ARUN RAJ Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal by special leave is limited to a particular question only, namely, correctness of the conviction of the appellant Arun Raj for an offence under Section 302 of Indian Penal Code and the propriety of the sentence passed thereunder by the Presiding Officer of General Court Martial under the Indian Army Act. The short facts are these - The appellant joined the Indian Army in the year 1983 and in the year 1998 he was working as Ex-Signalman (Lance Nayak) of 787 (Independent) Air Defence Brigade Signal Company. On 22.3.1998, one Mr. S.S.B Rao (PW-4) was the Section In-Charge of Operator Section. At about 1 PM, Mr. Rao returned from lunch and the appellant reported to him that Havildar R.C Tiwari (deceased) and Havildar Inderpal (PW-3) abused him by using the word "Gandu". On Mr. Rao making an inquiry into the same, they replied in the negative, despite the appellant making repeated assertion that they insulted him using the said word. The appellant also brought to the information of Mr. Rao that in the previous night there was a heated discussion between the appellant and the deceased and Inderpal, and the matter was reported to the superior officer. Paulose (PW-1), after having his lunch, returned to the barrack from the rank mess and he was relaxing in the cot. At this point of time, he saw the appellant coming towards the door. He was wearing a half T-shirt and lungi. The cot of the deceased was near the door and he was sleeping on it. The appellant took out a knife which was hidden in the lungi and stabbed the deceased on the right side of the chest. On witnessing the incident, PW-1 was shocked and shouted to the appellant as to why he did it. On hearing the shout of PW-1, people came in and gathered immediately. The appellant was separated by the crowd and the deceased was sent to the hospital where he finally succumbed to the injury. Major Prabal Datta (PW-9) testified that there was no external injury on the body of the deceased except the stab injury caused by a knife.

(2.) An FIR was lodged at the Dehu Road Police Station vide CR- 26 of 1998 under Section 302 of Indian Penal Code. Thereafter, investigation commenced, during the course of which the body of the deceased was sent for post mortem and an inquest Panchnama was also prepared. On completion of the investigation, the charge- sheet was prepared against the appellant/accused and forwarded to the Judicial Magistrate 1st Class, Vadgaon Maval. In the meantime, since the appellant belonged to the armed forces, court martial proceedings were initiated under the provisions of the Army Act. Charges were framed against the appellant under Section 302 read with Section 69 of the Army Act for committing civil offence, i.e., knowingly causing the death of the deceased on 22.3.1998. On the appellant pleading not guilty, the General Court Martial proceeded to record the evidence of witnesses. The prosecution examined 18 witnesses. The General Court Martial after appreciating the facts and the evidence on record, found the appellant guilty of the offence for which he was charged and after hearing his submission with regard to the quantum of sentence, sentenced the appellant to undergo 7 years of rigorous imprisonment and he was also dismissed from service for committing the offence of murder punishable under Section 69 of the Army Act read with Section 302 of IPC. However upon revision, the Confirming Authority by an order dated 15.12.1998 held that the sentence awarded by the General Court Martial after finding the appellant guilty of murder under Section 69 of the Army Act read with Section 302 of IPC, was not justiciable and further observed that once the appellant was held guilty under the abovementioned Sections, he could be either sentenced to life imprisonment and fine or sentenced to death. Accordingly, the General Court Martial by an order dated 15.1.1999, revised the sentence and sentenced the appellant to imprisonment for life and dismissal from service, which was subsequently confirmed by the Confirming Authority. Being aggrieved by this order, the appellant filed a petition before the Chief of Army Staff under Section 164 of the Army Act, which was rejected. The appellant being aggrieved by the same filed a writ petition before the Bombay High Court.

(3.) The learned Counsel for the appellant raised two contentions before the High Court of Judicature at Bombay in the Writ proceedings. Firstly, it was submitted that the charge framed against the appellant was vague, as a result of which, entire Court Martial proceedings was vitiated. The second submission was that the intervention of High Court was required as the facts and circumstances of the case does not justify the punishment of life imprisonment as the offence revealed from the material evidence is only punishable under Section 304 Part II and not under Section 302 of Indian Penal Code. As regards the first contention, the High Court has observed that as the appellant was informed of all the allegations put forth against him at the time of Court Martial proceedings, the charge framed against the appellant cannot be said to be vague. Considering the second contention, the High Court found the testimony of PW-1 Paulose who is the eyewitness and PW-3 Haveldar Indrpal to whom the dying declaration was given by the deceased, is reliable and, hence, observed that there is no doubt about the fact that appellant caused the death of the deceased by stabbing him with a knife. Therefore, the submission that there was no intention on the part of the appellant to kill the deceased as only one stab injury was found on deceased, was rejected by the Court. The High Court while considering the decision on which reliance was placed by learned Counsel for the accused observed, that there was no sudden quarrel and the murder was not caused on spur of moment and no sufficient provocation is found for the offence committed by appellant to fall under Section 304 Part II of Indian Penal Code. As the offence was found to be committed with enough time to mediate on the action to commit the murder of deceased, appellant was said to have intention to cause the death of the deceased. Thus, the High Court found the charge under Section 302 of Indian Penal Code proved and the procedure under Army Act followed without any infringement of principles of natural justice and, accordingly, the Writ Petition was dismissed vide judgment dated 25.8.2005.