L.NAGESWARA RAO,J. - (1.)Dafadar Kartar Singh, the Respondent-herein was tried by the Summary Court Martial for a civil offence of house breaking by night. He was found guilty of the charge and was sentenced to rigorous imprisonment for seven months apart from dismissal from service and reduction in the ranks. The conviction was set aside by the Armed Forces Tribunal, Regional Bench, Chandigarh (for short, "the Tribunal"). The Tribunal directed that the Respondent shall be deemed to be in service w.e.f. 10.11.1999 till the date of his superannuation in the rank of Dafadar. He was also held to be entitled to all allowances for the said period and pensionery benefits. These Appeals are directed against the said judgment of the Tribunal.
(2.)The Respondent was serving in the 74 th Armoured Regiment at Panagarh, West Bengal in the year 1998. He was residing in the residential quarters at the SBI Lines. Sowar Kishore Kumar Yadav who was also staying in the same residential quarters was hospitalized on 14.10.1998 due to which his wife Smt. Sudesh was staying alone in the residential quarters. As Smt. Sudesh was alone, her neighbor's son- Master Jaynendra alias Bittoo was requested to stay with her. Around midnight of 14/15.10.1998, Smt. Sudesh heard some sound of breaking of a bottle from the toilet of her house and noticed the movement of a person in the toilet. She saw a person wearing a light coloured sleeveless vest and a kuchha coming out of the toilet. He switched off the lights in the lobby and the toilet. Smt. Sudesh tried to wake up Bittoo. In the meanwhile, the intruder walked up towards the door of the bed room and stood in the door-way. She could see the intruder in the light of the bed room. He switched off the light of the bed room and came inside the bed room. Bittoo woke up and saw the intruder and started screaming "Koi Aadmi Hai". Then Smt. Sudeh also screamed at which the intruder ran out of the bed room closing and bolting the bed room from outside. Smt. Sudesh heard Smt. Mithilesh, mother of Bittoo, enquiring from outside as to what was the matter to which Bittoo replied that somebody has come into the house. Thereafter, people gathered at the main entrance and opened the locked room and entered inside the bed room and started enquiring about the incident. Some people also inspected the toilet to find out as to how the intruder sneaked into the house. Smt. Sudesh came out of the house and saw Lance Naik A. Hussain, Havildar K.K. Thakaran and Naik Ramesh Yadav amongst other people who gathered outside the quarters. She immediately recognized the intruder standing along with other people who gathered there and pointed to the Respondent saying that he was the man who broke into the house. Risaldar Pritam Singh visited the house of Sowar Kishore Kumar Yadav to investigate the incident at 1400 hrs. on 15.10.1998 on receipt of complaint of house breaking. He spoke to Smt. Sudesh who explained to him the details. He inspected the window of the toilet and found the lower portion of the window had been removed and was lying near the drain block and the frame of the window was broken. The broken ends of the detached portion of the window lying on the ground indicated that it was broken recently. He inspected the toilet to find that the bottle which was containing acid was lying broken in the toilet. He then called the official photographer and the photographs of Respondent and the site were taken. The Respondent had abrasions on his right upper arm on the lateral side and the left upper arm on lateral side.
(3.)The Court of Inquiry was held to investigate the charge levelled by Smt. Sudesh against the Respondent. Eight witnesses were examined and the Court of Inquiry recorded a finding that Respondent broke into the house of Smt. Sudesh. However, as the intention of the house breaking was not established, the Court of Inquiry recommended that disciplinary action be initiated against the Respondent. The Respondent was medically examined by Captain C.P. Patel, Army Doctor, on 18.10.1998 who found abrasions on his arms which were three to four days old. Summary of evidence was recorded in the presence of the Respondent in terms of Rule 23 of the Army Rules and a charge sheet was laid against the Respondent for committing an offence under Section 69 of the Army Act contrary to Section 456 of the Indian Penal Code ("IPC") for house breaking by night. The GOC 15 Infantry Division gave sanction for trial of the Respondent by Summary Court Martial in terms of Section 120 of the Army Act, 1950. The Commanding Officer, 74 Armoured Regiment conducted the Summary Court Martial between 11.08.1999 and 10.11.1999. The Respondent pleaded not guilty of the charge. Six prosecution witnesses were examined. The Respondent gave statement in his defence at the trial and has also examined two defence witnesses. Two Court witnesses were also summoned and examined. At the conclusion of the trial, the Summary Court Martial found the Respondent guilty of the charge and sentenced him to reduction in the ranks, dismissal from service and rigorous imprisonment for seven months.