Sepoy Brij Lal vs Union Of India & Ors.
2013 Latest Caselaw 1424 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Date of Decision: 22nd March, 2013.

              +      W.P.(C) 1917/2013

       SEPOY BRIJ LAL                       ..... Petitioner
           Through    Major K. Ramesh with Ms. Archana Ramesh,
                      Advocates.


                     Versus


       UNION OF INDIA & ORS.                ..... Respondents

Through Mr. Ankur Chhiber, Advocate with Major Mahesh Sharma.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

S. RAVINDRA BHAT, J. (OPEN COURT)

1. The petitioner claims to be aggrieved by an order dated 4th April, 2012 of the Armed Force Tribunal (hereinafter referred to as the "AFT"), dismissing his TA No.101/2010. In that application, the petitioner had challenged the order of dismissal dated 5th October, 2002; and also the order dated 17th March, 2003, passed by the General Officer, Commanding- in-Chief, Northern Command, rejecting his statutory representation.

2. Briefly the facts are that the petitioner joined the Indian Army in August 1999. Apparently, he had taken 30 days annual leave in February, 2002; he rejoined duty, according to the schedule, on 20 th March, 2002. He had solemnized marriage during the period of his absence, when

he was on annual leave. After rejoining, the petitioner was deployed near the Pakistan Border, near Choi Nala on the night of 20th March, 2002. It was alleged that on 21st March, 2002, approximately at 1130 hours he returned back and subsequently he was supposed to clean the bunker, section wise and carry out improvement of camouflage. He was later deployed along with three others for an ambush under the command of Lance Naik Chander Shekhar Pal. In the ensuing incident, which was the subject matter of the charge and the Summary Court Martial, an incident of firing occurred, as a result of which the petitioner injured himself on foot. The Army alleged that the firing was on account of his voluntarily causing injury to himself with intent to render himself unfit for service and, therefore, he committed an offence under Section 46 (c) of the Army Act, 1950. A charge sheet was issued in this regard on 1 st October, 2002. Summary of evidence was undertaken sometime in September, 2002. Five prosecution witnesses deposed about the incident. Three of those witnesses had the effect of directly implicating the petitioner. PW 3, Hawaldar Joginder Singh Thakur, deposed that he had issued arms and ammunitions to the sepoys and other personnel who were directed to report for ambush duty. Consequent to the Summary Court Martial, the petitioner was dismissed from service; in the post confirmation proceedings, the penalty of dismissal was convened to discharge by order of the Chief of Army Staff on 25th July, 2004.

3. The said penalty was challenged before this Court in a Writ Petition (C) No.2207/2004; upon constitution of the AFT, the said writ petition was transferred and registered as TA No.101/2010. The AFT, after considering the materials on record and hearing counsel for the parties, was of the opinion that the charge had been made out. The petitioner's

submissions that Rule 116(4) had been violated and the charge of guilty should have been read as, "not guilty", and consequently, compelling Court Martial officials to consider evidence on record, was also likewise rejected.

4. Learned counsel for the petitioner submitted that on an overall conspectus of the facts, the AFT erred in law. Counsel argued that none of the witnesses, who deposed in the Summary Court Martial, had actually seen the incident; Court Martial proceedings and the AFT merely inferred wrong doing on the part of the petitioner. It was submitted that the AFT failed to take into account the statement of the petitioner made at the conclusion of the Summary of Evidence as well as during the Summary Court Martial proceedings, by which, he gave an explanation that he was not aware about the weapon being loaded which resulted in an unintentional fire.

5. The Army, on the other hand, argued before the AFT that consequent upon the attack on the Parliament of India in December, 2001, a general mobilization had taken place and the petitioner was deployed at the front and that the ambush was conducted under those pressing conditions.

6. Counsel for the respondents appearing on advance notice further points out to the relevant portion of the evidence that the testimonies of PW2, Lance Naik Chander Shekhar Pal, and PW4, Sepoy Vinod Kumar, clearly pointed out to the witnesses hearing the sound of magazine being loaded and weapon being cocked before a shot was heard. The testimony of PW 3 also established that the ammunitions had been issued to all the concerned participants of the ambush party. Having regard to all these factors, the only conclusion that could have been arrived at by the Summary Court Martial, was that the petitioner had inflicted upon himself an intended

injury in order to escape duty.

7. This Court has considered the submissions as well as the testimony of the witnesses who deposed in the Summary Court Martial Proceedings. PW1, Subedar Suram Singh, deposed about having heard the sound of single bullet at 2310 hours, he was standing near PSK, UCG, he immediately rushed towards the ambush where he saw that 3-4 individuals were already present, he also saw that the petitioner had been injured and was lying unconscious.

Lance Naik Chander Shekhar Pal, PW2, was more specific. He stated that:

"at about: 2310 hours I heard fitting of magazine on the weapon and cocking of weapon followed by immediate fire of a single shot just in front of me. I immediately got alarmed since the magazine was supposed to be fitted for self defence and only in the face of the enemy. All of a sudden I dashed down as I thought that some one has fired on the ambush party from nearby. However, I heard a cry of Sepoy Brij Lal in pain and he told that "he has fired his weapon and has been hit by his own weapon."

Hawaldar Subhash Chand, PW 5, also deposed about hearing the sound of a single shot and further hearing PW2 shouting that the petitioner had been injured.

PW4, Sepoy Vinod Kumar, corroborated the testimony of PW2 in all respects and stateds that:

"at about 2310 hrs due to dark night and silence, I clearly heard a sound of fitting of magazine on the weapon and cocking of the rifle followed by single shot being fired from my left. I immediately got alarmed since we were not supposed to fit magazine on the weapon unless we were required to file. I thought probably some one has fired on the ambush party. Immediately I heard Sepoy Brij Lal crying in pain and asking for help."

8. Having regard to the above testimonies, there is no room for any doubt that the Summary Court Martial reasonably concluded that it was the petitioner alone and nobody else who could fit the magazine in his weapon, cock it and fire a shot. There was, in these circumstances, no possibility of anyone else having done it or even the petitioner having acted in an unintended manner. Having regard to these facts, the Court is of the opinion that the findings of the Summary Court Martial, as endorsed by the AFT, cannot be faulted with. The writ petition is, therefore, devoid of any merit and is accordingly dismissed.

S. RAVINDRA BHAT, J

SUDERSHAN KUMAR MISRA, J MARCH 22, 2013 dr