1. Challenge is made to the findings and the order dated 30th October, 1989 of the DCM whereby the appellant was held guilty for the offences under Sections 40(a) and 40(c) of the Air Force Act (hereinafter referred as âthe Actâ) and was sentenced to (a) be reduced to the ranks (b) be dismissed from service (c) to suffer rigorous imprisonment for four months and also the order dated 31st August 1990 passed by the Appellate Authority on a petition under Section 161 (2) of the Act. Simultaneously prayer has been made for grant of pension treating the petitioner to have completed the pensionable service of 15 years. It is contended that the entire case was fabricated against the appellant. Flt. Lt. K.L. Yadav was anyhow annoyed with the appellant and was bent upon harassing him on small issues and he used to grill the appellant at occasions without any fault. Even for an hours delay or so in attending the duties, he questioned the appellant to the extent of giving punishment. On the fabricated charges without evaluating the evidence, the trial court proceeded to hold the appellant guilty. Suspicion alone cannot be the ground to hold the appellant guilty. There is no cogent and convincing evidence to fasten the culpability of the appellant in the aforesaid crime. It is also said that the provisions of Rule 43 of the Air Force Rules were not complied with. The proceedings at the most could not be convened against the appellant by AOC-in-C and Air Cmde. Satwant Singh had no jurisdiction to authorise the composition of the DCM or to initiate the proceedings against the appellant. Even for the composition of the DCM, objections were also raised by the appellant as Presiding Officer Wing Commander J. Thomas happened to be an officer of the same station to which the complainant Flt. Lt. K.L.Yadav belonged to but the objection was overruled without any justifiable reasons. The evidence adduced by the prosecution is also full of contradictions. The appeal was resisted from the side of the respondents contending that there is ample evidence on record to show that the appellant caught hold of the collar of the Air Force Officer and dragged him out. He also hit the officer. There is also the eye-witnessesâ account, who have given vivid description of the incident and their testimony could not be impeached in the course of trial. Air Force Rules 42 read with Section 111, Section 113(i) of the Act and Rules 53 and 54 were strictly adhered to. Fair opportunity was afforded to the accused/appellant.
2. In order to appreciate the rival contentions made from the side of the parties it shall be useful to make a brief narration of the facts made in the complaint against the appellant. On 8th May 1989 at about 1400 hours Flt. Lt. K.L. Yadav, who was officiating Flt. Commander was sitting in his office along with Flt. Lt. A.P. Singh and Pilot Officer S. Singh. Pilot Officer S. Singh informed him that Cpl. Parashar RMT Flight had not come to flight in time in the morning and when enquired of his being late, did not satisfactorily reply. Flt. Lt. K.L. Yadav called MWO P.Singh and asked him to call Cpl Parashar. Cpl Parashar appeared around 1525 hours Flt. Lt. K.L. Yadav enquired for the reasons of his being late, on which the appellant said that he packed up late and was working with Cpl Mulankar PD Elect. Fit. Cpl Mulankar was called by Flt. Lt. K.L. Yadav to verify about the truthfulness of the statement given by the accused/appellant. Platoon Officer S. Singh however made enquiries from Cpl Parashar on which the accused raised his voice. Flt. Lt. K.L. Yadav asked the accused/appellant not to raise his voice but he paid no heed, on which Flt. Lt. K.L. Yadav asked him to keep quiet but the accused continued to speak loudly and told Flt. Lt. K.L. Yadav that âI know you are after me since 7 BRD. Do whatever you feel, I am going.â Flt. Lt. A.P. Singh instructed MWO P. Singh to raise a charge sheet against the appellant for absenting himself from duties and insubordination. Two charges were framed against the accused/appellant and they were submitted by Flt. Lt. K. L. Yadav on 9th May 1989 to Wing Commander S.S. Patil for the trial of the accused. On 10th May 1989 when the appellant was sitting in his office with Sqn. Ldr. A.K. Hallan and Sgt. Amar Singh and discussing matters of detailing the personnel for duty, all of a sudden the appellant came into the office and grabbed the collar of the shirt of Flt. Lt. K. L. Yadav and with another hand started hitting him on his face. The Court of Enquiry had taken place and after recording of the summary of evidence, accused was put to the trial, vide convening order dated 16th August 1989, which nominated Wing Commander J. S. Thomas as the Presiding Officer with two other Members namely Sqn. Ldr. B. M. Kalra and Flt. Lt. A. Kulkarni.
3. First and the foremost submission made from the side of the appellant is that there was no compliance of the Rule 45 of the Air Force Rules which refers about the ineligibility and disqualification of the officers for Court Martial. The Presiding Officer J. Thomas was disqualified in view of the arrangements made under Rule 45 which reads as under:
â45. Ineligibility and disqualification of officers for court-martial-
(1) An officer is not eligible to serve on a court-martial unless he is subject to air force law.
(2) An officer is disqualified for serving on a general or district court-martial if he-
(a) is the officer who convened the court; or
(b) is the prosecutor, or a witness for the prosecution, or
(c) investigated the charges before trial, or took down the summary of evidence or was a member of a court of inquiry respecting the matters on which the charges against the accused are founded, or was the flight, squadron, station, unit, or other commander who made preliminary inquiry into the case, or was a member of previous court-martial which tried the accused in respect of the same offence; or
(d) is the commanding officer of the accused or of the unit to which the accused is attached or belongs; or
(e) has a personal interest in the case.
(3) The provost-marshal or assistant provost-marshal is disqualified from serving on a general or district court-martial.â
4. Wing Commander J. Thomas was not the Commanding Officer of the accused or of the Unit to which the accused was attached or belonged to and moreover he had no interest and, therefore, he could not be said to be disqualified for Presiding Officer of the DCM. It would be a far fetched submission that he was from the same Logistic Unit wherefrom complainant comes, that would not fall within the ambit of the disqualifications mentioned above. On this point the appellant was also heard and the DCM also found no justifiable reason in the objections made by the appellant with regard to the composition of the DCM. No allegations of mala fides were made against Wing Commander J. Thomas. Only on the ground that he comes from the said unit, where the complaint was posted, cannot be said that he was disqualified for constitution of DCM. Nothing could be shown by the appellant either at the stage of composition of the DCM or in the course of trial that Wing Commander J. Thomas evinced an interest in the complainant or he was biased. In M.Y. Shareef v. Honble Judge of the High Court of Nagpur (AIR 1955 SC 19) and in Gujarat Electricity Board and another v. AtmaramSungomal Poshani (1989) 2 SCC 602, the ratio of decision is that, reasonable apprehension of bias can be a good ground for the transfer of the case from one Bench to another Bench but that does not mean that a litigant has a right to ask for change of a Bench. Mere statements of a party to a proceeding about entertaining an apprehension may be inadequate as to the facts of this case make it quite clear. No disclosure of bias has been made in the petition. The requirement of law is that there must be such a disclosure as seen from Barium Chemicals Ltd. v. Company Law Board 1966 Suppl. SCC 311, Sukhvinder Pal Bipan Kumar v. State of Punjab (1982) SCC 31 and Savithramma v. Cecil Naronna 1988 Suppl. SCC 655. We hardly find any ground that there could be a reasonable suspicion of bias in this case. The order of DCM rejecting the objection does not require any review.
5. It has been contended that at different table distinct charges were drawn against the appellant and first along with the convening order but when the accused was tried by the DCM earlier charges were modified or dropped and the trial of the appellant was kept confined for two charges. It may be mentioned that the object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having committed offence against one person but on the evidence led, he is convicted for committing offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such knowledge can be inferred from the defence, that is, if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge. In judging a question of prejudice, as of guilt, the Courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly. We do not find any reason as to how the accused/appellant was prejudiced because of the subsequent dropping of two charges at the trial stage.
6. It has been submitted by learned counsel for the appellant that Air Force Rule 40(1) has the mandatory import and it was obligatory on the part of the DCM to have given the opportunity to the accused before he was arraigned on the charges to give the names of the witnesses whom he decides to call in his defence and he is also required to furnish a copy of the charge sheet and the summary of evidence and names of ranks and Units of the officers who are to form the DCM. Here in this case sufficient opportunity and time was given to the accused as is also decipherable from Ext.-1 which itself is the application moved from the side of the accused communicating about the receipt of a copy of the summary of evidence on 18th August 1989 and only two working days i.e. 18th August 1989 and 31st August 1989 were there at his disposal. This would also show that other holidays were also available to the accused and there was ample time from 18th August 1989 to 31st August 1989 to the accused and this obviously fulfils the requirement of Rule 40(1) of the Air Force Rules. As regards its mandatory import, reliance has also been placed from the side of the appellant in the case of the Union of India v. A.K. Pandey (2009) 10 SCC page 552. In the instant case, sufficient opportunity was given to the appellant and we do not find any force in the contention of the appellant about the non-compliance of AF Rule 40(1). 7. Earlier five tentative charges were framed against the accused/appellant but ultimately he was tried for the two charges which are reproduced as under:
Charge No. 01:
USING CRIMINAL FORCE TO HIS SUPERIOR OFFICER
In that he,
at2210 Sqn, AF on 10th may 1989 used criminal force to Flt Lt. K.L. Yadav (16931) AE (L) by catching hold of his uniform shirt, dragging him out of his chair, hitting him on the face with hand and in between thighs with legs.
Charge No. 02:
USING INSUBORDINATE LANGUAGE TO HIS SUPERIOR OFFICER
In that he,
at2210 Sqn. AF on 8th May 1989 when Flt Lt. K.L. Yadav (16931) AE (L) asked him not to interrupt and keep quiet, he (the accused) shouted âI know you are after me since 7 BRD. Do whatever you feel like, I am goingâ or words to that affect.â
8. The second charge pertains to the incident dated 8th May 1989 where Flt. Lt. K. L. Yadav asked the accused/appellant not to interrupt when he was enquiring with other persons and the appellant started shouting and used insubordinate language against the superior officer saying that âI know you are after me since 7 BRD. Do whatever you feel, I am going.â
9. In support of this incident dated 8th May 1989, the prosecution examined PW-3 Flt. Lt. K.L. Yadav who is the victim of this incident. It was stated by him that on 8th May 1989 he was Officiating Adjutant of 22210 Sqn. of Armed Forces at about 1400 hours when he was sitting in his office along with Flt. Lt. A.K. Singh and Pilot Officer S. Singh, at that time Flying Officer S. Singh made a complaint that Cpl. Parashar (appellant) did not attend the flight in time in the morning, he asked MWO P. Singh to call the appellant in the office who also confirmed that the accused had not come to the flight at that time on which the appellant was called through MWO P. Singh and the appellant came to his office and when he was questioned about his coming late and absenting himself from the flight since 1400 hours on that the appellant told that he packed up late and was working with Cpl. Mulankar. In the meantime the appellant was asked to give his explanation for his being absent from the flight in the morning. When Flying Officer S. Singh was talking to the accused he again raised his voice on which the superior officer asked the accused to keep his voice low but the accused interrupted and reiterated the words to the effect that âI know you are after me since 7 BRD. Do whatever you feel, I am going.â
10. PW-6 M WO P. Singh also reiterated the prosecution version and told that it was the incident of 8th May 1989 when appellant was replying in a high tone, he was asked by the victim to lower his voice, on which the accused got infuriated and told that âI know you are after me since 7 BRD. Do whatever you feel, I am going.â PW-7 also gave the categorical narration of the incident which had taken place on 8th May 1989 referring about the tone and temper of the appellant when he was questioned he made utterances that âI know you are after me since 7 BRD. Do whatever you feel, I am going.â The prosecution version also found support from the statement of PW-8 Flying Officer S. Singh about the incident which had taken place on 8th May 1989. Testimony of these witnesses could not be impeached from the side of the accused. To the contrary, the defence witnesses namely Sepoy Tara Chand, and LAC N. P. Singh have also substantiated the prosecution version. It is submitted by learned counsel for the appellant that unnecessarily the issue was made by the Flt. Lt. K.L. Yadav when only for an hour or so the appellant came late and he out of personal vengeance started making enquiry when there was sufficient reason for this delay. Even the defence witnesses also confirmed the delay was on account of late pack-up.
11. We do not find any reason to discard the testimony of the prosecution witnesses whose presence was also established at the time when such utterances were made by the appellant. These witnesses have no enmity to the appellant. There could be no reason to disbelieve them. Reliance may be placed on the decision in DalipSingh v. State of Punjab (AIR 1953 SC 346).
12. It is also important to note that the appellant was raising his voice at the time of the enquiry being made by Flt. Lt. K.L. Yadav and Cpl. Mulankar. When he was asked to make submission in a low voice, he reacted and made such utterances. This utterance would also set out his misconduct or disobedience or insubordination. His tone and temper was not only obnoxious but would also amount to gross insubordination. However, it is submitted by learned counsel for the accused/appellant that he was disturbed because of the ailment of his wife for which he had already taken the permission from the Commanding Officer to attend to while remaining in the Unit. The attending circumstances were not appreciated by Flt. Lt. K. L. Yadav. On the contrary he started questioning his little absence from Cpl Mulankar. Suffice it to mention that it is elementary that higher discipline is absolutely essential in the Armed Forces. Morale and discipline are indeed the very sole of armed forces and no other consideration, howsoever important, can outweigh the need to strengthen the morale of the armed forces and to maintain discipline amongst them.
13. Before proceeding to the other charge pertaining to the incident of 10th May 1989 when criminal force was used by the appellant against Flt. Lt. K.L. Yadav by catching hold of his collar and dragging him out of the chair and also hitting him on his face and thigh, it is submitted by learned counsel for the appellant that there are a lot of contradictions in between the statements of the witnesses and one is ruling out the presence of the other. There is also difference between the overt act said to have been done by the appellant. It is also submitted that it is the settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of incident is established pointing towards the guilt of the accused. In this context, the evidence adduced by the prosecution is examined.
14. PW-3 Flt. Lt. K.L. Yadav who is the victim of this incident gave categorical narration of the incident. He further stated that on 10th May 1989 the Commanding Officer fixed the time for the trial of the accused at 1230 hours and on that day he instructed JWO about it and also asked him to make necessary arrangements. At about 1220 hours when he was sitting in his room and discussing with regard to NCs in the flights with the Sqn. Ldr. A.K.Hallan and Sgt. Amar Singh was also there, all of a sudden the accused rushed into his room and grabbed his uniform shirt in between the collar and right hand shoulder and with the right hand he started hitting him on his face and dragged him of the chair and started hitting him on his face and legs. The witness has also furnished the uniform shirt which was torn from the back side of the shoulder and name tag and shirt buttons which were also exhibited by the prosecution. The testimony of this witness on these factual aspects remained unassailed. Moreover, the testimony of the victim who was hit by the appellant could not be lightly brushed aside, particularly when he was discharging his functions as an officer. Support can be had from the principles of law enunciated in the case of Abdul Saed v. State of M.P (2010 (10) SCC 259).
15. PW-1 Sgt. Amar Singh who is the witness of this incident which had taken place in the room of Flt. Ltd. K. L. Yadav, substantiated the prosecution version that accused caught hold of the collar of the Flt. Lt. K. L. Yadav and dragged him out and also gave him beating. The testimony of this witness was tried to be assailed on the ground that in the summary of evidence he has not stated about getting beatings on the thigh. On other counts the testimony of this witness remained intact. Omission to refer about hitting at the thigh in the summary of evidence would not be construed to be the contradiction. Even otherwise such omission would not throw out the entire prosecution case. To the same effect is the decision in State of Punjab v. Jagir Singh (1974) 3 SCC page 277 and Lehnav. State of Haryana (2002) 3 SCC page 76 where light was thrown that the principle of Falsus in Uno Falsus in Omni (false in one thing false in anything) is clearly untenable.
16. PW-2 A.K. Hallan has stated that accused/appellant entered the room of Flt. Lt. K.L.Yadav, grabbed his shirt with one hand and started hitting him on his face with his right hand. This witness also supports the prosecution version stating that Cpl Dhandambe who brought the appellant under escort from the Guard Room to the Unit HQ at around 1215 hours as accused wanted to go to toilet but suddenly he entered into the room of the Adjutant and caught hold of the shirt of Flt. Ltd. K.L.Yadav with his one hand and started hitting him with his right hand. It is said that the witness has not seen the accused hitting at the legs and thighs of the victim of this incident. This part of the statement of the witness would not in any way render the testimony of these witnesses to be unbelievable.
17. It has next been contended that there are discrepancies in the statement of the witnesses. Some witnesses stated that Flt. Lt. K.L.Yadav was also hit at the thighs while others have remained confined on the face. However there is a consistent version from the side of the prosecution witnesses about the catching hold of the collar of the Flt. Lt. K.L. Yadav and dragging him out. It is settled legal position while appreciating the evidence of a witness, minor discrepancies on trivial matters do not affect the core of the prosecution case and may not prompt the Court to reject the evidence in its entirety. Reliance may be placed in the case of State of Rajasthan v. Om Prakash (2007) 12 SCC page 381, State of U.P. v. M.K. Anthony (1985) 1 SCC page 505, State v. Saravanan (2008) 2 SCC page 587, Sohrab v. State of M.P. (1972) 3 SCC page 751 and State of U.P. v. Santosh Kumar (2009) 9 SCC page 626.
18. In view of the aforesaid discussion, we do not find any reason to interfere with the impugned findings and orders. In the result, the appeal fails and is dismissed.