inconsistency between the medical evidence and the oral testimonies of the witnesses -no blood on the weapon and the prosecution was unable to prove that there were any finger prints of the Respondent on the weapon.-the Respondent was not afforded an opportunity as provided in Rules 179 and 180 of the Rules – summory courtMartial order is liable to be set aside. On 02.06.2011, at about 07:45 hrs, he assaulted Subedar/Master Technical (Communication) Satyendra Singh Yadav, with a Talwar (grass cutting tool) without any provocation. Initially, the Respondent hit Subedar/Master Technical (Communication) Satyendra Singh Yadav on his head from behind and when Subedar/Master Technical (Communication) Satyendra Singh Yadav turned around, the Respondent hit on his forehead with the Talwar. When the Respondent attempted to give a third blow, Naib Subedar A. P. Singh intervened. = The prosecution alleges that the Respondent refused to cross-examine the witnesses though he was given an opportunity to do so. By an order dated 23.07.2012, the Summary Court Martial found the respondent guilty and imposed the sentence of dismissal from service. = The Tribunal held that there was an irreconcilable inconsistency between the medical evidence and the oral testimonies of the witnesses. According to the medical certificate, the injury caused to Subedar/Master Technical Satyendra Singh Yadav was a compressed injury whereas the Respondent is alleged to have wielded a grass cutting tool which is sharp-edged. The Tribunal also found that there was no blood on the weapon and the prosecution was unable to prove that there were any finger prints of the Respondent on the weapon. The Tribunal agreed with the Respondent that the Summary Court Martial was conducted in a hasty manner. The entire enquiry was completed within a period of 45 minutes. After perusing the record of the summary of evidence, the Tribunal was of the opinion that the signatures of the Respondent appear to have been taken before the proceedings were held. The Tribunal found that the signatures of the Respondent were at the right-side corner at the bottom of every page. On some pages where the depositions of the witnesses concluded at the middle of the page, the signature of the Respondent was found at the right side at the bottom of the page. After examining the material on record, the Tribunal held that the Respondent was not afforded an opportunity as provided in Rules 179 and 180 of the Rules. The Tribunal was of the further opinion that the procedure prescribed in Rules 115 and 116 of the Rules which deals with recording the plea of guilt of a delinquent was not followed. After a detailed discussion, the Tribunal ruled in favour of the Respondent by holding that the imposition of the penalty of dismissal was with a pre-determined mind and was arrived at without following the procedure prescribed by law.= Apex court held that It is settled law that if two views can be reached, the one that leads to acquittal has to be preferred to the other, which would end in conviction. That apart, there is a clear violation of Rules 179 and 180 of the Rules and the respondent was deprived of an opportunity to defend himself. For the aforementioned reasons, the judgment of the Tribunal is upheld and the Appeal is dismissed.

Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.1627 of 2019
(@ Diary No.1052 of 2018)
Union of India & Ors.
…. Appellant(s)
Versus
Sepoy Pravat Kumar Behuria.
…. Respondent
(s)
J U D G M E N T
L. NAGESWARA RAO, J.

  1. This Appeal is filed against the judgment of the
    Armed Forces Tribunal, Regional Bench, Lucknow
    (hereinafter, ‘the Tribunal’) by which the order of
    dismissal of the Respondent dated 23.07.2012 was set
    aside.
  2. The Respondent was enrolled in the Indian Army as
    Sepoy in the Unit 981 AD Regiment Workshop on
    02.02.2002. He was posted at Jamnagar on 01.06.2011
    and was scheduled to be on the third night duty from
    04:00 hrs to 06:00 hrs. Thus, he was excused from
    physical training parade. On 02.06.2011, at about 07:45
    1
    hrs, he assaulted Subedar/Master Technical
    (Communication) Satyendra Singh Yadav, with a Talwar
    (grass cutting tool) without any provocation. Initially, the
    Respondent hit Subedar/Master Technical
    (Communication) Satyendra Singh Yadav on his head from
    behind and when Subedar/Master Technical
    (Communication) Satyendra Singh Yadav turned around,
    the Respondent hit on his forehead with the Talwar.
    When the Respondent attempted to give a third blow,
    Naib Subedar A. P. Singh intervened. Subedar/Master
    Technical (Communication) Satyendra Singh Yadav was
    immediately shifted to Gokul Hospital, Jamnagar and a
    surgery was conducted by a Neurosurgeon as his skull
    bone was fractured leading to internal bleeding and blood
    clotting in the brain.
  3. The Court of Inquiry was convened against the
    Respondent by Colonel Sanjay Khanna, Commanding
    Officer, 48 AD Regiment on 03.06.2011 to investigate into
    the circumstances which led the Respondent using
    criminal force against Subedar/Master Technical
    (Communication) Satyendra Singh Yadav. Nine witnesses
    were examined and the Respondent declined to cross2 | P a g e
    examine the witnesses though he was given an
    opportunity. The Respondent also did not make any
    statement in his defence. After appreciating the material
    on record, the Court of Inquiry recommended action to be
    initiated against the Respondent.
  4. The proceedings for recording the summary of
    evidence were initiated by Lt. Col. Amarvir Singh. Twelve
    witnesses were examined on behalf of the prosecution
    between 10.06.2011 and 15.06.2011. According to the
    Appellants, the Respondent declined to cross-examine the
    prosecution witnesses. The Respondent had voluntarily
    given a statement that he hit the victim with a grass
    cutting tool without any provocation. Thereafter, on
    20.10.2011, additional summary of evidence was
    recorded. Two additional witnesses were examined and
    witness No. 2 and 12 were re-examined in the presence of
    the Respondent. The prosecution alleges that the
    Respondent refused to cross-examine the witnesses
    though he was given an opportunity to do so.
  5. By an order dated 23.07.2012, the Summary Court
    Martial found the respondent guilty and imposed the
    sentence of dismissal from service.
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  6. The order dated 23.07.2012 was questioned by the
    Respondent before the Tribunal. The Respondent
    contended that he was kept in close arrest from
    02.06.2011 to 05.10.2011 without the permission from
    the Chief of the Army Staff. It was further contended that
    he was not given an opportunity to participate in the
    Court of Inquiry and during the recording of summary of
    evidence. He complained that the Summary Court Martial
    was conducted in a hasty manner. The entire proceedings
    before the Court Martial was completed within a period of
    45 minutes. It was further argued on his behalf that the
    oral evidence was inconsistent with the medical evidence.
    The Respondent’s case was that there was no incised
    wound on the head of the victim though the Respondent
    is alleged to have used a Talwar which is a sharp-edged
    weapon. He submitted before the Tribunal that noncompliance of the provisions of the Army Act, 1950 and
    the Army Rules, 1954 (hereinafter, ‘the Rules’) vitiated
    the Summary Court Martial proceedings.
  7. The Tribunal accepted the submissions made on
    behalf of the Respondent and held that there was an
    irreconcilable inconsistency between the medical
    4 | P a g e
    evidence and the oral testimonies of the witnesses.
    According to the medical certificate, the injury caused to
    Subedar/Master Technical Satyendra Singh Yadav was a
    compressed injury whereas the Respondent is alleged to
    have wielded a grass cutting tool which is sharp-edged.
    The Tribunal also found that there was no blood on the
    weapon and the prosecution was unable to prove that
    there were any finger prints of the Respondent on the
    weapon. The Tribunal agreed with the Respondent that
    the Summary Court Martial was conducted in a hasty
    manner. The entire enquiry was completed within a
    period of 45 minutes. After perusing the record of the
    summary of evidence, the Tribunal was of the opinion that
    the signatures of the Respondent appear to have been
    taken before the proceedings were held. The Tribunal
    found that the signatures of the Respondent were at the
    right-side corner at the bottom of every page. On some
    pages where the depositions of the witnesses concluded
    at the middle of the page, the signature of the
    Respondent was found at the right side at the bottom of
    the page. After examining the material on record, the
    Tribunal held that the Respondent was not afforded an
    5 | P a g e
    opportunity as provided in Rules 179 and 180 of the
    Rules. The Tribunal was of the further opinion that the
    procedure prescribed in Rules 115 and 116 of the Rules
    which deals with recording the plea of guilt of a
    delinquent was not followed. After a detailed discussion,
    the Tribunal ruled in favour of the Respondent by holding
    that the imposition of the penalty of dismissal was with a
    pre-determined mind and was arrived at without following
    the procedure prescribed by law.
  8. We have heard Mr. R. Balasubramanian, learned
    Senior Counsel for the Appellants and Mr. Sudhanshu S.
    Pandey, learned counsel appearing for the Respondent.
    The Court of Inquiry was ordered against the Respondent
    to investigate the circumstances under which he used
    criminal force against Subedar/Master Technical,
    Satyendra Singh Yadav. The Court of Inquiry assembled
    on 03.06.2011. During the Court of Inquiry, the
    statement of the Respondent was recorded in which he
    stated that he was not provided liquor at 20:00 hrs on
    01.06.2011 by Subedar/Master Technical Satyendra Singh
    Yadav. He was angry about the refusal of liquor due to
    which he attacked the victim by using Talwar on the
    6 | P a g e
    morning of 02.06.2011. Other witnesses, including the
    victim Subedar/Master Technical Satyendra Singh Yadav
    were examined in the Court of Inquiry.
  9. We have perused the original record relating to the
    summary of evidence which was recorded between
    10.06.2011 to 15.06.2011. The signatures of the
    Respondent are found on the right-hand side at the
    bottom of each page, at the same place on each page.
    The manner in which the signatures of the officer who
    recorded the summary of evidence and the other officers
    were put on certain pages would clearly show that the
    signature of the Respondent was taken in advance on
    blank papers. The statement of the Respondent was
    recorded under Rule 23 (2) of the Rules. Lt. Col. Amarvir
    Singh who recorded the summary of evidence certified
    that the summary of evidence containing 40 pages were
    recorded by him in the presence of the Respondent and
    that Clauses (1), (2), (3) and (4) of Rule 23 have been
    complied with while recording the summary of evidence.
    Even on this certificate, whereas the signature of Lt. Col.
    Amarvir Singh is at the center of the page, the signature
    of the Respondent is found at the right-hand side at the
    7 | P a g e
    bottom of the page. The second half of the page is left
    blank. A bare perusal of the recording would indicate that
    the signatures of the Respondent were obtained and filled
    up with the depositions of the witnesses later. The
    contention of the Appellant that the summary of evidence
    was recorded in the presence of the Respondent is not
    acceptable. We have also perused the additional
    summary of evidence which was recorded on 20.10.2011.
    The original record discloses that the signatures of the
    Respondent were taken earlier as there is a huge gap on
    certain pages between the place where the depositions
    have ended and the place where the signature of the
    Respondent is found. The certificate given by the officer
    recording additional summary of evidence on 20.10.2011
    actually ends with his signature at the center of the page
    and the signature of the Respondent was found at the
    bottom of the page without anything being written in
    between.
  10. After the judgment was reserved, the learned Senior
    Counsel appearing for the Union of India, handed over the
    original record pertaining to the Court of Inquiry. The
    proceedings of the Court of Inquiry were conducted
    8 | P a g e
    between 04.06.2011 and 08.06.2011 during which the
    statements of the Respondent and the other witnesses
    were recorded. The signature of the Respondent is found
    on the left-hand side at the bottom of each page. The
    statement of witness No.3, Naib Subedar A. P. Singh ends
    at the middle of page No.9 of the original record. The
    signature of the Respondent is found at the left-hand side
    at the bottom of the said page. Major Hemant Juneja,
    who was the Presiding Officer of the Court of Inquiry
    appears to have signed at the bottom of each page on the
    right-hand side. On some pages where the deposition
    ended at the center of the page, signature of Major
    Hemant Juneja is found. Resultantly, on some pages, the
    signature of the Presiding Officer i.e. Major Hemant Juneja
    is found at the appropriate place i.e. immediately after
    the deposition has ended, as well as at the right-hand
    side of the bottom of the page.
  11. The Summary Court Martial was held on 23.07.2012.
    The Respondent was charged for committing an offence
    under Section 326 of the Indian Penal Code, 1860 by
    causing grievous hurt to Subedar/Master Technical
    Satyendra Singh Yadav. We agree with the Tribunal that
    9 | P a g e
    the entire Summary Court Martial was held in a hasty
    manner. The enquiry commenced at 12.45 p.m. and
    concluded at 1.30 p.m. and the sentence was imposed at
    2.30 p.m.
  12. It is clear from the record that Respondent was not
    given an opportunity to cross examine the witnesses
    whose statements were recorded in the summary of
    evidence. The proceedings of Court of Inquiry, recording
    of summary of evidence and the Summary Court Martial
    have been conducted without following the procedure
    prescribed by the Act and the Rules.
  13. The Tribunal examined the evidence on record to
    hold that the prosecution failed to establish the guilt of
    the Respondent. The irreconcilable inconsistency
    between the medical evidence and ocular testimony, lack
    of scientific evidence like finger prints on the weapon and
    the absence of blood on the weapon have been taken into
    account by the Tribunal to hold that the charge against
    the Respondent was not proved.
  14. It is trite law that judgments of acquittal should not
    be disturbed unless there are substantial or compelling
    reasons. The substantial or compelling reasons to discard
    10 | P a g e
    a judgment of acquittal were examined by this Court in
    Ghurey Lal v. State of Uttar Pradesh
    1 which are as
    follows:
    ” 1…………
    i) The trial Court’s conclusion with regard to the facts is
    palpably wrong;
    ii) The trial Court’s decision was based on an erroneous
    view of law;
    iii) The trial Court’s judgment is likely to result in “grave
    miscarriage of justice”;
    iv) The entire approach of the trial Court in dealing with
    the evidence was patently illegal;
    v) The trial Court’s judgment was manifestly unjust and
    unreasonable;
    vi) The trial Court has ignored the evidence or misread
    the material evidence or has ignored material documents
    like dying declarations/ report of the Ballistic expert, etc.
    vii) This list is intended to be illustrative, not exhaustive.
  15. The Appellate Court must always give proper weight
    and consideration to the findings of the trial Court.
  16. If two reasonable views can be reached – one that leads
    to acquittal, the other to conviction – the High Courts
    /appellate Courts must rule in favour of the accused.”
  17. Applying the law laid down by this Court as stated
    above, we are of the opinion that the judgment of the
    Tribunal should not be interfered with.
    1 (2008) 10 SCC 450
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  18. We have carefully examined the evidence. A view
    that the respondent is guilty is possible on a scrutiny of
    the oral evidence. However, the relevant factors taken
    into account by the Tribunal present another probable
    view. It is settled law that if two views can be reached,
    the one that leads to acquittal has to be preferred to the
    other, which would end in conviction. That apart, there is
    a clear violation of Rules 179 and 180 of the Rules and
    the respondent was deprived of an opportunity to defend
    himself.
  19. For the aforementioned reasons, the judgment of the
    Tribunal is upheld and the Appeal is dismissed.
    ……………………………..J.
    [L. NAGESWARA RAO]
    ……………………………..J.
    [HEMANT GUPTA]
    New Delhi,
    November 06, 2019
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