T.A. No. 417 of 2010. Case: Ald. Satyavir Singh S/o. Sh. Sardar Singh Vs Union of India (UOI) through its Secretary Government of India Ministry of Defence and Ors.. Armed Forces Tribunal
| Case Number | T.A. No. 417 of 2010 |
| Counsel | For Appellant: D.S. Kauntae, Adv. and For Respondents: Ankur Chibber and Naveen Sharma, Advs. |
| Judges | S.S. Kulshrestha, J. and S.S Dhillon, Members |
| Issue | Army Act - Sections 69, 115(2) and 120; Armed Forces Tribunal Act - Section 15; Evidence Act - Section 9; Constitution of India - Article 226; Army Rules - Rules 22, 23, 115(2) and 180; Defence Service Regulation - Regulations 406, 449 and 541; Indian Penal Code - Sections 162 and 354 |
| Judgement Date | July 09, 2010 |
| Court | Armed Forces Tribunal |
Judgment:
(Principal Bench, New Delhi)
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This Writ Petition under Article 226 of the Constitution of India was filed in Delhi High court challenging the Summary Court Martial (SCM) proceedings initiated against the appellant for offence under Section 69 of the Army Act read with Section 354 IPC and whereby he was convicted for the said offence and was awarded punishment for dismissal from service. Thereafter, this case was transferred to this Tribunal and was treated as an Appeal under Section 15 of the Armed Forces Tribunal Act.
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It is said that the entire proceedings were initiated against accused/appellant without any basis. He was not caught at the spot. Whatever evidence was brought by the prosecution that was all fabricated under the pressure of Senior Officers as the victim is the daughter of Maj. General. It is also said that correct procedure for the identification of accused/appellant was not adopted in view of the arrangement made under Regulation 406 of the Defence Service Regulation. It was obligatory on the part of the prosecution to have taken care as provided under the Regulation. Merely picking one person and put up to identification could not have any legal sanctity. It is also said that there was no eye-witness of the incident and the witnesses who were said to have reached at the spot soon thereafter, could not be relied upon merely because they managed the production of the accused/appellant for the purposes of identification.
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It is also contended that the accused/appellant was not awarded fair opportunity for redressing his grievance. Even the Defending Officer of his choice was not provided to him. It is further said that the entire record was manufactured, even the 'plea of guilt' was wrongly recorded. The Court ought to have put up the question or the evidence appearing against him and recorded the proceedings in the manner of questions and answers. In the absence of such procedure, the plea of guilt cannot be considered to be absolute. Moreover, in view of the arrangement under Army Rule, 180, it was obligatory on the part of the Authorities to have initiated Court of Inquiry. Straightaway proceeding to record evidence under Army Rule 22 were not in accordance with law and it would vitiate the entire trial.
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The appeal is resisted from the side of Union of India, contending that soon after the incident when the alarm was raised by the victim woman, some of the persons from close vicinity came and verified about the incident. The victim narrated the incident to those persons and also disclosed her identity. She also narrated that from Garages of 50 Armoured Regiment, a Jawan came out and followed her. When he came near her, she felt uncomfortable and to avoid any unfortunate incident, went to the other side of the road. He again followed her and after uttering the words "Excuse me, excuse me" assaulted her on her breast. There was ample evidence to fix the guilt of the accused/appellant. It is also said that the accused/appellant was brought before the Prosecutrix soon after the incident and she identified him at the spot. It is also submitted that in the course of trial, full and fair opportunity was given to the accused/appellant to defend himself but he did not prefer to cross-examine the witnesses produced by the Prosecution. The testimony of Prosecutrix remained unchallenged as also those of the other three witnesses. Appellant/accused made confession before the witnesses, whose testimony also remained unrebutted. Apart from it, the accused/appellant also pleaded guilty in the course of the trail. Caution was also given to him in pursuance to the Army Rule 115(2) that 'plea of guilt' would be read against him. It is also said that all the necessary precautions were taken. Even care was taken for ensuring compliance of Sub-Section 2 of Section 120.
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In order to appreciate the salient points raised by learned Counsels for the parties, it shall be useful to make a brief narration of facts. The accused/appellant was tried for the offence under Section 69 of Army Act for committing a civil offence that is to say, using criminal force to a woman with intent to outrage her modesty contrary to Section 354 of the IPC. The allegation against the accused/appellant is that he at Mamun Cantt., Punjab on 02nd October, 2004 at about 1945 hours used criminal force to Ms. Bandana Aul by putting his hands on her breasts with intent to outrage her modesty. The woman reported this matter to the authorities. They proceeded to locate the person who was said to have committed the mischief with the Prosecutrix. It is also said that PW-2...
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