B.K. Sharma, J.
1. The petitioner, presently languishing in jail, is aggrived by the order of penalty imposed on him, in terms of which, he has not only lost his job as Rifleman but is also serving the sentence of life imprisonment.
2. The petitioner was enrolled in the Assam Rifle way back in 1982 (26.5.1982). On the crucial date i.e. the date on which the order of penalty of dismissal from service and life improsonment was passed, he had to his credit 17 years and 27 days of service.
3. In an otherwise unblemished service carrier, the petitioner was taken up for a general court-martial in the year 1999, with the charge of committing a civil offence i.e. murder under Section 302 IPC and attempt to murder under Section 307 IPC. The charge sheet (Annexure-A) is qouted below:
The accused, No. 41055IF Rfn./Gd Utpal Saikia of 4 Assam Rifles, a person subject to Army Act as Sepoy under Section 4(I) thereof, read with SRO 117 dated 28 Mar 60 SRO 318 dated 06 Dec., 62 as amended by SRO 325 dated 31 Aug., 77, is charged with:
First Charge Committing a Civil Offence
Army Act that is to say murder, cont-
Section 69 rary to Section 302 of Indian
Penal Code,
In that he,
at field, on 1 Oct. 98 by intentionally causing the death of No. 411570 K. Rifleman (General duty) Rudra Bahadur Chhetri of the same unit, committed murder.
Second Charge Committing a Civil Offence,
Army Act that is to say, murder, cont-
Section 69 rary to Section 302 of Indian
Penal Code,
In that he,
at field, on 01 Oct. 98, by intentionally causing the death of No. 410538 H. Havildar (General duty) L. Kashipri of his unit committed murder.
Third Charge Committing a Civil Offence
Army Act that is to say attempt to mur-
Section 69 der contrary to Section 307 of
the Indian Penal Code,
in that he,
at field on 01 Oct. 98, did an act, to wit fired from a AK-47 Rifle at No. 410125Y. Havildar (General duty) Ganesh Bahadur Khawas of the same unit
and thereby wounded him with such intention and under the circumstances that if by the same act he had caused death of No. 410125 Y. Havildar (General duty) Ganesh Bahadur Khawas, he would have been guilty of murder.
4. In the proceeding, the prosecution examined 16 witnesses as against two witnesses by the petitioner as defence witnesses. On conclusion of the proceeding, the Presiding Officer recorded his finding vide Annexure-B dated 16.6.1999 holding the petitioner guilty of all the three charges with the exception in respect of charge No. 1 in respect of which the petitioner was held not guilty of committing murder, but guilty of committing culpable homicide not amounting to murder punishable under first part of Section 304 IPC.
5. In consideration of the materials on record including the aforesaid finding, the petitioner was imposed with the sentence to suffer imprisonment for life coupled with dismissal from service. The sentence was announced on 16.6.1999. Being aggrieved, the petitioner had approached this Court by filing the writ petition being WP(Crl.) No. 8/2000. The writ petition was disposed of by order dated 9.1.2001 providing disposal of the statutory appeal to be preferred by the petitioner. The appeal having been disposed of without any interference with the sentence, the petitioner has preferred the instant writ petition.
6. Altogether two persons were killed by the petitioner and the third one was injured by him. In this judgment and order, they are referred to as deceased No. 1 and 2 and the injured. Incidentally, the injured was the defence witness supporting the case of the petitioner in the general court-martial proceeding. So far as deceased No. 1 namely Rudra Bahadur Chhetri is concerned, the finding is that the petitioner is not guilty of committing murder, but guilty of committing culpable homicide not amounting to murder punishable under Part-I of Section 304 IPC. However, in case of deceased No. 2 namely Habildar L. Kashipri Mao, the charge of committing murder under Section 302 IPC has been held to have been proved. Since the charge of committing murder under Section 302 IPC has been held proved, the petitioner has been imposed with the penalty of imprisonment for life.
7. Mr. R.P. Sharma, learned Sr. Counsel, assisted by Mr. A. Nath and Mr. M. Adhikari, learned Counsel for the petitioner, in his short but persuasive arguments submitted that the elements and grounds, presence of which have persuaded the Presiding Officer to hold that the offence committed under charge No. 1 does not come within the purview of Article 302 IPC, but comes under first part of Section 304 IPC being present in respect of charge No. 2 as well, the Presiding Officer could not have held the said charge proved under Section 302 IPC. He further submitted that in fact the offence committed by the ptitioner could at best be punishable under Section 304 Part-II IPC with maximum sentence of 10 years imprisonment and the petitioner having already served more than 8 years of imprisonment, he is entitled to come out of the jail. In support of his argument, he has placed reliance on the decision of this Court as reported in 2007 Crl. L.J 4599 (Gauhati High Court)(Amolok Singh v. State of Tripura).
8. Mr. N. Bora, learned CGSC on the other hand supporting the penalty imposed on the basis of the findings recorded submitted that the petitioner has been rightly awarded with the penalty of life imprisonment. He submitted that the gravity of the offence committed by the petitioner in respect of the deceased No. 2 will have to be judged going by the circumstances as has been discussed by the Presiding Officer of the General Court-martial.
9. I have carefully gone through the entire records of the case. I have also considered the rival submissions made by the learned Counsel for the parties. The charges leveled against the petitioner, needless to say, are very serious in nature. In fact, learned Counsel for the petitioner did not seriously argue towards absolving the petitioner from the charges. The only argument advanced was to the effect that the ingredients and the evidence relating to the charge No. 1 being the same in respect of charge No. 2, the findings recorded by the Presiding Officer so as to hold the petitioner guilty of murder under Section 302 IPC in respect of charge No. 2 is perverse and based on no evidence and that the petitioner at best be punished under Section 304 Part-II IPC.
Firing of shots by the petitioner on the two deceased and the injured is an admitted fact. The only question before the Court (GCM) was as to whether the petitioner exceeded his right of self defence and that as to whether the provocation meted out to the petitioner by the deceased was which justified so grave the action of the petitioner. The finding of the GCM is that the petitioner exceeded his right of self defence and that his case is also not covered by Exception-II of Section 300 IPC. It has been held that the action of the petitioner in respect of charge No. I comes under Exception-I of Section 300 IPC. Under Exception-I of Section 300 IPC culpable homicide is not murder if the offender, whilst deprive of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Exception-II speaks of culpable homicide being not murder, if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without pre-meditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
10. Both the deceased Nos. 1 and 2 died of the same incident and the injured also sustained injuries of the same incident. It is not a case of committing murder by the petitioner of the deceased Nos. 1 and 2 with any premeditation. The Presiding Officer himself has recorded the same in his finding. As recorded in the finding, the petitioner on the fateful day i.e. 1.10.1998, after taking his dinner returned to his barrack, put on the mosquito net and lied down on his bad. Till then everything was normal. It was the deceased No. 1 who picked up an argument with the petitioner over a petty matter. Inspite of the request of the petitioner to discuss about the matter next day and making it clear to the deceased No. 1 that he was tired and wanted to take rest, the deceased insisted for sorting out the matter then and there. Not only that he came nearer to the bed of the petitioner and boxed him twice. Thereafter, scuffle ensured.
11. It was the injured (DW-2), who tried to intervene, but the deceased instead of stopping hitting the petitioner continued with the task. Being helpless, the petitioner told the deceased about his intention to go to the Commandant with a view to report the matter. It was at that stage the deceased No. 2, the Platoon Havildar, the seniormost officer in the barrack emarged and instead of helping the petitioner and stopping the deceased No. 1 aggravated the situation engaging himself in the beating of the petitioner. He also threatened the petitioner with the remark that the petitioner would not report the matter and that he (describing himself as the father of the petitioner) would stand on his way.
12. As recorded by the Presiding Officer, the petitioner was beaten up severely by both the deceased. Somehow he could free himself from the clutches of the deceased and ran away from the barrack to the nearby Dhobi shop. Even there also, he was beaten up by the deceased as a consequence of which he fell down on the ground. The petitioner returned to the barrack after about 4/5 minutes. When he was approaching the bed, he was again confronted by the deceased No. 1 and was pushed, as a consequence of which, the petitioner fell down on his cot and he subconsciously picked up his weapon and pointed the same to the deceased No. 1 to scare him. When there was no reaction of the deceased No. 1 to that and he did not stop advancing towards the petitioner and came closure to him, the petitioner fired at him.
13. With the above evidence on record as has been discussed by the Presiding Officer, the question necessarily comes up for consideration is as to whether the petitioner fired the shot for self defence adduce to the provocation and as to whether he exceeded his right of self defence or the provocation was so grave to justify the action to the extent possible. According to the Presiding Officer, the petitioner acceded the same. Consequently, it has been held that the act of the petitioner, which resulted the death of the deceased No. 1 does not come under Exception-H to Section 300 IPC. The Presiding Officer in his finding has held that the beating of the petitioner by the deceased No. 1, six years junior to him in presence of the deceased No. 2 was sufficient to cause grave and sudden provocation. However, a presumption has been drawn that since there was a gap of 4/5 minutes, same might have been sufficient for the petitioner to cool down. However, when the petitioner was again assaulted by the deceased No. 1 upon his return from Dhobi shop, same led to loss of self control due to grave and sudden provocation and the petitioner acted in a state of mind when he was deprived of his self control. With this finding recorded by the Presiding Office, the petitioner has been held guilty of committing culpable homicide not amounting to murder under first part of Section 304 IPC.
14. The question for determination on the basis of the evidence on record is as to whether the aforesaid finding of the Presiding Officer is equally applicable in respect of the charge No. 2 relating to deceased No. 2 and as to whether on the basis of the evidence on record it is a case under Section 304 Part-II IPC. It is in evidence that the deceased No. 2 was a Gold Medalist Boxer and had threatened to kill the petitioner. Unlike the charge No. 1, the Presiding Officer has not discussed the evidence on record in respect of charge No. 2. Only finding recorded is that at the time of firing the shot at the deceased No. 2, there was no occasion for the petitioner to excercise his right of self defence against the deceased No. 2. It is in this context, learned Counsel for the petitioner argued that to that extent the finding recorded by the Presiding Officer is perverse and not on the basis of the evidence on record.
15. The Presiding Officer in his finding inspite of recording that the act of the deceased No. 2 in beating the petitioner and passing the aforesaid remarks were sufficient to provoke a reasonable man, has held that since there was a time gap, which could have been sufficient for the petitioner to cool down, the case of the petitioner in respect of charge No. 2 does not come within the purview of Exception-I to Section 300 IPC. PW 2 in his deposition categorically stated that it was not only deceased No. 1, but deceased No. 2 as well gave blows to the petitioner. He followed the petitioner when he ran out of the barrack. Even outside the barrack both the deceased gave further blows to the petitioner, which the DW-2, the injured, could see being on the spot. As per his statement the petitioner had fallen down near the Dhobi shop, but the deceased continued to hit him.
16. PW-3 also stated the same thing. PW 9, in his deposition corroborated the statement of the DWs to the effect that both the deceased had beaten up the petitioner and chased him upto the Dhobi shop, where he was again beaten up. He also stated about the scuffles between the petitioner and the deceased. In fact, all the witnesses including the DWs in their statements while narrating the incident have not attributed any pre-determination on the part of the petitioner to kill the deceased. What has revealed from the evidence is that both the deceased were responsible in beating the petitioner inside the barrack as well as outside. The petitioner could not even save himself from such beating running out of the barrack. It is clearly on evidence, which also finds mention in the finding of the Presiding Officer that the petitioner ran out of the barrack to save himself, but was followed by both the deceased. He fell down on the ground near the Dhobi shop and even in that condition he was further beaten up. Even after return to the barrack both the deceased advanced towards him.
17. There might not have been any personal overt act on the part of the deceased No. 2 after the gap of 4/5 minutes when the petitioner returned to the barrack, but certainly there was overt act on the part of the deceased No. 1, which was duly supported by the deceased No. 2. It will have to be born in mind that the deceased No. 1 was junior to the petitioner and the deceased No. 2 was the Platoon Havildar and senior most in the barrack. He was also a Boxer with gold medal to his credit. The beating of the petitioner by both of them, which is an admitted position led to the kind of situation in which Exceptions I, II and IV to Section 300 IPC was created. Inspite of the finding recorded by the Presiding Officer that the circumstances were sufficient to provoke a reasonable man, the Presiding Officer solely on the ground of there being a gap of 4/5 minutes has held that the petitioner is not entitled to the benefit of Exception-I to Section 300 IPC in respect of charge No. 2. I am of the considered opinion that the finding recorded by the Presiding Officer is perverse to that extent and is not based on evidence.
18. When the evidences are overwhelming that the charge No. 2 also comes within the purview of Exception-I to Section 300 IPC, I see no reason as to why a different finding should be recorded in respect of the said charge. The incident was one and the same. There was no overt act on the part of the petitioner so as to provoke the deceased. It was rather other way round. The deceased No. 2 not only supported the assault meted out by the deceased No. 1 to the petitioner, but also engaged himself in such assault. He was a gold medalist Boxer. The fear in which, the petitioner ran away from the barrack did not yield any sympathy from the deceased No. 2, rather he followed him to the Dhobi shop where due to the assault of both the deceased, the petitioner fell down on the ground. After his return to the barrack, the deceased No. 1 again attacked him in presence of the deceased No. 2. It was a collective action on the part of both the deceased. In such a situation, if the action of the petitioner comes within the purview of Exception -I to Section 300 IPC making him guilty of committing culpable homicide not amounting to murder punishable under first Part of Section 304 IPC as has been held by the Presiding Officer, I see no reason as to why same should not be the case in respect of charge No. 2 as well. The finding of the Presiding Officer being contrary to the evidence on record is perverse and liable to be interfered with.
19. Evidences on record clearly establish that it is a case of committing offence punishable under Section 304 Part-II IPC. The petitioner was severely beaten up by both the deceased and even after return to the barrack, he was threatened by the deceased No. 1 with the support of the deceased No. 2. After the beating and in the situation in which the petitioner and pushed him, the state of mind in which the petitioner was in, can well be understood. In such a situation, not only exception I, but Exception- II and IV of Section 300 IPC as well, would come into play.
20. Once it is held that the charge No. 2 could not have been brought within the purview of Section 302 IPC and that the petitioner is guilty of committing culpable homicide not amounting to murder, punishable under second part of Section 304 IPC, the consequence will be to award him punishment as provided for that. The decision on which, the learned Counsel for the petitioner has placed reliance lends support to the case of the petitioner. As in the instant case, in the said case also, the accused was charged and convicted under Section 302 IPC and was sentenced for life imprisonment with fine of Rs. 20,000/-. The accused in that case fired shots at his Platoon Commander preceded by quarrel between the appellant and the said Commander. As in the instant case, in the said case also the appellant, after taking meal was sleeping when he was abused by the Platoon Commander and also threatened him of reporting his absence to the higher authority. Because of such provocation, the appellant went to the guard room, took his arm and fired at the Commander. The bullet not only hit him but also hit another, as a result of which both died. The Division bench of this Court considering the fact that there was no previous enmity and/or ill will between the appellant and the deceased and that there was no pre-meditation rather the incident took place in the heat of passion, held that the appellant was not guilty of committing murder Section 302 IPC but guilty of an offence punishable under Section 304 Part-II. Consequently, the sentence of life imprisonment was reduced to imprisonment for six years.
21. In the present case the situation and/or the mental state of mind in which the petitioner was in when he fired the shots was much more graver. Both the deceased gave blows to the petitioner. Not only that, they also chased him when he ran out of the barrack to save himself from such onslaught. Even after return, the deceased No. 1 again assaulted the petitioner in presence of the deceased No. 2. Everything happened within 4/5 minutes and naturally, the petitioner was under mental shock and grave provocation. Irrespective of exceeding the right of private defence, he was also within his right to exercise the right. There was also provocation meted out to him by the deceased persons. The Presiding Officer has discussed these aspects of the matter. However, contrary to the evidence on record he has returned the perverse finding that the petitioner is guilty of culpable homicide not amounting to murder under Section 304 Part-I. In such a situation I have no hesitation to hold that the petitioner is not guilty under Section 302 and 304 Part-I, but guilty under Section 304 Part-II IPC.
22. Once it is held that the petitioner is guilty under Section 304 Part-II IPC, the sentence imposed on him necessarily will have to be modified. The maximum punishment prescribed for committing an offence under Section 304 Part-II is 10 years. The petitioner is in jail since the date of his conviction and sentence imposed by the impugned order dated 16.6.1999. Even prior to that he was in custody for 258 days. As per the statement furnished as to the character and antecedent of the petitioner, it was certified by the Commandant by his report dated 16.6.1999 that the petitioner's general character was otherwise very good. As per the said report he had no Red Ink Entry in his service career. As noticed above, there was no pre-meditation on the part of the petitioner to commit the offence. At the time of filing the writ petition, he was 39 years of age. He is married with the responsibility of his wife and two daughters, who were 13 and 9 years of age studying Class-VIII and IV respectively at the time of filing of the writ petition.
23. From the date of conviction and sentence i.e. 16.6.1999 and taking into account the 258 days of military custody during trial, the petitioner has already spent more than 9 years in jail. In the given facts and circumstances, I am of the considered opinion that the ends of justice would be met if the sentence is continued to the period already undergone in jail.
24. In view of the above, while not wholly interfering with the conviction, sentence and the penalty of dismissal from service, the conviction and sentence are modified to the extent indicated above. In other words the conviction of the petitioner is modified to Section 304 Part-II with the sentence of imprisonment for the period, which the petitioner has already undergone. The petitioner be freed from jail forthwith.
25. The writ petition is allowed to the extent indicated above, without, however, any order as to costs.
.