inconsistency between the medical evidence and the oral testimonies of the witnesses -no blood on the weapon and the prosecution was unable to prove that there were any finger prints of the Respondent on the weapon.-the Respondent was not afforded an opportunity as provided in Rules 179 and 180 of the Rules - summory courtMartial order is liable to be set aside.
On 02.06.2011, at about 07:45 hrs, he assaulted Subedar/Master Technical (Communication) Satyendra Singh Yadav, with a Talwar (grass cutting tool) without any provocation. Initially, the
Respondent hit Subedar/Master Technical (Communication) Satyendra Singh Yadav on his head from
behind and when Subedar/Master Technical (Communication) Satyendra Singh Yadav turned around,
the Respondent hit on his forehead with the Talwar. When the Respondent attempted to give a third blow, Naib Subedar A. P. Singh intervened. =
The prosecution alleges that the
Respondent refused to cross-examine the witnesses though he was given an opportunity to do so.
By an order dated 23.07.2012, the Summary Court Martial found the respondent guilty and imposed the sentence of dismissal from service. =
The Tribunal held that there was an
irreconcilable inconsistency between the medical evidence and the oral testimonies of the witnesses.
According to the medical certificate, the injury caused to Subedar/Master Technical Satyendra Singh Yadav was a compressed injury whereas the Respondent is alleged to have wielded a grass cutting tool which is sharp-edged.
The Tribunal also found that there was no blood on the weapon and the prosecution was unable to prove that there were any finger prints of the Respondent on the weapon.
The Tribunal agreed with the Respondent that the Summary Court Martial was conducted in a hasty
manner. The entire enquiry was completed within a period of 45 minutes. After perusing the record of the summary of evidence, the Tribunal was of the opinion that the signatures of the Respondent appear to have been taken before the proceedings were held.
The Tribunal found that the signatures of the Respondent were at the right-side corner at the bottom of every page. On some pages where the depositions of the witnesses concluded at the middle of the page, the signature of the Respondent was found at the right side at the bottom of the page. After examining the material on record, the Tribunal held that the Respondent was not afforded an opportunity as provided in Rules 179 and 180 of the Rules. The Tribunal was of the further opinion that the procedure prescribed in Rules 115 and 116 of the Rules which deals with recording the plea of guilt of a delinquent was not followed. After a detailed discussion, the Tribunal ruled in favour of the Respondent by holding that the imposition of the penalty of dismissal was with a
pre-determined mind and was arrived at without following the procedure prescribed by law.=
Apex court held that
It is settled law that if two views can be reached, the one that leads to acquittal has to be preferred to the other, which would end in conviction. That apart, there is a clear violation of Rules 179 and 180 of the Rules and the respondent was deprived of an opportunity to defend himself. For the aforementioned reasons, the judgment of the Tribunal is upheld and the Appeal is dismissed.
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.1627 of 2019
(@ Diary No.1052 of 2018)
Union of India & Ors.
.... Appellant(s)
Versus
Sepoy Pravat Kumar Behuria.
…. Respondent
(s)
J U D G M E N T
L. NAGESWARA RAO, J.
1. This Appeal is filed against the judgment of the
Armed Forces Tribunal, Regional Bench, Lucknow
(hereinafter, ‘the Tribunal’) by which the order of
dismissal of the Respondent dated 23.07.2012 was set
aside.
2. The Respondent was enrolled in the Indian Army as
Sepoy in the Unit 981 AD Regiment Workshop on
02.02.2002. He was posted at Jamnagar on 01.06.2011
and was scheduled to be on the third night duty from
04:00 hrs to 06:00 hrs. Thus, he was excused from
physical training parade. On 02.06.2011, at about 07:45
1
hrs, he assaulted Subedar/Master Technical
(Communication) Satyendra Singh Yadav, with a Talwar
(grass cutting tool) without any provocation. Initially, the
Respondent hit Subedar/Master Technical
(Communication) Satyendra Singh Yadav on his head from
behind and when Subedar/Master Technical
(Communication) Satyendra Singh Yadav turned around,
the Respondent hit on his forehead with the Talwar.
When the Respondent attempted to give a third blow,
Naib Subedar A. P. Singh intervened. Subedar/Master
Technical (Communication) Satyendra Singh Yadav was
immediately shifted to Gokul Hospital, Jamnagar and a
surgery was conducted by a Neurosurgeon as his skull
bone was fractured leading to internal bleeding and blood
clotting in the brain.
3. The Court of Inquiry was convened against the
Respondent by Colonel Sanjay Khanna, Commanding
Officer, 48 AD Regiment on 03.06.2011 to investigate into
the circumstances which led the Respondent using
criminal force against Subedar/Master Technical
(Communication) Satyendra Singh Yadav. Nine witnesses
were examined and the Respondent declined to cross2 | P a g e
examine the witnesses though he was given an
opportunity. The Respondent also did not make any
statement in his defence. After appreciating the material
on record, the Court of Inquiry recommended action to be
initiated against the Respondent.
4. The proceedings for recording the summary of
evidence were initiated by Lt. Col. Amarvir Singh. Twelve
witnesses were examined on behalf of the prosecution
between 10.06.2011 and 15.06.2011. According to the
Appellants, the Respondent declined to cross-examine the
prosecution witnesses. The Respondent had voluntarily
given a statement that he hit the victim with a grass
cutting tool without any provocation. Thereafter, on
20.10.2011, additional summary of evidence was
recorded. Two additional witnesses were examined and
witness No. 2 and 12 were re-examined in the presence of
the Respondent. The prosecution alleges that the
Respondent refused to cross-examine the witnesses
though he was given an opportunity to do so.
5. By an order dated 23.07.2012, the Summary Court
Martial found the respondent guilty and imposed the
sentence of dismissal from service.
3 | P a g e
6. The order dated 23.07.2012 was questioned by the
Respondent before the Tribunal. The Respondent
contended that he was kept in close arrest from
02.06.2011 to 05.10.2011 without the permission from
the Chief of the Army Staff. It was further contended that
he was not given an opportunity to participate in the
Court of Inquiry and during the recording of summary of
evidence. He complained that the Summary Court Martial
was conducted in a hasty manner. The entire proceedings
before the Court Martial was completed within a period of
45 minutes. It was further argued on his behalf that the
oral evidence was inconsistent with the medical evidence.
The Respondent’s case was that there was no incised
wound on the head of the victim though the Respondent
is alleged to have used a Talwar which is a sharp-edged
weapon. He submitted before the Tribunal that noncompliance of the provisions of the Army Act, 1950 and
the Army Rules, 1954 (hereinafter, ‘the Rules’) vitiated
the Summary Court Martial proceedings.
7. The Tribunal accepted the submissions made on
behalf of the Respondent and held that there was an
irreconcilable inconsistency between the medical
4 | P a g e
evidence and the oral testimonies of the witnesses.
According to the medical certificate, the injury caused to
Subedar/Master Technical Satyendra Singh Yadav was a
compressed injury whereas the Respondent is alleged to
have wielded a grass cutting tool which is sharp-edged.
The Tribunal also found that there was no blood on the
weapon and the prosecution was unable to prove that
there were any finger prints of the Respondent on the
weapon. The Tribunal agreed with the Respondent that
the Summary Court Martial was conducted in a hasty
manner. The entire enquiry was completed within a
period of 45 minutes. After perusing the record of the
summary of evidence, the Tribunal was of the opinion that
the signatures of the Respondent appear to have been
taken before the proceedings were held. The Tribunal
found that the signatures of the Respondent were at the
right-side corner at the bottom of every page. On some
pages where the depositions of the witnesses concluded
at the middle of the page, the signature of the
Respondent was found at the right side at the bottom of
the page. After examining the material on record, the
Tribunal held that the Respondent was not afforded an
5 | P a g e
opportunity as provided in Rules 179 and 180 of the
Rules. The Tribunal was of the further opinion that the
procedure prescribed in Rules 115 and 116 of the Rules
which deals with recording the plea of guilt of a
delinquent was not followed. After a detailed discussion,
the Tribunal ruled in favour of the Respondent by holding
that the imposition of the penalty of dismissal was with a
pre-determined mind and was arrived at without following
the procedure prescribed by law.
8. We have heard Mr. R. Balasubramanian, learned
Senior Counsel for the Appellants and Mr. Sudhanshu S.
Pandey, learned counsel appearing for the Respondent.
The Court of Inquiry was ordered against the Respondent
to investigate the circumstances under which he used
criminal force against Subedar/Master Technical,
Satyendra Singh Yadav. The Court of Inquiry assembled
on 03.06.2011. During the Court of Inquiry, the
statement of the Respondent was recorded in which he
stated that he was not provided liquor at 20:00 hrs on
01.06.2011 by Subedar/Master Technical Satyendra Singh
Yadav. He was angry about the refusal of liquor due to
which he attacked the victim by using Talwar on the
6 | P a g e
morning of 02.06.2011. Other witnesses, including the
victim Subedar/Master Technical Satyendra Singh Yadav
were examined in the Court of Inquiry.
9. We have perused the original record relating to the
summary of evidence which was recorded between
10.06.2011 to 15.06.2011. The signatures of the
Respondent are found on the right-hand side at the
bottom of each page, at the same place on each page.
The manner in which the signatures of the officer who
recorded the summary of evidence and the other officers
were put on certain pages would clearly show that the
signature of the Respondent was taken in advance on
blank papers. The statement of the Respondent was
recorded under Rule 23 (2) of the Rules. Lt. Col. Amarvir
Singh who recorded the summary of evidence certified
that the summary of evidence containing 40 pages were
recorded by him in the presence of the Respondent and
that Clauses (1), (2), (3) and (4) of Rule 23 have been
complied with while recording the summary of evidence.
Even on this certificate, whereas the signature of Lt. Col.
Amarvir Singh is at the center of the page, the signature
of the Respondent is found at the right-hand side at the
7 | P a g e
bottom of the page. The second half of the page is left
blank. A bare perusal of the recording would indicate that
the signatures of the Respondent were obtained and filled
up with the depositions of the witnesses later. The
contention of the Appellant that the summary of evidence
was recorded in the presence of the Respondent is not
acceptable. We have also perused the additional
summary of evidence which was recorded on 20.10.2011.
The original record discloses that the signatures of the
Respondent were taken earlier as there is a huge gap on
certain pages between the place where the depositions
have ended and the place where the signature of the
Respondent is found. The certificate given by the officer
recording additional summary of evidence on 20.10.2011
actually ends with his signature at the center of the page
and the signature of the Respondent was found at the
bottom of the page without anything being written in
between.
10. After the judgment was reserved, the learned Senior
Counsel appearing for the Union of India, handed over the
original record pertaining to the Court of Inquiry. The
proceedings of the Court of Inquiry were conducted
8 | P a g e
between 04.06.2011 and 08.06.2011 during which the
statements of the Respondent and the other witnesses
were recorded. The signature of the Respondent is found
on the left-hand side at the bottom of each page. The
statement of witness No.3, Naib Subedar A. P. Singh ends
at the middle of page No.9 of the original record. The
signature of the Respondent is found at the left-hand side
at the bottom of the said page. Major Hemant Juneja,
who was the Presiding Officer of the Court of Inquiry
appears to have signed at the bottom of each page on the
right-hand side. On some pages where the deposition
ended at the center of the page, signature of Major
Hemant Juneja is found. Resultantly, on some pages, the
signature of the Presiding Officer i.e. Major Hemant Juneja
is found at the appropriate place i.e. immediately after
the deposition has ended, as well as at the right-hand
side of the bottom of the page.
11. The Summary Court Martial was held on 23.07.2012.
The Respondent was charged for committing an offence
under Section 326 of the Indian Penal Code, 1860 by
causing grievous hurt to Subedar/Master Technical
Satyendra Singh Yadav. We agree with the Tribunal that
9 | P a g e
the entire Summary Court Martial was held in a hasty
manner. The enquiry commenced at 12.45 p.m. and
concluded at 1.30 p.m. and the sentence was imposed at
2.30 p.m.
12. It is clear from the record that Respondent was not
given an opportunity to cross examine the witnesses
whose statements were recorded in the summary of
evidence. The proceedings of Court of Inquiry, recording
of summary of evidence and the Summary Court Martial
have been conducted without following the procedure
prescribed by the Act and the Rules.
13. The Tribunal examined the evidence on record to
hold that the prosecution failed to establish the guilt of
the Respondent. The irreconcilable inconsistency
between the medical evidence and ocular testimony, lack
of scientific evidence like finger prints on the weapon and
the absence of blood on the weapon have been taken into
account by the Tribunal to hold that the charge against
the Respondent was not proved.
14. It is trite law that judgments of acquittal should not
be disturbed unless there are substantial or compelling
reasons. The substantial or compelling reasons to discard
10 | P a g e
a judgment of acquittal were examined by this Court in
Ghurey Lal v. State of Uttar Pradesh
1 which are as
follows:
” 1…………
i) The trial Court's conclusion with regard to the facts is
palpably wrong;
ii) The trial Court's decision was based on an erroneous
view of law;
iii) The trial Court's judgment is likely to result in "grave
miscarriage of justice";
iv) The entire approach of the trial Court in dealing with
the evidence was patently illegal;
v) The trial Court's judgment was manifestly unjust and
unreasonable;
vi) The trial Court has ignored the evidence or misread
the material evidence or has ignored material documents
like dying declarations/ report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight
and consideration to the findings of the trial Court.
3. If two reasonable views can be reached - one that leads
to acquittal, the other to conviction - the High Courts
/appellate Courts must rule in favour of the accused.”
15. Applying the law laid down by this Court as stated
above, we are of the opinion that the judgment of the
Tribunal should not be interfered with.
1 (2008) 10 SCC 450
11 | P a g e
16. We have carefully examined the evidence. A view
that the respondent is guilty is possible on a scrutiny of
the oral evidence. However, the relevant factors taken
into account by the Tribunal present another probable
view. It is settled law that if two views can be reached,
the one that leads to acquittal has to be preferred to the
other, which would end in conviction. That apart, there is
a clear violation of Rules 179 and 180 of the Rules and
the respondent was deprived of an opportunity to defend
himself.
17. For the aforementioned reasons, the judgment of the
Tribunal is upheld and the Appeal is dismissed.
…................................J.
[L. NAGESWARA RAO]
…................................J.
[HEMANT GUPTA]
New Delhi,
November 06, 2019
12 | P a g e
On 02.06.2011, at about 07:45 hrs, he assaulted Subedar/Master Technical (Communication) Satyendra Singh Yadav, with a Talwar (grass cutting tool) without any provocation. Initially, the
Respondent hit Subedar/Master Technical (Communication) Satyendra Singh Yadav on his head from
behind and when Subedar/Master Technical (Communication) Satyendra Singh Yadav turned around,
the Respondent hit on his forehead with the Talwar. When the Respondent attempted to give a third blow, Naib Subedar A. P. Singh intervened. =
The prosecution alleges that the
Respondent refused to cross-examine the witnesses though he was given an opportunity to do so.
By an order dated 23.07.2012, the Summary Court Martial found the respondent guilty and imposed the sentence of dismissal from service. =
The Tribunal held that there was an
irreconcilable inconsistency between the medical evidence and the oral testimonies of the witnesses.
According to the medical certificate, the injury caused to Subedar/Master Technical Satyendra Singh Yadav was a compressed injury whereas the Respondent is alleged to have wielded a grass cutting tool which is sharp-edged.
The Tribunal also found that there was no blood on the weapon and the prosecution was unable to prove that there were any finger prints of the Respondent on the weapon.
The Tribunal agreed with the Respondent that the Summary Court Martial was conducted in a hasty
manner. The entire enquiry was completed within a period of 45 minutes. After perusing the record of the summary of evidence, the Tribunal was of the opinion that the signatures of the Respondent appear to have been taken before the proceedings were held.
The Tribunal found that the signatures of the Respondent were at the right-side corner at the bottom of every page. On some pages where the depositions of the witnesses concluded at the middle of the page, the signature of the Respondent was found at the right side at the bottom of the page. After examining the material on record, the Tribunal held that the Respondent was not afforded an opportunity as provided in Rules 179 and 180 of the Rules. The Tribunal was of the further opinion that the procedure prescribed in Rules 115 and 116 of the Rules which deals with recording the plea of guilt of a delinquent was not followed. After a detailed discussion, the Tribunal ruled in favour of the Respondent by holding that the imposition of the penalty of dismissal was with a
pre-determined mind and was arrived at without following the procedure prescribed by law.=
Apex court held that
It is settled law that if two views can be reached, the one that leads to acquittal has to be preferred to the other, which would end in conviction. That apart, there is a clear violation of Rules 179 and 180 of the Rules and the respondent was deprived of an opportunity to defend himself. For the aforementioned reasons, the judgment of the Tribunal is upheld and the Appeal is dismissed.
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.1627 of 2019
(@ Diary No.1052 of 2018)
Union of India & Ors.
.... Appellant(s)
Versus
Sepoy Pravat Kumar Behuria.
…. Respondent
(s)
J U D G M E N T
L. NAGESWARA RAO, J.
1. This Appeal is filed against the judgment of the
Armed Forces Tribunal, Regional Bench, Lucknow
(hereinafter, ‘the Tribunal’) by which the order of
dismissal of the Respondent dated 23.07.2012 was set
aside.
2. The Respondent was enrolled in the Indian Army as
Sepoy in the Unit 981 AD Regiment Workshop on
02.02.2002. He was posted at Jamnagar on 01.06.2011
and was scheduled to be on the third night duty from
04:00 hrs to 06:00 hrs. Thus, he was excused from
physical training parade. On 02.06.2011, at about 07:45
1
hrs, he assaulted Subedar/Master Technical
(Communication) Satyendra Singh Yadav, with a Talwar
(grass cutting tool) without any provocation. Initially, the
Respondent hit Subedar/Master Technical
(Communication) Satyendra Singh Yadav on his head from
behind and when Subedar/Master Technical
(Communication) Satyendra Singh Yadav turned around,
the Respondent hit on his forehead with the Talwar.
When the Respondent attempted to give a third blow,
Naib Subedar A. P. Singh intervened. Subedar/Master
Technical (Communication) Satyendra Singh Yadav was
immediately shifted to Gokul Hospital, Jamnagar and a
surgery was conducted by a Neurosurgeon as his skull
bone was fractured leading to internal bleeding and blood
clotting in the brain.
3. The Court of Inquiry was convened against the
Respondent by Colonel Sanjay Khanna, Commanding
Officer, 48 AD Regiment on 03.06.2011 to investigate into
the circumstances which led the Respondent using
criminal force against Subedar/Master Technical
(Communication) Satyendra Singh Yadav. Nine witnesses
were examined and the Respondent declined to cross2 | P a g e
examine the witnesses though he was given an
opportunity. The Respondent also did not make any
statement in his defence. After appreciating the material
on record, the Court of Inquiry recommended action to be
initiated against the Respondent.
4. The proceedings for recording the summary of
evidence were initiated by Lt. Col. Amarvir Singh. Twelve
witnesses were examined on behalf of the prosecution
between 10.06.2011 and 15.06.2011. According to the
Appellants, the Respondent declined to cross-examine the
prosecution witnesses. The Respondent had voluntarily
given a statement that he hit the victim with a grass
cutting tool without any provocation. Thereafter, on
20.10.2011, additional summary of evidence was
recorded. Two additional witnesses were examined and
witness No. 2 and 12 were re-examined in the presence of
the Respondent. The prosecution alleges that the
Respondent refused to cross-examine the witnesses
though he was given an opportunity to do so.
5. By an order dated 23.07.2012, the Summary Court
Martial found the respondent guilty and imposed the
sentence of dismissal from service.
3 | P a g e
6. The order dated 23.07.2012 was questioned by the
Respondent before the Tribunal. The Respondent
contended that he was kept in close arrest from
02.06.2011 to 05.10.2011 without the permission from
the Chief of the Army Staff. It was further contended that
he was not given an opportunity to participate in the
Court of Inquiry and during the recording of summary of
evidence. He complained that the Summary Court Martial
was conducted in a hasty manner. The entire proceedings
before the Court Martial was completed within a period of
45 minutes. It was further argued on his behalf that the
oral evidence was inconsistent with the medical evidence.
The Respondent’s case was that there was no incised
wound on the head of the victim though the Respondent
is alleged to have used a Talwar which is a sharp-edged
weapon. He submitted before the Tribunal that noncompliance of the provisions of the Army Act, 1950 and
the Army Rules, 1954 (hereinafter, ‘the Rules’) vitiated
the Summary Court Martial proceedings.
7. The Tribunal accepted the submissions made on
behalf of the Respondent and held that there was an
irreconcilable inconsistency between the medical
4 | P a g e
evidence and the oral testimonies of the witnesses.
According to the medical certificate, the injury caused to
Subedar/Master Technical Satyendra Singh Yadav was a
compressed injury whereas the Respondent is alleged to
have wielded a grass cutting tool which is sharp-edged.
The Tribunal also found that there was no blood on the
weapon and the prosecution was unable to prove that
there were any finger prints of the Respondent on the
weapon. The Tribunal agreed with the Respondent that
the Summary Court Martial was conducted in a hasty
manner. The entire enquiry was completed within a
period of 45 minutes. After perusing the record of the
summary of evidence, the Tribunal was of the opinion that
the signatures of the Respondent appear to have been
taken before the proceedings were held. The Tribunal
found that the signatures of the Respondent were at the
right-side corner at the bottom of every page. On some
pages where the depositions of the witnesses concluded
at the middle of the page, the signature of the
Respondent was found at the right side at the bottom of
the page. After examining the material on record, the
Tribunal held that the Respondent was not afforded an
5 | P a g e
opportunity as provided in Rules 179 and 180 of the
Rules. The Tribunal was of the further opinion that the
procedure prescribed in Rules 115 and 116 of the Rules
which deals with recording the plea of guilt of a
delinquent was not followed. After a detailed discussion,
the Tribunal ruled in favour of the Respondent by holding
that the imposition of the penalty of dismissal was with a
pre-determined mind and was arrived at without following
the procedure prescribed by law.
8. We have heard Mr. R. Balasubramanian, learned
Senior Counsel for the Appellants and Mr. Sudhanshu S.
Pandey, learned counsel appearing for the Respondent.
The Court of Inquiry was ordered against the Respondent
to investigate the circumstances under which he used
criminal force against Subedar/Master Technical,
Satyendra Singh Yadav. The Court of Inquiry assembled
on 03.06.2011. During the Court of Inquiry, the
statement of the Respondent was recorded in which he
stated that he was not provided liquor at 20:00 hrs on
01.06.2011 by Subedar/Master Technical Satyendra Singh
Yadav. He was angry about the refusal of liquor due to
which he attacked the victim by using Talwar on the
6 | P a g e
morning of 02.06.2011. Other witnesses, including the
victim Subedar/Master Technical Satyendra Singh Yadav
were examined in the Court of Inquiry.
9. We have perused the original record relating to the
summary of evidence which was recorded between
10.06.2011 to 15.06.2011. The signatures of the
Respondent are found on the right-hand side at the
bottom of each page, at the same place on each page.
The manner in which the signatures of the officer who
recorded the summary of evidence and the other officers
were put on certain pages would clearly show that the
signature of the Respondent was taken in advance on
blank papers. The statement of the Respondent was
recorded under Rule 23 (2) of the Rules. Lt. Col. Amarvir
Singh who recorded the summary of evidence certified
that the summary of evidence containing 40 pages were
recorded by him in the presence of the Respondent and
that Clauses (1), (2), (3) and (4) of Rule 23 have been
complied with while recording the summary of evidence.
Even on this certificate, whereas the signature of Lt. Col.
Amarvir Singh is at the center of the page, the signature
of the Respondent is found at the right-hand side at the
7 | P a g e
bottom of the page. The second half of the page is left
blank. A bare perusal of the recording would indicate that
the signatures of the Respondent were obtained and filled
up with the depositions of the witnesses later. The
contention of the Appellant that the summary of evidence
was recorded in the presence of the Respondent is not
acceptable. We have also perused the additional
summary of evidence which was recorded on 20.10.2011.
The original record discloses that the signatures of the
Respondent were taken earlier as there is a huge gap on
certain pages between the place where the depositions
have ended and the place where the signature of the
Respondent is found. The certificate given by the officer
recording additional summary of evidence on 20.10.2011
actually ends with his signature at the center of the page
and the signature of the Respondent was found at the
bottom of the page without anything being written in
between.
10. After the judgment was reserved, the learned Senior
Counsel appearing for the Union of India, handed over the
original record pertaining to the Court of Inquiry. The
proceedings of the Court of Inquiry were conducted
8 | P a g e
between 04.06.2011 and 08.06.2011 during which the
statements of the Respondent and the other witnesses
were recorded. The signature of the Respondent is found
on the left-hand side at the bottom of each page. The
statement of witness No.3, Naib Subedar A. P. Singh ends
at the middle of page No.9 of the original record. The
signature of the Respondent is found at the left-hand side
at the bottom of the said page. Major Hemant Juneja,
who was the Presiding Officer of the Court of Inquiry
appears to have signed at the bottom of each page on the
right-hand side. On some pages where the deposition
ended at the center of the page, signature of Major
Hemant Juneja is found. Resultantly, on some pages, the
signature of the Presiding Officer i.e. Major Hemant Juneja
is found at the appropriate place i.e. immediately after
the deposition has ended, as well as at the right-hand
side of the bottom of the page.
11. The Summary Court Martial was held on 23.07.2012.
The Respondent was charged for committing an offence
under Section 326 of the Indian Penal Code, 1860 by
causing grievous hurt to Subedar/Master Technical
Satyendra Singh Yadav. We agree with the Tribunal that
9 | P a g e
the entire Summary Court Martial was held in a hasty
manner. The enquiry commenced at 12.45 p.m. and
concluded at 1.30 p.m. and the sentence was imposed at
2.30 p.m.
12. It is clear from the record that Respondent was not
given an opportunity to cross examine the witnesses
whose statements were recorded in the summary of
evidence. The proceedings of Court of Inquiry, recording
of summary of evidence and the Summary Court Martial
have been conducted without following the procedure
prescribed by the Act and the Rules.
13. The Tribunal examined the evidence on record to
hold that the prosecution failed to establish the guilt of
the Respondent. The irreconcilable inconsistency
between the medical evidence and ocular testimony, lack
of scientific evidence like finger prints on the weapon and
the absence of blood on the weapon have been taken into
account by the Tribunal to hold that the charge against
the Respondent was not proved.
14. It is trite law that judgments of acquittal should not
be disturbed unless there are substantial or compelling
reasons. The substantial or compelling reasons to discard
10 | P a g e
a judgment of acquittal were examined by this Court in
Ghurey Lal v. State of Uttar Pradesh
1 which are as
follows:
” 1…………
i) The trial Court's conclusion with regard to the facts is
palpably wrong;
ii) The trial Court's decision was based on an erroneous
view of law;
iii) The trial Court's judgment is likely to result in "grave
miscarriage of justice";
iv) The entire approach of the trial Court in dealing with
the evidence was patently illegal;
v) The trial Court's judgment was manifestly unjust and
unreasonable;
vi) The trial Court has ignored the evidence or misread
the material evidence or has ignored material documents
like dying declarations/ report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight
and consideration to the findings of the trial Court.
3. If two reasonable views can be reached - one that leads
to acquittal, the other to conviction - the High Courts
/appellate Courts must rule in favour of the accused.”
15. Applying the law laid down by this Court as stated
above, we are of the opinion that the judgment of the
Tribunal should not be interfered with.
1 (2008) 10 SCC 450
11 | P a g e
16. We have carefully examined the evidence. A view
that the respondent is guilty is possible on a scrutiny of
the oral evidence. However, the relevant factors taken
into account by the Tribunal present another probable
view. It is settled law that if two views can be reached,
the one that leads to acquittal has to be preferred to the
other, which would end in conviction. That apart, there is
a clear violation of Rules 179 and 180 of the Rules and
the respondent was deprived of an opportunity to defend
himself.
17. For the aforementioned reasons, the judgment of the
Tribunal is upheld and the Appeal is dismissed.
…................................J.
[L. NAGESWARA RAO]
…................................J.
[HEMANT GUPTA]
New Delhi,
November 06, 2019
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