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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.2035 OF 2012

EX­GUNNER VIRENDER PRASAD   ...APPELLANT(S)

VERSUS

UNION OF INDIA & ANR.    .... RESPONDENT(S)

J U D G M E N T   

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

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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 Gunner­Sushil Kumar, while, in

a state of sleep.  

The appellant contended that he shot the deceased in a

delusion of a militant attack, wherein he was firing in

retaliation. According to the appellant, he had no control over

his senses. In the said incident, the appellant fired a

complete magazine of rifle ammunition, which resultantly

caused the death of the deceased. The appellant thereafter,

came out of his tent and surrendered himself to his Senior

Authorities and confessed his guilt. Thereafter, investigation

was carried out and police registered the case and submitted

a challan before the Chief Judicial Magistrate, Rajouri.

However, on the request of the Army Authorities, the challan

and the appellant along with all the seized items was handed

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over to Army Authorities for trial. The appellant was charged

under Section 69 of the Army Act for committing a civil

offence of murder, contrary to  Section  302 of the Ranbir

Penal  Code.  A Court  Martial  was conducted and  in all  15

witnesses including a Psychiatrist was examined. In the

Summary General Court Martial, the appellant was found to

be guilty of murder and was sentenced to life imprisonment

and was dismissed from service.

Thereafter, the appellant challenged the said Judgment

and Order of conviction passed by the Court Martial, before

the Ministry of Defence and the Chief of Army Staff by filing

petition  under  Sections  164(2) and  165  of  Army  Act. The

same was dismissed by the Union of India vide order dated

22.05.2007. Thereafter, the appellant preferred a writ petition

in Delhi High Court, which was subsequently transferred to

the AFT on its formation. The AFT, dismissed the said appeal

filed by the present appellant vide the impugned order.

Hence, the present appeal.

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3. We have heard Mr.B.K.Pal, Ld. Counsel for the appellant

and Mr. Vikramjit Banerjee, Ld. Additional Solicitor General,

for Union of India.

4. We have perused the material placed on record.   Upon

perusal of  the judgment and order of conviction passed by

the  Court  Martial and confirmed  by the  AFT,  we find  no

reason to interfere with the findings of fact recorded by the

Court Martial as confirmed by the AFT thereby, holding, that

the appellant was liable to be convicted for the offence

punishable under Section 69 of the Army Act for committing

a civil offence of murder.

5. However, insofar as the sentence is concerned, we find,

that the case of the appellant deserves to be considered.   

6. This Court in the case of Santa Singh vs. The State of

Punjab1 has observed thus:

“The reason is that a proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances — extenuating or aggravating — of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the

1 (1976) 4 SCC 190

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rehabilitation of the offender, the possibility of return of the offender to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the  particular type of offence. These are factors which have  to be  taken  into account  by  the court in deciding upon the appropriate sentence….”

7. The same view has been consistently followed in various

judgments of this Court.  The recent one being, Gopal Singh

vs. State of Uttarakhand2.  No doubt, that this Court in the

case of  Union of India and others  vs.  Sadha Singh3 has

held, that Section 433­A of the Code of Criminal Procedure,

1973 (“Cr.P.C.” for short) 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.  In other words, if a person

is convicted for life, unless he has actually served 14 years’

sentence, he will not be entitled to be considered for release

by giving him benefit of remissions earned by him.   

2 (2013) 7 SCC 545 3 (1999) 8 SCC 375

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8. Taking into consideration the various factors, that are

taken into consideration by this Court in  Santa Singh

(supra), we find, that the case of the present appellant

deserves to be considered favourably.

9. Undisputedly, 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,

Dehradun, 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 433­A Cr.P.C. would also not

be applicable.  

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10. In the peculiar facts and circumstances of the case, we

are of the view, that the sentence already served by the

appellant is  much  more than  proportionate to the  offence

proved against him.   

11. In that view of the matter, while dismissing the appeal

we direct that the appellant be forthwith released from

custody.   

…....................CJI.                              [S.A. BOBDE]

                     .....................J.                                                   [B.R. GAVAI]

                      ......................J.

                                                 [SURYA KANT]

NEW DELHI; MARCH 18, 2020