Non-Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NOS. 3-4 OF 2015

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

Versus

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

J U D G M E N T

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

the Armed Forces Tribunal, Regional Bench, Chandigarh

(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 74th 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.

[14]

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.

[15]