Ms. Maitrayee Das Gupta, Mr. Abhishek Kukkar and Mr. Mohit Kumar, Advs v. UNION OF INDIA ORS on 25 Sep 2025

Judgment

1. The present writ petition has been filed under Article 226 of the Constitution of India challenging impugned order dated

22.03.2024 passed by the learned Armed Forces Tribunal1, Principal Bench at New Delhi, whereby the learned AFT refused to suspend the sentence of rigorous imprisonment for ten years and release the petitioner on bail pending appeal before the learned AFT.

2. Briefly stating, the petitioner was commissioned in the Indian Air Force2 on 19.12.2015 as a Fighter Controller and after Signature Not Verified 1 “AFT” hereinafter 2 “IAF” hereinafter Signed By:PREETI Signing Date:25.09.2025 15:53:02 W.P.(C) 8609/2024 approximately six years of service, he came to be posted to the Air Force Administrative College at Coimbatore in August of 2021 to undertake the 2 Professional Knowledge Course (“2PKC”).

3. It has been stated that on 09.09.2021, a party was held at the AFAC Officers’ Mess, which was attended by the petitioner and Ms. X3 along with their other course-mates. Earlier that evening, the prosecutrix had sustained an ankle injury while playing basketball and was prescribed “Combiflam” tablet and “Diclofenac gel” and a crepe bandage was applied on her ankle. It is the case of the prosecution that the prosecutrix consumed alcohol along with the medication, rendering her in an incomprehensible state, and causing her to vomit in the portico area of the Mess, after which she was escorted back to her room by Flight Lieutenant Tania Singh (PW1) and Flight Lieutenant Jaspreet Singh (PW2). Once inside, PW1 is stated to have assisted the prosecutrix in removing her lower garment, while the kurta she was wearing remained on since it could not be taken off. After the party concluded at the Mess, it is stated that there was an impromptu gathering in another room, which was attended by the petitioner, PW1 and PW2, but not by the prosecutrix.

4. Apparently, the prosecutrix having passed out, was unable to recollect the subsequent events of the night, including the alleged incident of sexual assault, owing to her state of intoxication. Hence, the case of the prosecution finds its footing in the accounts of PW1 and PW2. It is further alleged that on 10.09.2021, around 12:30 a.m., while the prosecutrix was in her room, the petitioner entered her room. Signature Not Verified 3 “the prosecutrix” hereinafter Signed By:PREETI Signing Date:25.09.2025 15:53:02 W.P.(C) 8609/2024 An hour later around 1:30 a.m., PW1, the roommate of the prosecutrix, came to the said room, finding it locked from the inside, she called out to the prosecutrix. The prosecutrix opened the door for her and returned to bed where the petitioner was lying. It is stated that PW1 found the petitioner lying next to the prosecutrix with his arm over her chest and the bedsheet thrown on the floor. Around 3:15 a.m., PW1 is said to have woken up the petitioner and asked him to leave the room since his course-mates were searching for him, following which, the petitioner left the room. On this basis, the alleged incident is said to have occurred between 12:30 a.m. and 3:15 a.m. on

10.09.2021, which is also reflected in the CCTV footage. After the petitioner had left the room, PW1 alleges that she detected four to five semen stains on the mattress and on the prosecutrix, and that around 3:30 a.m., she called PW2 to inform him about what she had seen.

5. The next morning, i.e., on 10.09.2021, the prosecutrix discovered that she was unclothed from the waist down. PW1 narrated the events of the previous night to her and after becoming aware of the said events, the prosecutrix told PW1 that the petitioner had tried to kiss her and she had asked him to leave because she was in pain and wanted to sleep. Subsequently, PW2, who had been earlier informed by PW1 regarding the alleged incident, went to their room and attempted to verify the sequence of the events. Upon inspection of the room, he claimed that he detected semen-like stains on the kurta of the prosecutrix and also observed two to three stains on the right side of the mattress. Signature Not Verified Signed By:PREETI Signing Date:25.09.2025 15:53:02 W.P.(C) 8609/2024

6. Further, it is stated that on the same day i.e., 10.09.2021, around 8:58 p.m., the petitioner allegedly sent a text message to PW1, apologizing for the previous night and wanting to speak to her. In pursuance thereof, around 9:30-10:00 p.m., the petitioner went to her room to tender an apology and explain the events of the previous night but found PW2 present there as well. The petitioner is said to have made an alleged confession before PW1 and PW2 which was discreetly video-graphed by PW2. In the said alleged confession, the petitioner has purportedly admitted that while the prosecutrix was not in her senses, he had kissed her, inserted his fingers into her vagina, disrobed her, masturbated near her and thereafter slept beside her. This alleged video confession was shown to the prosecutrix. It is further alleged the petitioner made other extra-judicial confessions to his course-mates (PW4, PW5, PW6, PW7 and PW9) admitting that he had sexual intercourse on the previous night.

7. The prosecutrix, upon learning of the alleged incident through the aforesaid video recording, submitted a written complaint to Wing Commander Ajita on 11.09.2021, leading to initiation of Court of Inquiry4 proceedings. This, however, came to be withdrawn by the prosecutrix on the following day. Subsequently, on 20.09.2021, the prosecutrix lodged a formal complaint, resulting in the registration of Crime No. 09 of 2021 at the All Woman Police Station5, Coimbatore, pursuant to which the petitioner was arrested on 25.09.2021. Thereafter, the civil police collected the bed sheet and mattress cover from the room where the alleged incident took place and the Report of Signature Not Verified 4“COI” hereinafter 5“AWPS” hereinafter Signed By:PREETI Signing Date:25.09.2025 15:53:02 W.P.(C) 8609/2024 the Central Forensic Science Laboratory, Hyderabad indicated that semen was not detected on these articles. However, the video of the alleged confession was found to be genuine by Government Forensic Lab, Chennai vide report dated 18.03.2022. Subsequently, the COI resumed, and the petitioner was transferred to Bengaluru for pre-trial proceedings under Rule 24 of the Air Force Rules of 1969 and Summary of Evidence (SOE) culminating in a trial before the General Court-Martial6.

8. The petitioner, however, disputes the prosecution case and the allegations based thereon, save to the extent of holding of the party at the Officers’ Mess which was followed by an impromptu gathering that took place in another room. The petitioner alleges that he and the prosecutrix knew each other since their training days at the Air Force Academy in July 2015 and having reconnected at the 2PKC course, they had grown familiar. He points out that even on the date of the alleged incident, earlier in the evening, the prosecutrix and the petitioner were playing basketball together along with other course- mates. The petitioner admits going into the room which belonged to the prosecutrix on the relevant night, but contends that the incident was consensual in nature, which, he alleges, is supported by the reluctance and subsequent withdrawal of complaint by the prosecutrix. He further alleges that PW1 had entered into the said room to find the prosecutrix and the petitioner sleeping together on the same bed and according to the petitioner, PW1 did not raise any alarm and only woke him around 3:15 a.m. since his course-mates were trying to find Signature Not Verified 6 “GCM” hereinafter Signed By:PREETI Signing Date:25.09.2025 15:53:02 W.P.(C) 8609/2024 him. The petitioner further alleges that he concealed the consensual nature of the incident in order to safeguard the reputation of the prosecutrix. The petitioner also maintains that on 10.09.2021, the prosecutrix approached him and requested him to speak to PW1 to resolve the matter and conceal it from others. In pursuance thereof, the petitioner went to PW1 to resolve the issue privately, where PW2 was also present, and the alleged confessional video came to be recorded. The petitioner alleges that both PW1 and PW2 pestered him and under such duress, he had made false statement to protect the prosecutrix.

9. In the backdrop of these rival contentions, seven charges were framed against the petitioner on 09.12.2021 before the GCM under Section 71 for commission of civil offence punishable under Sections 376(1), 354, 354B & 451 of Indian Penal Code, 1860 and Sections 45 & 65 of the AF Act. The charges framed are as follows:

First Charge Section 71 Air Force Act, 1950 COMMITTING A CIVIL OFFENSE, THAT IS TO SAY, USING CRIMINAL FORCE TO A WOMAN WITH INTENT OF DISROBING HER, PUNISHABLE UNDER SECTION 376(1) OF IPC, 1860 In that he, at Air Force Administrative College, Coimbatore, on the intervening night 09 and 10 Sep 2021, committed rape of the prosecutrix by inserting his fingers into her vagina. COMMITTING A CIVIL OFFENSE, THAT IS TO SAY, USING CRIMINAL FORCE TO A WOMAN WITH INTENT OF DISROBING Second Charge Section 71 Air Force Act, 1950 HER, PUNISHABLE UNDER SECTION 354 Signature Not Verified Signed By:PREETI Signing Date:25.09.2025 15:53:02 W.P.(C) 8609/2024 OF IPC, 1860 In that he, at Air Force Administrative College, Coimbatore, on the intervening night 09 and 10 Sep Third Charge Section 46(a) Air Force Act, 1950 Fourth Charge Section 65 Air Force Act, 1950 Fifth Charge Section 71 Air Force Act, 1950 Sixth Charge Section 65 Air Force Act, 1950 Seventh Charge Section 45 Air Force Act, 1950 Signature Not Verified Signed By:PREETI Signing Date:25.09.2025 15:53:02 W.P.(C) 8609/2024 2021, kissed the prosecutrix several times and touched her pelvic area and breasts without her consent intending thereby to outrage her modesty. DISGRACEFUL CONDUCT AN OF INDECENT KIND In that he, at Air Force Administrative College, Coimbatore, on the intervening night 09 and 10 Sep 2021, masturbated prosecutrix in room no. 303 AN ACT PREJUDICL TO GOOD ORDER AND the proximity of AIR FORCE DISICIPLNE In that he, at Air Force Administrative College, Coimbatore, on the intervening night 09 and 10 Sep 2021, lain himself down beside the prosecutrix on her bed without her consent in Room No. 303 of Building No. 119 of the Officers’ Mess. COMMITTING A CIVIL OFFENSE, THAT IS TO SAY, USING CRIMINAL FORCE TO A WOMAN WITH INTENT OF DISROBING HER, PUNISHABLE UNDER SECTION 354B OF IPC, 1860 In that he, at Air Force Administrative College, Coimbatore, on the intervening night 09 and 10 Sep 2021, in room no. 303 with the intention of disrobing the prosecutrix COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, HOUSE-TRESSPASS IN ORDER TO COMMIT OFFENCE PUNISHABLE WITH IMPRIOSNMENT, PUNISHABLE UNDER SECTION 451 OF IPC, 1860 In that he, at Air Force Administrative College, Coimbatore, on the intervening night 09 and 10 Sep 2021, committed house-trespass by entering Room No. 303 of Building No. 119 of the Officers’ Mess to use criminal force and outrage the modesty of the prosecutrix. BEHAVING IN AMANNER UNBECOMING THE POSITION AND CHARACTER OF AN OFFICER In that he, At Air Force Administrative College, Coimbatore, on the intervening night 09 and 10 Sep in a unbecoming manner by 2021, behaved committing the acts which have been stated above in the 1st, 2nd, 3rd, 4th, 5th, & 6th charges contained herein.

10. The petitioner pleaded not guilty to the abovementioned charges, thereby proceedings were initiated against him. Upon conclusion of the trial, the GCM found the petitioner guilty of all seven charges levied against him. Vide order dated 07.11.2022, the petitioner was cashiered and sentenced to ten years of rigorous imprisonment.

11. The GCM found the alleged video confession to be valid by holding that it was voluntary, made without any duress and was not hit by Section 24 of the Indian Evidence Act of 1872 since PW1 and PW2 were juniors to the petitioner and not ‘person in authority’. Additionally, the confessions made to PW4, PW5, PW6, PW7 & PW9 were found to be valid. The GCM found the prosecutrix to be in an intoxicated state without medical proof by placing reliance on the CCTV footage wherein it was observed that she was not able to walk on her own and had to be escorted by PW1 and PW2.

12. The petitioner assailed the aforesaid Finding and Sentence Order of the GCM by way of statutory application under Section 161(1) of the AF Act on 23.12.2022 before the learned Air Officer Commanding-in-Chief7, Training Command, Indian Air Force, Bengaluru. However, the application was rejected vide order dated

15.06.2023 by the learned CAS opining that the reasons attributed by Signature Not Verified 7 “CAS” hereinafter Signed By:PREETI Signing Date:25.09.2025 15:53:02 W.P.(C) 8609/2024 the GCM were cogent, thereby confirming the Finding and Sentence order. This came to be promulgated on 19.06.2023, pursuant to which, the petitioner was sent for incarceration at Tihar Central Jail, New Delhi, where he continues to remain in custody.

13. Aggrieved by the aforementioned orders of sentencing by the GCM dated 07.11.2022, the subsequent confirmation order dated

15.06.2023 as well as the promulgation order dated 19.06.2023, the petitioner approached the learned AFT by way of an appeal vide Original Application No. 3091/2023, which was preferred along with a Misc. Application No. 4257/2023 seeking suspension of sentence, during pendency of the appeal. The learned AFT, however, by way of the impugned order dated 22.03.2024, rejected the said application by placing reliance on the statements of PW1, PW2 and PW12 (Prosecutrix) on the ground that there was no reason to disbelieve the statements of the above witnesses.

14. It is against the said rejection by the learned AFT that the petitioner has preferred the present writ petition, seeking quashing and setting aside of the impugned order dated 22.03.2024 and suspension of sentence during the pendency of the appeal before the AFT. SUBMISSIONS

15. Ms. Maitrayee Das Gupta, the learned Counsel for the petitioner, submits that there are certain palpable errors in the impugned order of the learned AFT. The first being that the sole basis of conviction of the petitioner is an extra-judicial confession, the Signature Not Verified Signed By:PREETI Signing Date:25.09.2025 15:53:02 W.P.(C) 8609/2024 probative value of which has not been deliberated upon by the AFT. To substantiate the premise that extra-judicial confessions are weak pieces of evidence, reliance is placed on Sahadevan and Anr. v. State of Tamil Nadu8, wherein it was held that to constitute an extra- judicial confession as the sole basis of a conviction, it must inspire confidence and be corroborated by other independent evidence i.e., its veracity shall be proved in the same manner as any other fact in issue. The learned Counsel relied on the judgment of Kishore Chand v. State of Himachal Pradesh9 and State of Rajasthan v. Raja Ram10 for the said proposition. According to the learned Counsel, the petitioner has consistently maintained that the video confession was extracted under duress and was made solely to prevent a scandal and protect the reputation of the prosecutrix and because the prosecutrix requested him not to disclose the incident to anyone.

16. The second alleged error brought forth by the learned Counsel pertains to the finding that the prosecutrix was not in her senses. It was submitted that the learned AFT accepted her alleged intoxicated and unconscious state as sacrosanct without any corroboration, although there is no credible evidence to substantiate the level of intoxication of the prosecutrix at the relevant time. According to the learned Counsel, the act of intoxication and thereafter not being in her senses, was a voluntary act of the prosecutrix. It is urged by the learned Counsel that both the prosecutrix and the petitioner were well known to each other and used to visit each other’s rooms voluntarily during the training period. According to her, the conduct of the