JAMMU: A Division Bench headed by Chief Justice N Paul Vasanthakumar has observed that the impugned judgment handed down by the writ Court involving a Army personal who was accused of has raping a mother and daughter in which Single Judge had set-aside the judgment of Summary Court Martial, which had awarded seven years rigorous imprisonment, suffers from gross legal infirmity.
Cogent credible and convincing testimony of prosecutrix, duly proved medical report confirming sexual assault on prosecutrix and convincing account of Captain Ajeet Singh regarding extra judicial confession of respondent have been improperly rejected.
The impugned judgment is legally unsustainable and the same is liable to be set aside and accordingly, set aside the impugned judgment of writ Court and restore the conviction and sentence awarded by SGCM as well as dismissal order passed against the respondent.
The LPA has been filed by Union of India against the judgment of writ Court by virtue whereof conviction and sentence of respondent recorded by Summary General Court Martial (for short “SGCM”) under Section 376 of RPC read with Section 69 of the Army Act and dismissal order dismissing the respondent from his service have been quashed.
Respondent was holding substantive rank of Captain and posted as Commander of C-Company 12 Rashtriya Rifles upper Gund Area Banihal District Doda at the relevant time. On 15.02.2000 some residents of village Nowgam lodged a complaint with Police alleging therein that on 14.02.2000 at 8.30 pm four unknown armed persons in civil dress landed in the house of one Sana Ullah Tantray resident of Nowgam. While two of them entered the house, remaining two kept standing outside. It was alleged that the two who had entered the house allegedly raped the wife and daughter of house owner. Investigation was carried out which revealed that on 14.02.2000 an ambush party from C-Company under Captain Ravinder Singh Tewatia had gone to village Nowgam in the evening accompanied by seven other Ranks and three SPO(s). They had broken into two groups, one consisting of seven other Ranks which was deployed at the house of Abdul Gani Rather whereas the second group consisting of one officer and three SPO(s) had proceeded towards the house of Sana Ullah Tantray. Two SPO(s) namely Sanjay Kumar and Shailender Singh stayed at some distance from the house as the officer leading them told them to wait there. The officer and third SPO Bharat Bhushan entered the house. On the basis of a confession respondent was nominated as an accused. The confession was to the effect that he had sexual relationship with victim of S.T. Police got the victim medically examined at Civil Hospital Banihal which revealed that victim had been sexually assaulted. Commanding Officer of 12 Rashtriya Rifles ordered a Court of Inquiry. Respondent was placed under close arrest. The Court of Inquiry completed its proceedings on 06.03.2000. This was followed by an identification parade conducted by Executive Magistrate Banihal on 05.03.2000. The victim Mst. K. B. identified respondent as the perpetrator of crime of rape committed with her. Further proceedings were ordered to be conducted under Army Act by convening SGCM after option was exercised by Army authorities to try the accused before Court Martial. Respondent was convicted under Section 376 of RPC read with Section 69 of Army Act and sentenced to seven years rigorous imprisonment in civil prison. He was also sentenced to cashiering from service. Since the revision preferred by respondent was rejected, GOC Delta Force promulgated the sentence on 19.12.2000. The proceedings before Court Martial culminating in conviction and sentence were called in question before the Writ Court which quashed the proceedings as stated hereinabove.
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 Apex Court in evaluating the evidence of a rape victim. The impugned judgment is unsustainable and cannot be supported.