ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH at CHANDIMANDIR -.- (1) MA 1204 of 2014 and OA (Appeal) 437 of 2010

1 OA 437 of 2010

ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- (1) MA 1204 of 2014 and OA (Appeal) 437 of 2010

Yash Paul …… Petitioner(s) Vs Union of India and others …… Respondent(s) -.- For the Petitioner (s) : Col (Retd) NK Kohli, Advocate For the Respondent(s) : Ms Renu Bala Sharma, CGC

(2) MA 1203 of 2014 and OA (Appeal) 434 of 2010

Balraj Singh Andotra …… Petitioner(s) Vs Union of India and others …… Respondent(s) -.- For the Petitioner (s) : Col (Retd) NK Kohli, Advocate For the Respondent(s) : Mr Gurpreet Singh, Sr PC

(3 ) MA 6431 & 1205 of 2014 and OA (Appeal) 438 of 2010

Balbir Kumar …… Petitioner(s) Vs Union of India and others …… Respondent(s) -.- For the Petitioner (s) : Col (Retd) NK Kohli, Advocate For the Respondent(s) : Mr Ram Chander, Sr PC

Coram: Justice Surinder Singh Thakur, Judicial Member. Lt Gen (Retd) Sanjiv Chachra, Administrative Member. -.- ORDER 24.2.2016 -.- APPEAL AGAINST SCM

The above titled OA (Appeals) are arising out of the one and the same incident and the verdict, challenging convening of Summary

Court Martial and order of conviction on each of the petitioners with the sentence of reduction to ranks and their dismissal from service on a charge under Section 41(2) of the Army Act for disobedience of lawful command in utter contravention of the provisions of Army Act in active insurgency operations during May, 2009. 2 OA 437 of 2010

2. Precisely, the prosecution story which emerges from the record can be stated thus.

i)It is the prosecution case that the ‘ Bund Junction post’ is a sensitive post located on Indo-Pak international Border. Post Commander Nb Sub Kewal Singh was given orders regarding timing and location of an ambush at Devak Nala Uncut by Lt. Sudheer Babu.During roll call the accused petitioners Hav. Yash Paul alongwith Hav. Balraj Raj Singh and Nk Balbir Kumar were detailed for duty to lay ambush during the intervening night of 21/22 May, 2009 from 2200 hrs to 0100 hrs to prevent infiltration/ exfiltration of terrorists in J & K.

ii). Accused petitioner Hav. Yash Paul was the ambush party Commander. He was briefed about the impending task including ambush occupation drills, springing of ambush, radio signal signifying occupation of ambush site and actions to be taken during contingencies. There was no query or questions by the said ambush party to the post commander during briefing or before proceeding to ambush site.

iii). It is alleged that Hav. Yash Paul was having illicit affairs with the wife of a colleague of village ‘Barota Camp’, since the time both of them were posted in the ‘Dogra Regimental Centre’. Since then he was in touch with her and even met her on their way to Bund Junction post. Thus accused petitioners while on their way to the ambush point, planned to visit the house of the said lady at Barota Camp nurturing bad intentions. A villager while returning from nature’s call noticed them in the village in the compound of the lady and questioned their presence. On this Hav.Balraj Singh petitioner fled away from the spot and went towards Bund Junction Post but Nk Balbir Kumar was caught by the villagers and raised alarm, later Hav Yash Paul was also caught. They were disarmed and kept as captives inside the house of Lumbardar.

iv). Accused petitioner Hav. Balraj Singh who made an escape, was chased on the motor-cycle by the villagers. He came to the Camp and is alleged to have told the Sentry post Lance Hav. Chaman Lal that petitioner Balbir Kumar was caught by villagers, in the meantime he noticed Ex. Sarpanch Prem Paul, Ex Sub Rattan Lal and Ex. Hav Tilak Raj of village Barota Camp coming towards the post and made escape inside the camp. The aforesaid villagers narrated about the incident to Post Commander Nb Sub. Kewal Singh and admitted that Balbir Kumar was held as captive by them. They gave sequence of events in writing. PW 1 Nb Sub Kewal Singh had also enquired from sentry post. He informed that Hav Balraj Singh 3 OA 437 of 2010

Andorata had come back and that two others were caught in the village by the villagers. This fact was also confirmed by the villagers.

v). On this Naib Sub Kewal Singh called Balraj Singh petitioner and asked him about the incident. He told him that they had gone to the village at the instance of petitioner Yash Paul to meet his relative, thereafter they were to fall back to the ambush site.

vi). Thereafter PW Nb Sub Kewal Singh took petitioner Balraj Singh and one Nk Inderjit with him in ALS vehicle being driven by Hav. Anil Kumar followed by the civilians on their motor bikes to the said village.

vii). On reaching village, the villagers showed to Nb Sub Kewal Singh the place where the petitioners were first sighted near the house of lady and one of them was removing an electric bulb from outside her house while other two waited on the road. They also revealed that later petitioner Yash Paul was caught and brought to the village as captive. PW 1Nb Sub.Kewal Singh was, then taken to Ex Sarpanch’s house where petitionesr Yash Paul and Balbir Kumar were found standing without their weapons. Ex- Sarpanch told him that their weapons were kept safe in a separate locked room, so that they might not run away.

viii) The house was surrounded by 60/70 persons they were shouting to handover them to the police, as petitioners had no business to enter the village during late hours. Thus to appease them Nb Sub Kewal Singh shouted at the petitioners to calm down the gathering of men and women which worked. He also promised to take strict action on them at unit level. The villagers then assured that they would not to report the matter to the police and released the captive petitioners.

ix). Around 0230 hrs on 22.5.2009 PW Nb Sub Kewal Singh along with petitioners reached Bund Junction and called for a central fall-in and sought the verbal explanation of petitioners Balraj and Balbir, the purpose of visiting the village instead of doing the task assigned. But they including Yash Paul petitioner while accepting their fault pleaded to save them from the trouble as they were attending the promotion cadre also.

x) PW Kewal Singh aforesaid stated that Yash Paul petitioner during fall in also admitted that he had an affair with a lady of that village who had contacted him earlier on his mobile phone to meet her. Even on 21.5.2009, she met him in Vijaypur Market during the day time and 4 OA 437 of 2010

invited him during night. They also stated that they did not occupy the ambush sight but visited the village instead.

xi). Later Lt V. Sudheer Babu and Adjutant, Capt Shekhawat and Officating Adj. Maj NLS Yadav came to know about the incident. PW Lt. V. Sudheer Babu also interacted with the petitioners at evening time on 22.5.2009 as in the morning they had gone for the promotion cadre exam.

3. A Court of Inquiry (CoI) was conducted to investigatge the incident in question. During the COI, Yash Paul petitioner admitted having visited village Barota Camp as he knew a woman since 2004 and other two petitioners readily agreed to accompany him, but to avoid being caught petitioner Balbir Kumar removed the electric bulb from the compound. While Yash Paul proceeded further while handing over his weapon to Balbir Kumar but when they heard voices of villagers behind them, all of them had tried to escape. Other petitioners had also revealed the same story. Some more witnesses were also examined in their presence giving full chance of cross- examination to the petitioners. At the end, the COI indicted all the petitioners on the ground that they did not occupy the ambush site thus willfully defied the orders of post commander and further more that they tried to sneak into the house of a lady where they were caught, whereas PW Nb. Sub. Kewal Singh was indicted for having failed to inform his superior officers at forward area about the incident and gave a false morning OK report to Officiating Adjutant. The CoI recommended disciplinary action against all of them. All of them were accordingly marched before the CO for suitable disciplinary action.

4. A perusal of the record reveals that the CO afforded ample hearing to each of the petitioners and went through the record. After 5 OA 437 of 2010 complying with Rule 22 of the Army Rules, he ordered recording of

Summary of Evidence (SOE) on tentative charge(s) under Section

41(2) and 63 of the Army Act against each of them, in the presence of two independent witnesses. The accused petitioners were given opportunity to cross-examine the witnesses. Rule 23 of the Army Rules was extensively complied. Further an Addl.SOE was ordered to record statements of the villagers . The villagers also confirmed the fact of entry of the petitioners in the village and revealed that two of them were held captives but released on assurance of PW Nb.Sub. Kewal

Singh that action at unit level would be taken and the matter was thus not reported to the police.

5. After considering the evidence recorded during SOE and Addl.

SOE, the CO framed the charge(s) against each of the petitioners and issued an order convening the Summary Court Martial (SCM) against them.

6. The accused-petitioners were charge sheeted and arraigned as accused for the offence(s) as follows:

S.No. Name of the accused Charged under Date of Section arraignments 1 Hav. Yash Paul U/s 41 (2) and 17.12.2009 63 of the Army Act 2 Hav. Balbir Kumar U/s 41(2) of the 18.12.2009 Army Act 3 Hav. Balraj Singh U/s 41(2) of the 19.12.2009 Army Act

7. Copies of the charge sheet as well as summary of evidence and additional summary of evidence were supplied to the petitioners in the presence of independent witnesses, Sub Surinder Singh and Dharma

Chand but they did not append their signatures in token of receipt 6 OA 437 of 2010 thereof. All of them were given opportunity regarding representation by an officer as ‘friend of the accused’ in the presence of witnesses, but they refused to sign the said documents.

8. Accused-petitioner Yash Paul was informed vide letter dated 14.12.2009 by the Commanding Officer that he would be tried by the SCM i.e. 17.12.2009 (onwards 1000 hours) ; Balraj Singh, accused- petitioner on 18.12.2009 (onwards 1000 hours) and accused – petitioner Balbir Kumar on 19.12.2009 (onwards 1000 hours).

9. The prosecution examined the same set of witnesses against each to prove the charges against all the accused petitioners. Serial number of each of the witnesses examined are given in the tabulated form as follows:

In OAs Names of witnesses examined in each case. Case Name Lt.Sudheer N/Sub Kewal L/Hav N/C Accused No. Babu Singh Chama Inder n Lal Singh OA Yash Paul PW 6 PW 1 PW 3 PW 2 L/HBalraj 437-10 Petitioner Offg. Coy. Post Singh PW Commander Commander 4 L/H Balbir Kumar PW 5

OA434- Balraj Singh PW 1 PW 2 PW 4 PW 3 L/Hav 10 Petitioner Yash Paul PW 5 Balbir Kumar PW 5 OA Balbir PW 1 PW 6 PW 3 PW 2 L/H Yash 438-10 Kumar Paul PW Petitioner 4 Balbir Singh PW 5

10. The depositions of the aforesaid witnesses examined are almost same and verbatim in all the three cases. 7 OA 437 of 2010

11. The learned counsel for the petitioner has vehemently argued that the prosecution story is false, concocted and against the facts. He further submitted that even on critical examination of the entire evidence, no case against the petitioners is made out as the evidence is discrepant against the probabilities of defence led as correct and tried to highlight the points taken above.

12. To buttress the above points, the learned counsel for the petitioner during arguments cited following judgements:

i) Lt. Gen. Surendra Kumar Sahni v. Chief of Army Staff and others 2008 (1) SCT 461; ii) Vinod Kumar v. Union of India and others 1995 LIC 1114; iii) Chief of the Army Staff, Delhi and others v. MZH Khan 2007(3) SCT 378; iv) Natwar LOal Harjiwan Dass v. UOI and others 2004(2) SCT 551; v) UOI and others v. A.K.Pandey 2010(1) SCT 208; vi) Parmananda Pegu v. State of Assam 2004 SCC (Crl.) 2081; and vii) Harijana Thirupala and others v. Public Prosecutgor, High Court of A.P. Hyderabad 2002(6) SCC 470. 13. Contra, the learned counsel for the respondents vehemently argued that there is no infraction of any of the mandatory rules. The

Summary Court Martial has properly followed the procedure and that there is no procedural lapse. The accused petitioners were given proper opportunity to defend themselves but they deliberately either did not sign the statement or cross examined the witnesses. The defence raised now is thus an afterthought. A person of their choice was also appointed as their friend. Hav. Kuldip Kumar and his wife were not eye witnesses even if they have denied the incident or the civilians were not examined during the trial by the Court Martial as it 8 OA 437 of 2010 will not cause any dent in the prosecution case. The accused- petitioners belong to adjacent nearby villages from the place of incidence. They have accordingly maneuvered with the civilian witnesses, which have resulted in moving application(s) for recording their statements, after obtaining their affidavits by bringing them down to a particular statement, which is possibly procured on account of some terms and conditions/ negotiations. He also argued that it is not necessary for the prosecution to examine all the witnesses who were examined by SOI/ Addl. SOI but only the material witnesses were examined. It is not the number of the witnesses examined but it is the quality of the evidence to enable the

Court to reach to the truth. According to him, their views are also not deducible from the evidence on record nor has any dent been caused to the statement of independent and reliable witnesses. The probability of the defence has thus not been established. Therefore the conviction and sentence cannot be faulted with.

14. To appreciate the rival contentions, the following points arise for determination:

POINTS FOR DETERMINATION

Point No. 1.Whether the prosecution has been able to prove the case against each of the accused petitioner in accordance with law; Point No. 2.Whether there is any breach of any of the mandatory rules projected by the petitioners which vitiates the whole trial; and Point No. 3 Whether there is any ground to allow the application filed by the petitioners under Section 15 of the Armed Forces Tribunal Act, 2007 read with section 17 9 OA 437 of 2010

thereof for ordering the attendance and seeking the evidence of the civil witnesses mentioned therein. Point No.(1):-

15. To decide this point, we propose to reappraise the evidence on record. PW Lt V.Sudheer Babu testified that since 01.05.2009 he was performing the duty of Company Commander in the forward area, located at Koulpur post. According to him the area was vital and was likely infiltration route which was being kept in a state of high alert all the times. Koulpur post alongwith Bund junction post were the locations from where surveillance detachments, area domination patrol and ambushes were being sent out regularly. The important task which was carried out from these posts was the ambushes which were sent to cover the various gaps and un-cuts in the defences. He stated that on 21.5.2009, ‘Bund Junction post Commander’ Naib

Subedar Kewal Singh had called him at around 1945h to take orders for the night. He informed him that an ambush would be sent from

Bund Junction to ‘Devak Nala Uncut’ between 2000h to 0100h and at around 2210h, he informed that ambush point had been established.

In the morning at about 0820h he gave OK report and then PW 7 N/S

Kewal Singh informed that during the night the ambush party comprised of the accused petitioners instead of occupying the ambush site went to village Barota Camp where they were caught by the villagers. He also informed him that he had gone to the village and persuaded the villagers not to report the matter to the police and brought them back to the post. When he asked as to when did he came to know about the incident, he (PW Nb. Sub Kewal Singh) told 10 OA 437 of 2010 him at about 2355h on 21.5.2009. Lt. Sudheer Babu then immediately informed the Adjutant Capt DS Shekhawat and the officatintg Adjutant

Maj NLS Yadav about the said incident. In the morning, since the accused petitioners along with other persons had gone to Battalion

Headquarters at BD Bari for their promotion cadre exam therefore, he interacted with them in the evening of 22.5.2009. The accused petitioners told him that they were not knowing the exact location of the ambush site and accused petitioner L Hav Yash Paul insisted upon them, to meet his relative in the village Barota Camp and all the three accused petitioners accepted their mistake and requested to be pardoned.

16. Yash Paul and Balbir Kumar accused persons had declined to cross examine the witness. However, questions were put by the Court.

The PW 7 stated that he interacted with all the accused petitioners on

22.5.2009 evening and L. Hav Yash Paul had mentioned that he wanted to meet a lady in the village so he went to the village instead of occupying the ambush site. The said accused confessed to his mistake and requested to be pardoned. To a court question he also made a similar statement stating that Balbir Kumar said ‘HUM SE

GALTI HO GAI. SAHEEB HUM GARIB ADMI HAY HAME MAFF KAR DO.”.

17. Whereas Balraj Singh had cross examined the witness and Lt.

Sudheer Babu (PW) stated that accused Yash Paul and Balbir Singh were caught by the civilians in the village, but he (Balraj Singh) had managed to escape and reported back to the post. Lt. Sudheer Babu did not know the names of the civilians, but to Court in response to 11 OA 437 of 2010 question (No. 5) he stated that he also visited the village on 22.5.2009 with Sub Maj Mohar Singh and Nb Sub Kewal Singh and had interacted with the villagers. They met Lambardar who had shown him the house of lady where two of the accused persons were moving suspiciously on the road and one of the three was trying to remove electric bulb at the point of the entrance of the house. According to him, the accused Balraj Singh had also accepted his mistake and instead of going to the ambush point they had gone to village as accused Yash Paul had told him that he wanted to meet a lady in the village. Even the said accused had re-examined him and he then again clarified that he had accepted the mistake and gave the statement to him in the evening on 22.5.2009 during his interaction with him and stated all of them pleaded to be pardoned.

18. In the sequence PW Nb Sub Kewal Singh becomes an important witness. He corroborated the prosecution version though

COI had also indicted them. While corroborating with Lt. Sudheer

Babu, he stated that on 21.5.2009 at 1945h in the evening, he gave

Okay report of the Bund Junction post to Lt. Sudheer Babu P, the forward Company Commander at Koulpur post who gave the location of ambush at Devak Nala uncut and the time for laying of ambush from 2200h to 0100h. He took the roll call of all the individuals of the post wherein he detailed various personnel for the assigned duties.

They were informed about the ambush timings at the place where it was to be put. He had already briefed all the individuals in the post about the various drills to be followed during the ambush. Around 12 OA 437 of 2010

2000h he got the pre-decided signal on his RS VPS Mk III by the ambush party commander (Yash Paul) signifying for the ambush in location. Thereafter he gave the report to PW Lt. Sudheer Babu P about the occupation of the ambush at Devak Nala uncut. The ambush party, as already stated above, was supposed to be on duty till 0100 hrs but before that Balraj Singh, accused petitioner, had come back to the Post and around 2350h, the sentry of the post L Hav

Chaman Lal reported to Nb. Sub. Kewal Singh, that Lambardar and two other civilians from village Barota Camp have came to meet him and they revealed that two men of post had been caught in the village whereas one accused had managed to escape back to the post. N/

Sub Kewal Singh met Lambardar who had enquired from him if any of his troops were outside the post then he revealed that few personnel were out on ambush. It was thereafter Lambardar told that two of the ambush party had been caught in the village Barota Camp and accused Balraj Singh had fled back to the post and told him to accompany him to the village immediately to control the situation and also take Balraj Singh alongwith. PW L Hav Chaman Lal , on enquiry, revealed that Balraj Singh had just returned before the arrival of these civilians. He called Balraj Singh and asked the reason and purpose of visiting the village. He revealed that at the insistance of Yash Paul they went to the village to meet his relative and said that after meeting his relatives they will fall back to the ambush site. He asked why any of them did not resist and if any one of them had reported back this could have been avoided but L Hav Balraj Singh observed silence, 13 OA 437 of 2010 which shows his conduct and guilt. Thereafter Nb Sub Kewal Singh took accused Balraj Singh and PW Inderjit to the village in an ALS vehicle. The civilians had followed them on motorcycle. The

Lambardar took him to the spot where the accused petitioners were seen in suspicious circumstances and while one of them was removing the electric bulb the other two were waiting on the road from where the two were caught later while and one of them ran away. Thereafter he was taken to the house of Lambardar where Yash Paul and Balbir

Kumar were standing without their weapons. Lambardar informed that the weapons were safe and were kept in a separate locked room so that the culprits do not run away. He further stated that there were about 60-70 persons including the ladies. They started shouting for handing them over to the police for severe punishment as they had no business to enter in the village at such a late hour in the night.

Nb/Sub Kewal Singh stated that to appease them, he shouted at the accused persons in front of the villagers and it really worked as the villagers told him that despite being of same DOGRA caste how can they commit such an act. He promised them that strict disciplinary action will be taken against the accused persons at the unit level and after some persuasion they agreed to leave the three accused and assured that the matter will not be reported to the police. It is important to note that when around 0230h on 22.5.2009 Nb Sub

Kewal Singh reported back to Bund Junction post along with all the three accused petitioners and called for a central fall-in and asked each of the accused persons as to why they had gone to village Barota 14 OA 437 of 2010

Camp when they were tasked to lay ambush at Devak Nala Uncut . All the three accepted their fault and pleaded to save them from this trouble as they were attending promotion cadre also. The accused L

Hav Yash Paul had revealed to him in the presence of the persons present in the fall that he had an affair with a lady of village Barota

Camp since the time of his tenure at Dogra Regimental Centre, he also disclosed the name of her husband posted in 16 DOGRA and also revealed that the lady had contacted him on mobile a few days back requesting to meet him on 21.5.2009 and she also met him at Vijaypur

Market while returning from Bari Brahmana in the evening.

Significantly PW Kewal Singh testified that L Hav Balraj Singh Andotra had revealed to him that they had not occupied the ambush site and instead went to village Barota Camp only at the insistence of accused L

Hav Yash Paul. They had admitted their mistake and requested to be pardoned and promised not to repeat this kind of act in future. This is another circumstance weighing against the accused petitioners.

19. In Cross-examination, the accused Yash Paul declined to cross- examine the witnesses. To a Court question, Nb Sub Kewal Singh stated that the accused had confirmed that the ambush was in location as per a pre decided signal. To another question, he reiterated that the villagers felt offended as one of the members of the ambush party was seen removing the bulb from the house while others were waiting on the road during the night.

20. Accused Balraj Singh had cross examined this witnesses. He had confronted the witnesses for giving a wrong statement in that he 15 OA 437 of 2010 stated that he was chasing the civilian who had been spotted at the ambush site. To this question, the said witness flatly denied having given any such statement that they were chasing a civilian which according to him could be confirmed from the proceedings of COI as well as SOE where no such defence was raised. It is also pertinent to note that this story was not projected by any of the accused in the earlier aforesaid proceedings. Further, this witness has also stated that the accused persons had visited the village with wrong intentions and now when they were caught they have twisted the story of the whole incident . It was reiterated that all of them had confessed their guilt in the presence of the villagers at the Bund Junction post after coming back from village Barota Camp.

21. Accused petitioner Balbir Kumar had also cross examined the witnesses and Nb Sub Kewal Singh confirmed that he had also accepted his mistake and requested to be pardoned.

22. L/Hav Chaman Lal is again a significant witness in so far as the timing of arrival of Balraj Singh accused, followed by civilian at Bund post is concerned. On 21.5.2009 during roll call at about 1930-1945h he was assigned the sentry duty at Bund Junction post from 2330h to

0230h. When he took over duty from Nk Kuldip Singh of B Coy he was briefed that relief for surveillance detachment at LORROS point to be woken up at 2350h and the ambush which had gone to Devak Nala

Uncut would return around 0115h ( 22.5.2009). According to him, around 2355h he saw a person coming towards the post, on challenging him he disclosed that he was L Hav Balraj Singh . When he 16 OA 437 of 2010 enquired to as to why the ambush had come an hour early and where the other two individuals were. Initially, he gave no reply but lateron he told that the other two accused had been caught by the villagers.

By then, a motorcycle with three civilians on it came towards the post and on seeing them, the accused L Hav Balraj Singh Andotra who was taking to this witness, ran away inside the living barrack. His statement proves two material facts. Firstly, that Balraj Singh had returned to the post at the time when he alongwith other co-accused should have been at the ambush point and secondly, on seeing the villagers while speaking to this witness he escaped, is a relevant evidence about his conduct. Further, when the aforesaid witness had stopped the motorcyclists and enquired from them, he was informed that one of them was Lambardar of village Barota and also revealed that two of their unit soldiers had been caught in the village while the third have escaped towards the post. They requested him to call the post commander immediately. This is a material fact when Nb Sub

Kewal Singh was informed by them that two persons of the party were caught in the village while the third one had escaped towards the post, Nb Sub Kewal Singh sent for L/Hav Balraj Singh Andotra who also stated the same thing.

23. Again, accused-petitioners Yash Paul and Balraj Singh both did not dispute this version in cross examination.

24. Nk Inderjit is yet another prosecution witness who affords corroboration to the prosecution story. He stated that on 21.5.2009 he was detailed for duty from 2000h to 0001h at LORROS point. On 17 OA 437 of 2010 being relieved from duty at 0001h when he came to the Bund Junction post he found Naib Subedar Kewal Singh standing outside along with three civilians and PW L Hav Chaman Lal who was on sentry duty.

Nb.Sub. Kewal Singh asked him to accompany him in his ALS vehicle for going to the village as per directions. He also stated the same story about the captivity of the two members of the ambush party and the third member having escaped as revealed to him immediately on the spot. On reaching the village he stated the same story as revealed by

Nb Sub Kewal Singh. He further stated that accused Yash Paul and

Balbir Kumar were standing without weapons in the house of

Lambardar. He also stated that both of them had pleaded to be pardoned.

25. Yash Paul and Balbir Kumar accused did not cross examine him but Balraj Singh did cross examine him. Here, for the first time he put the suggestion that he had gone to village Barota Camp to chase a civilian whereas the witness was making a different statement now and asked as to why he was stating so. The witness clarified that

Balbir accused had stated that on the insistence of Yash Paul, accused, to meet his relative, he accompanied him instead of occupying the ambush site as stated by him at the spot and not as suggested.

26. As already stated above that each of the accused persons were examined as prosecution witnesses too, against one another. They had tried to make out a case in their statements which was not initially stated by them during the COI. But this defence appears to be an afterthought since this did not surface at the earliest time of fact 18 OA 437 of 2010 finding enquiry nor initially at the time of recording of SOE/ or Addl.

SOE. At the close of the prosecution evidence, all three accused persons projected a similar story, when they appeared as a witness during court martial in the case of each other where they stated that

4/5 civilians who were standing outside had asked them to show their identity card when they were chasing a civilian and also asked why they were running behind the civilian who had gone to look after his muskmelon field. They detained two of them and tried to contact their post commander but could not get through, so the Lambardar himself with two other civilians went to call the post Commander and later left us to go back to the post with the post commander. Here the frivolity of their defence is caught. If their statement is correct then why Balraj Singh accused had run away from the spot, rather he would have accompanied the civilian to confirm the fact and further when he reached the post on seeing the civilian he ran away inside the barracks over rules their innocence and probability of defence raised.

27. Further when Yash Paul, accused was examined under Rule 180 of the Army Rules he denied having any affair with the lady in the village aforesaid.

28. After re-appraisal of the entire evidence, we do not find any force in their appeals on merit. Hence, we find the answer to Point

No.1 in the affirmative that the case against each of the accused petitioner stands proved in accordance with the law.

19 OA 437 of 2010

Point No.2.

LEGAL POINTS RAISED

Sub Points:

a) the COI was conducted in violation of Army Rules 180; b) Army Rule 22 was not carried out by the CO properly; c)True version of the petitioner was not recorded during SOE; d) The order of ambush was not being capable of being carried out by only three individuals as the task was required to be done by atleast a Section (10 soldiers) strength. Thus it was not a lawful command within the meaning of Section 41(2) of the Army Act; e) Mandate of Section 41 of the Army Act do not permit joint charge for disobedience of orders as collective, disobedience is construed as mutiny. f) None of the villagers had supported the prosecution case; g) There was no compliance of Army Rule 33 read with Army Rule 129 and Rule 33(7) and 34(2). h) Hav Kuldeep Kumar and his wife have denied the incident of Barota Camp in Addl. SOE; whereas the villagers havealso stated in favour of the petitioner in Addl. SOE. Therefore, the charges framed against the petitioner, based on the contrary evidence is wrong and illegal.

Sub Point (a)

29. Whether there has been any violation of Rule 180 while conducting COI. In Lt. Gen. Surendra Kumar Sahni’s case (supra) the

Hon’ble High Court of Delhi had held that the provisions of Rule 180 are mandatory. Its compliance is obligatory on the part of the authority and onus does not lie on the delinquent asking for its protection. In that case, the petitioner was neither allowed the cross examination of the witnesses nor to lead any defence evidence. Such a violation of protection under Rule 180 was held to be a prejudicial to the delinquent vitiating the proceedings itself. In the case in hand , the COI examined 7 witnesses. The accused petitioners were afforded opportunity to cross examine each of the witnesses, but they opted for few but declined for others. Pertinently PW 1 Yash Paul was cross 20 OA 437 of 2010 examined by the accused petitioners Balraj Singh and Balbir Kumar whereas PW 2 accused petitioner Balraj Singh was cross examined by accused Balbir Kumar and Yashpal declined to cross examine the witness Balbir Kumar accused petitioner. His cross examination was also declined by accused petitioners Yash Paul and Balraj Singh. PW 4

Kewal Singh, PW 6 Inderjit Singh and PW 7 Chaman Lal were not cross examined by any of the accused petitioners despite the opportunity having been given to each of them and the accused petitioners strategically also did not append their signatures on their statements and there is also no imputation to the officer conducting COI or to any of the independent witnesses that the case was foisted upon the accused petitioners to grind their own axe. When the proper opportunity was afforded during the COI to satisfy the provisions of

Rule 180 which were not availed by the accused- petitioners, it cannot be then said that there was any violation of Army Rule 180.

Sub Point (b):

30. We now examine whether there has been proper compliance of Army Rule 22 which deals with ‘the hearing of the charge’. As a matter of fact, the charge against the accused petitioner had arisen as a result of investigation by the COI wherein the provisions of Rule 180 have been complied with in respect of each of the accused petitioners.

The perusal of the record of the proceedings before the Commanding

Officer conducted under Army Rule 22 shows that calling and hearing of the witnesses in terms of Rule 22(1) were dispensed with since the provisions of Rule 180 were complied with in respect of each of the 21 OA 437 of 2010 accused petitioners. The record also reveals that the CO had applied his mind and in his opinion he decided to proceed with the matter in accordance with the provisions of Sub Rule (3) of Rule 22 and thereafter ordered for recording the SOE as also Addl. SOE. Thus, we do not find any infraction of this Rule.

Sub Point ( c ):

31. The learned counsel for the petitioner next argued that true version of the petitioner was not recorded during SOE and there has been non compliance of this mandatory provision which vitiates the trial. We have also examined this point.

32. Rule 23 of the Army Rules provides a procedure for taking of

SOE. The statements of the witnesses were infact taken down in their presence and hearing of the accused petitioners, before the competent officer as directed by the CO. An opportunity was afforded to cross- examine the accused petitioners but they did not cross examine the witnesses, as already stated above. After the evidence against the accused petitioners was recorded in each of their cases, the accused petitioners were afforded an opportunity to make their statements if they so wish and infact they got recorded their statements in the presence of the independent witnesses but again strategically they did not sign it. They were also afforded opportunity to produce their defence witnesses. Copies of the entire proceedings were provided to them but they did not even sign in token of receipt thereof, as revealed from the record. It was thereafter, after considering the entire record and the evidence so given in SOE, orders for SCM were given. We 22 OA 437 of 2010 also do not find any infraction of Rule 23 and also that the true version of the accused petitioners was not recorded, as amply discussed above.

Sub Point (d)

33. It is next ventilated by the learned counsel for the petitioners that the order of ambush was not being capable of being executed by three individuals whereas the task was required to be done by at least a

Section (10 Soldiers) strength. Thus it was not a ‘lawful command’ within the meaning of Section 41(2) of the Army Act.

34. Section 41(1) of the Army Act deals with disobedience to superior officer. It reads as under:

“41. Disobedience to superior officer.- (1) Any person subject to this Act who disobeys in such manner as to show a willful defiance of the authority any lawful command given personally by his superior officer in the execution of his office whether the same is given orally, or in writing or by signal or otherwise, shall, on conviction by Court- Martial, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned. 35. Whereas sub section (2) of Section 41 provides punishment, if any person subject to this Act who disobeys any lawful command given by his superior officer shall, on conviction by Court Martial, If he commits such offence when on active service, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned.

36. Now the question arises what is ‘lawful command’ as used in the Section ?. In our opinion it is disobedience/ resistance of order not prohibited by law. In the military service , in an emergent situation and with the limited resources, ideal and laid down standards cannot always be adhered to. Therefore, any command which is not against the 23 OA 437 of 2010 military interest in protecting the nation and is required to be executed in all respects irrespective of the number of personnel, would not become an unlawful command. Therefore, the task of ambush which was required to be done only to check ingress or outgress of the intruders/ infiltrations by the accused persons cannot be said to be an an unlawful command just for want of required number of soldiers and that its defiance cannot be punishable under Section 41(2) of the Act.

Each and every member assigned with the duty is responsible for its defiance. Vinod Kumar’s case (supra) of High Court of Jammu and

Kashmir relied upon by the petitioners counsel is on a different premise, where the delinquent had refused to sign the dismissal order when was a void abinito , therefore the petitioner was held not liable to be punished under this section. This judgement by no analogy can be applied in the present set of facts because there was a lawful command to the accused petitioners to check ingress and outgress of the infiltrators intruders in the Indian Territory and none of the higher military authorities have held it to be unlawful. The JCO Nb Sub

Kewal Singh had already explained all the requirements during roll call on the orders having been received from his superiors. The accused petitioners did not object to their less numerical strength nor raise any other question to clear the doubts. Therefore, the Command so issued is lawful and was passed over to be executed. Its infraction has penal consequences. Therefore, this point is also rejected.

Sub Point (e)

37. The learned counsel for the petitioner also argued that Section 41 of the Army Act do not permit joint charge for disobedience of orders as collective disobedience is construed as ‘mutiny’. This point has been 24 OA 437 of 2010 taken only to be rejected because there is no joint charge against any of the accused petitioners and all of them were independently charge sheeted and tried by the Court Martial. They are individually responsible for ‘its defiance’ .

Sub Point (f)

38. It is also ventilated that none of the villagers had supported the prosecution case during Addl. SOE, therefore their non examination is fatal as they would have unfolded the story favourable to the accused persons. While appreciating this point, we do not agree to it. The civilians during their examination in SOE have stated against the accused persons. They proved the fact of entry of accused petitioners in the village in the odd hours of the night and they had noticed one of them removing the electric bulb from outside the house while two others were waiting nearby. It was not in the task of the accused petitioners to go to that extent in the village if they were just chasing a civilian. Otherwise, too their non- examination during SCM is of no consequence.

Sub point (g)

39. It is next argued that there was non compliance of Army Rule 33 read with Army Rule 129 read with Rule 33and 34(2).

40. We have examined this aspect of the case also. Army Rule 33 inter-alia provides the right of accused to prepare his defence. Copies of the entire proceedings were supplied to the accused petitioners as is evident from the record though the accused petitioners refused to sign in token of its receipt. None of the accused petitioners at that time pointed out any of the witnesses to whom they wish to call in defence nor any list of such witnesses was ever supplied. They were also 25 OA 437 of 2010 supplied with the copies of SOE alongwith copy of the charge sheet and there has also been compliance of provisions of Rule 34(2). They were also provided ‘Friend of the accused’, Capt Manoj D. Dabriyal who was to assist them during trial. The judgement in MZH Khan’s case (supra) of the Hon’ble Allahabad High Court is also not applicable in the background of the present case. No statutory right was denied to the accused petitioner. Even friend of the accused was properly appointed to which the accused persons did not object and further we also do not find violation of any other rule.

41. Further there is also no violation of Rule 33(7) of the Rules as adequate time of 96 hours was afforded to the accused petitioners after their remand for trial. The accused petitioners were charge sheeted on

7.12.2009 and they were arraigned as accused persons on 17, 18 and

19.12.2009 and thus they were given time of more than 96 hours.

Therefore, judgement in A.K.Pandey’s case (supra) is not attracted in the present set of facts.

42. Further the authority had served the charge sheet on accused persons and had commenced the proceedings after affording due opportunity as aforesaid. Hence, there was no haste in taking action violating the principles of natural justice. As such the judgement in the case of Natwar Lal Harjiwan Das (supra) is also not attracted in the present set of facts. Therefore, the argument advanced by the learned counsel for the petitioner that there was non compliance of Rule 33 read with Rules 129 and 33(7) and 34(2) of the Army Rules is not made out from the record nor any material prejudice has been caused to them, as such all these points are rejected.

26 OA 437 of 2010

Sub point (h)

43. Lastly, it is argued that Hav Kuldeep Kumar and his wife have denied the incident whereas now the villagers have also stated in favour of the accused petitioners in SOE and therefore the charges framed against the accused petitioners are not proved beyond doubt on the strength of the aforesaid evidence during SCM.

44. We have also carefully considered this argument. Hav. Kuldeep

Kumar was not on the spot in the village on the date of the alleged incident. Further, his wife, who was allegedly involved with the accused petitioner Yash Paul had denied the incident then. In that event it is of no significance because perusal of the record shows that they have made a statement during SOE that nobody on the alleged day of incident entered their house nor there is theft of any property.

Further, the villagers namely PW 8 Prem Pal, Ex Sarpanch, PW 9 Ex

Subedar Rattan Lal, PW 10 Desh Raj, Lambardar, PW 11 Milkhi Ram and PW 12 Sub Maj Mohar Singh who simply stated that the accused persons were seen in suspicious circumstances in the village in military uniform and one of them was trying the remove the electric blub from the entry to the house of Kuldeep Kumar, while two of them were detained and the third one escaped. The accused persons also declined to cross examine them in the presence of the independent witnesses.

The Recording Officer had certified at the conclusion of each of the witness that as per terms of Army Rule 23, the statement of each of the prosecution witness was read over to the accused petitioners in the language they understand but they declined to sign the statement in the presence of independent witnesses. Therefore, it cannot be said that 27 OA 437 of 2010 during Addl. SOE, the civil witnesses had made any statement in favour of the accused petitioners.

45. Besides above, it is also argued by the learned counsel for the petitioners that if two views are possible from the evidence adduced in the case, one indicating the guilt of the accused and the other their innocence the view favourable to the accused has to be accepted in view of the judgement of the Apex Court in Harijana Thirupala and others’ case (supra).

46. There is no dispute to this proposition. But on scrutiny of the evidence against the accused petitioners we find that apart from the accused petitioners who had appeared against each other as prosecution witnesses, have tried to favour each other at the fear of their indictment for the offence charged. In so far as the independent witnesses are concerned, they have unequivocally deposed against them without any contradiction . In these circumstances it cannot be said that two views are possible from the evidence adduced against the accused petitioners

47. On the scrutiny of record, we also find that when the ambush was required to be laid by the accused persons on the intervening night of 21/22 May, 2009 from 2200 h to 0100h, they were not on their duty post rather they visited the village Barota Camp with an ulterior motive at the instance of one of the accused persons, namely

Yash Paul, where two of them were caught and Balraj Singh managed to escape. The captivitist were disarmed by the villagers while Balraj

Singh returned to the post ahead of the time of the ambush, whereas two others were in the custody of the villagers. Pertinently, at that of 28 OA 437 of 2010 time, where and when they were required to guard against the infiltrators/ intruders at the spot, it was left without a guard. They did not give any radio signal to the superior officer when they spotted a civilian who on challenge had run-away. The the accused petitioners had also pleaded to be pardoned for their mistake. Even the circumstances on the record proves that from the beginning till termination of trial by the Court Martial, the accused petitioners strategically either did not sign any of their statements or did not append signatures in token of the documents supplied to them. At an earlier point of time they had stated that when COI and SOE were recorded, they were caught by the villagers when they were chasing a civilian. The defence so taken is an afterthought which is rejected.

Point No. 3

M.As. FOR RECORDING EVIDENCE BY THE TRIBUNAL

48. In each of the petitions aforesaid all the petitioners have also moved an application through their counsel under Section 15 of the

Armed Forces Tribunal Act, 2007 read with Section 17 thereof for ordering attendance and receiving evidence of witnesses of the village namely Prem Pal, Sham Lal, Des Raj and Gulshan Kumari w/o Hav.

Kuldeep Singh, which according to the petitioners is essential for the adjudication of the case.

49. The perusal of record of OA shows that the witnesses which are sought to be examined before this Tribunal were won over. Their affidavits were procured after about 10 months of the alleged incident i.e. on 9.3.2010 and 12.3.2010 whereas the incident had taken place during the night intervening 21/22.5.2009. It is also evident from the 29 OA 437 of 2010 record that the accused petitioners belong to the same fraternity as that of the proposed witnesses sought to be examined and are belonging to the nearby village or adjacent district of the accused petitioners.

Although Section 17 (c ) of the Armed Forces Tribunal Act, 2007 empowers the Tribunal to receive evidence while hearing an appeal under Section 15, but in the given facts and circumstances of this case it will be an exercise in futility only for the reasons that the said witnesses now appear to have nurtured sympathy against the accused persons being the persons from their fraternity and even resident of near villages and adjacent district. Hence, all these MAs are dismissed.

FINAL ORDER

50. For the aforestated reasons, in our considered opinion and keeping in view the established and duly proved facts, dispassionately sifting the evidence, we do not find any legal or factual error in the conviction of the accused petitioners for the offences charged. Their charges are proved beyond a reasonable doubt. However, we have considered the punishments awarded in the light of the fact that the accused petitioners were in the prime of their youth, they were L/Havs and were there at Bund Junction Post in the field, undergoing their promotion cadre/ test. All of them had already completed 15 years of service with exemplary service record . We, therefore, feel that the ends of justice would be met adequately, in that, while maintaining the sentence of reduction in ranks, their dismissal is ordered to be converted into discharge with all consequential benefits flowing there from.

51. Therefore, all three OAs are dismissed as they sans merit subject to the above modifications in sentence. Ordered accordingly. 30 OA 437 of 2010

52. Let an authenticated copy of this judgement be placed on the file of connected appeals.

53. SCM record be returned to the Incharge legal cell against proper receipt.

(Justice Surinder Singh Thakur)

(Lt Gen (Retd) Sanjiv Chachra) 24.2.2016 okg

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