Sachidanand Thakur vs Union Of India & Ors

O R D E R

We have heard the learned counsel for the parties.

The facts leading to this appeal are as under:

The appellant was enrolled in the Indian Army in the

year of 1978 and was deputed to an Artillery regiment. On

the 6th January, 2000 he along with two other Sentries,

Naik Sajimon and Lance Naik Shaiju, was on security duty as

the Guard Commander in the Technical Battery Area of 501 AD GP (SP). A 7.62 mm Self Loading Rifle bearing butt number

259 had also been issued to him alongwith 20 cartridges. It

appears that there was an incident of stone throwing on the

Guard Hut and the matter was reported to the Security JCO,

Naib Subedar Amrender Kumar. The JCO issued instructions

that a Quick Reaction Team be summoned. This Team reached

the Guard Hut at about 10.30 p.m. and the vehicle was

challenged by the Sentry on duty.

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The Members of the Team came out of the vehicle and

moved to the right and left as ordered to locate the

intruder who had thrown the stones. At this stage the

accused came running towards Naik Jityu Yadav, one of the

members of the Quick Reaction Team, followed by Naik

Sajimon KT who warned him that the person towards whom

he, (the accused) was running was one of the members of the

Quick Reaction Team and not to fire on him. Despite this

information however the accused fired three shots from a

distance of 8 to 10 ft. killing Naik Jityu Yadav at the

spot. He was quickly apprehended by PW.14 and the Security

JCO PW.6 and when questioned as to what he had done, he

replied `MAINE JO KARNA THA KAR DIYA'.

Keeping in view the aforesaid facts, the Court

Martial before whom the appellant was tried, held that the

shooting was a deliberate attack of murder and the appellant was accordingly guilty under Section 302 of the

IPC. He was accordingly sentenced to life imprisonment

along with several other penalties imposable under the

Army Act 1950.

A writ petition was thereafter filed in the Punjab

and Haryana High Court under Art. 226 of the Constitution

of India and several issues of law and fact were raised

before the Division Bench. The High Court vide its

judgment dated 23/12/2005 repelled all the arguments and

dismissed the writ petition and confirmed the findings of

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the Court Martial. A recall application was also moved

before the High Court which too was dismissed on 23rd November 2005. It is in this background that the matter is

before us in appeal.

Before us today Mr. D. Thakur, the learned counsel

for the appellant, has pointed out that from the facts of

the case it was apparent that the killing was an accident

and arose from a suspicion of a terrorist attack as

Ambala, being close to the Punjab State, also faced this

threat. He accordingly prays that a case under Section 302

was not made out.

Mr. P.P. Tripathi, the learned A.S.G. has however

submitted that the findings of fact recorded by the Court

Martial were very categoric and based on a correct

appreciation of the evidence and the High Court was

justified in rejecting a challenge to those findings as

interference by Courts in such matters was required to be

minimal.

We have considered the arguments advanced by the

learned counsel for the parties and have gone through the

record very carefully with their assistance. As already

pointed out the only argument raised by Mr. Thakur pertains

to the finding of fact with regard to the murder. We see

from the order of the Court Martial that the appellant had

fired three shots at the deceased, who was one of his

colleagues in the Army, and this incident had been

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witnessed by several Army personnel who had been posted

with the accused at that time. The fact that the shots had

been fired from 8 to 10 ft. has also been borne out by the observations of Dr. S. Sharma (PW.16) at the time of the

post-mortem examination. It is also clear that the fired

cartridge cases lifted from the site of the incident also

matched the weapon issued to the accused. If any doubt

still existed with regard to the culpability of the

appellant for murder it stands removed by the remark that

he made when apprehended, `MAINE JO KARNA THA KAR DIYA'.

It is also apparent from the evidence of PW.14 that

he had cautioned the appellant that the person he was

chasing was in fact a member of the Quick Reaction Team and

that he should not fire on him but despite this warning

the appellant fired three shots. We are, therefore, of the

opinion that no error can be found with the findings of

fact recorded by the Court Martial and upheld by the High

Court. This Court would not, in these circumstances,

interfere in the assessment.

We accordingly find no merit in this appeal. It is

accordingly dismissed.

.................J. (HARJIT SINGH BEDI)

....................J. (CHANDRAMAULI KR. PRASAD) New Delhi, October 19, 2010.