Baldev Singh vs Union of India and others

T.H.B. Chalapathi, J.

The petitioner was working as a Sepoy in 342 `B'' DSC Platoon at Jalandhar. On 29.10.1995 he was detailed to do sentry duty at Transmission Complex Hall of 11 Crops Operating Signal Regiment during 4 to 6 P.M. At about 4.30 P.M. he spotted an intruder entering into the Transmission Complex Hall of area through fencing. The Transmission Complex Hall is a very sensitive and high security zone and no one is permitted to enter that area except those on duty and that too through the main gate. According to the petitioner when he saw the intruder entering through the fencing, he challenged him and the intruder did not respond. The petitioner was under an impression that the intruder was either a Sepoy or a person who had no business to come there. He loaded his rifle taking a bullet from his pouch and shouted for the Picket Commander, but the petitioner made the intruder to raise his hands by pointing a rifle and made him to move towards the main gate where the other Sentries were on duty. Sepoy S.S. Parmar was on duty at the main gate. Thereafter the Sepoy S.S. Parmar went to the Transmission Hall to inform the officer commanding on telephone. Thereafter the intruder started snatching away the rifle from the petitioner. In the scuffle, the trigger went off resulting in an injury to the intruder. Thereafter the FIR No. 58 dated 29.10.1995 was lodged against the petitioner for the offence under Section 307 I.P.C. but the petitioner was not arrested. In the mean time the intruder died. After some time Court Martial proceedings have been initiated against the petitioner and a chargesheet was served on him on 19.3.1997 and in the Court Martial proceedings, the petitioner was charged for committing an offence of culpable homicide not amounting to murder under Section 304 of the Indian Penal Code and the petitioner was convicted for the said offence and sentenced to suffer rigorous imprisonment for a period of 10 years and ordered his dismissal from service.

Feeling aggrieved, the petitioner has filed this petition challenging the conviction and sentence imposed on him by the Court Martial and the order dismissing him from service.

In the written statement, the respondents pleaded that the deceased Sat Pal was an Army Personnel and the petitioner killed the deceased knowingly and instead of taking any precaution, the petitioner used force and misused the weapon due to which the precious life of a Sepoy has been lost. According to the respondents, Court Martial proceedings have been conducted in accordance with law and this Court cannot go into the evidence and in view of the administrative instructions, the petitioner had no right to fire to kill Sepoy Sat Pal and the writ petition is liable to be dismissed.

It is no doubt true as held by the Apex Court in Union of India v. Himmat Singh Chahar, 1999(3) RCR(Crl.) 784 : 1999 S.L.T. 151 that the power of judicial review cannot be a power of an Appellate Authority permitting the High Court to reappreciate the evidence and in coming to a conclusion that the evidence is insufficient for the conclusion arrived at by the competent authorities in Court Martial proceedings. It has also been held in the same decision that the Defence Personnel serving in Army, Navy or Air Force when commit any offence are dealt with by the special provisions contained in the Army Act or the Navy Act or the Air Force Act and not by the normal Procedure Code. The said Navy Act is a complete Code by itself and prescribes that procedure to be followed in case it is decided that an officer should be tried by Court Martial. The Act also provides sufficient safeguards by way of further appeal to the Chief of the Staff and then ultimately to the Union Government.

I am, therefore, not referring to the evidence let in against the petitioner.

The learned Counsel for the petitioner also argued that on the basis of the evidence recorded by the Court Marital, no conviction under Section 304 I.P.C. can validly be recorded. The report containing Court Martial proceedings has been placed before me. After holding that there exists a gap in the security fencing and the petitioner loaded his one round in his rifle issued to him alongwith ammunition, the Court Martial recorded his finding `e'' as follows :

(e) "The Court rely on the statement of the accused, that the deceased entered into a scuffle with him when PW4 went inside the transmission hall to telephone and give the benefit of doubt that the bullet got fired in the scuffle as the deceased and the accused had already traversed the distance from the rear of the security complex to the front gate without any untoward incident. Therefore, the Court finds it proved beyond a reasonable doubt that he is guilty of the offence under PartII of Section 304 of the Indian Penal Code."

Now the question is whether on the basis of the findings arrived at by the Court Marital, can the conviction for the offence under Section 304 PartII be sustained. Section 304 I.P.C. reads as follows :

"Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine, if the act by which the death is caused is done, with the intention of causing death or of causing such bodily injury as is likely to cause death or with imprisonment of either description for a term which may extend to ten years or with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as it likely to cause death."

From a reading of above Section it is clear that if the act of the accused caused the death, only then Section 304 I.P.C. is attracted. But the finding of the Court Martial is that there was a scuffle between the deceased and the petitioner and that the bullet got fired in the scuffle. Therefore, there is no definite finding by the Court Martial that the petitioner was guilty of committing any act which caused death of the deceased by the bullet which got fired. When the Court Martial itself gave the benefit of doubt to the petitioner and held that the bullet got fired in the scuffle, it cannot be said that any act of the petitioner made the bullet fire from his rifle. To convict the petitioner for the offence under Section 304 PartII, I.P.C. the act must be done with the knowledge that his act is likely to cause death. Therefore, Section 304 I.P.C. envisages a positive act on the part of the petitioner. The finding is that the bullet got fired in the scuffle. Therefore, there is no definite finding by the Court Martial that the petitioner was responsible for the trigger going on resulting in bullet getting fired from the rifle hitting the deceased. The benefit of doubt can also be extended that during the scuffle the deceased may have pulled the trigger. Without recording any definite finding that the trigger was pulled out by the petitioner, it cannot be held that the petitioner was responsible for the bullet getting fired from the rifle of the petitioner. I am, therefore, of the opinion that the conviction of the accused for the offence under Section 304 PartII, I.P.C. cannot be sustained on the basis of the findings recorded by the Court Martial.

In view of the foregoing discussion, I allow the criminal writ petition and set aside the conviction and sentence imposed on the petitioner by the Court Martial and the order of his dismissal from service on that account. The petitioner is directed to be released forthwith. The respondents are directed to take the petitioner in service and the period spent by him in Jail should be counted as on duty.