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

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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-

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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

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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

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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

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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

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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

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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

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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

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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

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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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