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                      REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9885 OF 2011

Dalbir Singh       .…Appellant(s)                   

Versus

Union of India & Ors.       ….Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

1. The appellant is before this Court assailing the order

dated August 26, 2011 passed by the Armed Forces

Tribunal, Chandigarh Regional Bench at Chandimandir

whereby the appeal filed by the appellant herein has been

dismissed and the sentence imposed by the Summary

General Court Martial (‘SGCM’ for short) has been upheld.

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2. The appellant was enrolled in the Army on April 06,

1999 and was posted to 3 Rashtriya Rifles (RR) Battalion

(Bn) in the year 2006.  While he was so serving, in respect

of an incident which occurred on August 13, 2006, action

was initiated under Section 34(c) of the Army Act,

proceedings were held by the SGCM and the sentence to

undergo imprisonment for six months and dismissal from

service was imposed.  The appellant assailing the same was

before the Armed Forces Tribunal and in the said

proceedings the order impugned dated August 26, 2011 is

passed.   The incident referred to is that according to the

prosecution while the appellant was posted to 3 Rashtriya

Rifles (RR)  Battalion (Bn), it  was ordered on August  13,

2006 to cordon and search be carried out in village

Darigidiyan in the Jammu and Kashmir.  The details of the

officers who formed a part of the contingent is also referred

in the  proceedings.  On reaching the  village there  was  a

brief contact with the militant and exchange of fire, after

which the militants took cover  in a maize  field.   In that

view, for the purpose of operation two teams were formed,

among others the appellant was a part of the second team.

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At about 0800 Hrs on August 13,  2006 the  team under

Subedar Subhash Chand in which the appellant was also a

member was divided into two groups.  When the appellant

and the group in which he was given the responsibility to

search the house along with Naik Sukhdev Raj and Sapper

Bachitar Singh was searching, they heard firing from the

direction of the maize field and as such the group exited

the house from the window and the cordon was thereafter

adjusted for the  night around the  maize field.   In that

regard the Light Machine Gun (LMG) was also placed and

the LMG was manned by Sapper Gurmail Singh and the

appellant.  To provide support, Sapper Bachitar Singh was

positioned to his left at about 5­7 meters.   At about 2300

Hrs intense fire came from the direction of the maize field

towards the LMG spot wherein Sapper Gurmail Singh,

Subedar Dalbir Singh and the appellant were positioned.

The charge against the appellant is that he left his post,

jumped across the stone wall and failed to retaliate against

the militants. He failed to use his AK­47 and a pistol which

was with him due to which the militants broke the cordon,

killed Sapper Gurmail Singh and took away the LMG.

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While jumping over the wall the appellant no doubt was hit

by a bullet in the leg.

3. Based on such charge of exhibiting cowardice by

abandoning his post, the proceedings  were held in the

SGCM.  The witnesses were examined and on analysing the

same the sentence dated March 06, 2008 was imposed.  It

is the said finding  and sentence  which  was  assailed in

OA.No.296 of 2010 before the Armed Forces Tribunal.  The

Armed Forces Tribunal has referred to the evidence of each

of the  witnesses  who  had  been examined in the  SGCM

while prosecuting the charge against the appellant and on

such reappreciation had arrived at the conclusion that the

sentence imposed on the appellant is justified.

4. The learned counsel for the appellant while assailing

the finding and conclusion reached by the SGCM and the

Armed Forces Tribunal has contended that the conclusion

reached is erroneous inasmuch as the evidence tendered

by the witnesses has not been properly appreciated.   The

learned counsel contends that if the case of the prosecution

as narrated in the judgment of the Tribunal is taken note

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and, in that  background, the  evidence  of the  witness is

referred to, the same would not be sufficient for

establishing the charge.  It is contended that the appellant

himself was injured in the incident and in such

circumstance, it cannot be concluded that he had

abandoned the post and cannot be branded as a coward.

The learned counsel has referred to the cross examination

of the witnesses examined as PW­4 to PW­6 to contend that

the said witnesses have stated that the  appellant  was a

good soldier and had on earlier occasions accompanied the

said witnesses in several operations and the appellant  is

not scared to take part in the operation.   The learned

counsel, therefore, contends that when the appellant has

such record of service, the charge that he had moved away

from the post as an act of cowardice cannot be accepted

and hence he seeks that the findings recorded by the

SGCM and the conclusion reached by  the Armed Forces

Tribunal be set aside.

5. The learned counsel for the respondents has taken

us through the appeal papers including the order passed

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by the Armed Forces Tribunal.   In that regard, it is

contended  that the  SGCM based  on  the  evidence  of the

prosecution witnesses had arrived at its conclusion.   It is

pointed out that the Armed Forces Tribunal while

considering the  appeal filed  by the  appellant  herein has

reappreciated the evidence and has thereafter arrived at its

conclusion.   It is contended that in such circumstance in

the appeal of  the present nature the concurrent findings

and orders rendered by  the courts  below do not  call for

interference.  On the  factual  aspect it is  contended that

though the appellant presently contends that he had not

abandoned the post, there is no explanation as to why even

in a grave situation he had not made use of either the AK­

47 gun or the pistol which was in his possession as a mark

of retaliation.   In that circumstance, it  is contended that

when in the attack carried out by the militants the

colleague of the appellant late Gurmail Singh had died and

there was no action from the appellant, it is a grave

situation which warranted the action taken and the same

does not call for interference.

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6. In the above background, keeping in view the scope

available in examining a matter of the present nature we

have taken note of the nature of the consideration made by

the Armed Forces Tribunal as the same was in a statutory

appeal against the proceedings by the SGCM.   In the

matter of the present nature when the task assigned to a

soldier is cut out in a definite manner and when the duties

are assigned, the only scope in a judicial proceeding is to

find  out  whether the same  has  been  performed  by  him

based on the finding of fact that is recorded.   In a matter

where allegation of cowardice is made, the reason for which

such allegation is made is to be taken note and considered.

In that view, without adverting to all other aspects what is

necessary to be taken note  is the charge that was made

and the reason for  which the competent authority had

arrived at the conclusion that the appellant instead of

performing his duty had run away from it.  Limited to that

aspect, what is to be taken note is that in the background

of the situation that had arisen, the task assigned to the

group of officers was to cordon the area and prevent the

militants from breaking through.   The charge against the

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appellant is that despite the militants having attacked and

killed Sapper Gurmail Singh who was in the group of the

appellant and though the LMG was manned by the said

deceased Sapper  Gurmail  Singh and  the  appellant,   the

appellant had not retaliated using either the AK­47 gun or

the pistol which was in his possession.  On the other hand,

the appellant abandoned the post and jumped over the wall

to escape from  the spot.  The  defence  of the  appellant,

however, was that he had jumped over the wall to protect

himself and attack the militants and in that process he was

also fired at, to his leg and was injured, in the process he

had become unconscious for about 10 seconds and it is at

that point the militants had picked up the LMG and carried

it away.  The appellant had also stated that his AK­47 was

jammed when tried to use it.

7. From the evidence of the witnesses the manner  in

which the  incident had occurred has been referred to  in

detail.  Insofar as charge against the appellant, apart from

the fact that he was injured the other actions would

indicate that the  appellant  did  not rise to the occasion

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more particularly  when  his colleague  was attacked and

killed.  Though he has contended that he had jumped the

wall to protect himself, there is no reasonable explanation

as to why he had not used the weapons which were with

him when the attack from the militants had already taken

place and his colleague was injured.   Even if the

explanation  sought to  be  put forth  by  him  that  he  was

unconscious for about 10 to 12 seconds is taken note the

same was not of such a long duration which had prevented

him from taking any action even thereafter and that too in

a situation when the militants had killed a soldier and also

had taken away the LMG.   While taking note of the said

explanation sought to  be  put forth  by the  appellant the

Tribunal has rightly arrived at the conclusion that the

theory of the appellant having become unconscious cannot

be  accepted since  all incidents  which occurred  from the

time there was an attack by the militants including the act

of the militants in taking away the LMG was explained by

the appellant, which he would not have been aware of if he

was actually unconscious.  In that circumstance, when the

evidence has been adverted to by the Armed Forces

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Tribunal and when such conclusion reached does not

indicate any perversity it would not be appropriate for this

Court to interfere in the matter.  Further, there is no other

material or circumstance brought on record by the

appellant to  indicate,  but for  the incident there was any

other reason due to which he was victimized or to show

that it is a malafide action.

8. Though  the learned  counsel for the  appellant  has

sought to refer to the cross­examination of PW­4 to PW­6 to

indicate that he had taken part in several operations earlier

and the said witnesses have admitted him to  be a good

soldier, in the  matter  of  protecting the  border,  a  soldier

cannot live  merely  on  past glory  but should rise to the

occasion on every occasion to defend the integrity of  the

nation since such is the trust reposed in a soldier.  Though

in service  matters the past conduct, both positive and

negative  will be relevant  not only  while referring to the

misconduct but also in deciding the proportionality of the

punishment, the Court should be cautious while

considering the case of an officer/soldier/employee of a

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disciplined force  and the  same yardstick  or  sympathetic

consideration as in  other  cases  cannot  be  applied.  The

resources of the country are spent on training a soldier to

retaliate and fight when the integrity of the nation is

threatened and there is aggression.  In such grave situation

if a soldier turns his back to the challenge, it will certainly

amount  to cowardice.   If in  that  background, the action

taken against  the appellant  is taken note,  we are of the

opinion, that the  SGCM and the  Armed Forces Tribunal

were justified.

9. Having arrived at the above conclusion we also take

note that  the appellant apart from being dismissed  from

service has also been ordered to undergo rigorous

imprisonment  for  six months.  For  the reasons recorded

above, the order of dismissal is justified and does not call

for interference.  In so far as the order for imprisonment, in

the present facts and circumstance we notice that though

the  appellant  had exhibited cowardice, the fact remains

that he had also received a gunshot injury in the incident.

Further, there is long lapse  of time and as  such  in  the

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peculiar facts and circumstance we are of the opinion that

the order of imprisonment need not be implemented at this

stage.

10. Consequently, the order of dismissal from service is

upheld while the order to undergo rigorous imprisonment

is set aside.  The appeal is accordingly disposed of with no

order as to costs.  

……………………….J.                                                (M.R. SHAH]

……………………….J.                                                     (A.S. BOPANNA]

New Delhi, July 02, 2019