P.K.LOHRA, J. - (1.) CHALLENGE laid in this writ petition, by a Constable/Driver employed in Border Security Force (BSF), is against the impugned order dated 20th of May 1993 (Ex.2) denoting confirmation of findings and sentence, passed by the Inspector General Kashmir FTR BSF, Commanding Officer, Srinagar, whereby the petitioner was handed down a sentence of five years' rigorous imprisonment and penalty of dismissal from service, and the appellate order dated 27th July 1994 (Ex.4) passed by Director General, BSF, New Delhi upholding order Ex.2.
(2.) SUCCINCTLY stated, the facts of the case are that the petitioner, while discharging his duties as a Driver of BSF, was charged for the offence under Section 376 of the Ranbir Penal Code (for short, 'RPC') with other active members of ambush party with a specific allegation that he ravished two ladies. The other members of the ambush party were also castigated for committing offence of murder and grievous hurts under different Sections of RPC. The alleged incident relates to curfew bound area, Achhabal ­ Diagam ­ Kukamag Road Tri -junction, in the night intervening 17/18 May, 1990. The incident was reported to the local police and after conducting investigation, charge sheet was submitted before the competent Magistrate, wherein the petitioner was not arrayed as an accused. The Magistrate took cognizance against 18 accused persons. Subsequently, the Magistrate handed over the persons named as accused in the FIR to the force custody and a decision was taken to try the accused persons by General Security Force Court (for short, hereinafter called 'GSFC'). Before the GSFC, a charge sheet was submitted against eight incumbents including the petitioner, and against him offence under Section 376 RPC for committing rape of Mrs. 'M' and Mrs. 'A' was attributed. The GSFC conducted the trial and examined 24 prosecution witnesses including both the prosecutrix. The petitioner has categorically averred that neither his name finds place in the FIR, nor his name figured in the statements recorded under Section 161 Cr.P.C. According to the version of the petitioner, the charge sheet by the civil police was submitted against 18 BSF personnel. That apart, the petitioner has very specifically pleaded that he was never identified by anyone including both the prosecutrix in two identification parades. During trial before the GSFC, as many as six witnesses were examined as prosecution witnesses, who were named as accused persons in the charge sheet submitted before the Magistrate. The crux of the matter is that while assailing the entire proceedings conducted by GSFC, the petitioner has specifically pleaded that the GSFC ought to have proceeded from the stage it was taken over by the BSF from the criminal Court and GSFC ought not to have resorted to any other procedure of the trial.
(3.) POINTING out serious loopholes in the trial conducted by the GSFC, the petitioner has submitted that he has been made scapegoat and while indicting him for offence under Section 376 of the RPC, reliance has also been placed on the six prosecution witnesses, who were accused in the original FIR. While referring to the proceedings undertaken by the GSFC, the petitioner has laid stress on the testimony of P.W.20, who according to him has categorically stated that he has filed challan against 18 personnel and not against the petitioner. Categorizing the impugned order as infirm and perverse, the petitioner has alleged in the writ petition that both the prosecutrix have neither deposed against the petitioner to prove the charge of molestation, nor was there any cogent and convincing medical evidence to prove said offence against him.;