Date of Order:
July 27, 2023
Bench:
Justice Abhay S Oka
Justice Sanjay Karol
Parties:
No.15138812Y L/Nk Gursewak Singh ... Appellant
Versus
Union of India & Anr. ... Respondents
SUBJECT
- The appellant, who was a Lance Naik in the Indian Army at the time, was convicted by a Court Martial for an offence punishable under Section 302 of the Indian Penal Code (‘IPC’) read with Section 69 of the Army Act, 1950 (‘the Army Act’).The appellant was sentenced to life in prison by the Court Martial.The Court Martial also discharged the appellant from duty. Following that, the appellant submitted preconfirmation and supplementary preconfirmation applications, which were denied by the Major General Officer Commanding in an order dated September 28, 2005.
- The court held that the appellant was guilty of culpable homicide, not murder, and was then sentenced to life imprisonment or a 10-year term.
IMPORTANT PROVISIONS
- Section 300 IPC
OVERVIEW
- The appellant and deceased (Lance Naik Kala Singh) were assigned to the 13 Field Regiment at Ferozepur Cantonment on December 4, 2004.The appellant and the deceased were members of the guard led by Guard Commander Naik Amrik Singh (PW 13) on the day of the occurrence. Gunner Gurtej Singh (PW-14) was a sentry who also served on the guard.
- On December 4th, 2004, the deceased brought a bottle of country liquor, and the appellant, the deceased, and Guard Commander Naik Amrik Singh, consumed liquor. An altercation occurred, and the deceased replaced gunner Gurtej Singh. The appellant fired a bullet at the deceased, and he was declared dead. The appellant was arrested the same day.
ARGUMENTS ADVANCED BY THE APPELLANT
- The appellant’s learned counsel presented evidence and findings from the Court Martial and Armed Forces Tribunal, arguing that the case will be governed by exception 4 to Section 300 of IPC. The counsel submitted that the incident was a result of a sudden fight and that the appellant acted in a heat of passion.
- The counsel also argued that the appellant had been incarcerated for 9 years and 3 months.
- The learned counsel for the appellant relied on decisions of this Court in the cases of Prakash Chand v. State of H.P.1 and Sukhdev Singh v. Delhi State (Govt. Of NCT of Delhi)2.
ARGUMENTS ADVANCED BY THE RESPONDENT
- Senior counsel for the respondent argued that exception 4 to Section 300 won’t apply in this case, as there can’t be a sudden fight. The appellant acted cruelly and was on duty as a guard, but no indulgence was shown.
JUDGEMENT ANALYSIS
- According to the evidence, the appellant, the deceased, and PW13 Naik Amrik Singh all drank alcohol during supper. On the matter of seniority, the appellant and the deceased had a heated exchange of words. In reality, PW13 claimed in his examination in chief that the appellant was the senior most senior after him, and hence the appellant was chosen as second guard commander. He replied that he considered the appellant to be senior.
- The appellant used the deceased’s weapon and fired only one bullet out of 20 rounds. After the incident, he lifted the deceased and laid him by the road. The appellant disclosed his version to PWs 13 and 14. The appellant and the deceased had consumed liquor, and a fight over seniority ensued.
- The appellant snatched a rifle held by the deceased in the heat of passion and fired only one bullet. There was no premeditation or intention to kill the deceased. The appellant’s actions were deemed cruel due to a sudden fight over the seniority and the consumption of liquor. The appellant cannot be considered cruel in the case, as the term “cruel manner” is a relative term.
- The appellant’s cruel manner is a relative term, and exception 4 applies when a man kills another. The appellant fired a fatal bullet, did not run away, and helped others take the deceased to a hospital. The appellant is guilty of culpable homicide, not murder, and the first part of Section 304 of IPC applies. The appellant can be punished with life imprisonment or a 10-year term.
- The appellant was condemned to prison for the period of time he has already served. On April 8, 2020, the Court granted the appellant an extension of bail. The appellant’s bail bonds were then annulled.
