Jammu & Kashmir High Court
Dhian Singh vs Union Of India (Uoi) And Ors. on 12 July, 2007
Equivalent citations: 2007(3)JKJ67
Author: J.P. Singh
Bench: J.P. Singh
JUDGMENT J.P. Singh, J.
1. Seeking quashing of General Officer Commanding, 10-Infantry Division's Order dated 28.01.1998, convening Summary General Court Martial, the findings, conviction and sentence recorded by it and Chief of Army Staff's Order dated 27th of June, 2000 rejecting the statutory appeal under Section 164 of The Army Act, 1950, petitioner, Dhian Singh has filed this writ petition through Mrs. Kamaljeet Kour, his wife, seeking his liberty.
2. Shorn of details, the petitioner's case, in nut shell, is that he had an old history of suffering from "unspecified psychosis". He had been receiving treatment for this disease during his employment in the Army. He had been falsely involved in a murder case with the charge that he was responsible for firing at and killing three Army personnel namely J.C-178573L Subedar Nirmal Singh, No. 3378920L, Company Havildar Major Baldev Singh and No. 3375568F Hav. Kaur Singh of his Unit, besides firing at Sepoy Harbinder Singh with an intention to kill him. He says that "unspecified psychosis" is a disease where a person becomes prone to aggressive behaviour during the recovery time and it was precisely for this reason that he had not been given any field duties and in that view of his disease, he was not medically fit to be put to a criminal trial. His Trial by the SGCM is thus vitiated.
3. Although, he does not spell out as to how the convening order issued by General Officer Commanding 10-Infantry Division was bad in law yet, it may be inferred from his pleadings that he questions it on the ground that mental condition of the petitioner to stand trial had not been considered by the respondents. He questions the findings, conviction and sentence of the Summary General Court Martial as bad in law on the ground that the authorities had not complied with the provisions of the Army Act and Army Rules framed thereunder. Specific challenge is made to the non-compliance of Army Rules 23 and 58, besides to the provisions of Army Orders 37/38 of 1983.
4. Denying as factually incorrect, the case put up by the petitioner in his petition, the respondents say that they had complied with the provisions of the Army Act and Army Rules in letter and spirit and that the proceedings of the Court of Inquiry, Recording of Summary of evidence and proceedings of the Summary General Court Martial had been commenced and concluded after following the provisions of law and having ensured that the petitioner was in a fit mental condition to participate in the proceedings and take the trial. It is stated that complying with the requirements of Army Order 37 of 1983, the petitioner had been referred to 170 Military Hospital wherefrom he was sent to the Command Hospital, Northern Command for necessary investigation. The petitioner was found fit by the Northern Command to take the trial. Giving the medical history of the petitioner's case, it is stated by the respondents that the petitioner had been placed in a low medical category with the diagnosis "UNSPECIFIED PSYCHOSIS", on 4th of August, 1995 whereafter he was provided treatment in the Military Hospital. He had undergone medical re-categorization periodically. Though initially graded in CEE (temporary category), the last review board of the petitioner upgraded him and placed him in low medical category i.e. BEE (Psy) permanent with effect from 4th of August, 1997.170-Mil-itary Hospital had, on Review medical board held on 19th of August, 1997, confirmed his diagnosis as that of "unspecified psychosis".
5. Giving the details of the prosecution case, the respondents say that it was at about 1920 hours of 29th of August, 1997 that the petitioner, after returning from 170-Military Hospital and having interview with the Adjutant was sent to his Company Headquarter where he reached at 1745 hours. It was at about 1920 hours that he picked up rifles 7.62 mm SLR Butt No. 152, registration No. BN-0124, loaded with Magazine containing 15 rounds, belonging to No. 3380828 L/NK (TS) Harjinder Singh, who had gone to get a glass of water for Subedar Nirmal Singh.
6. The petitioner fired approximately 12 rounds on Subedar Nirmal Singh, CHM Baldev Singh and Hav. Kaur Singh, who were sitting together, from a distance of approximately 3 to 5 meters when the weather was clear and visibility around 100 meters. After firing at the three persons of his Unit, the petitioner proceeded towards the LANG AR, where he was challenged by Sepoy Harbinder Singh. The petitioner fired at him also but missed. Subsequently, he tried to escape after throwing away the weapon. Sepoy Harbinder Singh, however, over-powered him and he was placed under close arrest.
Baldev Singh and Kaur Singh died on spot whereas Subedar Nirmal Singh succumbed to the injuries in the process of being shifted to Advance Dressing Station, Pallanwala (Akhnoor), of District Jammu.
7. After completion of the Court of Inquiry, the petitioner was taken in civil custody on 28th of August, 1997. Learned Judicial Magistrate, 1st Class, Akhnoor, when approached by the Competent Military Authority, handed over the petitioner to the Military Authorities on 29th of September, 1997.
8. After complying with the provisions of the Army Act and Army Rules and hearing the petitioner on the charge, the Competent Authority, directed recording of summary of evidence. Statements of all the witnesses produced by the prosecution in the Summary of Evidence were recorded in presence of the petitioner. He was afforded opportunity to cross-examine these witnesses. He, however, opted not to cross-examine them and refused to sign the proceedings. The Officer recording the Summary of Evidence, complied with the provisions of Rule 22 of the Army Rules. The petitioner was given liberty to make a statement with a caution that the statement so made by him may to be read in the proceedings.
9. The petitioner was arraigned for trial of offences under Section 69 of the Army Act, contrary to Sections 302/307 of the Ranbir Penal Code on all the four charges. On the application of the petitioner, he was provided the services of Sh. Jatinder Choudhary, Advocate, J&K High Court, as his Counsel whereas Mr. Mohinder Kapoor, Advocate of J&K High Court was appointed by the General Officer Commanding 10 Infantry Division as the prosecution Counsel at the trial.
10. After full dressed trial, the Summary General Court Martial, held the petitioner guilty of the charges and awarded life imprisonment and dismissal from service as punishment.
11. Aggrieved by the finding and sentence recorded by the Summary General Court Martial, the petitioner had come to this Court on an earlier occasion in writ petition, OWP No. 867/1999. This Court, however, took a view that the remedy by way of appeal may be more appropriate for the petitioner as the issues raised by him in the writ petition may not be gone into by it in detail in exercise of its writ jurisdiction. The writ petition was, thus, permitted to be withdrawn, reserving liberty to the petitioner to file a statutory petition/appeal. The statutory petition/appeal of the petitioner, after its consideration by the Chief of the Army Staff was rejected on 27th of June, 2000.
12. Mrs. Surinder Kour, learned Counsel for the petitioner submits that the trial held by the Summary General Court Martial stood vitiated because the petitioner was not medically fit to take the trial and the respondents had not conducted the medical examination of the petitioner before putting him to trial. She submits that the respondents had violated the provisions of Section 145 of the Army Act and Rule 22 of the Army Rules while recording summary of evidence. Mrs. Kour additionally urges that the evidence produced during the trial by Summary General Court Martial had proved that the petitioner was not medically fit, but the Summary general Court Martial, had ruled against the evidence on records that the petitioner was medically fit to take the trial. Mrs. Kour has referred to Union of India and Ors. v. Dev Singh Mil. L.J.2003 SC 146 to urge that compliance of Rule 22 of the Army Rules by the respondents vitiates the trial of the petitioner. Besides referring to the Rules, she relies on Memoranda for the Guidance of Officers concerned with Courts-Martial.
13. It was after the rejection of his appeal by the Chief of the Army Staff that the petitioner filed this writ petition seeking, inter alia the annulment of the Summary General Court Martial proceedings, findings, conviction and the sentence.
14. Mr. Magoo, learned Assistant Solicitor General has produced the records of the Summary General Court Martial to demonstrate due observance of the provisions of the Army Act and Army Rules. Learned Counsel submits that finding of fact recorded by the Summary General Court Martial holding the petitioner medically fit to take the trial, though supported by overwhelming evidence on records, cannot be interfered with in exercise of this Court's power of judicial review.
15. Facts disclosed by the respondents in their Reply-Affidavit have not been controverted by the petitioner by filing any rejoinder.
16. I have considered the submissions of learned Counsel for the parties and gone through the Summary General Court Martial proceedings, which were made available by learned Counsel for the respondents.
17. The records of the Summary General Court Martial reveal that the petitioner had been medically examined before the commencement of the trial too and the medical certificate, forming part of records, indicates him fit to take the trial. The first submission of Mrs. Kour, that Army Rules were violated by not conducting the medical examination of the petitioner before the commencement of the trial, therefore, fails and is, accordingly, rejected.
18. The Summary General Court Martial proceedings further indicate that the plea of the petitioner as to his medical unfitness to take the trial had been examined by the Summary General Court Martial, taking into consideration the advice tendered to it by learned Judge, Advocate General, on the factual and legal aspect of the matter and on the basis of the records of the Medical Boards, which had examined the petitioner from time to time. There is no material on records to take a view contrary to the one taken by the Summary General Court Martial, in the case. Records of the proceedings of the Summary General Court Martial too do not indicate any such conduct of the petitioner during the proceedings, which may hint at his unstable medical condition disabling him to understand the nature of the trial. The petitioner was represented by Shri Jatinder Choudhary Advocate and the Defending Officer throughout the proceedings. Learned Advocate and Defending Officer had cross-examined all the witnesses produced by the prosecution, and the petitioner too had led evidence in defence, projecting his plea of mental illness incapacitating him to take the trial. Petitioner had answered the questions which had been put to him, requiring him to say as to whether he would object to be tried by the Presiding Officer and the members constituting the Court.
19. In view of all these factors, coupled with the manner, in which the proceedings have been contested by the petitioner and his Advocate before the Summary General Court Martial, I do not find any merit in the plea of the petitioner that he was not fit to take the trial.
20. I, therefore, do not find the respondents to have violated the provisions of Section 145 of the Army Act, which the learned Counsel had relied upon to support her submissions.
21. This is additionally so because provisions of Section 145 of the Army Act may be pressed into service only if there was material before a Court Martial on the basis whereof it may appear to the Court that the person charged was incapable of making his defence by reason of unsoundness of mind or that he was because of unsoundness of mind incapable of knowing the nature of the act alleged to have been committed by him. On the basis of the material available on records with the Summary General Court Martial, no such case was found to have been made out by the Summary General Court Martial which, appreciating the evidence on records in this regard, disallowed the plea of the petitioner. In the absence of any material on records, justifying invoking of the provisions of Section 145 of the Army Act, the findings of the Summary General Court Martial, cannot be faulted. Submission of Mrs. Kour is, accordingly, rejected.
22. Plea of the petitioner that Army Rule 58 had not been complied by the respondents too is found to be without any basis. The records of the Summary General Court Martial demonstrate that all the incriminating circumstances appearing in the evidence had been put to the petitioner/accused for his explanation. Full opportunity of leading defence evidence, which the petitioner did avail of, had been allowed to him as is evident from the records of the proceedings. Plea regarding violation of Rule 52 is, thus, without any merit. It is, accordingly, rejected. Similar is the position as to the plea of the petitioner that Army Rule 22 had been violated by the respondents while recording Summary of evidence in the case. I will deal with the plea of violation of Rule 22, a little later.
23. Although the petitioner had not taken any specific objection as to the non-compliance of the provisions of the Army Act and Army Rules except Rules 22, 58 and Army Order 37/83, yet in order to examine as to whether or not there was any truth in the submission of the petitioner that he was not fit enough to take the trial, I went through the Summary General Court Martial proceedings and found that Court had complied with the provisions of the Army Act and Army Rules in letter and spirit.
24. I do not find any merit in yet another submission of learned Counsel for the petitioner that the Summary General Court Martial had not properly appreciated the evidence and the findings recorded by it, proving the petitioner guilty of the offences, were against the weight of the evidence.
25. There is overwhelming evidence on records, proving the charges with which the petitioner stood charged as also the medical condition of the petitioner. The Summary General Court Martial had given its reasons in support of its findings and a perusal of these reasons, would show due application of mind by the Court on all aspects of the case before returning its findings on the issues involved in the case. For facility of reference, reasons recorded by the Summary General Court Martial are reproduced hereunder. These read thus:
From the evidence on record the Court finds that No. 3384277H Sepoy Dhian Singh, JC-178573L Sub Nirmal Singh (deceased No. 1), Company Havildar Major Baldev Singh (deceased No. 2), Havildar Kaur Singh (deceased No. 3) and Sepoy Harbinder Singh all of 10 SIKH Regiment were present at Dhar post on 20 Aug 97, at the time of incident.
Regarding death of Subedar Nirmal Singh, Company Havildar Major Baldev Singh and Havilder Kaur Singh, medical evidence placed on record by Dr. Ravinder Singh (PW-16) and Capt S Uberoi (PW-8) have conclusively proved beyond reasonable doubt that the death of all the deceased personnel on 20 Aug 96 were due to hemorrhagic shock as a result of gunshot wounds at vital organs.
As regards the act of the Accused causing the death of the deceased, the Court relied on the testimony of Sepoy Harbinder Singh (PW-7). The medical evidence has also corroborated his version. Evidence of Investigating Officer, ASI Jaswant Singh (PW-8) regarding recovery and subsequently seizure of Self Loading Rifle (ME-VIII), live cartridge cases (ME-IX), fired cartridge cases (ME-VIII) from the site of incident, corroborated by documents contemporaneously prepared by him also corroborates the testimony of PW-7. The evidence of ballistic experts also corroborate the testimony of Sepoy Harbinder Singh. As regards the contention of defence that testimony of PW 7 should not be believed as he has not deposed truthfully. The Court is not convinced with the reasoning of the Defence Counsel in the light of ample circumstantial evidence which has further corroborated the testimony of PW-7.
The Court also considered the arguments of the defence, regarding the credibility of PW-3. The Court is of the opinion that PW-3 has not seen the incident i.e. Accused firing on the deceased persons, but Court is of the opinion that his complete testimony cannot be discarded because the facts deposed by him have been amply corroborated by other witnesses and circumstances.
The Court believes the extra judicial confession made by the Accused to PW-17. The confession has been amply corroborated by PW-3. Though there is some variation as regards to some words, but the said variation does not affect the acceptability of the confession. Moreover the confession was made voluntarily by the Accused to PW-17 who is a senior officer not inimical towards the Accused.
The defence has not claimed the case under exceptions of Sec 300 of R.P.C. However, the defence has claimed the case under Sec 84 of the RFC. The Court is of the view that the mere fact that there was abnormality of mind or that the Accused had suffered from mental illness in 1995 and 1996 does not afford any protection under Section 84 of RPC. The defence has failed to bring out anything which could constitute legal insanity. The defence was required to prove that the Accused was incapable of understanding or knowing the nature of the act which he was doing, was wrong or contrary to law. The Accused had gone to Dhar Post and was present in the area where the deceased were sitting. The Accused on getting an opportunity fired recklessly on the deceased persons on account of which the deceased persons died due to multiple injuries on vital organs. The Accused did not stop firing from a concealed position but he fired from outside the hut also. The Accused then proceeded towards langar to kill persons working in the langar. When the accused saw that the first round fired by him had missed PW-7, the Accused tried to loan a round manually but failed to do so as the round fell down from his hand. When the Accused saw PW-7, charging on to him he threw the weapon and started running towards the Company Commander's Hut. This is sufficient to show that the Accused was fully aware of the act committed by him and he was not suffering from any legal insanity. Therefore in absence of plea of legal insanity it can not be said that the accused did not have necessary mens-rea.
The nature and extent of injuries as brought out by PW-8 and PW-16 clearly show that weapon was fired from a close range. The Court is of the opinion that the injuries found on the bodies of the deceased persons were caused by the Accused intentionally. Further the injuries were sufficient in ordinary course of nature, to cause death.
As regard to the fourth charge the Court relied on the testimony of the PW-2, PW-3, PW-7 and PW-17.
The Court, therefore, finds No. 3384277H Sep Dhian Singh of 10 Sikh Guilty of all the charges.
26. The judgment cited by learned Counsel for the petitioner, that Rule 22 of the Army Rules had been violated in the present case, may not be applicable to the facts of the present case as the records of the Recording of the Summary of Evidence do not support this plea and on the contrary, contain a specific certificate by the officer recording Summary of Evidence that provisions of Rule 22 had been fully complied with and the evidence had been recorded in presence of the petitioner.
27. It is true that Court Martial Proceedings are subject to the judicial review by the High Court under Article 226 of the Constitution of India, but this judicial review, may not permit re-appreciation of evidence by the High Court. It is only when the Court Martial was not properly convened or there was any challenge to its composition and the proceedings, on the basis of violation of the provisions of the Army Act and Army Rules, that the High Court, may exercise its power of judicial review. The plea of Mrs. Kour, that the conviction of the petitioner is against the evidence on records and that the Court Martial had not properly appreciated the evidence, cannot thus be taken note of for consideration. The Summary General Court Martial has sufficiently discharged its judicial function. Its proceedings indicate that due care and caution had been taken by the Court in adhering to the provisions of the Army Act and Army Rules on the subject. Its responsibility to protect the rights of the accused, charged before it by providing all the procedural safeguards, has been properly discharged by it.
28. Nothing substantial was urged by learned Counsel for the petitioner regarding the challenge made by the petitioner as to the rejection of his petition/appeal under Section 164 of the Army Act by the Chief of the Army Staff. Perusal of the rejection order reveals that the same had been passed by the competent authority after due application of mind.
29. For all what has been said above, I do not find any material on records to interfere with the orders sought to be questioned by the petitioner in this petition.
30. There is no merit in this petition, which is, accordingly, dismissed.