http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: MAJOR R.S. BUDHWAR

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       08/05/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) ANAND, A.S. (J)

CITATION:  1996 AIR 2000            JT 1996 (5)    39  1996 SCALE  (4)269

ACT:

HEADNOTE:

JUDGMENT:                           W I T H               CRIMINAL APPEAL No. 625 of 1996.        (Arising out of SLP (Crl.) No. 2126 of (1994) Mahavir Singh V. Union of India                           W I T H               CRIMINAL APPEAL NO. 626 OF 1996         (Arising out of SLP (Crl.) No. 2138 of 1994) Inder Pal Singh V. Union of India                       J U D G M E N T M.K. MUKHERJEE. J.      The above  appeal and  the two  Special Leave Petitions were directed to be heard together as they relate to one and the same  incident but  having to  the facts  regard to  the facts that  over that incident two separate trials were held by General  Court Martial  (GCM’ for short), assailing their verdicts two  independent writ  petitions were filed and the Delhi High  Court dismissed  them by two separate judgments, which are  under challenge  herein, we  have heard  them one after the other and proceed to dispose of them accordingly. CRIMINAL APPEAL NO. 1194 OF 1195 "Army Act        COMMITTING A  CIVIL OFFENCE, THAT IS TO SAY Section 69    ABETMENT OF AN  OFFENCE SPECIFIED IN   SECTION               302 OF  INDIAN  PENAL CODE, IN  CONSEQUENCE OF               WHICH  ABETMENT  SUCH  OFFENCE WITH COMMITTED,               CONTRARY  TO  SECTION 109 READ WITH SECTION 34               OF INDIAN PENAL CODE.               in  that  they  together,  at   Field,  on  or               before   14  June, 1987, abetted  No. 3173368H               Sep  (L/nk) Inder Pal Singh and No. 3174523 L.               Sep  Mahavir Singh,  both  of  8 JAT to commit               murders of IC 14807N  Colonel SS Sahota and IC

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

             28739H  Major  Jaspal  Singh of the same unit,               which  was  committed  in  consequence of such               abetment  by  the  said Sep (L/NK)  Inder  Pal               Singh and Sep. Mahavir Singh."      The GCM  found the  appellant and  one of the other two (since dead)  guilty of  the above  charge and  awarded them punishment  of   imprisonment  for   life  and   cashiering. Aggrieved thereby  the appellant  presented a petition under Section 164  (1) of  the Army  Act, 1950  (’Act’ for  short) wherein he  prayed that  the findings and sentences recorded against him  be not  confirmed. The GOC-in-C Eastern Command however rejected  that petition  and confirmed  the findings and sentences  of the GCM. He then filed another petition in accordance with  Section  164  (2)  of  the  Act  which  was rejected by  the  Central  Government.  The  appellant  then approached the  Delhi  High  Court  with  a  petition  under Article 226  of the  Constitution of  India which  was  also dismissed. Hence this appeal.      Mr.  Lalit,  the  learned  counsel  appearing  for  the appellant, first  contended that  there being not an iota of evidence in  the proceedings  of the  G.C.M.to indicate that L/NK Inder Pal Singh and Sep. Mahavir Singh (the petitioners in the two special leave petitions) committed the murders of the two  officers mentioned  in the  charge the  High  Court ought to  have held  that the  findings  of  the  G.C.M.  as recorded against  the appellant were perverse. While on this point, Mr.  Lalit however fairly conceded that having regard to the  limited scope  of enquiry  the High  Court exercises while sitting in its extra-ordinary writ jurisdiction it was difficult for  him to  assail the  finding  rcorded  by  the G.C.M. that  the appellant  had  instigated  the  above  two persons to  commit the  murders on  the ground  that it  was based on  ’no evidence’,  but he strenuously urged that mere proof of  the said  fact could  not in  any way  saddle  the appellant with  the offence of abetment of the commission of the murders,  in absence of any evidence whatsoever to prove that they  actually committed  the murders, and, that too on being instigated  by the appellant. The other point that was raised by  Mr. Lalit  was that  even if  it was assumed that there was  some evidence  to connect  the appellant with the offence alleged  against him as furnished by Inder Pal Singh and Mahabir  Singh, even  then the GCM, which functions as a judicial Tribunal,  ought not  to have relied upon ths same, in absence of any independent corroboration thereof, as such evidence was  adduced by the two assailants mentioned in the charge, who were undoubtedly accomnplices.      Mr.  Goswami,   learned  cuunsel   appearing  for   the respondents on the other hand contended that ib could not be said that  there was  no evidence  to cnnnect  the appellant with the  charge leveiled  against him  and, therefore, this Court  would  nut  be  justified  in  interfering  with  the findings of  the G.C.H.even  if it,  on its,  own appraisal, found the  evidence to  be insufficient  or  unreliable.  In responding to the other contention of Mr. Lalit, Mr. Goswami first drew  our attention  to Section  133 ot  the Act which makes,  subject   to  its  provisions,  Evidence  Act,  1872 applicable to  a]l proceedings  before a  Court Martial  and contended that  in view  of section  133  thereof  (Evidence Act), a  conviction based on the uncorrcborated testimony of an accomplice  could not be held to be illegai. However, Mr. Goswami submitted  that in  the instant case there was ampie material to corroborate the evidence of the accomplices.      In the  context of  the rival stands of the parties the crucial point  that falls  for our  consideratinn is whether there is  any evidence  to prove  that Inder  Pal Singh  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

Mahavir Singh committed the murders of Col. S.S. Sahola, the Commanding Officer and major Jaspal Singh, Second-in-Command of 8,  JAT Unit  (hereinafter referred  to as ’CO’ and ’2IC’ respectively)  on   June  16,   1987  as   alleged  by   the prosecution. If  this question  is to  be  answered  in  the negative, then the fact that there is evidence to prove that the appellant  had instigated  them to  commit the  murder - which is  conceded by  Mr. Lalit  also - would be redundant; and, resultantly,  the impugned  order of  the G.C.M.  would have to  be quashed. To find an answer to the above question we have  carefully gone  through the evidence adduced during the G.C.M.  proceedings.  On  perusal  of  the  evidence  of Mahavir Singh  (PW 10 ) and Inder Pal Singh (PW 16), the two accomplices,  who,   admittedly  were   the  most  important witnesses for the prosecution, we find that they first spoke of the  orders they  had earlier received from the appellant and others  to commit  the two  murders.  In  narrating  the incident of  the fateful day, both of them stated that at or about 12  noon they  went towards  the office  of CO and 2IC with  arms  and  ammunitions.  After  moving  some  distance together, Mahavir  Singh went  towards the  office of CO and Inder Pal  Singh towards  that of  2IC. According to Mahavir Singh, enroute  he met  L/NK Ranbir  Singh (PW 21) who asked him why  he had  come there.  Mahavir Singh  then fired  one round towards him, who immediately caught hold of the muzzle of his  (Mahavir’s) rifle. Mahavir Singh next stated what at that point of time, rapid fire came from the drill shed side towards  the   CO’s  jonga   which   was   standing   there. Simultaneously, he  (Mahavir Singh)  fired one  round  which injured Ranbir’s hand and he fell down. The version of Inder Pal Singh  (PW 16)  as regards  the firing  is that  when he reached the  office of  the 21C  he found  that he  was  not there. He  then went  towards the office of the Adjutant. On the way  he heard  sounds of  firing. When  he  reached  the office of  Adjutant he  could not see clearly as to who were inside as  the room  was dark  and windows were covered with curtains. Through the window he saw a Captain sitting inside and talking  to some  one, who  might be  2IC. He then fired several rounds  in the  air. In  the meantime  Mahavir Singh came there  and told  him to run away. Then both of them ran towards the jungle.      Drawing our  attention to  the above  statements of the two accomplices,  Mr. Lalit  argued that  as neither of them admitted to  have committed the murders it must be said that the finding  of the  G.C.M. That the appellant was guilty of the charge  levelled against  him was perverse - being based on ’no  evidence’. We are unable to accept the contention of Mr. Lalit  for,  later  on  in  his  evidence  P.W.10  fully supported the charge levelled against the appellant - though PW 16  did not  - and there is other circumstantial evidence on record to substantiate the prosecution case.      On being examined further during crial PW 10 testified:      "It is  correct  that  I  alongwith      L/NK Inder Pal Singh had killed the      CO and 2IC on the orders of accused      No. 1 (the appellant)." He further stated:      "It is  correct that  accused  No.1      appellant) had  asked me a question      as to with what aim I was trying to      implicate him  in this  case and  I      had replied  that I  was not trying      to implicate him in any case and he      had  given   a  task  which  I  had      aacomplished."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

Then again  when asked  about what he knew about the loss of grenades of  the Unit  he said  the grenades  were stolen to kill CO  and 2IC.  He also  stated that  he has already been sentenced to  be hanged for committing the murders of CO and 2IC for  obeying the  orders of Major Sahib (the appellant). Again in  cross-examination he testified that his job was to eliminate CO and 2IC. The other piece of his evidence, which clearly indicates  that he  had committed the murders on the instigation of the appellant, reads as under:      On 18  June 87,  after 1600  hrs. I      and L/NK  Inder Pal  surrendered to      Hav Nav  Rattan  of  my  unit  near      Kambang  Bridge.   We   have   also      surrendered our  arms  to  him.  We      were made to sit in a 1 Ton vehicle      of our  unit. After  some time  one      capt.  of  16  Madras  alongwith  a      guard of  3-4 OR  came to the 1 Ton      vehicle. 2  or 3  OR sat with us in      the vehicle.  The  guard  Commander      remained outside  the vehicle.  The      first officer  of my  unit to  come      the  site   of  surrender  was  Maj      Lamba. He  had come in a RCL and it      was parked  ahead of 1 Ton vehicle.      He wished  him Ram  Ram  while  his      vehicle crossed  1 Ton  vehicle. He      replied by  saluting  but  did  not      speak anything. After about half an      hour of our surrender, accused No.1      came to us to the 1 Ton vehicle. He      was  looking  as  if  he  had  come      running and he was perspiring. When      he came  close to us, we wished him      Ram Ram.  He came  further close to      us and  patted me  on my  back  and      said Shabash  Kam Kar Diya, Chettri      Sahib  or  Doctor  Sahib  Ko  Kiyon      Rager Diya"  meaning  thereby,"well      done, the  job has  been done,  why      Chettri  Sahib   and  Doctor  Sahib      killed."      In view  of the  above testimony of P.W.10 it cannot at all be  said that  he did  not support  the charge  levelled against the appellant. It is of course true that PW 10 is an accomplice but  from the  proceedings of  the trial  we find that the  Judge-Advocate in  his  closing  address  properly explained to  the GCM  the  value  of  the  evidence  of  an accomplice with  reference to  Section 133  and Section  114 (Illustration b)  of the  Evidence Act.  If inspite  of such explanation the  GCM found the appellant guilty it could not be said  that its  finding was  perverse.  This  apart,  the following circumstances proved through other witnesses amply corroborate the evidence of P.W. 10: i) on  16 June,  1987 both Inder Pal Singh and Mahavir Singh were found  going towards  the  main  office  building  with rifles and  some rounds  of ammunitions. While Mahavir Singh went towards  the office  of the  CO, Inder  Pal Singh  went towards the office of the 2IC: ii) Near  CO’s office  when NK Ranbir (PW 21) caught hold of the muzzle  of the  rifle of Mahavir Singh he fired or round as a  result of which Ranbir sustained an injury on his hand and fell  down unconscious.  After regaining his senses when he went  to the  office of  the CO he found him lying on the ground near his revolving chair gasping for breeth;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

iii) After  the firing  incident Mahavir Singh and Inder Pal Singh together  ran away towards the jungle along with their arms and ammunition; iv) Both  of them  surrendered on  June 18,  1987 with their rifles  and  ammunitions  which  were  seized  and  sent  to Forensic Science Laboratory, Calcutta for examination; v) On  examination it  was found  that ten  cartridges cases were fired through one of those rifles bearing Regd. No 9744 which was issued to Inder Pal Singh and two cases were fired through the  other rifle,  bearing. Regd  No.7343 which  was issued to Mahavir Singh, in the morning of June 16, 1987: vi) While  sitting in  the office of Adjutant, Major Chandal (CW 1)  saw through  the window  Ranbir  Singh  holding  the muzzle of  a rifle.  At that  moment he heard another bullet being fired  from the  side of his back. He than ducked down on the table with face downward and saw, through the window, Inder Pal  Singh firing  about 10  to 15  rounds. After  the firing had  stopped when he came out of the office of the CO he found  him lying in a reclining position against the wall and he was badly injured and gasping for breath; and  vii)  Dr. Senewal, (PW 15) who held post mortem examination on the  dead bodies  of CO  and 2IC  found injuries on their persons which,  in his  opinion, were  caused by bullets and resulted in their deaths.      When the  above circumstantial  evidene  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 ’sufficient evidence . The findings of the GCM not having been  assailed  in  any  other  court,  the  conviction  and sentence of the appellant is well merited. We therefore hold that there  is no  merit in  this appeal.  It is accordingly dismissed. CRIMINAL APPEAL  NO .......OF  1996 OUT OF SLP (CRL .NO.2126 OF 1994)  AND CRIMINAL APPEAL NO.....OF 1994 (ARISING OUT OF S.L.P.(CRL.) NO.2158 OF 1994)        Leave  granted in  both the petitions, limited to the question of sentence.       Sep  Mahavir  Singh  and  L/NK  Inder  Pal  Singh  the appellants in  these two  appeals, were tried by the General Court Martial  (‘GCM’) for  committing the  murders of  four Army Officers,  namely, Col.S.S. Sahota, Major Jaspal Singh, Captain B.K.  Chottri and  Captain A. Srivastava on June 16, 1987. Of  them Col. Sahota was the Commanding Officer, Major Jaspal Singh  was the  Second-in-Command and Captain Chottri was  an  officer  attached  to  8  JAT  Unit  while  Captain Srivastava  belonged   to  302   Field  Ambulance.  The  two appellants were  also attached  to the  above unit.  By  its order dated  December 10,  1988 the  GCM held them guilty of the above  offences and  sentenced each  of them  to  death. Aggrieved thereby they presented petitions under Section 164 (1) of  the Army  Act (’Act’  for short) wherein they prayed that the  findings and sentence of the GCM be not confirmed. Those petitions  were rejected and the findings and sentence recorded  against   thems  were  confirmed.  The  appellants thereafter filed  another petition  under Section 164 (2) of the Act  which was  also rejected. They then moved the Delhi High  Court  with  a  petition  under  Article  226  of  the constitution of  India wherein they confined their challenge to the sentence imposed upon them on the ground that the GCM did not take into consideration the mitigating circumstances while awarding  the punishment.  In resisting  the petition, the respondents  contended that  having regard  to the  fact that the  appellants committed  the  murders  in  a  planned manner they  deserved the  sentence of death. The High court rejected the  contention of  the  appellants  and  for  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

matter their writ petition with the following observations:      "The question of sentence has to be      decided by  taking into account the      aggravating circumstances  as  well      as  mitigating   circumstances  and      then drawing  a balance. The manner      in which  the crime  was  commited,      the weapons  used and  brutality or      lack  of   it  are  some  of  these      relevant considerations to be borne      in mind.  Due regard is to be given      both to the crime and the criminal.      This was  a case  of killing  of  a      Commanding  Officer,   an   Officer      Second in  Command   and two  other      officers. The Commanding Officer in      an Army  Regiment is  like a father      of his subordinates. The contention      that  the   petitioners  had   good      service record and had no advantage      in killing  these officers and they      had  killed   these   officers   on      instigation of major Budhwar cannot      be accepted in the present petition      as without going into these aspects      but assuming  two views on question      of sentence  were possible,  it  is      not for  this court  to  substitute      its view  for that of the authority      under the  Act. It  cannot be  held      that the  view  of  authorities  in      awarding  death   penalty  was   in      manner perverse. We may notice that      according   to   respondents   life      sentence  was   imposed  on   Major      Budhwar  as   he  was  charged  for      abetment whereas  petitioners  were      actual perpetrators of the crime. Hence these two appeals.      Drawing inspiration  from the judgment of this Court in Triveniben & ors. Vs. State of Gujarat & Ors. 1989 (1) SCR 509, wherein  this Court  has held  that undue and prolonged delays occurring at the instance of the executive in dealing with the  petitions of  convicts filed  in exercise of their legitimate right  is a  material consideration for commuting the death  penalty, the  learned counsel  for the appellants submitted  that     the  appellants  were  entitled  to  the commutation of their sentence as it took the respondent more than three  and half  years  to  dispose  of  the  petitions presented by  the appellants  under sub-sections (1) and (2) of section  164 of  the Act.  On going through the record we find  much   substance  in   the  above   grievance  of  the appellants.        Following the death sentence pronounced by the GCM on December 10,  1988 the  appellants filed  their  application under sub-section  (i) of  Section 164  on December 31, 1988 which was disposed of on February 13, 1991, that is, after a period of more than two years and one  month. Thereafter the appellants moved  their petition  under sub-section  (2)  of Section 164  on March 7, 1991 and this petition was disposed of after  a delay  of more than one year and six months. The total delay  therefore, comes  to more  than three years and seven months;  and needless  to say  during this  period the appellants were  being haunted  by the  shadow of death over their heads.  No explanation is forthcoming for these unduly

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

long delays  and therefore,  the appellants can legitimately claim consideration  of the  above factor  in their  favour, but, then,  it has  also been  observed in Triveniben’s case (supra), relying upon the following passage from the earlier judgment of  this Court  in Sher  Singh vs.  State of Punjab (1983) 2 SCC 344:      "The nature  of  the  offence,  the      diverse   circumstances   attendant      upon  it,   its  impact   upon  the      contemporary   society    and   the      question whether the motivation and      pattern of  the crime  are such  as      are   likely   to   lead   to   its      repetition, if  the death  sentence      is vacated,  are matters which must      enter  into   the  verdict   as  to      whether  the   sentence  should  be      vacated for  the  reseon  that  its      execution is delayed." that  such   ccnsideration  cannot   be  divorced  from  the dastardly and diabolic circumstance of the crime itself.      Having given  our anxious  consideration to all aspects of this  case in  the light  of the above principles we feel that the  appellants do  not deserve  the extreme penalty of death, notwithstanding  the fact  that two  of the  murders, namely, that of the Commanding Officer and Second-in-Command were diabolically  planned and committed in cold blood. From the record,  particularly the  confessions made  by the  two appellants  which  formed  the  principal  basis  for  their conviction we  find that  the appellants  did not commit the above two  murders on  their own  volition prompted  by  any motive or  greed much  less, evincing  total  depravity  and meanness.  Indeed,  it  was  the  case  of  the  respondents themselves at  the GCM  - which has been accepted by us also in the  earlier appeal,  that Major  R.S. Budhwar  alongwith other Officers  of the Unit of the appellants instigated and compelled them to commit the above two murders by exploiting their religious  feelings. The record further indicates that 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. So far  as  the  murders  of  the  other  two  officers  are concerned we  find that  they became the unfortunate victims of circumstances  as they happened to be present at the time of the  incident. Another  mitigating factor  which  in  our opinion calls  for commutation of the sentence is that Major Budhwar  who   alongwith  another   officer   (since   dead) masterminded the  two murders were awarded life imprisonment whereas the  appellants who  carried out  their orders  have been sentenced  to death. In dealing with this aspect of the matter the  High Court however observed, as noticed earlier, that  the   appellants  committed  the  offences  while  the officers were  only abettors.  In our  considered view  in a case of  the present  nature which  relates to a disciplined force as the Army, the offence committed by the officers who conceived the  plan, was more heinous that of the appellants who executed the plan as per their orders and directions. It is of  course true  that those  orders being  not lawful the appellants, even  as disciplined soldiers, were not bound to 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 factor which persuades us to commute the sentence is the post  murder repentance  of the  appellants who not only surrendered before  the authorities within two days but also

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

spoke out  the truth  in their  confessional statements.  In fact, but  for their  confessional statements  the Officers, who were  the masterminimize, could not have been brought to book. None of the mitigating circumstances, as noticed by us above, were  taken into  consideration by the High Court. It was  obliged  to  consider  both  the  aggravating  and  the mitigating   circumstances   and   therefore   by   ignoring consideration of  the  mitigating  circumstances,  the  High Court apparently fell in error.      For the  foregoning discussion  we allow  those appeals and commute  the sentence  of death imposed upon each of the appellants to  imprisonment for  life,  for  the  conviction recorded against them.