MA 2250 of 2012 and TA 25 of 2012 (Arising out of SWP 160 of 2007). Case: Mangal Singh Vs Union of India. Armed Forces Tribunal
|MA 2250 of 2012 and TA 25 of 2012 (Arising out of SWP 160 of 2007)
|For Appellant: Mr. Varun Bath, Advocate for Mr. Ramesh Kumar, Advocate and For Respondents: Mr. S.K. Sharma, Sr. PC
|Vinod Kumar Ahuja, J. (Member (J)) and Lt Gen (Retd.) N.S. Brar, Member (Ad.)
|Armed Forces Tribunal Act 2007 - Section 15; Indian Penal Code 1860, (IPC) - Sections 299, 300, 302, 304
|February 13, 2014
|Armed Forces Tribunal
(Regional Bench At Chandimandir)
The present writ petition in the nature of Certiorari was filed for quashing the findings and sentence dated 30.03.2006 passed by the General Court Martial vide which the petitioner has been held guilty under Section 302 IPC and was sentenced as under:-
i) To suffer imprisonment for life;
ii) To be dismissed from service.
The petitioner had prayed that the respondents should reinstate him with all consequential benefits. The writ petition was registered as a TA on establishment of this Tribunal.
We have heard the learned counsel for the parties.
The present petition was filed in the nature of writ petition and there was no provision for an appeal. However, on the establishment of this Tribunal in the present writ petition having been entertained by this Court as a TA, it has been treated as an appeal under Section 15 of the Armed Forces Tribunal Act, 2007 and there has to be re-appraisal of the evidence led by the prosecution also.
During the course of arguments, learned counsel for the petitioner had not disputed the question that the petitioner had committed the murder of the deceased Sepoy Gurjant Singh on 28.11.2003 at Binaguri, West Bengal. The only challenge made to the judgment was that the findings of General Court Martial holding the petitioner guilty under Section 302 IPC are not sustainable in the eyes of law since the offence proved against the petitioner was one under Section 304 IPC and, therefore, the sentence imposed, deserves to be modified and converted from Section 302 IPC to one under Section 304 IPC and to be reduced accordingly.
The submissions made by learned counsel for the petitioner were that the petitioner never intended to kill deceased Gurjant Singh. It was not disputed that the petitioner wanted to kill PW 3 Sepoy Hardial Singh but in the darkness of night he mistook the deceased Gurjant Singh as Hardial Singh and accordingly the death of the deceased was caused by mistake.
To appreciate the above plea and being the first Court of appeal a reference has to be made to the evidence though the findings holding the petitioner guilty have not been challenged by the petitioner.
To substantiate its case, the prosecution had examined 19 witnesses.
PW 3 Hardial Singh has stated that he was on duty on 23.11.2003 and he handed over the charge of his duty to the accused/petitioner. After conclusion of his duty he was resting on his bed. After 10-15 minutes the accused came inside the tent and started imitating and teasing him. He started pulling his blanket and was also slapping on his face. After some time he was unable to bear any further he went to the Guard Commander Naik Naib Singh and reported the matter to him. He came back to his tent. The accused came to the tent after some time and started teasing and troubling him. He reported the matter to the Guard Commander who asked...
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