G.P.Mathur, J. - (1.) This petition under Article 226 of the Constitution of India has been filed for quashing the finding and sentence of the General Court Martial and the order rejecting the petition under Section 164 (2) of the Army Act.
(2.) The petitioner was tried by General Court Martial for stabbing Sepoy Driver Rabari Bhagwan Bhai Dhanna Bhai (for short Rabari) of his centre on 4.3.1978. The case of the prosecution, in brief, was that the petitioner was a member of the Staff of the Unit Regimental Police in March, 1978. At about 18.00 hours on 4.3.1978 he persuaded Sepoy Driver Rabari of his centre to accompany him to Gaya town by falsely representing to the latter that he (petitioner) was on regimental police duty. Both of them first went to a fair organised in the town. At about 21.00 hours, Sep. Rabari suggested that they should return to the centre. The petitioner, however, persuaded Sep. Rabari to go with him to Sarai Mohalla (local red light area) for the allowed purpose of checking whether anybody from their unit was present in that area. After reaching there, the petitioner left Sepoy Rabari near a pan shop and he went away. He returned after about half an hour in a drunken state. The petitioner then took Sep. Rabari near the house of a prostitute and asked him to go inside the house and fetch the prostitute. Sep. Rabari refused to comply with his wishes but the petitioner tried to physically pushed him into the house and asked him repeatedly to go there. Sep. Rabari tried to run away from there. The petitioner caught hold of him, took out a knife from the pocket of his trousers and stabbed him on the right side of his abdomen. Sep. Rabari started bleeding profusely and fell down. The civilians present in the area gathered around and questioned the petitioner about the incident but he asked them to run away. On their not leaving, he stabbed two of them. Meanwhile Sep. D. N. Trivedi arrived on the scene who coferred with the petitioner and then both of them fled away. Sep. Rabari was rushed to Pilgrim Hospital. There he was examined by Dr. M. I. Mallik who found him grievously injured and in an unconscious state. His life was saved by surgical operation and treatment. The petitioner and Sep. Trivedi were traced out and were arrested by the civil police. Sep. Trivedi handed over the knife to the police saying that the petitioner had stabbed one military personnel with it. The defence of the petitioner in the Court Martial was that on 4.3.1978. Sep. Rabari had gone to the town with L/N. K. Terkey and he was stabbed by one Naresh Giri, an employee of prostitute Manju, when he tried to enter her house. The petitioner had gone to the town for buying vegetables and Sep. Trivedi had accompanied him. There they met Sep. Rabari in the company of two civilians ; one of whom was Bucha a pimp. At the insistence of Sep. Rabari they all took liquor. Thereafter Sep. Rabari and civilians went to the house of a prostitute and the petitioner along with Sep. Trivedi returned to Gaya Tractor House where the former had some work. After sometime, they learnt about a quarrel involving a military personnel. The petitioner then went in that direction and found Sep. Rabari lying infront of the house of the prostitute Manju with a knife pierced in his abdomen which was taken out by Sep. Trivedi. The petitioner and Sep. Trivedi lifted Sep. Rabari and proceeded towards P. S. Kotwall but enroute some police men arrested them.
(3.) In the court martial, a number of witnesses including Sep. Rabari, Sep. Trivedi, Sub. P. C. Dutta, Dr. Mallik, Sub-Inspectors Arvind Kumar. Mithlesh Kumar and Upadhaya were examined on behalf of prosecution. The petitioner examined L/N. K. Terkey, Istiaq Ahmad olios Bucha. The petitioner was given full opportunity to cross-examine the witnesses of the prosecution and also to lead evidence in his defence. The petitioner declined to make a statement under Rule 59 (b) of the Army Rules. The Court Martial recorded a finding that the petitioner is guilty of the charge and sentenced him (a) to suffer rigorous imprisonment for one year and (b) to be dismissed from service, by the order dated 3.8.1979. The finding and sentence of the General Court Martial were confirmed by the General Officer Commanding, M. P.. Bihar and Orissa area on 29.8.1979. It was promulgated to the petitioner on 15.9.1979, and he was transferred to the Central Jail, Gaya, to serve out the sentence. The petitioner preferred a petition dated 17th January, 1980 under Section 164 (2) of the Army Act to the General Officer Commanding-in-Chief. Central Command, Lucknow which was dismissed and the dismissal order was communicated vide letter dated 21st May, 1980.;