Deciding Authority: Supreme Court of India
Name of the Judges: Justice Harjit Singh Bedi, Justice Chandramauli Kr. Prasad
Date of Judgment: 19 October 2010
Facts of the Case: The appellant was enrolled in the Indian Army in the year of 1978 and was deputed to an Artillery regiment. On the 6th January, 2000 he along with two other Sentries, Naik Sajimon and Lance Naik Shaiju, was on security duty as the Guard Commander in the Technical Battery Area of 501 AD GP (SP). A 7.62 mm Self Loading Rifle bearing butt number 259 had also been issued to him alongwith 20 cartridges. It appeared that there was an incident of stone throwing on the Guard Hut and the matter was reported to the Security JCO, Naib Subedar Amrender Kumar. The JCO issued instructions that a Quick Reaction Team be summoned. This Team reached the Guard Hut at about 10.30 p.m. and the vehicle was challenged by the Sentry on duty. The Members of the Team came out of the vehicle and moved to the right and left as ordered to locate the intruder who had thrown the stones. At this stage the accused came running towards Naik Jityu Yadav, one of the members of the Quick Reaction Team, followed by Naik Sajimon KT who warned him that the person towards whom he, (the accused) was running was one of the members of the Quick Reaction Team and not to fire on him. Despite this information however the accused fired three shots from a distance of 8 to 10 ft. killing Naik Jityu Yadav at the spot. He was quickly apprehended by PW.14 and the Security JCO PW.6 and when questioned as to what he had done, he replied `MAINE JO KARNA THA KAR DIYA’. Keeping in view the aforesaid facts, the Court Martial before whom the appellant was tried, held that the shooting was a deliberate attack of murder and the appellant was accordingly guilty under Section 302 of the IPC. He was accordingly sentenced to life imprisonment along with several other penalties imposable under the Army Act 1950. A writ petition was thereafter filed in the Punjab and Haryana High Court under Art. 226 of the Constitution of India and several issues of law and fact were raised before the Division Bench. The High Court vide its judgment dated 23/12/2005 repelled all the arguments and dismissed the writ petition and confirmed the findings of the Court Martial. A recall application was also moved before the High Court which too was dismissed on 23rd November 2005. It was in this background that the matter was before the Court in appeal.
Judgment: Mr. D. Thakur, the learned counsel for the appellant, has pointed out that from the facts of the case it was apparent that the killing was an accident and arose from a suspicion of a terrorist attack as Ambala, being close to the Punjab State, also faced this threat. He accordingly prayed that a case under Section 302 was not made out. Mr. P.P. Tripathi, the learned A.S.G. however submitted that the findings of fact recorded by the Court Martial were very categoric and based on a correct appreciation of the evidence and the High Court was justified in rejecting a challenge to those findings as interference by Courts in such matters was required to be minimal. The Court considered the arguments advanced by the learned counsel for the parties and had gone through the record very carefully with their assistance. As already pointed out the only argument raised by Mr. Thakur pertained to the finding of fact with regard to the murder. The Court saw from the order of the Court Martial that the appellant had fired three shots at the deceased, who was one of his colleagues in the Army, and this incident had been witnessed by several Army personnel who had been posted with the accused at that time. The fact that the shots had been fired from 8 to 10 ft. has also been borne out by the observations of Dr. S. Sharma (PW.16) at the time of the post-mortem examination. It is also clear that the fired cartridge cases lifted from the site of the incident also matched the weapon issued to the accused. If any doubt still existed with regard to the culpability of the appellant for murder it stood removed by the remark that he made when apprehended, `MAINE JO KARNA THA KAR DIYA’. It was also apparent from the evidence of PW.14 that he had cautioned the appellant that the person he was chasing was in fact a member of the Quick Reaction Team and that he should not fire on him but despite this warning the appellant fired three shots. Therefore, the Court was of the opinion that no error can be found with the findings of fact recorded by the Court Martial and upheld by the High Court. The Court would not, in these circumstances, interfere in the assessment.
Decision: Appeal was dismissed.
By: Roopali Mohan, 2nd Year, Vivekananda Institute of Professional Studies, New Delhi
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