EX-GUNNER VIRENDER PRASAD versus UNION OF INDIA & ANR.

Citation: [2020] 4 S.C.R. 966 · Decided: 18-03-2020 · Supreme Court of India · Bench: S.A. BOBDE, BHUSHAN RAMKRISHNA GAVAI, SURYA KANT · Disposal: Dismissed
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Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 4 S.C.R.
EX-GUNNER VIRENDER PRASAD
v.
UNION OF INDIA & ANR.
(Criminal Appeal No. 2035 of 2012)
MARCH 18, 2020
[S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]
Army Act, 1950:
s. 69 – Civil Offence of murder – Court martial – Accused
found guilty of murder and sentenced to life imprisonment –
Conviction and sentence affirmed by Armed Forces Tribunal –
Appeal to Supreme Court – Held: Conviction is affirmed –
However, in the peculiar facts of the case, sentence of life
imprisonment reduced to the period already undergone i.e. period
of more than 14 years.
Code of Criminal Procedure, 1973:
s. 433-A – Applicability of – Held: s. 433-A is applicable to
a case tried for offence u/s. 69 of Army Act, 1950.
Dismissing the appeal, the Court
HELD: 1.  There is no reason to interfere with the findings
of  fact  recorded by the Court Martial as confirmed by the
Armed Forces Tribunal (AFT) thereby, holding, that the
appellant was liable to be convicted for the offence punishable
under Section 69 of the Army Act, 1950 for committing a civil
offence of murder. [Para 4] [969-C]
2.1 Section 433-A of Cr.P.C would also be applicable to a
case tried for offence under Section 69 of the Army Act, 1950
and a person who has been imposed with a life sentence cannot
be released unless he has actually served 14 years’ of
imprisonment, without taking into consideration the remissions
earned by him in jail. [Para 7] [970-A-B]
Union of India and others v. Sadha Singh (1999) 8
SCC 375 : [1999] 4 Suppl. SCR 28 – relied on.
   [2020] 4 S.C.R. 966
966
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2.2. The appellant was posted in Kashmir area, at a time
when the State was undergoing the threat of terrorism at its peak.
The appellant, after the incident, immediately came out of the
tent, surrendered himself, and gave an explanation that he had
fired the rifle under a delusion that there was a terrorist attack.
The conduct and behaviour of the appellant in the jail, as could
be seen from the Certificate issued by the Superintendent,
District Jail, has been excellent. The appellant has actually
served the sentence of 16 years and 6 months as on 6.1.2020.
If the benefit of remission is given to him, the period would
come to 20 years and 5 months. As such, he has served the
sentence for a period of more than 14 years and as such, the
bar of Section 433-A Cr.P.C. would also not be applicable.
[Para 9] [970-D-E]
2.3 In the peculiar facts and circumstances of the case, the
sentence already served by the appellant is much more than
proportionate to the offence proved against him. [Para 10]
[970-F]
Santa Singh v. The State of Punjab (1976) 4 SCC
190 : [1977] 1 SCR 229 ; Gopal Singh v. State of
Uttarakhand (2013) 7 SCC 545 : [2013] 4 SCR 104
– relied on.
Case Law Reference
[1977] 1 SCR 229
relied on
Para 6
[2013] 4 SCR 104
relied on
Para 7
[1999] 4 Suppl. SCR 28
relied on
Para 7
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2035 of 2012
From the Judgment and Order dated 16.02.2012 in T.A. No.
284/2010 (W.P.(C) No. 17581/2006), Order dated 10.04.2012 in M.A.
No. 193/12 & M.A. No. 194/12 in T.A. No. 284/2010 (W.P.(C) No.
17581/2006) of the Armed Forces Tribunal, Principal Bench, New Delhi.
Vikramjit Banerjee, ASG, B. K. Pal, Reena Pandey, N. K.
Karhail, Anshul Gupta, Om Prakash Shukla, Siddhartha Sinha, Prashant
Rawat, Abhishek Mahajan, A. K. Sharma, Mukesh Kumar Maroria,
Advs. for the appearing parties.
EX-GUNNER VIRENDER PRASAD v.
UNION OF INDIA & ANR.
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SUPREME COURT REPORTS
[2020] 4 S.C.R.
The following Judgment of the Court was delivered:
JUDGMENT
1. The present appeal takes an exception to the Judgment and
Order passed by the Armed Forces Tribunal (hereinafter referred to
as “AFT”) in T.A.No.284 of 2011 whereby, the appeal of the present
appellant against the order of Court Martial dated 21.08.2004 was
dismissed.
2. The brief facts of the present matter are as follows:
The present appellant was enrolled in Signals Corps and was
posted to HQ & Radar Battery of 20 Surveillance and target acquisition
regiment since 01.10.2002. The appellant was deployed at Peer
Badeshwar Radar Post and reported to the post on 12.05.2003. The
deceased Gunner-Sushil Kumar was of the same unit i.e. 20
Surveillance and target acquisition regiment and was working as Radar
Operator and was stated to be on good terms with the appellant. On
the date of incident i.e. 30.06.2003, the present appellant shot the
deceased Gunner-Sushil Kumar
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