EX-GUNNER VIRENDER PRASAD versus UNION OF INDIA & ANR. on 18 March 2020

JUDGMENT

1. The present appeal takes an exception to the Judgment andOrder passed by the Armed Forces Tribunal (hereinafter referred toas “AFT”) in T.A.No.284 of 2011 whereby, the appeal of the presentBappellant against the order of Court Martial dated 21.08.2004 wasdismissed.

2. The brief facts of the present matter are as follows:

The present appellant was enrolled in Signals Corps and wasposted to HQ & Radar Battery of 20 Surveillance and target acquisitionCregiment since 01.10.2002. The appellant was deployed at PeerBadeshwar Radar Post and reported to the post on 12.05.2003. Thedeceased Gunner-Sushil Kumar was of the same unit i.e. 20Surveillance and target acquisition regiment and was working as RadarOperator and was stated to be on good terms with the appellant. OnDthe date of incident i.e. 30.06.2003, the present appellant shot thedeceased Gunner-Sushil Kumar, while, in a state of sleep.

The appellant contended that he shot the deceased in a delusionof a militant attack, wherein he was firing in retaliation. According tothe appellant, he had no control over his senses. In the said incident,Ethe appellant fired a complete magazine of rifle ammunition, whichresultantly caused the death of the deceased. The appellant thereafter,came out of his tent and surrendered himself to his Senior Authoritiesand confessed his guilt. Thereafter, investigation was carried out andpolice registered the case and submitted a challan before the ChiefJudicial Magistrate, Rajouri. However, on the request of the ArmyFAuthorities, the challan and the appellant along with all the seized itemswas handed over to Army Authorities for trial. The appellant wascharged under Section 69 of the Army Act for committing a civil offenceof murder, contrary to Section 302 of the Ranbir Penal Code. A CourtMartial was conducted and in all 15 witnesses including a Psychiatristwas examined. In the Summary General Court Martial, the appellantGwas found to be guilty of murder and was sentenced to life imprisonmentand was dismissed from service.

Thereafter, the appellant challenged the said Judgment and Orderof conviction passed by the Court Martial, before the Ministry ofDefence and the Chief of Army Staff by filing petition under SectionsH164(2) and 165 of Army Act. The same was dismissed by the Union of India vide order dated 22.05.2007. Thereafter, the appellant preferreda writ petition in Delhi High Court, which was subsequently transferredto the AFT on its formation. The AFT, dismissed the said appeal filedby the present appellant vide the impugned order. Hence, the presentappeal.

3. We have heard Mr. B.K. Pal, Ld. Counsel for the appellantand Mr. Vikramjit Banerjee, Ld. Additional Solicitor General, for Unionof India.

4. We have perused the material placed on record. Upon perusalof the judgment and order of conviction passed by the Court Martialand confirmed by the AFT, we find no reason to interfere with thefindings of fact recorded by the Court Martial as confirmed by the AFTthereby, holding, that the appellant was liable to be convicted for theoffence punishable under Section 69 of the Army Act for committing acivil offence of murder.

5. However, insofar as the sentence is concerned, we find, thatthe case of the appellant deserves to be considered.

6. This Court in the case of Santa Singh vs. The State ofPunjab[1]has observed thus:

“The reason is that a proper sentence is the amalgam of manyfactors such as the nature of the offence, the circumstances —extenuating or aggravating — of the offence, the prior criminalrecord, if any, of the offender, the age of the offender, the recordof the offender as to employment, the background of the offenderwith reference to education, home life, sobriety and socialadjustment, the emotional and mental condition of the offender,the prospects for the rehabilitation of the offender, the possibilityof return of the offender to a normal life in the community, thepossibility of treatment or training of the offender, the possibilitythat the sentence may serve as a deterrent to crime by theoffender or by others and the current community need, if any,for such a deterrent in respect to the particular type of offence.These are factors which have to be taken into account by thecourt in deciding upon the appropriate sentence….”

7. The same view has been consistently followed in variousjudgments of this Court. The recent one being, Gopal Singh vs. State 1 (1976) 4 SCC 190

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Aof Uttarakhand[2]. No doubt, that this Court in the case of Union ofIndia and others vs. Sadha Singh[3]has held, that Section 433-A ofthe Code of Criminal Procedure, 1973 (“Cr.P.C.” for short) would alsobe applicable to a case tried for offence under Section 69 of the ArmyAct, 1950 and a person who has been imposed with a life sentencecannot be released unless he has actually served 14 years’ ofBimprisonment, without taking into consideration the remissions earnedby him in jail. In other words, if a person is convicted for life, unlesshe has actually served 14 years’ sentence, he will not be entitled to beconsidered for release by giving him benefit of remissions earned byhim.

C8. Taking into consideration the various factors, that are takeninto consideration by this Court in Santa Singh (supra), we find, thatthe case of the present appellant deserves to be considered favourably.

9. Undisputedly, the appellant was posted in Kashmir area, at atime when the State was undergoing the threat of terrorism at its peak.DThe appellant, after the incident, immediately came out of the tent,surrendered himself, and gave an explanation that he had fired the rifleunder a delusion that there was a terrorist attack. The conduct andbehaviour of the appellant in the jail, as could be seen from theCertificate issued by the Superintendent, District Jail, Dehradun, hasEbeen excellent. The appellant has actually served the sentence of 16years and 6 months as on 6.1.2020. If the benefit of remission is givento him, the period would come to 20 years and 5 months. As such, hehas served the sentence for a period of more than 14 years and assuch, the bar of Section 433-A Cr.P.C. would also not be applicable.F10. In the peculiar facts and circumstances of the case, we areof the view, that the sentence already served by the appellant is muchmore than proportionate to the offence proved against him.

11. In that view of the matter, while dismissing the appeal wedirect that the appellant be forthwith released from custody.G

Kalpana K. Tripathy

Appeal dismissed.

2 (2013) 7 SCC 545H3 (1999) 8 SCC 375