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2015 DIGILAW 669 (JK)

Union of India v. Prithvi Singh

2015-12-15

BANSI LAL BHAT, N.PAUL VASANTHA KUMAR

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JUDGMENT : Bansi Lal Bhat, J. 1. Respondents-Om Prakash and Gajinder Singh died during the pendency of appeal and appeal against them was allowed to abate. The instant appeal survives only against respondent-Prithvi Singh on whose behalf it is contended that the civil consequences ensuing from the abatement of appeal against respondent-Om Prakash and Gajinder Singh would not permit interference with the impugned judgment rendered by the learned writ Court, by virtue whereof the order of conviction and consequently order of dismissal stand quashed. It is further contended on behalf of lone surviving respondent-Prithvi Singh that since the findings of General Court Martial are laconic and record has been destroyed in May, 2009 as reported by learned counsel for the appellant, therefore, this Court would not be able to scan the evidence and take a view different from the one taken by the learned writ Court. 2. Heard learned counsel for the parties and perused the record of writ Court. 3. The three respondents together with one Ram Avtar were tried before the Summary General Court Martial (for brevity "GCM") on the charges of gang-rape punishable under Section 376(2)(g) read with Section 34 of Indian Penal Code. The respondents were convicted and sentenced to suffer rigorous imprisonment for 10 years and dismissal from service. Trial of respondents culminating in their conviction and passing of sentence was held at Arunachal Pradesh, but on account of respondents being the residents of J&K, they were committed to undergo their sentence in Civil Jail viz.-Central Jail, Jammu. Respondents assailed their conviction and sentence by filing OWP Nos. 354/1998 and 427/1998, which were heard together and disposed of by a common judgment rendered on 30.03.2001 which has been assailed in the instant appeal. The learned writ Court allowed the writ petitions by holding that the GCM while passing the order of conviction and sentence has not taken note of judicial precedents and has not applied proper parameters in recording finding of guilty against the respondents. 4. Allegedly, on 13th April, 1995 respondents, while on active service at Yongchik Army Post, District Changlang committed gang-rape with prosecutrix identified as Miss Phuleshwari Basumatari. This act of commission was found to be an act prejudicial to good order and military discipline covered under Section 63 of the Army Act. 5. 4. Allegedly, on 13th April, 1995 respondents, while on active service at Yongchik Army Post, District Changlang committed gang-rape with prosecutrix identified as Miss Phuleshwari Basumatari. This act of commission was found to be an act prejudicial to good order and military discipline covered under Section 63 of the Army Act. 5. The prosecutrix testified at the trial, that she accompanied by one person, namely, Marpe Basar was going on the road and on reaching at Helipad near Yongchik Post, an army vehicle reached there and the respondents offered them a lift. Prosecutrix was offered seat in the cabin of driver. Respondent-Prithvi Singh was driving the vehicle and three army jawans were also sitting in the driver's Cabin, Marpe Basar was offered seat in the body of the vehicle. The vehicle came to a halt all of a sudden and prosecutrix was taken before the post Commander at Yongchik post who scolded the respondents. She was offered food, but she refused the same. The post commander inquired from prosecutrix whether respondents had mis-behaved with her. She replied in negative out of fear and shame though the respondents had mis-behaved with her in the vehicle. She was offered rum and she had only a sip, but she did not take the food. After subjecting her to questioning the post Commander asked respondent-Om parkash to leave her at the house of Nand Lal Gwala. She was taken by respondent-Om Parkash out of the post while other respondents and few other Army Personnel were following her. At the main compound gate of Nand Lal Gwala's house respondent-Prithvi Singh lifted her on his shoulders while others gagged her mouth. She was carried towards the main road behind bushes, where she was thrown on the ground and sexually assaulted by the respondents repeatedly. Thereafter she was taken to the house of Nand Lal Gwala where she collapsed. On 14.04.1995 she went to the Post Commander who persuaded her not to lodge report with police and offered her Rs. 50/- and was asked to go back to the house of Marpe Basar, who refused to provide her shelter. She went to the house of Nand Lal Gwala and Mrs. Sarla Gwala. Thereafter they went to the police station where a complaint was lodged. Prosecutrix was medically examined and her under-wear was seized. 6. 50/- and was asked to go back to the house of Marpe Basar, who refused to provide her shelter. She went to the house of Nand Lal Gwala and Mrs. Sarla Gwala. Thereafter they went to the police station where a complaint was lodged. Prosecutrix was medically examined and her under-wear was seized. 6. In cross-examination prosecutrix has been confronted with her previous statement wherein she had stated that she had told the police that she was well treated by the Army, but on being abused and threatened by the Police, she disclosed the incident before them. 7. The learned writ Court has undertaken an exercise of re-evaluation of prosecution evidence tendered at the trial. Noticing scope of interference permissible under Article 226 and 227 of the Constitution of India, the writ Court was of the view that the Constitutional supervisory power was indefinite in character and unlimited in extent and designed to prevent and correct errors and abuses committed by the authorities. The writ Court noticed that the prosecutrix was having a disturbed family life. She had left her house and wanted to work as a maid-servant. One Vijay brought her to the house of Nand Lal Gwala. However, on 11.04.1995 police party arrived there and took her away. She was given a beating. Prosecutrix came to the house of Nand Lal Gwala on the next day for collecting her clothes. PW Nand Lal learnt at that time that the prosecutrix had suffered sexual assault as she was crying and was not in a position to move around. On the next day, Post Commander visited the prosecutrix and offered her a sum of Rs. 50/-. Then they went to market where police took the prosecutrix to police Station. Learned writ Court noticed the testimony of Sarla Gwala who had stated in her re-trial statement that the prosecutrix was apparently fine and normal. Learned writ Court also took note of the re-trial statement of prosecutrix, wherein she had stated that the police had abused and threatened her though she continued to tell them that she was well treated by the Army personnel. PW Nand Lal Gwala stated that he could not comment on the physical condition of the prosecutrix. The learned writ Court further noticed that the men on duty at the post had shown their ignorance about any such occurrence on 13.4.1995. PW Nand Lal Gwala stated that he could not comment on the physical condition of the prosecutrix. The learned writ Court further noticed that the men on duty at the post had shown their ignorance about any such occurrence on 13.4.1995. The Post Commander had not found anything unusual. The writ Court also noticed that the medical evidence did not support the charge of rape. The writ Court was of the view that the charge of rape was not supported by the prosecutrix herself and even by PW Sarla Gwala in whose house prosecutrix had sought shelter immediately after the alleged occurrence. Learned writ Court was also of the view that the re-trial statement of prosecutrix did not implicate any one. Learned writ Court arrived at the conclusion that the GCM had recorded the conviction of respondents without taking note of judicial precedents and had failed to apply proper parameters. 8. It is well settled that a prosecutrix in a rape case is the victim of crime and not an accomplice. Her uncorroborated testimony if found reliable and capable of implicit faith being reposed therein, can form the basis for recording conviction of accused. Assurance short of corroboration would suffice to act upon the testimony of prosecutrix inspiring confidence, To determine whether these settled propositions of law have been applied by the trial Court and whether it was a case of no evidence, perusal of the record was considered imperative. It emanates from interim order dated 3rd December, 2013 passed in instant appeal that this Court has noticed the submissions of learned counsel for the respondents that the record of Court Martial would be necessary for perusal, because the findings are laconic. Minutes of proceedings on record bear testimony to the fact that despite availing numerous opportunities, learned counsel for the appellant failed to produce the record and finally came forward with a letter dated 17.11.2015 stating that the original files in connection with the case were destroyed during May, 2009 and the same are not available. Therefore, it would not be appropriate to overturn the findings of the writ Court as the opportunity to go through the original record of GCM which recorded the conviction and sentence, is no more available. Whether the evidence has been appreciated correctly and properly and whether the conclusion arrived at is justified on evidence can only be determined on examination of the record. Whether the evidence has been appreciated correctly and properly and whether the conclusion arrived at is justified on evidence can only be determined on examination of the record. Same being not available, it would neither be appropriate nor legally warranted to reverse the findings recorded by the learned writ court, even if, it is assumed that a correct approach has not been adopted in undertaking re-appraisal of evidence which was the domain of an Appellate Forum. 9. Now coming to the net effect of abatement of the appeals as regards deceased respondents-Om Prakash and Gajinder Singh, be it seen, that the families of both would be entitled to pensionary benefits of the deceased-respondents and also to the family pension admissible under rules. Learned counsel for the surviving respondent-Prithvi Singh has produced a certified copy of order dated 24.07.2012 passed in MP No. 72/2013 (in Contempt D-247/2011) to demonstrate that Ordinary Family Pension has been sanctioned in favour of Kanta Devi widow of the deceased-respondent-Om Prakash in terms of judgment dated 30.05.2011 rendered in SWP No. 2264/2002. The order also records assurance of learned CGSC that the amount by way of arrears and further ordinary family pension shall be released in favour of the widow and children of deceased-respondent-Om Prakash. What, therefore, stares us in the face is that lone surviving respondent-Prithvi Singh would be singled out to suffer punishment and as a squeal to his dismissal from service forfeit all pensionary benefits including the benefits of family pension available to his family after his death. This would lead to a piquant situation. It would be a travesty of justice to compel the sole surviving convict to suffer penal consequences for an alleged group crime when the families of other two co-convicts are allowed to reap the benefits of writ court judgment and the appellant is unable to produce the trial court record. For the aforesaid reasons, we are of the considered opinion that the instant appeal is devoid of merit. Appeal is, accordingly, dismissed.