SURYA KANT, J. - (1.) THE petitioner, an ex-sepoy of 7th Battalion, Sikh Regiment, has invoked the writ jurisdiction of this Court under Article 226 and 227 of the Constitution of India for quashing of the findings of the General Court Martial, Annexure P-5, the order of sentence dated 29th January, 1998, Annexure P-4, as also the order dated 15th March, 1999, Annexure P-7, passed by the Chief of the Army Staff. A writ in the nature of mandamus has also been sought to direct the respondents to reinstate the petitioner in service with all consequential benefits.
(2.) IT may be mentioned here that vide order, dated 29th January, 1998 Annexure P-4, the petitioner, after having been held guilty of committing rape while he was on duty in a remote and isolated island area of Assam State, has been sentenced to undergo rigorous imprisonment for 10 years and has also been ordered to be dismissed from service. In terms of the order aforementioned, the petitioner is presently serving the sentence of imprisonment. The petitioner was enrolled in the Indian Army on 29th December, 1992. While serving in the 7th Battalion of the Sikh Regiment, the petitioner was detailed to proceed on a patrol duty under Naib Subedar Amrik Singh of Inland Water Transport Company on 8th May, 1997. The patrolling party consisted of one JCO, two NCOs and 5 others including 3 CRPF personnel as well as the petitioner. The patrolling party left at about 8.30 AM for Koila Bari in a 10 men boat and an on its way it reached a small island in river Brahamputra which was inhabited by a few tribals. Having suspected that the tribal habitation was being used as militants' hide-out, the patrolling party was divided into two groups in order to carry out the search operations. While one group was headed by Naib Subedar Amrik Singh, the petitioner along with his co-accused formed part of the other group. It was alleged that the petitioner and his co-accused entered into the hut of a young lady who was all alone along with her child aged about 4-5 years and both of them by pushing her on the ground, forcibly committed rape one by one. The aforesaid allegation led to issuance of a charge-sheet, dated 12th January, 1998, Annexure P-1, to the petitioner containing following charges :- "First Charge - Committing a civil offence, that is to say, gange rape, contrary to Section 376(2)(G) Read with Section 34 of the Indian Penal Code. - In that they together, while on active service, at village Machaki Chapari Moila Ali Gaon in District Demaji, on 08 May, 1997, committed gang rape on Smt. Tarulatta Pegu wife of Shri Jatin Pegu, a civilian woman. (Army Act Section 69 read with Section 34 of the Indian Penal Code (Against both the accused) Second Charge - Disobeying a lawful command given by his superior officer. - In that he, while on active service, at the place and date mentioned in the first charge, when ordered by JC-347882W Naib Subedar Amrik Singh of 236 Inland Water Transport Company to carry out search of the house in presence of male members of the houses, did not do so. (Army Act Section 41(2) (Against accused No. 1 only)."
(3.) SINCE there was no eye witness to the occurrence except the victim Tarulata Pegu, but having found that her testimony was trustworthy and the allegations were also substantiated by the depositions made by other witnesses including those who were members of the patrol party and also having noticed that the medico-legal report submitted by the doctor (PW-3) was inconclusive as she could not ascertain whether or not the victim (PW-2) was subjected to rape recently, the Summary General Court Martial on consideration of the circumstantial evidence, held the petitioner along with his co-accused guilty and sentenced them for committing rape of PW-2 while they were on active service and were engaged in search operations in the execution of their military duty. The petitioner was also held guilty and sentenced for the second charge, as according to the Summary General Court Martial, he was required to search the house only in the presence of the male members of the house.;