JUDGMENT
K. Ramamoorthy, J.
1. The Petitioner has filed the writ petition challenging the order dated 24.08.1992 wherein sentence imposed by the Summary Court Martial. The charges against the accused was that “the Accused, No. 14495358L Gunner (TA) Munni Lal, 320 Field Regiment, is charged with an Omission prejudicial to Good Order and Military Discipline in that he, at Field, on 03 November, 1991, while deployed for the purpose of guard duty at PSK uncut gap DCB, improperly omitted to report to his superior the fact that a woman was inside the bunker along with No. 14327149A Hav (DMT) K.D. patil of the same Unit”.
2. In para 4 of the writ petition the petitioner has specifically stated:
That one Hav. (DMT K. D. Patil being superior Officer to the petitioner of the same unit took Smt. Geeta Devi to the bunker (A dug out post for dwelling of porks in field area) and had sexual abuse with the lady. The matter was reported by the petitioner to his superior officer namely Sub Rawal Singh of the same Unit.
3. This has not been controverted by the Respondents in the counter affidavit. At the time of Summary of evidence 9 witnesses have been examined and the first witness was the lady alleged to have been raped by some other person namely, Smt. Geeta Devi. She would state that” I Smt. Geeta Devi do not want to make any statement and I wish to withdraw the case against No. 14495358 Gnr (TA) Munni Lal and have nothing against him.” The second witness Mr. Ajit Raj of Rangpur Irewa stated that” On 03.11.1991 at around 0600 hours I alongwith my younger brother came to the Army post to search for my aunt who had been missing since the night before. We asked the sentry on the post for help by checking the buses coming to the post. The first bus came at around 0630 h and on identifying my aunt I made her alight from the bus. My younger brother thereafter left to inform our family. The woman refused to recognise me and seeing the commotion the JCO who was there asked us to wait in the tent and subsequently handed us over to the police constable on a subsequent bus. He took us to the police station and I was separated from my aunt and kept in a different room. One policeman thereafter took the girl for medical examination.”
4. Witness No. 3 Gnr Akhilesh Kumar states that “on 3.11.1991 at around 650h I had gone to relieve No. 14336091P LNK Harman Singh who was on duty at the LMG post. A bus had come to the post and a woman named Geeta Devi was made to get down from it by two civilians. Thereafter No. 14336091 LNK Harman Singh took her towards a bunker. After sometime I saw No. 14495358 Gnr (TA) Munni Lal speaking to her on the steps of the bunker. No. 14327149 Hav KN Patil went inside the bunker with the girl. Thereafter about 40 minutes later I say the girl standing outside the bunker”.
5. The 4th witness Hav. KD Patil of 3201 Fd Bty states ” on 03.11.1991 at around 715h I was returning after brushing my teeth and I say No. 14495358L Gnr (TA) Munni Lal near the bunker. I asked him as to what he was doing and told him to go away from there. Thereafter No. 14495358L Gnr (TA) Munni Lal went away.” Therefore, the very person namely, Hav. K.D. Patil who alleged not returned back to the petitioner who was superior officer to the petitioner had asked him to go away and the Petitioner had reported the matter to the Sub Rawal Singh.
6. The 5th witness LNK Harman Singh stated:
” On 3.11.1991 when I was approaching the water point from my tent with a bucket to collect water. I saw No. 14495358 Gnr. (TA) Munni Lal near the tent, there were two civilians also there. A bus came and I say a girl being forced to alight by these two civilians. After wards I went to find out what the commotion was all about. They told me that she had run away from her husband. The girl then said that the’two civilians were troubling her and she called me to one side and told me that she wanted to talk to me. We walked about ten steps and she put her hand on my waist and said she wanted to cohabit with me. She took my hand and I led her to the bunker. In the bunker I cohabited with her. I came out of the bunker and I started going back to my tent. By then No. 14495358 Gnr (TA) Munni Lal approached the bunker and started speaking to her on the steps of the bunker. I do not know what happened afterwards as I went away to the tent.
7. The 6th witness Head Constable Rashpal Singh stated:
I am working as a wireless operator in the police post Miran Sahib and commute to the place of my work by bus from Sai Kalan. On 3.11.1991 I arrived by bus. We all got down the bus for a check and search. I saw a girl and a hung man near the shelter next to the sentry post.
Since some of the Army person duty know me as I was a regular pass by they summoned me to the JCO in-charge, who after confirming my antecedents asked me to hand over the girl to PS RS Pure by accompanying her in the bus.
I got into the bus with her and the youngmen and we travelled along sitting in the same seat. During the journey! I questioned the girl about the reason for going to the police station. She informed me that she was running from her husband to avoid harassment and had spent the previous night in a school building with two boys at Sai Kalan. The youngman travelling with her kept ordering her to get down but she refused. I then intervened and told him that the girl was under my responsibility and ordered him also to come with me to the police station. I then questioned the girl if there had been any mishap worth mentioning. She stated that there was nothing to report and thus we reached RS Pura at around 0915 h. The youngman left us at the bus stand and I did not see him later at the police station.
I then took her to the SHO and explained the circumstances under which I had found her and got her there. When the SHO started questioning her she stated that she had been raped by four army personnel. Later when the FIR was being recorded I left the police station for my place of duty at Miran Sahib.
8. The 7th witness was Inspector MA Malik NGO. He simply stated that FIR was lodged. The Doctor who examined the aforesaid lady Geeta Devi had given evidence as witness No. 8. Her opinion is as under:
I examined Smt. Geeta Devi wife of Balkar Chand resident of Irewa who was brought by Shri SH Kapoor Lal Head Constable No. 845 of RS RS Pura on 03. Nov. 91 at 1115 h after taking proper consent. Her MO(a) Black mole on forehead
(b) Old healed scar mark above left eyebrow on physical examination the patient was conscious, cooperative, fully oriented to time, space, person and place, she gave a history of being raped by your army personnel on her way home.
a) Systemic and general examination of the patient nothing significant.
b) Local examination
i) Hymen torn with old healed tags, vainer admits multipurpose sims
speculum easily.
ii) No internal injury of Gagine or cervix.
iii) Vaginal smears taken from anterior and posterior vaginal furnaces and sent for a Ib examination, the hospital lab report No. 5036, showed dead spermatozoa in the arrear examined. Opinion from the examination detailed above in No. .(i), No. (ii). I am of the opinion that there is no evidence of violence and the lady is used to sexual intercourse in the past and has undergone the intercourse three hours before the within twenty four hours prior to this examination.
9. The Division Bench while issuing the rule on 27.11.1995 had noticed the evidence of the Doctor and had observed:
The petitioner says that he had reported the matter of Geeta Devi being in
the bunker to Subedar Rawal Singh who failed to take further action in
the matter.
In any case, medical testimony of Dr. Aruna Verma indicates no injury to the person of Geeta Devi, either in the vagina, or in the cervix or outside. It also indicates that she is a woman used to sexual intercourse and that only dead spermatozoa were found on her person. Dead spermatozoon does not happen within three hours, and there appears to have been was no rape either, therefore, no question of offence of non-reporting of a non-event.
10. On the strength of this order the petitioner made a representation on 02.01.1997. On 04.02.1998 the respondents passed she following order:
Top khanna Abhilekh
Artillery Records
Nashik Road Camp – 422102
14495358/LC/41/T-I/NE-6 04. Feb 97
No. l4495358L Ex. Gnr. Munni Lal
S/o Maharaj Singh
Vill – Nagla Sadia
Post – Hathwant
Teh – Jasrana
Distt. – Mainpuri (UP)
RE-INSTATEMENT INTO SERVICE
Refer to your petition dated 02. Jan 97 addressed to the Secretary, Ministry of defense, received in this office through Army Headquarters.
As per the legal opinion of legal cell, the Court order dated 27 Nov 95 is not a final order. The case still stands admitted for regular hearing. Hence, no action for your re-instatement into service can be taken by this office at this stage.
11. Therefore, it is clear that the respondents were aware of the issuance of the rule by this court and specific grounds mentioned by this court while issuing the rule. In spite of, it no counter affidavit has been filed. The learned counsel for the petitioner submitted that no case has been made out against the petitioner and it is a case of no evidence against the petitioner and therefore, the Court Martial was not justified in imposing any penalty. The learned counsel for the petitioner submitted that there was absolutely nothing on record to show that the petitioner was guilty of not reporting the matter. The learned counsel also submitted that the petitioner had rendered service without any blemish. The petitioner at the time of Court Martial had stated that he had not committed any mistake. The sentence imposed by the
Court Martial is as under:
Sentence:
Rigorous (i) To suffer rigorous imprisonment for two months. I direct that the sentence of rigorous imprisonment shall be carried out by confinement in civil prison.
(ii) The accused is recommended division C(Gr.III), while undergoing sentence in Civil Jail. If there are only two division of prisoners the accused is recommended division B (Gr.II). Dismissal: (iii) to be dismissed from the service.
12. From the perusal of the records and evidence on record it is clear that there is absolutely no material against the petitioner justifying the awarding of sentence imposed by the Court Martial. I am of the view that the Court Martial had not at all applied his mind to the evidence on record and no person properly instructed in law would take the view that had been taken by the Court Martial. The findings given by the Court Martial is. absolutely perverse and cannot be sustained in law. Accordingly the writ petition is allowed. The petitioner is entitled to all consequential benefits including the reinstatement. There shall be no order as to costs.