Judgment :-

1. We have heard the learned counsel for the parties. The facts leading to this appeal are as under:

2. The appellant was enrolled in the Indian Army in the year of 1978 and was deputed to an Artillery regiment. On the 6th January, 2000 he along with two other Sentries, Naik Sajimon and Lance Naik Shaiju, was on security duty as the Guard Commander in the Technical Battery Area of 501 AD GP (SP). A 7.62 mm Self Loading Rifle bearing butt number 259 had also been issued to him alongwith 20 cartridges. It appears that there was an incident of stone throwing on the Guard Hut and the matter was reported to the Security JCO, Naib Subedar Amrender Kumar. The JCO issued instructions that a Quick Reaction Team be summoned. This Team reached the Guard Hut at about 10.30 p.m. and the vehicle was challenged by the Sentry on duty.

The Members of the Team came out of the vehicle and moved to the right and left as ordered to locate the intruder who had thrown the stones. At this stage the accused came running towards Naik Jityu Yadav, one of the members of the Quick Reaction Team, followed by Naik Sajimon KT who warned him that the person towards whom he, (the accused) was running was one of the members of the Quick Reaction Team and not to fire on him. Despite this information however the accused fired three shots from a distance of 8 to 10 ft. killing Naik Jityu Yadav at the spot. He was quickly apprehended by PW.14 and the Security JCO PW.6 and when questioned as to what he had done, he replied `MAINE JO KARNA THA KAR DIYA'.

3. Keeping in view the aforesaid facts, the Court Martial before whom the appellant was tried, held that the shooting was a deliberate attack of murder and the appellant was accordingly guilty under Section 302 of the IPC. He was accordingly sentenced to life imprisonment along with several other penalties imposable under the Army Act 1950.

4. A writ petition was thereafter filed in the Punjab and Haryana High Court under Art. 226 of the Constitution of India and several issues of law and fact were raised before the Division Bench. The High Court vide its judgment dated 23/12/2005 repelled all the arguments and dismissed the writ petition and confirmed the findings of the Court Martial. A recall application was also moved before the High Court which too was dismissed on 23rd November 2005. It is in this background that the matter is before us in appeal.

5. Before us today Mr. D. Thakur, the learned counsel for the appellant, has pointed out that from the facts of the case it was apparent that the killing was an accident and arose from a suspicion of a terrorist attack as Ambala, being close to the Punjab State, also faced this threat. He accordingly prays that a case under Section 302 was not made out.

6. Mr. P.P. Tripathi, the learned A.S.G. has however submitted that the findings of fact recorded by the Court Martial were very categoric and based on a correct appreciation of the evidence and the High Court was justified in rejecting a challenge to those findings as interference by Courts in such matters was required to be minimal.

7. We have considered the arguments advanced by the learned counsel for the parties and have gone through the record very carefully with their assistance. As already pointed out the only argument raised by Mr. Thakur pertains to the finding of fact with regard to the murder. We see from the order of the Court Martial that the appellant had fired three shots at the deceased, who was one of his colleagues in the Army, and this incident had been witnessed by several Army personnel who had been posted with the accused at that time. The fact that the shots had been fired from 8 to 10 ft. has also been borne out by the observations of Dr. S. Sharma (PW.16) at the time of the postmortem examination. It is also clear that the fired cartridge cases lifted from the site of the incident also matched the weapon issued to the accused. If any doubt still existed with regard to the culpa