Sep.L/Nk.Jang Singh vs Uoi & Ors.
2015 Latest Caselaw 2336 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment Reserved on: March 10, 2015
                                  Judgment Delivered on: March 19, 2015

+                           LPA 774/2008

         SEP.L/NK.JANG SINGH                             .....Appellant
                   Represented by:      Group Cap.Karan Singh Bhati
                                        (Retd.), Advocate as Amicus
                                        Curaie with Ms.Madhurima Ghosh
                                        and Mr.Dinesh Kumar Bhati,
                                        Advocates

                                        versus

         UOI & ORS.                                    .....Respondents
                   Represented by:      Mr.Ankur Chhibber, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J.

1. The present intra-court Appeal has been filed by the appellant impugning the order dated September 29, 2000 passed by a learned Single Judge of this Court dismissing W.P.(C) No.3511/1994 filed by the appellant. In the writ petition the appellant had challenged the verdict of guilt returned by the General Court Martial and sentencing appellant to undergo imprisonment for life, holding appellant guilty of having murdered Hav.Gurdev Singh on September 13, 1989 at around 17:15 hours.

2. Briefly encapsulated, the facts leading to the filing of appeal are that the appellant was enrolled in the Indian Army and was attached as a

Sepoy with the 832 Sikh LI Regiment on April 30, 1983. Rising through the ranks, the appellant was promoted to the rank of Lance Naik and in the year 1989 was serving at Khasa Post with the 15th Sikh LI Regiment.

3. On September 10, 1989, an altercation took place between the appellant and Havildar Gurdev Singh because Havildar Gurdev Singh had used the underwear of the appellant for cleaning his weapon. The quarrel escalated and a few army personnel had to separate the two. The next day, on September 11, 1989, a full unit of the regiment, including the appellant was detained for patrolling the border from Khasa to Khanu, and return the next day.

4. In the meanwhile, on September 13, 1989, Havildar Bhag Singh detailed Havildar Gurdev Singh as the duty NCO, but Havildar Gurdev Singh stated that he was not well and thus got his duty changed and rested in the bunker. The appellant was detained for sentry duty on September 13, 1989 for the second shift from 12:30 hours to 18:00 hours at the sentry post of No.11 Platoon.

5. At 17:15 hours, the Section Commander carried out the stand-in; and after checking the stand-in reported that everybody except Havildar Gurdev Singh, who was in his bunker, has assembled. Shortly thereafter, a sound of firing was heard from the Platoon Area, i.e. from the bunker in which Havildar Gurdev Singh was resting. Upon hearing the sound of firing the force personnel around rushed towards the bunker from where the sound of gun fire had emanated. Nb.Sub.Tirath Singh, thePlatoon Commander of the 11th Platoon and Havildar Bhag Singh claimed to have seen the appellant leave the precincts of the Section No.1 Bunker, where Havildar Gurdev Singh was resting. Subedar Malkiat Singh also reached the bunker entrance. Upon inquiry, the three officers claimed, that the appellant told them that he had done what was needed to be done and had

killed Havildar Gurdev Singh. Havildar Bhag Singh immediately disarmed the appellant and took possession of his service rifle and the belt. The three then went inside the bunker and saw Havildar Gurdev Singh lying on an improvised bed in the bunker. He was covered upto the waist by a blanket and blood was oozing out from his chest. They searched the bunker and found eleven fired cases and one live round. The three JCOs found that Havildar Gurdev Singh was dead.

6. The matter was reported to the Commanding Officer.

7. The next day, on September 14, 1989, a Court of Inquiry was ordered to be convened to inquire into the circumstances surrounding the death of Havildar Gurdev Singh and the same was completed on September 24, 1989. The Court of Inquiry being of the opinion that a prima-facie case against the appellant existed, Summary of Evidence was directed to be recorded and the same was completed on November 10, 1989.

8. Vide order dated March 12, 1991, a General Court Martial was ordered to be convened to try the appellant for having committed the murder of Havildar Gurdev Singh on September 13, 1989; and the proceedings commenced on July 30, 1991.

9. At the trial, the appellant pleaded not guilty. The respondents commenced leading evidence.

10. Nb.Subedar Tirath Singh PW-1, the Platoon Commander deposed that on September 13, 1989 after taking the roll call, Havildar Balbir Singh reported that the complete platoon had assembled at the stand-in except for Havildar Gurdev Singh, who was in the bunker. He further deposed that upon hearing the sound of firing, all the personnel ran to their respective platoon bunkers and he also rushed towards his platoon area, and when he went to check the position of the appellant at the sentry

post, he saw him climbing up the stairs of the bunker and asked him who had fired the weapon. In the meanwhile, Havildar Bhag Singh (PW-2 ) had also reached the spot and asked the appellant the same question. The appellant came towards them saying 'Who else will fire? I have fired and killed Havildar Gurdev Singh.' He cautiously approached the appellant and caught hold of him, and upon doing so the appellant handed over the rifle and belt, along with the ammunition to Havildar Bhag Singh. He then instructed Havildar Bhag Singh to conduct the 'Khalikar' (cleaning) procedure on the weapon, and one round was found in the chamber of the weapon. He then put the appellant under arrest and detailed Havildar Bhag Singh and Havildar Balbir Singh to stand guard. He then entered the bunker and saw Havildar Gurdev Singh lying on an improvised bed in the bunker, covered waist high by a blanket. Blood was oozing from the chest of Havildar Gurdev Singh. Shocked, he exited the bunker immediately and in the meantime Subedar Malkiat Singh (PW-3) had also reached the spot. He, along with Havildar Bhag Singh and Subedar Malkiat Singh checked the body of the deceased Havildar Gurdev Singh thoroughly and conducted a search of the bunker, recovering one live round and eleven fired cases.

11. Havildar Bhag Singh PW-2 and Subedar Malkiat Singh PW-3 deposed a version of events in sync with that of Nb.Subedar Tirath Singh, with Havildar Bhag Singh adding that when he held the rifle of the appellant for the 'Khalikar' procedure, the barrel was hot and gas was coming out, indicating that the weapon had recently been discharged.

12. Capt.D.S.Mankoti PW-4 deposed that he was a Post Commander of Khasa Post and was on patrol for two days to a place called Khanu. At around 18:00 hours, when he was at Khanu, he heard on the radio set that some shooting had taken place on a post and after sometime the

officiating Commanding Officer Major D.N.Jha informed him to move to Khasa Post. He reached Khasa Post at 06:15 hours on September 14, 1989 and went straight to the appellant and questioned him why he had shot Havildar Gurdev Singh. He replied that he does not know how it happened and that whatever had happened had happened.

13. Sepoy Rajpal Singh PW-5 deposed that on September 10, 1989 arms cleaning was carried out during which Havildar Gurdev Singh used the underwear of the appellant to clean the weapon at which appellant objected saying that his underwear was 'sikhi kachha' and was not to be used for cleaning arms. An argument ensued between the appellant and Havildar Gurdev Singh. But the matter was resolved when Havildar Gurdev Singh accepted his mistake. On September 13, 1989 after the stand-in was conducted on 17:15 hours a sound of fire was heard from the general area of number 11 Platoon and everybody rushed to the trenches. He saw Havildar Bhag Singh, L/Nk.Jang Singh (the appellant), Nb.Sub.Tirath Singh and Sub.Malkiat Singh near No.1 Section Bunker. On September 15, 1989 he was on guard duty on L/Nk.Jang Singh (the appellant) and asked him what did he do to which he replied that he hails from Patiala District and had done what was required to be done.

14. Havildar Balbir Singh PW-6 deposed in sync with the testimony of PW-1, PW-2 and PW-3 as to what happened on September 13, 1989 after the stand-in.

15. CHM Mohinder Singh PW-7 deposed that on September 10, 1989 the appellant and Havildar Gurdev Singh had quarreled and were required to be taken to the senior JCO.

16. Dr.T.Ninu PW-8 deposed that on September 15, 1989 he received orders from the DMO to conduct post mortem examination upon the body of deceased Havildar Gurdev Singh, and he conducted the post-mortem

examination on the morning of the next day. In his report, he opined that the heart, lungs, aorta, duodenum and blood vessels were damaged and that the cause of death was due to cardiovascular and respiratory failure caused by hypovoluming shock due to the multiple bullet wounds. During cross examination, he also stated that the injuries were caused by a high velocity weapon like a rifle.

17. G.Singphow PW-9 deposed that on the date of incident, he was officiating as the Magistrate of Pongchou Circle and that the appellant was brought before him and tendered his written confession.

18. At the Court Martial proceedings an FSL Report recording the opinion of the ballistic expert that ten cartridges recovered from the bunker were fired through the rifle seized from the appellant was exhibited.

19. The General Court Martial found the appellant guilty of having murdered Havildar Gurdev Singh i.e. having committed an offence punishable under Section 302 IPC and vide decision dated September 05, 1991 sentenced appellant to undergo imprisonment for life and also to be dismissed from service.

20. WP(C) 3511/1994 filed by the appellant has been dismissed by the learned Single Judge vide decision dated September 29, 2000. Challenge to the Court Martial proceedings on alleged violation of Army Rules 22, 23 and 24 has been held to be inconsequential in view of the law declared by the Supreme Court in the decision reported as (1998) 1 SCC 537 UOI & Ors. vs. Major A.Hussain and the decision reported as (1991) 2 SCC 382 Major General G.S.Sondhi vs.UOI. The second round of challenge based on Rule 27 of the Army Rules has been negated by the learned Single Judge with reference to the decision of the Supreme Court reported as (1993) 4 SCC 327Bhuvneshwar Singh vs. UOI & Ors. The

third limb of the argument whether circumstantial evidence justified a verdict of guilt has been repelled by the learned Single Judge holding that under writ jurisdiction the Court was not to re-appreciate the evidence.

21. Aggrieved by the dismissal of the writ petition, the appellant approached the Supreme Court by filing a petition seeking special leave to appeal, which was granted resulting in Crl.Appeal No.128/2001 being registered. The same was disposed of by the Supreme Court on November 12, 2008 observing that the right of the appellant was to prefer an intra-court appeal. Thus, the instant appeal was registered in the year 2008 on the basis of the criminal appeal papers transmitted to this Court by the Supreme Court.

22. Arguing the appeal on March 10, 2015 learned counsel for the appellant raised the same two preliminary arguments based on alleged non-compliance of Army Rules 22, 23 and 24 and the requirement of Rule 27 not being fulfilled. On merits it was urged that since nobody saw the appellant fire at the deceased, it was a case of circumstantial evidence; and that the chain of circumstances was not completed to return the verdict of guilt.

23. In Major A.Hussain's case (supra), pertaining to General Court Martial proceedings, the Supreme Court had observed:-

"Proceedings of a court-martial are not to be compared with the proceedings in a criminal court under the Cr.P.C where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court-martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. Court-martial discharges judicial function and to a great extent is a court where provisions of Evidence Act are applicable. A court-martial has

also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that the accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above."

24. In Major G.S.Sondhi's case (supra), pertaining to Rule 22, 23 and 24 of the Army Rules, the Supreme Court had observed:-

"Rules 22,23 and 24 prescribe participation at a stage prior to the trial by court martial, in a trial which is likely to result in deprivation of liberty the body which has ultimately the power to make an order which would result in deprivation of liberty must hear the offender offering full participation. However, the procedure prescribed by these rules is at a stage anterior to the trial by the court-martial. It is the decision of the court martial which would result in deprivation of liberty and not the order directing that the charge be heard or that summary of evidence be recorded or that a court martial be convened."

25. Thus, we concur with the view taken by the learned Single Judge that nothing turns on the alleged violation of Rules 22, 23 and 24 of the Army Rules because instant case was one where the Court of Inquiry proceedings or the Summary of Evidence proceedings did not result in any summary punishment. The appellant was tried at a General Court Martial.

26. Pertaining to the violation of Rule 27 of the Army Rules, in Bhuvneshwar Singh's case (supra), the Supreme Court observed:-

" The basic object of Sections 101-103 of the Act read with Rule 27 of the Rules appears to be to dispose of court martial cases expeditiously and to minimise the period of pre-trial detention. The object is both salutary and laudable.........Keeping in view the limited nature of judicial review in matters arising out of Court Martial proceedings, it is not only desirable but necessary that the authorities under the Army Act strictly follow the requirements of the Act and the Rules. The authorities cannot be permitted to deal with the liberty of a person subject to the Army Act, in a casual manner and cannot be allowed by their commission or omission, to frustrate the object of speedy trial as envisaged by the Act, of the persons to be tried by a Court Martial In our opinion, however, keeping in view the object of the provisions of Section 101-103 of the Act and Rule 27 of the Rules, the illegal detention of the person charged under the Army Act, for a period beyond the prescribed one, before commencement of his trial by the Court Martial, would neither vitiate the Constitution of the District Court Martial nor effect the trial held by the District Court Martial under the provisions of the Army Act, much less render the conviction and sentence recorded thereat bad. The failure to prevent unnecessary and prolonged custody prior to the trial by the Court Martial would not, in any way, effect the Court Martial would not, in any way effect the Court Martial proceedings or render nugatory the findings of the District Court Martial or the General Court Martial, as the case may be. Since the proceedings of the District Court Martial were held strictly in accordance with the provisions of the Army Act and the Rules framed there under and do not suffer from any infirmity whatsoever, the pre-trial illegal detention of the appellant for a period of about one month or so would not vitiate the finding of guilt and the sentence recorded by the District Court Martial."

27. That apart, instant case is not of any illegal detention. From the facts noted hereinabove it is clear that the incident took place on September 13, 1989. The Court of Inquiry commenced the next day on September 14, 1989 and was completed on September 24, 1989. The

summary of evidence was completed on November 10, 1989. The Court Martial was ordered on March 12, 1991 and the proceedings commenced on July 13, 1991.

28. As regards the last contention that the chain of circumstances is not complete to hold appellant guilty in a case of circumstantial evidence, the testimony of the prosecution witnesses which we have briefly noted hereinabove would bring out that pertaining to the deceased using the underwear of the appellant to clean his weapon on September 10, 1989, the appellant nurtured a grievance because the underwear was not an ordinary underwear in the eyes of the appellant. It was a „Sikhi kacha‟. This was the motive for the crime. The evidence brings out that the service rifle of the appellant was found recently used soon after the incident. Its barrel was hot and gun powder smell was detected. The appellant was seen moving away from the bunker in which the dead body of the deceased was found. The contemporaneous utterances of the appellant after the incident which was heard by PW-1, PW-2 and PW-3 are also incriminating evidence since they make out an extra-judicial confession made by the appellant.

29. We note that when the incriminating circumstances were put to the appellant he admitted that around 17:30 hrs. on September 13, 1989 PW- 1, PW-2 and PW-3 came near No.1 Section Bunker after hearing the firing and saw him coming out of bunker No.1. The appellant admitted that he handed over his weapon and ammunition to Subedar Malkiat Singh. The appellant admitted that this was not the normal thing to do because after completing sentry duty he was to keep the weapon with him in his bunker.

30. There is no scope for any argument, except for raising one for the sake of it, that the circumstantial evidence does not unerringly point to

the guilt of the appellant and rule out the innocence. His service rifle was found recently used, with the barrel being hot and smell of gun powder emanating soon after gunshot firing was heard at the bunker where the deceased was killed. The appellant was seen moving away from the bunker. Ten round of ammunition was fired and seized from the bunker and the FSL report links the same to the firearm issued to the appellant. Extra-judicial confession was made.

31. The appeal is accordingly dismissed but without any order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE MARCH 19, 2015 Mamta/skb