Union Of India vs Sepoy Pravat Kumar Behuria

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 cross-

2 | Page 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.

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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 non-

compliance 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 | Page 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 | Page 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 | Page 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 | Page 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 | Page 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 | Page 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 Pradesh1 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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