New Delhi: The Armed Forces Tribunal has
quashed the dismissal of an Army Havaldar ordered by a Court
Martial, which found him guilty of assaulting his subordinate
and misbehaving with his senior officers.
Havaldar Rakesh Dhaka was dismissed by a Summary Court
Martial (SCM) for "deliberately planning and assaulting one of
his subordinates with wooden baton and broken bricks causing
him grievous and multiple injury and later threatening him".
In his plea, Havaldar Rakesh Dhaka of the Army
Ordnance Corps had contended that the SCM had held him guilty
only on "conjectures and surmises".
Dhaka argued that he had not pleaded guilty before the
Army court but it proceeded assuming the "plea of guilt" on
account of his refusal to sign the "so-called plea of guilt".
He contended that the Court Martial should have gone
ahead with a full trial and should not have dismissed him
The Army in its reply contended that Dhaka had pleaded
guilty but refused to sign the `plea of guilt` in the court.
SCM records suggest that Dhaka had pleaded guilty of
charges against him but the leaf affixed on the SCM documents
suggested that it was not signed by the accused.
On Dhaka`s contention that "no attempt" was made to
examine the witnesses to substantiate the charges against him,
the Army maintained that full opportunity was given to him to
cross examine the witnesses.
Finding that trial and conviction of Dhaka was "not
legally sustainable", the Tribunal Bench headed by Justice S S
Kulshreshtha and Lt gen (retd) S S Dhillon said, "the appeal
is allowed and the conviction and the sentence of the Dhaka
are set aside."
On the unsigned `plea of guilty` used by the Army in
the SCM, the Tribunal observed "the legal position remains
that `plea of guilt` is necessarily required to be signed to
give authenticity to it... such unsigned ?plea of guilty? has
Justice Kulshreshtha further said "burden of proof
rests on the prosecution. By merely acting on the so-called
plea of guilt the burden is not discharged. The prosecution
must stand on its own legs for basing its findings."