Delhi High Court
Ex.Gnr.Billu Ram Yadav vs Union Of India & Ors. on 13 February, 2015
Author: Pradeep Nandrajog
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : February 13, 2015
+ W.P.(C) 538/2014
EX. GNR BILLU RAM YADAV ..... Petitioner
Represented by: Major Siya Ram, Advocate
versus
UNION OF INDIA & ORS. ..... Respondents
Represented by: Mr.Ankur Chhibber, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (ORAL)
1. At a summary Court Martial, being found guilty of having committed
the offences punishable under Sections 51, 40(a) and 39(a) of Army Act,
1950, penalty of dismissal from service has been inflicted upon the writ
petitioner.
2. The three charges were on the counts: (i) that at Dehradun on
November 06, 2010, when under close arrest in the unit quarter guard the
petitioner escaped therefrom; (ii) while escaping, he struck a stone on the
head of L/Nk.Kulbir Singh who was guard sentry causing injury; and (iii) he
absented himself without leave from the unit lines from November 06, 2010
to December 18, 2010, since the petitioner voluntarily returned to the Arty
Centre Hyderabad on December 19, 2010.
3. The petitioner challenged the verdict of guilt and the sentence
imposed by filing OA No.537/2011 before the Armed Forces Tribunal,
Principal Bench, New Delhi.
4. The original application has been dismissed vide impugned order
dated October 03, 2013. The Tribunal has found no merit in the original
application and has also noted that in a short span of ten years' service the
petitioner incurred four red ink entries in his service record.
5. From a perusal of the evidence led at the trial we find that the
prosecution has examined twelve witnesses. The testimony of L/Nk.Kulbir
Singh, PW-1, shows that he proved being on sentry duty and the petitioner
being confined to the quarter guard. He proved that when the petitioner
wanted to go to the toilet he escorted the petitioner who hit him on the head
with a stone. He blanked out for a few seconds and when he regained
consciousness he saw the petitioner run away. He shouted. He was taken to
the MI room and was given first aid and the wound was sutured with four
stitches.
6. Relevant would it be to note that the witness was cross-examined and
no suggestion was given to him that on February 06, 2010 the petitioner was
given permission to go home.
7. Gunner (GD) Atul Singh PW-2, deposed that PW-1 told him to keep a
watch of the quarter guard as he was taking the petitioner to the toilet. Soon
thereafter he heard that the prisoner had escaped. He ran and saw PW-1
holding his head and told him that the petitioner had escaped after hitting
him. He ran in the direction where the petitioner had gone but could not
search him.
8. Gunner (GD) Michael Taw PW-3, deposed that he saw PW-2 looking
for a prisoner and he heard the shouts of PW-1. Everybody was looking and
searching for the petitioner.
9. Hav (OPR) V.Ravi Chandran PW-4, deposed that he heard shouts of a
prisoner escaping and rush towards the quarter guard. He learnt that the
petitioner had escaped.
10. Sub(DMT) D.S.Bhadoriya PW-5, deposed that he was sitting in the
quarter guard when PW-1 came running informing that the petitioner had
escaped. He searched but could not locate the petitioner.
11. Nk(NA) Vipin Kumar PW-6 deposed that PW-1 was brought to the
MI room because he was bleeding from the head and he told him that the
petitioner had hit him with the stone. He put a bandage on the head of PW-1
but the blood flow did not stop. He gave four stitches to PW-1 and referred
him to the Section Hospital.
12. Hav(GD) R.Khem Raj PW-7 deposed that he had received a call from
somebody that the petitioner had run away.
13. Hav(Clk) D.B.Bhagat PW-8 deposed that since the petitioner ran
away an apprehension roll to apprehend him was drawn up and published
informing that if within one month the petitioner would not be found he
would be declared a deserter.
14. Naib Sub(Purushotam Lal) PW-10 deposed that petitioner was from
his unit of gunners.
15. We need not delve into the testimony of PW-11 and 12; being
irrelevant.
16. In his defence statement the petitioner stated facts to questions he
being detained in the quarter guard, which aspect is wholly irrelevant for the
reason whether the petitioner was rightly or wrongly lodged in the quarter
guard was not the subject matter of the trial. Assuming that the petitioner
was wrongly confined in the quarter guard that would not give him a lawful
excuse to escape after injuring PW-1 by hitting him on his head using a
stone. That would not give him an excuse to desert from the unit lines. The
petitioner claimed that on February 06, 2010 he left with the permission of
his superior officers and for reasons which we cannot fathom PW-1 was re-
examined and certain questions concerning petitioner contacting him on the
mobile phone a day after he had run away were put to the witnesses.
17. We have briefly captured the evidence as above, noting regretfully
that the Tribunal has dealt with the matter in a very cursory way. The
Tribunal has simply written that having perused the evidence it was satisfied
that they were enough material to hold the petitioner guilty.
18. The Tribunal was exercising an appellate jurisdiction, and howsoever
brief they may be, the essence of the prosecution evidence needed to be
captured.
19. The claim of the petitioner that he left with permission of the superior
officers is simply a word of mouth and as against that we have the testimony
of more than half a dozen witnesses that the petitioner was lodged in the
quarter guard on November 06, 2010 and escaped after injuring the sentry
on duty at the quarter guard; namely PW-1. That PW-1 was injured is not
only being spoken of by eye-witnesses but finds confirmation from the fact
that he had to be taken to the MI room where Nk(NA) Vipin Kumar PW-6
gave medical aid to PW-1.
20. The past service record of the petitioner proves him to be a habitual
offender. The act of escaping from the quarter guard after injuring a sentry
on duty and running away from the unit lines warrants penalty of dismissal
from service to be inflicted.
21. Learned counsel for the petitioner tried to urge before us that the
petitioner was wrongly confined in the quarter guard. We have not allowed
the counsel to show us any fact concerning the circumstances under which
the petitioner was confined in the quarter guard. The indictment at the trial
was not for the offence qua which the petitioner was sent to the quarter
guard. The indictment at the trial was for injuring the sentry on duty at the
quarter guard and escaping followed by deserting the unit lines.
22. The petition is dismissed but without any order as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
FEBRUARY 13, 2015
rb
