MAJOR R.S. BUDHWAR versus UNION OF INDIA AND ORS.

Citation: [1996] SUPP. 2 S.C.R. 528 · Decided: 08-05-1996 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
c 
MAJOR R.S. BUDHWAR 
v. 
UNION OF INDIA AND ORS. 
MAY 8, 1996 
[DR. A.S. ANAND AND M.K. MUKHERJEE, JJ.] 
Criminal law : 
Penal Code, 1860: 
Sections 302 and 109 r/w S.34-Murda-Abetment to commh-Ac-
complices supported charge levelled against accused-Evidence of ac-
complices corroborated by circumstantial evidence-Value of accomplices' 
evidence-Properly explained by Judge-Advocate to General Court Ma1tial 
with reference to Ss 133 and 114 III. (b) of the Evidence Act, 1872---lnspite 
D of such explanation GCM found accused guilty-Held : finding of GCM not 
pervei~e-Case of 'sufficient evidence'-Conviction maintained-Evidence 
Act, 1872, Ss 133 and 114 III.(b)--Am1y Act, 1950, Ss 69 and 164(1) and 
(2). 
E 
Section 302---:IJeath sentence-Mitigating rircumstances-Murder of 
four Am1y officers-Accused committed murders under threat, command and 
influence of their superiors who instigated them to commit murders by 
exploiting their religious feelings-Superiors who master minded murders were 
awarded only life imprisonment-Post murder repentance of accused-Held: 
notwithstanding the fact that two of the murders were diabolically planned 
F and committed in cold blood; accused did not deserve extreme penalty of 
death-Hence commuted to life imprisonment. 
The appellants were convicted by General Court Martial under 
Section 69 of the Army Act, 1950 read with Sections 34, 109 and 302 of the 
G Indian Penal Code, 1860. The appellant in Criminal Appeal No. 1194/1995 
was sentenced to undergo imprisonment for life and cashiering while the 
appellants in Criminal Appeal No. 625/1996 and 626/1996 were sentenced 
to death. 
Aggrieved by the order of the GCM the appellants presented two 
H petitions under Section 164(1) and (2) of the Army Act, 1950 which were 
528 
R.S.BUDHWAR V. U.0.1. 
529 
rejected: The appellants filed writ petitions in the High Court which were A 
dismissed. 
In the appeal before this Court, on behalf of the accused persons it 
was contended that this was a case of 'No evidence'; that the GCM onght 
not to have relied upon the uncorroborated evidence of the accomplices 
and that they were entitled for commutation of their death sentence. 
Disposing of the appeals, this Court 
HELD : 1. In respect of the appellants-accused sentenced to life 
imprisonment the Judge-Advocate in his closing address to the General 
Court Martial properly explained the value of the evidence of an ac-
complice with reference to Sections 133 and 114 (Illustration (b) of the 
Evidence Act, 1872. If inspite of such explanation the GCM found the 
appellant guilty it could not be said that its finding was perverse. When 
the circumstantial evidence is considered along with the evidence of P.W. 
10, the conclusion is irresistable that it is not a case of 'no evidence' but 
one of 'sufticient evidence'. [534-G-H; 535-A; 536-A] 
2.1. In respect ofthe appellants-accused sentenced to death, they 
committed four murders. Two of them were diabolically planned and 
committed in cold blood. The appellants did not commit the two murders 
on their own volition prompted by any motive or greed much less, evincing 
total depravity and meanness. Indeed the main accused who was Major in 
the Army alongwith others Ofticers of the Unit of the appellants instigated 
and compelled them to commit the two murders by exploiting their 
religious feelings. Initially the appellants declined to take any step towards 
the commission of the offences but ultimately they succumbed to the 
"threat, command and influence" of their superiors. [538-E-H] 
2.2. Another mitigating factor which calls for commutation of the 
sentence ir that the said Major who alongwith another oliicer (since dead) 
masterminded the two murders were awarded life imprisonment whereas 
the appellants who carried out their orders have been sentenced to death. 
B 
c 
D 
E 
F 
G 
In a case of the present nature which relates to a disciplined force as the 
Army, the offence committed by the oliicers who conceived the plan, was 
more heinous than that of the appellants who executed the plan as per 
their orders and directions. It is of course true that those orders being not 
la"ful the appellants, even as disciplined soldiers, were not bound to H 
530 
SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R. 
A comply with the same nor their carrying out such order minimised the 
offences but certainly this is a factor which cannot be ignored while deciding 
the question of sentence. Another fador whi

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