IMPORTANT POINT
For murders of two of the Senior Army Officers, diabolically planned and committed in cold blood, accused do not deserve the extreme penalty of death considering the factor that they did not commit the murders on their own volition prompted by any motive as the Officers of their unit instigated and compelled them to commit the offence by exploiting their religious feelings.

Headnote:(i) Army Act, 1950-Section 69-Abetment of offence of murder-While serving as a Major in Indian Army, appellant along with two other Officers was found guilty for offence under-Award of punishment for imprisonment for life-Petition u/s 164 (1)-Rejected-Appeal-Evidence of two accomplices -Circumstantial evidence - Case of sufficient evidence -Conviction and sentence recorded by GCM sustainable.
       Held, the following circumstances proved through other witnesses amply corroborate the evidence of P.W. 10 :
        (i) On 16 June, 1987 both Inder Pal Singh and Mahavir Singh were found going towards the main office building with rifles and some rounds of ammunitions. While Mahavir Singh went towards the office of the CO, Inder Pal Singh went towards the office of the 21C;
        (ii) Near CO s office when N.K. Ranbir (PW 21) caught hold of the muzzle of the rifle of Mahvir Singh he fired one round as a result of which Ranbir sustained an injury on his hand and fell down unconscious. After regaining his senses when he went to the office of the CO he found him lying on the ground near his revolving chair gasping for breath;
        (iii) After the firing incident Mahavir Singh and Inder Pal Singh together ran away towards the jungle along with their arms and ammunition;
        (iv) Both of them surrendered on June 18, 1987 with their rifles and ammunitions which were seized and sent to Forensic Science Laboratory, Calcutta for examination;
        (v) On examination it was found that ten cartridges cases were fired through one of those rifles bearing Regd. No. 9744 which was issued to Inder Pal Singh and two cases were fired through the other rifle, bearing Regd. No. 7343 which was issued to Mahavir Singh, in the morning of June 16, 1787;
        (vi) While sitting in the office of Adjutant, Major Chandal (CW 1) saw through the window Ranbir Singh holding the muzzle of a rifle. At that moment he heard another bullet being fired from the side of his backe. He than ducked down on the table with face downward and saw, through the window, Inder Pal Singh firing about 10 to 15 rounds. After the firing had stopped when he came out of the office of the CO he found him lying in a reclining position against the wall and he was badly injured and gasping for breath ; and
        (vii) Dr. Senewal, (PW 15) who held post mortem examination on the dead bodies of CO and 2IC found injuries on their persons which, in his opinion, were caused by bullets and resulted in their deaths.
       When the above circumstantial evidence is considered along with the evidence of P.W. 10, the conclusion is irresistable that it is not a case of no evidence but one of sufficient evidence . The findings of the GCM not having been assailed in any other court, the conviction and sentence of the appellant is well merited. (Paras 9 & 10)
       (ii) Army Act, 1950-Offence of committing murders of four senior Army Officers-Convictions-Sentence of death-Prayer for commutation of;-Appellants committed murders in a planned manner-However they did not commit two murders on thier own volition-Officers were abetters-Officers of the Unit of appellants instigated and compelled them to commit murders by exploiting their religious feelings-Mitigating factors-Sentence of death commuted to imprisonment for life.
       Held : In a case of the present nature which relates to a disciplined force as the Army, the offence committed by the officers who conceived the plan, was more heinous that of the appellants who executed the plan as per their orders and directions. It is of course true that those orders being not lawful the appellants, even as disciplined soldiers, were not bound to comply with the same nor their carrying out such order minimised the offences but certainly this is a factor which cannot be ignored while deciding the question of sentence. Another factor which presuades us to commute the sentence is the post murder repentance of the appellants who not only surrendered before the authorities within two days but also spoke out the truth in their confessional statements. In fact, but for their confessional statements the Officers, who were the masterming could not have been brought to book. None of the mitigating circumstances, as noticed by us above, were taken into consideration by the High Court. It was obliged to consider both the aggravating and the mitigating circumstances and therefore by irnoring consideration of the mitigating circumstances, the High Court apparently fell in error. (Para 15)

JUDGMENT

M.K. Mukherjee, J.-The above appeal and the two Special Leave Petitions were directed to be heard together as they relate to one and the same incident but having regard to the facts that over that incident two separate trials were held by General Court Martial ( GCM for short), assailing their verdicts two independent writ petitions were filed and the Delhi High Court dismissed them by two separate judgments, which are under challenge herein, we have heard them one after the other and proceed to dispose of them accordingly.

Criminal Appeal No. 1194 of 1995

2. While serving as a Major in the India Army the appellant R.S. Budhwar, along with two other officers, was tried by a G.C.M. in December 1988 for the follwoing charge.

"Army Act Section 69

Committing a civil offence, that is to say abetment of an offence specified in Section 302 of Indian Penal Code, in consequence of which abetment such offence with committed, contrary to Sectin 109 read with Section 34 of Indian Penal Code.

In that they together, at Field, on or before 14 June, 1987, abetted No. 3173368H Sep (L/NK) Inder Pal Singh and No. 3174523 L. Sep. Mahavir Singh, both of 8 JAT to commit murders of IC 14807N Colonel 66 Sahota and IC 28739H Major Jaspal Singh of the same unit, which was committed in consequence of such abetment by the said Sep (L/NK) Inder Pal Singh and Sep. Mahavir Singh."

3. The GCM found the appellant and one of the other two (since dead) guilty of the above charge and awarded them punishment of imprisoment for life and cashiering. Aggrieved thereby the appellant presented a petition under Section 164(1) of the Army Act, 1950 ( Act for short) wherein he prayed that the findings and sentences recorded against him be not confirmed. The GOC-in-C Eastern Command however rejected that petition and confirmed the findings and sentences of the GCM. He then filed another petition in accordance with Section 164(2) of the Act which was rejected by the Central Government. The appellant then approached the Delhi High Court with a petition under Article 226 of the Constitution of India which was also dismissed. Hence this appeal.

4. Mr. Lalit, the learned counsel appearing for the appellant, first contended that there being not an iota of evidence in the proceedings of the G.C.M. to indicate that L/NK Inder Pal Singh and Sep. Mahavir Singh (the petitioners in the two special leave petitions) committed the murders of the two officers mentioned in the charge the High Court ought to have held that the findings of the G.C.M. as recorded against the appellant were perverse. While on this point, Mr. Lalit however fairly conceded that having regard to the limited scope of enquiry the High Court exercises while sitting in its extra-ordinary writ jurisdiction it was difficult for him to assail the finding recorded by the G.C.M. that the appellant had instigated the above two persons to commit the murders on the ground that it was based on no evidence , but he strenuously urged that mere proof of the said fact could not in any way saddle the appellant with the offence of abetment of Commission of the murders, in absence of any evidence whatsoever to prove that they actually committed the murders, and, that too on being instigated by the appellant. The other point that was raised by Mr. Lalit was that even if it was assumed that there was some evidence to connect the appellant with the offence alleged against him as furnished by Inder Pal Singh and Mahavir Singh, even then the GCM, which functions as a judicial Tribunal, ought not to have relied upon the same, in absence of any independent corroboration thereof, as such evidence was adduced by the two assailants mentioned in the charge, who were undoubtedly accomplices.

5. Mr. Goswami, learned counsel appearing for the respondents on the other hand contended that it could not be said that there was no evidence to connect the appellant with the charge levelled against him and, therefore, this Court

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1996 Supreme(SC) 943

Cases Referred (2)