IMPORTANT POINT
Murder – Conduct of accused will be a mitigating factor for determining sentence.

JUDGMENT

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. The appellant who was at the relevant time Lance Naik in the Indian Army was convicted by the Court Martial for the offence punishable under Section 302 of the IPC (for short, ‘IPC’) read with Section 69 of the Army Act, 1950 (for short, ‘the Army Act’). The Court Martial sentenced the appellant to suffer imprisonment for life. The Court Martial also dismissed the appellant from service. Thereafter, the appellant filed pre-confirmation and additional pre-confirmation petitions which were rejected by the Major General Officer Commanding by his order dated 28th September 2005. Thereafter, the appellant filed a petition to the Chief of the Army Staff who rejected the same by his order dated 12th June 2006. Thereafter, the appellant filed a Petition under Article 226 read with Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) before the Hon’ble High Court of Punjab and Haryana. The High Court transferred the matter to the Armed Forces Tribunal, Chandigarh. By the impugned judgment, the Armed Forces Tribunal, Chandigarh dismissed the Petition and confirmed the conviction and sentence of the appellant. Against the impugned order of the Tribunal, the Appellant again filed a Writ Petition before the Hon’ble High Court of Punjab and Haryana and by order dated 10.10.2018, the High Court while dismissing the Writ Petition granted liberty to the appellant to avail remedy under Section 30 of the Armed Forces Tribunal Act, 2007.

2. On 4th December 2004, the appellant and deceased (Lance Naik Kala Singh) were posted for duty with the 13 Field Regiment at Ferozepur Cantonment. On the date of the incident, the appellant and the deceased were a part of the guard headed by Guard Commander Naik Amrik Singh (PW13). Gunner Gurtej Singh (PW14) was a sentry who was also a part of the guard.

3. It is alleged that on the night of 4th December 2004, the deceased brought a bottle of country liquor. The appellant, the deceased and the Guard Commander Naik Amrik Singh consumed liquor. Thereafter, there was an altercation between the appellant and the deceased on the issue of interse seniority. At that time, the Guard commander intervened. The deceased replaced gunner Gurtej Singh (PW14) for guard duty outside the guard room. Thereafter, the appellant went out when there were heated arguments between the appellant and the deceased again on the issue of seniority. At that time, the appellant snatched the rifle from the hands of the deceased and fired one bullet at the deceased. The appellant accompanied others for taking the deceased to a hospital where he was declared dead. The appellant was arrested on the same day.

SUBMISSIONS

4. The learned counsel for the appellant has taken us through the notes of evidence and findings recorded by the Court Martial as well as by the Armed Forces Tribunal (for short, ‘the Tribunal’). His basic contention is that the case will be governed by exception 4 to Section 300 of IPC. He submitted that the incident was an outcome of a sudden fight and the appellant acted in a heat of passion. He submitted that only one bullet was fired by the appellant though there were more bullets in the rifle at that time. His submission is that the appellant has not taken any undue advantage and has not acted in a cruel manner. The learned counsel has taken us through the evidence of the material prosecution witnesses and in particular the evidence of PW-13 Naik Amrik Singh and PW14 Gunner Gurtej Singh. He would, therefore, submit that this was a case of an offence punishable under Section 304 (Part II) of IPC. He pointed out that the appellant had undergone incarceration for a period of about 9 years and 3 months.

5. Learned senior counsel appearing for the respondent pointed out that exception 4 to Section 300 will not apply in this case, as it cannot be said that there was a sudden fight. He submitted that the appellant has acted in a