Union Of India vs Dafadar Kartar Singh

Union of India & Ors. .... Appellant(s)

Versus

Dafadar Kartar Singh & Anr. …. Respondent(s)

JUDGMENT

L. NAGESWARA RAO, J.

1. Dafadar Kartar Singh, the Respondent-herein was

tried by the Summary Court Martial for a civil offence of

house breaking by night. He was found guilty of the

charge and was sentenced to rigorous imprisonment for

seven months apart from dismissal from service and

reduction in the ranks. The conviction was set aside by Signature Not Verified

the Armed Forces Tribunal, Regional Bench, Chandigarh Digitally signed by GEETA AHUJA Date: 2019.12.09 15:48:07 IST Reason:

(for short, “the Tribunal”). The Tribunal directed that the

[1] Respondent shall be deemed to be in service w.e.f.

10.11.1999 till the date of his superannuation in the

rank of Dafadar. He was also held to be entitled to all

allowances for the said period and pensionery benefits.

These Appeals are directed against the said judgment of

the Tribunal.

2. The Respondent was serving in the 74 th 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 neighbor’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 [2] sleeveless vest and a kuchha coming out of the toilet.

He switched off the lights in the lobby and 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 “Koi Aadmi Hai”. 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 at the main

entrance and opened the locked room and entered

inside the bed room and started enquiring about the

incident. Some people also inspected the toilet to find

out as to how the intruder sneaked into the house. Smt.

[3] Sudesh came out of the house and saw Lance Naik A.

Hussain, Havildar K.K. Thakaran and Naik Ramesh Yadav

amongst other 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 at 1400 hrs. on 15.10.1998 on

receipt of complaint of house breaking. He spoke to

Smt. Sudesh who explained to him the details. 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. He then called the official

[4] photographer and the 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.

3. The Court of Inquiry was held to investigate the

charge levelled by Smt. Sudesh against the Respondent.

Eight witnesses were examined and the Court of Inquiry

recorded a finding that Respondent broke into the house

of Smt. Sudesh. However, as the intention of the house

breaking was not established, the Court of Inquiry

recommended that disciplinary action be initiated

against the Respondent. The Respondent was medically

examined by Captain C.P. Patel, Army Doctor, on

18.10.1998 who found abrasions on his arms which

were three to four days old. 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 [5] 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 between 11.08.1999 and

10.11.1999. The Respondent pleaded not guilty of the

charge. Six prosecution witnesses were examined. The

Respondent gave statement in his defence at the trial

and has also examined two defence witnesses. Two

Court witnesses were also summoned and examined. At

the conclusion of the trial, 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.

4. Challenging the order of the Summary Court

Martial, the Respondent filed a Writ Petition before the

High Court of Punjab & Haryana in the year 1999, which

was transferred to the Armed Forces Tribunal, Regional [6] Bench at Chandigarh (“the Tribunal). By a judgment

dated 06.02.2012, 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 on 06.02.2014.

5. Before we proceed to analyse the judgment of the

Tribunal in acquitting the Respondent, it is necessary to

examine the evidence on record. Smt. Sudesh narrated

the incident in detail. She deposed that the Respondent

sneaked into her house through a window in the toilet.

Master Bittoo who was aged nine years corroborated

the evidence of Smt. Sudesh. Master Bittoo stated that

he was asked to go to the house of Smt. Sudesh as she

was alone due to the hospitalization of her husband. He

reached the house of Smt. Sudesh around 8.00 p.m. on

14.10.1998. They spoke for some time and then fell

asleep. The light of the bed room, bath room and the

lobby were not put off. Master Bittoo was woken up by [7] Smt. Sudesh and then he saw that the lights had been

switched off. He could make out that somebody was

standing near the door. He screamed that somebody

was in the house. He heard his mother shouting from

upstairs as to what has happened. He replied in a loud

voice that somebody was in the house. Thereafter, a

number of people came. After the incident, Smt.

Sudesh was taken to his house where she stayed that

night.

6. Lance Naik A. Hussain was among the people who

reached the place of the incident. He was summoned

as Court witness-1 and he deposed that he knows the

Respondent who was staying in the block which is

opposite the quarter of Sowar Kishore Kumar Yadav. He

stated that he was suffering from ear pain on the night

of 14.10.1998 and he was lying in the bed but was not

able to sleep. He heard a boy shouting out for help at

about 11 p.m. He took up a Talwar and went outside.

He heard Smt. Sudesh and Bittoo crying out for help [8] through the window of Smt. Sudesh’s quarter informing

that there was somebody in the room. He went and

stood at the main door of Sowar Kishore Kumar’s house.

As the door was closed, he pushed opened the door

with the Talwar. He was apprehensive of entering into

the house alone and so shouted out for CHM Om

Prakash who stayed in the same block. Om Prakash

reached the place of the incident and both A. Hussain

and Om Prakash entered the house of Kishore Kumar

Yadav. They switched on the lights and found that the

door of the bed room was bolted from outside. They

opened the door and found Smt. Sudesh and a boy in a

terrified condition. Smt. Sudesh informed Lance Naik A.

Hussain that she saw someone in the house but as her

face was tucked into the bed sheet she did not

recognize the intruder. Some people gathered outside

the house. Smt. Sudesh saw the Respondent standing

amongst them and she pointed towards him saying that

he was the person who trespassed into her house.

[9] Lance Naik A. Hussain further deposed that there was

an argument between Havildar K.K. Thakaran and the

Respondent regarding the injuries on the upper portion

of the arms of the Respondent. Lance Naik Hussain had

also inspected the toilet and found that the window was

removed. He smelt a specific fragrance of a perfume in

Smt. Sudesh’s quarters which was coming from the

Respondent when he went closer to him to see the

abrasions on his arms.

7. Smt. Mithilesh was examined as PW3. She is the

wife of Lance Nail Shailendra Singh and mother of

Master Bittoo. They lived in the first floor, directly

above the quarters of Sowar Kishore Kumar Yadav. She

stated that her son shouted at 11 p.m. on 14.10.1998.

She called out for help and rushed to the quarters of

Sowar Kishore Kumar Yadav and saw Lance Naik A.

Hussain, Havildar K.K. Thakaran, his wife Smt. Sunil

Devi, Naik Ramesh Yadav, Respondent- Dafadar Kartar

Singh and his wife Smt. Kalpana at the door of Smt. [10] Sudesh’s quarter. Smt. Sunil Devi who was examined

by the Summary Court Martial as PW5 was staying in

the first floor quarter, opposite to the one occupied by

Respondent- Dafadar Kartar Singh. At about 10.30 p.m.

on 14.10.1998, she was stitching and her husband was

sleeping in the other room. She heard somebody

shouting for help at which she woke up her husband.

They opened the main door to go down the stairs and

they saw the Respondent running up the common stairs

of the quarters. He wore a light coloured sleeveless

vest and a kuchha. When her husband asked the

Respondent as to what happened, Havildar K.K.

Thakaran the Respondent replied that it appears there

was a snake down-stairs. Smt. Sunil Devi smelt a

perfume from the Respondent which she smelt again in

the house of Smt. Sudesh when she went there.

8. The Tribunal examined the sketch of the quarter

and the photographs that were placed before it. The

Tribunal held that the site inspection note was not [11] prepared by Risaldar Pritam Singh and Risaldar Sant

Ram and the dimensions of the quarter were not on

record. The main issue that was decided in favour of

the Respondent by the Tribunal related to the identity of

the Respondent. The contradictions in the evidence of

Smt. Sudesh have been highlighted by the Tribunal to

hold that the charge against the Respondent was not

proved. The Tribunal found the statement of Smt.

Sudesh regarding the identification of the Respondent

to be inconsistent. In her testimony, Smt. Sudesh

stated that she recognized the Respondent standing

outside the door of her quarter immediately after the

incident. The Tribunal referred to the statement of PW1-

Pritam Singh who deposed that Smt. Sudesh informed

him at 6.45 a.m. of the next day of the incident that she

could not recognize the intruder. The Tribunal also

highlighted the fact that the evidence shows that Smt.

Sudesh was well acquainted with the Respondent who

was residing in an adjoining quarter. In view of the

[12] contradictions in the evidence of Smt. Sudesh, the

Tribunal was convinced that the identity of the intruder

inside the house of Smt. Sudesh was not proved. The

minor contradictions in the evidence of Smt. Sudesh

have been blown out of proportion by the Tribunal.

There is a ring of truth in the evidence of Smt. Sudesh

and there is no reason for her to falsely implicate the

Respondent.

9. The judgments of acquittal may be reversed or

otherwise disturbed only for very substantial and

compelling reasons. 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.1 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

1 (2008) 10 SCC 450 - Ghurey Lal v. State of U.P. [13] 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.

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10. 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.

…….….........................J. [L. NAGESWARA RAO]

…………...................J. [HEMANT GUPTA]

New Delhi, December 09, 2019.

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