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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1112 OF 2011

Om Prakash … Appellant

                      Versus

Union of India & Ors. … Respondents

J U D G M E N T

DIPAK MISRA, J.

The present appeal, by special leave, is directed against

the judgment of affirmation of conviction and order of sentence

passed by  the  Armed Forces  Tribunal,  principal  Bench,  New

Delhi (for short “the tribunal”) in T.A. 617 of 2009 whereby the

tribunal has confirmed the conviction under Section 304 Part-II,

I.P.C. and the sentence of seven years of rigorous imprisonment

imposed by the General  Court Martial  held at  Babina in the

State  of  Madhya  Pradesh  vide  order  dated  24.2.2007  and

further has maintained the order dated 18.3.2008 passed by

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2 the Chief of Army Staff under Section 164(2) of the Army Act,

1950 (for brevity “the Act”).

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3 2. Be it stated, the initial order was challenged before the

High  Court  of  Delhi  in  W.P.(C)  No.  7266  of  2009  and  after

coming into force of the Armed Forces Tribunal Act, 2007 (for

short ‘the 2007 Act’)  and the constitution of the tribunal the

matter was transferred to the tribunal wherein it was treated as

an appeal under Section 15 of the said enactment.  

3. The facts necessary to be exposited for  adjudication of

this  appeal  are  that  on 3rd of  April,  2006,  a  ‘Barkhana’  was

organized  at  85,  Armoured  Regiment  to  bid  farewell  to  the

outgoing Risaldar, Major Madan Lal.  At the Barkhana venue

some heated arguments took place between the appellant and

Risaldar,  Nand Lal  Prasad,  PW5,  and in course of  argument

said  Nand  Lal  Prasad  slapped  the  appellant.   However,  the

matter was defused with the intervention of Major Raj Nandan,

PW4, who instructed Lance Dafdar Anil Kumar, PW6 and Lance

Dafadar Murari Singh, PW7, to take the accused to his living

barracks of Headquarter Squadron.

4. As per the prosecution version during the altercation and

assault  between the accused and Nand Lal  Prasad, deceased

Dafadar Ram Pratap had tried to intervene and was abused by

the accused.  After the accused had left for the barracks of the

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4 Headquarter, about 12.30 a.m., Sowar Balwinder Singh, PW6,

came to the line after finishing his duties allotted to him, and

after entering the room switched on the light and found Dafadar

Ram Pratap was lying in a pool of  blood and blood was also

oozing out from his mouth.  He was immediately shifted to the

Army Hospital where he was declared dead.  About 1.30 a.m. on

4.4.2006,  information  was  received  from  the  police  station

Babina by the 85, Armoured Regiment that a person belonging

to  their  regiment  had  surrendered  at  the  police  station  and

stated that he had stabbed one person with a knife.  On receipt

of the said information, the concerned J.C.O. was sent to the

police  station  where  he  saw  that  Dafadar  Om  Prakash  was

present.   After receiving the information from the J.C.O.,  the

Commanding Officer, Col. Rajiv Chib, PW27, along with Lt. Col.

Atul  Kumar  Bhat,  PW15,  reached  the  police  station  Babina

about  1.50  a.m.  and  enquired  from  the  accused  about  the

details to which he confessed that he had stabbed the deceased.

Thererafter,  an  F.I.R.  was  lodged  by  the  Adjutant  Captain

Abhishek,  PW3,  and  the  accused  was  handed  over  to  the

Military  Police.   As  the  narration  would  further  unfurl,  the

proceedings of the General Court Martial (GCM) under the Army

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5 Act  was  initiated by  order  dated 8.10.2006 passed by  Major

General  A.K.  Singh,  General  Officer  Commanding,  31st

Armoured Division.

5. Be it  noted,  the  accused was charged for  the  offences

under Section 302 of I.P.C. for intentionally causing death of

Ram Pratap of his unit, but subsequently stood convicted for

culpable  homicide not  amounting  to  murder  under  Part-II  of

Section 304, I.P.C.  As is demonstrable, the prosecution in order

to  substantiate  the  charge  had  examined  as  many  as  31

witnesses and during the court martial number of documents

were exhibited.  The Court Martial relied on Exbt. 36 which was

recorded  at  the  time  of  summary  of  evidence  wherein  the

accused had admitted that the deceased and he were involved

in a fight.  He had also stated that the deceased in the room

had abused him and tried to kick him but failed in the attempt

and when the accused stood up on ‘charpai’ the deceased boxed

him on the face and at that time he pushed him back with both

hands as a result of which he fell on the box and was hurt on

his back.  As the statement further proceeds, the deceased left

the room and came back within five minutes.  The accused, in

the meantime, had picked up the knife from the locker and kept

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6 it on the box.  While he was sitting in the ‘charpai’ the deceased

came into the room and caught hold of the neck of the appellant

and pulled him towards his own locker.  The appellant got hold

of the knife and stabbed the deceased on the chest so that he

would leave his neck.  Apart from the aforesaid, a confessional

statement  made  by  the  accused  to  Col.  Rajiv  Chib,

Commanding Officer of  the regiment,  PW27, at police station

that he had stabbed the deceased was also given credence to.

The testimony of  Lt.  Col.  Atul  Kumar Bhat,  PW15,  who had

witnessed the confession was also taken into consideration.  In

addition, during the court martial the corroborating statement

of Court Witness No. 7 Naib Subedar J.M. Sharma, wherein the

accused had stated to CW-7 at Police Station on 4th of April,

2006 about  the  incident  that  was  caused  due  to  anger  and

intoxication, was also exhibited.  The GCM also believed that

part of the testimony of CW-7 wherein he had stated that from

the condition of dress worn by the accused, it appeared that he

was involved in a quarrel, for the accused had a minor bruise

on  his  right  temple  of  the  head.   The  GCM referred  to  the

evidence  of  Major  (Dr.)  M.C.  Sahoo,  PW1,  and  Dr.  R.K.

Chaturvedi,  PW28,  who  had  deposed  that  the  stab  wound

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7 injury inflicted on the chest of the deceased was sufficient in

ordinary course of nature to cause death.  The GCM also took

certain circumstances, namely, that the deceased was lying on

the floor in a pool of blood; that the accused was found lying on

the ‘charpai’ in the room in an injured condition; that he was

present in the room and eventually held thus:-

“Even though the accused had no intention to kill the deceased, the accused should be knowing the consequences of his action.  The accused should be conscious, that by stabbing at chest, which is a vital part of a human body, the injured person is likely to die, due to the effect of such injury.  A man  expects  the  natural  consequences  of  his action.  By causing such bodily injury on Dafadar Ram Pratap, the accused should be knowing that death is the likely consequence of that injury even though  accused  never  intended  to  kill  Dafadar Ram Pratap.

Hence  the  court  finds  him  Not  Guilty  of committing  a  civil  offence  that  is  to  say Murder contrary  to  Sec.  302  of  IPC  but  Guilty  of committing a civil offence that is to say, culpable homicide not amounting to murder under Part-II of Sec. 304 of IPC.”          

6. In appeal the tribunal after adverting to the facts and the

evidence  brought  on  record  took  note  of  the  chain  of

circumstantial evidence brought on record and opined thus:-  

“The  appellant/accused  himself  reached  at  the Police Station Babina and reported with regard to

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8 the  incident  and  desired  him to  be  taken  into custody.   From  the  statement  of  the  PW31 Constable Clerk Munna Lal Verma who informed to the military authorities about the surrender of the accused at Police Station Babina.  It was also clarified by him in his statement that it was the intervening  night  of  3/4th April  2006  at  about 1.30 hours or 2.00 a.m. the accused came to the Police  Station  and  was  slightly  frightened  and told that in the Unit there was Barakhana party. He  had  quarrel  with  few  people  and  so  he  be protected.   The  timings  when  the  accused surrendered  at  the  Police  Station  would  itself reconcile with the time of the causing of the fatal injury and it  would lead to the conclusion that after  causing  injuries  when  PW13  Dafadar Muneshwar  Shah  and  PW23  Acting  Lance Dafadar Vikram Singh reached at that room, he slipped away from that place and could possibly reached at Police Station at 1:30 or 2:00 a.m. on the intervening night of 3/4th April, 2006.  There the accused also confessed his guilt before PW3 Abhishek  Sharma that  he  had  caused  stabbed injury to Dafadar Ram Pratap.  The testimony of these witnesses could not be assailed.  However, PW29 Sub Inspector Lal Singh made it clear that on the first day the accused confessed his guilt and for that an application was also moved before the Magistrate but on next day he did not give his confessional  statement.   The  fact  remains  that before  informant  Captain  Abhishek  Sharma  he confessed his guilt  and his testimony remained uncontroverted  and  it  was  supported  by  the statement of PW30 Lt. Col. Sandeep before whom in  the  course  of  Summary  of  Evidence  the accused produced original copy of the statement (unsworn  statement)  vide  Exbt.  36.   In  his statement he has also admitted his guilt.  There is ample incriminating circumstances appearing against  the appellant and proving the complete chain  of  circumstances  consistent  only  with

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9 hypothesis  of  the  guilt  of  the  appellant.   Each circumstance are appearing to be incriminating in  nature  and  in  totality  the  conclusion established  the  guilt  of  the  appellant.   In  that regard,  reliance  may  be  placed  on  Gilbert Pereira  v.  State  of  Karntaka  AIR  2004  12 SCC 281 wherein it was held as under:

The  incriminating  circumstances proved  against  the  appellant  form  a complete chain of circumstances which is consistent only with the hypothesis of  guilt  of  the  appellant.   Each circumstance  is  incriminating  in nature  and  the  totality  of circumstances conclusively establishes the guilt of the appellant.

10. From  such  incriminating  circumstances which were  incompatible  with  the  innocence  of the  guilt  of  any  other  person  the  GCM  was justified in drawing the inference of guilt of the accused/appellant.”

      Being  of  this  view,  the  tribunal  concurred  with  the

opinion expressed by the GCM.  

7. We have heard Mr. Mohit Kumar Shah, learned counsel

for the appellant for the appellant and Mr. B.V. Balram Das,

learned counsel for the respondent.  

8.  It is submitted by learned counsel for the appellant that

the  substantial  evidence  which  has  been  relied  upon  for

recording the conviction by the GCM and the tribunal cannot

form the foundation of  conviction, for the confession made by

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10 the appellant at the police station in presence of the authorities

cannot  be  taken  into  consideration,  and  that  apart  heavy

reliance  placed  on  the  statement  recorded  in  the  summary

enquiry under Rule 23 of the Army Rules, 1954 (for short “the

Rules”) is totally sans legal substratum.  Learned counsel would

submit that the tribunal has failed to analyse the unacceptable

and incurable discrepancies in the evidence of witnesses and, in

fact, at places has relied upon certain hearsay evidence which

make the analysis perverse and in the ultimate eventuate the

judgment has become absolutely dented.  It  is urged by him

when the weapon of causing injury, that is, the knife has not

been recovered, and the evidence as brought on record would

show that  apart  from the  appellant  other  persons  were  also

present  in  the  room  while  the  deceased  was  murdered,  the

circumstantial evidence could not have been regarded to have

brought home the charge against the accused.  Learned counsel

would submit that the presence of the accused at the time of

incident as per the evidence available on record is doubtful and,

therefore, the conclusion that has been arrived at deserves to be

dislodged on the bedrock that it does not meet the criteria of

proof as per the principles laid down by this Court in relation to

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11 acceptance of  the circumstantial  evidence.    Learned counsel

has  seriously  criticized  the  approach  of  the  tribunal  in

appreciation of the evidence on the ground that it is extremely

perverse  and  does  not  withstand  scrutiny.   To  bolster  his

submissions, he has commended us to decisions in Ravindran

v.  Superintendent  of  Customs1 and  Rumi  Bora  Dutta  v.

State of Assam2.  

9. Learned counsel appearing for the respondent, resisting

the arguments canvassed by Mr. Saha, has urged that  ample

material  has  been brought   on record by the  prosecution to

establish  the  chain  as  required  under  the  concept  of

circumstantial evidence and the minor discrepancies here and

there would not destroy the prosecution case.  Learned counsel

would  contend  that  31  witnesses  were  examined  during  the

GCM and their deposition appreciated in entirety undoubtedly

and  decidedly  bring  home  the  charge  leveled  against  the

appellant.  It is canvassed that the non-recovery of the kitchen

knife  with  which  the  injury  was  caused  does  not  mar  the

1

(2007) 6 SCC 410  2

(2013) 7 SCC 417

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12 prosecution  case.  Emphasis  has  been  laid  on  the  statement

recorded vide Exhibit  36 under Rule 23 of  the rules by Col.

Sandeep Nagrat, PW 30, which has been corroborated by the

court witness No.2, Risaldar Rajesh Kumar and on that base, it

is urged that there is no reason to discard the version of the

prosecution.   It  is  further  argued  that  the  appellant  in  his

petition dated 30.05.2007 under Section 164 of the Army Act

had  admitted  that  he  had  used  the  vegetable  knife  in  his

self-defence which resulted in the death of the victim and he

had no intention to cause the death and hence, the punishment

awarded was very harsh, and the said admission goes a long

way  to  establish  the  case  of  the  prosecution.   Certain

authorities have been cited to show how the proceedings before

the GCM are meant for maintaining military discipline under

the Act and how the statement recorded under Rule 23 can be

placed reliance upon.  

8. First  we  shall  record  the  injuries  inflicted  on  the

deceased.  Dr. R.K. Chaturvedi, PW28, who had conducted the

autopsy had found the following injuries  on the body of  the

deceased:-

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13 “The two ante mortem injuries were found on the dead body.  The one which can be called Number 1 injury was stab wound on chest, at the left side of size 3 x 2 cms and the second injury was linear abrasion at right back side of chest.  The size of linear abrasions was 3 ½ x 1 ½ cm. The stab wound was 3 x 2 cm, at the margin of wound.  The wound was deep upto chest cavity, it  was  sharp  and  averted  meaning  protruding outside. The linear abrasion was below the lower angle of right scapula.”

9. In the opinion of the autopsy surgeon the injury number

1 could be caused by knife which had caused the death of the

deceased.   From the evidence brought on record it  has been

established that on 3.4.2006 there was a farewell party, that is,

‘Barkhana’  to bid farewell to Risaldar Major Madan Lal;  that

drinks were served in the said party;  that  the appellant had

entered into an altercation with Risaldar Nand Lal Prasad, PW5,

and the appellant had fought with him and abused him and

consequently PW5 had slapped the appellant; that the appellant

had abused PW5 and the deceased;  that  the said altercation

was intervened by Risaldar Major Raj Nandan Rai, PW4, and at

that juncture he had directed Lance Dafadar Anil Kumar, PW6,

and Lance Dafadar Murari Singh, PW7, to take the accused to

his living barracks;  that as per the directions of the authority

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14 PW-6 and PW-7 had guided the appellant to the barracks; that

the deceased was found lying on the floor bleeding from mouth

and nose and the appellant was found lying on his bed on his

stomach with hands folded beneath in the same room by Sowar

Balwinder  Singh,  PW26,  at  about  0030  hours  when  he  had

returned  to  the  barracks;  that  on  being  alerted  by  PW  26,

Dafadar  Muneshwar,  PW13,  and Sowar  Nakul  Prasad,  PW12

had made arrangements for taking the deceased for medical aid;

that apart from the deceased and the appellant, no one else was

present  in  the  room as  per  the  testimony  of  Dafadar  Major

Ghanshyam  Pukan,  PW18,  Sowar  Balwinder  Singh,  PW26,

Sowar  Nakul  Prasad,  PW12 and Dafadar  Muneshwar,  PW13;

that  Dafadar  Major  Ghanshyam  Pukan,  PW18,  and  Dafadar

Muneshwar,  PW13,  had  witnessed  the  appellant  leaving  the

room quietly via the rear door; that the appellant was absent

from the ‘fall in parade’ that was conducted at 0200 hours; and

that at 0150 hours the Commanding Officer, Col. Rajiv Chib,

PW27, and Lt. Col. Atul Kumar Bhat, PW15, met the appellant

at PS Babina, wherein the appellant had surrendered.  

10. From the aforesaid established facts which are founded

on proper appreciation of the evidence by the forums below, and

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15 we are inclined to think rightly, it is quite vivid that the chain of

circumstances  is  complete.   We  have  concurred  with  the

analysis of the evidence after critically scrutinizing the evidence

of  the  prosecution  witnesses.   What  has  weighed  with  the

forums below is that the appellant was present in the room and

had escaped.  The circumstances that really weigh against the

appellant  are  that  he  had  indulged  in  an  altercation  in  the

party; that he was in a drunken state and he was alone present

in the room; and that he had escaped by the rear door and his

presence at the police station at an odd hour and his absence at

the  “fall  in  parade”.   Learned  counsel  for  the  appellant  had

endeavoured to argue that other persons were present in the

room and for the said purpose he has shown some lines from

here and there but  the evidence read in entirety  established

beyond any shadow of doubt that the accused was alone in the

room.  He being present at  the police  station and not  being

present at the “fall in parade” are circumstances which would

go against him.  He has not been able to give any explanation

about his presence at the police station and the factum that on

being informed by the Head constable the army officers arrived

at the concerned police station.    There can be no cavil over the

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16 proposition as has been laid down by this Court in  Hema v.

State3, Union of India v. Major Rabinder Singh4, Appabhai

v.  State  of  Gujarat5 and Rohtash  Kumar  v.  State  of

Haryana6 that the circumstances from which the conclusion of

guilt is sought to be established must be conclusive in nature.

In the case at hand the series of circumstance clearly establish

the guilt of the accused and the minor discrepancies that have

been  pointed  out  by  the  learned  counsel  for  the  appellant,

really do not create any kind of dent in the testimony of the

prosecution  witnesses  to  treat  them  as  reproachable  and

remotely do not destroy the prosecution version.     

11. Apart from the aforesaid evidence, we have to consider

the evidentiary value of Exhibit 36, the statement recorded at

the time of summary of evidence under Rule 23 of the Rules.

The  said  Rule  deals  with  procedure  for  taking  down  the

3

(2013) 10 SCC 192 4

(2012) 12 SCC 787 5

AIR 1988 SC 696 6

(2013) 14 SCC 434

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17 summary of evidence.  Rule 23 of the Rules being pertinent is

reproduced below:-   

“23.  Procedure for taking down the summary of evidence.- (1) Where the case is adjourned for the  purpose  of  having  the  evidence  reduced  to waiting, at the adjourned hearing evidence of the witnesses  who were  present  and  gave  evidence before the commanding officer,  whether against or  for  the  accused,  and  of  any  other  person whose evidence appears to be relevant, shall be taken  down  in  writing  in  the  presence  and hearing  of  the  accused before  the  commanding officer or such officer as he directs. (2) The accused may put in cross-examination such questions as he thinks fit to any witness, and  the  questions  together  with  the  answers thereto shall be added to the evidence recorded. (3)  The evidence of  each witness after it  has been recorded as provided in the rule when taken down,  shall  be  read over  to  him,  and shall  be signed by him,  or  if  he  cannot  write  his  name shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After  all  the  evidence  against  the  accused  has been recorded, the accused will be asked: “do you wish to make any statement? You are not obliged to  say  anything  unless  you wish to  do  so  but whatever you say will be taken down in writing and  may  be  given  in  evidence.”  Any  statement thereupon made by the accused shall  be taken down  and  read  to  him,  but  he  will  not  be cross-examined upon it.  The accused may then call his witnesses, if he so desires, any witnesses as to character.   (4) The  evidence  of  the  witnesses  and  the statement  (if  any)  of  the  accused  shall  be recorded in the English language.  If the witness of  accused,  as  the  case  may  be,  does  not

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18 understand the English language, the evidence or statement,  as  recorded,  shall  be  interpreted  to him in a language which he understands.  (5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other  grounds (including the expense and loss  of  time  involved),  the  attendance  of  any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing), be readily  procured,  a  written statement  of  his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence.  (6) Any witness who is not subject to military law may be summoned to attend by order under the  hand  of  the  commanding  officer  of  the accused.   The  summons  shall  be  in  the  form provided in Appendix III.      

12. As we have seen from the statement recorded in the said

proceeding, all the safeguards were followed.  The appellant,

as has been indicated hereinbefore, had stated thus:-   

“10.  After  Squadron  Dafedar  Major  left,  Lance Dafedar Chunbad Prasad reached.  He was going on posting.  He closed his bedding and got his luggage lifted by two Ors.  He before leaving the barrack/room said to me, “Adjutant Mera, Officer Commanding  Mera,  Troop  Leader  Mera,  Senior JCO Mera,  Agar  to  Report  Karega  to  Teri  Maa Chudwa Doonga”. 11.  After this Dafedar Ram Pratap came inside the room while Lance Dafedar Chunbad Prasad and  Dafedar  Muneshwar  Sah  were  standing outside the  room.  Dafedar  Ram Pratap kicked me, but it hit the Charpoy.  He said “Madarchod Raste  Me Charpoy  Dal  Kar  So  Raha Hai”.   As

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19 soon, I stood up on the Charpoy, be boxed me on my face.  At that time I pushed him back with both hands.  He fell on the box.  His vest got torn and was hurt on his back. 12.  Thereafter, Dafedar Ram Pratap went out of the  room.   He  came  back  to  the  room  after approximately 5 minutes.  I picked up my knife from locker and kept it next to me on the box.  I kept sitting on the Charpoy.  He came back to room and  got  hold  of  my  neck  and  pulled  me towards his own locker.  Meanwhile, I was hit by a stick on my shoulder.  I got hold of the knife and stabbed him (Dafedar  Ram Pratap)  on the chest so that he would leave my neck.  He fell on the ground between the two charpoys.”  

13. The said statement has been proven during the GCM vide

Exhbt.  36  by  Col.  Sandip  Nagra,  PW30.   It  has  also  been

supported by Risaldar Rajesh Kumar,  CW2.  Despite roving

cross-examination,  both  the  witnesses  have  firmly  stood

embedded  to  their  version.   The  challenge  to  the  said

document shows the hollowness of assault on the part of the

appellant.  We may hasten to make it clear that we are not

placing any reliance on the confession made by the appellant

before the Army officers at the police station in the presence of

police  officers.   We  are  restricting  our  analysis  only  to  the

statement recorded under Rule 23 of the Rules and how the

testimony of the witnesses deposing about the statement have

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20 absolutely  stood  firm  during  cross-examination.   In  this

regard, reference to the pronouncement in  Bachan Singh v.

Union of India and others7 would be seemly.  In the said

case,  the  appellant  therein  faced  the  GCM and  was  found

guilty  of  the  charge  and  sentenced  to  suffer  two  years

imprisonment and dismissal of service.  The said order was set

aside by the learned Single Judge of the High Court against

which the Union of India preferred a Letters Patent Appeal and

that  was  allowed  by  the  Division  Bench.   That  led  the

appellant therein to approach this Court in appeal by special

leave.   The  Court  apart  from taking  note  of  the  statement

made by the appellant therein before the GCM also took note

of  the  first  summary  evidence  recorded  in  presence  of  the

witnesses.  In that context, the two-Judge Bench opined:-   

“11. The record of  the  Court  Martial  produced before  us  by  the  learned  Additional  Solicitor General  would  reveal  that  the  GCM  was  held against  the  appellant  on  different  dates  at Udhampur.  The  record would  disclose  that  the appellant  had  made  voluntarily  written confessional statement before the GCM admitting the  allegations  levelled  against  him  in  the charge-sheet.  On  bare  perusal  of  the  GCM,  it becomes  quite  clear  that  the  proceedings  were

7

(2008) 9 SCC 161

Page 21

21 recorded  by  the  GCM  in  the  presence  of  the appellant,  his  defending  officer  and  other witnesses. The statements of Major S.K. Sareen, Smt  Vidya  Devi,  Veena  Kumari,  Tara  Chand, Rattan  Singh,  Prabhu Ram,  Major  S.B.  Ambel, Pritam Singh, Capt. A.K. Chowdary, Major Amin Chand  Bhattee  were  recorded  by  the  GCM on behalf of the prosecution in support of the charge in the presence of  the appellant.  The appellant was afforded full opportunity of cross-examining the  witnesses  but  he  did  not  avail  of  the  said opportunity. 12. It appears from the record that despite giving warning to the appellant to the effect that he was not obliged to make any confessional statement, the  appellant  made  written  confessional statement  on  22-10-1980.  The  appellant  made additional statement in addition to first summary of  evidence  on  10-9-1981  in  the  presence  of witnesses,  namely,  IC-25616Y  Major  S.L. Gautam,  independent  witness  and  Major  Amin Chand, officer recording summary of evidence. It appears from the record that  second additional summary of evidence recorded on 10-9-1981 was in compliance with the Army Rules 23(1), 23(2), 23(3), 23(4) and 23(6) in which the appellant did confess his guilt.”  

14. Learned  counsel  would  submit  that  there  was  a

confession  which  was  retracted  in  the  proceeding  before  the

GCM.  But what we have noticed is that the GCM has relied on

the statement made vide Ext. 36.  On a studied scrutiny of the

statement of the accused, we find that the appellant was asked

whether he was inclined to make a statement and also apprised

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22 that he was not obliged to say anything unless he wanted to

say.  That apart, a warning was given to him that whatever he

would  say  would  be  taken  down  in  writing  and  given  in

evidence.  Thus, there was no compulsion.  It was a voluntary

statement and the meat of the matter is that it had been done

under a statutory Rule and has been proven to the hilt before

the GCM.  We repeat at the cost of repetition, nothing has been

elicited in the cross-examination or brought on record which

will make the statement hollow and unreliable.

15. In view of our aforesaid analysis, we find no merit in the

appeal and accordingly the same stands dismissed.        

.............................J. [Dipak Misra]

..............................J.                 [N.V. Ramana]

New Delhi July 9, 2015