No 2607818f Sepoy Shaik Raffee Versus the Chief of Army Staff, Army Headquarters, Dalhousie Road, New Delhi and Others - Court Judgment

1. This appeal has been preferred under Section 15 of the Armed Forces Tribunal Act, 2007 praying for quashing and setting aside the SCM proceedings of 15.9.2007 as well as for quashing the impugned order of 1.7.2008 passed by the Chief of Army Staff, which rejects the appeal of the appellant.

2. The appellant pleads that he has been performing his duties to the best of his ability with complete diligence, honour and discipline. The appellants reports are good and accordingly reflect his conduct and behaviour. There has been no charge of even a small misdemeanour against the appellant who has performed to the complete satisfaction of his superiors, colleagues and fellow Sepoys.

3. It is against this background that the appellant was shocked to receive a communication on 10.9.2007 from his Commanding Officer informing him that he would be tried by SCM on 15.9.2007. He was also informed that in accordance with Army Rule 129, he could have a person to assist him during the trial or he could opt for a friend of the accused who would advise him on all points during the Court Martial. He was also asked by his Commanding Officer to forward a list of witnesses whom he wished to call for his defence. The relevant statements and documents from the Court of Inquiry as well as the Summary of Evidence recorded against the appellant and the charge sheet were also handed over to him. The appellant states that while all this was done; in reality there was no assistance that was provided to him and that he was not explained his rights in the vernacular or a language comprehensible to him (i.e. Telugu, Kannad, Tamil or Malayalam). He had difficulty in browsing through difficult terminology as incorporated under Rules 33 and 129 and most of the legal jargon was beyond his comprehension. The petitioner has agitated that he was not given adequate time to defend himself or to contact any suitable officer to defend him and that his signatures were obtained on a blank piece of paper. However, the appellant does admit that he asked his CO to detail any JCO as deemed fit by him as his friend and he also stated that he wished to call no witnesses in his defence. The petitioner is aggrieved that a very dictatorial attitude was adopted right from the preliminary stages till the conclusion of the SCM and that he was deprived of his basic fundamental rights.

4. The appellant is aggrieved that the charges against him under Sections 69, 52A and 63 of the Army Act do not convey any real offence per se. The offence of theft, cannot really be applied to borrowing and lending of a few rounds of ammunition which, according to him, occurs on a day to day basis in these operational areas. He also contends that he never had any intention to commit theft and that his giving a few rounds of ammunition to Nk. Ravi Kumar Pola was a temporary loan. The fact is that Ravi Kumar Pola was senior to him and that as a disciplined soldier, the appellant has only followed the instructions of Nk. Ravi Kumar Pola. The appellant is also aggrieved that the SCM proceedings were completed in less than half a day and according to him, it should have taken much longer if there had been due diligence and application of mind. Besides quashing the SCM proceedings of 15.9.2007 and the impugned order of the Chief of Army Staff of 1.7.2008, the appellant also desires to be reinstated in service with all backwages.

5. To understand the picture, a brief narration of the circumstances leading to the charge would be appropriate. The appellant was on the posted strength of 38 Rashtriya Rifles on thenight of 13-14.9.2006 when this incident occurred. His unit was deployed astride the Indo-Pakistan border in the Rajouri Sector of Jammu and Kashmir. On 13.9.2006, Nk. Ravi Kumar Pola shot and killed his Company Commander Maj. Harsh of 38 Rashtriya Rifles Battalion. The appellant knew about the fact that Nk. Ravi Kumar Pola had killed Maj. Harsh, but yet he assisted him by making good four rounds of ammunition that Nk. Ravi Kumar Pola had used while killing Maj. Harsh. This was done, so that when the search was conducted by the superior officers, Nk. Ravi Kumar Pola would not be deficient of any ammunition and would not be suspected. Three of these four rounds of ammunition which the appellant gave to Nk. Ravi Kumar Pola were already in his possession (surplus to his own ammunition) and the fourth round he stole from Sepoy Mohammed Altaf Hussain of the same battalion by inter-changing his own magazine containing 19 rounds and stealing Altaf Hussains magazine containing 20 rounds. It is against this backdrop that the charge sheet of disappearance of evidence, committing theft and an act prejudicial to the good order and military discipline was drawn up against the appellant. The charge sheet is given below:

“First Charge

Army Act Section 69

COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, CAUSING DISAPPEARANCE OF EVIDENCE OF OFFENCE CONTRARY TO SECTION 201 OF THE RANBIR PENAL CODE,

In that he,

At field, on the night 13/14 Sep 2006, by making up four rounds fired by No 15774807W Naik/Clerk Ravi Kumar Pola to kill IC-61002F Maj. Harsh of 38 Rashtriya Rifles (Madras), committed disappearance of evidence.

Second Charge

Army Act Section 52(a)

COMMITTING THEFT OF PROPERLTY BELONGING TO A PERSON SUBJECT TOMILITARY LAW.

In that he,

At field, on the night 13/14 Sep 2006, committed theft in respect of one round of AK – 47 Rifle, the property of No 2609652K Sepoy Mohd Althaf Hussain of the same Battalion.

Third Charge

Army Act Section 63

AN ACT PREJUJDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE,

In that he,

At field, on the night 13/14 Sep 2006, was improperly in possession of three rounds of AK – 47 Rifle, the property of the Government. “

6. Counsel for the respondents stated that the petitioner was telling lies in this entire matter and making lame excuses to cover up his own wrong doings. The incident happened on 13/14.9.2006, wherein the petitioner made available four rounds of ammunition to Nk. Ravi Kumar Pola who had killed Maj. Harsh of the same unit. He gave this ammunition just a few minutes after Maj. Harsh was killed fully knowing that Nk. Ravi Kumar Pola had killed Maj. Harsh. During the SCM, which was held on 13.9.2006, the petitioner pleaded guilty to all three charges and his signatures are found below each such admission. In such case, as mandated by Army Act/Rules, the summary of evidence is required to be read and explained to the appellant and attached to the proceedings. The charges against the appellant have been fully proved in the SCM, wherein four witnesses were produced who testified about the appellants involvement in trying to cover up the aftermath of such gruesome murder.

7. PW 1, Col. Ashish Ahuja, Commanding Officer of 38 Rashtriya Rifles testifies that on being informed about the killing of Maj. Harsh, he moved out the same night i.e. 13-14 September and went to the company post where the incident had occurred. On arrival at the post, he took photographs of the incident-site and saw four fired cartridges of AK 47 lying on the floor of the bunker where Maj. Harsh had been killed. He then met Nk. Ravi Kumar Pola, who was in custody and who confessed to shooting Maj. Harsh. After that, when he saw the weapon, with which Maj. Harsh had been killed, he observed an incongruity in that all the three magazines with the weapon were full (i.e. 20 rounds each), which he could not fully comprehend since he had seen four fired cartridges lying on the floor. He, therefore, ordered a physical check of ammunition of all the individuals on the post and after some time he was informed that only one round of AK 47 ammunition was reported missing by Sepoy Altaf Hussain who was not very sure whether he had lost it in an operation or otherwise. However, on 15th September, Sepoy Altaf Hussain confessed to the CO that he had not lost this one round in an operation, but that it was missing from his magazine since the morning of 14th September itself. When he questioned Sepoy Altaf Hussain about the other missing rounds, the individual asked him to speak to Sep. Raffee. Accordingly, the CO called Sep. Raffee who told him that he had three rounds of AK 47 ammunition surplus from an earlier operation and that he had given this ammunition to Nk. Ravi Kumar Pola after the latter had shot Maj. Harsh. Sep. Raffee also confessed to the CO that one additional round had been given by him to Nk. Ravi Kumar Pola by inter-changing his magazine which was deficient of one round with that of Sepoy Altaf Hussain.

8. PW 2, Sepoy Altaf Hussain of 38 RR also confirmed that he and Sep. Raffee saw Nk. Ravi Kumar Pola enter the bunker of Maj. Harsh and immediately thereafter there were sounds of rifle firing and Nk. Ravi Kumar Pola came out of the bunker. Nk. Ravi Kumar Polas face was clearly visible because of the bulb outside the bunker in the light of which Nk. Ravi Kumar Pola was recognisable. Sep. Raffee and Altaf Hussain went into the bunker and on realising that Maj. Harsh had been killed, they ran out of the bunker. Thereafter, the witness narrates as to how he reported the incident to Subedar J. Pradeep Kumar and also as to when the one round of ammunition is found deficient in his magazine he makes an excuse that the deficient round was not fitting into his magazine and that he had thrown it away. This witness goes on to state that on 15th September at 1100 hrs. Sep. Raffee comes up to him and informs him that he had inter-changed the magazine resulting in Sep. Hussain being deficient of one round of ammunition. He accordingly informed his CO about this.

9. PW 3 is Nk. Ravi Kumar Pola who had killed Maj. Harsh. He states in his testimony that after killing Maj. Harsh, he met Sep. Raffee and told him to clear his rifle which Sep. Raffee did. The witness then asked Sep. Raffee as to how many surplus rounds of AK 47 ammunition he had and accordingly was given three surplus rounds by the appellant. Thereafter, when they went to occupy their battle positions he again checked his magazine and found that one round was still deficient and Sep. Raffee gave him this one round also resulting in Nk. Ravi Kumar Pola having his complete ammunition with him during the physical search ordered by the Commanding Officer.

10. PW 4 Sub. J. Pradeep Kumar of 38 Rashtriya Rifles Battalion also corroborates the evidence given by the earlier witnesses and given details about how the ammunition is checked after every operation and how such accounting is done. He states that after an operation, a soldier has an opportunity to create some surplus ammunition by reporting inflated expenditure during an operation and ultimately it is faith on which one has to rely on for such matters.

11. During the summary of evidence, the appellant was asked whether he wished to make any statement and the appellant voluntarily made an exhaustive narration of the event of that evening in which he admits to evidence that corroborates the testimony of other witnesses. Some extracts of his voluntary testimony are given below:

“50. …………………………… After that Naik/Clerk Ravi Kumar Pola went inside the Company Commanders dhok and uttered “Namashkaram” which was clearly heard and recognised. I then distinctly heard a sound of Rifle AK-47 being cocked and then a burst being fired inside the Company Commanders dhok. I then clearly saw Naik/Clerk Ravi Kumar Pola coming out of the Company Commanders dhok.

51. …… Approximately midway to the Company Commanders dhok, Naik/Clerk Ravi Kumar Pola met me and warned, saying, “Do not tell anybody about this, otherwise I will not leave anybody”. I opened the door of the Company Commanders dhok and as soon as I stepped in, I could distinctly smell gunpowder, indicating that a weapon has just has been fired. …….

53. Once inside the 10 Platoon dhok he (Ravi Kumar Pola) shut the door and said, “Clear the weapon (Hathiyar ko khali karo)”. I cocked the Rifle AK-47 (Butt Number- 0322 and Registration Number AFT-0314) which was without a magazine. One live round of Rifle AK-47 fell out of the chamber. I gave the live round to Naik/Clerk Ravi Kumar Pola. Naik/Clerk Ravi Kumar Pola told me to fill the chambered round into the magazine. I then filled the chambered round into the magazine. Naik/Clerk Ravi Kumar Pola then asked me, “How many spare rounds do you have?” I told him that I have three spare rounds. I then took out three spare rounds of AK-47 from my shaving kit bag and gave it to Naik/Clerk Ravi Kumar Pola. I was very tensed and totally shaken up at that time and I did not know what I was doing.

54. ………. Once at Company OP Post, Naik/Clerk Ravi Kumar Pola checked his magazine by pressing against its lips and said, “My magazine is short of one round, give me one round from your magazine”. I took out one round from my magazine and gave it to him. Naik/Clerk Ravi Kumar Pola then put that round into his magazine. I was crying and shivering out of fear at that time. Naik/Clerk Ravi Kumar Pola told me, “Why are you scared, nothing will happen to you, I will now go and surrender myself”

56. …….. I was very scared as I was deficient of one round of AK-47. I immediately went inside 10 Platoon dhok and looked for rounds near my bed. I did not find any rounds. The bed next to me is of Sepoy Mohd Althaf Hussain. Below Sepoy Mohd Althaf Hussains bed I saw his bullet proof jacket with a magazine in it. I took out my magazine with a deficient round from my bullet proof jacket and put it in the bullet proof jacket of Sepoy Mohd Althaf Hussain. I then took out a fully filled magazine from the bullet proof jacket of Sepoy Mohd Althaf Hussain and thereafter went back to the Company OP Post. “

It shall also not be off the point to mention that admissions made by the accused are in the nature of substantive evidence by themselves in view of Sections 17 and 21 of the Evidence Act, though they are not conclusive proof of the matter admitted. The admissions have duly been proved. Much weight can be attached to the admission of the accused. Analogy may be drawn from the principle of law enunciated in Bishwanath Prasad and others v. Devendra Prasad and others (AIR 1974 SC 117).

12. With regard to some inconsistencies that have been indicated by the appellant, a close examination of the summary of evidence and SCM proceedings inspire great confidence in the fact that the proceedings were conducted according to law. The summary of evidence contains the signatures of the appellant along with that of the prosecution witnesses, independent witnesses and the officer recording summary of evidence below each witnesss testimony. The appellant has been given an opportunity to examine each witness, some of whom he has asked questions which have been duly recorded and the officer recording summary of evidence has confirmed that the provisions of Army Rule 23(1), (2), (3), (4) and (5) have been complied with. Besides the appellants signatures below each plea of “guilty” to the three charges, his signatures also appears below the certificate of the Commanding Officer that the provisions of Army Rule 115(2) have been complied with. The appellant has also called a defence witness and was duly assisted by a “friend of the accused” whom he accepted in writing. Since the accused pleaded guilty to all three charges, half a day was adequate to conclude the SCM. In any case, no inconsistencies have been indicated. There is no inconsistency in the recording of the summary of evidence. During the pre-trial stage, all necessary documents have been given to the petitioner well in time and there is no violation of any provision pertaining to the pre-trial stage. Adequate time, i.e. five days, was given to the appellant to prepare his defence. All relevant documents were handed over to him well in time. Counsel for respondents also clarified that the petitioner was not obliged to follow the illegal “so called orders” of Nk. Ravi Kumar Pola. The plea of the petitioner that he did these wrong doings under threat from Nk. Ravi Kumar Pola was dismissed by respondents as being mischievous. The fact was that the petitioner knew that Nk. Ravi Kumar Pola had killed Maj. Harsh and yet he voluntarily went to assist Nk. Ravi Kumar Pola instead of raising an alarm and informing his seniors about the gruesome killing. His attitude indicates that not only was there no threat but it could be construed to his even being an accomplice. His silence and non-reporting of the incident are contrary to all established basic norms, training and integrity of the Army and displays a very cunning and crooked personality. His voluntary assistance in clearing the weapon of Nk. Ravi Kumar Pola, giving him 3 surplus rounds of AK-47 ammunition and even stealing one more round of ammunition to assist Nk. Ravi Kumar Pola in the cover up is the work of the devil and cannot be condoned under any circumstances. The circumstances which have been narrated above are viable in the chain of circumstantial evidence and it is difficult to truncate them. From the reading of the entire evidence, including the statement of the accused, the inescapable conclusion is that the accused has committed the offence. Reliance may be placed in the case of Ram Avtaar v. State of Delhi Administration (AIR 1985 SC 1692).

13. Having examined the various facts, including the testimony of the witnesses, we find no grounds to doubt their testimony and neither has any aberration being detected in the pretrial or during the trial stage. The petitioner has committed the offences for which he was charged and not only has he voluntarily pleaded guilty, but his involvement has been proved to the hilt. We do not find any reason for intervention and accordingly, the application is dismissed.