DALBIR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellant is before this Court assailing the order dated August 26, 2011 passed by the Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir whereby the appeal filed by the appellant herein has been dismissed and the sentence imposed by the Summary General Court Martial ('SGCM' for short) has been upheld.

(2.) The appellant was enrolled in the Army on April 06, 1999 and was posted to 3 Rashtriya Rifles (RR) Battalion (Bn) in the year 2006. While he was so serving, in respect of an incident which occurred on August 13, 2006, action was initiated under Section 34(c) of the Army Act, proceedings were held by the SGCM and the sentence to undergo imprisonment for six months and dismissal from service was imposed. The appellant assailing the same was before the Armed Forces Tribunal and in the said proceedings the order impugned dated August 26, 2011 is passed. The incident referred to is that according to the prosecution while the appellant was posted to 3 Rashtriya Rifles (RR) Battalion (Bn), it was ordered on August 13, 2006 to cordon and search be carried out in village Darigidiyan in the Jammu and Kashmir. The details of the officers who formed a part of the contingent is also referred in the proceedings. On reaching the village there was a brief contact with the militant and exchange of fire, after which the militants took cover in a maize field. In that view, for the purpose of operation two teams were formed, among others the appellant was a part of the second team. At about 0800 Hrs on August 13, 2006 the team under Subedar Subhash Chand in which the appellant was also a member was divided into two groups. When the appellant and the group in which he was given the responsibility to search the house along with Naik Sukhdev Raj and Sapper Bachitar Singh was searching, they heard firing from the direction of the maize field and as such the group exited the house from the window and the cordon was thereafter adjusted for the night around the maize field. In that regard the Light Machine Gun (LMG) was also placed and the LMG was manned by Sapper Gurmail Singh and the appellant. To provide support, Sapper Bachitar Singh was positioned to his left at about 57 meters. At about 2300 Hrs intense fire came from the direction of the maize field towards the LMG spot wherein Sapper Gurmail Singh, Subedar Dalbir Singh and the appellant were positioned. The charge against the appellant is that he left his post, jumped across the stone wall and failed to retaliate against the militants. He failed to use his AK47 and a pistol which was with him due to which the militants broke the cordon, killed Sapper Gurmail Singh and took away the LMG. While jumping over the wall the appellant no doubt was hit by a bullet in the leg.

(3.) Based on such charge of exhibiting cowardice by abandoning his post, the proceedings were held in the SGCM. The witnesses were examined and on analysing the same the sentence dated March 06, 2008 was imposed. It is the said finding and sentence which was assailed in OA.No.296 of 2010 before the Armed Forces Tribunal. The Armed Forces Tribunal has referred to the evidence of each of the witnesses who had been examined in the SGCM while prosecuting the charge against the appellant and on such reappreciation had arrived at the conclusion that the sentence imposed on the appellant is justified.