IMPORTANT POINT
Conviction without following procedure of law and without opportunity to accused cannot be sustained.

JUDGMENT :

L. NAGESWARA RAO, J.

1. This Appeal is filed against the judgment of the Armed Forces Tribunal, Regional Bench, Lucknow (hereinafter, ‘the Tribunal) by which the order of dismissal of the Respondent dated 23.07.2012 was set aside.

2. The Respondent was enrolled in the Indian Army as Sepoy in the Unit 981 AD Regiment Workshop on 02.02.2002. He was posted at Jamnagar on 01.06.2011 and was scheduled to be on the third night duty from 04:00 hrs to 06:00 hrs. Thus, he was excused from physical training parade. On 02.06.2011, at about 07:45 hrs, he assaulted Subedar/Master Technical (Communication) Satyendra Singh Yadav, with a Talwar (grass cutting tool) without any provocation. Initially, the Respondent hit Subedar/Master Technical (Communication) Satyendra Singh Yadav on his head from behind and when Subedar/Master Technical (Communication) Satyendra Singh Yadav turned around, the Respondent hit on his forehead with the Talwar. When the Respondent attempted to give a third blow, Naib Subedar A. P. Singh intervened. Subedar/Master Technical (Communication) Satyendra Singh Yadav was immediately shifted to Gokul Hospital, Jamnagar and a surgery was conducted by a Neurosurgeon as his skull bone was fractured leading to internal bleeding and blood clotting in the brain.

3. The Court of Inquiry was convened against the Respondent by Colonel Sanjay Khanna, Commanding Officer, 48 AD Regiment on 03.06.2011 to investigate into the circumstances which led the Respondent using criminal force against Subedar/Master Technical (Communication) Satyendra Singh Yadav. Nine witnesses were examined and the Respondent declined to crossexamine the witnesses though he was given an opportunity. The Respondent also did not make any statement in his defence. After appreciating the material on record, the Court of Inquiry recommended action to be initiated against the Respondent.

4. The proceedings for recording the summary of evidence were initiated by Lt. Col. Amarvir Singh. Twelve witnesses were examined on behalf of the prosecution between 10.06.2011 and 15.06.2011. According to the Appellants, the Respondent declined to cross-examine the prosecution witnesses. The Respondent had voluntarily given a statement that he hit the victim with a grass cutting tool without any provocation. Thereafter, on 20.10.2011, additional summary of evidence was recorded. Two additional witnesses were examined and witness No. 2 and 12 were re-examined in the presence of the Respondent. The prosecution alleges that the Respondent refused to cross-examine the witnesses though he was given an opportunity to do so.

5. By an order dated 23.07.2012, the Summary Court Martial found the respondent guilty and imposed the sentence of dismissal from service.

6. The order dated 23.07.2012 was questioned by the Respondent before the Tribunal. The Respondent contended that he was kept in close arrest from 02.06.2011 to 05.10.2011 without the permission from the Chief of the Army Staff. It was further contended that he was not given an opportunity to participate in the Court of Inquiry and during the recording of summary of evidence. He complained that the Summary Court Martial was conducted in a hasty manner. The entire proceedings before the Court Martial was completed within a period of 45 minutes. It was further argued on his behalf that the oral evidence was inconsistent with the medical evidence. The Respondent’s case was that there was no incised wound on the head of the victim though the Respondent is alleged to have used a Talwar which is a sharp-edged weapon. He submitted before the Tribunal that noncompliance of the provisions of the Army Act, 1950 and the Army Rules, 1954 (hereinafter, ‘the Rules’) vitiated the Summary Court Martial proceedings.

7. The Tribunal accepted the submissions made on behalf of the Respondent and held that there was an irreconcilable inconsistency between the medical evidence and the oral testimonies of the witnesses. According to the medical cer