IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH,

WEST BLOCK-8, R. K. PURAM, NEW DELHI

OA No. _____________/2013
IN THE MATTER OF: EX HAV ABHAY KUMAR
VERSUS

..APPLICANT

UNION OF INDIA & ORS URGENT APPLICATION To, The Registrar Armed Forces Tribunal Principal Bench, West Block VIII, R K Puram, New Delhi-110066 Sir,

..RESPONDENTS

Kindly treat the accompanying Application under Section 14 of the Armed Forces Tribunal Act 2007 as urgent matter for listing before the appropriate bench of the Honble Tribunal for .05.2013.

The grounds of urgency are as prayed for in the Original Application. Yours faithfully,

Place : New Delhi Date : .05.2013

S S PANDEY Advocate for Applicant V-5, Green Park Extn., New Delhi-16 Mob: 09968319917

LIST OF DATES
Apr 2009 The Applicant, No 1460 8530X Hav/Armr Abhay Kumar was posted to 42 RR Bn and reported at RH Canal HQ Coy. The applicant was in FRI platoon and then posted to Tral due to requirement of Armourer. The Applicant reported back from leave to RH Canal. The Applicant was interviewed with OC HQ Coy and took over charge of platoon. The Applicant was heading towards the RP gate of the RH Canal when he was told by Cfn Ram Lakhan Sharma about an altercation going on in the FRI Platoon barrack. Upon reaching there, he saw Nk Guttee Prahlad and Nk Indrasen Singh fighting with each other. On hearing them planning about beating him up, he scolded Nk Guttee Prahlad and asked him to drop his rife. Nk Manga Ram caught Cfn RL Sharma but suddenly fire took place and Sub Jaipal Singh was shot. While the applicant was snatching the rifles firing took place wherein Nk Indrasen Singh was hit. Chargesheet was framed against the Applicant and SGCM was initiated against him. The Court found the applicant guilty and sentenced him to imprisonment for life and dismissed him from service.

Apr 2009 to Jan 2010 14.04.2011 15.04.2011

28.04.2011

22.02.2013

07.06.2013

GROUNDS FOR RELIEF WITH LEGAL PROVISIONS:

A) Because the acts of Mr. Abhay Kumar were not pr-meditated, he had no predisposition to commit the alleged acts, and it was a consequence of a sudden fight. In fact, the petitioner was merely trying to stop any firing which could take place, by asking them to keep the gun down. B) Because no bullet or cartridge or empty case in the chamber of the rifle which was taken from the accused was found that clearly shows that no round was fired from the rifle which was seized from the accused as alleged by the prosecution.

C) Because the motive behind the commission of the offence is clearly lacking. There is no motive, no pre-planning and no pre-meditation of any kind of preparation on the part of the accused or otherwise. This unfortunate incident has happened due to an internal scuffle and minor issues which have turned horrific. There are always rifles available in abundance and according to the arms issue register (Exhibit 17) which has been pointed out at various level during the cross examinations of witness No 6 that the person who is drawing the weapon may not be depositing.

D) Because the mens rea so required for the offence to be punishable, is not present. None of the PWs have stated that words spoken by the accused with the deceased or anyone else, neither he had ill-intention, nor any fight, and the only argument was regarding the rum and cigarette allowance of Sep Rajshekharan are only a bundle of lies and a cooked story. Sep Rajshekharan has never made a complaint or had any doubt in his mind regarding the irregularity of rum and cigarette allowance, he has not been brought in SGCM to depose. E) Because the witnesses accounts are contradictory. PW-4 in his statement has stated that at 0545hrs he had heard gun shots and came out of his room near signal stores. He saw Lt. Col. DP Sharma in front of SA office. This is contrary to all other witnesses when he saw PW-11 at 0545hrs at SA office whereas PW-11 stated that he had got up at 0545hrs, there is a mismatch between both the statements. If he had seen Lt. Col. DP Sharma in front of SA office on hearing the firing, either he or other witnesses like PW-7 who had met him in front of his residence we may have to believe either PW-4 or Pw-7, because both having seen PW-11 at separate places cannot see PW-11 at the same time. F) The statement given by PW-5 is arbitrary and one with malafide intentions, in order to falsely implicate the petitioner. In his statement, PW-5 deposed that the accused was firing towards Nk Mange Ram and Nk Gutte Prahlad. PW-5 was in the same barrack, woke up and saw accused firing towards Hav Manga Ram and Nk Gutte Prahlad. He had never seen accused firing on Nk Indresan Singh, Cfn Ram Lakhan Sharma and Cfn Solankhe Dattatrey. Whereas PW-8 (Hav Manga Ram) had never stated that any round was fired towards him.

G) Because during cross-examination, all the witnesses were sitting together in a single room and conniving with each other, being a major procedural irregularity, thereby impeaching the criminal judicial procedural system. H) Because the onus of proof lies upon the prosecution but it has failed to produce even the photographs taken of the place of occurrence, which could have been a very important piece of evidence. Again the malafide intentions of the prosecution have been thrown light on as it is very much evident that they want to hide the truth.