IMPORTANT POINT
Conviction based on consistent and reliable evidence of witnesses and summary statement recorded after following all safeguards under Rule 23 of the Army Rule 1954 cannot be set aside.

JUDGMENT

DIPAK MISRA, J.

The present appeal, by special leave, is directed against the judgment of affirmation of conviction and order of sentence passed by the Armed Forces Tribunal, principal Bench, New Delhi (for short “the tribunal”) in T.A. 617 of 2009 whereby the tribunal has confirmed the conviction under Section 304 Part-II, I.P.C. and the sentence of seven years of rigorous imprisonment imposed by the General Court Martial held at Babina in the State of Madhya Pradesh vide order dated 24.2.2007 and further has maintained the order dated 18.3.2008 passed by the Chief of Army Staff under Section 164(2) of the Army Act, 1950 (for brevity “the Act”).

2. Be it stated, the initial order was challenged before the High Court of Delhi in W.P.(C) No. 7266 of 2009 and after coming into force of the Armed Forces Tribunal Act, 2007 (for short ‘the 2007 Act’) and the constitution of the tribunal the matter was transferred to the tribunal wherein it was treated as an appeal under Section 15 of the said enactment.

3. The facts necessary to be exposited for adjudication of this appeal are that on 3rd of April, 2006, a ‘Barkhana’ was organized at 85, Armoured Regiment to bid farewell to the outgoing Risaldar, Major Madan Lal. At the Barkhana venue some heated arguments took place between the appellant and Risaldar, Nand Lal Prasad, PW5, and in course of argument said Nand Lal Prasad slapped the appellant. However, the matter was defused with the intervention of Major Raj Nandan, PW4, who instructed Lance Dafdar Anil Kumar, PW6 and Lance Dafadar Murari Singh, PW7, to take the accused to his living barracks of Headquarter Squadron.

4. As per the prosecution version during the altercation and assault between the accused and Nand Lal Prasad, deceased Dafadar Ram Pratap had tried to intervene and was abused by the accused. After the accused had left for the barracks of the Headquarter, about 12.30 a.m., Sowar Balwinder Singh, PW6, came to the line after finishing his duties allotted to him, and after entering the room switched on the light and found Dafadar Ram Pratap was lying in a pool of blood and blood was also oozing out from his mouth. He was immediately shifted to the Army Hospital where he was declared dead. About 1.30 a.m. on 4.4.2006, information was received from the police station Babina by the 85, Armoured Regiment that a person belonging to their regiment had surrendered at the police station and stated that he had stabbed one person with a knife. On receipt of the said information, the concerned J.C.O. was sent to the police station where he saw that Dafadar Om Prakash was present. After receiving the information from the J.C.O., the Commanding Officer, Col. Rajiv Chib, PW27, along with Lt. Col. Atul Kumar Bhat, PW15, reached the police station Babina about 1.50 a.m. and enquired from the accused about the details to which he confessed that he had stabbed the deceased. Thererafter, an F.I.R. was lodged by the Adjutant Captain Abhishek, PW3, and the accused was handed over to the Military Police. As the narration would further unfurl, the proceedings of the General Court Martial (GCM) under the Army Act was initiated by order dated 8.10.2006 passed by Major General A.K. Singh, General Officer Commanding, 31st Armoured Division.

5. Be it noted, the accused was charged for the offences under Section 302 of I.P.C. for intentionally causing death of Ram Pratap of his unit, but subsequently stood convicted for culpable homicide not amounting to murder under Part-II of Section 304, I.P.C. As is demonstrable, the prosecution in order to substantiate the charge had examined as many as 31 witnesses and during the court martial number of documents were exhibited. The Court Martial relied on Exbt. 36 which was recorded at the time of summary of evidence wherein the accused had admitted that the deceased and he were involved in a fight. He had also stated that the deceased in the room had abused him and tried to kick him but failed in the