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SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, JJ.
Union of India & Ors. – Appellants
Versus
Dafadar Kartar Singh & Anr. – Respondents
Criminal Appeal Nos. 3-4 of 2015
Decided on : 09-12-2019
Indian Penal Code, 1860 – Section 456 – Army Act, 1950 – Section 120 – House breaking by night – Summary Court Martial – Rigorous imprisonment for seven months apart from dismissal from service and reduction in ranks awarded – Acquittal by Armed Forces Tribunal – Judgments of acquittal may be reversed or otherwise disturbed only for very substantial and compelling reasons – Very substantial and compelling reasons exist when trial court has ignored evidence or misread material evidence or has ignored material documents like dying declarations/ report of ballistic expert – Judgment of Tribunal cannot be sustained in view of material evidence on record not being considered at all except for highlighting contradiction in evidence of witness – Tribunal miserably failed to consider other oral testimonies – Other material on record has also been ignored by Tribunal is photograph of bruises on both arms of Respondent and opinion of doctor which was placed on record which lend support to prosecution version – There is sufficient evidence on record to show that house breaking had in fact taken place – In addition, material on record clearly points to guilt of Respondent – Judgment of Summary Court Martial ought not to have been interfered with by Tribunal – Judgment of Tribunal set aside and order passed in Summary Court Martial restored – Sentence of imprisonment modified to period already undergone – Other penalties of dismissal from service and reduction to ranks restored. (Paras 9 and 10)
Facts of the case:
Respondent-herein was tried by the Summary Court Martial for a civil offence of house breaking by night. He was found guilty of charge and was sentenced to rigorous imprisonment for seven months apart from dismissal from service and reduction in the ranks. The conviction was set aside by Armed Forces Tribunal, Regional Bench, Chandigarh. Tribunal directed that Respondent shall be deemed to be in service w.e.f. 10.11.1999 till date of his superannuation in rank of Dafadar. He was also held to be entitled to all allowances for said period and pensionary benefits. These Appeals are directed against the said judgment of Tribunal.
Findings of Court:
There is sufficient evidence on record to show that house breaking had in fact taken place. In addition, material on record clearly points to guilt of the Respondent. After examining evidence available on record carefully, we are convinced that judgment of the Summary Court Martial ought not to have been interfered with by Tribunal.
Result : Appeals allowed.
JUDGMENT :
L. NAGESWARA RAO, J.
1. Dafadar Kartar Singh, the Respondent-herein was tried by the Summary Court Martial for a civil offence of house breaking by night. He was found guilty of the charge and was sentenced to rigorous imprisonment for seven months apart from dismissal from service and reduction in the ranks. The conviction was set aside by the Armed Forces Tribunal, Regional Bench, Chandigarh (for short, “the Tribunal”). The Tribunal directed that the Respondent shall be deemed to be in service w.e.f 10.11.1999 till the date of his superannuation in the rank of Dafadar. He was also held to be entitled to all allowances for the said period and pensionery benefits. These Appeals are directed against the said judgment of the Tribunal.
2. The Respondent was serving in the 74th Armoured Regiment at Panagarh, West Bengal in the year 1998. He was residing in the residential quarters at the SBI Lines. Sowar Kishore Kumar Yadav who was also staying in the same residential quarters was hospitalized on 14.10.1998 due to which his wife Smt. Sudesh was staying alone in the residential quarters. As Smt. Sudesh was alone, her neighbor’s son-Master Jaynendra alias Bittoo was requested to stay with her. Around midnight of 14/15.10.1998, Smt. Sudesh heard some sound of breaking of a bottle from the toilet of her house and noticed the movement of a person in the toilet. She saw a person wearing a light coloured sleeveless vest and a kuchha coming out of the toilet. He switched off the lights in the lobby and the toilet. Smt. Sudesh tried to wake up Bittoo. In the meanwhile, the intruder walked up towards the door of the bed room and stood in the door-way. She could see the intruder in the light of the bed room. He switched off the light of the bed room and came inside the bed room. Bittoo woke up and saw the intruder and started screaming “Koi Aadmi Hai”. Then Smt. Sudeh also screamed at which the intruder ran out of the bed room closing and bolting the bed room from outside. Smt. Sudesh heard Smt. Mithilesh, mother of Bittoo, enquiring from outside as to what was the matter to which Bittoo replied that somebody has come into the house. Thereafter, people gathered at the main entrance and opened the locked room and entered inside the bed room and started enquiring about the incident. Some people also inspected the toilet to find out as to how the intruder sneaked into the house. Smt. Sudesh came out of the house and saw Lance Naik A. Hussain, Havildar K.K. Thakaran and Naik Ramesh Yadav amongst other people who gathered outside the quarters. She immediately recognized the intruder standing along with other people who gathered there and pointed to the Respondent saying that he was the man who broke into the house. Risaldar Pritam Singh visited the house of Sowar Kishore Kumar Yadav to investigate the incident at 1400 hrs. on 15.10.1998 on receipt of complaint of house breaking. He spoke to Smt. Sudesh who explained to him the details. He inspected the window of the toilet and found the lower portion of the window had been removed and was lying near the drain block and the frame of the window was broken. The broken ends of the detached portion of the window lying on the ground indicated that it was broken recently. He inspected the toilet to find that the bottle which was containing acid was lying broken in the toilet. He then called the official photographer and the photographs of Respondent and the site were taken. The Respondent had abrasions on his right upper arm on the lateral side and the left upper arm on lateral side.
3. The Court of Inquiry was held to investigate the charge levelled by Smt. Sudesh against the Respondent. Eight witnesses were examined and the Court of Inquiry recorded a finding that Respondent broke into the house of Smt. Sudesh. However, as the intention of the house breaking was not established, the Court of Inquiry recommended that disciplinary action be initiated against the Respondent. The Respondent was med
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