Factual aspect
Respondent tried and convicted by General Court Martial under section 302 r/w 149 IPC but acquitted by Armed Forces Tribunal
1. The respondent, along with four other officers of the Air Force, were tried by a General Court Martial (for short ‘GCM’) for various offences. The first charge was of committing an offence punishable under Section 302, read with Section 149 of the Indian Penal Code (for short ‘IPC’). The second charge in the alternative was of the commission of offence punishable under Section 302 of IPC. There was also a charge of the commission of offences punishable under Sections 325 and 342, read with Section 149 of IPC. There was also a charge of indulging in unbecoming conduct and committing acts prejudicial to good order. Thus, there were charges under Section 45 (Unbecoming conduct), Section 65 (committing an act prejudicial to public order) and Section 71 (committing civil offences) of the Air Force Act, 1950 (for short ‘AFA’). Thirty-five prosecution witnesses were examined before the GCM. The GCM found the respondent and co-accused guilty of the offence under Section 304 Part II, read with 149 of IPC. Even the charge for the offence under Section 342 of IPC and charges under Sections 45 and 65 of the AFA Act were held as proved. The GCM sentenced the respondent to undergo rigorous imprisonment for five years and to be cashiered. The Chief of the Air Staff confirmed the conviction. He remitted the sentence of five years to imprisonment for two years in civil prison, but he confirmed the sentence of cashiering. As regards the coaccused, he remitted the entire sentence of imprisonment and cashiering. However, past service for two years was forfeited for the purpose of promotion and the enhancement of pay and pension. They were reprimanded. The respondent challenged his conviction and sentence by filing a writ petition. After the constitution of the Armed Forces Tribunal (for short, ‘the Tribunal’), the writ petition was transferred to the Tribunal. By the impugned judgment dated 14th May 2010, the petition filed by the respondent was allowed and the respondent’s conviction was set aside. Consequential reliefs except back wages were also granted.
Deceased misbehaved to Accused no.3’s wife and was brought for enquiry in gypsy vehicle from which the deceased jumped out and fell into a ditch suffered wounds further died in hospital
2. The deceased was signalman UD Garje. On 3rd March 1998, it is alleged that the deceased was sent to repair the telephone at the residence of Flight Lieutenant Mr. S. Verma (accused No.3). It is alleged that the deceased misbehaved with accused No.3’s wife. Accused No.3 reported the incident to the respondent, who, in turn, reported the incident to the station commander. It is alleged that the station commander informed the respondent to enquire about the matter before taking any action. Therefore, the respondent asked accused No.3 to secure the presence of the deceased. However, the deceased did not turn up. Therefore, the deceased was asked to be brought by sending someone personally. The allegation against the respondent is that as the deceased gave evasive answers, he directed that the deceased should be confined to the Guards’ room. The allegation against the respondent is that for confining the deceased to the Guards’ room, he was taken in a gypsy vehicle driven by him in which accused Nos.3 and Flying Officer I.S. Shahab (accused No.4) were sitting. Even the accused No.2- Flight Lieutenant A.N. Menon was sitting in the Gypsy. The allegation is that the deceased jumped out of the vehicle and started running. The officers in the Gypsy followed him. While running, the deceased fell into a ditch. He suffered wounds and was taken to a hospital. This incident is of 6th March 1998. He died in the hospital on 7th March 1998.
Consideration of submissions
Postmortem revealed antemortem injuries to the skull and brain and admitted in cross that a floor-like hard surface also considered blunt object
5. We have perused the evidence of the material prosecution witnesses relied upon by the learned senior counsel appearing for the appellants and the documents on record. PW-33 Dr Shiv Kochar, who conducted an autopsy on the body of the deceased, opined that there were injuries to the skull and brain, which were sufficient to cause death in the ordinary course. PW-33 stated that the deceased died due to a coma brought about as a result of antemortem injuries to the skull and brain. These injuries were sufficient in the ordinary course to cause death. He admitted that some of the injuries may be due to fall. He stated that there were no fractures in the body except at the place of surgical intervention. Though in the examination-in-chief he stated that blunt objects may have caused injury, in the cross-examination, he admitted that a floor-like hard surface is also considered a blunt object.
There is no allegation of any assault was made on the deceased before sitting in the gypsy
6. At this stage, we must note that the allegation against the respondent is that the co-accused picked up the deceased and brought him to the gypsy driven by the respondent. It is alleged that he had directed the deceased to be picked up for confining him to the Guards’ room and was being carried in his Gypsy for confining him to the Guards’ room. While he was being taken by the gypsy, he jumped from the rear side and started running away. It is also undisputed that the deceased fell into a ditch and sustained injuries. There is no allegation made by the prosecution that while sitting in the gypsy or before that, any assault was made on the deceased either by the respondent or by any other accused. The injuries found on the person of the deceased cannot be attributed to the respondent.
Prosecution alleges the respondent waling with a bamboo stick and is not recovered
7. We have carefully perused the evidence of the material prosecution witnesses relied upon by the appellant. It is true that PW-8 deposed that he saw the respondent walking in the garden with a bamboo stick. However, he admitted that he did not see the respondent carrying the stick to the ACRR. Moreover, the stick is not recovered. None of the prosecution witnesses deposed that the deceased was taken inside ACRR. None of the witnesses have deposed that they saw the respondent assaulting the deceased. PW-12, who was sitting in the ATC tower of the airport, saw one gypsy vehicle going towards the parallel taxi track. He claimed that through the binoculars he saw that 4 to 5 persons had come out of the gypsy and were standing in front of the gypsy. He stated that there was some “Hathapai”. PW-16 claimed that while proceeding towards the ATC, he saw one person getting up from the ground and running towards the construction site. Before that, he had seen 4 to 5 persons standing next to the gypsy where they were bending down and doing something.
Apex court did not find any evidence of respondent assaulting the deceased
8. After considering the evidence of all the relevant prosecution witnesses, we find that there is absolutely no evidence of the respondent or any other accused assaulting the deceased. There is no evidence to show that any act was done by the respondent with the intention of causing death or with the intention of causing such bodily injury to the deceased as is likely to cause death. As stated earlier, there is no act shown to have been committed by the respondent which has any direct connection with the cause of death of the deceased.
10. It is true that the respondent stated that initially he has instructed that the deceased should be taken to a Guards’ room and confined in the room. Later, he accepted the suggestion that firstly, the identification of the deceased should be done by the accused No.3’s wife. The offence of wrongful confinement under Section 340 of IPC is made out when the accused wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits. This statement of the respondent does not contain any admission on the part of the respondent that he had wrongfully confined the deceased. Initially, the respondent may have directed that the deceased be confined to the Guards’ room. But actually, he was not confined in the Guards’ room. Though the respondent initially intended to take the deceased to the Guards’ room, on a suggestion by the accused No.3, he changed his mind and decided to take the deceased to the officers’ quarters to ascertain whether accused No.3’s wife could identify him.
Order of acquittal enhances the presumption of innocence
11. We are dealing with an appeal against an order of acquittal. It is well-settled that an order of acquittal further enhances the presumption of innocence. It is equally well-settled that an order of acquittal cannot be interfered with only on the ground that another view can be taken based on the evidence on record. After having carefully perused the oral evidence, we are of the view that the findings recorded by the Tribunal are plausible findings which could have been reasonably recorded based on the evidence on record. Even assuming that another view could be taken based on the same evidence, that is no ground for interfering with the order of acquittal especially when we find a threadbare consideration of the evidence on record by the Tribunal.
12. As the allegations of commission of offences under the IPC were not established, the respondent cannot be punished for the crimes under Sections 71,45 and 65 of the AFA.
13. Hence, we find no error in the view taken by the Tribunal and the appeal is, accordingly, dismissed.
Party
Union of India & Ors. … Appellants Versus Wing Commander M.S. Mander … Respondent – Criminal Appeal No. 190 OF 2011 – 2024 INSC 842 – November 06, 2024
