Judgment:
(Order of the Tribunal made by Justice ACA Adityan)
1. The applicant has approached the Madya Pradesh High Court by way of filing W.P.No.11294 of 2007, which was transferred to Armed Forces Tribunal, Regional Bench at Lucknow, under Section 34(2) of the Armed Forces Tribunal Act, 2007 and renumbered as T.A.No.898 of 2010 before the Armed Forces Tribunal, Regional Bench at Lucknow. Thereafter, on petition by the applicant, from the Armed Forces Tribunal, Principal Bench at New Delhi, the same was transferred to this Armed Forces Tribunal, Regional Bench, Chennai on the point of Jurisdiction under Section 27 of the Armed Forces Tribunal Act 2007, and renumbered as T.A.No.201 of 2010.
2. This appeal is against the verdict of the DCM Proceedings initiated against the applicant/appellant/accused under Section 40(a) of the Army Act for having pushed and slapped P.W.1 â07412P Major Mr.Azim Ahmed, Adjutant, on his face.
3. According to the applicant, the District Court Marital had awarded the punishment of reduction to ranks and to suffer three months RI in military custody. The applicant would say that in violation of Army Rules 180 and 23, the Court of Inquiry was conducted from 15.03.2006 to 20.08.2006. According to the applicant, he was not given opportunity to cross-examine the witnesses during trial.
4. The applicant would briefly narrate the facts as follows:- The applicant was enrolled in Army Medical corps and was posted to 4021 Field Ambulance at Bhopal in January 2005. He proceeded on one month annual leave due to the sickness of his wife. Since the condition of his wife did not improve, he requested for ten days extension of leave through a telegram. After returning from leave, the applicant was tried summarily by Commanding Officer (5th respondent herein) and awarded 7 days pay fine, and reprimand. The applicant was aggrieved due to the said illegal and harsh punishment awarded by the Commanding Officer. The said incident took place on 14.03.2006 and after the pronouncement of the said punishment, the applicant was waiting at the corridors of Major Azim Ahmed(Adjutant)-P.W.1. The applicant had approached Major Azim Ahmed (Adjutant)-P.W.1 for interviewing of superior officer when he came back to the corridor after seeing the Commanding Officer, the applicant/appellant told him that he had produced the medical certificate of illness of his wife and despite that he has been illegally punished. While the conversation was going on, one of the files which P.W.1 was holding suddenly slipped. Major Azim Ahmad - P.W.1 tried to lift the file and fell down and struck on the trunk box kept aside. This made P.W.1 annoyed and he ordered arrest of the applicant/appellant. Accordingly, the applicant/appellant was confined in a room where four guards were placed. The Court of Inquiry was ordered to investigate the matter. But, the mandatory provisions have been violated. According to the chargesheet furnished to the applicant, dated 31.01.2007, he had used criminal force on Major Azim Ahmad, Adjutant of the Unit, on 14.03.2006 by pushing and slapping him and that he will be tried by a District Court Martial convened by the Commandant, 3 EME Centre, Bhopal (3rd respondent herein). The 3rd respondent had issued convening order dated 25.02.2007 for the assembly of the said Court Martial. P.W.1 to P.W.8 were examined before the Court Martial. Without considering the evidence let in before the Court Martial, the Court Martial has awarded the following punishments-
(a) to be reduced to the ranks
(b) to suffer Rigorous Imprisonment for three months in military custody,
whichhas been challenged in this application/appeal.
5. The respondents in their common counter /reply would state that after the trial, the Court Marital found the applicant guilty of the charge levelled against the applicant/accused and awarded the punishment of âto be reduced to the ranksâ and âto suffer RI for three monthsâ, on 28.03.2007. The confirming authority while confirming the findings and sentence on 24th May 2007 has directed the sentence of RI shall be carried out by âconfinement in military custody. The findings and sentence of the DCM was promulgated to the applicant on 25h May 2007. Since the applicant was in pre-trial custody for 24 days, that period was set off against his term of Imprisonment and he completed the sentence of Rigorous Imprisonment on 2nd June 2007. Since the applicant was sentenced to be reduced to the rank, he was reverted to the rank of a âSepoy. The terms of engagement of Sepoy are prescribed in Regulations for the Army Para 134. Since the applicant had already completed the terms of engagement of service prescribed for the rank of a Sepoy of 20 years and had in fact rendered more than 21 years 10 months of service, he was liable to be discharged from service on completion of terms of engagement for his rank which he is presently holding. Hence, the applicant was transferred to pension establishment ie., Army Medical Corps Records, Lucknow, for completion of his pension documents and discharge. The applicant has been discharged from Army Service with effect from 1st September 2007 (F/N) on completion of his terms of engagement. The sentence passed by the DCM has already been served out by the applicant/appellant/accused. The applicant has not availed the remedy of filing a post confirmation petition under Army Act Section 164(2). Hence, the application/appeal is premature and liable to be dismissed on that ground.
5(a) The DCM had examined eight prosecution witnesses and on the basis of the evidence have arrived at a correct finding and awarded appropriate punishment. On considering the nature of the gravity of the offence, the applicant ought to have been dismissed from service, but he was dealt leniently and awarded minor punishments of reduction in rank and RI for three months. According to P.W.1 â Maj Azim Ahmed, the applicant/appellant being aggrieved by the punishment given to him by the Commanding Officer, had slapped him (Maj Azim Ahmed-P.W.1) due to which he (P.W.1) had lost his balance and fell on one of the boxes and sustained injury on his right hand. According to the prosecution, the applicant/appellant had also abused P.W.1 at the time of occurrence. The applicant has been given due opportunity to cross-examine all the eight prosecution witnesses at the time of trial and was also given an opportunity to let in defence witnesses. The applicant has extensively cross-examined P.W.1 to P.w.6 and also filed a detailed statement in defence. The applicant was not kept under close arrest for a period of 8 months as alleged by him. Habeas Corpus petition filed by the applicants wife was also dismissed by the Honourable High Court. All mandatory provisions have been followed in the Court Marital proceedings. Hence, application/appeal is liable to be dismissed.
6. We heard Mr.V.Venkatadri, learned counsel appearing for the applicant/appellant, and Mr.V.Balasubramanian, learned Senior Central Government Standing Counsel, and Hav M.Seenivasan, representative of the OIC Legal Cell, ATNK and K Area Headquarters, appearing for the respondents and considered their respective submissions.
7. Now the point for determination in this appeal is whether the award of punishment by DCM under Section 40(a) of the Army Act against the appellant/applicant is liable to be set aside for the reasons stated in the affidavit to the appeal/application?
8. The Point:- According to the prosecution, on 14.03.2006, after the appellant, being punished by the Commanding Officer, for his overstay of leave for 10 days, with a punishment of 7 days pay fine and reprimand for the offence, infuriated due to the punishment awarded, was waiting at the corridor to meet his Adjutant viz. Maj Azim Ahmad, (later became Lieutenant Colonel) and to inform him that he had produced necessary medical certificate to show that his wife was suffering from Hypothyroidism, Anemia, and Migraine and that his overstay of leave for 10 days was justified since he had already applied for extension of leave. But, infuriated by the award of punishment of 7 days pay fine and reprimand by the Commanding Officer, he was waiting at the corridor, and on seeing P.W.1 â Maj Azim Ahmad coming out of the Court room, he pushed him and slapped him thereby committed the offence under Section 40(a) of the Army Act. To prove the charge levelled against the applicant/appellant before the DCM on the side of the prosecution P.W.1 to P.W.8 were examined.
8(a) P.W.1 is the then Major Azim Ahmad, presently Lieutenant Colonel/the complainant. A perusal of the DCM proceedings will got to show that at page 13, P.W.1 would narrate the incident in his way as follows-
âI along with CO, stick orderly and Offg SM were present. I started coming back to my office, once CO left the office complex. I saw Naib Subedar Ramesh Singh coming from other direction in the corridor. He saluted me and I reciprocated. As Naib Subedar Naib Ramesh Singh crossed me, suddenly Havildar/Nursing Assitant N.Baskaran slapped me on the left cheek, and I lost my balance. He started moving ahead to hit me again. I kept my hands on my face, moving behind to save myself. There were steel trunks lying on the ground, as I fell on one of the trunk, my right hand got hit to the steel trunk and I got hurt on my right hand.â
So, according to P.W.1 â Maj Azim Ahmad (later Lieutenant Colonel), the occurrence witness is one Naib Subedar Ramesh Singh, who was examined as P.W.3 before the District Court Martial.
8(b) P.W.3 in his deposition would depose that on 14th March 2006 at around 14.30 hours while he was crossing Maj Azim Ahmad (P.W.1) in the corridor of the main office, he saluted him and he proceeded ahead approximately one or two steps and at that time, he was pushed from behind and he became imbalanced. When he regained himself, he noticed that Major Azim Ahmad (Now Lt Col) was lying on the steel box and the accused was standing next to him, and as per the instructions of P.W.1, he took the accused by holding him and tried to take away him from P.W.1. So, from the evidence of P.W.3, it is clear that he has not witnessed the occurrence ie., accused slapping P.W.1. In the cross-examination P.W.3 has deposed to the effect that he is not aware whether he was pushed from behind by the accused or by P.W.1. Even in the reexamination, P.W.3 was not confronted as to the effect that at the time of occurrence, the accused had assaulted/slapped on the left cheek of P.W.1. Soon after the occurrence, according to P.W.1, he had visited the Doctor â P.W.2 and narrated the incident.
8(c) P.W.2 â Doctor in his evidence would depose that on 14th March 2006 at around 15.00 hours Major (now Lt Col) reported to him (P.W.2) at MH Bhopal, MI Room, and narrated that Havildar/Nursing Assistant N.Baskaran has pushed him, slapped him and he had sustained injury on his right forearm, and that he had examined him and on the examination it was observed that he had âAbrasion over right forearm (upper 1/3) and since the injury was minor, he was given treatment and asked to report to his Unit. P.W.2 has not stated in his evidence that he had seen any contusion or abrasion or finger marks on the left cheek of P.W.1.
8(d) Even though P.W.2 would depose that P.W.1 had informed him that at the time of occurrence the accused had pushed him and slapped him, P.W.1 himself has not deposed in his evidence in chief-examination that the accused had pushed him and slapped him. So, absolutely there is no corroboration in this case to arrive at a conclusion that at the time of occurrence the accused had pushed P.W.1 and then slapped him. From the evidence of P.W.3 it is seen that at the time of occurrence P.W.1 had fallen on the steel boxes, which were stored in the corridor near the place of occurrence, and had sustained minor injury on his right forearm and only for that minor injury he was given treatment by P.W.2-Doctor.
8(e) P.W.4 to P.W.8 are not ocular witnesses. Then We can also consider whether the circumstantial evidences as spoken to by the injured/victim P.W.1 has been corroborated and admissible in evidence as per Section 6 of the Indian Evidence Act. P.W.1 while narrating the incident would specifically depose that the accused N.Baskaran while hitting him(P.W.1) was furious like a sudden water being released from any place and he was aggressive, blaming him(P.W.1) and abusing him (P.W.1) âBEHANCHOD TUM MUJHE SAJA DILWAEGAâ and continuously pushing him (P.W.1), and he caught hold of his hand and at that time Naib Subedar Ramesh Singh (P.W.3) was looking at him. He would further state that the accused was repeating âBEHANDCHOD AGAR TERI BIWI BIMAR HOTI TO BIBI KO DEKHEGA YA NAUKARI KO DEKHEGAâ and the accused was blaming that it was him (P.W.1) who was responsible for his punishment, and later Naib Subedar Ramesh Singh (P.W.3) came and took hold of the accused.
8(f) Now it is pertinent to see whether at the time of occurrence the accused had uttered the above words as spoken to by P.W.1. P.W.3 in his evidence neither in chief-examination nor cross-examination or in the re-examination has deposed that at the time of occurrence, the accused had uttered the words referred to above by P.W.1. Under such circumstances, the relevant provision of law as contemplated under Section 6 of the Indian Evidence Act reads as follows-
ââRelevancy of facts forming part of same transaction. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
There are many incidents, however, which though not strictly constituting a fact in issue, may yet be regarded as forming a part of it, in the sense that they closely accompany and explain that fact. In testifying to the matters in issue, therefore, witnesses must state them not in their barest possible form, but with a reasonable fitness of detail and circumstance. These constituents or accompanying incidents are said to be admissible as forming part of the resgestae. When they consist of declarations accompanying an act they are subject to three qualifications: (1)they must be contemporaneous or almost contemporaneous with the fact in issue and must not be at such an interval as to allow of fabrication or to reduce them to the mere narrative of a past event, though this is subject to apparent exceptions in the case of continuing facts: (2)they must relate to and explain the act they accompany, and not independent facts prior or subsequent thereto; and (3)though admissible to explain, they are not always taken as proof of the truth of the matters stated, that is, as hearsay.â
Out of the eight witnesses examined on the side of the prosecution, no witness has corroborated the evidence of P.W.1 as to the effect that at the time of occurrence, P.W.1 has uttered any filthy language against or any word as spoken to by P.W.1. Under such circumstances, the evidence of P.W.1 as narrated by him is highly doubtful and We are of the considered view that the prosecution has not proved the guilt of the accused beyond any reasonable doubt.
8(g) A mere perusal of the findings of the District Court Martial leads us nowhere because absolutely there is no discussion about the deposition or evidence of the prosecution witnesses particularly with regard to the aspect of corroboration regarding the evidence of P.W.1 to that of P.W.3, the only ocular witness as per the prosecution. Within half an hour of the occurrence, P.W.1 had reported to the Doctor for first aid, but even before the Doctor, P.W.1 had not narrated that he was abused in the language spoken to by P.W.1 in the Chief-examination before the District Court Martial proceedings. Even though there is a plea raised by the respondents in the counter as to the effect that the applicant has not exhausted the statutory remedy available to him under Section 164(2), after the Armed Forces Tribunal Act 2007 came into force, the appeal power against the verdict of the DCM and all Court Martials have been vested with this Tribunal under Section 15 of the Armed Forces Tribunal Act 2007. Under such circumstances, We hold that the impugned order of DCM against the applicant/appellant is liable to be set aside and the same is hereby set aside. Point is answered accordingly.
9. In fine, the appeal/application is allowed and the impugned verdict of the DCM dated 28.03.2007 against the appellant/applicant is set aside and the applicant/appellant is acquitted from the charge leveled against him. Since the appellant/applicant has completed his tenure of service, he is entitled to all monetary benefits including pension in the rank he was holding at the time of DCM proceedings (Havildar). No costs.