1. Petitioner Ram Pravesh Shah was working as Sepoy/Ambulance Assistant in the Military Hospital at Allahabad. On 15-9-1988, the petitioner was charge-sheeted by the Commanding Officer for committing a civil offence of murder punishable under Section 302, I.P.C and for committing an offence of an attempt to murder punishable under Section 307, I.P.C and was directed to be tried by General Court-martial by order dated 20-9-88 passed by Officer Commanding Head Quarters Madras-Bihar-Orissa Area, Jabalpur. The charge-sheet and the order for trial of the petitioner passed by General Court-martial are being reproduced for convenience:

“The accused, Number 13948218 A Sepoy/Ambulance Assistant Ram Pravesh Shah of Military Hospital, Allahabad attached with 4 Air Formation Signal Regiment, is charged with:—

First charge Army Art Section-69 Committing a civil offence, that is to say, murder, contrary to Section 302 of the Indian Penal Code. In that he, At Allahabad, on 26 January, 1988, by causing the death of Number 13953522N Sepoy/Ambulance Assistant Abandan Bose of Military Hospital Allahabad Committed murder. Second charge Army Act Section-69 Committing a civil offence, that is to say, murder, contrary to Section 302 of the Indian Penal Code. In that he, at Allahabad on 26 January, 1988, by causing the death of Number 13924802Y Naik-Ambulance Assistant Ranjit Pal of Military Hospital Allahabad, committed murder. Third charge Army Act, Section-69 Committing a civil offence, that is to say attempt to murder, contrary to Section 307 of the Indian Penal Code. In that he at Allahabad, on 26 January, 1988, stabbed with a knife Number 13912891W Havaldar/Ambulance Assistant Chaukas Ram of Military Hospital, Allahabad with intent to kill him and thereby wounded the said Havaldar; Ambulance Assistant Chaukas Ram on his abdomen. Sd./- (Raj Kumar Kak) Place: Allahabad Colonel Dated: 15 September, 1988 Commanding Officer To be tried by a General Court-martial. Sd/- (Y.S Rawat) Colonel Colonel ‘A’ Place: Jabalpur For Officiating General Officer Dated: 20, Sep. 88 Commanding Head Quarters Madhya Pradesh Bihar and Orissa Area, Jabalpur.”

2. After holding the Court-martial proceedings the petitioner was awarded a punishment to suffer imprisonment for life and to be dismissed from service by order dated 3-12-88. Aggrieved by the aforesaid sentence of Court-martial the petitioner preferred an appeal under Section 164(2) of the Army Act to the Chief of Army Staff, Army Head Quarters, Southern Block, New Delhi. During the pendency of the aforesaid appeal, the petitioner filed the present writ petition in this Court, however, the petitioner's appeal has also been rejected vide order dated 11-10-89. Both the orders awarding sentence of life imprisonment and rejecting appeal of the petitioner are non-speaking-one sentence orders, as was permissible under the Rules at the relevant time. By means of an amendment application, the order rejecting the appeal has also been challenged in the writ petition. The amendment application has been allowed by the Court and the petitioner has been permitted to add grounds challenging the order passed in appeal and add relief in the writ petition for quashing the aforesaid order passed in the appeal.

3. I have heard learned counsel for the petitioner Shri Jagdish Singh Sengar and learned Additional standing counsel for Union of India, Sri Shishir Kumar.

4. Asfarbackason 9-1-1991 thepetitionerfileda supplementary affidavit bringing on record the entire Court-martial proceedings and the evidence adduced against the petitioner in the Court-martial proceedings. The aforesaid supplementary affidavit was accepted as part of the record and the delay in filing the application for bringing on record the relevant facts on record was condoned on 9-1-1991. Thereafter on 18-12-91 the respondents' counsel were granted three weeks' time to file reply to the supplementary affidavit filed by the petitioner and also counter-affidavit to the amended writ petition. Despite several orders subsequent thereto giving time to the respondents' counsel, no supplementary counter-affidavit has been filed., The writ petition as still at the admission stage. The matter was called for admission. Since counter and rejoinder affidavits have been exchanged and the matter is pending admission since 1989, the counsel for the parties agreed that the matter may be disposed of finally and the arguments of the case were heard for final decision by the consent of the parties' counsel. The writ petition is being disposed of at the admission stage in accordance with the Rule of the Court.

5. On 14-11-94 the hearing of the arguments began. During the course of hearing I directed the respondents' counsel to ensure that the record of the case is available to the Court for perusal. The matter was adjourned to 22-11-94 for the aforesaid purpose. Despite orders the record has not been produced before me and the arguments were concluded on 22-11-94. In the aforesaid background, I am proceeding to decide the case on the basis of the record of the Court-martial proceedings filed by the petitioner, which have not been controverted.

6. Learned Counsel for the petitioner has mainly contended that assuming the entire prosecution story to be correct and admitting the facts as stated by the prosecution witnesses no offence under Section 302, I.P.C is made out against the petitioner, as such, the decision of the Court-martial to the extent it punishes the petitioner for life imprisonment is patently arbi-: trary and as such, is liable to be interfered with by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. According to the petitioner's counsel if any offence of lessor gravity is made out, the Court-martial can punish the petitioner for lesser offence so made out against the petitioner.

7. In the aforesaid background, I have examined the statement of the prosecution witnesses who deposed against the petitioner in the Court-martial proceedings. These statements have been brought on record by the petitioner by means of supplementary affidavit referred to earlier.

8. The statements of the witnesses, who were either eye-witnesses to the incident or have heard the; cries of the deceased sepoys are being extracted for appreciating the submission of the learned counsel for the petitioner.

9. Fourth witness No. 1395040P Sep/AA Virendra Singh of MH Allahabad stated before the Court-martial:

“I identify sep R.P Shah, who is present as accused in the Court. Since 29 March 87, 1 am posted at MH Allahabad. On 26 Jan. 88, issue of Rum was made in the unit. The distribution of Rum was being made by Ha v. Chaukas Ram and the accused. I took my Rum and after drinking it went to lunger to have my dinner. I returned my barrack by about 20.15 hours. While I was going to my barrack I saw Ha v. Chaukas Ram in his barrack. After some time I heard some noise. came out and saw Ha v. Chaukas Ram, accused and sep. A Bose were involved in a scuffle. They were separated. In the meantime sub B Sonavene, Duty JCO Ha v. R.B Pandey, Duty NCO came. They asked us to go in barrack and sleep. Suddenly I heard somebody was shouting Bachao Bacho, Shah ne Hame Chaku Mar Diya hai or words to that effect (save save I have been stabbed by Shah or words to that effect). I came out of room and saw sep A Bose was shouting for help.”

“I came out to see what was happening I saw Ha v. Chaukas Ram, Sep A Bose and the accused were pushing each other. Soon after sep Ram Sajiwan NK Ranjit Pal also arrived there and then we all separated them.”

The attention of witness was drawn to his following statement made by him at the time of recording summary of evidence.

“When I reached the room of Ha v. Chaukas Ram to see what was happening there. Ha v. Chaukas Ram told sep A Bose to close the door. He was beating sep R.P Shah. I opened the door and separated sep R.P Shah from Ha v. Chaukas Ram.”

The witness was asked to clarify whether the statement made by him before the Court is true or his earlier statement made before the officer recording’ summary of evidence was true.

The witness clarified the statement made by him before the Court is true and he meant the same when his statement was recorded by the officer recording summary of evidence.”

The attention of witness is drawn to following lines of his statement recorded in summary evidence. Sep. R.P Shah came out of the room and ran towards the staircase. By the time he could reach the first step of the staircase, Ha v. Chaukas Ram followed him and caught hold of his collar with force. As a result sep. R.P Shah fell down on the floor.”

10. The witness clarified, the statement made by him before the General Court-martial is true. The part of my statement read above recorded at the time of recording of summary evidence is also true.

11. N.K Ranjit Pal, L/NK Ram Sajiwan, Ha v. Chaukas Ram sep Abose and the accused were scuffing with each other. However, I cannot say, “who were beating whom.”

12. The attention of witness is drawn to following lines of his statement recorded in summary of evidence:—

“Ha v. Chaukas Ram Sep A Bose, L/NK Ram Sajiwan and N.K Ranjit were beating him.”

13. The witness clarifies the statement made by him before the Court is true.

14. I had cordial relation with sep A Bose. To my best of knowledge, the relation between Sep R.G Shah and sep A Bose were cordial. I do not remember if sep A Bose had raised any voice before the stabbing incident — After coming to barrack, I heard somebody was shouting “Dam hai to kholo or words to that effect I could not identify the voice.

Questioned by the Court

Last time, I had seen the accused in the varandah of out barrack. After reaching MI Room I saw HK Ranjit Pal was also lying on bed.

No question suggested by the prosecution and the defence counsel through the Court.

Statement of second witness No. 13944568P Lance/Naik/Ambulance Assistant M.P Yadav of Military Hospital, Allahabad:

I identify sepoy/Ambulance Assistant Ram Pra-vesh Shah, who is present as accused in the Court. Since Aug. 87, I am posted at Military Hospital, Allahabad and was present on 26 Jan. 88. On that day roll call took place at 18.00 hours and we were told that free issue of Rum would take place in evening. Accordingly, I went to collect my share of them. The distribution of Rum was being done by Ha v. /Ambulance Assistant Chaukas Ramand the accused.

I saw that Ha v. /Ambulance Assistant Ram Sajiwan, Naik/Ambulance Assistant Ranjit Pal, Sepy/Ambulance Assistant Anandan Bose and the accused, were taking Rum together in the room of Ha v. Chaukas Ram. After reaching to my barrack. I went to sleep at about 20.15 hrs. After some time I heard some noise. I got up and came out of my barrack I saw that the above named persons were fighting among themselves. They were separated and pacified. After some time accused was pushed by Ha v. Chaukas Ram and he fell down on ground. In the meantime subedar Sangvane, Duty JGO and Ha v. R.B Pandey, Duty NCO also reached there. Duty J.C.O told every body not to make noise as a party was in progress in Military Hospital, Allahabad. Thereafter everybody went in barracks. Lights were switched off and every body went to sleep. I would have hardly slept for any time sep Anandan Bose came to barrack and knocked the door. He shouted that Sep L.P Singh, this incident had taken place because of you and you were sleeping. Thereafter, the door of barrack was opened. Sep Anandan Bose came inside and after some time, he went to MT line. Suddenly, I heard the noise of Naik Ranjit Pal saying that, Shah has stabbed me.”… Thereafter, I had seen Ha v. Chaukas Ram was hitting the accused. Soon after they were separated. I had heard “Shah ne muzhe chaku mar diya hai or words to that effect (Shah has stabbed me or words to that effect) statement of third witness No. 13942926 L/NKsafaiwalaP.S Raydu:

“Since 17 Jan. 19861 am posted at MH Allahabad. Twas detailed for patrolling duty on 26 Jan. 88 from 2200 to 0001 hrs. While coming to report on duty, when I was near surgical ward, I heard some noise was emanating from building No. 9. When I reached near Dental Centre I saw two persons were coming. One of them was staggering. Suddenly I heard one of them was calling me. The distance between us was about 100 yards. I immediately ran. I recognised them, they were L/NK M.P Yadav and N.K Ranjit Pal L/NK M.P Yadav told me that N.K Ranjit Pal has been stabbed. I helped L/NK M.P Yadav in taking N.K Ranjit Pal to M.I Room.

Cross examined by the defence counsel

I do not remember whether or not the night on 26 Jan. 88 was a moon lit night. But there was sufficient illumination due to street lights. When I spotted that two persons were approaching me I found they were next to street light. When I reached near them, L/NK M.P Yadav said “Bhaiya inko chaku laga hai, Madat Karo or words to that effect). I-had inquired from L/NK M.P Yadav that who had stabbed N.K Rajit Pal, I heard that K M. Yadav was telling something. But 1 could not hear properly. The attention of witness was drawn to his following statement made at the time of recording of Court of inquiry.

“I had inquired from L/NK M.P Yadav that who had stabbed to N.K Ranjit Pal. But he did not reply.”

15. The witness clarified that the statement made by him before the General Court-martial is true.”

16. The first and fifth prosecution witnesses are only formal witnesses and they are not the witnesses of the seen of occurrence, as such, it is not necessary to mention their statements.

17. The sixth prosecution witness No. 13966691 Sep/Amb Asst. R.G Singh of HM Allahabad stated:

“There was a Rum issue day on 26 Jan. 88. The distribution of Rum took place at about 19.00 hours.

“I saw Ha v. Chuakas Ram was holding one hand of the accused telling him, “what do you think for your self?” Sep A Bose was also present there. Sep Virendra Singh was trying to separate them. N.K Ranjit Pal, L/NK Ram Sajiwan, Sep A Bose, Sep L.P Singh were also present there. They were abusing each other. In the meantime, I heard the noise of duty NC 0, he was saying” why you all are making noise? Why you all had not slept till now?” Thereafter I went to sleep. After about half an hour, I heard the noise. I have been stabbed by Shah.” Thereafter I switched off the light. Sep Virendra Singh and myself got up from our bed. Sep Virendra Singh went out to see what happened. I followed Sep Virendra Singh. After coming out I saw Sep A Bose lying on ground. Sep A Bose was whispering I have been stabbed by the accused.”

The attention of witness is drawn to following lines of his statement recorded injummary of evidence—

“Sep Virendra Singh and myself got up, switched on the-Hghts and found that Sep A Bose was lying on the floor in front of our room we tried to lift him and we found him unconscious.” The witness clarifies that I had made the same statement before officer recording summary of evidence which I am reiterating before the Court. I have not changed my statement in order to falsely implicate the accused.”

18. The aforesaid statements have been extracted not with the object of scrutinising the evidence of the prosecution or reappreciating the same for arriving at a conclusion as to whether the petitioner-accused has committed the offence or not, such a scrutiny is beyond the scope of this Court exercising its juris diction under Article 226 of the Constitution of India. Only point which requires consideration as to whether taking the entire evidence together can it be held that the prosecution has proved that the petitioner-accused has committed offence punishable under Section 302, I.P.C for which the petitioner has been found guilty and has been punished for the same.

19. For convenience Sections 300 and 302 are reproduced:

“300. Murder—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—

2ndly—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or

3rdly—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—

4thly—If the person committing the act known that it is so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or. such injury as aforesaid.”

302. Punishment for murder whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.”

20. On facts as stated by the prosecution witnesses accepting them all to be true not adverting to the contradictions of the witnesses made by them at the stage of summary enquiry and the statement made before the Court-martial, it is clear that 26-1-1988 was a day of distributing Rum in the Army. Consequent thereto free Rum was being distributed to each sepoy and all the sepoys including the petitioner accused in Court-martial and deceased Sepoy and the witnesses examined in the Court-martial proceedings have taken Rum and there was scuffle going oh between the Sepoy may be on the ground that the petitioner accused was incharge of distributing Rum and some of the Sepoys including the deceased person were angry on him for not distributing Rum properly or’ even this seems to be a cause of action for giving rise to. an incident in which according to the prosecution witnesses themselves a scuffle took place between the petitioner-accused and the deceased sepoy and other persons and at stages the petitioner-accused was being beaten by other sepoys and it looks that at one stage the petitioner-accused locked himself inside his room even then other shouted him to come out from the room if he has courage to face it. Apparently the scene makes it clear that all the sepoys including the petitioner-accused and the deceased sepoys were under intoxication of the Rum and in the aforesaid scuffle the petitioner-accused stabbed either as a retaliation of his being beaten by other sepoys or in the scuffle he has stabbed the deceased sepoys. The. prosecution witnesses have categorically admitted that the petitioner-accused and the deceased sepoys had cordial relations and there was no animus or enmity between them. As such, it is clear that assuming the prosecution story to be correct the stabbing done by the petitioner-accused cannot be said to be done with an intention either to kill the deceased sepoy or with an intention to cause such bodily injury to the deceased sepoy which is likely to result in death of the deceased sepoy.

21. On the basis of the aforesaid analysis it is clear that the petitioner-accused on the prosecution case itself cannot be held guilty for offence punishable under Section 302 or 304(1), I.P.C i.e committing murder with an intention to kill or committing culpable homicide not amounting to murder with an intention of causing death or of causing such bodily injury as is likely to cause death. Taking all the prosecution evidence together and specially the circumstance that the petitioner-accused and the deceased sepoy were at friendly relations before the date of the incident and further circumstance that all the sepoys including the petitioner-accused and the deceased sepoy were under intoxication of Rum and scuffle was going on between the sepoys in which at stages even the petitioner-accused was being beaten by other sepoys, the stabbing by the petitioner of the deceased sepoy cannot be held to be with an intention to kill or cause such bodily injury which is likely to result in death.

22. As stated earlier the charge for which the petitioner has been found guilty is under Section 302, I.P.C and on the prosecution evidence itself no case having been made out against the petitioner-accused for proving the offence under Section 302, I.P.C the question which calls for consideration in the present matter is can this Court in exercise of its jurisdiction under Article 226 of the Constitution of India interfere with the order of the Court-martial in th & circumstances of the present case. However, before adverting to the scope of interference in the Court martial proceedings it is also necessary to refer to the. arguments of the counsel for Union of India that the statements made by the prosecution witnesses in summary Court-martial proceedings cannot be taken into consideration for looking into the contradictions in the statements of the witnesses made by those witnesses in summary enquiry. The counsel for Union of India has submitted that the statements made by the prosecution witnesses in the summary enquiry cannot be looked into by the Court in support of the aforesaid submission learned counsel has placed reliance on Rule 182 of the Army Rules, which is as under:—

“182. Proceedings of Court of enquiry not admissible in evidence — The proceedings of a Court of enquiry, or any confession, statement, or answer to a question made or given at a Court of enquiry, shall not be admissible in evidence against a person subject to the Act, nor shall any evidence respecting the proceedings of the Court be given against any such person except upon the trial of such person for wilfully giving false evidence before the Court.”

23. The aforesaid Rule is pari materia with Section 162 of Cr. P.C

24. However, the proviso to the aforesaid section has not been incorporated in the present Rule, so a question may arise as to whether the aforesaid submission can be used for the purposes of contradiction in the statements of the witnesses concerned.

25. Be as it may, Rule 182 in itself only safeguards the right of the accused and the submissions made by the witnesses or confession made, if any, by the accused in the Court of enquiry is not admissible in evidence against the person subjected to the act and cannot be used against the accused but it is always open to the Court or to the accused to show to the Court that in summary enquiry the same witness who has deposed in the Court-martial proceedings has given altogether a different statement. There is no prohibition for using of the aforesaid statement, if the accused himself wants to rely upon such a statement.

26. This discussion is only with a purpose to eliminate submission of the counsel for Union of India that the statement made by the prosecution witnesses in the Court of enquiry cannot be looked into. However, since I have not addressed myself on the question of appreciation of evidence, the present discussion is only academic so far as the decision in the present case is concerned, though I am conscious of the fact that no academic discussion need form part of the judgment of this Court.

27. The scope of interference by the Court in the Court-martial proceedings has been considered in S.N Mukherji v. Union of India, (1990) 4 SCC 594 : AIR 1990 SC 1984 wherein the Court has held that the Supreme Court as well as the High Court under Article 226 of the Constitution have the power of judicial review in respect of the proceedings of the Court-martial as well as the proceedings subsequent thereto, even though to a limited extent and Court can in appropriate cases grant relief where there has been denial of the fundamental rights of the citizen or if the proceedings before the Court-martial suffer from a jurisdictional defect or any other substantial error of law apparent on the face of the record. The aforesaid view has been reiterated by the Apex Court in Bhuwaneshwar Singh v. Union of India, (1993) 5 JT (SC) 154 : (1993 AIR SCW 3072).

28. Within the aforesaid limited scope the decision of the Court-martial in the present case is open to review. On the facts stated above, I am satisfied that a patent error of law has been committed by the Court-martial in holding the petitioner-accused guilty under Section 302, I.P.C as on the prosecution evidence taken as it is, there is no allegation worth the name that the petitioner-accused has intentionally killed the deceased sepoy or has intentionally inflicted such injuries on the deceased sepoy which now is likely to cause death of the deceased sepoy, as such, the sentence of imprisonment for life awarded by the Court-martial for committing an offence under Section 302, I.P.C for which he was charged, suffers from substantial error of law apparent on the face of the record.

29. On the basis of the aforesaid decision, I set aside the conviction of the petitioner-accused awarded by the Court-martial vide its order dated 3-12-88 (Annexure-3) and the order dated 11-10-89 rejecting the petitioner's representation and in view of the above, I accordingly direct that the respondents should again hold the the general Court-martial against the petitioner for reviewing the punishment awarded to the petitioner-accused in accordance with law and if necessary the charge against the petitioner-accused can be reframed on the basis of the evidence of the prosecution. The General Court-martial proceedings need not go through the entire exercise of Court-martial proceedings against the petitioner again. The general Court-martial will consider the only question of sentence awarded to the petitioner in the light of the observations made in this judgment.

30. Lastly I wish to point out that now in the Army Rules Section 62(1) has been amended from January, 1994 which castes an obligation on the Court-martial to record reasons in support of the findings recorded in the Court-martial proceedings of the accused being guilty or not guilty. The aforesaid amendment has been made in the rule keeping in mind the observations of the Hon'ble Supreme Court in S.N Mukherjee case ((1990) 4 SCC 594 : AIR 1990 SC 1984) (supra). In view of the fact that the matter is being sent back to the Court-martial for consideration on the question of sentence on the petitioner-accused, it is appropriate that the General Court-martial will give verdict on the petitioner-accused in accordance with the amended Rule 62(1) of the Army Rules, as it stands today.

31. With the aforesaid observations, the writ petition stands allowed. The orders dated 3-12-88 and 11-10-89 are quashed. In the circumstances of the present case, the parties will bear their own costs.

32. Petition allowed.