Bansilal Bhat, J. This Letters Patent Appeal is directed against the judgment dated 31-12-2002 passed by the learned writ Court in OWP No.
742/2001 by virtue whereof conviction and sentence of respondent recorded by Summary General Court-Martial (for short ""SGCM"") under
Section 376 of RPC read with Section 69 of the Army Act and dismissal order dismissing the respondent from his service have been quashed. The
impugned judgment is assailed on the ground that since there was no challenge with respect to the composition of SGCM or the procedure
adopted in the court-martial proceedings, there was no scope for judicial review. The impugned judgment is further assailed on the ground that the
writ Court could not have exercised powers of an appellate authority while sitting in judicial review and evidence could not be re-appreciated to
come to a conclusion that it was insufficient for supporting the conclusions reached by SGCM.
2. Facts leading to prosecution of respondent are required to be noticed briefly. Respondent was holding substantive rank of Captain and posted
as Commander of C-Company 12 Rashtriya Rifles upper Gund Area Banihal District Doda at the relevant time. On 15-2-2000 some residents of
village Nowgam lodged a complaint with police alleging therein that on 14-2-2000 at 8.30 p.m. four unknown armed persons in civil dress landed
in the house of one Sana Ullah Tantray resident of Nowgam. While two of them entered the house, remaining two kept standing outside. It was
alleged that the two who had entered the house allegedly raped the wife and daughter of house owner. Investigation was carried out which
revealed that on 14-2-2000 an ambush party from C-Company under Captain Ravinder Singh Tewatia had gone to village Nowgam in the evening
accompanied by seven other Ranks and three SPO (s). They had broken into two groups, one consisting of seven other Ranks which was
deployed at the house of Abdul Gani Rather whereas the second group consisting of one officer and three SPO(s) had proceeded towards the
house of Sana Ullah Tantray. Two SPO(s) namely Sanjay Kumar and Shailender Singh stayed at some distance from the house as the officer
leading them told them to wait there. The officer and third SPO Bharat Bhushan entered the house. On the basis of a confession respondent was
nominated as an accused. The confession was to the effect that he had sexual relationship with Mst. K.B. daughter of S.T. Police got the victim
medically examined at Civil Hospital Banihal which revealed that Mst. K.B. had been sexually assaulted. Commanding Officer of 12 Rashtriya
Rifles ordered a Court of Inquiry. Respondent was placed under close arrest. The Court of Inquiry completed its proceedings on 6-3-2000. This
was followed by an identification parade conducted by Executive Magistrate, Banihal on 5-3-2000. This victim Mst. K.B. identified respondent as
the perpetrator of crime of rape committed with her. Further proceedings were ordered to be conducted under Army Act by convening SGCM
after option was exercised by Army authorities to try the accused before Court Martial. Respondent was convicted under Section 376 of RPC
read with Section 69 of Army Act and sentenced to seven years rigorous imprisonment in civil prison. He was also sentenced to cashiering from
service. Since the revision preferred by respondent was rejected, GOC Delta Force promulgated the sentence on 19-12-2000. The proceedings
before Court Martial culminating in conviction and sentence were called in question before the learned writ Court which quashed the proceedings
as stated here in above.
3. Ms. Sindhu Sharma, learned Assistant Solicitor General of India submits that the writ Court acted without jurisdiction in quashing the Court
Martial proceedings as there was no challenge to the Court Martial proceedings on the grounds of violation of any provision of the Army Act and
Rules framed thereunder. She further submits that the writ Court could not sit in judgment over the findings of guilt recorded by SGCM. She
further submitted that the testimony of prosecutrix duly corroborated by medical evidence and the extra-judicial confession made by respondent
before Captain Ajit Singh proved complicity of respondent beyond doubt and the conclusion drawn by the writ Court or re-appreciation of
evidence was perverse. It is further submitted that neither the prosecutrix nor Captain Ajit Singh bore animosity against the respondent to implicate
him in a false charge of rape. It is further submitted that the SGCM was not required to record reasons for holding the respondent guilty and
consequently there was no reason to appreciate, analyse the reasons relied upon by the SGCM to convict the respondent-accused. Per contra,
Mr. S.C. Gupta, learned counsel for respondent submits that the respondent was alleged to have committed rape with a civilian girl who was not
subject to Army Act and the case was to be tried by an ordinary Criminal Court. Mr. Gupta has assailed the order of competent authority in
convening SGCM. He has also assailed the option exercised in favour of trial by Court Martial and the order of learned Judicial Magistrate,
Banihal making over the case to Army authorities for trial of respondent by Court Martial. It is contended that the composition of Court Martial
was flawed and the proceedings conducted by it did not conform to the procedure established by law. Mr. Gupta supports the judgment of
learned writ Court and submits that the testimony of prosecutrix was not confidence inspiring to base conviction thereon.
4. Heard learned counsel for the parties and considered their oral and written submissions.
5. It emerges from record that after investigation SHO P/s Banihal filed two separate charge-sheets, one against the respondent when he was in
military' custody and the other against one Bharat Bhushan. It alleged commission of offence under Sections 375/456/342/166 of RPC against the
accused. The challans were filed in the Court of learned Judicial Magistrate 1st Class Banihal. The learned Magistrate committed the case relating
to accused-Bharat Bhushan to Court of Sessions in terms of Section 205-D of Cr. P.C. as offence under Section 376 of RPC was exclusively
triable by the Sessions Court. In regard to charge-sheet filed against respondent-Captain R.S. Teumtia, the learned Magistrate forwarded the
charge-sheet to GOC CI Force Delta for trial of said accused before Court Martial as the letter of option exercised by GOC CI Force Delta
through his representative Mahinder Yadav Assistant Judge, Advocate General had been received for trial of respondent by Court Martial. This
was a composite order passed by the learned Judicial Magistrate, Banihal on 1-4-2000. It is manifestly clear that the learned Magistrate, while
committing the case of civilian accused to the Court of Sessions in terms of provisions of Section 205-D, Cr. P.C. made over the charge-sheet in
regard to respondent to GOC CI Force Delta who had exercised option to try respondent before a SGCM. It further emerges from record that
the respondent assailed this order before learned Additional Sessions Judge Ram ban in revision. The revision was rejected. The trial of
respondent before Court Martial culminated in his conviction and sentence as aforesaid.
6. The course adopted by the learned Magistrate in forwarding the charge-sheet against respondent to GOC CI Force Delta on his exercise of
option and the order passed by learned Additional Sessions Judge in revisional proceedings on 14-12-2000 paving way for trial of respondent by
Court Martial are in consonance with law and no exception can be taken thereto. Section 69 of the Army Act lays down that any person subject
to Army Act committing any civil offence is deemed to be guilty of an offence against the Army Act and is liable to be tried by a Court Martial.
This provision is subject to Section 70 of Army Act which provides that a person subject to Army Act who commits an offence of murder,
culpable homicide not amounting to murder or of rape against a person not subject to Military, Naval or Air Force law shall not be deemed to be
guilty of an offence against Army Act and shall not be tried by a Court Martial unless he commits such offence in any of the conditions enumerated
in the section including the commission of such offence while on active service. In the instant case respondent committed the alleged act of rape
with Ms. K.B. while he was on active service of the Army. Admittedly, Ms. K.B. was a civilian not subject to Army Act. The civil offence of rape
as against the victim would not be triable by Court Martial but since the alleged act of rape was committed by respondent while on active service,
he was deemed to be guilty of offence against the Army Act and was liable to be tried by a Court Martial. Discretion exercised by the competent
authority as regards choice of forum, therefore, cannot be said to have been exercised without following guidelines as the alleged offence was
committed while the respondent was on active service of Army. Objection in regard to venue of trial not having been raised by the victim who was
not subject to Army Act, respondent cannot be heard to say that such exercise of discretion by the competent authority in opting for Court Martial
suffered from infirmity on any score. Objections raised on this score regarding forwarding of case of respondent for his trial before Court Martial at
the option of GOC CI Force Delta is without substance and is rejected. The Magistrate has perfectly acted in consonance with the provisions of
Section 549 of Cr.P.C. read with Sections 69 and 125 of Army Act and Rule 5 of the Criminal Courts and Courts Martial (Adjustment of
Jurisdiction) Rules, 1978. It is already noticed that objection raised by the respondent on this score by filing revision petition before learned
Sessions Judge has been turned down and rightly so.
7. The next point for consideration is the scope of judicial review as regards Court Martial proceedings. The Hon’ble Apex Court, while
dealing with the scope of judicial review qua Court Martial proceedings in case titled Union of India v. Maj. A. Hussain, reported in (1998) 1
SCC 537 : (AIR 1998 SC 577) held as under:
22. Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is
not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court-martial has been properly convened and 86
there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any
Court must stay its hands. Proceedings of court-martial are not to be compared with the proceedings in a Criminal Court under the Code of
Criminal Procedure where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said
that court-martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the
special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. Court-
martial discharges judicial function and to a great extent is a Court where provisions of Evidence Act are applicable. A court-martial has also the
same responsibility as any Court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the
provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of
the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused when
there is sufficient evidence to sustain conviction, it is unnecessary to examine if pretrial investigation was adequate or not. Requirement of proper
and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that accused has
been prejudiced or a mandatory provision has been violated. One may usefully refer to R. 149 quoted above. The High Court should not allow the
challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject-matter
and has followed the prescribed procedure and is within its powers to award punishment.
8. The above preposition of law was reiterated in Pardeep Singh v. Union of India, reported in (2007) 11 SCC 612 : (AIR 2007 SC (Supp)
1337). Again in Union of India v. Bodulpalli Gopalaswami, reported in (2011) 13 SCC 535 : (AIR 2012 SC (Supp) 245, para 17), the
Hon’ble Apex Court observed as under :
24. The principles relating to judicial review in regard to court-martial proceedings are well settled. Unless the court-martial has acted without
jurisdiction, or exceeded its jurisdiction or had acted perversely or arbitrarily, the proceedings and decision of the court-martial will not be
interfered in exercise of the power of judicial review.
9. It is manifestly clear that the writ Court would not be acting within its domain to sit in judgment over the findings of guilt recorded by the SGCM
unless it be a case of no evidence. Judicial review in such cases is limited and once it is found that the Court Martial has been properly convened
and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the writ Court should not
interfere. Challenge to validity of conviction and sentence would not be allowed when evidence is sufficient and the Court Martial has assumed
jurisdiction properly and followed the prescribed procedure. In the instant case the writ Court has gone for reappraisal of evidence tendered by
prosecution before the Court-Martial and declined to rely upon the version of prosecutrix for the following reasons enumerated in the judgment:
(i) the prosecutrix as well as her father knew the petitioner. They did not mention his name in the FIR. As a matter of fact, his name was not
mentioned to the relations, whom the prosecutrix met. She is said to have met her uncle;
(ii) that the story that the father and other relations of the prosecutrix were given beating does not stand substantiated. As no mark(s) of injury were
found on the person of prosecutrix or any one else;
(iii) that the prosecutrix had stated that she was subjected to sexual assault twice. This was not the story put forward at any stage. This shows that
she is not a truthful witness;
(iv) that if the petitioner was already known to the prosecutrix, then no reliance can be placed on the identification parade;
(v) that the circumstantial evidence is of no consequence, as two persons who were left to stand outside the house, were standing at a distance and
they had not seen the petitioner or his companion entering the house;
(vi) that the blanket which is said to have been containing blood stains was never taken into possession;
(vii) that the parents of the girl stated that she was found unconscious. No such statement is said to have been made by the prosecutrix. She has
stated that she got up and had bath and even washed her sal war;
(viii) the alleged confession made by the petitioner before Captain Ajeet Singh would be of no consequence; as this Captain belongs to 31
Rashtriya Rifles. It is against his unit slogans were raised by the public. The possibility of petitioner being scape-goat, cannot be ruled out. This
witness kept quite for two days;
(ix) that who typed the medical report and why this was signed only by three doctors out of four doctors is again a matter which is not clear.
Whether it was typed on the date of examination or thereafter, is also not clear. Therefore, no reliance can be placed on the same.
10. The writ Court appears to have gone for reappraisal of evidence to justify its conclusion that the case projected by prosecutrix was not truthful
and, therefore, it would not be safe to rely upon her statement. It is by now well settled that in a rape case testimony of prosecutrix, if found
capable of implicit faith being reposed therein, can become basis for recording conviction of accused even without corroboration of testimony of
prosecutrix. Rape is the most abhorrent crime against womankind. It not only destroys the physique of the victim but also degrades her soul. A
victim of rape is not an accomplice in the crime. Her status is that of an injured who has become the victim of the shameful crime. Therefore,
uncorroborated testimony of a rape victim is generally accepted as basis to find the accused guilty if her version inspires confidence of Court and is
found reliable. Assurance, short of corroboration, is generally insisted upon by Courts to act upon the testimony of a rape victim. In the instant
case, it is the admitted position that the prosecutrix has implicated the respondent as the person who committed rape with her. Irrespective of the
fact whether the accused was previously known to her to the extent of nominating him with reference to his name and service particulars or not, it is
undeniable that the prosecutrix has identified the accused as the assailant. It is not the respondent’s version that the prosecutrix bore ill-will,
animosity or that she harbored any malice against the respondent to falsely implicate him. From record nothing is forthcoming to suggest that any
motive has been attributed to the prosecutrix to falsely implicate the respondent. It is also in evidence that the Medical Board confirmed allegations
of rape with prosecutrix. The evidence also demonstrates that there was a public outcry against the outrage and demonstrations were organised
against the rape of victim. The evidence further unveils that Captain Ajeet Singh, a one time close companion and colleague of accused, proved the
extra-judicial confession made by accused before him that he had sexual intercourse with the prosecutrix. There is nothing on record even to
remotely suggest that Captain Ajeet Singh harbored ill-will or feelings of enmity against the respondent and that he had a motive for implicating the
respondent in a false case. A cursory look at the record of SGCM succinctly brings out these facts and viewed in this context the reasons assigned
by the writ Court for rejecting testimony of prosecutrix do not hold good. A proved case of rape is sought to be dismantled by the writ Court on
flimsy grounds. The reasons assigned neither conform to the settled principles of law on appreciation of evidence laid down in Gurmeet Singh v.
State of Punjab, State of Rajasthan v. N.K. and a catena of authorities from the Hon’ble Apex Court but also exhibit hollowness writ large on
the fact of such reasons. Testimony of prosecutrix would not be rejected on these trifle, insignificant and minor discrepancies and contradictions. It
is not the case of respondent that the SGCM was not properly constituted, proper procedure was not followed or that the trial was not conducted
fairly. It is also not his case that he was not provided opportunity to cross-examine the witnesses or that he was not permitted to explain the
incriminating circumstances appearing in evidence against him or that he was not afforded a fair opportunity of adducing defence evidence. The
record shows that the trial was conducted in the fairest manner and all procedural requirements and safeguards were adhered to. The testimony of
prosecutrix stands corroborated by medical evidence apart from testimony of other witnesses. Extra-judicial confession made by respondent
before Captain Ajeet Singh lends further assurance to the testimony of prosecutrix in establishing complicity of respondent as the perpetrator of
crime. The writ Court, perhaps, failed to remind itself that it was not hearing an appeal and it was not required to reappraise the findings recorded
on evidence by Court Martial. The writ Court exceeded its jurisdiction in usurping the role of appellate Court and proceeded to re-appraise
evidence as if it was required to determine guilt or innocence of accused. It is queer that the testimony of the victim of crime has been rejected for
reasons which are far from convincing and overlook the guidelines laid down by the Hon’ble Apex Court in evaluating the evidence of a rape
victim. The impugned judgment is unsustainable and cannot be supported.
11. The net result of foregoing discussion is that the impugned judgment handed down by the writ Court suffers from gross legal infirmity. Cogent,
credible and convincing testimony of prosecutrix, duly proved medical report confirming sexual assault on prosecutrix and convincing account of
Captain Ajeet Singh regarding extra-judicial confession of respondent have been improperly rejected. The impugned judgment is legally
unsustainable and the same is liable to be set aside. We, accordingly, set aside the impugned judgment of writ Court and restore the conviction and
sentence awarded by SGCM as well as dismissal order passed against the respondent. The respondent shall serve the unserved sentence period.
12. Disposed of accordingly.
13. No costs.
