Full Judgment Text
2023 INSC 648
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1791 OF 2023
No.15138812Y L/Nk Gursewak Singh ... Appellant
versus
Union of India & Anr. ... Respondents
J U D G M E N T
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 preconfirmation petitions which
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.07.27
16:49:11 IST
Reason:
were rejected by the Major General Officer Commanding by
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his order dated 28 September 2005. Thereafter, the
Criminal Appeal No.1791 of 2023 Page 1 of 10
appellant filed a petition to the Chief of the Army Staff who
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rejected the same by his order dated 12 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.
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2. On 4 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 (PW
13). Gunner Gurtej Singh (PW14) was a sentry who was also
a part of the guard.
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It is alleged that on the night of 4 December 2004, the
3.
deceased brought a bottle of country liquor. The appellant,
the deceased and the Guard Commander Naik Amrik Singh
Criminal Appeal No.1791 of 2023 Page 2 of 10
consumed liquor. Thereafter, there was an altercation
between the appellant and the deceased on the issue of inter
se 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 PW13 Naik Amrik
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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 cruel manner.
He submitted that the conduct of the appellant has to be
judged in the light of the fact that he was on duty as a guard
and was a member of a disciplined force. He would submit
that no indulgence can be shown to the appellant.
6. The learned counsel appearing for the appellant relied
upon decisions of this Court in the case of Prakash Chand
1
v. State of H.P. and Sukhdev Singh v. Delhi State (Govt.
2
of NCT of Delhi ) .
OUR VIEW
7. Hawaldar Malkiat Singh is PW3 who stated that the
appellant was not possessing any weapon. PW8 Naib
Subedar Chandrika Prasad deposed that after receiving a call
from the operator he rushed to the place of the incident as he
was informed that a sentry has been shot. He instructed the
nursing assistant to move quickly and he, along with the
1 (2004) 11 SCC 381
2 (2003) 7 SCC 441
Criminal Appeal No.1791 of 2023 Page 4 of 10
nursing assistant, reached the spot in an ambulance. He
questioned the appellant. At that time, the appellant told him
that an altercation had taken place and he had fired one
round. The witness stated in the crossexamination that
while replying to him, the accused may have used the word
“galti” meaning thereby that he fired a bullet by mistake.
PW13 Naik Amrik Singh was posted as a guard
8.
commander along with the appellant and deceased. He stated
that as the appellant was the senior most, he treated him as
second guard commander. He submitted that he, along with
PW14 Gunner Gurtej Singh and the appellant, were having
dinner. At that time, the deceased stood on duty outside the
guard room with a weapon and ammunition. He described
that there was an altercation between the appellant and the
deceased on the issue of seniority. According to his version,
when he was sitting in the guard room, he heard a sound of a
gunshot. When he looked outside, the appellant was holding
a rifle. According to him, the appellant informed him that he
had shot the deceased. PW13 sought help. He tried to give a
ring to headquarters but the telephone was engaged. He told
PW14 to shout for help from nearby posts. PW13 further
stated that he along with the appellant, lifted the deceased
and after reaching the roadside, they laid the deceased on the
ground. By that time ambulance reached the place. He stated
that Naib Subedar Chandrika Prasad (PW8), a nursing
assistant and the appellant put the deceased into an
ambulance and all of them took the deceased to hospital. We
Criminal Appeal No.1791 of 2023 Page 5 of 10
may note here that the learned prosecution counsel sought
permission to declare PW13 as a hostile witness. However,
the Court Martial rejected the request of the prosecution
counsel. PW13 stated that the rifle used by the appellant
was lying in the snake pit. There was an empty magazine and
a filled magazine. There were 19 rounds in the filled
magazine. The witness admitted that he, along with the
deceased and the appellant, consumed liquor. But he claimed
that it was one and half hours before the incident. In the
crossexamination, the witness admitted that it was the
deceased who brought the liquor bottle without consulting
him. He admitted that the appellant and the deceased were
friends before the incident. He stated that the appellant told
him that he had committed a mistake and he had fired a
bullet at the deceased. While answering the court question,
the witness stated that he had not seen the appellant firing
from the rifle. He saw the appellant immediately after hearing
the sound of firing.
9. PW14 Gunner Gurtej Singh stated that he was having
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dinner on 4 December 2004 at about 2015 hrs with PW 13
in the guard room. After hearing the sound of a gunshot, he
got up and saw the appellant holding a rifle and standing
near the entrance of the guard room. He stated that the
appellant took out the magazine from the rifle and threw it on
a side. Thereafter, he made the rifle safe by cocking the rifle.
He threw the rifle into a snake pit. He stated that when the
appellant was questioned by him, he responded by stating
Criminal Appeal No.1791 of 2023 Page 6 of 10
that he had committed a mistake. He stated that earlier he
had heard the appellant asking the deceased to bring water
for him. The deceased refused to get water by saying that he
was senior to the appellant.
10. What emerges from the evidence is that the appellant,
the deceased and PW13 Naik Amrik Singh had consumed
liquor at the time of dinner. There was a heated exchange of
words between the appellant and the deceased on the issue of
seniority. In fact, PW13 stated in his examinationinchief
that the appellant was senior most after him and therefore,
the appellant was designated as second guard commander.
He stated that he treated the appellant to be senior.
11. The appellant did not have a weapon at that time and he
used the weapon of the deceased. Out of 20 rounds in the
magazine of the rifle, he fired only one bullet. Moreover, after
the incident, the appellant did not run away and he along
with PW 13 lifted the deceased and laid him by the side of
the road. He frankly disclosed his version of the incident to
PWs 13 and 14. The appellant along with two other army
men, lifted the deceased for putting him in the ambulance
and he accompanied the deceased to the hospital. These
facts brought on record show that there was no pre
meditation on the part of the appellant. Both the appellant
and the deceased had consumed liquor. There was a fight
between him and the deceased over the issue of seniority. In
fact, when the appellant told the deceased to bring water for
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him, the deceased refused to do so on the ground that he was
senior to the appellant. In a disciplined force like Army, the
seniority has all the importance. Therefore, there is every
possibility that the dispute over seniority resulted in the
appellant doing the act in a heat of passion. It appears that
in the heat of passion, the appellant snatched a rifle held by
the deceased and fired only one bullet. If there was any pre
meditation on the part of the appellant or if he had any
intention to kill the deceased, he would have fired more
bullets at the deceased. Hence, there was no intention on his
part to kill the deceased. Whether the appellant had done a
cruel act or not, has to be appreciated after considering three
facts. Firstly, the appellant was a soldier on guard duty,
secondly, the appellant and the deceased had a fight over the
seniority and thirdly, though there were 20 rounds in the rifle
of the deceased, he fired only one round. There was a sudden
fight over seniority when the appellant and the deceased had
consumed liquor. There was no premeditation. The
appellant, in the facts of the case, cannot be said to have
acted in such a cruel manner which will deprive him of the
benefit of exception 4 to Section 300 of IPC. The term cruel
manner is a relative term. Exception 4 applies when a man
kills another. By ordinary standards, this itself is a cruel act.
The appellant fired only one bullet which proved to be fatal.
He did not fire more bullets though available. He did not run
away and he helped others to take the deceased to a hospital.
If we assign a meaning to the word ‘cruel’ used in exception 4
Criminal Appeal No.1791 of 2023 Page 8 of 10
which is used in common parlance, in no case exception 4
can be applied. Therefore, in our view, exception 4 to Section
300 was applicable in this case. Therefore, the appellant is
guilty of culpable homicide not amounting to murder. The
appellant snatched the rifle from the hands of the deceased
and fired one bullet at the deceased. This act was done with
the intention of causing such bodily injury to the deceased as
was likely to cause death. Therefore, the first part of Section
304 of IPC will apply in this case. Under the first part of
Section 304 of IPC, an accused can be punished with
imprisonment for life or with imprisonment for a term which
may extend to 10 years.
12. Prosecution examined PW5 Naik Parwinder Singh. In
the crossexamination, he stated that he knew the appellant
since June 2003 and was good in terms of discipline. He
stated that the appellant did not misbehave with the deceased
earlier. PW10 Lt.Col Purty admitted that the accused had a
‘nice reputation’. The conduct of the appellant will be a
mitigating factor for determining the sentence. It is not in
dispute that the appellant has undergone incarceration for a
period of 9 years and approximately 3 months. Taking an
overall view of the evidence on record, the sentence already
undergone by the appellant will be an appropriate sentence in
the facts of the case.
13. Therefore, the appeal is partly allowed. The conviction
of the appellant for the offence punishable under Section 302
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of IPC is altered to the one under Part 1 of Section 304 of IPC.
The appellant is sentenced to undergo imprisonment for the
term which he has already undergone. The appellant was
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enlarged on bail by this Court on 8 April 2020. The bail
bonds of the appellant shall stand cancelled.
…………………….J.
(Abhay S. Oka)
…………………….J.
(Sanjay Karol)
New Delhi;
July 27, 2023.
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