OM PRAKASHversusUNION OF INDIA & ORS.

                   [2015] 8 S.C.R. 467


                     OM PRAKASH                            A
                           v.
                UNION OF INDIA & ORS.

            (Criminal Appeal No.1112 of 2011)
                                                           B
                     JULY09, 2015

        [DIPAK MISRA AND N.V. RAMANA, JJ.]

     Penal Code, 1860: s.304 Part II rlw s.34 - Conviction C
and sentence.of 7 years RI imposed by General Court Martial
confirmed by Armed Forces Tribunal- Fight ensued between
the appellant and another army official in a farewell party-
Deceased tried to inteNene and was abused by the appellant
-After the party was over PW6 entered his barrack and foundo
deceased in pool of blood- Deceased was roshed to hospital
where he was declared dead-Appellant surrendered at the
police station and stated that he had stabbed one person
with a knife - Held: There was ample incriminating
circumstances against the appellant and the complete chain E
of circumstances consistent only with hypothesis of the guilt
of the appellant -Minor discrepancy did not destroy the
prosecution case - Testimony of witnesses stood firm during
cross-examination - The confessional statement made by
the appellant was voluntary- There was no infirmity in the F
conviction order. ·

    Dismissing the appeal, the Court

    HELD: 1. The evidence brought on record G
                                                a
established that on the fateful day, there was farewell
party, in which drinks were served; that the appellant
entered into an altercation with PWS,_ whereby the

                          467
                                                           H
468      SUPREME COURT REPORTS               [2015] 8 S.C.R.


A appellant fought with him and abused him and
  consequently PW5 slapped the appellant; that the
  appellant abused PW5 and the deceased; that the said
  altercation was intervened by PW4, and at that juncture
  he directed PW6 and PW7, to take the accused to his
B living barracks; that as per the directions of the
  authority PW-6 and PW-7 guided the appellant to the
  barracks; that the deceased was found lying on the
  floor bleeding from mouth and nose and the appellant
  was found lying on his bed on his stomach with hands
C folded beneath in the same room by PW26, at about
  0030 hours when he had returned to the barracks; that
  on being alerted by PW 26, PW13 and PW12 had made
  arrangements for taking the deceased for medical aid;
  that apart from the deceased and the appellant, no one
0
  else was present in the room as per the testimony of
  PW18, PW26, PW12 and PW13; that PW18, and PW13,
  had witnessed the appellant leaving the room quietly via
  the rear door; that the appellant was absent from the 'fall
E in parade' that was conducted at 0200 hours; and that
  at 0150 hours the Commanding Officer, and PW15, met
  the appellant at PS Sabina, wherein the appellant had
  surrendered. [Para 9] [478-E-H; 479-A-D]

      2. The said established facts which are founded on
 F
  proper appreciation of the evidence by the forums
  below make clear that the chain of circumstances was
  complete. What has weighed with the forums below
  was that the appellant was present in the room and had
G escaped. The circumstances that really weighed
  against the appellant were that he had indulged in an
  altercation in the party; that he was in a drunken state
  and he was alone present in the room; and that he had
  escaped by the rear door. He b<iing present at the
H police station and not being present at the "fall in
        OM PRAKASH v. UNION OF INDIA& ORS. ·           , 469


  parade" is circumstance which would go against him.        A
  He was not able to give any explanation aboµt his
. presence at the police station and the factum that on
  being informed by the Head constable, the army officers
  arrived at the concerned police station. The series of
  circumstance clearly established the guilt of the          B
  accused and the minor discrepancies. really did not
  create any kind of dent in the testimony of the
  prosecution witnesses to treat them as reproachable
  and remotely did not destroy the prosecution version.
  The statement of the appellant recorded in the             C
  proceeding under Rule 23 was proved during the GCM.
  Despite roving cross-examination, both the witnesses
  firmly stood embedded to their version. The appellant
  was asked whether he was inclined to make a statement
                                                             0
  and also apprised that he was not obliged to say
  anything unless he wanted to say. That apart, a warning
  was given to 'him that whatever he would say would be
  taken down in writing and given in evidence. Thus, there
.was no compulsion. It was a voluntary statement and         E
  that it had been done under a statutory Rule. (Paras 10,
  13, 14] [479-E-H; 480-A-D; 483-C-E; 485-B-C]

    Hema v. State 2013 (3) SCR 1: (2013) 10 SCC 192;
Union of India v. Major Rabinder Singh 2011 (15) SCR 793: F
(2012) 12 SCC 787; Appabhai v. State of Gujarat AIR 1988
SC 696; Rohtash Kumar v. State of Haryana 2013 (3) SCR
884: (2013) 14 SCC 434; Bachan Singh v. Union of India
and others 2008 (10) SCR 668: (2008) 9 sec 161 - relied
on.                                                       G
    Gilbert Pereira v. State of Kamtaka AIR 2004 12 SCC
281: 2004 (3) Suppl. SCR 711; Ravindran v.
Superintendent of Customs (2007) 6 SCC 410; Rumi Bora
Dutta v. State of Assam (2013) 7 SCC 417 - referred to.
                                                             H
470         SUPREME COURT REPORTS                  [2015) 8 S.C.R.


A                         Case Law Reference

        2004 (3) Suppl. SCR 711       referred to.     Para 6

        (2007) 6.SCC 410              referred to.     Para 8
B       (2013) 1 sec 417              referred to.     Paras

        2013 (3) SCR 1                relied on.       Para 10

        2011 (15) SCR 793             relied on.       Para 10
c       AIR 1988 SC 696               relied on.       Para 10

        2013 (3) SCR 884              relied on.       Para 10

        2008 (10) SCR 668             relied on.       Para 13
D
         CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
      No.1112of2011.

      From the Judgment and Order dated 05.04.2010 in TAI
  617/09 in [W.P. (C) No. 7266 of 2009) of theArmed Forces
E Tribunal Principal Bench, New Delhi.

          Mohit Kumar Shah for the Appellant.

           R. Balasubramaniam, Amarendra Bal, Vikas Malhotra,
F     B.V. Bairam Das andAnil Katiyarforthe Respondents.

         The Judgment of the Court was delivered by

        DIPAK MISRA, J. 1. The present appeal, by special leave,
  is directed against the judgment of affirmation of conviction
G and order of sentence passed bytheArmed Forces Tribunal,
  principal Bench, New Delhi (for short "the tribunal") in T.A. 617
  of 2009 whereby the tribunal has confirmed the conviction
  under Section 304 Part-II, l.P.C. and the sentence of seven
H years of rigorous imprisonment imposed by the General Court
  Martial held at Sabina in the State of Madhya Pradesh vide
        OM PRAKASH v. UNION OF-INDIA& ORS.                   471
                [DIPAK MISRA, J. ]

order dated 24.2.2007 and further has maintained the order A
dated 18.3.2008 passed by the Chief of Army Staff under
Section 164(2) of the Army Act, 1950 (for brevity "the Act").

   · 2. Be it stated, the initial order was challenged before the
High Court of Delhi in W.P.(C) No. 7266 of 2009 and after B
coming into force of the Armed Forces Tribunal Act, 2007 (for
short 'the 2007 Act') and the constitution of the tribunal the
matter was transferred to the tribunal wherein it was treated
as an appeal under Section 15 of the said enactment.
                                                               c
     3. The facts necessary to be exposited for adjudication
of this appeal are that on 3rn of April, 2006, a 'Barkhana' was
organized at 85, Armoured Regiment to bid farewell to the
outgoing Risaldar, Major Madan Lal. At the Barkhana venue
sorne heated arguments took place between the appellant and o
Risaldar, Nand Lal Prasad, PW5, and in course of argument
said Nand Lal Prasad slapped the appellant. However, the
matter was defused with the intervention of Major Raj Nandan,
PW4, who instructed Lance Dafdar Anil Kumar, PW6 and
Lance Dafadar Murari Singh, PW?, to take the accused to his E
living barracks of Headquarter Squadron.
                                -
     4. As per the prosecution version during the altercation
and assault between the accused and Nand Lal Prasad,
deceased Dafadar Ram Pratap had tried to intervene and was F ·
abused by the accused. After the accused had left for the
barracks of the Headquarter, about 12.30 a.m .. Sowar
Balwinder Singh, PW6, came to the line after finishing his duties
allotted to him, and after entering the room switched on the
light and found Dafadar Ram Pratap was lying in a pool of G
blood and blood was also oozing out from his mouth. He was
immediately shifted to the Army Hospital where he was
declared dead. About 1.30 a.m. on 4.4.2006, information was .
received from the police station Sabina by the 85,Armoured
Regiment that a person belonging to their regirnent had H
472         SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A surrendered at the police station and stated that he had
  stabbed one person with a knife. On receipt of the said
  infonnation, the concerned J.C. 0. was sentto the police station
  where he saw that Dafadar Om Prakash was present. After
  receiving the information from the J.C.O., the Commanding
B Officer, Col. Rajiv Chib, PW27, along with Lt. Col.Atul Kumar
  Bhat, PW15, reached the police station Sabina about 1.50
  a.m. and enquired from the accused about the details to which
  he confessed that he had stabbed the deceased. Thererafter,
  an F. I. R. was lodged by the Adjutant Captain Abhishek, PW3,
C and the accused was handed over to the Military Police. As
  the narration would further unfurl, the proceedings of the General
  Court Martial (GCM) under the Anny Act was initiated by order
  dated 8.10.2006 passed by Major General AK. Singh, General
D Officer Commanding, 31•1Armoured Division.

           5. Be it noted, the accused was charged for the offences
      under Section 302 of I. P.C. for intentionally causing death of
      Ram Pratap of his unit, but subsequently stood convicted for
      culpable homicide not amounting to murder under Part-II of
E     Section 304, l.P.C. As is demonstrable, the prosecution in
      order to substantiate the charge had examined as many as
      31 witnesses and during the court martial number of documents
      were exhibited. The Court Martial relied on Exbt. 36 which
F     was recorded at the time of summary of evidence wherein the
      accused had admitted that the deceased and he were involved
      in a fight. He had also stated that the deceased in the room
      had abused him and tried to kick him butfailed in the attempt
      and when the accused stood up on 'charpai' the deceased
G     boxed him on the face and at that time he pushed him back
      with both hands as a result of which he fell on the box and was
      hurt on his back. As the statement further proceeds, the
      deceased left the room and came back within five minutes.
      The accused, in the meantime, had picked up the knife from
H     the locker and kept it on the box. While he was sitting in the
          OM PRAKASH v. UNION OF INDIA& ORS.                       473
                  [DIPAK MISRA, J.]

  'charpai' the deceased came into the room and caught hold of         A
 the neck of the appellant and pulled him towards his own locker.
  The appellant got hold of the knife and stabbed the deceased
  on the chest so that he wouli:I leave his neck. Apart from the
  aforesaid, a confessional statement made by the accused to
  Col. RajivChib, Commanding Officer of the regiment, PW27,            B
  at police station that he had stabbed the deceased was also
  given credence to. The testimony of Lt. Col. Atul Kumar Bhat,
  PW15, who had witnessed the confession was also taken into
  consideration. In addition, during the court martial the
  corroborating statement of Court Witness No. 7 Naib Subedar          C
  J.M. Sharma, wherein the accused had stated to CW-7 at
· Police Station on 4th of April, 2006 about the incident that was
  caused due to anger and intoxication, was also exhibited. The
   GCM also believed that part of the testimony of CW-7 wherein        D
   he had stated that from the condition of dress worn by the
  accused, it appeared that he was involved in a quarrel, for the
  accused had a minor bruise on his righttemple of the head.
  The GCM referred to the e_vidence of Major (Dr.) M.C. Sahoo,
  PW1, and Dr. R.K. Chaturvedi, PW28, who had deposed that             E
  the stab wound injury inflicted on the chest of the deceased
  was sufficient in ordinary course of nature to cause death. The
   GCM also took certain circumstances, namely, that the
   deceased was lying on the floor in a pool of blood; that the
   accused was found lying on the 'charpai' in the room in an          F
   injured condition; that he was present in the room and eventually
   held thus:-      ·

      "Even though the accused had no Intention to kill the
      deceased, the accused should be knowing the G
      consequences of his action. The accused should be
      conscious, that by stabbing at chest, which is a vital part
      of a human body, the injured person is likely to die, due to
      the effect of such injury. A man expects the natural
      consequences of his action. By causing such bodily injury H
474         SUPREME COURT REPORTS                    [2015] 8 S.C.R.


A         on Dafadar Ram Pratap, the accused should be knowing
          that death is the likely consequence of that injury even
          though accused never intended to kill Dafadar Ram
          Pratap.

s            Hence the court finds him Not Guilty of committing a
          civil offence that is to say Murder contrary to Sec. 302 of
          IPC but Guilty of committing a civil offence that is to say,
          culpable homicide not amounting to murder under Part-II
          of Sec. 304 of IPC."
c
           6. In appeal the tribunal after adverting to the facts and
      the evidence brought on record took note of the chain of
      circumstantial evidence brought on record and opined thus:-

          "The appellant/accused himself reached at the Police
D
          Station Sabina and reported with regard to the incident
          and desired him to be taken into custody. From the
          statement of the PW31 Constable Clerk Munna Lal Verma
          who informed to the military authorities about the surrender
E         of the accused at Police Station Sabina. It was also
          clarified by him in his statement that it was the intervening
          night of 3/41h April 2006 at about 1.30 hours or 2.00 a.m.
          the accused came to the Police Station and was slightly
          frightened and told that in the Unit there was Sarakhana
F         party. He had quarrel with few people and so he be
          protected. The timings when the accused surrendered at
          the Police Station would itself reconcile with the time of
          the causing of the fatal injury and it would lead to the
          conclusion that after causing injuries when PW13 Dafadar
G         Muneshwar Shah and PW23 Acting Lance Dafadar
          Vikram Singh reached at that room, he slipped away from
          t/"lat place and could possibly reached at Police Station at
          1:30 or 2:00 a.m. on the intervening night of 3/41h April,
          2006. There the accused also confessed his guilt before
H         PW3Abhishek Sharma that he had caused stabbed injury
        OM PRAKASH v. UNION OF INDIA& ORS.                        475 .
                [DIPAK MISRA, J. )

    to Dafad~r Ram Pratap. The testimony of these witnesses A
    could not be assailed. However, PW29 Sub Inspector
    Lal Singh made it clear that on the first day the accused
    confessed his guilt and for that an application was also
    moved before the Magistrate but on next day he did not
    give his confessional statement. The fact remains that B
    before informant CaptainAbhishek Sharma he confessed
    his guilt and hi~ testimony remained uncontroverted and
    it was supported by the statement of PW30 Lt. Col.
    Sandeep before whom in the ~ourse of Summary of .
    Evidence the accused produced original copy of the C
    statement (unsworn statement) vide Exbt. 36. In his
    statement he has also admitted his guilt. There is ample
    incriminating circumstances appearing against the
    appellant and proving the complete chain of circumstances
                                                                   0
    consistent only with hypothesis of the guilt of the appellant.
    Each circumstance are appearing to be incriminating in
    nature and in totality the conclusion established the guilt
    of the appellant. In that regard, reliance may be placed
    on Gilbert Pereira v. State of Karntaka AIR 2004 12 E
     sec 281 wherein it was held as under:
    The incriminating circumstances proved against the
    appellant form a complete chain of circumstances which
    is consistent only with the hypothesis of guilt of the         F
    appellant. Each circumstance is incriminating in nature
    and the totality of circumstances conclusively establishes
    the guilt of the appellant.

    10. From such incriminating circumstances 'f.hich were G
    incompatible with the innocence of the guilt of any other
    person the GCM was justified in drawing the inference of
    guilt of the accused/appellant."

    Being of this view, the tribunal concurred with the opinion
expressed by the GCM. ·                                            H
476         SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A         7. ·We have heard Mr. Mo hit Kumar Shah, learned
      counsel for the appellant for the appellant and Mr. B.V. Bairam
      Das, learned counsel for the respondent.

       8. It is submitted by learned counsel for the appellant that
B the substantial evidence which has been relied upon for
  recording the conviction by the GCM and the tribunal cannot
  form the foundation of conviction, for the confession made
  by the appellant at the police station in presence of the
  authorities cannot be taken into consideration, and that apart
C heavy reliance placed on the statement recorded in the
  summary enquiry under Rule 23 of the Army Rules, 1954 (for
  short "the Rules") is totally sans legal substratum. Learned
  counsel would submit that the tribunal has failed to analyse
  the unacceptable and incurable discrepancies in the evidence
D of witnesses and, in fact, at places has relied upon certain
  hearsay evidence which make the analysis perverse and in
  the ultimate eventuate the judgment has become absolutely
  dented. It is urged by him when the weapon of causing injury,
  that is, the knife has not been recovered, and the evidence
E as brought on record would show that apart from the appellant
  other persons were also present in the room while the
  deceased was murdered, the circumstantial evidence could
  not have been regarded to have brought home the charge
F against the accused. Learned counsel would submit that the
  presence of the accused at the time of incident as per the
  evidence available on record is doubtful and, therefore, the
  conclusion that has been arrived at deserves to be dislodged
  on the bedrock that it does not meet the criteria of proof as
G per the principles laid down by this Court in relation to
  acceptance of the circumstantial evidence. Learned counsel
  has seriously criticized the approach of the tribunal in
  appreciation of the evidence on the ground that it is extremely
  perverse and does not withstand scrutiny. To bolster his
H submissions, he has commended us to decisions in
             OM PRAKASH v. UNION OF INDIA& ORS.                   477
                     [DIPAK MISRA, J.]

Ravindran v. Superintendent of Customs 1 and Rumi A
Bora Dutta v. State of Assam2•

     9. Learned counsel appearing for the respondent,
r.esisting the arguments canvassed by Mr. Saha, has urged
that ample material has been brought on record by the              B
prosecution to establish the chain as required under the
concept of circumstantial evidence and the minor
discrepancies here and there would not destroy the
prosecution case. Learned counsel would contend that 31
witnesses were examined during the GCM and their                   C
deposition appreciated in entirety undoubtedly and decidedly
bring home the charge leveled against the appellant. It is
canvassed that the non-recovery of the kitchen knife with which
the injury was caused does not mar the prosecution case.
Emphasis has been laid on the statement recorded vide              D
Exhibit 36 under Rule 23 of the rules by Col. Sandeep Nagrat,
PW 30, which has been corroborated by the court witness
No.2, Risaldar Rajesh Kumar and on that base, it is urged
that there is no reason to discard the version of the
prosecution. It is further argued that the appellant in his        E
petition dated 30.05.2007 under Section 164 of the Army Act
had admitted that he had used the vegetable knife in his self-
defence which resulted in the death of the victim and he had
no intention to cause the death and hence, the punishment          F
awarded was very harsh, and the said admission goes a long
way to establish the case of the prosecution. Certain
authorities have been cited to show how the proceedings
before the GCM are meant for maintaining military discipline
under the Act and how the statement recorded u~der Rule 23         G
can be placed reliance upon.

     8. First we shall record the injuries inflicted on the
1 (2007)   s sec 410
2 (2013) 1   sec 417                                               H
478         SUPREME COURT REPORTS                   [2015) 8 S.C.R.


A deceased. Dr. R.K. Chaturvedi, PW28, who had conducted
  the autopsy had found the following injuries on the body of the
  deceased:-

          "The two ante mortem injuries were found on the dead
B         body. The one which can be called Number 1 injury was
          stab wound on chest, at the left side of size 3 x 2 ems
          and the second injury was linear abrasion at right back
          side of chest. The size of linear abrasions was 3 Y. x 1
          Y.cm.
c
          The stab wound was 3 x 2 cm, at the margin of wound.
          The wound was deep upto chest cavity, it was sharp and
          averted meaning protruding outside.

          The linear abrasion was below the lower angle of right
D
          scapula."

            9. In the opinion of the autopsy surgeon the injury number
      1 could be caused by knife which had caused the death of the
      deceased. From the evidence brought on record it has been
E     established that on 3.4.2006 there was a farewell party, that
      is, 'Barkhana' to bid farewell to Risaldar Major Madan Lal;
      that drinks were served in the said party; that the appellant
      had entered into an altercation with Risaldar Nand Lal Prasad,
F     PW5, and the appellant had fought with him and abused him
      and consequently PW5 had slapped the appellant; that the
      appellant had abused PW5 and the deceased; that the said
      altercation was intervened by Risaldar Major Raj Nandan Rai,
      PW4, and atthatjuncture he had directed Lance DafadarAnil
G     Kumar, PW6, and Lance Dafadar Murari Singh, PW?, to take
      the accused to his living barracks; that as per the directions
      of the authority PW-6 and PW-7 had guided the appellantto
      the barracks; that the deceased was found lying on the floor
      bleeding from mouth and nose and the appellant was found
H     lying on his bed on his stomach with hands folded beneath in
        OM PRAKASH v. UNION OF INDIA& ORS.                   479
                [DIPAK MISRA, J. ]

the same room by Sowar Balwinder Singh, PW26, at about           A
0030 hours when he had returned to the barracks; that on being
alerted by PW 26, Dafadar Muneshwar, PW13, and Sowar
Nakul Prasad, PW12 had made arrangements for taking the
deceased for medical aid; that apart from the deceased and
the appellant, no one else was present in the room as per the    B
testimony of Dafadar Major Ghanshyam Pukan, PW18, Sowar
Balwinder Singh, PW26, Sowar Nakul Prasad, PW12 and
Dafadar Muneshwar, PW13; that Dafadar Major Ghanshyam
Pukari, PW18, and Dafadar Muneshwar, PW13, had
witnessed the appellant leaving the room quietly via the rear    C
door; that the appellant was absent from the 'fall in parade'
that was conducted at 0200 hours; and that at 0150 hours the
Commanding Officer, Col. Rajiv Chib, PW27, and Lt. Col. Atul
Kumar Bhat, PW15, met ti 1e appellant at PS Sabina, wherein
                                                                 0
the appellant had surrendered.

     10. From the aforesaid established facts which are
founded on proper appreciation of the evidence by the forums
below, and we are inclined to think rightly, it is quite vivid that
the chain of circumstances is complete. We have concurred E
with the analysis of the evidence after critically scrvtinizing the
evidence of the prosecution witnesses. What has weighed
with the forums below is that the appellant was present in the .
room and had escaped. The circumstances that really weigh F .
against the appellant are that he had indulged in an altercation
in the party; that he was in a drunken state and he was alone
present in the room; and that he had escaped by the rear door
and his presence at the police station at an odd hour and his
absence at the "fall in parade". Learned counsel for the G
appellant had endeavoured to argue that other persons were
present in the room and for the said purpose he has shown
some lines from here and there but the evidence read in entirety
established beyond any shadow of doubt that the accused was
alone in the room. He being present at the police station and H
480          SUPREME COURT REPORTS                 [2015] 8 S.C.R.


A not being present at the ''fall in parade" are circumstances which
  would go against him. He has not been able to give any
  explanation about his presence at the police station and the
  factum that on being informed by the Head constable the army
  officers arrived at the concerned police station. There can be
B no cavil over the proposition as has been laid down by this
  Court in Hema v. State3, Union of India v. Major Rabinder
  Singh4, Appabhai v. State of Gujarat8 and Rohtash Kumar
  v. State of Haryana6 that the circumstances from which the
  conclusion of guilt is sought to be established must be
C conclusive in nature. In the case at hand the series of
  circumstance clearly establish the guilt of the accused and the
  minor discrepancies that have been pointed out by the learned
  counsel for the appellant, really do not create any kind of dent
  in the testimony of the prosecution witnesses to treat them as
0
  reproachable and remotely do not destroy the prosecution
  version.

           11. Apart from the aforesaid evidence, we have to consider
      the evidentiary value of Exhibit 36, the statement recorded at
E     the time of summary of evidence under Rule 23 of the Rules.
      The said Rule deals with procedure for taking down the
      summary of evidence. Rule 23 of the Rules being pertinent is·
      reproduced below:-

 F        "23. Procedure for taking down the summary of
          evidence.- (1) Where the case is adjourned for the
          purpose of having the evidence reduced to waiting, at the
          adjourned hearing evidence of the witnesses who were
          present and gave evidence before the commanding
G
      'c2013J 10 sec 192
      • c2012J 12 sec 787
      'AIR 1988 SC 696
H • c2013J 14 sec 434
    OM PRAKASH v. UNION OF INDIA & ORS. .                      481
            [DIPAK MISRA, J. ]

officer, whether against or for the accused, and of any other A
person whose evidence appears to be relevant, shall be
taken down in writing in the presence and hearing of the
accused before the commanding officer or such officer
as he directs.
                                                                8
(2) The accused may put in cross-examination such
questions as he thinks fit to any witness, and the questions
together with the answers thereto shall be added to the
evidence recorded.
                                                                c
(3) The evidence of each witness after it has been
recorded as provided in the rule when taken down, shall
be read over to him, and shall be signed by him, or if he
cannot write his name shall be attested by his mark and
witnessed as a token of the correctness of the evidence o
recorded. After all the evidence against the accused has
been recorded, the accused will be asked: "do you wish
to make any statement? You are not obliged to say
anything unless you wish to do so but whatever you say
will be taken· down in writing and may be given in E
evidence." Any statementthereupon made by the accused
shall be taken down and read to him, but he will not be
cross-examined upon it. The accused may then call his
witnesses, if he so desires, any witnesses as to character.
                                                                F
(4) The evidence of the witnesses and the statement (if
any) of the accused shall be recorded in the English
language. If the witness of accused, as the case may be,
does not understand the English language, the evidence
or statement, as recorded, shall be interpreted to him in a G
language which he understands.

(5) ·If a person cannot be compelled to attend as a witness,
or if owing to the exigencies of service or any other
grounds (including the expense and loss of time involved), H
482         Sl,JPREME COURT REPORTS                   [2015] 8 S.C.R.


A         the attendance of any witness cannot in the opinion of the
          officer taking the summary (to be certified by him in writing},
          be readily procured, a written statement of his evidence
          purporting to be signed by him may be read to the accused
          and included in the summary of evidence.
B
          (6) Any witness who is not subject to military law may be
          summoned to attend by order under the hand of the
          commanding officer of the accused. The summons shall
          be in the form provided in Appendix Ill.
c
           12. As we have seen from the statement recorded in the
      said proceeding, all the safeguards were followed. The
      appellant, as has been indicated hereinbefore, had stated
      thus:-
D
          "10. After Squadron Dafedar Major left, Lance Dafedar
          Chunbad Prasad reached. He was going on posting. He
          closed his bedding and got his luggage lifted by two Ors.
          He before leaving the barrack/room said to me, "Adjutant
E         Mera, Officer Commanding Mera, Troop Leader Mera,
          Senior JCO Mera, Agar to Report Karega to Teri Maa
          Chudwa Doonga".

          11. After this Dafedar Ram Pratap came inside the room
          while Lance Dafedar Chunbad Prasad and Dafedar
F
          Muneshwar Sah were standing outside the room. Dafedar
          Ram Pratap kicked me, but it hit the Charpoy. He said
          "Madarchod Raste Me Charpoy Dal Kar So Raha Hai".
          As soon, I stood up on the Charpoy, be boxed me on my
G         face. At that time I pushed him back with both hands. He
          fell on the box. His vest got torn and was hurt on his back.

          12. Thereafter, Dafedar Ram Pratap went out of the room.
          He came back to the room after approximately 5 minutes.
          I picked up my knife from locker and kept it next to me on
H
             OM PRAKASH v. UNION OF INDIA & ORS. .                  483
                     [DIPAK MISRA, J.]

        the box. I kept sitting on the Charpoy. He came back to A
        room and got hold of my neck and pulled me towards his
        own locker. Meanwhile, I was hit by a stick on my shoulder.
        I got hold of the knife and stabbed him (Dafedar Ram
        Pratap) on the chest so that he would leave my neck. He
        fell on the ground between the two charpoys."               B

       13. The said statement has been proven during the GCM
  vide Exhbt. 36 by Col. Sandip Nagra, PW30. It has also been
  supported by Risaldar Rajesh Kumar, CW2. Despite roving
  cross-examination, both the witnesses have firmly stood            C
  embedded to their version. The challenge to the said document
  shows the hollowness of assault on the part of the appellant.
  We may hasten to make it clear that we are not placing any
  reliance on the confession made by the appellant before the
  Army officers at the police station in the presence of police      D
  officers. We are restricting our analysis only to the statement
  recorded under Rule 23 of the Rules and how the testimony of
  the witnesses deposing about the statement have absolutely
  stood firm during cross-examination. In this regard, reference
  to the pronouncement in Bachan Singh v. Union of India             E
  and others7 would be seemly. In the said case, the appellant
  therein faced the GCM and was found guilty of the charge and
  sentenced ~o suffer two years imprisonment and dismissal of
  service. T~e said order was set aside by the learned Single        F
  Judge of the High Court against which the Union of India
  preferred a Letters Patent Appeal and that was allowed_ by the
  Division Bench. That led the appellant therein to approach
. this Court in appeal by special leave. The Court apart from
  taking note of the statement made by the appellant therein         G
  before the GCM also took note of the first summary evidence
  recorded in presence of the witnesses. In that context, the
. two-Judge Bench opined:-

 1
     c2oosi 9 sec 1e1                                                H
484      SUPREME COURT REPORTS                    [2015] 8 S.C.R.


A      "11. The record of the Court Martial produced before us
       by the learned Additional Solicitor General would reveal
       that the GCM was held against the appellant on different
       dates at Udhampur. The record would disclose that the
       appellant had made voluntarily written confessional
B      statement before· the GCM admitting the allegations
       levelled against him in the charge-sheet. On bare perusal
       of the GCM, it becomes quite clear that the proceedings
       were recorded by the GCM in the presence of the
       appellant, his defending officer and other witnesses. The
c      statements of Major S. K. Sareen, Smt Vidya Devi, Veena
       Kumari, Tara Chand, Rattan Singh, Prabhu Ram, Major
       S.B. Ambel, Pritam Singh, Capt. A.K. Chowdary, Major
       Amin Chand Bhattee were recorded by the GCM on behalf
       of the prosecution in support of the charge in the presence
D
       of the appellant. The appellant was afforded full opportunity
       of cross-examining the witnesses but he did not avail of
       the said opportunity.

       12. It appears from the record that despite giving warning
E      to the appellant to the effect that he was not obliged to
       make any confessional statement, the appellant made
       written confessional statement on 22-10-1980. The
       appellant made additional statement in addition to first
       summary of evidence on 10-9-1981 in the presence of
F
       witnesses, namely, IC-25616Y Major S.L. .Gautam,
       independent witness and Major Amin Chand, officer
       recording summary of evidence. It appears from the record
       that second additional summary of evidence recorded on
       10-9-1981 was in compliance with the Army Rules 23(1),
G
       23(2), 23(3), 23(4) and 23(6) in which the appellant did
       confess his guilt."

      14. Learned counsel would submit that there was a
H confession which was retracted in the proceeding before the
           OM PRAKASH v. UNION OF INDIA& ORS.                        485
                   [DIPAK MISRA, J.]

  GCM. But what we have noticed is thatthe GCM has relied on A
  the statement made vide Ext. 36. On a studied scrutiny of the
  statement of the accused, we find thatthe appellantwas asked
  whether he was inclined to make a statement and also
  apprised that he was not obliged to say anything unless he
  wanted to say. That apart, a warning was given to him that B
  whatever he would say would be taken down in writing and
. given in evidence. Thus, there was no compulsion. It was a
  voluntary statement and the meat of the matter is that it had
   been done under a statutory Rule and has been proven to the
   hilt before the GCM. We repeat atthe cost of repetition, nothing C
   has been elicited in the cross-examination or brought on record
  which will make the statement hollow and unreliable. ·

      15. In view of our aforesaid analysis, we find no merit in
 the appeal and accordingly the same stands dismissed.           D

 Devika Gujral                                   Appeal dismissed.