Ex-gunner Virender Prasad v. Union of India & Anr.
JUDGMENT
1. The present appeal takes an exception to the Judgment and
Order passed by the Armed Forces Tribunal (hereinafter re ferred to
as “AFT”) in T.A.No.284 of 2011 whereby, the appeal of the prese nt
appellant against the order of Court Martial dated 2 1.08.2004 was
dismissed.
2. The brief facts of the present matter are as foll ows:
The present appellant was enrolled in Signals Corps and wa s
posted to HQ & Radar Battery of 20 Surveillance and target acquisition
regiment since 01.10.2002. The appellant was deploy ed at Peer
Badeshwar Radar Post and reported to the post on 12.05.2003. The
deceased Gunner-Sushil Kumar was of the same unit i .e. 20
Surveillance and target acquisition regiment and was working as Radar
Operator and was stated to be on good terms with the appel lant. On
the date of incident i.e. 30.06.2003, the present appe llant shot the
deceased Gunner-Sushil Kumar, while, in a state of sleep.
The appellant contended that he shot the deceased in a delusion
of a militant attack, wherein he was firing in retaliation. A ccording to
the appellant, he had no control over his senses. In the said i ncident,
the appellant fired a complete magazine of rifle ammu nition, which
resultantly caused the death of the deceased. The appellant the reafter,
came out of his tent and surrendered himself to his Senior A uthorities
and confessed his guilt. Thereafter, investigation was carr ied out and
police registered the case and submitted a challan bef ore the Chief
Judicial Magistrate, Rajouri. However, on the request of the Army
Authorities, the challan and the appellant along with all the seized items
was handed over to Army Authorities for trial. The a ppellant was
charged under Section 69 of the Army Act for committing a civil offence
of murder, contrary to Section 302 of the Ranbir Penal Code. A Court
Martial was conducted and in all 15 witnesses including a Psychiatrist
was examined. In the Summary General Court Martial, the appella nt
was found to be guilty of murder and was sentenced to life imprisonment
and was dismissed from service.
Thereafter, the appellant challenged the said Judgment and Order
of conviction passed by the Court Martial, before the Ministry of
Defence and the Chief of Army Staff by filing petition under Sections
164(2) and 165 of Army Act. The same was dismissed by the Union
969
of India vide order dated 22.05.2007. Thereafter, the appellant preferred
a writ petition in Delhi High Court, which was subsequently transferred
to the AFT on its formation. The AFT, dismissed the said appeal filed
by the present appellant vide the impugned order. Hence, the pr esent
appeal.
3. We have heard Mr. B.K. Pal, Ld. Counsel for the appellant
and Mr. Vikramjit Banerjee, Ld. Additional Solicitor General, for Union
of India.
4. We have perused the material placed on record. Upon perusal
of the judgment and order of conviction passed by the Court Mart ial
and confirmed by the AFT, we find no reason to interfere with t he
findings of fact recorded by the Court Martial as confirmed by the AFT
thereby, holding, that the appellant was liable to be convict ed for the
offence punishable under Section 69 of the Army Act for committing a
civil offence of murder.
5. However, insofar as the sentence is concerned, we find, th at
the case of the appellant deserves to be considered.
6. This Court in the case of Santa Singh vs. The State of
Punjab 1 has observed thus:
“The reason is that a proper sentence is the amalgam of many
factors such as the nature of the offence, the circumstances —
extenuating or aggravating — of the offence, the prior crimi nal
record, if any, of the offender, the age of the offender, the record
of the offender as to employment, the background of the offender
with reference to education, home life, sobriety and social
adjustment, the emotional and mental condition of the offender,
the prospects for the rehabilitation of the offender, the possibility
of return of the offender to a normal life in the community, t he
possibility of treatment or training of the offender, the possibility
that the sentence may serve as a deterrent to crime by the
offender 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 the
court in deciding upon the appropriate sentence….”
7. The same view has been consistently followed in variou s
judgments of this Court. The recent one being, Gopal Singh vs. State
1 (1976) 4 SCC 190
EX-GUNNER VIRENDER PRASAD v.
UNION OF INDIA & ANR.
of Uttarakhand 2. No doubt, that this Court in the case of Union of
India and others vs. Sadha Singh 3 has held, that Section 433-A of
the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short) would also
be applicable to a case tried for offence under Section 69 of t he Army
Act, 1950 and a person who has been imposed with a life sent ence
cannot be released unless he has actually served 14 years’ of
imprisonment, without taking into consideration the remissions earned
by him in jail. In other words, if a person is convicted for life, unless
he has actually served 14 years’ sentence, he will not be entitled to b e
considered for release by giving him benefit of remissions earned by
him.
8. Taking into consideration the various factors, that are t aken
into consideration by this Court in Santa Singh (supra), we find, that
the case of the present appellant deserves to be considered favourably.
9. Undisputedly, the appellant was posted in Kashmir area, at a
time when the State was undergoing the threat of terrorism at its peak.
The appellant, after the incident, immediately came out of the tent,
surrendered himself, and gave an explanation that he had fired the rifle
under a delusion that there was a terrorist attack. The condu ct and
behaviour of the appellant in the jail, as could be seen from the
Certificate issued by the Superintendent, District Jail, Dehradun, has
been excellent. The appellant has actually served the sentenc e of 16
years and 6 months as on 6.1.2020. If the benefit of remission is given
to him, the period would come to 20 years and 5 months. As such, he
has served the sentence for a period of more than 14 yea rs and as
such, the bar of Section 433-A Cr.P.C. would also not be applicable .
10. In the peculiar facts and circumstances of the case, w e are
of the view, that the sentence already served by the appell ant is much
more than proportionate to the offence proved against him.
11. In that view of the matter, while dismissing the appea l we
direct that the appellant be forthwith released from cust ody.
Kalpana K. Tripathy Appeal dismissed.
2 (2013) 7 SCC 545
3 (1999) 8 SCC 375