he
was not honourably acquitted but was  given  benefit  of  doubt  and  cannot
claim reinstatement as of right.
11.         We have carefully considered the rival contentions  and  perused
the impugned judgments and material on record.
12.         PW-14 (Manager) and PW-18 (Cashier) have  clearly  spoken  about
the occurrence that on the date of incident  on  04.06.1998,  three  persons
entered into the bank and threatened PW-14 and  PW-18  by  showing  gun  and
committed robbery in the bank.  Before the Court Martial,  PW-14  and  PW-18
have identified the three appellants as the culprits who  committed  robbery
in the bank.  PW-14 and PW-18 have  also  spoken  about  the  identification
parade held in the prison and that they have identified  the  appellants  in
the test identification parade.
13.         The tribunal disbelieved the evidence of  PW-14  and  PW-18  and
their identification of the appellants on the ground  that  they  could  not
have seen the faces of the culprits at the time of  commission  of  offence,
since even according to the prosecution, the appellants were covering  their
faces with masks and helmets with visors and they  lifted  the  visors  only
while  conversing with the bank personnel and tribunal held that  there  was
no possibility of PW-14 (Manager) and PW-18 (Cashier) seeing  the  faces  of
the accused.  The tribunal further relied upon the  representation  made  by
the  appellants  to  the  Metropolitan  Magistrate  that   they   had   been
photographed by the police to enable the eye-witnesses (PWs 14  and  18)  to
identify them in the test identification parade and on those  findings,  the
tribunal disbelieved  the  evidence  of  PW-14  and  PW-18  insofar  as  the
identification of the appellants.
14.         The tribunal, in our view, was not  right  in  disbelieving  the
evidence of PW-14 (Manager) and PW-18 (Cashier) as to the identification  of
the appellants as the culprits  who  committed  robbery  in  the  bank.  The
occurrence was at 7.20 p.m. on 04.06.1998.  At the time of  occurrence,  the
bank personnel including PW-14 and  PW-18  were  working  and  settling  the
accounts and were about to close the bank. Since  the  bank  personnel  were
still at work in the bank, it is reasonable to assume that there was  enough
light to do so  inside  the  bank.  The  appellants  who  entered  the  bank
initially asked PW-14 to open the bank account.  Before however PW-14  could
refuse, the appellants took out a revolver  and  other  weapons.   From  the
evidence of PW-14 and PW-18, it is clear that  the  incident  lasted  for  a
brief period during which the appellants were talking  to  each  other.   As
per the evidence of PW-14 and PW-18, while the culprits were  so  conversing
lifting their visors, they were able to see  the  culprits.  It  is  obvious
that the extraordinary situation, in which the incidence occurred must  have
left an indelible  impression  in  the  mind  of  the  witnesses  about  the
identity of the culprits.  Be it noted that immediately after the  incident,
 PW-14 (Manager) lodged  the  complaint  before  Malkapuram  Police  Station
wherein he gave the descriptive particulars of  the  three  culprits  namely
their age, height, colour complexion etc. and also given the details of  the
weapons.  As noted earlier, identity of the appellants by  PW-14  and  PW-18
in the court is also corroborated by identification of the appellants by PW-
14 and PW-18 in the test identification parade.  In that view, the  tribunal
was not right in disbelieving the evidence  of  PW-14  (Manager)  and  PW-18
(Cashier). It is also pertinent to note that PW-14 and PW-18 had  no  reason
to falsely implicate the appellants which aspect was not  kept  in  view  by
the tribunal.  To that extent, we differ from the findings of  the  tribunal
and accepting the evidence of PW-14 and PW-18 and  maintain  the  conviction
of appellants-AK Singh and UK Singh.
15.         Yet another piece of evidence relied upon by the prosecution  is
the recovery of weapons from AK Singh.  As per the  prosecution,  appellant-
AK Singh was arrested  on  30.07.1998  and  based  on  his  confession,  the
weapons used in the commission of offence were recovered  under  Section  27
of the Evidence Act. Photographs of the weapons/material  objects  recovered
were produced before the court martial and the tribunal has noted  that  the
photograph of the weapon was taken on 29.07.1998 itself, as  seen  from  the
requisition  for  taking  photo  of  the  weapons.  The  tribunal  therefore
disbelieved the prosecution case in so far as the  recovery  of  the  weapon
used at the time of committing the  offence.  Since  we  did  not  have  the
benefit of perusing the photographs, so produced, we are not expressing  any
view about the findings of the tribunal on this aspect.
16.         To sustain the conviction  of  AK  Singh  and  UK  Singh,  court
martial as well as the tribunal relied  upon  the  evidence  of  Fingerprint
Expert-V. Hanumantha Rao (PW-15) who had stated  that  upon  information  to
the control room on 04.06.1998, he reached the scene of occurrence at  Naval
Base, Andhra Bank  Extension  Counter,  INS  Virbahu  at  9.00  p.m.   While
examining the scene of occurrence, PW-15 observed  two  chance  fingerprints
on the glass entrance door of the bank. PW-15 developed the  same  with  his
universal or white powder and marked them as “A” and “B” for the purpose  of
lifting them by taking photos.  As the photographer was not  available,  PW-
15 left the scene of occurrence and on the next day morning i.e.  05.06.1998
at  about  0800  hrs.,  PW-15  took  the  police  constable  Trimul   Kumar-
photographer of MFSL Unit,  Visakhapatnam  and  photographed  the  preserved
chance fingerprints. The chance fingerprints so  lifted  were  kept  in  the
office  of  PW-15  for  comparison.   The  police  supplied   the   specimen
fingerprints of bank officials for comparison and as per the evidence of PW-
15, fingerprints of the  bank  employees  did  not  tally  with  the  chance
fingerprints lifted from the entrance door of the  bank.  Two  months  later
after the arrest of the appellants, specimen fingerprints of  AK  Singh,  UK
Singh and also DK Singh were sent to PW-15 for comparison.   On  comparison,
PW-15 noted that the chance fingerprint marked  “A”  was  identical  to  the
specimen right  middle  finger  impression  marked  as  “S1”  which  is  the
specimen fingerprint of appellant-AK Singh and the said report   was  marked
as Ex.P-46.  In Ex.P-47-report, PW-15 opined that chance fingerprint  marked
“B” was identical to the specimen right index finger  impression  as  “S(a)”
which is the specimen finger impression of appellant-UK Singh.
17.         Contention of respondents is that evidence of  PW-15-Fingerprint
Expert incriminates the appellants AK  Singh  and  UK  Singh.   However,  in
proving this incriminating evidence, there seems to be lapses  on  the  part
of the prosecution. As noticed  earlier,  police  constable  Tirumal  Kumar-
photographer of MFSL Unit had taken the photographs of the preserved  chance
fingerprints. To prove the chance  fingerprints  lifted  from  the  entrance
glass doors of the bank, the prosecution should have proved the  photographs
by examining constable-Trimul Kumar and should have produced  the  negatives
of  the  photographs  of  the  chance  fingerprints.   This  lapse  in   the
prosecution, in our view, cannot result  in  acquittal  of  the  appellants.
The evidence adduced by the prosecution must  be  scrutinized  independently
of such lapses  either  in  the  investigation  or  by  the  prosecution  or
otherwise, the result of the criminal trial would depend upon the  level  of
investigation or the conduct of the  prosecution.   Criminal  trials  should
not be made casualty for such lapses in the  investigation  or  prosecution.
Evidence of PW-14 (Manager) and PW-18 (Cashier) identifying  the  appellants
and  their  evidence  as  to  identity  of  the  appellants  in   the   test
identification parade ought not to have been disbelieved  by  the  tribunal.
In exercise of power under Section 30 of  the  Armed  Forces  Tribunal  Act,
this Court  normally  does  not  re-appreciate  the  evidence  and  slow  to
interfere with the findings of the  tribunal  unless  there  is  substantial
question of public importance.  But when it is found  that  appreciation  of
evidence in a given case is vitiated by serious error, this  Court  can  re-
appreciate the evidence and interfere with the findings.  In our  view,  the
tribunal was not right in disbelieving the evidence of PW-14  (Manager)  and
PW-18 (Cashier) in identifying the appellants AK  Singh,  UK  Singh  and  DK
Singh as culprits and their  identity  in  test  identification  parade  and
their conviction is to be affirmed on the evidence of PW-14  and  PW-18,  if
not on the evidence of fingerprint expert and the appeals are liable  to  be
18.         In  so  far  as  appellant-UK  Singh,  prosecution  has  adduced
evidence to show that after the incident, he has deposited  huge  amount  in
his bank account. PW-29-Gopal Priyadarshi, Assistant, Central Bank of  India
stated that appellant-UK Singh is having account No.8206 in Central Bank  of
India, Azamgarh Branch, Uttar Pradesh and that he had deposited  Rs.81,600/-
on 11.06.1998. Ex. P76 is  the  certificate  issued  by  the  Central  Bank,
Azamgarh dated 07.10.1998 as per which the last balance in  the  account  of
UK Singh is Rs.1,32,670/- including an interest of Rs.570/-.  PW-29  deposed
that as  per  Ex.C-11,  pay  in  slip,  the  denomination  of  the  cash  of
Rs.81,600/-  deposited  by  the  accused  was,  one   bundle   of   Rs.500/-
(Rs.500x100=50,000/-), 316 notes of Rs.100/-  (Rs.100x316=  31,600/-)  total
Rs.81,600/-. Appellant-UK Singh has not explained the source  of  such  huge
amount deposited in the bank on 11.06.1998 which is a  strong  incriminating
circumstance against the appellant.
19.         Facts leading to DK Singh’s arrest are slightly  different  from
those of AK Singh and UK Singh.  DK Singh was  serving  on  Board  alongwith
other sailors in INS Anjadip, Visakhapatnam on 04.06.1998. He collected  his
Genform No.358/S dated 03.07.1998 from ship  INS  Anjadip  at  Visakhapatnam
and proceeded to his  next  duty  station  for  POPTI  ‘Q’  course  at  INS,
Venduruthy, Cochin. DK Singh alongwith his wife,  children  and  brother-in-
law proceeded towards his native  place  by  Corromandal  express.   On  the
basis of information, DK Singh was arrested at  Howrah  Railway  Station  on
24.07.1998,  was  kept  under  custody  till  28.07.1998  at  Calcutta   and
thereafter he was brought to Visakhapatnam on 28.07.1998.  In Court  Martial
inquiry, DK Singh was found  guilty  and  sentenced  to  undergo  ten  years
rigorous  imprisonment  and  dismissal  with   disgrace   from   navy   with
consequential penalties. Upon  appeal,  his  conviction  was  confirmed  and
sentence was reduced to eight years.  The  tribunal  acquitted  appellant-DK
Singh by giving him benefit of doubt.  While acquitting DK  Singh,  tribunal
directed that the appellant-DK Singh is deemed to  have  been  retired  from
service with effect from 03.05.2004  on  completion  of  qualifying  service
required for pension. Assailing the same, appellant-DK Singh has  filed  the
appeal seeking for reinstatement and other consequential benefits.
20.         As in the case of other  appellants,  tribunal  disbelieved  the
identification of DK Singh by PWs 14  and  18.   The  tribunal  accepted  DK
Singh’s plea that his photograph was taken on the  same  date  when  he  was
placed under custody  i.e.  on  29.07.1998  and  identification  parade  was
conducted on 17.08.1998.  The tribunal was of the  opinion  that  there  was
probability for the investigating agency to have shown his photo to  PWs  14
and 18.  As discussed earlier,  we  have  differed  from  the  approach  and
finding of the tribunal in appreciation of evidence of PW-14  and  PW-18  in
identifying the appellants.  However, since Union of  India  has  not  filed
any appeal challenging acquittal of appellant DK Singh, we  do  not  propose
to go into these aspects.
21.         It is fairly well settled that acquittal  by  a  criminal  court
would not debar an employer from exercising power  in  accordance  with  the
Rules and Regulations in force. [vide Ajit Kumar  Nag   v.  General  Manager
(PJ), Indian Oil Corporation  Ltd.,  Haldia  and  Ors.  (2005)  7  SCC  764,
T.N.C.S. Corpn. Ltd. and Ors. v. K. Meerabai (2006) 2 SCC 255]
22.         Acquittal in a criminal  case  does  not  entitle  a  person  to
automatic reinstatement.  In Union of India and Anr. v. Bihari  Lal  Sidhana
(1997) 4 SCC 385, it was held as under:-
 “5. It is true that the respondent was acquitted by the criminal court  but
acquittal does not automatically give him the right to  be  reinstated  into
the service. It would still be open  to  the  competent  authority  to  take
decision whether  the  delinquent  government  servant  can  be  taken  into
service or disciplinary action should  be  taken  under  the  Central  Civil
Services (Classification, Control and Appeal) Rules or under  the  Temporary
Service Rules. Admittedly, the respondent had been working  as  a  temporary
government servant before he was  kept  under  suspension.  The  termination
order indicated the factum that he, by then, was  under  suspension.  It  is
only a way of describing him as being under suspension when the  order  came
to be passed but that does not constitute  any  stigma.  Mere  acquittal  of
government employee does not automatically entitle  the  government  servant
to reinstatement. As stated earlier, it would be  open  to  the  appropriate
competent authority to take a decision whether the enquiry into the  conduct
is required to be done before directing reinstatement or appropriate  action
should be taken as per law, if otherwise, available.  Since  the  respondent
is only a temporary government servant,  the  power  being  available  under
Rule 5(1) of the Rules, it is always open  to  the  competent  authority  to
invoke the said power and terminate the services of the employee instead  of
conducting the enquiry or  to  continue  in  service  a  government  servant
accused of defalcation of public money. Reinstatement  would  be  a  charter
for him to indulge with impunity in misappropriation of public money.”

23.         Only if the employee had been  honourably  acquitted,  could  he
make a claim  for  reinstatement.  In   the   case  in  hand,  the  tribunal
acquitted the appellant-DK Singh:-(i) as in the case  of  AK  Singh  and  UK
Singh, tribunal disbelieved the identification of appellant-DK Singh by  PW-
14 (Manager) and PW-18 (Cashier) and (ii) the weapons that were  alleged  to
have been recovered on the basis of confession of  DK  Singh  on  12.08.1998
appears to have been photographed on  29.07.1998  by  the  prosecution,  the
tribunal thus rejected the prosecution case that weapons, bag  and  suitcase
were recovered on the basis of confession given  by  DK  Singh.   Unlike  AK
Singh and UK Singh’s case, DK Singh did not have  incriminating  fingerprint
evidence at the scene of occurrence and DK  Singh  raised  defence  plea  of
alibi.  According to DK Singh he was on  duty  along  with  four  others  on
aboard Indian Naval Ship, Anjadip on 04.06.1998  from  0900  hours  to  1300
hours and then again from 1525  hours  to  0740  hours  on  05.06.1998.   To
examine this plea of alibi, the tribunal called for  the  Duty  Ashore  Book
maintained at INS Anjadip (Original of Ex. P.32).   DK  Singh  claimed  that
the document  entry  at  Sl.  No.53  was  tampered  with  and  consequently,
tribunal noted that there indeed was some overwriting in Sl.  No.53  besides
the column for the name of  the  individual.  The  tribunal  concluded  that
prosecution had not placed  any  material  on  record  to  show  that  after
finishing his duty at 1300 hours, appellant-DK Singh was  allowed  to  avail
off and thus the tribunal concluded that in the absence of evidence that  DK
Singh was allowed to go off after 1300 hours on 04.06.1998, the  benefit  of
doubt must be afforded to him.
24.          The  tribunal  came  to  the  collective  conclusion  that   no
satisfactory evidence had been adduced by the  prosecution  to  sustain  the
conviction of DK Singh and therefore the tribunal set aside  the  conviction
giving him the benefit of doubt. From a perusal of  the  impugned  judgment,
it is clear that the tribunal has acquitted the appellant-DK  Singh  on  the
ground that the prosecution has not established the  guilt  of  the  accused
beyond reasonable doubt. It  is  not  as  if,  the  appellant-DK  Singh  was
honourably acquitted. It is also to be pointed out that as discussed  above,
that we have taken the view that the identity of  the  appellants  by  PW-14
(Manager) and PW-18 (Cashier) is credible and acceptable. Evidence of  PW-14
and PW-18 identifying DK Singh as one of the culprits  is  a  factor  to  be
reckoned with while considering the  plea  of  the  appellant-DK  Singh  for
reinstatement.  Additionally, it is to be pointed out that as seen from  the
evidence of K. Rama Krishna Rao-Inspector of Police (PW-17)  on  10.06.1998,
DK Singh deposited Rs.90,000/-  in  his  bank  account  No.3395  of  SBI  BR
Township Branch and the explanation of the appellant  for  this  deposit  is
not convincing.  Having regard to our findings on the  evidence  of  PWs  14
and 18, the acquittal of  appellant-DK  Singh  itself  becomes  a  debatable
point.  However, we do not propose to go into this aspect  since  the  Union
of India has not  filed  any  appeal  challenging  acquittal  of  DK  Singh.
Appellant–DK Singh who was only granted benefit of  doubt  cannot  seek  for
reinstatement and the consequential benefits and his appeal is  also  liable
to be dismissed.
25.         In the result, all the appeals are dismissed.

        (T.S . THAKUR)

New Delhi;
July 13, 2016

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.