Jammu & Kashmir High Court
Union Of India And Anr. vs Surinder Kumar on 9 April, 2014
HIGH COURT OF JAMMU AND KASHMIR
JAMMU
LPAOW 137/2001 & LPAOW 115/2001 Date of order 09.04. 2014
UNION OF INDIA & ANR VERSUS SURINDER KUMAR
UNION OF INDIA VERSUS ONKAR SINGH CHIB
ORDER SHEET
Coram:
HON'BLE MR. JUSTICE M. M. KUMAR- Chief Justice
HON'BLE MR. JUSTICE MUZAFFAR HUSSAIN ATTAR- Judge
FOR THE APPELLANT/S : MR. P.S.CHANDEL, CGSC
FOR THE RESPONDENT/S : MR. .J.R.ARORA
i/ Whether to be approved in
Press/Media : Yes
ii/ Whether to be reported in
Digest/Journal : Yes
MUZAFFAR HUSSAIN ATTAR
01/ The respondents in both these Letters' Patent Appeals (LPA)
have been imposed punishment by the Summary General Court
Martial (SGCM), which was called in question by them in two
separate writ petitions. The learned writ Court, in view of the fact
that common issues were involved and the punishment was outcome
of a single incident and common trial by the SGCM, disposed of
both the writ petitions by one common order, whereunder, the
punishments imposed on the respondents-writ petitioners were set
aside and respondent, Surinder Kumar, earned clear acquittal,
whereas, Onkar Singh Chib was given benefit of doubt. It is this
judgement, which has been called in question in these two LPAs.
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02/ In LPA (OWP) 115/2001, the Court by its order dated
11-09-2001 ordered for staying of the implementation of the
impugned judgement. Similarly in LPA (OWP) 137/2001,
on 16-03-2002, the impugned judgement was ordered to be
suspended pending disposal of the Appeal.
03/ For appreciating the issues raised at bar, we deem it
appropriate to give brief resume of the facts of the case.
04/ On 22-03-1996 at 13.45 hours, a message was received by
police station, Pahalgam from police post, Aishmuqam. Through a
wireless message, the SDPO, Bijbehara/SHO, Pahalgam were
informed that a written complaint was lodged by Gulzar Ahmad
Teeli S/o Ghulam Qadir R/O Shumhal, Aishmuqam, in which it was
mentioned that during search operations in the said village, a group
of four army personnel entered in the house of the father of the
complainant in the evening hours on 21-03-1996. The group was
headed by Mr. Sharma and Mr. Raju. It was also mentioned in the
complaint that at that point of time, the complainant and his father
were in the mosque for offering evening prayers and his wife and
unmarried sister were at their home. The wireless message also
contained further contents of the complaint in which it was stated
that the army personnel, after finding the girls alone, raped them. On
the basis of said wireless message, case F.I.R No. 25/1996, u/s 452,
376 RPC was registered in police station Pahalgam. The
Investigation Officer informed the concerned Army Officer.
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05/ The proceedings initiated, resulted in convening of a SGMC
on 29-04-1997, which ultimately sentenced the accused No. 247454
ON Naik, Rajvinder Singh of 4RR to suffer rigorous imprisonment
for ten years ; to be dismissed from service ; and to be reduced to the
ranks. The accused No. 3985028 N, Sepoy (Lancnaik) Onkar Singh
Chib of 4RR was sentenced to suffer rigorous imprisonment for ten
years ; and to be dismissed from service. The accused No. 2477108X
Sepoy (Lancnaik) Surinder Kumar of 4RR was sentenced to suffer
rigorous imprisonment of ten years ; and to be dismissed from
service. The accused No. 3181297F, Sepoy Sanjay Prakash of 4RR
was sentenced to suffer rigorous imprisonment for ten years ; and to
be dismissed from service.
06/ Out of four sentenced persons, Surinder Kumar and Onkar
Singh Chib alone challenged the orders in two separate writ
petitions, which, as already stated, have been allowed by the
learned writ Court and are subject matter of these LPAs.
07/ The learned writ Court allowed the writ petitions after it
re-appreciated the evidence of the witnesses. The learned writ Court
allowed the writ petitions by recording a finding that two female
prosecution witnesses, one married and the other unmarried, had
given two different statements at pre-trial stage and during the trial
of the case and further the medical evidence did not corroborate the
allegations of these ladies.
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08/ Mr. P.S.Chandel, learned CGSC, appearing for the Appellants,
was at great pains to explain that the pre-trial and the SGCM
proceedings have been conducted in accordance with the Army Act
and the Rules made thereunder. Learned counsel submitted that the
learned writ Court has allowed the writ petitions by presuming that
the medical evidence does not support the prosecution story and
there is variance in the statements of prosecution witnesses made at
pre-trial stage and in the SGCM proceedings. Learned counsel
submitted that the aforestated findings, recorded by the learned writ
Court, are not factually correct. He referred to the record of the
proceedings and submitted that there is complete compliance with
rules 22 to 24 and 106 of the Army Rules 1954 (for short Rules of
1954). Learned counsel, on the basis of record, submitted that the
permission, for conducting trial of the offence by the SGCM, was
also obtained by the competent authority on 24-02-1997 and the
necessary orders for convening SGCM was issued by the Officiating
General Officer Commanding on 26-03-1997. Learned counsel,
while referring to the official record, copies whereof were provided
to the Court also, submitted that the respondents-writ petitioners
were afforded sufficient opportunity of being heard and were given
ample opportunity to cross examine the witnesses. Learned counsel
further submitted that all proceedings have been conducted in
presence of the independent witnesses as is reflected at S.NOs.3, 8
and 18 of page 9 of the SGCM proceedings. Learned counsel
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submitted that the record would show that the provisions of rules 22
to 24 including that of rule 106 have been complied with. Learned
counsel also submitted that the official record would show that there
is no variance in the statements made by the prosecution witnesses in
the pre-trial proceedings as well as in the SGCM proceedings.
Mr. Chandel further submitted that contrary finding recorded by the
writ Court is not supported by the record. He also submitted that the
finding recorded by the writ Court in the impugned judgement that
medical evidence does not support the prosecution case is
completely against the official record. Learned counsel referred to
the statement of Dr. Mattoo, who figured at S.No. 6 in the list of
prosecution witnesses of SGCM proceedings and submitted that this
witness has supported the case of the prosecution and on
examination of unmarried prosecution witness, he found that her
hymen was ruptured and there were marks on her cheeks. Learned
counsel submitted that the statement of the doctor is also
corroborated by the statement of the Investigation Officer, ASI,
Bashir Ahmad, who figured at S.No.2 of the list of witnesses in
SGCM proceedings. Learned counsel also submitted that the said
ASI, had seized the clothes, bunch of hairs and one blood stained
Shalwar of the unmarried prosecution witness. Learned counsel also
submitted that in accordance with the mandate contained in rule
95(2) of the Rules of 1954, the respondents were also provided
"friend of the accused". Learned counsel also submitted that the
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claim of the respondents and finding of the learned writ court that
they were not provided defending counsel of their choice is against
the official record and against the judgement of Hon'ble the Supreme
Court dated 08-12-1997 passed in case Union of India and others
v. Major A.Hussain, AIR 1998 SC 577. Learned counsel also
submitted that the claim of the respondents that they were not
provided copies of the record of the Court of Enquiry in terms of rule
177 of the Rules of 1954 and breach thereof would vitiate the trial, is
against the law laid down by Hon'ble the Supreme Court in Major
A.Hussain's case supra. Learned counsel also submitted that
re-appreciation of evidence by the learned writ Court in a writ
petition is not permissible in law. He submitted that the SGCM
proceedings do not suffer from any procedural irregularity and
placed reliance on judgement tiled Union of India v. Major
G.S.Sodhi, AIR 1991 SC 1617. Learned counsel also submitted that
the punishment was imposed on the respondents on the basis of
direct evidence and not on the basis of confessional statements alone,
which were, subsequently, retracted. Learned counsel submitted that
even in absence of confessional statements, there was ample
evidence available to the SGCM, which inspired confidence and it
was sufficient to impose punishment on the respondents. Learned
counsel further submitted that even in absence of confessional
statements, which were later retracted and were used as
corroborative evidence, the offence against the respondents was
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proved in accordance with law and the punishment has been rightly
imposed on them. Learned counsel, in support of his contention,
referred to the case titled State (NCT of Delhi) v. Navjot Sandhu
alias Afshan Guroo, AIR 2005 SC 564. Learned counsel submitted
that since there is complete compliance with the procedure
prescribed by law in SGCM proceedings, the learned writ court
could not interfere in the findings of SGCM. Learned counsel, in
support of his contention referred to and relied upon judgements of
Hon'ble the Supreme Court reported in 1995(5) Supreme 366, AIR
1987 SC 2386 and AIR 1998 SC 577. Learned counsel, accordingly,
prayed for allowing of the LPAs and setting aside the judgement
impugned therein.
09/ Mr. J.R.Arora, learned counsel appearing for the respondents,
submitted that prosecution case is a bundle of contradictions and
cannot become basis for imposing any kind of punishment on the
respondents. Learned counsel, while elaborating his submissions,
stated that the testimony of the prosecutrix is not corroborated by the
medical evidence and the medical examination of both unmarried
as well as married prosecution witnesses speaks against the
commission of offence of rape. Learned counsel further submitted
that no Court of Enquiry has been conducted in accordance with the
mandate contained in rule 177 of the Rules of 1954. Learned counsel
submitted further that in the case on hand, the conditions contained
in the said rule have been observed in breach, as such, the trial
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against the respondents-writ petitioners is illegal. He further
submitted that in terms of rule 182 of the Rules of 1954, the
proceedings of the Court of Enquiry (COI) or any confession, or
statement, or answer to a question made or given at a COI, will not
be admissible evidence against a person, who is subject to the Army
Act and also submitted that no evidence in respect of the proceedings
of the Court can be given against any person except upon trial of
such person for willfully giving false evidence before the Court.
Learned counsel submitted that the material collected by the COI
could not be used against the respondents in the SGCM proceedings.
He also submitted that the confessional statements have been
obtained by the COI of the unit from the respondents and the
statements cannot be said to have been made out of their free will
and without any coercion or influence. Learned counsel also
submitted that the confessional statements are not written in the
hands of the respondents. Learned counsel also submitted that the
alleged confessional statements have been retracted by the
respondents. He also submitted that proviso to rule 33 & 34 of the
Rules of 1954 have not been strictly complied with, in as much as,
24 hours time was not provided to the respondents for preparing their
defense, which in the submission of the learned counsel, would
result in vitiating the SGCM proceedings. Learned counsel also
submitted that neither services of the counsel/advocates were
provided to the respondents nor any prior information was given to
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them for convening and conducting of SGCM proceedings. Learned
counsel further submitted that the provisions of the Evidence Act are
applicable to the Court Martial proceedings and appreciation of
evidence is to be made as per Evidence Act. Learned counsel further
submitted that the evidence has not been properly appreciated by the
SGCM and statements of witnesses which contradict each other
have been made the basis for recording convictions against the
respondents. Learned counsel, in support of his contentions, relied
upon the judgement of the Gowhati High Court (2004)2 Crimes
(HC) 165, (2005)0, CrLJ 220, judgement of the Andhra Pradesh
High Court and also relied on Navjot Sandhu's case supra.
10/ We have had the benefit of examining the official record of
the case, copies whereof were supplied by learned counsel for the
Appellants. We have examined it and are satisfied that the procedure,
as provided by the Army Act and Rules made thereunder, has been
complied with in its entirety and there has been no breach of the
provisions of the Act or Rules made thereunder, more particularly,
rules 22 to 25. We are also satisfied that the evidence brought on
record, at all stages, has proved the guilt against the respondents-
writ petitioners and there has been no serious infirmity in the
statements of the witnesses at any stage of the proceedings. The
witnesses have corroborated the material particulars of the offences
with which the respondents - writ petitioners were charged. The
findings recorded by the SGCM, in our opinion, cannot be said to be
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based on no evidence or completely perverse. The proceedings
against the respondents have been conducted in most fair and
transparent manner and opportunity of hearing to defend
themselves has been provided to the respondents in accordance with
the mandate contained in the Army Act and Rules made thereunder.
11/ Since the learned writ Court has recorded findings in the
impugned judgement that the material witnesses (one married and
another unmarried) gave contradictory statements at pre-trial and
post-trial stages and that medical evidence did not support the
allegation of rape, we deem it necessary to refer to the necessary
evidence so as to keep the record straight. We would like to make it
clear that under our power of judicial review, in terms of article 226
of the Constitution of India, there is virtually no scope available to
the writ Court to re-appreciate the evidence. The Court Martial
proceedings can be rendered invalid if there is breach of fundamental
procedural rules, which have the effect of rendering the proceedings
illegal. Statement of the unmarried prosecution witness, who, as per
evidence, was a virgin at the time of commission of crime and
statements of other prosecution witnesses as also statements of
Dr. Mattoo and Dr. Masooda Jan Shahmiri, is reproduced
hereunder:
"No: 2963 NGO ASI Bashir Ahmed, incharge police post, Aishmuqam being
duly affirmed is examined by the prosecutor:-
On 22 March 1996, I was performing the duties of incharge police
post Aishmuqam. At about 1300 hours, Shri Guljar Ahmed Teli S/O Shri
Gulam Qadir Teli resident of village Shumahal came to my police post and
submitted a written complaint to me. He also told me that on 21 March 1996
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at about 1830 hours four Army personnel of 4 Rashtriya Rifles (Aishmuqam
Camp) entered his house and committed rape with his wife Mrs Misrra and
his sister Miss Dilshadda. On the basis of the written complaint of Shri Guljar
Ahmed Teli an FIR No: 28/96 was recorded by me. After recording the FIR I
gave a wireless message to Police Control Room Anantnag and Sub Divisional
Police Officer, Bijbiara and also to Station House Officer, Phalgam.
Thereafter, I went to village Shumahal alongwith a constable for
further investigation. On the way to the village Shumahal, I went to meet
Commanding Officer, Colonel PK Narula of 4 Rashtriya Rifles and told him
about the incident of rape reported by Shri Guljar Ahmed Teli. Thereafter, I
went to the house of Shri Guljar Ahmed Teli in village Shumahal. I prepared a
rough sketch of the house of Shri Guljar Ahmed Teli and the neighbouring
houses. On the basis of that rough sketch, I prepared the sketch showing only
topographical features on ground. I hereby produce four sets of topographical
sketches of the scene of incident. Each set of sketch contains eight copies.
Sketches are received, marked Exhibit „L‟, „L-1‟, „L-2‟, „L-3‟
respectively, signed by the Judge Advocate and attached to the proceedings.
I identify my signature on Exhibits „L to L-3‟, the same are encircled
in red by the Judge Advocate. The sketches are not scale. A arrow points the
direction of north.
The sketch depicts the house of Shri Guljar Ahmed Teli. In his house,
on the ground floor, there are three rooms and on the first floor also there are
three rooms. The sketch also shows the neighbouring houses of Shri Ghulam
Rasool Salroo, Shri Assadulla Teli and Shri Gulam Ahmed Teli. Near the
house of Shri Guljar Ahmed Teli there is a cow shed. The sketch also shows
Ashimuqam-Hapatnar road.
The distance between the house of Shri Guljar Ahmed Teli and house
of Shri Gulam Rasool Salroo is approximately 20 feet.
The house of Shri Gulam Ahmed Teli and Shri Assadulla Teli are
approximately 110 feet and 50 feet respectively from the house of Shri Guljar
Ahmed Teli.
I also took down the statements of Mrs Misrra w/o Shri Gulzar
Ahmed Teli and Miss Dilshadda d/o Shri Gulam Qadir Teli.
I also recorded the statements of Mrs. Sarra w/o Shri Gulam Rasool
Salroo, Shri Assadulla Teli and Shri Gulam Ahmed Teli. I also seized two
firens belonging to Miss Dilshadda and Mrs Misrra. I also seized bunch of
hairs of Mrs Misrra.
A seizure memo in respect of abovesaid articles was prepared by me.
These articles were handed over to civil Court alongwith the challan. When
civil Court handed over the case to the Army authority, the same were also
given to the unit of the accused persons. I donot know under whose custody
these items were kept till today. I donot know whether these items were kept
safely or not.
I hereby produce the following articles which were seized by me:-
(a) A green colour firen belonging to Mrs. Misrra which is received,
examined, labelled, the label is marked Material Exhibit „ME-6‟ and signed by
the Judge Advocate, the firen is taken as Material Exhibit and placed in the
custody of the Court. The firen is also examined by the defending officer. The
court observes that firen is torn from the side.
(b) One gray colour firen belonging to Miss Dilshadda is received,
examined, labelled, the label is marked Material Exhibit „ME-7‟ and signed by
the Judge Advocate, the firen is taken as Material Exhibit and placed in the
custody of the Court. The firen is also examined by the defending officer. The
court observes that this firen is torn from the front.
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( c) One packet containing a bunch of hairs of Mrs Misrra which is
received, examined, labelled, the label is marked Material Exhibit „ME-8‟ and
signed by the Judge Advocate, the hairs are taken as Material Exhibit and
placed in the custody of the Court. The hairs are also examined by the
defending officer.
On 22 March 96, I could not sent Mrs. Misrra and Miss Dilshadda
for medical check up to District Hospital Anantnag as there was no vehicle
available for this purpose.
On 23 March 96, Miss Dilshadda and Mrs Misrra were sent for
medical check up in District Hospital, Anantnag along with a constable.
I donot remember the name of the constable.
Thereafter, I handed over the case to Sub Inspector Mujaffar Ahmed,
Station House Officer, Phalgam for further investigation.
CROSS EXAMINED BY DEFENDING OFFICER
ON BEHALF OF ALL ACCUSED PERSONS.
When I reached to the house of Shri Gulzar Ahmed Teli for
investigation of the case, many people of the village were already gathered in
his house.
When I went to the room of the first floor of the house some articles
and bedding were scattered all around in the room.
I also seized Salwar of Miss Dilshadda which she was wearing at the
time of commission of rape.
At this stage, witness is shown Material Exhibit „ME-5‟ which he
identifies as the same Salwar which he had seized on 22 March 96.
I did not seize the Salwar of Mrs Misrra which she was wearing at
the time of commission of rape.
I found some stains of blood on the Salwar of Miss Dilshadda which I
had seized.
RE-EXAMINATION DELINED BY THE PROSECTOR
NO QUESTIONS BY THE COURT
Provisions of Army Rule 141 (2) are complied with.
Unmarried girl (name withheld) being duly affirmed is examined by
the prosecutor:-
I am 17 years old girl. I donot know my exact date of birth. I have
studied upto forth class.
On 21 March 1996 I and my sister-in-law ( Brother‟s wife) Mrs
Misrra were sitting outside our house. At about 1800 hours, on the same day, I
heard someone shouting that one Mr. Sharma has come to our village
Shumahal with Army for search. After few minutes, four Army personnel came
to our house.
At this stage, the witness identifies all the accused persons as the
same Army personnel who had come to her house on 21 March 96.
Naik Rajvinder Singh, whom the witness identifies as the person who told her
and Mrs Misrra to go inside house. Thereafter, all the four accused persons
came inside the house and they searched a room and kitchen on the ground
floor. After that, all the accused persons told me to light a lantern and insisted
us to come up on the first floor of the house. I gave a lighted lantern to them
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and told them to search on the first floor on their own but they would not come
with them on the first floor as there was no male member present in the house
at that time. All the accused persons threatened us with their weapons. When I
and Mrs Misrra were climbing up the stairs, all the accused persons started
touching my breasts and face.
At this state, the witness points out towards Lance Naik Surinder
Kumar as the person who also kissed her and touched her breasts.
Then all the accused persons told us to come on the loft which was
constructed above the first floor. I and Mrs Misrra refused to go with them on
the loft. After that, all the accused persons took myself and Mrs Misrra
forcibly in a room on the first floor. They thoroughly searched that room.
During the search they threw all the items which were lying in the room. After
that Lance Naik Onkar Singh Chib whom the witness identifies as person who
took Mrs Misrra out of that room. Naik Rajvinder Singh, Lance Naik Surinder
Kumar and Sepoy Sanjoy Prakash remained there with me in the room. Then
they touched my breasts and cheeks. After that, Naik Rajvinder Singh also
went out from that room and Sepoy Sanjay Prakash and Lance Naik Surinder
Kumar whom the witness clearly identifies as the persons remained with her
in the room. Then Lance Naik Surinder Kumar made me lie down on the floor.
At that time, Sepoy Sanjay Prakash was also standing there and was
threatening me. Lance Naik Surinder Kumar opened my Salwar and tried to
pull it down. I tried to put up my Salwar again and again. I started crying.
After pulling down my Salwar Lance Naik Surinder Kumar also pulled down
his pant and he lied down on my stomach. He climbed on the top of me and
after that he did „NAJAYAJ HARKAT‟ with me. When he claimed on the top of
me, I was pushing him away again and again. At that time Sepoy Sanjay
Prakash who was standing there threatened me with his gun. I was trying to
get up but Lance Naik Surinder Kumar was lying on the top of me. At that time
I felt pain on the sides of my stomach and hips. I was having pain due to the
weight of Lance Naik Surinder Kumar on me. He was making up and down
motions on my stomach. Then he made „NAJAYAJ HARKAT‟ with me. I
started crying. At the time of „NAJAYAJ HARKAT‟ by Lance Naik Surinder
Kumar with me, Sepoy Sanjay Prakash had put his gun on my chest and he
kept on standing there. At that time, he was speaking something but I did not
understand. He also tried to shut my mouth with his hand. After Lance Naik
Surinder Kumar did „NAJAYAJ HARKAT‟ with me, Sepoy Sanjay Prakash
went out from the room. After few minutes Naik Rajvinder Singh came in the
room and touched my naked thighs. At that time, Lance Naik Surinder Kumar
was still on my top. After few minutes, Naik Rajvinder Singh (Sardar) also
went out. Thereafter, Lance Naik Surinder Kumar after wearing his pant also
went away with his gun.
Lance Naik Surinder Kumar kept on doing up and down motions on
my stomach for about 5-6 minutes. After that, I felt that my Salwar was wet. I
saw that the tape of my Salwar was also broken. I saw that on my Salwar there
were some white water and few drops of blood. I immediately changed that
Salwar after all the accused persons ran away from our house. I came down
on the ground floor in the room where I saw my sister-in-law, Mrs Misrra
lying on the ground in unconscious state. I saw that her firen was torn and her
Salwar was also lying open. I sprinkled some water on her face and she
regained consciousness after few minutes. Thereafter, Mrs Misrra went out of
the house to call some male members who had gone to the mosque for prayer.
After few minutes, my father Shri Gulam Qadir Teli and my bother Shri
Gulzar Ahmed Teli came back to the house along with Mrs. Misrra. I told the
whole incident to them.
Next day in the morning my brother Shri Gulzar Ahmed Teli went
and reported the incident to police post Aishmuqam.
Two police men, whose names I donot know, came to our house in
the evening. They recorded my statement. Police also seized my Salwar which
I was wearing at the time of incident. They also seized bunch of hairs of Mrs
Misrra.
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On 24 March 96, I and Mrs Misrra went for medical checkup. I donot
remember the place where we had gone. One police man was also with us at
that time.
After 2 days of that medical examination, we again went for another
medical examination.
I had also gone to Aishmuqam Camp to identify the accused persons.
I donot remember the date on which identification Parade was carried on. I
identified all the accused persons on that day.
At this stage, the witness is shown the printed Salwar, Material
Exhibit „ME-5‟ which she indentifies as the same Salwar which she was
wearing at the time of incident of rape.
The witness is again shown two firens, Material Exhibits „ME-6‟ and
„ME-7‟. She identifies that gray colour firen that‟s Material Exhibit-„ME-7‟
belongs to her and she was wearing the same at the time of the incident.
At this stage, the witness is shown a topographical sketch, Exhibit „L‟
which is also explained to her. She points the following details which are
marked by the Judge Advocate as:
Point A The route taken by all accused persons come to
our house.
Point B Room where Lance Naik Surinder Kumar
did „NAJAYAJ HARKAT‟ with me.
Point C Room (Ground floor) in which Mrs Misrra
was found lying unconscious after all
accused persons left the house.
Point D „Loft‟ in my house.
Point E Place where Lance Naik Surinder Kumar lied
me down on
the floor and did „NAJAYAJ HARKAT‟
Point F Place where Sepoy Sanjay Prakash was
standing, when Lance Naik Surinder was
doing „NAJAYAJ HARKAT‟ with me.
CROSS EXAMINED BY THE DEFENCE OFFICER
ON BEHALF OF ALL THE ACCUSED PERSONS.
On the day of incident all the accused persons were wearing civil
clothes. Two were wearing firens. One was in Jacket and other was in blue
pullover. Lance Naik Surinder Kumar was also wearing a black „Patka‟. I
donot know whether they had beard or not as I was afraid.
All the accused persons told me to lit the lantern. At that time, the
visibility was good and natural light was also coming to the rooms on the first
floor. The accused persons came for search of our house approximately at
1800 hours. Initially, we told the accused persons that we would not come
inside the house and if they want to search the house, they can search it
without their presence.
As the accused persons were not speaking in Kashmiri, hence I
recognized them as military persons. I could understand only few lines of
conversation amongst the accused persons.
All the accused persons molested me when I was climbing the stairs.
I do not know whether they molested Mrs. Misrra or not while we
were climbing the stairs.
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Lance Naik Surinder Kumar first molested me.
Sepoy Sanjay Prakash threatened me and also touched my breasts at
that time.
Sepoy Sanjay Prakash touched my breasts with one hand and he was
holding his gun in other hand.
Naik Surinder Kumar forced me to lie down on the ground and after
that he entered his hand in my Salwar to open it then he broke the tape of my
Salwar.
Naik Rajvinder Singh, Lance Naik Surinder Kumar and Sepoy
Sanjay Prakash were trying to take out my firen and in the scuffle, it got torn.
At the time Lance Naik Surinder Kumar was doing „ NAJAYAJ
HARKAT‟ my Salwar was rolled down upto thighs. Lance Naik Surinder
Kumar opened his pant while he was lying on top of me. At the time of
„NAJAYAJ HARKAT‟ his gun was lying down on the ground. I was pushing
him again and again but he was lying on the upper portion of my things. When
Lance Naik Surinder Kumar was doing „NAJAYAJ HARKAT‟ I felt pain in my
vagina and stomach. Both the accused persons remained in the room with me
for amount ½ hours.
It took me two to four minutes to come down on the ground floor after
wearing my Salwar. All the accused persons had already left at that time. They
searched our house only for two to four minutes. Salwar of Mrs. Misrra was
also opened and down upto knees when I saw her lying in unconscious state. I
did not see any blood on her Salwar.
After all the accused persons entered the house for search they closed
the main door.
All the windows of the house were also closed at that time. We started
crying and shouting for help while the accused persons were taking us on the
first floor. I kept on crying and shouting for the help till the time all the
accused persons left our house.
At the time of „ NAJAYAJ HARKAT‟ I was pushing the accused with
both my hands from his shoulders.
I tried to give him a slap but he held both my wrists. People of our
village told us that Sharma Sahib has come with Army for search. I donot
know whether militants are usually coming to our village or not. No militant
has ever come to our house.
It is incorrect to suggest that I have falsely implicated the accused
persons under pressure from militants.
It is incorrect to suggest that I have taken money to give this
statement.
It is further incorrect to suggest that I am telling lies in the Court.
I donot know whether the accused persons had searched any other
house in the village before they entered into our house. I donot know who is
„Sharma Sahib‟. I do not know whether my family tried to compromise with
accused persons regarding this incident.
Just after I heard that „Mr. Sharma‟ has come to the village with
Army, the accused persons come to our house. Before giving this statement in
the court I had met the prosecutor and Commanding Officer of 4 Rashtriya
Rifles. My brother was also with me at that time. My brother did not tell me
what he had spoken to the Commanding Officer.
RE-EXAMINATION BY THE PROSECUTOR
16
I was not wearing any watch on the day of incident. I am not sure that
for how much time Lance Naik Surinder Kumar stayed with me in the room
because I was not wearing any watch. I can understand Urdu but not fully.
QUESTIONS BY THE COURT
At the time of incident, I was approximately 17 to 18 years old.
Around 1 year has passed to the incident. I was about 17 years old at the time
of incident. I donot know what is the age written in my school certificate.
„NAJAYAJ HARKAT‟ was done against my will and consent. I was
forced into such an act.
„NAJAYAJ HARKAT‟ I mean Lance Naik Surinder Kumar penetrated
his erected penis inside my vagina and ejaculated. Earlier I was not
explaining this word in clear terms as I was feeling shy to tell the court.
The whole penis was penetrated inside my vagina. Blood was also
coming out of my vagina.
At the time of intercourse by Lance Naik Surinder Kumar, Sepoy
Sanjay Prakash has put his gun on my chest and was threatening me. He was
also shouting which I did not understand.
When Lance Naik Surinder Kumar was having intercourse with me,
Sepoy Sanjay Prakash also shut my mouth with his hand. Sepoy Sanjay
Prakash did not having intercourse with me.
I have earlier also given statements twice to police and once to
Judicial Magistrate.
After Lance Naik Surinder Kumar had finished intercourse with me,
he again tried for that but he failed. During the intercourse I did not become
unconscious but I was shocked.
I was not married at the time of incident.
NO QUESTION SUGGESTED BY THE PROSECUTOR AND
DEFENDING OFFICER THROUGH COURT.
The witness does not wish her evidence to be read over to her.
The provisions of Army Rules 141 (2) and 142(2) are complied with.
Doctor Mushtaq Ahmed Mattoo son of Shri Gulam
Ahmed Mattoo resident of Srinagar being duly affirmed is examined by the
prosecutor:-
I am working in Laladed Hospital, Srinagar as Registrar from last
five years. I did my MBBS from Kashmir University in the year 1981. After
that I obtained my Master‟s degree in the filed of gynaecology in the year
1992. I have earlier also examined rape victims many times.
At this state, the prosecutor submits that in view of educational
qualification and experience of the witness, he be allowed to examine him as
an expert in terms of section 45 of the Indian Evidence Act.
The defending officer has no objection.
ADVICE BY JUDGE ADVOCATE
Gentlemen, you have heard the submission of the prosecutor for
permitting him to examine Doctor Mushtaq Ahmed Mattoo as expert witness.
The defence has no objection to this witness being examined as an expert.
Section 45 of the Indian Evidence Act reads as under:
17
" 45. Whenever the court has to form an opinion upon a point of
foreign law or science or art or as to identity of handwriting or finger
impressions, the opinions upon that point of persons specially skilled in such
foreign law, science or art or in questions as to identity of handwriting or
finger impressions are relevant facts. Such persons are called experts.
The opinion or beliefs of third person as a general rule are irrelevant
and therefore, inadmissible. Witnesses are to state facts only i.e what they
themselves saw or heard or perceived by any other sense. There are however,
cases in which the Court is not in a position to form a correct judgment
without the help of persons who have acquired special skill or experience on a
particular subject e.g. when the question involved is beyond the range of
common experience or common knowledge, when special study of a subject or
special training or special experience therein is necessary. Under this head
come matters of science, art, hand writing, finger impression and foreign law.
In these cases, the rule is relaxed and expert evidence is admitted to enable
the court to come to a proper decision. The rule of admissibility is founded on
necessity. Keeping in view, the qualification and experience of this witness,
you have to consider whether to allow the submission of the prosecutor and
permit him to examine Doctor Mushtaq Ahmed Mattoo as an expert.
The Court is closed to consider its decision.
The Court decides to allow the submission of the prosecutor.
The Court is re-opens, the accused in brought before it and the above
decision is announced in the open court.
On 25 March 1996 at about 1900 hours I examined Mrs. Misrra wife
of Shri Gulzar Ahmed Teli and Miss Dilshadda daughter of Shri Gulam Qadir
Teli both resident of village Shumahal Aishmuqam. They were brought to me
for medical examination by Inspector Mohomad Mujjaffar Khan, Station
House Officer, Police Station, Phalgam.
I first examined Mrs Misrra thoroughly. On her physical
examination, I did not find any marks of violence on her body and she was not
bleeding from any site.
After examining her local parts, I found that her hymen was not
intact and she was a paros woman. After that I made a slide of her vaginal
smear for laboratory examination. However, after the laboratory examination,
no spermatozoa was found in that smear because she was brought for medical
examination after about five days of incident of rape.
Thereafter, I examined Miss Dilshadda. I did both general physical
examination and local examination of her private parts. She had a doubtful
mark of violence on her face. It was like a scratch mark which appeared to be
healed up. She was not bleeding from any site.
After examining her private parts, I found that her hymen was not
intact. Her vaginal smear was taken and on its examination no spermatozoa
was found in it.
I hereby produce the report of the medical examination of Mrs.
Misrra and Miss Dilshadda, which is received, read and is marked Exhibit
„G‟ signed by the Judge Advocate and attached to this proceedings.
The report is in my hand writing. I identify my signature thereon
which is encircled in red by the Judge Advocate.
CROSS EXAMINATION BY THE DEFENDING OFFICER
ON BEHALF OF ALL ACCUSED PERSONS
Hymen may also get ruptured by riding cycling or running etc.
In my opinion, hymen of virgin girl may also be ruptured during
vigorous examination of vagina by a doctor.
18
Before I examined both the girls, I did not see the previous medical
examination report of the victims. But I asked both the girls whether they have
been medically examined earlier in regard to this incident. They told me that
they were examined by a local doctor who is not a specialist.
A doctor who is not a specialist in gynaecology can also certify
whether the hymen is ruptured or not.
The scratch on the face of Miss Dilshadda was approximately 3-4
days old.
RE-EXAMINATION DECLINED BY THE PROSECUTOR
QUESTIONED BY THE COURT
In my opinion, a woman who has given birth to 3 to 4 children, if
subjected to rape by two or three persons, still there is a possibility of absence
of any internal or external injury on her private parts. In such cases internal
injuries like inflammation, abrasion or swelling may still be absent on her
private parts.
In case of intercourse by one or two persons with a paros lady, there
is a possibility of absence of external or internal injuries.
In my opinion, if the rape victim is examined after about 20-24 hours
no spermatozoa may be found in the vaginal smear. Spermatozoa
automatically die after about 12 hours of intercourse. In the case if the victim
has taken bath or has cleaned her private parts then spermatozoa may not be
found even after half an hour of intercourse.
In my opinion, if the victim of rape is medically examined after about
24 hours of alleged rape and she is a multi paros woman, then swelling or
abrasion may not be found on her private parts.
In my opinion, hymen of a virgin girl may still remain intact even
after intercourse. Rupturing of hymen depends on the degree of vigorousness
with which the sexual intercourse has been done.
In my opinion, if rape has been committed on a virgin girl of 18-19
years old with someone holding her legs or arms, there is a possibility of
absence of any external or internal injuries on her private parts especially
when medical examination is carried out after about 24 hours of commission
of rape.
In my opinion a virgin girl may also be subjected to sexual
intercourse with the absence of injury on her private parts and without
rupturing of hymen.
Miss Dilshadda was about 20 years old when I examined her.
In my opinion, there is very remote possibility of blood coming out
from vagina after intercourse without any internal injury or rupturing of the
hymen.
NO QUESTION SUGGESTED THROUGH COURT BY
THE PROSECUTOR AND DEFENDING OFFICER.
The witness does not wish his evidence to be read over to him.
Provisions of Army Rules 141 (2) and 142(2) are complied with.
Doctor Mrs. Masooda Jan Shahmiri daughter of Late Khwaya
Amiruddin Wani resident of Srinagar being duly affirmed is examined by the
prosecutor:-
I am posted in District Hospital, Anantnag in the gynaecology
department since 1989. My qualifications are MBBS MD. I passed my MBBS
19
in the year 1969 and qualified my MD in the year 1981 from Government
Medical College, Jammu. I have earlier also examined rape victims.
At this stage, the prosecutor submits that in view of educational
qualification and experience of the witness she be allowed to examine her as
an expert in terms of section 45 of the Indian Evidence Act.
The defending officer has no objections:
ADVICE BY JUDGE ADVOCATE
Gentlemen, in the light of my advice on pages 57 and 58 of the
proceedings, you may decide the request of the prosecutor.
The Court allows the request of the prosecutor.
On 23 March 1996, I examined Mrs. Misrra wife of Shri Gulzar
Ahmed Teli and Miss Dilshadda daughter of Shri Gulam Qadir Teli both
resident of village Shumahal. They were brought to me for medical
examination by NO 382 Head Constable Gulam Qadir of Police Station
Aishmuqam. I first examined Mrs. Misrra at about 1245 hours. The victim was
about 30 years old married woman and was having four children. On her
physical examination, I did not find any marks of violence on her body. On
examination of her private parts, no marks of external violence were seen. On
her internal examination, I found her vagina capacious admitting two fingers
easily, uterus normal size, anteverted foraices free. Her vaginal smear was
taken and was sent for laboratory examination. As per laboratory report
number 464 dated 23 March 96, no spermatozoa were seen in her vaginal
smear.
I then gave my opinion that Mrs. Misrra was about 30 years old,
married, having four children used to intercourse and there was no recent
evidence of intercourse as per laboratory report.
I hereby produce the report of medical examination alongwith the
laboratory examination report of Mrs Misrra which is received, read and is
marked Exhibit „R‟, signed by the Judge Advocate and attached to the
proceedings.
The report is in my hand writing. I identify my signatures thereon
which are encircled in red by the Judge Advocate.
After that, I examined Miss Dilshadda at about 1300 hours. Her
general condition was good and she was conscious, cooperative and
intelligent. She was approximately nineteen to twenty years old and no marks
of external violence on her body were found except a mild abrasion on right
side of the face.
On local examination, it was found that vulva and vagina were well
developed, her hymen was intact and there were no marks of external violence
on her private parts.
As Miss Dilshadda, being a unmarried girl was virgin, therefore, I
conducted Per Rectum (PR) examination. In that examination her uterus
appeared of normal size, anteverted. Her vaginal smear was taken and sent for
laboratory examination. The laboratory examination report No: 463 dated 23
March 96 reveals that in the vaginal smear no spermatozoa was present but
few pus cells and epitherial cells were seen.
In my opinion Miss Dilshadda was approximately 19 to 20 years old
with a mild abrasion on right side of her face. There was no evidence of
intercourse and her hymen was intact.
I hereby produce the report of medical examination alongwith the
laboratory examination report of Miss Dilshadda which is received, read and
Marked Exhibit „S‟, signed by the Judge Advocate and attached to the
proceedings.
20
The report is in my hand writing. I identify my signatures thereon
which are encircled in red by the Judge Advocate.
In my opinion, if the victim of rape has taken bath or washed her
private parts then spermatozoa may not be found in her vaginal smear.
Mortile sperm dies with in three to four hours.
CROSS EXAMINED BY DEFENDING OFFICER
ON BEHALF OF ALL ACCUSED PERSONS.
In my opinion, in case of slight penetration inside the vagina of a
virgin girl, there is a possibility that her hymen might not rupture. It is very
rare that hymen is not ruptured after full penetration.
In my opinion, in cases of forced penetration even if it is minor
penetration inside the vagina of a virgin girl, there will exist some kind of
internal injuries on her private parts like swelling or abrasion etc.
RE-EXAMINATION DECLINED BY THE PROSECUTOR
QUESTIONED BY THE COURT
In case of Per Rectum examination, there is no possibility of tearing
of the hymen during the examination.
NO QUESTION SUGGESTED THROUGH COURT BY
THE PROSECUTOR AND DEFENDING OFFICER
The witness does not wish her evidence to be read over to her:
Provisions of Army Rules 141 (2) and 142(2) are complied with.
At this stage, the Court observes that Lance Naik Onkar Singh Chib
(accused No: 2) is not present in the Court.
The defending officer submits that the said accused is not well and is
suffering from Dysentery and loose motion. The doctor, Captain Sanjay Nigam
of 426 Field Ambulance has advised him Attend „C‟ (complete bed rest) for 24
hours. The other accused persons are fit to undergo the trial but Lance Naik
Onkar Singh Chib is unfit to undergo the trial as is certified by Captain Sanjay
Nigam.
In view of the above, the defending officer requests to adjourn the
Court for 24 hours i.e. till 0900 hours on 11 April 1997.
The prosecutor has no objection.
ADVICE BY JUDGE ADVOCATE
Gentlemen, you have heard the submission of the defending officer
and answer thereto by the defending prosecutor. Now, I draw your attention to
Army Rules 80 (4), 80 (5) and 82 (1):
80. Sitting in closed Court-
(4) Except as hereinbefore mentioned all proceedings,
including the view of any place, shall be in open Court and
in the presence of the accused subject to sub rule.
(5) The court shall have the power to exclude from the Court
any witness who has yet to give evidence or any other
person, other than the accused, who interferes with its
proceedings.
82. Continuity of trial and adjournment of Court-(1) When a
court is once assembled and the accused has been arraigned
the Court shall continue the trial from day to day in
accordance with rule 81, unless it appears to the Court that
21
an adjournment is necessary for the ends of justice or that
such continuance is impracticable.
Gentlemen, Army Rule 80 (4) provides that all proceedings of the
Court shall be held in the presence of the accused persons. Further Army Rule
(82) (1) provides that Court may be adjourned if it is necessary to meet the
ends of justice or the its continuance becomes impracticable. In view of
above, you should consider the submission of the defending officer. You may
decide the submission in the close Court.
The court is closed to consider its decision
The court decides to adjourn until 0900 hours on 11 April 1997.
The court is re-opened the accused persons are brought before it and
the above decision is announced in open court.
Doctor Imtiaz Hussain Dar son of Shri Mohamad Ismail, resident of
village Krangsoo, Mattan being duly affirmed is examined by the prosecutor.
( Provisions of Army Rule 135 are complied with )
My qualification is MBBS. I passed my MBBS in the year 1991 from
Government Medical College, Srinagar. After that, I am posted as Medical
Officer in a Civil Hospital, NTPHC Aishmuqam from last three years.
On 25 April 1996, Station House Officer Phalgam came to me
alongwith Naik Rajvinder Singh, Lance Naik Onkar Singh Chib, Lance Naik
Surinder Kumar and Sepoy Sanjay Prakash for their medical examination. As
the incidents is about 1 year old, I cannot exactly identify all the persons who I
examined.
At this stage, the witness identifies Naik Rajvinder Singh, Lance Naik
Surinder Kumar and Sepoy Sanjay Prakash as the same persons whose
medical examination, I carried out on 25 April 1996. I did the General
Physical Examination, local examination and spermatozoa microscopic
examination.
I found that all the accused persons are capable of performing the
sexual intercourse and they are potent.
No external injury was found in their body.
No injury was also found on their private parts.
CROSS EXAMINED BY THE DEFENDING OFFICER
ON BEHALF OF ALL ACCUSED PERSONS.
I did the medical examination of the accused persons at their unit
location (Aishmuqam Camp) on the request of Station House Officer,
Phalgam.
I don‟t know the name of that police officer.
RE-EXAMINATION DECLINED BY THE PROSECUTOR
NO QUESTION BY THE COURT
Provisions of Army Rule 141 (2) are complied with.
Married women (name withheld) being duly affirmed is examined by
the prosecutor:-
( The witness is examined "in camera")
The incident is about one year old. I donot remember the exact date
of the incident. Four Army personnel whom the witness indentifies sitting as
22
accused persons in the court, came to our house in village Shumahal for
search. At that time, Miss Dilshadda, I and my younger daughter aged about 5
years were at home. There was no male member present in the house.
All the accused persons searched the ground floor of our house.
Thereafter, they told us to light a lantern so that they can search the house on
the first floor. I told them that natural light is already there. After that, I gave
them a lighted lantern. The accused persons told me and Miss Dilshadda to
come up on the first floor with them for the search. I told the accused persons
that they can search the house on the first floor on their own but she and Miss
Dilshadda would not come with them on the first floor. Thereafter, all the
accused persons took me and Miss Dilshadda on the first floor. There, they
searched all the rooms. After the search on the first floor, the accused persons
told us to accompany them on the loft constructed above the first floor. We
refused to go with the accused persons on the loft. After that, all the accused
persons took me and Miss Dilshadda in a room on the first floor and they
searched that room thoroughly. They also threw on the floor some articles and
clothes lying in the room. Thereafter, an accused person, whom the witness
identifies as Naik Rajvinder Singh, took me to another room on the first floor
and Lance Naik Onkar Singh Chib, Lance Naik Surinder Kumar and Sepoy
Sanjay Prakash whom the witness clearly identifies as the same persons who
caught hold of Miss Dilshadda and remained inside the room with her. I tried
to open the door of the room in which the three accused persons viz Lance
Naik Onkar Singh Chib, Lance Naik Surinder Kumar and Sepoy Sanjay
Prakash were left alone with Miss Dilshadda. At this, Naik Rajvinder Singh
threatened me with his weapon. After few minutes, Lance Naik Onkar Singh
Chib also came out from that room and Miss Dilshadda remained alone with
Sepoy Sanjay Prakash and Lance Naik Surinder Kumar in the room. After
that, Naik Rajvinder Singh and Lance Naik Onkar Singh Chib started pushing
me from that place by threatening me with their weapons and they also started
pulling out my firen which I was wearing at that time. It got torn in the scuffle.
Then both the accused persons brought me down by force in a room on the
ground floor of the house. There they forced me to lie down on the floor and
also threatened me to keep quite or they will kill me. After forcing me to lie
down in the floor, Naik Rajvinder Singh opened the tap (NALA) of my Salwar
and after pulling down my Salwar he did „ NAJAYAJ HARKAT‟ with me.
After, Naik Rajvinder Singh finished „NAJAYAJ HARKAT‟ Lance
Naik Onkar Singh Chib also did the same „NAJAYAJ HARKAT‟ with me. At
the time of „NAJAYAJ HARKAT‟ by Naik Rajvinder Singh, he had opened his
pant which he was wearing but he kept on wearing his shirt. I donot
remember whether he had completely removed his pant or not. At the time of
„NAJAYAJ HARKAT‟ by Naik Rajvinder Singh he was lying on my stomach.
He remained on my top for about 4-5 minutes.
By „NAJAYAJ HARKAT‟ I mean that what a male does with a female
after marriage.
After Naik Rajvinder Singh finished „NAJAYAJ HARKAT‟ with me, he
got up from stomach and kept on standing nearby in the same room with his
gun. Naik Rajvinder Singh was standing there in the room, when Lance Naik
Onkar Singh Chib climbed on my top and did „NAJAYAJ HARKAT‟ with me
for about 4-5 minutes.
After that, I become unconscious. When I regained consciousness, I
saw that my firen was torn and Miss Dilshadda was tying the knot of tape of
my Salwar. She also sprinkled few drops of water on me. When I regained full
consciousness, I immediately went to the mosque where my husband Shri
Gulzar Ahmed had gone for prayers at that time. After meeting my husband
outside the mosque, I narrated the whole incident to him.
Next day, in the morning, my husband went to the Police Station to
lodge a report about the incident. Thereafter, two policemen came to our
house on the same day at about 1600 hours and they recorded my statement. I
do not know the names of those policemen.
23
After one day of the incident, a policeman also took me and Miss
Dilshadda for medical examination in a hospital at Anantnag. There, I and
Miss Dilshadda were medically examined by a doctor. After medical
examination, we went to Srinagar for another medical examination on the
same day. There also we were medically examined in a hospital at about 1700
hours on the same day.
On the third day of incident, I and Miss Dilshadda also went to
Aishmuqam Army Camp for the identification of the accused persons. I
identified all the accused persons during the identification parade.
CROSS EXAMINED BY THE DEFENDING OFFICER
ON BEHALF OF ALL ACCUSED PERSONS.
When the accused persons came to our house for search, I was sitting
in the terrace (varanda) of my house. All the accused persons came from the
side of house of Mrs. Sarra.
All the accused persons were wearing civil clothes. Two were
wearing firens and one was wearing a Jacket. No one was in army uniform. At
that time, they were not having any beard except Naik Rajvinder Singh who is
Sardar (SIKH) was having beard.
All the accused persons told me and Miss Dilshadda to go inside the
house as they wanted to search the house. When all the accused persons came
to our house my youngest daughter was also sitting in the terrace (Varanda)
but when she saw the accused persons entering our house, she ran away from
there.
Before the accused persons entered our house for search, I told them
that there was no male member and we were alone in the house.
The accused persons entered our house at about 1830 hours on the
day of incident.
I did not tell the accused persons that I would call some male member
before they carry out search in the house.
The accused persons initially searched one room and a kitchen on the
ground floor.
I told the accused persons that we would not come up on the first
floor with them for search.
All the accused persons started molesting us when I and Miss
Dilshadda were climbing up stairs.
They were pulling us and threatening to kill us if we will shout.
Before the accused persons came to the first floor, they closed the
main door of our house.
When they were closing the door, I started shouting for help but no
one came there to help us.
The house of Mrs Sarra is located near my house.
After I and Miss Dilshadda went on the first floor with all the accused
persons, they searched all the rooms on that floor.
When Miss Dilshadda was forced inside a room by Lance Naik Onkar
Singh Chib, Lance Naik Surinder Kumar and Sepoy Sanjay Prakash, I started
shouting that why they had closed the door of that room from inside. I also
started pushing that door.
I and Miss Dilshadda were shouting loudly for help but no one came
from outside to help us.
24
Lance Naik Onkar Singh Chib and Naik Rajvinder Singh took me
down on the ground floor forcibly. I did not refuse to go down.
I kept on crying, shouting and pleading for mercy till the time all the
accused persons remained in my house.
I was shouting loudly so that my voice could be heard outside the
house.
When Lance Naik Onkar Singh Chib was threatening me with his
gun, Naik Rajvinder Singh at that time opened the tape (NALA) of my Salwar.
Before Naik Rajvinder Singh opened my Salwar, he told me why I am
shouting. He also told me to keep quite otherwise he will kill me.
When Naik Rajvinder Singh was opening my Salwar he did not open
his pant at that time.
Naik Rajvinder Singh forced me to lie down on the floor. He also
pulled out my Salwar forcibly. After he took out my Salwar, he kept it on the
floor in the same room.
After he completely removed my Salwar, he opened his pant and
climbed on my top. At that time, I started crying and praying him for mercy.
After Naik Rajvinder Singh did „NAJAYAJ HARKAT‟ with me. Lance
Naik Onkar Singh Chib lied down on my stomach. Naik Rajvinder Singh kept
on standing there till Lance Naik Onkar Singh Chib finished „NAJAYAJ
HARKAT‟ with me.
After Naik Rajvinder Singh got up from my top, I tried to get up from
the place but Lance Naik Onkar Singh Chib again forced me to lie down on
the floor.
When Lance Naik Onkar Singh Chib was doing „NAJAYAJ HARKAT‟
with me, Naik Rajvinder Singh after wearing his pant kept on standing nearby
with his Rifle.
When Lance Naik Onkar Singh was doing „NAJAYAJ HARKAT‟ with
me, I did not see his face.
At the time of incident, I was wearing a vest, kurta, salwar and a
firen.
At the time of „NAJAYAJ HARKAT‟ by Naik Rajvinder Singh and
Lance Naik Onkar Singh Chib, my vest, kurta and firen were lifted upto lower
level of my breasts but my Salwar was completely removed.
The accused persons had torn my firen only when they were forcibly
bringing me down on the ground floor from the first floor.
After both the accused persons finished with the „NAJAYAJ HARKAT‟
with me, I immediately fell unconscious and I did not see them going out from
the house.
I regained consciousness after about 10-15 minutes. I was in the state
of shock therefore, I donot remember about condition of my clothes at that
time.
When I regained consciousness, I saw Miss Dilshadda in the room. I
asked her about the accused persons. She told me that all had already left the
house.
When I came back from the mosque alongwith my husband, many
people of our village had already gathered there.
25
I narrated the incident of rape to my husband only after we reached
at our house. I did not tell him about the rape outside the mosque because
there were so many people present.
I went running to the mosque to meet my husband.
When I came back from the mosque with my husband, Miss
Dilshadda was alone at home and she was crying. When I came back from the
mosque, Miss Dilshadda had already changed her clothes.
Next day of incident, I went for medical examination alongwith Miss
Dilshadda. We also went to identify the accused persons in Aishmuqam Army
Camp after two days of incident.
We went for identification of accused persons at about 1300 hours.
All the accused persons were wearing the same dress which they were wearing
at the time of incident. After identification parade also, we went for medical
examination one more time.
Only Naik Rajvinder Singh and Lance Naik Onkar Singh Chib had
intercourse with me.
RE-EXAMINATION BY THE PROSECUTOR
All the windows of my house were already closed when accused
persons came for search. They only closed the main door of the house.
No one else except Naik Rajvinder Singh and Lance Naik Onkar
Singh Chib had touched me.
I went for medical examination on 23 March 96. In the morning, we
went to Anantnag for medical examination. Then we went to Srinagar for
another medical examination on the same day. In the evening we stayed in
Srinagar and from Srinagar we came back next day for identification of the
accused persons.
QUESTIONED BY THE COURT
I am about 30 years old. I got married about 13-14 years ago. I have
four daughters. The age of my eldest daughter is about 12 years and youngest
daughter is about 4 years.
I am illiterate and I have not studied in any school.
When Lance Naik Onkar Singh Chib was doing „NAJAYAJ HARKAT‟
with me, at that time Sepoy Sanjay Prakash also came on the door of the room
and asked me why I am shouting. He asked this to me while standing at the
door only but he did not come near me and touched me. At this time Lance
Naik Onkar Singh Chib was doing „NAJAYAJ HARKAT‟ with me, Sepoy
Sanjay Prakash also threatened to kill me with his gun. He threatened me
while standing at the door of the room in which I was forced to lie down.
Till the time I was conscious, Sepoy Sanjay Prakash did not touch me.
Naik Rajvinder Singh and Lance Naik Onkar Singh Chib penetrated
their penis inside my vagina. By „NAJAYAJ HARKAT‟ I mean as stated above.
Both the accused persons ejaculated inside my vagina.
When I regained consciousness, I saw that my vagina was wet with
semens.
Before I went for medical examination for the first time to a Hospital
in Anantnag, I had thoroughly washed my private parts. Miss Dilshadda had
also washed her private parts before going for the medical examination.
26
After I fell unconscious, I did not know whether anybody has touched
me or not.
When the accused persons were threatening me with their weapons, I
was not fully understanding as to what they were saying.
When both the accused persons were having sexual intercourse with
me, I tried to get up but I could not move from there, as they were lying on top
of me.
At the time of incident, most of the males of our village had gone to
the mosque for prayers.
When we were climbing up the stairs, I saw that all the accused
persons were molesting Miss Dilshadda.
Lance Naik Surinder Kumar neither threatened me nor touched me.
At this stage, the witness is shown a topographical sketch, Exhibit „L-
2‟ which is also explained to her. She points out the following details which
mare marked by the Judge Advocate as:
Point A Room where Naik Rajvinder Singh and Lance
Naik Onkar Singh Chib did „NAJAYAJ HARKAT‟
with me.
Point B Room where Miss Dilshadda was forcibly kept inside.
When I was climbing the stairs, Sepoy Sanjay Prakash did not
threaten me and touched me.
Naik Rajvinder Singh and Lance Naik Onkar Singh Chib had
intercourse with me against my will and without my consent. It was done
forcibly.
At this stage, the witness is shown two firens, that is, Material
Exhibits „ME-6‟ and „ME-7‟. She identifies that the green colour firen (ME-6)
is the same firen which she was wearing at the time of the incident.
I gave some hairs to the police after pulling it from my head. The
police did not collect the hairs from the room.
NO QUESTION SUGGESTED THROUGH COURT BY
THE PROSECUTOR AND DEFENDING OFFICER
The witness does not wish the evidence to be read over to her.
Provisions of Army Rules 141 (2) and 142 (2) are complied with."
12/ The unmarried prosecution witness has, in unequivocal
terms, in her pre-trial statement, stated that Lancnaik Surinder
Kumar came to her house for search operation on the evening of
21-03-1996 and raped her. Her statement recorded at pre-trial stage
is also taken note of :
"Unmarried girl (name withheld) states:-
I identify the person here as accused.
27
Number 2477108X Lance Naik Surinder Kumar came to our house for search
on evening of 21 March 96. He along with other soldiers forced me and my
sister-in-law Mrs Misrra W/O Gulzar Ahmad Teli to accompany them for
search. After the search Lance Naik Surinder Kumar and one more soldier
forced me into a room. The other soldier kissed me and ran his hand over my
breast and then left. Thereafter Lance Naik Surinder Kumar forcibly threw me
on bed and removed my Shalwar. He thereafter removed his clothes and
climbed on top of me and raped me. He was on top of me for five to six
minutes. During this time one more soldier had come and ran his hands over
my thighs. After raping me once Lance Naik Surinder Kumar tried to rape me
again but this time he was unable to enter me. He then wore his clothes took
his gun and went away. I then wore another pyjama and went to my sister-in-
law Mrs Misrra who was lying unconscious. I threw some water over her face
which helped her regain her consciousness. I went for medical check up on 22
March 96 to District Hospital Anantnag with my brother Gulzar Ahmad Teli
and a police person from police Station Aishmugam.
Cross Examination by the Accused.
The accused asked the following questions:
(a) Q-1 Did you become unconscious during the act
of alleged rape?
A-1 I was conscious throughout.
(b) Q-2 Did you have a spare salwaar in the same room?
A-2 Yes, one more salwar along with other
clothes were hanging on the nails and I wore
the salwar after removing it from there.
The above statement has been read over to me in the language I
understand along with the questions and answers and I sign it as correct.
Sd/- x x x x x Sd/-x x x x x x
NUMBER 13746274H MISS DILSHADDA
NAIK BASHIR AHM D/O GULAM QUADIR TELI
INTERPRETER R/O SHUMAHAL
R/O SHUMAHAL
24 MARCH 96
Sd/- x x x x x Sd/- x x x x x x x
SURINDER KUMAR AJ SINGH, SM
LANCE NAIK LIEUTENANT COLONEL
ACCUSED OFFICER RECORDING
24-3-96 SUMMARY OF EVIDENCE
24 Mar 96
Sd/- x x x x x x x
RAJEEV CHATURVEDI
CAPTAIN
INDEPENDENT WITNESS."
13/ Besides the statements of the witnesses, there is evidence of
independent witness also available on record before whom all the
four accused persons had admitted commission of the offence,
which, they later on retracted. The evidence of unmarried witness is
clear and unambiguous in its tone and tenor. She has stated that
28
because of the forced sexual intercourse, blood oozed out from her
vagina and her Shalwar got stained by blood. This blood stained
Shalwar was seized by the police officer of police station Pahalgam
during the investigation of the case. Another prosecution witness,
Dr. Mattoo, has corroborated the statement of the unmarried
prosecutrix. One fails to understand as to how and for what reason,
Dr. Shahmiri has stated that the hymen of the unmarried girl was
intact. The respondents have not alleged mala fides against the
prosecutrix or their family members or against the officers of the
Army, who conducted the pre-trial and post-trial proceedings. The
findings recorded by the SGCM cannot be questioned on any ground
whatsoever. The confessions made by the respondents, at the initial
stage, were, subsequently, retracted by them but in the facts and
circumstances of this case, the retracted confessions had
corroborated the case set up against them. One further circumstance
in this case is that out of four persons, who were awarded
punishment, only two challenged it before the learned writ Court
and other two have accepted the punishments awarded to them by
the SGCM.
14/ Section 3(i), (ii) & (x), section 9 with comments and section
108 of the Army Act 1950 are taken note of :
29
"3(i) "Active service", as applied to a person subject to this Act,
means the time during which such person -
(a) is attached to, or forms part of, a force which is engaged
in operations against an enemy, or
(b) is engaged in military operations in, or is on the line of
march to, a country or place wholly or partly occupied by
any enemy, or
(c) is attached to or forms part of a force which is in military
occupation of a foreign country ;
(ii) "Civil offence" means an offence which is triable by a
criminal court ;
.........................
(x) "enemy" includes all armed mutineers, armed rebels, armed rioters, pirates and any person in arms against whom it is the duty of any person subject to military law to act ; .................
(9) Power to declare persons to be on active Service:-
Notwithstanding anything contained in clause (i) of section 3, the central Government may, by notification, declare that any person or class of persons subject to this Act shall with reference to any provision of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of this Act.
COMMENTS In exercise of the powers conferred by section 9 of the Act, the Central Government hereby declares that all persons subject to the Act, who are not on active service under clause (i) of section 3, shall, while serving with the Army Farms and Units deployed on Operation RAKSHAK in the Sates of Punjab, Jammu and Kashmir, Rajasthan, Gujrat and the UT of Chandigarh be deemed to be on active service within the meaning of the Act and of any other law for the time being in force ;
.................
(108) Kinds of courts-martial :- For the purpose of this Act there Shall be four kinds of courts-martial, that is to say :-
(a) general courts-martial ;
(b) district courts-martial ;
(c) summary general courts-martial ; and
(d) summary courts-martial."
15/ Respondents, in view of the aforementioned provisions of the Army Act, were on active service and they have committed civil offence u/s 376 RPC, which has been proved against them.
16/ Human being in itself is a complete universe. It comprises of different worlds, viz. human body; human mind (head and heart) and human conscience. Human being abhors and despises all kinds of 30 abominable attempts and efforts which either result in the invasion of any part of its universe and/or places an adverse impact on them. A human being is always in immense love with its own worlds. A forcible invasion of any of the above described worlds has a destructive impact on its entire universe.
17/ Additionally, a human being, in collaboration with other human beings, constitutes a society, a nation or a country, which is defined and identified by its boundaries. From the advent of human history, human beings have zealously and at all costs been guarding the territorial boundaries of their respective countries. At all times in the human history, armies have been raised to accomplish the aforesaid purpose. This "class of people" has all along been specially trained physically, mentally, psychologically and emotionally to withstand all kinds external pressures and temptations. This special class of people called "Army" stands guarantee to the sovereignty of a State and defend freedoms of its citizens.
18/ The misdemeanor, more particularly, of the army personnel, which is of serious nature, cannot be compromised with. In order to preserve and maintain the territorial integrity of the country, the army personnel have to be the people possessed of high moral values and practising utmost discipline. The Army Act 1950, in the backdrop of article 33 of the Constitution of India is designed and engineered to ensure that the Indian Army becomes a model Army 31 in the world. There cannot be any compromise with the standards and maintenance of discipline in the army. They are not only the sentinels of the frontiers of the country but are also sacred guards of the rights of the people. Any invasion of the rights of the people by this kind of force cannot be tolerated. The SGCM has been justified in awarding punishments to the respondents.
19/ For our above recorded discussion, we hold that the pre-trial and post-trial proceedings, conducted against the respondents, are in accordance with the mandate contained in the Army Act 1950 and Army Rules 1954 and there has been no breach of any provisions contained therein. We, accordingly, allow these Letters' Patent Appeals, set aside the impugned judgement dated 09-02-2001 passed in OWPs 229/1998 & 125/1998 and in consequence thereof, both these writ petitions, filed by the respondents - writ petitioners, stand dismissed along with connected CMAs. 20/ Before parting with this judgement, we would like to place on record our anguish and pain about the manner Dr. Shahmiri has conducted herself. We warn her to be careful in future.
(Muzaffar Hussain Attar) (M. M. Kumar)
Judge Chief Justice
Jammu
09.04.2014
Tariq Mota