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18. Sepoy Dilbagh Sigh, who was arraigned along with the petitioner was examined as second witness in the Summary Court Martial. His statement was not recorded at the time of recording of Summary Evidence. How a person, who was accused, is now examined as a witness against the petitioner has not been explained by the Commanding Officer or the respondents in the counter. Mr.N.L.Bareja, learned counsel for the petitioner submitted that the examination of Sepoy Dilbagh Singh at the time of the trial of SCM was contrary to Army Rule 135.

21. According to Mr.Mittal, learned counsel for the respondents, the rule had been complied with but Mr.Bareja, learned counsel for the petitioner submitted that if a witness is to be examined but had not been examined at the time of Summary Evidence, the Court shall inform the accused of his right to demand an adjournment or postponement. and that was not done in this case and that would vitiate the entire proceedings and that such last part of the rule was not followed, cannot be disputed by the respondents. Therefore, the examination of Sepoy Dilbagh Singh was not valid in law. Therefore, his evidence cannot be looked into at all for any purpose whatsoever. But all the same, even if we look into the evidence, that would only go to prove that the Commanding Officer had some how made an attempt to bring in evidence to establish the guilt of the accused. The evidence of Dilbagh Singh is as under:-

24. Mr.Bareja, learned counsel for the petitioner, submitted that Sepoy Badan Singh, who was an eyewitness, had not been examined and that vitiates the proceedings. No explanation is forthcoming from the respondents as to why Sepoy Badan Singh was not examined at the time of recording of Summary Evidence or at the time of the Summary Court Martial.

25. The learned counsel, Mr.Bareja, submitted that provisions of Army Rule 34 had not been followed. According to the learned counsel for petitioner, the charge-sheet dated 2.7.1994 annexed as B-2 by the proceedings was not furnished to the petitioner and the petitioner was served with a tentative charge-sheet on 1.7.1994 and the final charge-sheet was not given to him. The answer is that what was given is final charge-sheet and the description as 'tentative charge-sheet' was a mistake. Mr.Bareja, learned counsel for the petitioner submitted that the time of the offence is stated to be at 21.30 in the charge-sheet but the witnesses speak to a different time and, therefore, according the learned counsel, the Commanding Officer had not applied his mind to the events. The learned counsel for the petitioner raised various other contentions but I am of the view that in view of the what has been discussed above, it is not necessary to go into the other points.

29. Mr.Bareja, learned counsel for the petitioner submitted that the entire SCM proceedings, as per the record produced, would appear to have been concluded in just an hour. According to the learned counsel, the Commanding Officer had typed out the entire proceedings. He had not taken the signatures of the petitioner in any of the roceedings. Though the petitioner was present at the time of the SCM, he was not asked anything and whole recordings had been made without his knowledge. Therefore, according to Mr.Bareja, the submission by Mr.K.C.Mittal, learned counsel for the respondents, that the fact that the petitioner was present at the time of the Court Martial trial what the petitioner stated would not be correct, cannot be accepted.