ORDER
K. Ramamoorthy, J.
1. The petitioner has challenged the order dated the 4th of August, 1994, wherein the Government of India confirmed the sentence imposed by the Court Martial which is in the following terms:-
“SENTENCE
The court sentence the accused No.IC-37760A Captain Shiv Singh Mehta of 5685 Army Service Corps Battalion (Mechanical Transport).REspondents
(a) to take rank and precedence as if his appointment as substantive Captain bore date the thirtieth day of August, 1983.
(b) to forfeit one year service for the purpose of promotion.
ANNOUNCEMENT OF SENTENCE
The court being reopened, the accused is brought before it. The sentence is announced in open court, the sentence is announced as being subject to confirmation.
Signed at Haldwani this Twenty fifth day of Dec., 1990.”
2. The petitioner’s case could be stated, shortly, in the following terms:-
3. The petitioner joined the Army on the 30th of August, 1980. In the year 1988, he was posted in 5685 ASC Bn (MT). On the night of 18/19.11.1988, he was to perform his duty of checking the night guards. The petitioner, while performing his duty, admonished Bhoop Singh, who was one of the sentries when he found Bhoop Singh missing from his place of duty. Bhoop Singh turned up at his place of duty only after he was called out several times by the petitioner. The said Bhoop Singh appears to have made a complaint that he was beaten up by the petitioner with a bamboo stick and the petitioner caused injuries on the person Bhoop Singh. The petitioner was tried by the General Court Martial on the 25th of August, 1990.
4. The case set up by the prosecution was that on the night of 18/19th of November, 1988 the petitioner was deputed on duty at Haldwani and he was checking up the night guards. At about 11.45 p.m. when the sepoy Bhoop Singh, who was to be on duty, was found near the Commanding Officer’s Office, greeted the petitioner by saying ‘Jai Hind’, the petitioner got irritated and started beating up Bhoop Singh with a bamboo stick.
5. The whole case was fabricated by Bhoop Singh with the connivance of his Cop Cdr, Lt.Col.(TS) C.M.Sehgal as the petitioner took Bhoop Singh to task for carrying away wood for Lt.Col.(TS) C.M.Sehgal from Haldwani to Meerut, and then to a place near Delhi. In other words, Bhoop Singh indulged himself in illegal activities with connivance of Lt.Col.(TS) C.M.Sehgal. The sentence awarded by the General Court Martial was not supported by any evidence and it is liable to be set aside. The petitioner has put it on the ground of no evidence.
6. The respondents filed counter-affidavit. The case put forward in the counter-affidavit is as under:-
“1. Sepoy/Driver (MT) Bhoop Singh of `A’ Copy was on bonafide Govt. duty of Guard/Sentry near main office on 18 Nov. 88 night for the time 2200 to 2400 hrs and from 0400 hrs to 0600 hrs. When Sepoy MT Bhoop Singh was on first turn of duty between 2200 to 2400 hrs, Captain S.S.Mehta the then adjutant of this battalion and also a duty officer for the period from 14 to 20 Nov. 88 came to check the night guards.
2. Sep/MT Bhoop Singh alleged that he was beaten by Capt.S.S.Mehta by Bamboo stick and first on the night of 18 Nov. 88 during his sentry duty. Capt.S.S.Mehta has refuted these allegations and has stated that it was a fabricated story. Sep/MT Bhoop Singh also reported this incidence to another two fellow sentries but did not tell the Guard Commander. He reported this incidence to his Company Havilder Major Kanhai Lal of ‘A’ Copy on completion of his duty. Accordingly, the matter was reported to Senior Junior Commissioned officer and company commander and the
individual was interviewed by company commander. As the individual had sustained injuries had swelling, and was also having pain hence he was sent for Special sick report on 19 Nov. 88 at about 1100 hrs. to section hospital, Haldwani where he was treated and was asked to take complete bed rest for two days. He was also asked by medical officer to come again on 21 Nov. 88. He reported to Section Hospital Haldwani where the medical officer admitted him till 23 Nov. 1988 for treatment. He was transferred to Military Hospital, Barielly on 24th Nov. 1988 for further treatment. As per the statement of Bhoop Singh two persons from the unit had visited him at Military Hospital Bareilly asking him to change
his statement.
3. Sepoy Bhoop had suffered Mild Multiple blunt injuries in left upper arm, right upper thigh and right side upper abdomen which were seen by Capt.D.V.Mishra when he reported sick on 19th Nov. 1988. The individual was given attend ‘C’ and further transferred to Military Hospital Barielly. Individual got discharged from Military Hospital Barielly on 15 Dec. 1988 and was sent on one month part of Annual Leave on 16th Dec. 1988.
4. The Court of Inquiry proceedings were sent to Head Quarter Meerut Sub Area and then by them to Head Quarter UP Area for recommendations/directions of the General Officer Commanding UP Area.”
7. It is further stated in the counter that the Court of Inquiry Proceedings were sent to the Headquarters, Meerut and Brig.Cdr.Hardev Singh severe disciplinary action. It may be noticed that at the time when the recommendation was made by the Brigadier, Meerut, Cantt., no oral evidence had been recorded. The Brigadier, Meerut Cantt., on the 20th of February, 1989 had given the following opinion:
“1. I partially agree with the opinion of the Court.
2. IC-37760A Capt.S.S.Mehta of 5685 ASC BN(MT) committed assault and affray against No.13878852 Sep/Dv Bhoop Singh of the same Bn at approve 2345 h. on 18 Nov. 88. Though there are no eye witnesses but the mere fact that the individual had sustained injuries and informed his relieving sentry and the CMM ‘A’ Coy is an ample proof that the officer used physical force against him. Prima facie case, as such is established against Capt.S.S.Mehta.
3. IC 21274 Col.H.R.Soni, a Co.5685 ASC Bn (MT) was informed of the incident by MS 11294 Capt.DV Mishra No.IC MI Room, Sec Hosp Haldwani about the incident. Col. Soni did not take immediate steps to inquire into the circumstances and institute an inquiry. His intention to hush up the case cannot be ruled out.
4. Capt.DV Mishra should have declared the case as a medico legal based upon the statement made by Sep/Dvr Bhoop Singh in front of him on 19th Nov. 88. He was also negligent in providing proper medical aid wherein the case deteriorated and the individual had to be admitted in the Sec.Hosp. No.21 Nov.88 and later evacuated to MH Barailly on 24 Nov. 88 proper investigation should have been carried out by him and Sep/Dvr.Bhoop Singh acquitted in the hosp. on reporting on 19 Nov. itself.
Recommendations.
5. I recommend the following:-
a) Severe disciplinary action should be taken against Capt.S.S.Mehta for using physical force against Sep/Dvr Bhoop Singh on 18 Nov. 88.
b) Adm action should be taken against Col.H.K.Soni for not instituting immediate inquiry when the case was reported to him on 19 Nov. 88.
c) Capt. DV Mishra be warned for his negligence in providing prompt medical care to Sep/Dvr.Bhoop Singh and not declaring it as a medical legal case.Directions.
6.I direct that injuries sustained by No.13878852 Sep/Dvr.Bhoop Singh of 5685 ASC Bn (MT) be treated as attributed to mil service in peace area.”
8. It is, shortly, stated in the counter-affidavit that Bhoop Singh was beaten up by Capt.S.S.Mehta with a bamboo stick. Cap.S.S.Mehta tried to forcibly interfere in the performance of duties of the Bhoop Singh and a case under Section 33 C of the Army Act had been made out. Shri Bhoop Singh had appeared as witness No.7 and he had not given any such statement as alleged by the petitioner. Lt.Col.C.M.Sehgal appeared before the Court of Inquiry on the 24th of January, 1989 but he was not examined.
9. In the General Court Martial, 11 witnesses were examined by the prosecution and petitioner examined four witnesses, including himself. In the light of submissions made by the parties, it has become necessary to probe into the evidence for the purpose of finding out whether the decision of the General Court Martial could be sustained or it is not based on any evidence.
10. The complainant, Sepoy DV.Bhoop Singh was examined as PW-1. According to him, he was on sentry duty between 22.00 hrs. and 01.00 hrs. and he was carrying out the sentry duties in the verandahs. At about 22.45 hrs. he heard some one shouting for sentry from the rear side of the Commanding Officer’s Office and he found Cap.S.S.Mehta, who was the duty officer on 18.11.1988. On seeing him, he paid his compliments and said ‘Jai Hind’. He did not like the way in which the witness challenged him. Cap.Mehta got irritated and snatched the bamboo stick which the witness was holding and attacked him and he pushed the bamboo stick into his stomach. He would admit that he finished his duty and also he drove his van. According to him, Company Havildar Major Kanahai Lal took him to Company Senior,Nb Sub.Sunder Singh to whom he narrated the incident. He was taken to the Company Commander, Lt.Col.C.M.Sehgal and he gave instructions for the
witness reporting sick. He deposed:
“I was examined by Captain D.V.Mishra, Medical Officer Incharge Section Hospital Haldwani who asked me as to how I had sustained the injuries on my body, to which again I narrated the above incident that took place on the night of 18/19 Nov 88. He thereafter, administered medicines and gave me attend `C’ for 48 hrs. I returned back to the Company lines. I again reported sick on 21 Nov 88 and on examination, Captain D V Mishra, Medical Officer Incharge Section Hospital, Haldwani admitted me in the Section Hospital, Haldwani.
On 23 Nov 88 at about 1000 hrs Subedar Major Khem Singh and Nb/Sub Ved Prakash of our unit came and met me in the Section Hospital and wanted me to get X-rayed in civil at Haldwani to which I refused initially and later agreed after persuasion. I was X-rayed in Civil on 23 Nov 88. On 24 Nov 88, I was referred to Military Hospital Bareilly for further treatment. On 25 Nov 88, Nb/Sub Ved Prakash met me at Military Hospital Bareilly and wanted me to state that, I had a fall from a vehicle and hide the truth of being beaten up by the accused. I refused, to do so, and
sent away the above said JCO. I also gave my statement to CMP on 25 Nov 88. I was hospitalised for 22 days. I returned back to unit on 15 Dec 88 and I requested for leave due to my domestic reasons and proceeded on Advance of Annual Leave for one month from 16 Dec 88 onwards. On recall, I reported to the unit on 26
Dec 88 and was interviewed by Colonel H.K.Soni, Commanding Officer 5685 ASC Battalion on 27 Dec 88. During the interview the Commanding Officer, asked me as to how I had proceeded on leave and called me ‘Badmash’ and a ‘Goonda’.
The witness volunteers to state before the Court, that on 18 Nov 88, when the accused visited his place of duty between 2200 hrs and 0001 hrs, he (the accused) was smelling of liquor.”
11. In the cross-examination by the petitioner, the witness would state:
“It is not correct, to suggest that while, I was performing my duty between 2200 hrs and 0001 hrs on 18/19 Nov 88, I was not present in the Verandah of the Commanding Officer’s office, when, I heard some one calling, `Sentry’ – `Sentry’ or that, I was somewhere at the rear of the office.
It is correct, to say that if, the lights are ON, then the person standing in the Commanding officer’s Verandah will be able to see, any person approaching from the Canteen side, up to a distance of 30 to 40 yards in the night time.
It is not correct, to suggest that when I heard the shouts of ‘Sentry’ – ‘Sentry” for the first time, I was not standing in-front of the Commanding Officer’s office and that, on hearing the shout for the second time, I came running, from the back side and met the accused, in front of the Commanding Officer’s Office.
No conversation, whatsoever, took place between me and the accused when I met him at the time of the alleged incident.
It is incorrect to say that the accused did not abuse me in obscene terms as I have stated before the court. It is correct to say that, the obscene abuses mentioned by me were not specifically told by me in my earlier statements.”
12. This shows that the witness had not been telling us the truth. He would also state:
“It is correct, to say that I did not mention, about the Guard Book, falling down from my hand, while the accused was beating me in my previous statements.”
13. This is an important factor to be noticed. He said that he had this guard book with him at the time when Cap.S.S.Mehta called him. This is only to show how far the witness is able to give a true version of the incident.
The witness was asked about the length and the width of the bamboo stick and why the petitioner had not been able to produce the bamboo stick. The witness would state:
“It is correct, to say that there are three high wattage street lights between the Quarter Guard and the barrier.
It is incorrect, to say that there are no trees on the office side of the road between the Quarter Guard and the Commanding Officer’s office.
The length of the Bamboo stick, I was carrying while performing the night sentry duty was about 6 to 7 feet in length, about 1-1/2 inches thick and was a solid one. The bamboo stick used to be procured, under own arrangement by the guard and handed over/taken over by the sentries on relief. The distance between myself and the accused while he was beating me, was about 4 feet. I was beaten with the bamboo stick with a sufficient force. I did, try to save myself from the beating my moving left and right, but I did not, run away to save myself. I did not raise any alarm while I, was being beaten up nor shout for any help. The accused was holding the bamboo stick from one end.”
14. He would state that “I received about 20 blows in total with the bamboo stick/kicks/punches from the accused”. He would admit:
“I left the bamboo stick in question in the vehicle where the Sentries use to sleep, off the duty hours after completion of my duty at 0600 hrs on 19 Nov 88. I did not, show the above said bamboo stick to any body to whomsoever, I reported the incident.”
15. In a way he would admit the part played by Mr.Sehgal, Lt.Colonel, Officer Commanding, he states:-
“It is incorrect to suggest that I was asked by my Company Officer Commanding to give a written complaint over the incident on 19 Nov 88. Generally any grievance of a Jawan is put up to the Officer Commanding through a Business Book. In the instant case, the written complaint submitted by me to the Officer Commanding was through Naik Durai of `A’ Company, who was working in the Company Office. I did not, inform Naik Sorte, who was my Guard Commander and sleeping in the vehicle with other Sentries over the beating. I did not complain over the above beating by the
accused to the Guard Commander as the accused was intoxicated. It did not, occur to my mind that, I should have reported the matter to the Guard Commander, immediately after the incident. I could not, report the matter to the Guard Commander at 0600 hours on 19 Nov 88 as I did not, find him in the vehicle.”
16. He would admit that he had not complained to the Co.Hav.Major at 7.30 a.m. and not he did meet the senior JC around 7.45 a.m. on 19.11.1988. He would deny a suggestion made to him about his driving the heavy vehicle and
would state:
“It is incorrect, to suggest that between 0715 hrs and 0745 hrs, I was driving, vehicle LPT 6.5 ton 80D-35255E from Unit Repair Organisation to Rail Head Supply Depot, Haldwani.”
17. He would admit:
“With great pain, I drove the vehicle 6.5 ton 80D-35255E in the morning of 19 Nov 88 as a good soldier for performance of a duty.”
18. He would also state that “it is incorrect to suggest that I was not sitting on the bed inside the vehicle at 04.00 hrs on 19.11.1988 with blanket wrapped on him. I may have forgotten to state that I was sitting on my bed when I gave my statement at the Summary of Evidence on 23.2.1990”. He would further state “at 02.00 hrs on 19.11.1988 when L/Nk Pyare Lal went for his duty, I was awake, but I did not tell him about the incident of beating by the accused”. That Company Commander, Lt.Colonel, C.M.Sehgal met me in the hospital, it is submitted by the witness. He would state:
“I gave a statement in the Court of Inquiry. In the statement, I had mentioned that my Company OC met me at Military Hospital BAreilly after 30 Nov 88. Now, I do not remember, exactly whether my Company OC, met me after 30 Nov 88, however, in all, my Company OC, met me twice, while I was at Military Hospital Bareilly. I did not mention to my Company OC, when he met me on 27/28 Nov 88 that two persons had come to Military Hospital Bareilly on 26 Nov 88, and that I suspected that they wanted to kill me. I, had in fact, mentioned about the above mentioned incident of 26 Nov 88 to my Company OC, after 30 Nov 88, when he came to meet me for the third time. There is no particular reason as to why, I, did
not tell my Company OC, on the incident of 26 Nov 88, when he met me on 27/28 Nov 88.”
19. This would clearly show the interest of Mr.C.M.Sehgal, Lt.Colonel, in the matter which has not been explained by the prosecution and he was also not examined by the prosecution for reasons best known to it. But witness would admit that Sepoy R.B.Singh, of B Company was on night duty at guard quarter on 18.11.1988. He would depose:
“It is incorrect, to suggest that during the second week of Jul 89, when the Summary of Evidence was being recorded by Major M S Kanyal of Station Headquarters, Haldwani, I had met Sep R B Singh in the workshop and had suggested to him that he should also give a statement in the Summary of Evidence, that, on the intervening night of 18/19 Nov 88, the accused, had also abused and beaten him up and was intoxicated. The witness further says that he had met Sepoy R B Singh in the workshop during the above said period.”
20. This evidently shows the mental attitude of the witness in trying to wriggle out of the situation.
21. He was further cross-examined about the bamboo stick and about his reporting sick and he would state:
“It is a fact that, I left the bamboo stick in question, in one of the vehicles in the MT Park and whatever I deposed before this honourable court on 04 Sep 90, in this regard was not correct.
I was not asked by any of the Superior Officers to whom, I, reported about the beating by the accused, to show them, the said bamboo stick.
I forgot to get my name entered in the sick report book, on the morning of 19 Nov 88 and I did not, go in the normal sick report, though, I was aware of the procedure for reporting sick. It is a normal practice, in the unit that the last sentry of the night guard deposits the guard book in the Subedar Major’s office on completion of the duty.
I was aware of the fact that the sick report book of the unit, is also kept in the Subedar Major’s office.”
22. He would admit:
“Sepoy Satpal Singh of my Company, had informed me on 16 Dec 88, that I was required to go for Commanding Officer’s interview.”
23. He would at once say:
“I was not told by anyone that, I was required to go for Commanding Officer’s interview on 16 Dec 88, but was told to go to SM’s office. I was not aware that, advance of leave can only be sanctioned by the Commanding Officer.”
24. The witness has not been consistent in any one of the aspects spoken to by him. He would state:
“The distance between my place of duty and to the night guard vehicle, where Sentries were sleeping, was about 60 yards.
If any one shouts for me, from the Quarter Guard to my place of duty, I could hear him at night.
The accused came to my place of duty and left from there on foot.
The accused was performing the duties of Adjutant during Nov 88 and I knew him since Jan 88.
I never came in contact with the accused prior to 18 Nov 88. The duty NCO at the out gate of the unit on 19 Nov 88 in the morning hours, was Nk Swamy of Headquarters Company of our unit. I did not raise any alarm, while the accused was beating me, as I had committed a mistake.”
25. He would state “in spite of my asking the accused as to what were the reasons for beating me, he never gave me any reason”. This shows the artificial nature of the evidence of this witness.
26. The PW-2 in his chief examination would state:
“My first duty, was from 1800 hrs to 2000 hrs of 18 Nov 88 and 0001 hrs to 02000 hrs of 19 Nov 88. Sepoy Bhoop Singh, here in after referred to as PW-1, woke me up at 0001 hrs and handed over the charge of duty to me. While handing over, the said charge, he told me that he was beaten up by the accused and cautioned me to be alert on duty. I did not ask him the details of the beating by the accused.”
27. In his cross-examination, PW-2 would state:
“It is incorrect, to suggest that PW-1 did not inform me, about the incident involving him and accused, on the night of 18/19 Nov 88, when he came to wake me up for my duty and also that I was told by Company CHM/Company Senior JCO, to say what, I have said relating to the incident.”
28. In his answer to the question put up by the Court, he would state
” During Nov 88, I was with `A’ Company. I did not ask PW-1, as to the details of the incident on taking over duty from him as I, had to go immediately and carry out my duty. Also, I never made, an attempt to find out from PW-1, over his involvement with the accused subsequently.
I cannot, definitely say whether, the guard commander Nk Sorte and PW-1 were sleeping, however, I found them lying in their beds.
The bamboo stick, described by me, was about 1 to 1-1/2 inches thick and I, do not remember now, whether it was a solid one or not.
The distance between my place of duty to the place where the duty vehicle was parked was about 50 yards.
When I was performing duty, I could hear anybody shouting for me from the vehicle, where we slept.
I cannot hear anybody shouting for me from the Quarter Guard, while performing duty at Commanding Officer’s office.
Usually, the stick carried by the night sentries is procured under own arrangement and is left in any of the vehicles in the MT park, after completion of night duty.
It did not occur to my mind that, I should have spoken of, or informed of the involvement of PW-1 and the accused on the night of 18/19 Nov 88 or any time later to any one.”
29. From the evidence of PW-2, it is clear that he was not aware of the incident and he had been an obliging witness. His evidence is artificial and no reliance can be placed on his deposition.
30. L/Nk Pyare Lal was examined as PW-3. In the chief examination, he would state:
“I was on night duty on 18 Nov 88 along with L/Nk H B Gurung, Sep Bhoop Singh and Nk D V Sorte was our Guard Commander at Commanding Officer’s office. My first duty was from 2000 hrs to 2200 hrs and my second duty was from 0200 hrs to 0400 hrs on 19 Nov 88. After 0400 hrs, on completion of my duty, I went to wake up Sepoy Driver Bhoop Singh, herein after called as PW-1, to hand over the said duty. I saw PW-1 sitting in his bed with a blanket wrapped inside the body of the LPT, where the night guard sleeps while not on duty. I asked PW-1 as to, why was he awake? PW-1, told me,
that his whole body was aching and that he was beaten up by the accused while he was on duty between 2200 hrs and 0001 hrs. On inquiry by me, PW-1 told me that the accused beat him up, as he did not follow the `challenge’ procedure. Thereafter, I handed over the charge of my duty to PW-1 and he left for his duty.”
31. In the cross-examination, he would depose:
“During Nov 88, I was posted to 3 Platoon of `A’ Company of 5685 ASC Battalion. All the personnel, detailed for night guard duty at Commanding Officer’s office belong to 3 Platoon of `A’ Company, 5685 ASC Battalion (MT). When PW-2 came to wake me up for my
duty at 0200 hrs on 19 Nov 88, I saw the guard commander Nk Sorte and PW-1 in their beds, lying covered up with blankets. However, I, cannot definitely, say whether they were asleep or lying awake. PW-1 did not speak to me, about the incident at 0200 hrs on 19 Nov 88. PW-1 did not show me, any injuries on his person at 0400 hrs on 19 Nov 88, when I woke him up for duty. PW-1 told me that his body was aching, but never said, that he could not carry out the duty at 0400 hrs. I did not mention, that PW-1, complained of pain in his body in my statement given at the Summary
of Evidence on 24 Feb 90.
I, did not mention, about the involvement of PW-1 and the accused, to the guard commander Nk Sorte/Platoon Hav/Platoon JCO/CHM/Company Senior JCO/Company OC, on 19 Nov 88, or any day later, about the incident nor did any of the above personnel mentioned ever enquire from me over the incident. I was performing the duties of platoon munshi. I had informed PW-1, on 18 Nov 88 about his detainment for proceeding to Rail Head Supply Depot, Haldwani on 19 Nov 88. PW-1 did not say that he would not be able to take the vehicle to RHSD, Haldwani on 19 Nov 88. At 0400 hrs on 19 Nov 88, I, did not consider it, necessary to suggest that he should ask for a change of duty. I was aware of the fact that PW-1 performed his duty to RHSD, Haldwani in the morning of 19 Nov 88. I did not enter the RHSD duty in the car diary of PW-1’s vehicle. I do not know, who filled the said duty in the car diary of PW-1’s vehicle.
I handed over the bamboo stick also, while handing over duty to PW-1. The said bamboo stick was about 5 to 5-1/2 feet long and about 1-1/2 inches thick, and I do not exactly remember, whether, it was a solid one or not.
I did not hear anybody, shouting/crying, while, I was sleeping between 2200 hrs and 0001 hrs on 18/19 Nov 88.
It is incorrect, to suggest that PW-1, did not inform me about the incident involving him and the accused on the night of 18/19 Nov 88, when he went to wake me up for duty and also, that I, was told by Company CHM/Senior JCO, to say what I have said, relating to the incident.”
32. In his answer to the question put up by the Court, he would depose:-
“I on my own, did not look for the injuries on the person of PW-1. I also did not ask PW-1, whether he required any medical treatment or help.
I did not see any abnormality in PW-1, while he was going for his duty at 0400 hrs on 19 Nov 88. I did not hear or notice PW-1, groaning due to pain between 0001 hrs and 0200 hrs on 19 Nov 88.”
33. Mr.Kanhai Lal was examined as PW-4. In his chief examination, he would state
“I was performing the duties of Company Havildar Major of `A’ Coy 5685 ASC Battalion (MT). At about 0730 hrs on 19 Nov 88 I saw Sep/Dvr (MT) Bhoop Singh, herein after referred to as PW-1, of my Company in the Company lines. I asked PW-1 as to why he did not go for weapon cleaning. PW-1 informed me, that he had returned from night duty and that he was not feeling well to go for the weapon cleaning as he was beaten up by the accused, while he was on duty the previous night. PW-1 requested me to arrange for an interview of the Company Commander, Lt Col C M Sehgal.”
34. In his cross-examination, he would state:
“PW-1, did not express his inability to perform the morning duty, pertaining to taking his LPT vehicle to RHSD, Haldwani, to me on 19 Nov 88.
PW-1 did not tell me at about 0730 hrs on 19 Nov 88, that he had already, performed a duty, pertaining to loading of LPT in RHSD, Haldwani.”
35. In his answer to the question put up by the Court, he would depose:-
“Between 0730 hrs and 0830 hrs on 19 Nov 88, PW-1 was present throughout in the Company lines. When, I met PW-1, for the first time in the Company lines on 19 Nov 88 at 0730 hrs, PW-1 was alone.
During Nov 88, winter uniform was being worn by all personnel of the unit, which included, angular shirt and a Jersey over it.
When I met PW-1, at 0730 hrs on 19 Nov 88, he was sitting on a charpoy, wearing overall combination with sleeves rolled down. I, did not, get to the basic details of investigation like asking for the:-
(a) bamboo stick with which the accused beat up PW-1.
(b) to inspect the injuries sustained by PW-1.
(c) to enquire other sentries/guard commander who were on night duty alongwith PW-1 about the incident, and I have no reason, whatsoever, to give to the court for the above.
I was throughout with ‘A’ Company of 5685 ASC Battalion during my tenure in this unit.
I was not given any instructions by Company Senior JCO/Company OC to produce the bamboo stick or arrange for all the witnesses connected to the incident, nor, I had suggested the same to them.
I did not visit PW-1 in Section Hospital, Haldwani or Military Hospital Bareilly.”
36. Subedar Sunder Singh was examined as PW-5. In his chief examined as PW In his chief examination he would state
“On 19 Nov 88 at about 0800 hrs I was informed by Company Havil-dar Major (now Nb/Sub) Kanhai Lal, hereinafter referred to as PW-4, that Sep/Dvr Bhoop Singh, hereinafter referred to as PW-1, was beaten up by the accused with a bamboo stick, while he was carrying out the sentry duty, on the night of 18 Nov 88 at Commanding Officer’s office. I, directed PW-4 to bring PW-1 to me. I called PW-1 and enquired from him about the whole incident and I was told that while PW-1 was performing his duty at Commanding Officer’s office, the accused being the duty officer came for checking the Guard and beat him with a bamboo stick as he did not challenge him. I noticed swelling on the left forearm of PW-1. PW-1 requested me to arrange for an interview with the Company Commander Lt Col C.M.Sehgal, which I arranged. The Company Commander after interviewing PW-1 in my presence, instructed me to take PW-1 to the Battalion Subedar Major. I took PW-1 to Subedar Sheodan Singh who was officiating as Subedar Major. Offs Subedar Major enquired from PW-1 on the overall incident. Offs Subedar Major instructed me to take back PW-1 to the Company lines. I reported the above to the Company Commander Lt Col C M Sehgal. The Company Commander then directed me to send PW-1 on special
sick report and accordingly PW-1 was sent on special sick report. On return of PW-1 from MT Room of Section Hospital Haldwani he informed me that he was given medicine and attend `C” for 48 hrs and I informed the same to the Company Commander.”
37. In his cross-examination, he would state:
“PW-4, reported me about the incident involving PW-1 and the accused between 0745 hrs and 0800 hrs on 19 Nov 88. PW-1 was brought to me at 0810 hrs and I, took PW-1, to Company OC at 0615 hrs.
I, enquired PW-1, as to how, he was beaten up by the accused, to which he replied, that since he did not follow the challenge procedure and instead said ‘Jai – Hind’, the accused beat him up.
I enquired PW-1, as to his injuries he had sustained, to which he showed his left upper arm and also stated, that he was beaten up by the accused by a bamboo stick. I, saw the swelling on his left arm stretching from lower portion of the upper arm extending up to the upper portion of the fore arm.
I, did not investigate, as to the whereabouts of the bamboo stick alleged to have been used by the accused to beat up PW-1, nor I, enquired from any of the sentries on duty alongwith PW-1 about the incident.
I did not ask PW-1, whether he had reported over the incident to the Guard Commander/Duty NCO/Duty JCO/Platoon Hav/Platoon Cdr.”
38. The Doctor, who is stated to have treated PW-1, was examined as PW-6. In his chief-examination he would state:
“On 19 Nov 88 around 1200 hrs one Sepoy Driver Bhoop Singh of 5685 ASC Bn (MT) Haldwani was brought to me on a Special Sick Report, while, I was performing the duties, of Officerin-Charge, Section Hospital, Haldwani. Sepoy Driver Bhoop Singh, hereinafter referred to as PW-1, complained of pain in his left upper arm, right thigh and right side of the abdomen. According to PW-1 the above injuries were sustained by him, due to beating by Captain
Shiv Singh Mehta of his unit, while he was performing the night duty on 18 Nov 88.”
39. He would further state:
“I conducted a thorough examination of PW-1 and noted that the general condition of the patient was good and that he was able to walk without any obvious abnormality. The local examination of the injured parts of the body revealed the following:-
(a) A small swelling at outer aspect of lower end of left upper arm.
(b) Mild tenderness on anterior aspect of the right thigh.
(c) Mild tenderness in upper right quadrant of abdomen, without any sign of internal organ damage.
Other systems,ms of the body were within normal limits.
I diagnosed the patient as a case of multiple blunt injuries. All injuries appeared to be mild in severity.”
The nature of injuries mentioned by me above pertaining to PW-1 could be caused due to the following:-
(a) By beating with a stick or a blunt object.
(b) By punches.
(c) By kicks.
The injuries sustained by PW-1, were fresh and could have been sustained between few hours to twenty four hours.
40. In the cross-examination, the Doctor would depose:
“I asked PW-1, as to why he did not come on special sick report on the night of 18/19 Nov 88, or in the normal sick report in the morning of 19 Nov 88, to which PW-1, did not give any reply. As far as, I remember, PW-1 was brought to me by a JCO from ASC.”
41. He would state:-
“the injuries noticed by me had given in Exhibit `N’ did not warrant me to admit PW-1 in Section Hospital, Haldwani, or refer him to Military Hospital, Bareilly”.
42. He would further state:
“It is possible, that a person may get an injury on his left arm, if he falls, while running/walking, on his left side on a blunt object like a round stone, when, the left arm is close to the body.”
43. About the abdomen injuries, the witness would state:
The injuries on the abdomen of PW-1’s person were mild in nature and cannot be commented upon as to their nature. A blunt object like a stick being thrust repeatedly with force could have caused more serious injury.”
44. The doctor also would state:
“The three injuries on the person of PW-1, examined by me could be due to possible self `infliction’, if he had sufficient reasons for the same, as these were all accessible parts of the body.”
45. In his answer to the question put up by the Court, he would depose:-
“The bamboo stick, with which PW-1, was alleged to have been beaten up by the accused was not brought to me by PW-1, or by the JCO, who brought him to me, nor I had asked for the same.”
46. Mr.Sheodan Singh, who was posted at Battalion 5685 during March, 1987 and who had proceeded on pension on 1st March, 1989, was examined as PW-7. He would state that on the 19th of November, 1988 while he was performing his duties, PW-1 was brought to him by Subedar Sunder Singh and he said:
“I asked PW-5 as to why did PW-1, want to go on special sick report. On that, I was told that PW-1 was beaten up by the accused who is now sitting in the court and I identify him to be IC-37760A Captain Shiv Singh Mehta who was performing the duties of Adjutant 5685 ASC Battalion. On the night of 18/19 Nov 88 when, I asked PW-5 as to why, a report to that effect was not given to me either at the night of 18/19 Nov 88 or on the morning of 19 Nov 88. I also asked PW-1 who was wearing uniform whether he had sustained any injury and whether he wanted to go on special sick report to which he did not give any reply. I then instructed PW-5 to deal with the case and sent PW-1 back to the Company. I went to report over the above to the accused. When I returned back to my office, I was told by my Battalion Munshi, that the special sick report book was already taken by Company Havildar Major Kanshi Lal (PW-4). PW-1 did not show me any injuries sustained by him.”
47. The prosecution sought permission to treat this witness hostile and the Presiding Officer of the Court declared him hostile. This does not in any way affect the ultimate conclusion by me in this case. Therefore, I refrain myself from going into the manner in which the witness was declared hostile ignoring the principles laid down by the Supreme Court.
48. Mr.R.B.Singh was examined as PW-8. In the chief-examination he would sate:-
“I was performing the Quarter Guard duty on the night of 18/19 Nov 88. My duty was from 2230 hrs to 0030 hrs.
At about 2345 hrs, I heard someone shouting for Sentry from the barrier next to the Commanding Officer’s office. I saw the person shouting for the Sentry, when he approached front side of the CO’s office. I recognised him to be the accused. I saw the accused after. I heard some one shouting for Sentry and on reaching the Sentry post of the Quarter Guard. On seeing the accused, I turned to my place of duty and also over heard someone running from the rear side of the Commanding Officer’s office. I, immediately turned again to see, what was happening. I saw one sentry standing opposite the accused. I heard the accused angrily uttering words to the effect “Idiot, bloody… Tum So reha tha, kahan
soya tha….”
I did not, hear the reply of the Sentry to the accused nor I heard the conversation that took place between the Sentry and the accused. The accused thereafter came towards the Quarter Guard.
Meanwhile, Hav Balakrishnan, the duty NCO, also came on the road from the side of Second-in-Command’s office. Then the accused and the duty NCO came to the quarter Guard.”
49. The Presiding Officer inspected the place of occurrence and what was noticed could be extracted in the following terms:-
“The accused with his defense counsel and defending officer, the prosecutor with his prosecution counsel, the court, Judge Advocate were present to view the place along with the witness under examination.
(a) The witness states, that he was holding a rifle and moving in front of the quarter Guard between two black lines drawn on the cemented floor.
(b) On hearing the shouts for Sentry, he points out the place where he moved.
The court observe that within the Quarter Guard premises to the right extreme corner near the fence, he points out the place, from where he saw the accused standing.
(c) The witness further states and shows that having moved 3 paces from the Sentry post to the triangular cement platform and on the hearing, somebody running from the rear side of the main office again turned and moved towards the sentry post from where he saw the accused standing, which is 106 paces of the witness. The court observe it to be 85 yards.
(d) The witness points out that the Sentry was facing towards his side and the accused was standing in front of him and he could see only his back.
(e) The witness also points out the place where he had seen the duty NCO approaching the road.
(f) The witness states and points out that the entrance gate of Quarter Guard was closed and the accused and the NCO were challenged by him from inside the gate. Also he states that the
accused and the duty NCO did not come inside the Quarter guard
and returned from outside only.
The witness points out the place where he had seen the duty NCO with a red sash over his uniform. The witness measures 63 pace of him, from the main gate of Quarter guard to the place where he saw the duty NCO.
The Court observe the distance to be 60 yards.
The witness further shows two street lights (mercury fluorescent 2 feet single tube) between the Quarter guard to the place, where he had seen the duty NCO.
(g) The witness measures 100 paces of him from the main gate of Quarter guard opposite to the Commanding Officers main office. The court observes the distance to be 100 yards.
The witness points out the positions of the Sentry and the accused as seen by him. The distance between the accused and the Sentry was about 3 paces as pointed out by him.
(h) The witness points out a street light (fluorescent tube light) opposite to Commanding Officer’s office measuring four feet.
(j) The witness demonstrates as to the running of Sentry from the rear side of the Commanding Officer’s office and points out the place where he saw the Sentry.
(k) The distance measured by the witness from the main gate to the place where he had seen the Sentry on Duty for the first time is 130 paces i.e. 105 yards.
(i) The witness points out and states, no street light between Commanding Officer’s office and the barrier. There was a light at the barrier (four feet fluorescent tube facing other side of the road).
The witness further states that the bulbs in the Varandah of the Commanding Officer’s and the Adjutant’s office were also switched on during that time.”
50. In the cross-examination by the defense counsel, he would state:-
“I was also on duty from 0430 hours to 0630 hours on 19 Nov 88. The Sentry who was abused by the accused on night of 18 Nov 88 also came for his morning tea in the Quarter guard and that time I came to know that he was Sepoy (Driver) MT Bhoop Singh (PW-1).
I enquired from PW-1 as to why the accused was shouting at him the previous night to which he, replied that since he was sleeping in the LPT parked in the rear side of the LPT and came running towards the accused on his shouting for Sentry.”
51. He would admit that PW-1 did not tell/show him any injuries sustained by him. He would further state:-
“During Jul 89, when I had taken my vehicle bearing last two numbers 80L to workshop for repairing/fitting of engine, PW-1 had met me and suggested to me that whatever statement I gave in the Court of Inquiry, should be changed and now state that the accused had also abused and beaten me on the night of 18/19 Nov 88 to which, I told him that I will not give a false statement.
While, I was admitted in Section Hospital, Haldwani between 12-26 Aug 89, PW-1 came to me again to give a false statement over the incident failing which, threatened with dire consequences, which I refused.”
52. The prosecution did not seek any permission to treat this witness also as hostile. The Court had put a lot of questions without realising its function under the provisions of the Evidence Act, 1872. The questions put by the Court would also bring out facts against the prosecution.
53. Mr.V.V.Cavan was examined as PW-9. He has spoken about the duty officer’s report which was marked as Ex.-‘R’ and nothing turns on it.
54. Shri N.S.Nagarkoti was examined as PW-10. According to him, he was serving in the Unit w.e.f.January, 1989 and he would refer to Mark Ex.S which was the statement given by the petitioner in the summary evidence. He does not speak about any fact and that is not necessary for the purpose of deciding the question whether there is evidence to sustain the conclusion by the Court. It would appear that on the date of the further hearing of the matter, statement of the petitioner/accused was admitted as Ex.-‘B’ and questions were put to him by the Court.
55. Sub.Maj. & Hony.Cap.Khen Singh was examined as DW-1. Subedar Ved Prakash was examined as DW-2. It is not necessary to refer to their evidence because once the prosecution has not made out his case, it is wholly unnecessary to refer to the evidence of the witness examined by the petitioner.
56. One crucial fact to be noticed is that it was introduced at the time of the trial that the petitioner was drunk at the time of the occurrence. There is absolutely no evidence to support this evidence. The proceedings of the Court had failed to conform to the basic principles under the Evidence Act, 1872 before coming to any conclusion on the materials placed before it. From a reading of the evidence of PWs, it is clear that Shri Sehgal had played a very important role in bringing out the situation.
57. An analysis of the evidence of the prosecution witnesses would show that no offence has been made out against the petitioner. PW-1 admits that the Military did not provide him with bamboo stick. He was not able to explain as to how did he come to have a bamboo stick at that time. According to the PW-1, the petitioner forcibly snatched bamboo stick from him and he beaten him, and it is admitted by PW-1, that he took back the bamboo stick. That mysterious bamboo stick has not been produced by PW-1. Immediately after the alleged beating, the witness, PW-1, had not done anything. He had done is duty by driving a heavy vehicle and he had a motive, at the instance of Mr.Sehgal, to file a case on the petitioner. PW-1 would state on 23.2.1990 “bamboo stick for night guard is not got from the battalion. I had arranged it at my own”.
58. The proposition of law is clearly laid down by the Supreme Court that the Court can examine the records to find out whether the finding or conclusion by the disciplinary authority is supported by evidence on record. The Court can nalyse the evidence, to come to the conclusion whether the findings are supported by evidence on record. The Court is not concerned with the sufficiency of evidence. If the Court comes to the conclusion that the finding or the conclusion is perverse and it is not based on any evidence, the Court can interfere. In this case, I am clearly of the view that
there is absolutely no evidence against the petitioner and the decision of the Court Martial is based on no evidence and it could be characterised as perverse.
59. Accordingly, the impugned orders are set aside. The writ petition is allowed and the petitioner shall be entitled to all the consequential benefits.
60. There shall be no orders as to costs.