EX-GUNNER VIRENDER PRASADversusUNION OF INDIA & ANR.

966                      [2020]
              SUPREME COURT     4 S.C.R. 966
                             REPORTS                       [2020] 4 S.C.R.


A                   EX-GUNNER VIRENDER PRASAD
                                      v.
                         UNION OF INDIA & ANR.
                      (Criminal Appeal No. 2035 of 2012)
B
                              MARCH 18, 2020
        [S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]
            Army Act, 1950:

C           s. 69 – Civil Offence of murder – Court martial – Accused
      found guilty of murder and sentenced to life imprisonment –
      Conviction and sentence affirmed by Armed Forces Tribunal –
      Appeal to Supreme Court – Held: Conviction is affirmed –
      However, in the peculiar facts of the case, sentence of life
      imprisonment reduced to the period already undergone i.e. period
D     of more than 14 years.
            Code of Criminal Procedure, 1973:
            s. 433-A – Applicability of – Held: s. 433-A is applicable to
      a case tried for offence u/s. 69 of Army Act, 1950.
E           Dismissing the appeal, the Court
            HELD: 1. There is no reason to interfere with the findings
      of fact recorded by the Court Martial as confirmed by the
      Armed Forces Tribunal (AFT) thereby, holding, that the
      appellant was liable to be convicted for the offence punishable
F
      under Section 69 of the Army Act, 1950 for committing a civil
      offence of murder. [Para 4] [969-C]
            2.1 Section 433-A of Cr.P.C would also be applicable to a
      case tried for offence under Section 69 of the Army Act, 1950
      and a person who has been imposed with a life sentence cannot
G
      be released unless he has actually served 14 years’ of
      imprisonment, without taking into consideration the remissions
      earned by him in jail. [Para 7] [970-A-B]
            Union of India and others v. Sadha Singh (1999) 8
            SCC 375 : [1999] 4 Suppl. SCR 28 – relied on.
H
                                     966
              EX-GUNNER VIRENDER PRASAD v.                              967
                  UNION OF INDIA & ANR.

       2.2. The appellant was posted in Kashmir area, at a time         A
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 conduct and behaviour of the appellant in the jail, as could
be seen from the Certificate issued by the Superintendent,              B
District Jail, has been excellent. The appellant has actually
served the sentence 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 years and as such, the            C
bar of Section 433-A Cr.P.C. would also not be applicable.
[Para 9] [970-D-E]
     2.3 In the peculiar facts and circumstances of the case, the
sentence already served by the appellant is much more than
proportionate to the offence proved against him. [Para 10]              D
[970-F]
      Santa Singh v. The State of Punjab (1976) 4 SCC
      190 : [1977] 1 SCR 229 ; Gopal Singh v. State of
      Uttarakhand (2013) 7 SCC 545 : [2013] 4 SCR 104
      – relied on.
                                                                        E
                       Case Law Reference
[1977] 1 SCR 229                  relied on            Para 6
[2013] 4 SCR 104                  relied on            Para 7
[1999] 4 Suppl. SCR 28            relied on            Para 7           F
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2035 of 2012
      From the Judgment and Order dated 16.02.2012 in T.A. No.
284/2010 (W.P.(C) No. 17581/2006), Order dated 10.04.2012 in M.A.
No. 193/12 & M.A. No. 194/12 in T.A. No. 284/2010 (W.P.(C) No.          G
17581/2006) of the Armed Forces Tribunal, Principal Bench, New Delhi.
      Vikramjit Banerjee, ASG, B. K. Pal, Reena Pandey, N. K.
Karhail, Anshul Gupta, Om Prakash Shukla, Siddhartha Sinha, Prashant
Rawat, Abhishek Mahajan, A. K. Sharma, Mukesh Kumar Maroria,
Advs. for the appearing parties.                                        H
968            SUPREME COURT REPORTS                          [2020] 4 S.C.R.


A           The following Judgment of the Court was delivered:
                                   JUDGMENT
            1. The present appeal takes an exception to the Judgment and
      Order passed by the Armed Forces Tribunal (hereinafter referred to
      as “AFT”) in T.A.No.284 of 2011 whereby, the appeal of the present
B     appellant against the order of Court Martial dated 21.08.2004 was
      dismissed.
            2. The brief facts of the present matter are as follows:
            The present appellant was enrolled in Signals Corps and was
      posted to HQ & Radar Battery of 20 Surveillance and target acquisition
C
      regiment since 01.10.2002. The appellant was deployed 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 appellant. On
D     the date of incident i.e. 30.06.2003, the present appellant 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. According to
      the appellant, he had no control over his senses. In the said incident,
E     the appellant fired a complete magazine of rifle ammunition, which
      resultantly caused the death of the deceased. The appellant thereafter,
      came out of his tent and surrendered himself to his Senior Authorities
      and confessed his guilt. Thereafter, investigation was carried out and
      police registered the case and submitted a challan before the Chief
      Judicial Magistrate, Rajouri. However, on the request of the Army
F     Authorities, the challan and the appellant along with all the seized items
      was handed over to Army Authorities for trial. The appellant 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 appellant
G     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
H     164(2) and 165 of Army Act. The same was dismissed by the Union
                 EX-GUNNER VIRENDER PRASAD v.                                    969
                     UNION OF INDIA & ANR.

of India vide order dated 22.05.2007. Thereafter, the appellant preferred        A
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 present
appeal.
       3. We have heard Mr. B.K. Pal, Ld. Counsel for the appellant              B
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 Martial
and confirmed by the AFT, we find no reason to interfere with the
                                                                                 C
findings of fact recorded by the Court Martial as confirmed by the AFT
thereby, holding, that the appellant was liable to be convicted 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, that
the case of the appellant deserves to be considered.                             D

     6. This Court in the case of Santa Singh vs. The State of
Punjab1 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 —
                                                                                 E
         extenuating or aggravating — of the offence, the prior criminal
         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   F
         of return of the offender to a normal life in the community, the
         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            G
         court in deciding upon the appropriate sentence….”
     7. The same view has been consistently followed in various
judgments of this Court. The recent one being, Gopal Singh vs. State
1
    (1976) 4 SCC 190                                                             H
970               SUPREME COURT REPORTS                       [2020] 4 S.C.R.


A     of Uttarakhand2. No doubt, that this Court in the case of Union of
      India and others vs. Sadha Singh3 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 the Army
      Act, 1950 and a person who has been imposed with a life sentence
      cannot be released unless he has actually served 14 years’ of
B
      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 be
      considered for release by giving him benefit of remissions earned by
      him.
C            8. Taking into consideration the various factors, that are taken
      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.
D     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 conduct and
      behaviour of the appellant in the jail, as could be seen from the
      Certificate issued by the Superintendent, District Jail, Dehradun, has
E     been excellent. The appellant has actually served the sentence 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 years and as
      such, the bar of Section 433-A Cr.P.C. would also not be applicable.

F            10. In the peculiar facts and circumstances of the case, we are
      of the view, that the sentence already served by the appellant is much
      more than proportionate to the offence proved against him.
             11. In that view of the matter, while dismissing the appeal we
      direct that the appellant be forthwith released from custody.
G
      Kalpana K. Tripathy                                       Appeal dismissed.



      2
          (2013) 7 SCC 545
      3
H         (1999) 8 SCC 375