Supreme Court of India
AJAY KUMAR SINGHversusTHE FLAG OFFICER COMMANDING-IN-CHIEF & ORS.
- Citation
- 2016 INSC 522
- Decided
- 13 July 2016
- Disposal
- Dismissed
- Bench
- T S THAKUR
Holding
The Supreme Court affirmed the convictions of AK and UK, held the Tribunal’s disbelieving of the eyewitness identification erroneous, and ruled that DK’s benefit‑of‑doubt acquittal does not merit reinstatement.
Summary
Three naval personnel (AK Singh, UK Singh and DK Singh) were accused of a bank robbery at the Andhra Bank counter in INS Virbahu. The Court Martial convicted AK and UK, dismissing them with disgrace, while the Armed Forces Tribunal later affirmed their convictions based on eyewitness testimony of the bank manager (PW‑14) and cashier (PW‑18) and fingerprint evidence, despite procedural lapses. The Tribunal acquitted DK, giving him benefit of doubt, and denied his request for reinstatement. On appeal, the Supreme Court held that the Tribunal erred in disbelieving the credible identification by PW‑14 and PW‑18 and affirmed the convictions of AK and UK. It also ruled that DK’s acquittal, not being an honourable one, does not entitle him to reinstatement. Consequently, all appeals were dismissed.
Issues considered
- The credibility of eyewitness identification by PW‑14 and PW‑18 despite the accused wearing helmets and visors.
- The admissibility and weight of fingerprint expert evidence given procedural lapses.
- Whether the Armed Forces Tribunal erred in disbelieving the eyewitness identification.
- Whether an acquittal without honourable discharge permits reinstatement under service law.
- The scope of Section 30 of the Armed Forces Tribunal Act for Supreme Court review of Tribunal findings.
Legislation cited
- Armed Forces Tribunal Act, 2007s. 30
- Arms Act, 1959s. 25(1-A)
- Identification of Prisoners Act, 1920s. 5
- Indian Evidence Act, 1872s. 27
- Indian Penal Code, 1860s. 342, s. 392
- Navy Act, 1957s. 49(2)(b), s. 51, s. 60(a), s. 77(2)
Subjects
bank robberyeyewitness identificationidentification paradefingerprint evidencearmed forces tribunalreinstatementdismissal with disgraceSection 30 reviewservice lawhonourable acquittal
Judgment
[2016] 5 S.C.R. 957
AJAY KUMAR SINGH A
v.
THE FLAG OFFICER COMMANDING-JN-CHIEF & ORS.
(Criminal Appeal No. 325of2012)
JULYl3,2016
B
[T.S. THAKUR, CJI AND R. BANUMATHI, J.]
Penal Code, 1860:
ss. 342 and 392 rlw. s.25(1-A) of Arms Act ands. 77(2) of
Navy Act, 1957 - Bunk robbery by 3 Navy officials - Court Martial
trial - Conviction on the basis of the witnesses PWs 14 and 18 c
(Bank Manager and Clerk) - Their dismissal with disgrace
alongwith other consequential penalties - In statutory appeal
conviction confirmed - Armed Forces Tribunal disbelieved the
identification of the three accused persons by PWs 14 and 18 -
Convicted the accused 'AK' and 'UK' on the basis of evidence of
Fingerprint Expert proving the chance fingerprint to be that of D
appellants 'AK' and 'UK' - Appellant 'DK' was acquitted giving
him benefit of doubt -Appeals by accused 'AK' and 'UK' assailing
their conviction and by accused 'DK' seeking his reinstatement in
service in view of his acquittal - Held: Evidence of PWs 14 and 18
as regards the identification of the accused persons could not have E
been disbelieved - The lapses in the evidence of the fingerprint
expert cannot result in acquittal of the two appellants 'AK' and
'UK' - So far as the third appellant 'DK' is concerned though his
identification as accused in confirmed as evidence of PWs J.I and
18 are reliable, but in absence of States appeal against his acquiual,
his acquittal cannot be interfered with - He cannot claim F
reinstatement as he has been acquitted giving benefit of doubt - An
employee can claim reinstatement only when he has been honourably
acquitted - Even in view that he was identified by PWs 14 and 18,
he cannot be reinstated -Arms Act, 1959 - s. 25 {1-A) - Navy Act,
1957 - s. 77(2) - Service Law - Reinstatement. G
Armed Forces Tribunal Act, 2007 - s.30 - Power under - Scope
of - Held: In exercise ofp01rer u/s.30,Supreme Court normally does
not reappreciate the evidence and is slow in inte1:fering with the
findings of the Armed Forces Tribunal, unless there is substantial
question of public importance.
H
957
958 SUPREME COURT REPORTS [2016] 5 S.C.R.
A Service Law - Reinstatement - Acquittal in criminal case does
not entitle a person to automatic reinstatement - Only if the employee
is acquitted honourably (not on benefit of doubt), he can claim
reinstatement.
Dismissing the appeals, the Court
8 HELD: 1.1 In exercise of power under Section 30 of the
Armed Forces Tribunal Act, this Court normally does not re-
appreciate the evidence and is slow to interfere with the findings
of the tribunal unless there is substantial question of public
importance. But when it is found that appreciation of evidence in
a given case is vitiated by serious error, this Court can re-
c appreciate the evidence and interfere with the findings. [Para
17] [968-G]
1.2 The tribunal was not right in disbelieving the evidence
of PW-14 (Manager) and PW-18 (Cashier) as to the identification
of the appellants as the culprits who committed robbery in the
D bank. They have clearly spoken about the occurrence that on
the date of incident, three persons entered into the bank and
threatened PW-14 and PW-18 by showing gun and committed
robbery in the bank. Since they were still at work in the bank at
the time of the incirlent, it is reasonable to assume that there was
enough light to do so inside the bank. From the evidence of PW-
E 14 and PW-18, it is clear that the incident lasted for a brief period
during which the appellants were talking to each other. As per
the evidence of PW-14 and PW-18, while the culprits were so
conversing lifting their visors, they were able to see the culprits.
It is obvious that the extraordinary situation, in which the
F incidence occurred must have left an indelible impression in the
mind of the witnesses about the identity of the culprits.
Immediately after the incident, PW-14 (Manager) lodged the
complaint before Police Station wherein he gave the descriptive
particulars of the three culprits namely their age, height, colour
complexion etc. and also given the details of the weapons. Identity
G of the appellants by PW-14 and PW-18 in the court is also
corroborated by identification of the appellants by PW-14 and PW-
18 in the test identification parade. [Paras 12 and 14] [965-D-G]
1.3 Evidence of PW-15-Fingerprint Expert incriminates the
appellants AK and UK. However, in proving this incriminating
H evidence, there seems to be lapses on the part of the prosecution.
AJAY KUMAR SINGH v. THE FLAG OFFICER 959
COMMANDING-IN-CHIEF & ORS.
The nature of lapse in the prosecution, in the present case, cannot A
result in acquittal of the appellants. The evidence adduced by
the prosecution must be scrutinized independently of such lapses
either in the investigation or by the prosecution or otherwise,
the result of the criminal trial would depend upon the level of
investigation or the conduct of the prosecution. Criminal trials
B
should not be made casualty for such lapses in the investigation
or prosecution. The conviction of the accused AK and UK is to
be affirmed on the evidence of PW-14 and PW-18, if not on the
evidence of fingerprint expert and the appeals are liable to be
dismissed;[Para 17) [967-G-H; 968-A, DJ
1.4 In so far as appellant-UK is concerned, prosecution c
has adduced evidence to show that after the incident, he has
deposited huge amount in his bank account. He has not explained
the source of such huge amount deposited in the bank which is a
strong incriminating circumstance against the appellant. (Para
18) [968-E-G) .
D
2.1 Tribunal disbelieved the identification of appellant-DK
by PWs 14 and 18. Though the evidence of PW-14 and PW-18 is
reliable in identifying the appellants, since Union of India has not
filed any appeal challenging acquittal of appellant-DK, the Court
cannot go into these aspects. [Para 20) (969-D-E]
2.2 Acquittal by a criminal court would not debar an employer E
from exercising power in accordance with the Rules and
Regulations in force. Acquittal in a criminal case does not entitle
a person to automatic reinstatement. Only if the employee had
been honourably acquitted, could he make a claim for
reinstatement. In the present case, the tribunal came to the F
conclusion that no satisfactory evidence had been adduced by ·
the prosecution to sustain the conviction of appellant-DK and
therefore the tribunal set aside the conviction giving him the
benefit of doubt. The appellant-DK was not honourably acquitted.
[Paras 21, 22 and 23) [969-F-H; 970-E-F; 971-A-B]
2.3 Moreover, as the identity of the appellants by PW-14 G
(Manager) and PW-18 (Cashier) is credible and acceptable,
evidence of PW-14 and PW-18 identifying appellant-DK as one of
the culprits is a factor to be reckoned with while considering his
plea for reinstatement. Additionally, appellant- DK had deposited
Rs.90,000/- in his bank account and the explanation of the appellant H
960 SUPREME COURT REPORTS [2016] 5 S.C.R.
A for this deposit is not convincing. [Para 24) [971-D-E]
Ajit Kumar Nag v. General Manager (PJ), Indian Oil
Corporation Ltd., Haldia and Ors. 2005 (3) Suppl. SCR
314 : (2005) 7 SCC 764; T.N.C.S. Corpn. Ltd. and Ors.
v. K Meerabai 2006 (1) SCR 540 : (2006) 2 SCC 255;
B Union of India and Am: v. Bihari Lal Sidhana 1997 (3)
SCR 364 : (1997) 4 SCC 385 - relied on.
Case Law Reference
2005 (3) Suppl. SCR 314 relied on Para 21
c 2006 (1) SCR 540 relied on Para 21
1997 (3) SCR 364 relied on Para 22
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
325 of2012.
D
From the Judgment and Order dated 11.11.2010 of the Armed
Forces Tribunal, Regional Bench, Chennai in T. A. No. 139 of2010 (W.
P. No. 21811 of 2000 High Court of Andhra Pradesh)
WITH
E Crl.A.No.471-472of2013
Crl.A. No. 626-627 of2016.
K. Parameshwar, Vishal Gupta, Kumar Mihir, Advs. for the
Appellant.
F K. Radhakrishnan, Ms. V. Mohana, Sr. Advs., Ms. Rashmi
Malhotra, Atulesh Kumar, S. N. Terdal, B. V. Balaram Das, Advs. for
the Re~pondents.
The Judgment of the Court was delivered by
G
R. BANUMATHI, J. 1. Delay condoned and leave granted in
SLP (Crl.) No.8037-8038 of2012.
2. Appellant-Ajay Kumar Singh (AK Singh), Ex-Seaman, First
Class (appellant in Criminal Appeal No.325of2012) and Umesh Kumar
Singh (UK Singh), Ex-Radio Operator (Special), First Class (appellant
in Criminal Appeals No.4 71-4 72 of 2013) have assailed the judgments
H
AJAY KUMAR SINGH v. THE FLAG OFFICER 961
COMMANDING-JN-CHIEF & ORS. [R. BANUMATHI, J.]
of Armed Forces Tribunal, Chennai°lri T.A. No.139 of 2010 dated A
11.11 .20 I 0 and T.A. No. I I of 2011 dated 05.01.2012 and order dated
17.02.2012 passed in Review Petition No.2 of2012 in and by which the
tribunal affirmed the conviction of the appellants under Sections 342 and
392 !PC read with Section 77(2) of the Navy Act, 1957 and modified the
sentence of imprisonment to that of the period already undergone by
B
them. Appellant Dhirendra Kumar Singh (DK Singh), Ex-Leading
Seaman, Physical Trainer, Second Class who was acquitted by the tribunal
with pensionary benefits, has preferred separate appeals seeking direction
for reinstatement and other monetary benefits. These criminal appeals
though assail separate judgments of Armed Forces Tribunal, Chennai,
as the appeals arise out of the same bank robbery incident, all the appeals c
were heard tpgether and ar_e disposed of by this common judgment.
3. Brief facts which led to filing of these appeals are as follows:
Mr. N .K. Marwaha, Branch Manager of Andhra Bank, Extension
Counter, situated at Utility Complex, INS Virbahu filed a complaint on
04.06.1998 at Malkapuram Police Station alleging that at about 7.20 D
p.m. while settling the accounts forthe day along with Nallamuthu Dass,
the cashier, noticed two persons entered the bank stating that they wanted
to open a bank account and the third person entered after them. Of
three persons, two were armed with two countrymade pistols, a khukri
and an iron rod and they together threatened the manager and cashier
to open iron safe. Manager-Marwaha and cashier opened the iron chest E
and the culprits removed Rs.2,54,376/- from the cash tray of the iron
safe and kept the same in the blue colour rexin bag which they were
carrying. They removed the money, the three persons locked the manager
and the cashier inside the strong room of the bank before escaping in a
metallic blue Bajaj Chetak scooter alongwith the blue colour cash bag. F
During the commission of the offence, the culprits were concealing their
identity by wearing helmets with visors and masks. After forcing open
strong room where they had been locked, the manager filed a complaint
on 04.06.1998 before Malkapuram Police Station based on which first
information report was registered in Crime No.34of1998 under Sections
392 and 342 IPC read with Section 25 (I-A) of the Arms Act. The G
Naval Police had taken over the investigation; but they were unable to
make headway into identity of the accused persons despite recovery of
the scooter and other articles on 23.07.1998. The investigation. was
then handed over to the civil police. After further investigation, civil police
H
962 SUPREME COURT REPORTS [2016] 5 S.C.R.
A arrested appellants AK Singh and UK Singh on 30.07.1998. Appellant
DK Singh was arrested at Howrah Railway Station on 24.07 .1998 and
thereafter brought to Visakhapatnam on 28.07.1998. On 30.07.1998 all
three persons were remanded to custody in central jail, Visakhapatnam.
Based on the statement of the accused persons, certain recoveries were
made. On 17 .08.1998, identification parade was conducted and PW s 14
B
and 18 identified the appellants.
4. The Commissioner of Police, Visakhapatnam vide letter dated
28.10.1998 advised the Flag Officer, Commanding-in-Chief, Eastern
Naval Command, Visakhapatnam to try the accused persons by Court
Martial. Therefore, the appellants were transferred to naval custody
c under the provisions of Section 475 Cr.P.C. read with Criminal Courts
and Court Martial (Adjustment of Jurisdiction) Rules, 1978 and the matter
was investigated afresh by the Commanding Officer, INS Circars. After
completion of investigation, chargesheet was filed against the appellants
on 26.06.1999 under Sections 392 and 342 !PC read with Section 77 (2)
D of the Naval Act and Section 25(1-A) of the Arms Act read with Section
77(2) of the Navy Act:-(i) for committing a robbery of Rs.2,54,3 71/- at
the Andhra Bank Extension Counter at INS Virbahu; (ii) for wrongful
confinement of the bank manager and cashier; (iii) for possession of
country made pistol and three rounds of ammunition whilst committing
the offence; and (iv) that accused had remained absent without leave.
E
The Court Martial was convened on 16.07 .1999 and the appellants were
tried before the Court Martial.
5. Before the Court Martial, twenty nine prosecution witnesses
were examined. Upon consideration of evidence, the Court Martial found
the appellants guilty of various charges and sentenced them to undergo
F various imprisonments. Additionally, all three appellants were imposed
punishment of dismissal with disgrace and to suffer such other
consequential penalties involved. The appellants preferred statutory
appeals before the Chief of the Naval Staff in accordance with Section
162 of Navy Act 1957. The Chief of Naval Staff confirmed the
G conviction of the appellants and reduced the imprisonment and maintained
dismissal of the appellants with disgrace from the naval service.
6. The details of charges framed against the appellants, findings
of the court martial, punishment and findings of the appellate authority/
Chief of the Naval Staff are as under:-
H
AJAY KUMAR SINGH v. THE FLAG OFFICER 963
COMMANDING-JN-CHIEF & ORS. [R. BANUMATHI, J.]
Name of Charges Framed Findings of the Findings of the A
the Court Martial and Appellate
Appellant PuniShment Authority/Chief
of the Naval
Staff
AK Singh I. Under Section Found guilty of Maintained the
392 IPC read with charges I and 2 under conviction and
Section 77 (2) Sections 392 and 342 reduced the
Navy Act. !PC read with Section sentence to
B
2. Under Section 77(2) Navy Act and twenty four
342 IPC read with sentenced to undergo months;
Section 77 (2) RI for sixty months; Confirmed
Navy Act. dismissal from dismissal from
3. Under Section service with disgrace service with
25 (I-A) Arms Act and to suffer disgrace.
read with Section
77 12) Navv Act.
consequential
nenalties involved.
c
UK Singh I. Under Section Found guilty of Maintained the
392 IPC read with charges I, 2 and 4 conviction and
Section 77 (2) under Sections 392, reduced the
Navy Act. 342 IPC read with sentence from
2. Under Section Sections 77(2) and 51 ninety six
342 !PC read with of Navy Act and months to
Section 77 (2) sentenced to undergo seventy two D
Navy Act. RI for ninety six tnonths;
3. Under Section months; dismissal confirmed
25 (1-AJ Arms Act from service with dismissal from
read with Section disgrace and to forfeit service with
77 (2) Navy Act. fourteen days mullets disgrace;
4. Under Section 'of pay and allowance forfeiture
51 Navy Act. and suffer mullets of pay
consequential and allowances E
penalties involved. for fourteen days
and to suffer the
consequential
penalties.
DK Singh I. Under Section Found guilty of Maintained
392 !PC read with charges I, 2,3 and 5 finding of Court
Section 77 (2) of under Sections 392, Martial except
Navy Act. 342 !PC read with on charge No.5
F
2. Under Section Sections 77 (2), 60 under Section
342 IPC read with (a) and 49 (2)(b) of 49(2)(b) who is
Section 77 (2) of the Navy Act. found guilty of
Navy Act. Sentenced to undergo alternate charge
3. Under Section RI fur 120 months under Section 5 I
60(a) Navy Act. dismissal from of the Navy Act
4. Under Section service with disgrace and reduced
25 (I-A) Arms Act and consequential sentence from
G
read with Section penalties involved. 120 months to
77 (2) Navy Act. 96 months.
5. Under Section Charge No. 4 - Not Reduced the
49 (2) (b) of Navy guilty. rank to Sea I.
Act. Alternatively,
under Section 51
Navy Act.
H
964 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 7. Challenging the conviction and the punishment of dismissal
with disgrace, the appellants have filed writ petitions before the Andhra
Pradesh High Court which upon constitution of the Armed Forces
Tribunal were transferred to Armed Forces Tribunal, Chennai and the
tribunal disposed ofthe appeals confirming the conviction of the appellants
AK Singh and UK Singh. The tribunal disbelieved the versions of PW-
B
14 (Manager) and PW-18 (Cashier) and held that PWs 14 and 18 could
not have seen the faces of the culprits at the time of committing the
crime since even according to the prosecution the accused covered their
faces with masks and helmets and were conversing only by lifting the
visors of the helmets. PW-15 fingerprint expert opined '"that fingerprints
c marked as 'A' and 'B' tallied with the specimen fingerprints of
appellants AK Singh and UK Singh" (Exs.P46 and P4 7). Based on
the evidence of PW-15 V. Hanumantha Rao, Fingerprint Expert, the
. tribunal confirmed the conviction of the appellants-AK Singh and UK
Singh and reduced the sentence of imprisonment imposed on the
appellants AK Singh and UK Singh to the period already undergone by
D
them and maintained their dismissal.
8. In so far as DK Singh is concerned, the tribunal held that there
is no satisfactory evidence to establish his guilt and acquitted him giving
him benefit of doubt. The tribunal directed that DK Singh 's period of
arrest till the date of sentence by the Court Martial shall be counted for
E the qualifying service to enable DK Singh to get his pension. The tribunal
however held that DK Singh shall not be entitled to any monetary benefit
like backwages etc. for the interregnum period except that the same is
counted for qualifying service for getting pension. Being aggrieved by
declining the relief of reinstatement and other monetary benefits, DK
F Singh has preferred Criminal Appeals arising out ofSLP(Crl.) No. 8037-
8038 of2012.
9. Learned counsel for the appellants and appellant DK Singh
who appeared in person reiterated the pleas urged before the court martial
and the tribunal and submitted that great injustice has been done to the
appellants in not following the procedure established by law inasmuch
G as there was non-compliance of the provisions of Section 5 of the
Identification of Prisoners Act, 1920 in taking the fingerprints of the
appellants. It was submitted that the photographs of the appellants were
taken and were shown to the PW-14 (manager) and PW-18 (cashier) to
enable them to identify the appellants-accused without which, it would
H not have been possible for PW-14 and PW-18 to identify them since
AJAY KUMAR SINGH v. THE FLAG OFFICER 965
COMMANDING-IN-CHIEF & ORS. [R. BANUMATHI, J.]
even according to the prosecution version when they entered the bank A
in order to conceal their identity, they were wearing helmets and visors.
It was submitted that the Court Martial and the Tribunal committed serious
error in appreciating the evidence and material on record.
I 0. Per contra, learned couns~l for the respondents submitted that
the case of the appellants have been extensively dealt with by the tribunal B
and all the questions oflaw and fact have been considered at length and
the tribunal has passed a reasoned order wherein all the issues raised by
the parties have been considered and the impugned order warrants no
interference. In so far as appellant-DK Singh it was submitted that
acquittal in the criminal case does not entitle him for reinstatement as he
was not honourably acquitted but was given benefit of doubt and cannot c
claim reinstatement as of right.
11. We have carefully considered the rival contentions and perused
the impugned judgments and ~aterial on record.
12. PW-14 (Manager) and PW-18 (Cashier) have clearly spoken
about the occurrence that on the date of incident on 04.06.1998, three D
persons entered into the bank and threatened PW-14 and PW-18 by
showing gun and committed robbery in the bank. Before the Court
Martial, PW-14 and PW-18 have identified the three appellants as the
culprits who committed robbery in the bank. PW-14 and PW-18 have
also spoken about the identification parade held in the prison and that
E
they have identified the appellants in the test identification parade.
13. The tribunal disbelieved the evidence of PW-14 and PW-l8c-
and their identification of the appellants on the ground that they could
not have seen the faces of the culprits at the time of commission of
offence, since even according to the prosecution, the appellants were
covering their faces with masks and helmets with visors and they lifted F
the visors only while conversing with the bank personnel and tribunal
held that there was no possibility of PW-14 (Manager) and PW-18
(Cashier) seeing the faces of the accused. The tribunal further relied
upon the representation made by the appellants to the Metropolitan
Magistrate that they had been photographed by the police to enable the G
eye-witnesses (PW s 14 and 18) to identify them in the test identification
parade and on those findings, the tribunal disbelieved the evidence of
PW-14 and PW-18 insofar as the identification of the appellants.
14. The tribunal, in our view, was not right in disbelieving the
evidence of PW-14 (Manager) and PW-18 (Cashier) as to the
H
966 SUPREME COURT REPORTS [2016] 5 S.C.R.
A identification of the appellants as the culprits who committed robbery in
the bank. The occurrence was at 7.20 p.m. on 04.06.1998. At the time
of occurrence, the bank personnel including PW-14 and PW-18 were
working and settling the accounts and were about to close the bank.
Since the bank personnel were still at work in the bank, it is reasonable
to assume that there was enough light to do so inside the bank. The
B
appellants who entered the bank initially asked PW-14 to open the bank
account. Before however PW-14 could refuse, the appellants took out
a revolver and other weapons. From the evidence of PW-14 and PW-
18, it is clear that the incident lasted for a brief period during which the
appellants were talking to each other. As per the evidence of PW-14
c and PW-18, while the culprits were so conversing lifting their visors,
they were able to see the culprits. It is obvious that the extraordinary
situation, in which the incidence occurred must have left an indelible
impression in the mind of the witnesses about the identity of the culprits.
Be it noted that immediately afterthe incident, PW-14 (Manager) lodged
the complaint before Malkapuram Police Station wherein he gave the
D
descriptive particulars of the three culprits namely their age, height, colour
complexion etc. and also given the details of the weapons. As noted
earlier, identity of the appellants by PW-14 and PW-18 in the court is
also corroborated by identification of the appellants by PW-14 and PW-
18 in the test identification parade. In that view, the tribunal was not
E right in disbelieving the evidence of PW-14 (Manager) and PW-18
(Cashier). It is also pertinent to note that PW-14 and PW-18 had no
reason to falsely implicate the appellants which aspect was not kept in
view by the tribunal. To that extent, we differ from the findings of the
tribunal and accepting the evidence of PW-14 and PW-18 and maintain
the conviction of appellants-AK Singh and UK Singh.
F
15. Yet another piece of evidence relied upon by the prosecution
is the recovery of weapons from AK Singh. As per the prosecution,
appellant-AK Singh was arrested on 30.07 .1998 and based on his
confession, the weapons used in the commission of offence were
recovered under Section 27 of the Evidence Act. Photographs of the
G weapons/material objects recovered were produced before the court
martial and the tribunal has noted that the photograph of the weapon
was taken on 29.07.1998 itself, as seen from the requi.sition for taking
photo of the weapons. The tribunal therefore disbelieved the prosecution
case in so far as the recovery of the weapon used at the time of
H committing the offence. Since we did not have the benefit of perusing
AJAY KUMAR SINGH v. THE FLAG OFFICER 967
COMMANDING-IN-CHIEF & ORS. [R. BANUMATHI, J.]
the photographs, so produced, we are not expressing any view about the A
findings of the tribunal on this aspect.
16. To sustain the conviction of AK Singh and UK Singh, court
martial as well as the tribunal relied upon the evidence of Fingerprint
Expert-V. Hanumantha Rao (PW-15) who had stated that upon
information to the control room on 04.06.1998, he reached the scene of B
occurrence at Naval Base, Andhra Bank Extension Counter, INS Virbahu
at 9.00 p.m. While examining the scene ofoccurrence, PW-15 observed
two chance fingerprints on the glass entrance door of the bank. PW-15
developed the same with his universal or white powder and marked
them as "A" and "B" for the purpose of lifting them by taking photos.
As the photographer was not available, PW-15 left the scene of c
occurrence and on the next day morning i.e. 05.06.1998 at about 0800
hrs., PW-15 took the police constable Trimul Kumar-photographer of
MFSL Unit, Visakhapatnam and photographed the preserved chance
fingerprints. The chance fingerprints so lifted were kept in the office of ·
PW-15 for comparison. The police supplied the specimen fingerprints D
of bank officials for comparison and as per the evidence of PW-15,
fingerprints of the bank employees did not tally with the chance
fingerprints lifted from the entrance door of the bank. Two months later
after the arrest of the appellants, specimen fingerprints of AK Singh,
UK Singh and also DK Singh were sent to PW-15 for comparison. On
comparison, PW-15 noted that the chance fingerprint marked "A" was E
identical to the specimen right middle finger impression marked as "SI"
which is the specimen fingerprint of appellant-AK Singh and the said
report was marked as Ex.P-46. In Ex.P-47-report, PW-15 opined that
chance fingerprint marked "B" was identical to the specimen right index
finger impression as "S(a)" which is the specimen finger impression of F
appellant-UK Singh.
17. Contention of respondents is that evidence of PW-15-Fingerprint
Expert incriminates the appellants AK Singh and UK Singh. However,
in proving this incriminating evidence, there seems to be lapses on the
part of the prosecution. As noticed earlier, police constable Tirumal
Kumar-photographer of MFSL Unit had taken the photographs of the G
preserved chance fingerprints. To prove the chance fingerprints lifted
from the entrance glass doors of the bank, the prosecution should have
proved the photographs by examining constable-Trimul Kumar and should
have produced the negatives of the photographs of the chance
fingerprints. This lapse in the prosecution, in our view, cannot result in H
968 SUPREME COURT REPORTS [2016] 5 S.C.R.
A acquittal of the appellants. The evidence adduced by the prosecution
must be scrutinized independently of such lapses either in the investigation
or by the prosecution or otherwise, the result of the criminal trial would
depend upon the level of investigation or the conduct of the prosecution.
Criminal trials should not be made casualty for such lapses in the
investigation or prosecution. Evidence of PW-I 4 (Manager) and PW-I 8
B
(Cashier) identifying the appellants and their evidence as to identity of
the appellants in the test identification parade ought not to have been
disbelieved by the tribunal. In exercise of power under Section 30 of the
Armed Forces Tribunal Act, this Court normally does not re-appreciate
the evidence and slow to interfere with the findings of the tribunal unless
c there is substantial question of public importance. But when it i~ found
that appreciation of evidence in a given case is vitiated by serious error,
this Court can re-appreciate the evidence and interfere with the findings.
In our view, the tribunal was not right in disbelieving the evidence of
PW-14 (Manager) and PW-18 (Cashier) in identifying the appellants
AK Singh, UK Singh and DK Singh as culprits and their identity in test
D
identification parade and their conviction is to be affirmed on the evidence
of PW- I 4 and PW- I 8, if not on the evidence of fingerprint expert and
the appeals are liable to be dismissed.
I 8. In so far as appellant-UK Singh, prosecution has adduced
evidence to show that after the incident, he has deposited huge amount
E in his bank account. PW-29-Gopal Priyadarshi, Assistant, Central Bank
of India stated that appellant-UK Singh is having account No.8206 in
Central Bank of India, Azamgarh Branch, Uttar Pradesh and that he
had deposited Rs.81,600/- on 11.06.1998. Ex. P76 is the certificate issued
by the Central Bank, Azamgarh dated 07 .10.1998 as per which the last
F balance in the account of UK Singh is Rs.1,32,670/- including an interest
of Rs.570/-. PW-29 deposed that as per Ex.C-11, pay in slip, the
denomination of the cash of Rs.81,600/- deposited by the accused was,
one bundle of Rs.500/-(Rs.500xl 00=50,000/-), 316 notes of Rs. IOO/-
(Rs.100x316= 31,600/-) total Rs.81,600/-.Appellant-UK Singh has not
explained the source of such huge amount deposited in the· bank on
G 11.06.1998 which is a strong incriminating circumstance against the
appellant.
19. Facts leading to DK Singh's arrest are slightly different from
those of AK Singh and UK Singh. DK Singh was serving on Board
alongwith other sailors in INS Anjadip, Visilkhapatnam on 04.06.1998.
H He collected his Genform No.358/S dated 03.07.1998 from ship INS
AJAY KUMAR SINGH v. THE FLAG OFFICER 969
COMMANDING-IN-CHIEF & ORS. [R. BANUMATHI, J.]
Anjadip at Visakhapatnam and proceeded to his next duty station for A
POPTI 'Q' course at INS, Venduruthy, Cochin. DK Singh alongwith his
wife, children and brother-in-law proceeded towards his native place by
Corromandal express. On the basis of information, DK Singh was
arrested at Howrah Railway Station on 24.07 .1998, was kept under
custody till 28.07 .1998 at Calcutta and thereafter he was brought to
B
Visakhapatnam on 28.07 .1998. In Court Martial inquiry, DK Singh was
found guilty and sentenced to undergo ten years rigorous imprisonment
and dismissal with disgrace from navy with consequential penalties. Upon
appeal, his conviction was confirmed and sentence was reduced to eight
years. The tribunal acquitted appellant-DK Singh by giving him benefit
of doubt. While acquitting DK Singh, tribunal directed that the appellant- c
DK Singh is deemed to have been retired from service with effect from
03.05.2004 on completion of qualifying service required for pension.
Assailing the same, appellant-DK Singh has filed the appeal seeking for
reinstatement and other consequential benefits.
20. As in the case of other appellants, tribunal disbelieved the D
identification of DK Singh by PWs 14 and 18. The tribunal accepted
DK Singh's plea that his photograph was taken on the same date when
he was placed under custody i.e. on 29 .07 .1998 and identification parade
was conducted on 17.08.1998. The tribunal was of the opinion that
there was probability for the investigating agency to have shown his
photo to PWs 14 and 18. As discussed earlier, we have differed from E
the approach and finding of the tribunal in appreciation of evidence of
PW-14 and PW-18 in identifying the appellants. However, since Union
oflndia has not filed any appeal challenging acquittal of appellant DK
Singh, we do not propose to go into these aspects.
21. It is fairly well settled that acquittal by a criminal court would F
not debar an employer from exercising power in accordance .with the
Rules and Regulations in force. [vide Ajit Kumar Nag v. General
Manager (PJ), Indian Oil Corporation Ltd., Haldia and Ors. (2005)
7 SCC 764, T.NC.S. Corpn. Ltd. and Ors. v. K. Meerabai (2006) 2
sec 255]
G
22. Acquittal in a criminal case does not entitle a person to
automatic reinstatement. In Union of India and Am: v. Bihari Lal
Sidhana (1997) 4 SCC 385, it was held as under:-
"5. It is true that the respondent was acquitted by the criminal
court but acquittal does not automatically give him the right to be
H
970 SUPREME COURT REPORTS [2016] 5 S.C.R.
A reinstated into the service. It would still be open to the competent
authority to take decision whether the delinquent government
servant can be taken into service or disciplinary action should be
taken under the Central Civil Services (Classification, Control and
Appeal) Rules or underthe Temporary Service Rules. Admittedly,
the respondent had been working as a temporary government
B
servant before he was kept under suspension. The termination
order indicated the factum that he, by then, was under suspension.
It is only a way of describing him as being under suspension when
the order came to be passed but that does not constitute any stigma.
Mere acquittal of government employee does not automatically
c entitle the government servant to reinstatement. As stated earlier,
it would be open to the appropriate competent authority to take a
decision whether the enquiry into the conduct is required to be
done before directing reinstatement or appropriate action should
be taken as per law, if otherwise, available. Since the respondent
is only a temporary government servant, the power being available
D
under Rule 5(1) of the Rules, it is always open to the competent
authority to invoke the said power and terminate the services of
the employee instead of conducting the enquiry or to continue in
service a government servant accused of defalcation of public
money. Reinstatement would be a charter for him to indulge with
E impunity in misappropriation of public money."
23. Only ifthe employee had been honourably acquitted, could he
make a claim for reinstatement. In the case in hand, the tribunal acquitted
the appellant-DK Singh:-(i) as in the case of AK Singh and UK Singh,
tribunal disbelieved the identification of appellant-DK Singh by PW-14
F (Manager) and PW-18 (Cashier) and (ii) the weapons that were alleged
to have been recovered on the basis of confession of DK Singh on
12.08.1998 appears to have been photographed on 29.07.1998 by the
prosecution, the tribunal thus rejected the prosecution case that weapons,
bag and suitcase were recovered on the basis of confession given by
DK Singh. Unlike AK Singh and UK Singh's case, DK Singh did not
G have incriminating fingerprint evidence at the scene of occurrence and
DK Singh raised defence plea of alibi. According to DK Singh he was
on duty along with four others on aboard Indian Naval Ship, Anjadip on
04.06.1998 from 0900 hours to 1300 hours and then again from 1525
hours to 0740 hours on 05.06.1998. To examine this plea of alibi, the
H tribunal called for the Duty Ashore Book maintained at INS Anjadip
AJAY KUMAR SINGH v. THE FLAG OFFICER 971
COMMANDING-IN-CHIEF & ORS. [R. BANUMATHI, J.]
(Original of Ex. P.32). DK Singh claimed that the document entry at SI. A
No.53 was tampered with and consequently, tribunal noted that there
indeed was some overwriting in SI. No.53 besides the column for the
name of the individual. The tribunal concluded that prosecution had not
placed any material on record to show that after finishing his duty at
1300 hours, appellant-DK Singh was allowed to avail off and thus the
B
tribunal concluded that in the absence of evidence that DK Singh was
allowed to go off after 1300 hours on 04.06.1998, the benefit of doubt
must be afforded to him.
24. The tribunal came to the collective conclusion that no
satisfactory evidence had been adduced by the prosecution to sustain
the conviction of DK Singh and therefore the tribunal set aside the
c
conviction giving him the benefit of doubt. From a perusal of the impugned
judgment, it is clear that the tribunal has acquitted the appellant-DK
Singh on the ground that the prosecution has not established the guilt of
the accused beyond reasonable doubt. It is not as if; the appellant-DK
Singh was honourably acquitted. It is also to be pointed out that as D
discussed above, that we have taken the view that the identity of the
appellants by PW-14 (Manager) and PW-18 (Cashier) is credible and
acceptable. Evidence of PW-14 and PW-18 identifying DK Singh as
one of the culprits is a factor to be reckoned with while considering the
plea of the appellant-DK Singh for reinstatement. Additionally, it is to be
pointed out that as seen from the evidence of K. Rama Krishna Rao- E
Inspector of Police (PW-17) on 10.06.1998, DK Singh deposited
Rs.90,000/- in his bank account No.3395 of SBI BR Township Branch
and the explanation of the appellant for this deposit is not convincing.
Having regard to our findings on the evidence of PW s 14 and 18, the
acquittal of appellant-DK Singh itself becomes a debatable point. F
However, we do not propose to go into this aspect since the Union of
lndi has not filed any appeal challenging acquittal of DK Singh.
0
Appellant-DK Singh who was only granted benefit of doubt cannot seek
for reinstatement and the consequential benefits and his appeal is also
liable to be dismissed.
G
25. In the result, all the appeals are dismissed.
K~Jpana K. T~ipat)1y Appeals dismissed.
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "bank robbery"Sign in to search