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Judgment
The appellant was a Head Constable attached with the 54th Battalion BSF. A contingent of the Battalion, of which the appellant was a part, was
deputed at Station Headquarter BSF in Bikaner for annual collective training. Training being completed on 12th January, 2002, in the evening the
contingent was directed to proceed to Baramulla where the Battalion was stationed. The BSF personnel including the appellant who were, post
completion of training, to return to Baramulla boarded the train at Bikaner at 22.30 hours on 12th January, 2002. The train was to take them to Jammu.
When the train reached Bhatinda in the morning it was reported that the appellant was missing. He had left the holdall in the compartment. The train
reached Jammu at 2.00 PM. The next day, on reaching Baramulla this information was conveyed to the Commandant of the Battalion who took
cognizance of the offence report as contemplated by Rule 43 of the BSF Rules, 1969. The appellant joined the unit on 23rd January, 2002 and was
placed under arrest. Prima facie offences under Sections 19(a) and 32(b) of the BSF Act, 1968 were made out.
Proceeding under Rule 45 of the Rules of 1969 the Commandant took the view that it was a case where record of evidence needs to be prepared.
On 13.2.2002 the Commandant directed 2-IC Shri U.K.Nayal to prepare the record of evidence.
During record of evidence HC Bhagwan Das was examined as PW1, HC Puran Singh as PW2, Constable Surender Nayak as PW3, HC
Gajanan as PW4 and Dy.Commandant R.Chakraborty as PW5. The cumulative effect of the testimony of the said witnesses is that after the appellant
alongwith members of the Force boarded the train at Bikaner in the night of 12th January, 2002 he was found missing with arms and ammunition
which were issued to him. Testimony of HC Gajanan concerns issuance of arms and ammunition to the appellant. Testimony of others establishes the
appellant missing from the train. Testimony of Dy.Commandant R.Chakraborty brings out that the SP (City), Mathura sent a message to the Force
Headquarter regarding recovery of briefcase belonging to the appellant having arms and ammunition. The same was found abandoned.
Relevant would it be to highlight that during record of evidence the appellant was present when the statements of the witnesses were recorded.
Opportunity was granted to him to cross-examine the witnesses. He did not cross-examine a single witness. 2-IC forwarded the record of evidence to
the Commandant of the 54th Battalion who considering the same framed two charges against the appellant. The first was of unauthorized absence
and the second which was more serious was of being negligent in keeping the arms and ammunition issued to him in proper custody resulting in the
same being lost but recovered by the police at Mathura.
A charge-sheet was served upon the appellant. At the arraignment he pleaded guilty. In view of the plea of guilt the record of evidence was read
out and the penalty of being dismissed from service and to suffer rigorous imprisonment for six months was inflicted upon the appellant.
Unfortunately, while recording the plea of guilt appellant’s signatures have not been taken. The whole case of the appellant is that plea of guilt
was wrongly recorded. He did not plead guilty.
The writ petition filed by the appellant has been dismissed by the learned Single Judge, who has noted that statutory petitions filed were also
dismissed. The learned Single Judge has noted that on the one hand the appellant claims not to have pleaded guilty but in the statutory petitions he
pleads that the plea of guilt was under inducement.
Now, both cannot co-exist.
In our opinion, the issue needs to be decided with reference to what happened during recording of evidence. As noted above, during proceeding for
recording of evidence, which proceedings have been signed by the appellant, five witnesses were examined in his presence who proved the
indictment. The appellant did not cross-examine any witness.
The same witnesses were the witnesses at the trial. Obviously the appellant knew that he had no case. That he had absconded enroute when the
train left for Bikaner and was to reach Jammu was admitted by him when he joined the unit belatedly. That the arms and ammunition issued to him
were recovered by the police at Mathura was a fact which he could not controvert. Obviously, he pleaded guilty to the charge.
The proceedings at the recording of evidence break the impasse.
In this connection it would be relevant to note that in the writ petition filed by the appellant he admitted that he was undergoing annual collective
training at Bikaner till 12th January, 2002. He pleads that he applied for leave. He pleads that he received information over the telephone of his
daughter being sick. He pleads that he applied for leave. He pleads that he was directed to proceed with the unit to Baramulla. He admits that he
boarded the train at Bikaner at the night of 12th January, 2002 and claims that when the train reached Bhatinda at 8.30 next day morning he was
disturbed. He got down from the train alongwith his suit-case which was having the security weapons. He boarded a train from Bhatinda and reached
Panipat and therefrom he took a train to go to Aligarh. The next day he boarded a bus and enroute his suit-case containing arms and ammunition was
lost. He claims that he told co-passengers in the bus of his suit-case being lost. He claims that co-passengers apprehended some miscreants from
whom weapons were recovered.
We note this to bring home the point that in the writ petition the appellant admits having parted company with his buddies. His make belief story of
his suit-case being stolen and miscreants being apprehended is unbelievable. As noted above, SP, Mathura gave information to the Battalion
Commandant that arms and ammunition issued to the appellant were recovered at Mathura Railway Station.
We find no merit in the appeal which is dismissed.