The judgments of acquittal passed by the Trial Court may be reversed or otherwise disturbed only for very substantial and compelling reasons.

Lahari Gurrala | Symbiosis Law School, Hyderabad | 16th December 2019

UOI v. Dafadar Kartar Singh & Anr., Criminal Appeal Nos. 3-4 of 2015

Very substantial and compelling reasons exist when 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.

FACTS:

• Dafadar Kartar Singh the Respondent-herein was serving in the 74th Armoured Regiment at Panagarh, West Bengal in the year 1998. He was residing in the residential quarters at the SBI Lines. Sowar Kishore Kumar Yadav who was also staying in the same residential quarters was hospitalized on 14.10.1998 due to which his wife Smt. Sudesh was staying alone in the residential quarters.
• As Smt. Sudesh was alone, her neighbour’s son- Master Jaynendra alias Bittoo was requested to stay with her. Around midnight of 14/15.10.1998, Smt. Sudesh heard some sound of breaking of a bottle from the toilet of her house and noticed the movement of a person in the toilet. She saw a person wearing a light coloured sleeveless vest and a kuchha coming out of the toilet.
• Smt. Sudesh tried to wake up Bittoo. In the meanwhile, the intruder walked up towards the door of the bed room and stood in the door-way. She could see the intruder in the light of the bed room. He switched off the light of the bed room and came inside the bed room.
• Bittoo woke up and saw the intruder and started screaming for help. Then Smt. Sudeh also screamed at which the intruder ran out of the bed room closing and bolting the bed room from outside. Smt. Sudesh heard Smt. Mithilesh, mother of Bittoo, enquiring from outside as to what was the matter to which Bittoo replied that somebody has come into the house.
• Thereafter, people gathered and opened the locked room and entered inside the bed room and started enquiring about the incident. Sudesh came out of the house and saw people who gathered outside the quarters. She immediately recognized the intruder standing along with other people who gathered there and pointed to the Respondent saying that he was the man who broke into the house.
• Risaldar Pritam Singh visited the house of Sowar Kishore Kumar Yadav to investigate the incident on 15.10.1998 on receipt of complaint of house breaking. He inspected the window of the toilet and found the lower portion of the window had been removed and was lying near the drain block and the frame of the window was broken. The broken ends of the detached portion of the window lying on the ground indicated that it was broken recently. He inspected the toilet to find that the bottle which was containing acid was lying broken in the toilet. With the help of the official photographer, photographs of Respondent and the site were taken. The Respondent had abrasions on his right upper arm on the lateral side and the left upper arm on lateral side.
• The Court of Inquiry was held to investigate the charge levelled by Smt. Sudesh against the Respondent. Summary of evidence was recorded in the presence of the Respondent in terms of Rule 23 of the Army Rules and a charge sheet was laid against the Respondent for committing an offence under Section 69 of the Army Act contrary to Section 456 of the Indian Penal Code (“IPC”) for house breaking by night.
• The GOC 15 Infantry Division gave sanction for trial of the Respondent by Summary Court Martial in terms of Section 120 of the Army Act, 1950. The Commanding Officer, 74 Armoured Regiment conducted the Summary Court Martial. The Summary Court Martial found the Respondent guilty of the charge and sentenced him to reduction in the ranks, dismissal from service and rigorous imprisonment for seven months.
• Challenging the order of the Summary Court Martial, the Respondent filed a Writ Petition before the High Court of Punjab & Haryana which was transferred to the Armed Forces Tribunal, Regional  Bench at Chandigarh (“the Tribunal). The Tribunal set aside the conviction and directed reinstatement of the Respondent without consequential benefits. The application filed by the Appellants for grant of leave to appeal to this Court was rejected by the Tribunal

ISSUE:

• Whether the judgments of acquittal be reversed or disturbed when Tribunal court has ignored the evidence and the material documents like dying declarations/ report of the ballistic expert?

HELD:

• The judgment of the Tribunal cannot be sustained in view of the material evidence on record not being considered at all except for highlighting the contradiction in the evidence of  Smt. Sudesh. The Tribunal miserably failed to consider the other oral testimonies, especially of Master Bittoo who was in the quarters at the time of intrusion,Lance Naik A. Hussain- Court witness No.1 who reached the place of the incident, Smt. Sunil Devi and Smt. Mithilesh- mother of Bittoo. All these persons spoke about the incident and there is no contradiction in their versions.
• The other material on record has also been ignored by the Tribunal is the photograph of the bruises on both the arms of Respondent and the opinion of the doctor which was placed on record which lend support to the prosecution version.
• There is sufficient evidence on record to show that house breaking had in fact taken place. In addition, material on record clearly points to the guilt of the Respondent.
• After examining the evidence available on record carefully, we are convinced that the judgment of the Summary Court Martial ought not to have been interfered with by the Tribunal.
• In view of the aforementioned, the judgment of the Tribunal is set aside and the order passed in Summary Court Martial is restored. The sentence of imprisonment is however modified to the period already undergone. The other penalties of dismissal from service and reduction to ranks are restored. Accordingly, the Appeals are allowed.