MAIN POINT
When provocation does not result in immediate retaliation and lapses into motive to take revenge, accused will not be entitled to benefit of Exception I to section 300 IPC.

JUDGMENT :

T.S. THAKUR, J.

Criminal Appeal No.242 of 2012:

1. High Court of Delhi has, while dismissing writ petition No.4652 of 2010 filed by the appellant, affirmed the orders passed by the Armed Forces Tribunal, New Delhi and that passed by the Summary General Court Martial holding the appellant guilty for an offence punishable under Section 69 of the Army Act read with Section 302 of the Ranbir Penal Code and sentencing him to undergo imprisonment for life besides dismissal from service.

2. Enrolled on 30th July, 2004, the appellant was posted at Razdan in Baramulla Sector of the State Jammu and Kashmir. Deceased Sub Randhir Singh was serving as a Senior JCO/Post Commander at the very same place of posting. The prosecution case is that on 28th June, 2006 at about 9.30 p.m. the appellant while on guard duty shot Subedar (AIG) Randhir Singh dead with a 5.56 Insas Rifle issued to him. FIR No.137 of 2006 about the incident was lodged by the Brigade Commander concerned with the jurisdictional police Station at Bandipur who after completing its investigation of the incident filed a charge sheet against the appellant before the Jurisdictional Magistrate for commitment of the case to the Court of Sessions at Baramulla for trial.

3. The Court of Sessions at Baramulla in turn transferred the case to the Army Authorities for being dealt with under the Army Act on an application filed before it by the GOC 15 Corps. A Summary General Court Martial was accordingly convened for the trial of the appellant who found the appellant guilty for the commission of offences punishable under Section 69 of the Army Act and Section 302 of the Ranbir Penal Code and sentenced him to undergo imprisonment for life and dismissal from service. Statutory remedies under the Army Act, 1950 having proved ineffective, the appellant filed OA No.5 of 2009 before the Armed Forces Tribunal, Principal Bench, New Delhi, which was heard and dismissed by the Tribunal by its order dated 27th August, 2009. The appellant then filed Writ Petition No.4652 of 2010 before the High Court of Delhi which too failed and was dismissed by a Division Bench of the High Court by its order dated 5th July, 2011. The present appeal assails the correctness of the judgment passed by the High Court and that passed by the Armed Forces Appellate Tribunal. It also challenges the conviction of the appellant for the offence of murder and the sentence awarded to him by the Summary General Court Martial.

4. Mr. Sisodia, senior counsel appearing for the appellant, raised a short point before us. He contended that the appellant was, in the facts and circumstances of the case, entitled to the benefit of Exception 1 to Section 300 of the IPC. He argued that according to appellant’s version he was on 28th June, 2006 resting in his bunk after lunch when the deceased Sub Randhir Singh came to the appellant’s cot in an inebriated state, slapped him mildly twice and asked the appellant to follow him. Thinking that he was being called for some kind of duty, the appellant followed the deceased to the store room where the deceased bolted the door from inside and asked the appellant to remove his pant suggesting thereby that the deceased intended to sodomise the appellant. When the appellant declined, the deceased punched him and kicked him repeatedly and asked him to put up his hand and hold the side beams of the top berth of the double bunk in the store room. The appellant’s further case is that the deceased thereafter made unwelcome and improper advances like kissing his body, cheeks and stomach. While this was going on, two other personnel viz. Hadgal Vilas and Anil Gadge knocked at the door of the store room. The deceased opened the store room door and asked them to go away and shut the door again only to continue the appellant’s torture for half an hour. The appellant somehow managed to free himself and return to his barrack, shaken and crying inconsolably. He is alleged to have shared his grief and sor