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| HC sets aside writ court judgement, awards 7-yr imprisonment to jawan | | | Early Times Report
Jammu, Apr 23: In a case of rape of a woman and her daughter by an army man at Nowgam in Banihal area of erstwhile Doda district in which a single judge had set aside the judgment of summary general court martial (SGCM), which had awarded seven years' rigorous imprisonment to the accused, a high court division bench headed by Chief Justice N Paul Vasanthakumar today set aside the writ court order in this context and restored the SGCM sentence.
The bench observed that the impugned judgment handed down by the writ court suffered from gross legal infirmity. "Cogent, credible and convincing testimony of the prosecutrix, duly proved medical report of sexual assault on her and the convincing account of Capt Ajeet Singh regarding extra judicial confession of the respondent have been improperly rejected. The impugned judgment of writ court is legally unsustainable and hench is set aside. The conviction and sentence awarded by SGCM as well as the dismissal order of the respondent are restored," the bench directed.
The LPA was filed by Union of India against the writ court judgement. The impugned judgment was assailed on the ground that since there was no challenge with respect to the composition of SGCM or the procedure adopted in the court martial proceedings, there was no scope for judicial review and that the writ court could not have exercised powers of an appellate authority while sitting in judicial review and evidence could not be re-appreciated to come to a conclusion that it was insufficient for supporting the conclusions reached by SGCM.
The respondent, holding rank of a Captain, was posted as Commander of C-Company 12 RR at Upper Gund in Banihal at that time. On February 15, 2000, some Nowgam people lodged a compliant with police, alleging therein that four armymen came to the village in civvies on February 14, 2000. While two entered the house of Sanaullah Tantray at about 8.30 pm, the other two kept standing outside. It was alleged that the two, who had entered the house, had allegedly raped the wife and daughter of house owner.
Investigation revealed that on February 14, 2000, an ambush party from C-Company under Capt Ravinder Singh Tewatia had gone to Nowgam in the evening . The party was accompanied by seven other ranks and three SPOs. They had broken into two groups. While one group of seven other ranks was deployed at the house of Abdul Gani Rather, the second group consisting of one officer and three SPOs had proceeded towards the house of Sanaullah Tantray. SPOs Sanjay Kumar and Shailender Singh stayed at some distance from the house as the officer leading them told them to wait there. The officer and third SPO Bharat Bhushan entered the house. On the basis of a confession, respondent was nominated as an accused. The confession was to the effect that he had sexual relationship with the victim.
During the victim's medical examination at civil hospital, Banihal, it was revealed that she had been sexually assaulted. 12 RR CO then ordered a Court of Inquiry which completed its proceedings on March 6, 2000. This was followed by an identification parade conducted by executive magistrate, Banihal, on March 5, 2000. The victim had identified the respondent as perpetrator of rape committed on her. Further proceedings were ordered to be conducted under Army Act by convening SGCM after the option was exercised by army authorities to try the accused before court martial. The respondent was convicted under section 376 of RPC read with section 69 of Army Act and sentenced to seven years' rigorous imprisonment. Since the revision preferred by the respondent was rejected, Delta Force GOC promulgated the sentence on December 19, 2000. The sentence was challenged before the writ court which quashed the proceedings.
Division Bench observed that the testimony of prosecutrix "stands corroborated by medical evidence apart from the testimony of other witnesses. Extra-judicial confession made by the respondent before Capt Ajeet Singh lends further assurance to the victim's testimony in establishing his complicity as the perpetrator of crime.
"The writ court, perhaps, failed to remind itself that it was not hearing an appeal and it was not required to reappraise the findings recorded on evidence by the court martial. The writ court exceeded its jurisdiction in usurping the role of Appellate Court and proceeded to re-appraise evidence as if it was required to determine guilt or innocence of accused. It is queer that the testimony of the victim of crime has been rejected for reasons which are far from convincing and overlook the guidelines laid down by the Apex Court in evaluating the evidence of a rape victim. The impugned judgment is unsustainable and cannot be supported," the bench observed.
"The impugned judgment of the writ court suffers from gross legal infirmity. Cogent, credible and convincing testimony of prosecutrix, duly proved medical report of sexual assault on the victim and convincing account of Capt Ajeet Singh regarding extra judicial confession of respondent have been improperly rejected. The impugned judgment is legally unsustainable and hence is set aside," the bench directed. |
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