T SYAM SUNDER Vs. GENERAL COURT MARTIAL

JUDGEMENT

(1.) This writ petition has been filed by the petitioner praying to issue order or direction more particularly one in the nature of certiorari quashing the order of the third respondent vide Order No. 6(3)/96/D(AG) dt. 1-2-1996 and to set aside the conviction and sentence of imprisonment for life imposed upon by the first respondent.

(2.) The petitioner was enrolled in the Indian Army in the Corps of Electrical and Mechanical Engineering Battalion on 10-3-1983 and was serving at Pathankot at the time of the incident. He was detailed as Guard Commander along with Cfn. Rambilas (hereinafter called as deceased) and Cfn. A. K. Rai (P.W. 12) as guards with Second Lieutanent T. K. Thapper (P.W. 14) and Sipoy Driver S. K. Rai (P.W. 11) for collecting salary of the Unit Personnel from the State Bank of India, Nalwa Bridge, Pathankot on 31-7-1989. The petitioner and two guards were armed with 7.62 mm S.L.R. and the petitioner being Guard Commander was issued ten live rounds of 7.62 mm as per the standing instructions and he gave three rounds of ammunition to Rambilas, the deceased, and kept with him seven rounds. Accordingly, they went to the State Bank of India in a 1 tonne vehicle bearing No. 84C38331-P and P.W. 14 and petitioner collected cash Rs. 1,08,000.00 from the said Bank.

(3.) It is alleged that while returning back to the unit location, the said vehicle was driven by the Second Lieutanent T. K. Thapper, P.W. 14, and when it reached near Mamum Chowk, the petitioner pointed the rifle and fired at the other guard Cfn. Rambilas, the deceased, who was sitting in the body of the vehicle and he fell down. He also fired another round at PW-12 and he ducked down and feigned to have been killed and thereafter, he directed PW-14 the Second Lieutenant, T. K. Thapper, pointing the rifle at him to drive the vehicle fast and when the vehicle reached near the main gate of Field Work Shop, the driver Sipoy PW. 11 who was sitting in the co-driver seat jumped from out of the moving vehicle and rushed to the unit and informed the incident to Subedar Major R. D. Mourya (P.W. 2). Then he detailed Naik R. K. Mishra and Lance Naik C. C. Roy (P.W. 5) on a motor cycle to chase the vehicle and also collected the available personnel and proceeded in three tonne vehicle. Meanwhile, when the accused was focussing his attention at P.W. 14, P.W. 12 A. K. Rai leapt on the accused and caught hold of his rifle and then asked P.W. 14 to stop the vehicle and there was a scuffle in between P.W. 12 and the petitioner-accused. P.W. 14 stopped the vehicle and helped P.W. 12 to dis-arm the petitioner-accused. Meanwhile P.W. 5 and another reached the spot and they returned back to the unit. The deceased was taken to the military hospital. P.W. 17 Capt. Anil Vishnu, Akulwar examined Cfn. Rambilas, declared him dead and issued certificate Ex.U. P.W. 15, Dr. Rajesh Kumar Khanna, conducted post mortem on the dead body of the deceased, Cfn. Rambilas and found four punctured penetrating lacerated wounds and another lacerated wound and he opined that the deceased died due to injuries on the vital organs namely lungs and heart by fire arm and the said injuries are sufficient to cause death in the ordinary course of nature and they are ante-mortem in nature. P.W. 21 recorded summary evidence.