Om Prakash vs Union Of India & Ors

3. The facts necessary to be exposited for adjudication of this appeal are that on 3rd of April, 2006, a ‘Barkhana’ was organized at 85, Armoured Regiment to bid farewell to the outgoing Risaldar, Major Madan Lal. At the Barkhana venue some heated arguments took place between the appellant and Risaldar, Nand Lal Prasad, PW5, and in course of argument said Nand Lal Prasad slapped the appellant. However, the matter was defused with the intervention of Major Raj Nandan, PW4, who instructed Lance Dafdar Anil Kumar, PW6 and Lance Dafadar Murari Singh, PW7, to take the accused to his living barracks of Headquarter Squadron.

4. As per the prosecution version during the altercation and assault between the accused and Nand Lal Prasad, deceased Dafadar Ram Pratap had tried to intervene and was abused by the accused. After the accused had left for the barracks of the Headquarter, about 12.30 a.m., Sowar Balwinder Singh, PW6, came to the line after finishing his duties allotted to him, and after entering the room switched on the light and found Dafadar Ram Pratap was lying in a pool of blood and blood was also oozing out from his mouth. He was immediately shifted to the Army Hospital where he was declared dead. About 1.30 a.m. on 4.4.2006, information was received from the police station Babina by the 85, Armoured Regiment that a person belonging to their regiment had surrendered at the police station and stated that he had stabbed one person with a knife. On receipt of the said information, the concerned J.C.O. was sent to the police station where he saw that Dafadar Om Prakash was present. After receiving the information from the J.C.O., the Commanding Officer, Col. Rajiv Chib, PW27, along with Lt. Col. Atul Kumar Bhat, PW15, reached the police station Babina about 1.50 a.m. and enquired from the accused about the details to which he confessed that he had stabbed the deceased. Thererafter, an F.I.R. was lodged by the Adjutant Captain Abhishek, PW3, and the accused was handed over to the Military Police. As the narration would further unfurl, the proceedings of the General Court Martial (GCM) under the Army Act was initiated by order dated 8.10.2006 passed by Major General A.K. Singh, General Officer Commanding, 31st Armoured Division.

5. Be it noted, the accused was charged for the offences under Section 302 of I.P.C. for intentionally causing death of Ram Pratap of his unit, but subsequently stood convicted for culpable homicide not amounting to murder under Part-II of Section 304, I.P.C. As is demonstrable, the prosecution in order to substantiate the charge had examined as many as 31 witnesses and during the court martial number of documents were exhibited. The Court Martial relied on Exbt. 36 which was recorded at the time of summary of evidence wherein the accused had admitted that the deceased and he were involved in a fight. He had also stated that the deceased in the room had abused him and tried to kick him but failed in the attempt and when the accused stood up on ‘charpai’ the deceased boxed him on the face and at that time he pushed him back with both hands as a result of which he fell on the box and was hurt on his back. As the statement further proceeds, the deceased left the room and came back within five minutes. The accused, in the meantime, had picked up the knife from the locker and kept it on the box. While he was sitting in the ‘charpai’ the deceased came into the room and caught hold of the neck of the appellant and pulled him towards his own locker. The appellant got hold of the knife and stabbed the deceased on the chest so that he would leave his neck. Apart from the aforesaid, a confessional statement made by the accused to Col. Rajiv Chib, Commanding Officer of the regiment, PW27, at police station that he had stabbed the deceased was also given credence to. The testimony of Lt. Col. Atul Kumar Bhat, PW15, who had witnessed the confession was also taken into consideration. In addition, during the court martial the corroborating statement of Court Witness No. 7 Naib Subedar J.M. Sharma, wherein the accused had stated to CW-7 at Police Station on 4th of April, 2006 about the incident that was caused due to anger and intoxication, was also exhibited. The GCM also believed that part of the testimony of CW-7 wherein he had stated that from the condition of dress worn by the accused, it appeared that he was involved in a quarrel, for the accused had a minor bruise on his right temple of the head. The GCM referred to the evidence of Major (Dr.) M.C. Sahoo, PW1, and Dr. R.K. Chaturvedi, PW28, who had deposed that the stab wound injury inflicted on the chest of the deceased was sufficient in ordinary course of nature to cause death. The GCM also took certain circumstances, namely, that the deceased was lying on the floor in a pool of blood; that the accused was found lying on the ‘charpai’ in the room in an injured condition; that he was present in the room and eventually held thus:-

Dafedar Ram Pratap kicked me, but it hit the Charpoy. He said “Madarchod Raste Me Charpoy Dal Kar So Raha Hai”. As soon, I stood up on the Charpoy, be boxed me on my face. At that time I pushed him back with both hands. He fell on the box. His vest got torn and was hurt on his back.

12. Thereafter, Dafedar Ram Pratap went out of the room. He came back to the room after approximately 5 minutes. I picked up my knife from locker and kept it next to me on the box. I kept sitting on the Charpoy. He came back to room and got hold of my neck and pulled me towards his own locker. Meanwhile, I was hit by a stick on my shoulder. I got hold of the knife and stabbed him (Dafedar Ram Pratap) on the chest so that he would leave my neck. He fell on the ground between the two charpoys.”

15. In view of our aforesaid analysis, we find no merit in the appeal and accordingly the same stands dismissed.