PRITAM SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) PRITIM Singh, appellant was tried and convicted by Sh. S.D. Anand, Additional Sessions Judge, Ambala on a charge for offences punishable under Sections 302, Indian Penal Code qua the murder of his brother Sunder Singh and under section 307, Indian Penal Code, for attempt to murder his other brother Mohinder Singh. He was also convicted under sections 27 and 25 of the Arms Act. The appellant was awarded imprisonment for life and fine of Re. 10, 000/- or in default of payment of fine to undergo six months rigorous imprisonment on the first count and seven years rigorous imprisonment and fine of Rs. 10,000/- or in default of payment thereof to undergo six months rigorous imprisonment on the second count while two years' rigorous imprisonment and fine of Rs. 500/- or in default of payment thereof to undergo one month's rigorous imprisonment were awarded on the third count. No sentence was awarded for offence under Section 25 Arms Act., All the substantive sentences were ordered to run concurrently. Out of the entire amount of fine, if realised, Rs. 25,000/- were ordered to be paid to Mst. Gurmit Kaur widow of Sunder Singh. Being aggrieved against his conviction and sentence, the appellant has come up in appeal. Gurmit Kaur, complainant has also preferred Criminal Revision No. 717 of 1992 for enhancement of sentence. Both these matters shall be disposed of by this judgment as they arise out of the same judgment of the trial Court.

(2.) MR . R.S. Ghai, Senior Advocate, the learned counsel for the appellant, inter alia, contends that the entire trial is vitiated for non-compliance of the provisions of section 475, Code of Criminal Procedure, as well as Rules 3 and 4 of the Criminal Courts and Court-Material (Adjustment of Jurisdiction) Rules 1952 as the accused appellant admittedly being enlisted in the Army during those days, giving of notice to the commanding Officer of the Regiment of the accused was necessary in order to ascertain whether the accused was required to he tried by Court Martial under the provisions of the Army Act or under the General Criminal Law. Reliance in this regard was placed on the decision of the apex Court in Superintendent and Remembrancer of Legal Affairs West Bengal v. Usha Ranjan Roy Choudhury and another, AIR 1986 Supreme Court 1655.

(3.) AS the controversy is purely legal, there is no need to go into the details of the facts of the prosecution case except to the extent that in the FIR Exhibit PM lodged by Mst. Gurmit Kaur (PW-6) there is specific mention that her husband Sunder Singh deceased, the latter's brothers Mohinder Singh PW and Pritam Singh accused were serving in the Army and they had come on two months leave in connection with the marriage of his sister-in-law Amarjit Kaur, which took place on 7.5. 1989. Thus, there is no doubt about Pritam Singh accused as well as Sunder Singh deceased and Mohinder Singh being enlisted in the Army during the days of this occurrence. Consequently, Sub Inspector Pramal Singh (PW 11) who had recorded the FIR has become aware of this fact, but strangely enough he had failed to move the committing Magistrate or the trial Court for giving information to the commanding Officer of the Regiment as to whether the accused was required to be tried by the Court Martial under the provisions of the Army Act or by a Criminal Court as required under rules 3 and 4 of the 1952 Rules. It is strange that the committing Magistrate before committing the case to the Court of Sessions had not taken any steps for the compliance of the above referred rules. The learned Sessions Judge. has also not taken any such steps for compliance of mandatory provisions of section 475 of the Code of Criminal Procedure as well as rule 3 and 4 of 1952 Rules before framing the charge i.e. before taking cognizance of the above referred offences.