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IN THE ARMED FORCES TRIBUNAL PRINCIPAL BENCH, NEW DELHI

TA/617/09 (Writ Petition (C) no.7266/2009)

OM PRAKASH SON OF SH. MANGAL RAM R/O. VILLAGE KUHARAR, TEHSIL KOSHAILI, REWARI HARYANA.

THROUGH : SH. RAVI BHUSHAN, ADVOCATE ...APPELLANT

VERSUS

1. UNION OF INDIA THROUGH THE SECRETARY MINISTRY OF DEFENCE SOUTH BLOCK DHQ P.O. NEW DELHI-110 011. 2. THE CHIEF OF ARMY STAFF ARMY HEADQUARTER SOUTH BLOCK DHQ P.O. NEW DELHI-110 011. 3. GENERAL OFFICER COMMANDING 31, ARMOURED DIVISION C/O 56 APO BABINA CANTT JHANSI (U.P.) 4. COMMANDING OFFICER 85, ARMOURED REGIMENT 1

C/O 56 APO BABINA CANTT JHANSI (U.P.)

THROUGH : SH. RAJINDER NISCHAL, ADVOCATE ASSISTED BY LT COL NAVEEN SHARMA. ...RESPONDENTS CORAM : HON'BLE SH. S.S.KULSHRESTHA, MEMBER HON'BLE SH. S.S.DHILLON, MEMBER JUDGMENT DATE : 05th April, 2010 1. This petition has been received from Delhi High Court

on transfer and has been treated as an Appeal under Section 15 of Armed Forces Tribunal Act which is filed for quashing the proceedings of General Court Martial (GCM) and also the findings recorded against him holding him guilty for committing civil offence i.e. culpable homicide not amounting to murder under Part-II of Section 304 IPC and also to set aside the order of sentence dated 24.02.2007 of granting seven years rigorous imprisonment. Simultaneously prayer has also been made for setting aside the order dated 18.03.2008 passed by the Chief of Army Staff u/s.164(2) of the Army Act, 1950. It is contended by the appellant that it was in the evening of 03.04.2006 a `Barakhana' was organized at 85 Armoured Regiment to bid farewell to the outgoing Risaldar Major Madan Lal. At that `Barakhana' venue, some heated arguments had taken 2

place between he petitioner and Risaldar Nand Lal Prasad and the appellant was also slapped by Risaldar Nand Lal Prasad. The appellant anyhow felt unsafe as he was given some threats by Risaldar Nand Lal Prasad and his associates. At that time, the matter was defused with the intervention of certain persons. The appellant was frightened by the threats given from the side of Risaldar Nand Lal Prasad and his associates that he approached Civil Police Station, Babina on 03.04.2006 about 10.00 p.m. for taking him into custody. The police personnel at Babina informed the Military Police and in the morning of 04.04.2006, the appellant was taken into custody by the Military Police. It was thereafter learned by him that on the intervening night of 3rd/4th April, 2006 at about 00.30 hours Dafadar Ram Pratap was found lying in a pool of blood. He was shifted to Military Hospital where he was declared dead. Report of this incident was lodged at Police Station Babina on 04.04.2006 at about 1.00 p.m. u/s.304 IPC by the Military Authorities. There was no evidence even remotely connecting the involvement of the appellant in causing fatal injuries to Dafadar Ram Pratap and merely on account of some scuffle which had taken place with Risaldar Nand Lal Prasad, he has falsely been roped in this case. There is no eye witness of the incident and there was no motive and intention on the part of the appellant to have caused stab wounds. Whatever altercations had taken between him and Risaldar Nand Lal Prasad, there could be no reason for him to have 3

caused any injury to the victim. It is also said that the GCM merely on conjectures and surmises held him guilty for the offence. Even the circumstantial evidence and other materials on record, including so called confessional statement, would not render any assistance to the prosecution for establishing the guilt against the appellant. FIR is also said to be highly belated.

2.

This petition is resisted by Union of India contending that

there is ample evidence on record as on that day there was a `Barakhana' in the Unit, wherein liquor was served. The accused/appellant was found in the room where the deceased was lying in the pool of blood. He deliberately slipped away from that room when other persons came after hearing about the injuries. He surreptitiously surrendered at the Police Station after the incident and made lame excuse for his protection. He had also made confessional statement before PW3-Captain Abhishek Sharma and even in the course of recording of Summary of Evidence he had also given unsworn statement under Army Rule 58(2) (vide Exh.37) admitting his guilt.

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3.

In order to facilitate the disposal of this appeal, a brief

resume of the facts may be made. It appears from Annexure 1 of the petition that on the intervening night of 3/4th April 2006 information was received in the Regiment that Army no.1072957H, Dafadar Ram Pratap who belonged to 85 Armoured Regiment was lying in an injured condition in the line (barrack) at the Headquarter. He was immediately shifted to Army Hospital for medical aid where he was declared dead on 04.04.2006. About 2 a.m. in the morning of 04.04.2006, information was also received from Police Station Babina that one person from 85 Armoured Regiment had surrendered in the P.S. and informed that he had stabbed one person with knife. One JCO of the 85 Armoured Regiment was immediately sent to Babina Police Station where Lance Dafadar Om Prakash of 85 Armoured Regiment was found. He was also questioned by Captain Abhishek Sharma, he confessed his guilt and told that the stab wound was caused by him but he could not tell where he had concealed that knife. On the basis of that FIR the case was registered at the Police Station Babina and in the course of investigation site plan and panchnama of the dead body were prepared by the police. Subsequently the case was transferred to Military for further investigation. Summary of Evidence was also recorded and the accused was charged for the offence u/s.302 of IPC for knowingly causing death of No. 1072957H, Dafadar Ram Pratap of his Unit. Subsequently the charge was altered for causing culpable 5

homicide not amounting to murder under Part-II of Section 304 IPC. Prosecution in the support of its case produced as many as 31 witnesses namely, PW2-Sowar Samaren Nath of Headquarter Squadron, 85 Armoured Regiment, PW3-Captain Abhishek Sharma who is also informant, PW4 Risaldar Major Raj Nandan Rai, PW5 Risaldar Nand Lal Prasad, PW6 Lance Dafadar Anil Kumar, PW7 Lance Dafadar Murari Singh, PW8 Sowar Ashok Wable, PW9 Lance Dafadar S Kamraj, PW10 Dafadar Braj Bhushan Thakur, PW11 Sowar Godse Ramdas, PW12 Sowar Nakul Prasad, PW13 Dafadar Muneshwar Shah, PW14 Sowar V Bharti Raja, PW15 Lt Col Atul Kumar Bhat, PW17 Dafadar Gopal Dafadar Gopal Chandra Rout, PW18 Sowar Nitnaware Rohidas Ramesh, PW19 Lance Dafadar Rakesh Sharma, PW20 Acting Lance Dafadar Dhanraj Sharma, PW22 Lance Dafadar Satish Singh, PW23 Acting Lance Dafadar Vikram Singh, PW24 Squadron Quarter Master Dafadar Bir Singh, PW25 Risaldar Ramender Prasad, PW26 Sowar Balwinder Singh. They all have stated about `Barakhana' which was arranged in the Unit for 03.04.2006 where liquor was also served. The witnesses have also stated about the altercation between the accused and Risaldar Nand Lal Prasad.

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4.

Prosecution further produced Ex Major MC Sahoo PW1

who was at the relevant time Medical Officer serving with 431 Field Ambulance. He examined the deceased Dafadar Ram Prasad on the night intervening 03rd/04th April 2006 and noticed him to be unconscious. He found stab injury on the left side upper chest infra Clavicular and deep abrasion at right side back infra scapular. His nose and stab injury were bleeding and the blood was fresh and colour was red. PW17 Dafadar Gopal Chandra Rout of 85 Armoured Regiment also stated about the `Barakhana' function which was organised in connection with posting out of Risaldar Major Madan Lal. They had also taken dinner and at about 0035/0040 hours on the night intervening 3/4 th April 2006 Squadron Dafadar Major GS Phukan informed him that some body had been injured in the Headquarter Squadron line. He provided first aid to the victim of the incident.

5.

PW28 Dr. R.K.Chaturvedi who at the relevant time was the

Orthopaedic Surgeon and conducted autopsy on the dead body of the deceased and found following injuries: 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 7

cms and the second injury was linear abrasion at right back side of chest. The size of linear abrasion 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. It was also opined by him that number 1 ante mortem injury i.e. stab wound was caused by some penetrating object and second was caused by some pointed object. Injury no.1 could be caused by knife which is the cause of death of the deceased. PW27 Colonel Rajiv Chib who was the Commanding Officer at the relevant time stated that on 04.04.2006 at approx. 1 a.m. Risaldar Major Raj Nandan Rai informed him that Dafadar Ram Pratap was wounded and he was also apprised by Major MC Sahoo that the deceased had a stab wound at his chest and he was no more. He was also communicated that there was a log message from Corps of Military Police that a man from his Regiment had surrendered voluntarily at Police Station Babina. He reached to the Police Station Babina approximately at 0150 hours with Major Atul Kumar Bhat. After hearing the details he also asked from the accused as to what he had done. He confessed his guilt for causing stab wounds to the deceased. It is also submitted that under his orders the FIR was lodged on 04.04.2006 around 8

0400 hours. PW29 Sub Inspector Lal Singh Ex Station Officer Babina Cantt Police Station who verified that he received a call from the Police Station informing that one army man had come to the Police Station and confessing his guilt. It was about 11 p.m. and next morning at about 8.40 a.m.he met the accused at Police Station. Prosecution also examined Lt Col Sandeep Nagrath before whom the appellant had given his reply vide Exh.36 admitting his guilt.

6.

It is strenuously argued by the learned counsel for the

appellant that even if the entire evidence is taken to be true on its face value, no offence is made out. There is no motive on his part to have inflicted severe injuries. In this regard it shall be useful to refer the statement of PW4 Major Raj Nandan Rai that after the departure of Commander of the Unit he returned to the Barakhana venue at about 11.55 p.m. He noticed that few men were still taking dinner. The accused/ appellant was found arguing with Risaldar Nand Lal Prasad and he was in fighting mood. Both were shouting at each other. Lance Dafadar Murari Singh was holding the accused. Lance Dafadar Anil Kumar was also standing near to that and was told to take the accused to living barrack of Headquarter Squadron. From the testimony of the witness, it is clear that some altercations had taken place between the two. However in the 9

statement of PW25 Risaldar Ramender Prasad it has become clear that after Barakhana he was also communicated by Risaldar Major Raj Nandan Rai with regard to the quarrel between Risaldar Nand Lal and Dafadar Ram Pratap. The accused also told that Risaldar Nand Lal and Dafadar Ram Pratap were troubling him and he would not spare them. Though PW4 Risaldar Major Raj Nandan Rai referred about the altercation between Risaldar Nand Lal and the accused but soon thereafter when he was going to his room, was told about the unfortunate incident. From such evidence on record motive on the part of the appellant is decipherable altercations have also taken place. Some army men intervened and as from the statement of PW25 Risaldar Ramender Prasad it is clear that threat was also given by the accused that he would take revenge from them. Such motive may also lend support to the prosecution version so as to ascertain his intentions as was held in the case of Murugan Vs. State (2007) 14 SCC 420.

7.

There is no direct evidence in this case but it shall not

be off the point to mention that people may tell lie but the circumstances would never. This case is duly based on circumstantial evidence as nobody had witnessed the incident. In that regard there was clinching evidence from the side of the prosecution to prove the guilt against the 10

appellant. From the statement of PW13 Dafadar Muneshwar Shah it is ascertainable that in Barakhana drinks were offered. The accused in the Barakhana was sitting in Adm Troop next to Lance Dafadar NK Dhal. The witness did not know where the accused had gone after the drinks. Sowar Balwinder Singh approached to him and told to make some arrangement of vehicle as Dafadar Ram Pratap was bleeding from nose and chest. He immediately along with Lance Dafadar NK Dhal, Acting Lance Dafadar Vikram Singh and Sowar Nakur Prasad went to room number 01 where the deceased was lying. He found the accused/appellant lying prostrate on his bed. He noticed that the accused quietly moved out from the room via rear gate. It has also been clarified by him that at that time when he reached to the deceased room, except the deceased and accused no third person was present in the room. Such statement of the witness confirms the presence of the accused there in the room. When there was no third person, it is the accused to explain who had inflicted these injuries. Here the inculpatory fact proved the presence of the accused in the room, where the accused was gasping for life and such inculpatory circumstances are inconsistent with the innocence of the accused and incapable of explanation or any other hypotheses than that of guilt. Reliance may be placed in the case of S.P.Bhatnagar Vs. State of Maharashtra, AIR 1979 S.C.826. When the accused alone was there it is he who had to explain in what circumstances and who had caused these 11

injuries. PW23 Acting Lance Dafadar Vikram Singh had also given identical statement that when he along with Dafadar Muneshwar Shah and Lance Dafadar Nirmal Kumar Dhal entered into the room of Dafadar Ram Pratap, there was no other person except the appellant/accused. It is for the accused to explain such inculpatory circumstances appearing against him.

8.

It is further argued by the learned counsel for the appellant

that the circumstantial evidence which are said to be appearing against appellant are not sufficient to fix his culpability and essential ink is disappearing in this case. The report was lodged after inordinate delay; FIR ought to have taken place promptly. Moreover there was no intention/ motive on the part of the appellant to have caused fatal injuries to the victim. As has already been mentioned that the presence of the accused in the room of the deceased was emanating from the statement of PW13 Dafadar Muneshwar Shah and PW23 Acting Lance Dafadar Vikram Singh and such part of the statement of the witness could not be rebutted from the side of the appellant. This inculpatory circumstances would lead to the irresistible conclusion with regard to the involvement of the accused in the aforesaid incident.

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9.

Further the appellant/accused himself reached at the Police

Station Babina and reported with regard to 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 3/4 th 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 13

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 Exh.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 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 Vs. State of Karnataka 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.

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11.

It has next been argued by the learned counsel for the

appellant that the confessional statement so said to have been relied upon by the prosecution in the statement of PW3- Captain Abhishek Sharma and also unsworn statement are not sufficient to establish the guilt of the accused because it would be in the nature of retracted confession and even the testimony of both these witnesses remained impeachable. From the

facts and circumstances of the case, it is evident that there was some quarrel. The accused used sharp weapon against the unarmed man and stuck at him causing fatal injuries. His conviction u/s.304 Part-II IPC is full of merit and does not require any interference.

12.

Appeal is dismissed.

S.S.DHILLON (Member) PRONOUNCED IN OPEN COURT ON 05th APRIL, 2010

S.S.KULSHRESHTA (Member)

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