Army Act, 1950—Section 69 and 70 r/w section 549 Cr.P.C. (J&K)—Conviction of respondent for offence of rape recorded by summary General Court Martial—Writ court set aside conviction on reappraisal of evidence—LPA—Respondent was posted as commander of C-Company and was of Captain rank when he committed rape of victim—Police charge-sheeted accused and as per option exercised by GOC Magistrate forwarded charge sheet to GOC for trial—Respondent had committed alleged act of rape while he was on active service of Army—Victim of rape was a civilian not subject to Army Act and thus civil offence of rape against victim would not be triable by Court Martial but since act of rape was committed by respondent while in active service he was deemed to be guilty of offence against Army Act—Discretion exercised by competent authority as regards choice of forum was not faulted—Scope of judicial review by writ court as regards Court Martial proceedings was limited—Writ court had gone for reappraisal of evidence for its findings that case projected by prosecutrix was not truthful—Even otherwise testimony of prosecutrix appeared reliable and was corroborated by other evidence—Impugned acquittal was liable to be set aside and conviction as well dismissal from service order passed by Court Martial was liable to be restored.

       Held: It emerges from record that after investigation SHO P/s Banihal filed two separate charge-sheets, one against the respondent when he was in military custody and the other against one Bharat Bhushan. It alleged commission of offence under Ss. 375/456/342/166 of RPC against the accused. The challans were filed in the Court of learned Judicial Magistrate 1st Class Banihal. The learned Magistrate committed the case relating to accused-Bharat Bhushan to Court of Sessions in terms of S. 205-D of Cr.P.C. as offence under S. 376 of RPC was exclusively triable by the Sessions Court. In regard to charge-sheet filed against respondent-Captain R.S. Tewatia, the learned Magistrate forwarded the charge-sheet to GOC CI Force Delta for trial of said accused before Court Martial as the letter of option exercised by GOC CI Force Delta through his representative Mahinder Yadav Assistant Judge, Advocate General had been received for trial of respondent by Court Martial. This was a composite order passed by the learned Judicial Magistrate, Banihal on 1-4-2000. It is manifestly clear that the learned Magistrate, while committing the case of civilian accused to the Court of Sessions in terms of provisions of S. 205-D, Cr.P.C. made over the charge-sheet in regard to respondent to GOC CI Force Delta who had exercised option to try respondent before a SGCM. It further emerges from record that the respondent assailed this order before learned Additional Sessions Judge Ramban in revision. The revision was rejected. The trial of respondent before Court Martial culminated in his conviction and sentence as aforesaid.

       The course adopted by the learned Magistrate in forwarding the charge-sheet against respondent to GOC CI Force Delta on his exercise of option and the order passed by learned Additional Sessions Judge in revisional proceedings on 14-12-2000 paving way for trial of respondent by Court Martial are in consonance with law and no exception can be taken thereto. Section 69 of the Army Act lays down that any person subject to Army Act committing any civil offence is deemed to be guilty of an offence against the Army Act and is liable to be tried by a Court Martial. This provision is subject to S. 70 of Army Act which provides that a person subject to Army Act who commits an offence of murder, culpable homicide not amounting to murder or of rape against a person not subject to Military, Naval or Air Force law shall not be deemed to be guilty of an offence against Army Act and shall not be tried by a Court Martial unless he commits such offence in any of the conditions enumerated in the section including the com- mission of such offence while on active service. In the instant case respondent committed the alleged act of rape with Ms. K. B. while he was on active service of the Army. Admittedly, Ms. K. B. was a civilian not subject to Army Act. The civil offence of rape as against the victim would not be triable by Court Martial but since the alleged act of rape was committed by respondent while on active service, he was deemed to be guilty of offence against the Army Act and was liable to be tried by a Court Martial. Discretion exercised by the competent authority as regards choice of forum, therefore, cannot be said to have been exercised without following guidelines as the alleged offence was committed while the respondent was on active service of Army. Objection in regard to venue of trial not having been raised by the victim who was not subject to Army Act, respondent cannot be heard to say that such exercise of discretion by the competent authority in opting for Court Martial suffered from infirmity on any score. Objections raised on this score regarding forwarding of case of respondent for his trial before Court Martial at the option of GOC CI Force Delta is without substance and is rejected. The Magistrate has perfectly acted in consonance with the provisions of S. 549 of Cr. P.C. read with Ss. 69 and 125 of Army Act and Rule 5 of the Criminal Courts and Courts Martial (Adjustment of Jurisdiction) Rules, 1978. It is already noticed that objection raised by the respondent on this score by filing revision petition before learned Sessions Judge has been turned down and rightly so.

       It is manifestly clear that the writ Court would not be acting within its domain to sit in judgment over the findings of guilt recorded by the SGCM unless it be a case of no evidence. Judicial review in such cases is limited and once it is found that the Court Martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the writ Court should not interfere. Challenge to validity of conviction and sentence would not be allowed when evidence is sufficient and the Court Martial has assumed jurisdiction properly and followed the prescribed procedure. In the instant case the writ Court has gone for reappraisal of evidence tendered by prosecution before the Court-Martial and declined to rely upon the version of prosecutrix.

       In the instant case, it is the admitted position that the prosecutrix has implicated the respondent as the person who committed rape with her. Irrespective of the fact whether the accused was previously known to her to the extent of nominating him with reference to his name and service particulars or not, it is undeniable that the prosecutrix has identified the accused as the assailant. It is not the respondent’s version that the prosecutrix bore ill-will, animosity or that she harbored any malice against the respondent to falsely implicate him. From record nothing is forthcoming to suggest that any motive has been attributed to the prosecutrix to falsely implicate the respondent. It is also in evidence that the Medical Board confirmed allegations of rape with prosecutrix. The evidence also demonstrates that there was a public outcry against the outrage and demonstrations were organized against the rape of victim. The evidence further unveils that Captain Ajeet Singh, a one time close companion and colleague of accused, proved the extra-judicial confession made by accused before him that he had sexual intercourse with the prosecutrix. There is nothing on record even to remotely suggest that Captain Ajeet Singh harbored ill-will or feelings of enmity against the respondent and that he had a motive for implicating the respondent in a false case. A cursory look at the record of SGCM succinctly brings out these facts and viewed in this context the reasons assigned by the writ Court for rejecting testimony of prosecutrix do not hold good. A proved case of rape is sought to be dismantled by the writ Court on flimsy grounds. The reasons assigned neither conform to the settled principles of law on appreciation of evidence laid down in Gurmeet Singh v. State of Punjab, State of Rajasthan v. N.K. and a catena of authorities from the Hon’ble Apex Court but also exhibit hollowness writ large on the fact of such reasons. Testimony of prosecutrix would not be rejected on these trifle, insignificant and minor discrepancies and contradictions. It is not the case of respondent that the SGCM was not properly constituted, proper procedure was not followed or that the trial was not conducted fairly. It is also not his case that he was not provided opportunity to cross-examine the witnesses or that he was not permitted to explain the incriminating circumstances appearing in evidence against him or that he was not afforded a fair opportunity of adducing defence evidence. The record shows that the trial was conducted in the fairest manner and all procedural requirements and safeguards were adhered to. The testimony of prosecutrix stands corroborated by medical evidence apart from testimony of other witnesses. Extra-judicial confession made by respondent before Captain Ajeet Singh lends further assurance to the testimony of prosecutrix in establishing complicity of respondent as the perpetrator of crime. The writ Court, perhaps, failed to remind itself that it was not hearing an appeal and It was not required to reappraise the findings recorded on evidence by Court Martial The writ Court exceeded its jurisdiction in usurping the role of appellate Court and proceeded to re-appraise evidence as if it was required to determine guilt or innocence of accused. It is queer that the testimony of the victim of crime has been rejected for reasons which are far from convincing and overlook the guidelines laid down by the Hon’ble Apex Court in evaluating the evidence of a rape victim. The impugned judgment is unsustainable and cannot be supported. (Paras 5, 6, 9 and 10)

       Result: Appeal allowed.