Important point
While deciding the question as to whether the extreme penalty of death sentence is to be awarded, a balance sheet of aggravating and mitigating circumstances has to be drawn up.

Headnote:Army Act, 1950—Section 153—Death penalty by Court Martial—Accused on quarter guard duty having caused homicidal death of two army personnel and grievous injuries with intent of causing murder of two others—Award of death penalty by Court Martial was affirmed by the Central Government—High Court directing the authorities to reconsider the question of sentence to be awarded to the accused—Appeal filed by Chief of Army Staff, General Officer Commanding, Commanding Officer alleging that murders were not only cruel and brutal but also pre-planned and pre-meditated and that High Court lost sight of the fact that it was dealing with the case of a person belonging to a disciplined force—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—High Court has not attempted to balance aggravating and mitigating factors and has come to an abrupt conclusion about the case being not covered by the rarest of rare category—Matter is remitted to the High Court to consider the matter afresh.
Held : While deciding the question as to whether the extreme penalty of death sentence is to be awarded, a balance sheet of aggravating and mitigating circumstances has to be drawn up. (Para 8)
In the instant case, the High Court has not attempted to do that exercise and has come to an abrubt conclusion about the case being not covered by the rarest of rare category. That is clearly contrary to the principles set out by this Court in the decisions noted above. We deem it appropriate to remit the matter to the High Court to consider the matter afresh and take the decision as to the appropriate sentence. The exercise has only to be limited to that aspect alone as the High Court itself has in the impugned judgment found that the conviction was well merited. (Para 9)

Judgment

Arijit Pasayat, J.—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. BV- 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 P

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Judicial Analysis

SupremeToday

2006 Supreme(SC) 25

Important pointWhile deciding the question as to whether the extreme penalty of death sentence is to be awarded, a balance sheet of aggravating and mitigating circumstances has to be drawn up.

Cases Referred (2)

Judicial Analysis

Important point
While deciding the question as to whether the extreme penalty of death sentence is to be awarded, a balance sheet of aggravating and mitigating circumstances has to be drawn up.