UNION OF INDIA Vs. DEVENDRA NATH RAI

JUDGEMENT

(1.) The Union of India, Chief of Army Staff (Army Headquarters) , general Officer Commanding, Commanding Officer, 502, Area Defence group and the Commanding Officer, 1, Corps, Artillery Brigade are in appeal against the judgment of a Division Bench of the Allahabad High Court directing the authorities to re-consider the question of sentence to be awarded to the respondent (hereinafter referred to as the 'accused'). In the Court martial proceedings, the accused was awarded death sentence for having caused homicidal death of two army personnel and for having caused grievous injuries with the intent of causing murder of two others. The award of death penalty by the Court Martial was affirmed by the central Government under Section 153 of the Army Act, 1950 (in short the 'army act').

(2.) Factual position as projected by the appellants in a nutshell is as follows:- on 15-10-1991, the accused was on the quarter guard duty along with SCR Swamy, y. Prasad and GS Pandey respectively (P. Ws. 4, 5 and 6). The first one was the guard Commander and the other two were the sentries. The Rifle bearing butt No. 32 and registered No. B V-3528 was being used by the sentries for performance of their duties. At about 5 P. M. the accused having finished his duty handed over the sentry duty to PW-6 and went for a wash and his meals. In turn, at about 7 P. M. PW-5 relieved PW-6 and took over as the sentry. His period of duty was up to 9 P. M. , whereafter he was to be relieved by the accused. At about 9.15 P. M. the accused returned to the quarter guard after his dinner and told PW-5 to go for his dinner. Accordingly, he relieved PW-5 by taking over his duty. At that time, B. P. Verma (PW-7) was lodged in the quarter guard as a prisoner. All lights were on. After a few minutes, Tuki Ram (PW-8) dressed in civvies reached the quarter guard to write the "light out" report in the Register, kept for the purpose. He asked the accused for a pen, who told him that he did not have one. PW-8, therefore, kept the register on a bench lying outside the verandah of the quarter guard. In the meantime, Subash bablo (PW-9) and Sigmn K. Parthasarthi (hereinafter referred to as the 'deceased parthasarthi') reached there to write the "lights out" reports. Both of them were also dressed in civvies. PW-9 started writing in the Register, which he had picked up from the bench. The accused snatched the same and threw it away. The accused told them that since they were dressed in civvies and did not possess their Identity Cards, he would not let them make entries in the Register. PW-9 told him that he was personally known to him having served together and that there were no orders to the effect that the "lights out" entries were to be made only in uniform. The accused, even then, did not allow them to do the needful. On PW-8 proposing to return, the accused did not allow him and others to go and instructed them to sit down on the bench till the arrival of CHM R. S. Rathore (hereinafter referred to as deceased 'rathore'). PW-8 shouted for the duty clerk, who was in the vicinity, to call the duty nco. In the meantime, PW-5 returned and found PW-8, 9 and deceased Parthasarthi sitting on the bench. At that time, the light in the quarter guard as well as the street lights were on. PW-5 asked the accused to return his rifle so that he would resume his duty, but the accused did not return the rifle to PW-5 and instead asked him to call the CHM. On PW-5's query, the accused told him that CHM was required since the three persons sitting on the bench had come to write the "lights out" reports, dressed in civvies and without Identity Cards and so far as he was concerned they were terrorists. PW-5 advised him not to create a scene but he did not pay any heed. PW-5 again asked the accused to return the rifle and told him that if he wanted to call CHM, he should go himself. After some time, CHM (deceased 'rathore') arrived in his combat uniform and learnt of the goings on from PW-8. When he enquired from the accused as to why he was not allowing them to sign the register, the accused told him that they were dressed in civvies and were not having their Identity cards with them. The CHM (deceased 'rathore) told the accused that there were no orders about the dress and they were well known being cov personnel. The chm asked them to go ahead with the filling up of the register. He also enquired from the accused if he had consumed liquor. No sooner these words were uttered, the accused fired a shot at deceased Rathore who was standing at a distance of about four yards. On being hit by the bullet, Rathore fell down. Thereafter accused fired three shots at PW-8 and PW-9 and deceased Parthasarthi in quick succession. Each one of them fell down. PW-7 and PW-6 saw the firing incident. The accused found pw-6 inside the guard room, abused him and asked him to run away from the spot. Thereafter the accused went near the fuse box and the lights went off in the quarter guard. The incident was reported to the Commanding Officer Lt. Col. H. S. Teotra (PW-3) and Sub Maj B. R. Pawar (PW-1) , who rushed to the scene of incident. The persons who had received injuries were taken to the hospital were Dr. Gangopadhya (PW-11) after examination declared Rathore and Parthasarthi as "brought dead" and found PW-8 and PW-9 to have received injuries which were grievous in nature. The post mortem was carried out. On the basis of report given General Court Martial proceedings commenced and the accused faced trial under the Army Act. There were four charges under Section 69 of Army Act. The first two charges related to commission of civil offence that is murder contrary to Section 302 of the Indian penal Code, 1860 (in short 'ipc') and the other two related to civil offence i. e. attempt to murder, contrary to Section 307 I. P. C. The accused took the plea that the scenario as described by the prosecution was not correct. The reports of proceedings and trial were submitted and on consideration thereof the Deputy Judge Advocate general was of the view that the evidence on record clearly established the guilt of the accused. Considering the materials on record he came to hold that this was a case which clearly was covered by the category of rarest of rare cases and deserved death sentence. The Judge Advocate General affirmed the view and the findings of the Deputy Judge Advocate General as regards the conviction and the sentence. The Central Government also affirmed those. A writ application was filed before the Allahabad High Court questioning the conviction and the sentence imposed. By the impugned judgment, the High Court held that the conviction was well merited, but felt that the case did not fall in the category of rarest of rare cases and therefore directed the authorities to pass a fresh order on the question of sentence. The writ application was allowed to that limited extent.

(3.) Mr. Rajiv Dutta, learned Senior counsel for the appellants submitted that the procedure to be followed while dealing with the question of sentence is clearly spelt out in the various guidelines. The statutory provisions of the Army Act and the concerned rules provide ample guidelines in the matter. Even going by the ratio of decisions of this Court in Bachan Singh v. State of punjab (1980) 2 SCC 684 and Machhi Singh and Ors. v. State of Punjab 1983 (3) 470, the judgment of the High Court cannot be maintained. The high Court lost sight of the fact that it was dealing with the case of a person belonging to a disciplined force. The murder was not only cruel and brutal but also pre-planned and pre-meditated. Even conduct of the accused after the incident was not one of remorse, but was to the effect that he was sorry that he could not kill the other two persons.