Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : April 21, 2014
Judgment Pronounced on : April 30, 2014
+ W.P.(C) 2575/2003
DINESH KUMAR ..... Petitioner
Represented by: Mr.Ankur Chhibber, Advocate
Versus
UOI & ORS. ..... Respondents
Represented by: Ms.Richa Kapur, Advocate with
Ms.Saahila Lamba, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
PRADEEP NANDRAJOG, J.
1. The petitioner was enrolled as a follower (Washer man) in BSF on
rd
June 13, 1986. In the month of December, 2000 he was detailed to the 93
Battalion of BSF which was deployed on Forwarded Defended Locality
Khera-II (Here-in-after referred to as the ‘FDL-II’), Kashmir.
th th
2. In the intervening night of the 10 and 11 December, 2000, the
petitioner, Ct.Dharampal Singh (hereinafter referred to as the ‘Deceased’)
and Ct.S.Murmu were detailed to perform sentry duty at FDL-II from
12.00 midnight to 03.00 hrs. As per the detailment, the petitioner was to
perform duty at the upper morcha, Ct.S.Murmu was to station himself at
the telephone point and the deceased was to station himself at a water
WP(C) No.2575/2003 Page 1 of 18
tank. At around 01:10 hrs. the deceased was found shot dead with wounds
on his head.
3. The same day i.e. December 11, 2000, an FIR No.187 for an
offence punishable under Section 302 IPC was registered at the local
police station. A DD entry was made in the Daily Diary Register
maintained at FDL-II by BSF officers. Since the needle of suspicion was
pointing towards the petitioner in as much as the self loading rifle issued
to him was detected having been recently used and rounds of bullets from
the magazine issued to the petitioner were found used, the petitioner was
placed under close arrest. The next day i.e. on December 12, 2000, the
DIG, BSF, Rajouri Sector, J&K constituted a one man Staff Court of
Inquiry presided over by Deputy Commandant M.C.Pandey who
submitted a report on December 19, 2000 opining that the deceased died
as a result of gun shot fired at him by the petitioner. The report was
placed before the DIG, BSF, Rajouri Sector, who prima facie agreed with
the findings of the Staff Court of Inquiry and directed that admissible
family pension be paid to the family of the deceased and that action be
taken as per law against the petitioner. The file was placed before the IG,
BSF, Jammu who on January 04, 2001 agreed with the opinion of the
Staff Court of Inquiry and the remarks of the DIG, Rajouri Sector. He
wrote that strict disciplinary action be taken against the petitioner.
4. As per Rule 45 of the BSF Rules, 1969 the Commandant was
required to conduct proceedings pertaining to hearing of the charge. The
record would evidence that the Commandant did so on January 19, 2001
and after hearing the witnesses and the petitioner directed a Record of
Evidence to be drawn up.
WP(C) No.2575/2003 Page 2 of 18
5. At the Record of Evidence, the department examined eight
witnesses viz. SI S.B.Ram PW-1, HC S.V.Kamble PW-2, Ct.Kajal Singha
PW-3, Ct.S.Murmu PW-4, Sub.N.K.Singh PW-5, L.Nk. Sankar Haldar
PW-6, Dr.Amar Nath Roy PW-7 and SI/Clerk B.M.Gupta PW-8.
6. SI R.B.Ram PW-1, stated that on December 10, 2000, along with 7
ORs he had left FDL-II post to lay an ambush at Chuha Gali. Before
leaving the post he had briefed HC S.V.Kamble who was the senior most
NCO to remain careful and perform duty cautiously. On December 11,
2000 at about 03.00 A.M. he received information by wireless to report
back to the Coy Headquarters. On returning he learnt that a firing incident
had taken place at FDL-II post. Along with his party he proceeded to FDL
post where he saw the deceased lying on the ground in a pool of blood and
the petitioner was sitting at a nearby place under escort. On making
enquiry he learnt that the petitioner had fired a shot at the deceased since
the deceased had objected to the petitioner making tea in the night at the
duty post. He assisted Major Gill in conducting investigation at the spot.
HC S.V.Kamble brought the SLR issued to the petitioner and gave it to
Major Gill. The petitioner had been issued five magazines containing
hundred rounds. HC K.V.Kamble and he counted the ammunition and
found ninety seven live rounds and one empty fired case from the pocket
of the petitioner. After sometime senior officials came and made enquiries
from jawans about the incident.
7. HC S.V.Kamble PW-2, stated that after his team completed guard
duty at FDL-II at 12.00 mid-night the petitioner, the deceased and
Ct.S.Murmu replaced them for guard duty at 12.00 mid-night. At about
01.00 hrs. he was woken up by Ct.S.Murmu who informed him that the
WP(C) No.2575/2003 Page 3 of 18
petitioner wanted to make tea for himself during duty hours. He told
Ct.S.Murmu that the petitioner should not be allowed to make tea since
lighting fire would expose the position of FDL which would be contrary
to the existing instructions issued with regard to duty at FDL. Thus,
Ct.Murmu and the deceased did not allow the petitioner to light a fire to
prepare tea due to which there might have been some hot
discussion/heated arguments between Ct.Murmu, the deceased and the
petitioner. Soon thereafter on hearing loud voices he came out of his
bunker and saw that Ct.S.Murmu and the deceased were present at their
place of duty whereas the petitioner was going towards his place of duty.
He told the deceased that in case the petitioner again tried to prepare tea
by lighting fire he should be allowed to do so for the reason the
Commandant was likely to visit the post the next day and the report
pertaining to the indiscipline of petitioner could be submitted to him. He
returned to his bunker. At about 02:00 hrs. he heard the sound of a bullet
fire. Soon thereafter Ct.S.Murmu rushed inside his bunker and informed
him that the petitioner had fired a shot from his SLR at the deceased. He
immediately came out of his bunker and saw the petitioner standing near
the deceased who was lying on the ground in a pool of blood and appeared
to be dead. He snatched the SLR from the petitioner and informed
Inspector N.K.Singh the Coy Commander of the incident. Senior officers
reached the spot.
8. Ct.Kajal Singha PW-3, stated that on December 10, 2000 after he
and HC S.V.Kamble and Ct.S.Karkatta completed guard duty at FDL-II
they were replaced by the petitioner, the deceased and Ct.S.Murmu. After
about 1-1½ hours he woke up on hearings some loud voices and at once
WP(C) No.2575/2003 Page 4 of 18
went outside the bunker. HC S.V.Kamble was present there and the
deceased was lying on the ground in a pool of blood. He learnt that the
petitioner had fired a round from his SLR at the deceased. HC
S.V.Kamble took the SLR from the hand of the petitioner. The petitioner
told him that he wanted to kill the deceased because he had prevented him
from lighting a fire and prepared tea.
9. Ct.S.Murmu, PW-4, stated that on December 10, 2000 the
petitioner, the deceased and he were detailed to perform night guard duty
at FDL-II from 12.00 mid-night to 03:00 hrs. As per the detailment he
was to be stationed at the telephone point, the petitioner was to be
stationed at upper morcha and the deceased at the water tank. At about
01:00 hrs. the petitioner came down from the morcha and said that he
wanted to make tea. He and the deceased cautioned the petitioner not to do
so since their position would be exposed to the enemy. The petitioner
insisted and tried to light a fire. The deceased pulled petitioner back.
Apprehending that a quarrel might in sue between the petitioner and the
deceased he went to the bunker of HC S.V.Kamble and informed him
about the nuisance created by the petitioner whereupon HC S.V.Kamble
came out of his bunker. By that time the petitioner and the deceased had
gone back to their respective points/places of duty. HC S.V.Kamble went
back to his bunker. After sometime the petitioner lit a fire near crawl
trench and prepared tea. This time the deceased and he did not prevent the
petitioner from making tea because the petitioner was not likely to listen
to them. After preparing tea the petitioner went back to his morcha. After
sometime the petitioner again came down and told him that he was going
out to answer the call of the nature and went outside. After about 10
WP(C) No.2575/2003 Page 5 of 18
minutes the petitioner came back and told him that he was going to his
place of duty at the upper morcha. At that time the deceased was seated on
the wall of the water tank with his LMG. Hardly 1-2 minutes thereafter he
heard the sound of bullet fire. In the moon-light he also saw the deceased
lying on the ground with the petitioner nearby probably 4 to 5 feet away
with his SLR in his hand. Realizing that the petitioner had fired he
jumped into the adjacent crawling trench and went to the bunker of HC
S.V.Kamble and informed him of the incident. HC S.V.Kamble
immediately proceeded to the spot and disarmed the petitioner. Soon
thereafter several senior officers came. As directed by Major Gill HC
S.V.Kamble searched the magazines and the rounds issued to the
petitioner whereupon they learnt that ninety seven rounds were in the five
magazines issued to the petitioner. One empty fire case was recovered
from the pocket of the petitioner.
10. Sub N.K.Singh PW-5, stated that when he reached the place of the
occurrence on being informed of the incident the petitioner told him that
he had killed the deceased because he was prevented from preparing tea.
He deposed that ninety seven rounds and one empty fired case was
recovered from the petitioner.
11. L.Nk.Sankar Halder PW-6 stated that the SLR which was handed
over to him by HC S.V.Kamble was issued to the petitioner as also five
magazines containing hundred rounds.
12. Dr.Amar Nath Roy PW-7, stated that on December 10, 2000 at
about 02:30 hrs. he was informed over telephone by the Commandant of
rd
the 93 Battalion about the incident in question pursuant whereto he went
WP(C) No.2575/2003 Page 6 of 18
to FDL-II where he examined the deceased and declared him dead. The
apparent cause of death was gunshot wounds in the skull. He removed the
body to the Civil Hospital for post-mortem.
13. SI/Clerk B.M.Gupta PW-8, stated that a special report regarding the
incident in question was sent to the Sector Headquarters and that an FIR
was lodged in respect of the incident in question.
14. The petitioner chose not to make any statement before the
Recording Officer.
15. Considering the Record of Evidence the Commandant directed the
petitioner to be tried at a General Security Force Court. The file was
placed before the IG, BSF, Jammu Frontier who passed an order on
February 05, 2002 constituting the General Security Force Court.
16. In the meanwhile, the local police filed a charge-sheet before the
concerned Magistrate. On a warrant issued, the petitioner who was in
force custody was directed to be produced before the learned Magistrate
on February 27, 2001, on which date the learned Magistrate sent the
petitioner in judicial custody to the District Jail, Poonch and committed
the case to the Sessions. The department filed a revision petition before
the District & Sessions Judge, Poonch against the decision of the
Magistrate committing the case to the Sessions. Vide order dated
November 16, 2001 the District & Sessions Judge, Poonch transferred the
FIR to the BSF authorities for the petitioner to be tried at the General
Security Force Court.
WP(C) No.2575/2003 Page 7 of 18
17. The record, original whereof was produced before us would
evidence that the arraignment before the General Security Force Court
took place on February 12, 2002. Commandant K.G.Keswani was the
Presiding Officer. Deputy Commandant S.C.Menon, Hari Singh, Balraj
Singh and Ram Prakash were the Members. The petitioner was
represented by a defending officer 2I/C K.K.Gulia. The charge of having
shot dead the deceased was read out to the petitioner who pleaded not
guilty. Since the defending officer told the Court that the petitioner
desired to be defended by an advocate, the matter was adjourned for the
next day when Sh.Murtaza Ahmed Khan, a lawyer appeared to defend
the petitioner. As prayed by the counsel trial was adjourned to February
16, 2002. The trial commenced on February 16, 2002.
18. At the trial save and except SI/Clerk B.M.Gupta the prosecution
examined all the witnesses examined by them at the Record of Evidence
who deposed in harmony with the statements given by them before the
Recording Officer. Pertinently, in addition to the statement made by him
before the Recording Officer, HC S.V.Kamble deposed that when he
come out of his bunker on being informed by Ct.S.S.Murmu about the
incident he saw that the petitioner was standing near the deceased with his
rifle stretched towards the deceased. He also saw the petitioner pick up
something from the ground and put the same in his pocket.
19. In addition to the witnesses examined at the Record of Evidence,
the prosecution examined four more witnesses at the trial viz. S.H.Bukhari
PW-5, K.K.Raina PW-6, Dr.P.A.Khan PW-10 and SI Abdul Gani PW-11.
WP(C) No.2575/2003 Page 8 of 18
20. S.H. Bukhari PW-5, Scientific Officer Ballistics, deposed that the
empty fire case which was recovered from the pocket of the petitioner was
fired from the SLR issued to the petitioner. K.K.Raina PW-6, Scientific
Officer, deposed that blood was detected on the articles seized at the place
of occurrence. Dr.P.A.Khan PW-10, deposed that he had conducted the
post-mortem of the body of the deceased. One bullet injury was found on
the person of the deceased. The entry of the wound was on the nape of
neck and the exit wound was on the right portion of the face. The cause of
death was sudden cardio respiratory arrest due to bullet injury in the skull
blowing out brain substance. SI Abdul Gani PW-11, J&K Police deposed
regarding the investigation conducted by the police.
21. When the incriminating circumstances appearing in the evidence
were put to the petitioner he admitted possessing the 7.62mm SLR since
it was issued to him as also that five magazines containing hundred
rounds were issued to him. He denied everything, but gave no explanation
as to how the SLR issued to him was used and under what circumstances
three bullets out of the hundred issued to him were used.
22. Vide decision dated March 09, 2002 the GFSC held the petitioner
guilty of the charge framed against him and awarded the sentence to
undergo imprisonment for life and to be dismissed from service upon the
petitioner which finding and sentence was confirmed by the Inspector
General, BSF.
23. Statutory petition filed by the petitioner to the DG, BSF was
rejected on October 31, 2002.
24. Instant petition challenges the petitioner being convicted.
WP(C) No.2575/2003 Page 9 of 18
25. The writ petition came up for preliminary hearing on April 21, 2003
when Rule was issued. Application seeking suspension of sentence was
dismissed. Unfortunately, learned counsel for the petitioner took no steps
for either the writ petition to be listed for hearing or the petitioner to be
admitted to bail. The counsel who filed the petition died. The writ
petition matured for hearing as per its priority position on February 25,
2014. The respondents were directed to find out the prison in which the
petitioner would be and on being informed that the petitioner was
undergoing the sentence at the Central Jail, Kotbhalwal, Jammu, the
petitioner was admitted to bail on furnishing a personal bond in sum of
` 2000/-. Since the petitioner indicated that he be provided a counsel at
State expense, vide order dated March 07, 2014 Mr.Ankur Chibber,
Advocate was appointed as the Amicus Curiae. The matter was ultimately
heard by this Bench on April 21, 2014.
26. On going through the evidence led at the trial, learned counsel for
the petitioner made no submissions on the indictment with reference to the
evidence led for the reason once the petitioner admitted that the offending
SLR was issued to him and so was he issued hundred rounds in the five
magazines issued to him out of which three were fired, unless the
petitioner gave an explanation of how his SLR was used and how three
rounds were fired from the same, these being special facts to his personal
knowledge, it would be a virtually open and shut case against him.
Besides the testimony of Ct.S.Murmu who was an eye witness in the
absence of being shaken would nail the guilt. The submissions made,
were four in number as under:-
WP(C) No.2575/2003 Page 10 of 18
A Rule 175 of the BSF Rules, 1969 require that the proceedings of the
Court of Inquiry shall be submitted by the Presiding Officer to the
officer or authority who ordered the Court and such officer or authority
on receiving the proceeding may either pass final orders on the
proceeding himself or refer them to a superior authority. In the instant
case, the next day after the incident i.e. on December 12, 2000 the DIG,
BSF, Rajouri Sector, constituted a one man Staff Court of Inquiry to be
presided over by Deputy Commandant M.C.Pandey who submitted a
report on December 19, 2000 opining that the deceased died as a result of
gun short fired at him by the petitioner which report was placed before
the DIG, BSF, Rajouri Sector, who prima facie agreed with the findings of
the Staff Court of Inquiry and directed admissible family pension to be
paid to the family of the deceased and action to be taken against the
petitioner as per law. Placed before the IG, BSF, Jammu, while penning
his opinion on January 04, 2001, the IG, BSF returned a positive verdict
of guilt against the petitioner. Learned counsel argued that since the
highest level officer i.e. IG, BSF had returned a positive verdict of guilt
against the petitioner the same would obviously colour the minds of the
officers constituting the General Security Force Court because all of
them were junior level officers and it is inconceivable that junior level
officers would return findings contrary to the opinion expressed by the
highest level officer. Learned counsel relied upon a decision of a learned
Single Judge of this Court reported as 44 (1991) DLT (SN) 22
Lt.Col.Satish Kumar Sharma vs. UOI & Ors. as also the decision of the
Supreme Court reported as (1998) 7 SCC 84 Punjab National Bank &
Ors. vs. Kunj Bihari Mishra .
WP(C) No.2575/2003 Page 11 of 18
B Rule 45 of BSF Rules, 1969 was violated with impunity because
record would evidence that custody of the petitioner was handed over to
the BSF authorities only on November 16, 2001 when the District &
Sessions Judge, Poonch transferred the FIR to the BSF authorities for the
petitioner to be tried at the General Security Force Court and prior thereto
the petitioner was in judicial custody. Learned counsel urged that under
Rule 45 of the BSF Rules, 1969, taking cognizance of an offence report
the Commandant has to hear the accused in the presence of the witnesses
and thereafter form an opinion whether the charge has to be dismissed
summarily or the accused has to be punished summarily or a Record of
Evidence to be prepared. Learned counsel urged that proceedings under
Rule 45 are akin to a pre-charge evidence and a valuable right is vested in
the accused under the Rule.
C The Commandant Sh.G.K.Sharma and the Officiating Commandant
Sh.M.S.Chauhan were witnesses, in that, being the two senior officers of
the battalion to which the petitioner was detailed they had reached the
place of the occurrence soon after the incident and had personal
knowledge of what had happened at the spot. Learned counsel referred to
Rule 46 of the BSF Rules, 1969 which provides that the Commandant of
a battalion shall not deal with a case where the offence with which the
accused is charged is against the Commandant himself or where the
Commandant is a witness himself or where the Commandant is otherwise
personally interested in the case.
D Rule 59 of the BSF Rules, 1969 was violated because on September
10, 2001 the Commandant decided that the petitioner should be tried at a
WP(C) No.2575/2003 Page 12 of 18
General Security Force Court. As per the Rule in question the decision
had to be that of the Inspector General.
27. Dealing with the first contention urged, from the facts noted by us
in paragraph 3 above, it is revealed that on December 12, 2000 the DIG,
BSF, Rajouri Sector, J & K constituted a one man Staff Court of Inquiry
to be presided over by Deputy Commandant M.C.Pandey who submitted a
report on December 19, 2000 opining that the deceased died as a result of
gun shot fired at him by the petitioner. Prima facie agreeing with the
findings of the Staff Court of Inquiry the DIG, BSF, Rajouri Sector
directed admissible family pension to be paid to the family of the deceased
and the action to be taken as per law against the petitioner. The file was
thereafter placed before the IG, BSF, Jammu, who on January 01, 2001
agreed with the opinion of the Staff Court of Inquiry and the remarks of
the DIG, BSF, Rajouri Sector but wrote that strict disciplinary action be
taken against the petitioner for killing Ct.Dharmapal Singh.
28. It is apparent that the IG, BSF has used inappropriate words while
expressing himself. The purpose of a Staff Court of Inquiry is akin to a
preliminary fact finding inquiry with which we all are familiar in service
jurisprudence. Its aim is to identify the circumstances enwombing an
incident; the probable cause thereof and the persons responsible for the
same as also to gather evidence wherefrom an opinion can be formed as
to what further course of action has to be chartered. Pertaining to the
Armed Forces and Central Para Military Forces, if a force personnel dies
an unnatural death while on duty, the findings at a Staff Court of Inquiry
would determine not only what penal action has to be taken with respect
WP(C) No.2575/2003 Page 13 of 18
to proceedings to be initiated against the accused persons but also to
determine what financial benefits have to be paid to the family of the
deceased. What has happened in the instant case is that the IG, BSF has
blurred the distinction which he had to keep in mind while passing
necessary orders in light of the opinion of the Staff Court of Inquiry. On
the subject of pensionery benefits and other financial benefits admissible
as per Rules, he ought to have passed a conceptually distinct order opining
that in view of the material gathered by the Staff Court of Inquiry it being
writ large that the deceased died vide on active duty the admissible
financial benefits had to be the ones payable when a BSF jawan dies while
on active duty. Since admittedly the death was homicidal, a conceptually
distinct order has to be passed as to what further action should be initiated
against the wrong doers identified by the Staff Court of Inquiry. The
overzealous officer, by adding the word ‘for killing Ct.Dharmpal Singh’
has given birth to an unnecessary controversy; the words which are
determinative of a finding of guilt could have been avoided. But, it being
settled law that opinions have to be construed meaningfully and
purposively and not as statutes, meaningfully read, the opinion would be
that since Ct.Dharmpal Singh died while on active duty financial benefits
admissible under Rules when a Government servant dies on active duty
should be paid to the family and that action as per law should be taken
against the accused. We see no scope for an inference that the officers of
the General Security Force Court would be influenced by the fact that
their superior officer has returned a verdict of guilt and thus, come what
may, they had to convict the petitioner. We would highlight that with
reference to the evidence led at the trial the learned counsel for the
WP(C) No.2575/2003 Page 14 of 18
petitioner could not through light even on a minuscule area which would
evidence a possible influence on the minds of the members of the General
Security Force Court. The trial record evidences that the opinion as per
the decision dated January 04, 2001 was not even before the Court. We
need to highlight that the decision to try the petitioner at a General
Security Force Court was the result of the consideration of the Record of
Evidence by the Commandant followed by a concurrence thereto by the
IG, BSF on February 05, 2002. In other words, nothing turns on the Court
of Inquiry proceedings and the administrative decision taken thereon
concerning the trial of the petitioner at the General Security Force Court.
29. Pertaining to the second contention concerning Rule 45 of the BSF
Rules, 1969, the same has been premised on the fact that on November 16,
2001, custody of the petitioner was handed over to BSF officers for he to
be tried at the General Security Force Court when the learned District &
Sessions Judge, Poonch transferred the FIR to the BSF authorities. As
noted above, proceedings under Rule 45 were held by the Commandant on
January 19, 2001. The argument proceeds on the assumption that on the
day of incident itself the petitioner was taken into custody by the police
and thereafter the petitioner was sent to a civil prison in judicial custody
by the Court and thus the petitioner could not be produced before the
Commandant on January 19, 2001. The argument overlooks the fact that
after the incident, the petitioner was taken into force custody and record
would evidence that on January 19, 2001 he was produced before the
Commandant. On a warrant issued by the Magistrate concerned before
whom the local police filed a charge-sheet, the petitioner was produced
before the learned Magistrate by the BSF authorities on February 27, 2001
WP(C) No.2575/2003 Page 15 of 18
on which date after committing the case to the Sessions the learned
Magistrate took the petitioner in judicial custody and sent him to the
District Jail, Poonch. Thus, the argument advanced is sans any factual
basis.
30. The third contention is again without any factual basis because
there is no evidence of the Commandant Sh.G.K.Sharma and the
Officiating Commandant Sh.M.S.Chauhan being associated with any
investigation. Of course, being superior officers they were kept aware of
the ongoing proceedings concerning the investigation of the incident.
Neither were the two examined at the Court of Inquiry nor at the Record
of Evidence. The two were not cited as witnesses. The two were not
examined as witnesses.
31. The last contention urged is also baseless for the reason the decision
to try the petitioner at a General Security Force Court, as per record
produced before us, being the decision dated February 05, 2002, has been
taken by the IG, BSF. The recommendatory opinion of the Commandant
is treated by the petitioner as the final decision to try him at a General
Security Force Court. Inherent in a multitier decision making process is
the opinions of the officers who have to deal with a file at different levels.
Every opinion, by its inherent nature, contains a recommendation. The
recommendatory opinions are not to be equated as decisions. The
decision would be the final opinion expressed by the competent authority.
32. Though no submissions were advanced pertaining to the evidence,
from the evidence led at the trial the following circumstances emerged:-
WP(C) No.2575/2003 Page 16 of 18
The petitioner, the deceased and Ct.S.Murmu were detailed to
perform night guard duty on December 10, 2000 from 12.00 mid-night to
03.00 A.M.
Petitioner was angry with the deceased because the deceased had
prevented the petitioner from making tea.
Ct.S.Murmu had reported the deviant behaviour of the petitioner to
HC S.V.Kamble who had to intervene by cautioning the petitioner not to
do so.
Soon thereafter a gun shot was fired. Ct.S.Murmu could seen in the
moon-light that the petitioner was standing near the dead body of the
deceased with his SLR in his hand. He immediately informed HC
S.V.Kamble who came out of his bunker.
HC S.V.Kamble saw the petitioner pick up something from the
ground and keeping the same in his pocket soon after the sound of fire was
heard by him.
An empty fire case was recovered from the pocket of the shirt of the
petitioner.
The empty fire case recovered from the pocket of the shirt of the
deceased was fired from the SLR issued to the petitioner. Five magazines
containing hundred rounds were issued to the petitioner out of which only
ninety seven rounds were recovered from him.
The petitioner had confessed before Ct.Kajal Singha and Sub.
N.K.Singh that he had murdered the deceased.
The petitioner admitted at the trial that the SLR in question was
issued to him and that five magazines containing hundred rounds were
issued to him. He gave no explanation as to how and under what
WP(C) No.2575/2003 Page 17 of 18
circumstances the SLR issued to him was used and under what
circumstances three rounds were missing.
The witnesses of the prosecution, particularly Ct.S.Murmu and HC
S.V.Kamble, were cross-examined at length by the petitioner but nothing
could be extracted therefrom which could discredit their testimonies.
33. From the facts/circumstances enumerated above, the inescapable
conclusion which emerges is that the petitioner is the assailant of the
deceased.
34. In view of submissions made above, the present petition deserves to
be dismissed.
35. The petitioner shall surrender and serve the remaining sentence.
We cancel the personal bond furnished by the petitioner when he was
admitted to bail.
36. No costs.
(PRADEEP NANDRAJOG)
JUDGE
CHIEF JUSTICE
APRIL 30, 2014
skb
WP(C) No.2575/2003 Page 18 of 18
% Judgment Reserved on : April 21, 2014
Judgment Pronounced on : April 30, 2014
+ W.P.(C) 2575/2003
DINESH KUMAR ..... Petitioner
Represented by: Mr.Ankur Chhibber, Advocate
Versus
UOI & ORS. ..... Respondents
Represented by: Ms.Richa Kapur, Advocate with
Ms.Saahila Lamba, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
PRADEEP NANDRAJOG, J.
1. The petitioner was enrolled as a follower (Washer man) in BSF on
rd
June 13, 1986. In the month of December, 2000 he was detailed to the 93
Battalion of BSF which was deployed on Forwarded Defended Locality
Khera-II (Here-in-after referred to as the ‘FDL-II’), Kashmir.
th th
2. In the intervening night of the 10 and 11 December, 2000, the
petitioner, Ct.Dharampal Singh (hereinafter referred to as the ‘Deceased’)
and Ct.S.Murmu were detailed to perform sentry duty at FDL-II from
12.00 midnight to 03.00 hrs. As per the detailment, the petitioner was to
perform duty at the upper morcha, Ct.S.Murmu was to station himself at
the telephone point and the deceased was to station himself at a water
WP(C) No.2575/2003 Page 1 of 18
tank. At around 01:10 hrs. the deceased was found shot dead with wounds
on his head.
3. The same day i.e. December 11, 2000, an FIR No.187 for an
offence punishable under Section 302 IPC was registered at the local
police station. A DD entry was made in the Daily Diary Register
maintained at FDL-II by BSF officers. Since the needle of suspicion was
pointing towards the petitioner in as much as the self loading rifle issued
to him was detected having been recently used and rounds of bullets from
the magazine issued to the petitioner were found used, the petitioner was
placed under close arrest. The next day i.e. on December 12, 2000, the
DIG, BSF, Rajouri Sector, J&K constituted a one man Staff Court of
Inquiry presided over by Deputy Commandant M.C.Pandey who
submitted a report on December 19, 2000 opining that the deceased died
as a result of gun shot fired at him by the petitioner. The report was
placed before the DIG, BSF, Rajouri Sector, who prima facie agreed with
the findings of the Staff Court of Inquiry and directed that admissible
family pension be paid to the family of the deceased and that action be
taken as per law against the petitioner. The file was placed before the IG,
BSF, Jammu who on January 04, 2001 agreed with the opinion of the
Staff Court of Inquiry and the remarks of the DIG, Rajouri Sector. He
wrote that strict disciplinary action be taken against the petitioner.
4. As per Rule 45 of the BSF Rules, 1969 the Commandant was
required to conduct proceedings pertaining to hearing of the charge. The
record would evidence that the Commandant did so on January 19, 2001
and after hearing the witnesses and the petitioner directed a Record of
Evidence to be drawn up.
WP(C) No.2575/2003 Page 2 of 18
5. At the Record of Evidence, the department examined eight
witnesses viz. SI S.B.Ram PW-1, HC S.V.Kamble PW-2, Ct.Kajal Singha
PW-3, Ct.S.Murmu PW-4, Sub.N.K.Singh PW-5, L.Nk. Sankar Haldar
PW-6, Dr.Amar Nath Roy PW-7 and SI/Clerk B.M.Gupta PW-8.
6. SI R.B.Ram PW-1, stated that on December 10, 2000, along with 7
ORs he had left FDL-II post to lay an ambush at Chuha Gali. Before
leaving the post he had briefed HC S.V.Kamble who was the senior most
NCO to remain careful and perform duty cautiously. On December 11,
2000 at about 03.00 A.M. he received information by wireless to report
back to the Coy Headquarters. On returning he learnt that a firing incident
had taken place at FDL-II post. Along with his party he proceeded to FDL
post where he saw the deceased lying on the ground in a pool of blood and
the petitioner was sitting at a nearby place under escort. On making
enquiry he learnt that the petitioner had fired a shot at the deceased since
the deceased had objected to the petitioner making tea in the night at the
duty post. He assisted Major Gill in conducting investigation at the spot.
HC S.V.Kamble brought the SLR issued to the petitioner and gave it to
Major Gill. The petitioner had been issued five magazines containing
hundred rounds. HC K.V.Kamble and he counted the ammunition and
found ninety seven live rounds and one empty fired case from the pocket
of the petitioner. After sometime senior officials came and made enquiries
from jawans about the incident.
7. HC S.V.Kamble PW-2, stated that after his team completed guard
duty at FDL-II at 12.00 mid-night the petitioner, the deceased and
Ct.S.Murmu replaced them for guard duty at 12.00 mid-night. At about
01.00 hrs. he was woken up by Ct.S.Murmu who informed him that the
WP(C) No.2575/2003 Page 3 of 18
petitioner wanted to make tea for himself during duty hours. He told
Ct.S.Murmu that the petitioner should not be allowed to make tea since
lighting fire would expose the position of FDL which would be contrary
to the existing instructions issued with regard to duty at FDL. Thus,
Ct.Murmu and the deceased did not allow the petitioner to light a fire to
prepare tea due to which there might have been some hot
discussion/heated arguments between Ct.Murmu, the deceased and the
petitioner. Soon thereafter on hearing loud voices he came out of his
bunker and saw that Ct.S.Murmu and the deceased were present at their
place of duty whereas the petitioner was going towards his place of duty.
He told the deceased that in case the petitioner again tried to prepare tea
by lighting fire he should be allowed to do so for the reason the
Commandant was likely to visit the post the next day and the report
pertaining to the indiscipline of petitioner could be submitted to him. He
returned to his bunker. At about 02:00 hrs. he heard the sound of a bullet
fire. Soon thereafter Ct.S.Murmu rushed inside his bunker and informed
him that the petitioner had fired a shot from his SLR at the deceased. He
immediately came out of his bunker and saw the petitioner standing near
the deceased who was lying on the ground in a pool of blood and appeared
to be dead. He snatched the SLR from the petitioner and informed
Inspector N.K.Singh the Coy Commander of the incident. Senior officers
reached the spot.
8. Ct.Kajal Singha PW-3, stated that on December 10, 2000 after he
and HC S.V.Kamble and Ct.S.Karkatta completed guard duty at FDL-II
they were replaced by the petitioner, the deceased and Ct.S.Murmu. After
about 1-1½ hours he woke up on hearings some loud voices and at once
WP(C) No.2575/2003 Page 4 of 18
went outside the bunker. HC S.V.Kamble was present there and the
deceased was lying on the ground in a pool of blood. He learnt that the
petitioner had fired a round from his SLR at the deceased. HC
S.V.Kamble took the SLR from the hand of the petitioner. The petitioner
told him that he wanted to kill the deceased because he had prevented him
from lighting a fire and prepared tea.
9. Ct.S.Murmu, PW-4, stated that on December 10, 2000 the
petitioner, the deceased and he were detailed to perform night guard duty
at FDL-II from 12.00 mid-night to 03:00 hrs. As per the detailment he
was to be stationed at the telephone point, the petitioner was to be
stationed at upper morcha and the deceased at the water tank. At about
01:00 hrs. the petitioner came down from the morcha and said that he
wanted to make tea. He and the deceased cautioned the petitioner not to do
so since their position would be exposed to the enemy. The petitioner
insisted and tried to light a fire. The deceased pulled petitioner back.
Apprehending that a quarrel might in sue between the petitioner and the
deceased he went to the bunker of HC S.V.Kamble and informed him
about the nuisance created by the petitioner whereupon HC S.V.Kamble
came out of his bunker. By that time the petitioner and the deceased had
gone back to their respective points/places of duty. HC S.V.Kamble went
back to his bunker. After sometime the petitioner lit a fire near crawl
trench and prepared tea. This time the deceased and he did not prevent the
petitioner from making tea because the petitioner was not likely to listen
to them. After preparing tea the petitioner went back to his morcha. After
sometime the petitioner again came down and told him that he was going
out to answer the call of the nature and went outside. After about 10
WP(C) No.2575/2003 Page 5 of 18
minutes the petitioner came back and told him that he was going to his
place of duty at the upper morcha. At that time the deceased was seated on
the wall of the water tank with his LMG. Hardly 1-2 minutes thereafter he
heard the sound of bullet fire. In the moon-light he also saw the deceased
lying on the ground with the petitioner nearby probably 4 to 5 feet away
with his SLR in his hand. Realizing that the petitioner had fired he
jumped into the adjacent crawling trench and went to the bunker of HC
S.V.Kamble and informed him of the incident. HC S.V.Kamble
immediately proceeded to the spot and disarmed the petitioner. Soon
thereafter several senior officers came. As directed by Major Gill HC
S.V.Kamble searched the magazines and the rounds issued to the
petitioner whereupon they learnt that ninety seven rounds were in the five
magazines issued to the petitioner. One empty fire case was recovered
from the pocket of the petitioner.
10. Sub N.K.Singh PW-5, stated that when he reached the place of the
occurrence on being informed of the incident the petitioner told him that
he had killed the deceased because he was prevented from preparing tea.
He deposed that ninety seven rounds and one empty fired case was
recovered from the petitioner.
11. L.Nk.Sankar Halder PW-6 stated that the SLR which was handed
over to him by HC S.V.Kamble was issued to the petitioner as also five
magazines containing hundred rounds.
12. Dr.Amar Nath Roy PW-7, stated that on December 10, 2000 at
about 02:30 hrs. he was informed over telephone by the Commandant of
rd
the 93 Battalion about the incident in question pursuant whereto he went
WP(C) No.2575/2003 Page 6 of 18
to FDL-II where he examined the deceased and declared him dead. The
apparent cause of death was gunshot wounds in the skull. He removed the
body to the Civil Hospital for post-mortem.
13. SI/Clerk B.M.Gupta PW-8, stated that a special report regarding the
incident in question was sent to the Sector Headquarters and that an FIR
was lodged in respect of the incident in question.
14. The petitioner chose not to make any statement before the
Recording Officer.
15. Considering the Record of Evidence the Commandant directed the
petitioner to be tried at a General Security Force Court. The file was
placed before the IG, BSF, Jammu Frontier who passed an order on
February 05, 2002 constituting the General Security Force Court.
16. In the meanwhile, the local police filed a charge-sheet before the
concerned Magistrate. On a warrant issued, the petitioner who was in
force custody was directed to be produced before the learned Magistrate
on February 27, 2001, on which date the learned Magistrate sent the
petitioner in judicial custody to the District Jail, Poonch and committed
the case to the Sessions. The department filed a revision petition before
the District & Sessions Judge, Poonch against the decision of the
Magistrate committing the case to the Sessions. Vide order dated
November 16, 2001 the District & Sessions Judge, Poonch transferred the
FIR to the BSF authorities for the petitioner to be tried at the General
Security Force Court.
WP(C) No.2575/2003 Page 7 of 18
17. The record, original whereof was produced before us would
evidence that the arraignment before the General Security Force Court
took place on February 12, 2002. Commandant K.G.Keswani was the
Presiding Officer. Deputy Commandant S.C.Menon, Hari Singh, Balraj
Singh and Ram Prakash were the Members. The petitioner was
represented by a defending officer 2I/C K.K.Gulia. The charge of having
shot dead the deceased was read out to the petitioner who pleaded not
guilty. Since the defending officer told the Court that the petitioner
desired to be defended by an advocate, the matter was adjourned for the
next day when Sh.Murtaza Ahmed Khan, a lawyer appeared to defend
the petitioner. As prayed by the counsel trial was adjourned to February
16, 2002. The trial commenced on February 16, 2002.
18. At the trial save and except SI/Clerk B.M.Gupta the prosecution
examined all the witnesses examined by them at the Record of Evidence
who deposed in harmony with the statements given by them before the
Recording Officer. Pertinently, in addition to the statement made by him
before the Recording Officer, HC S.V.Kamble deposed that when he
come out of his bunker on being informed by Ct.S.S.Murmu about the
incident he saw that the petitioner was standing near the deceased with his
rifle stretched towards the deceased. He also saw the petitioner pick up
something from the ground and put the same in his pocket.
19. In addition to the witnesses examined at the Record of Evidence,
the prosecution examined four more witnesses at the trial viz. S.H.Bukhari
PW-5, K.K.Raina PW-6, Dr.P.A.Khan PW-10 and SI Abdul Gani PW-11.
WP(C) No.2575/2003 Page 8 of 18
20. S.H. Bukhari PW-5, Scientific Officer Ballistics, deposed that the
empty fire case which was recovered from the pocket of the petitioner was
fired from the SLR issued to the petitioner. K.K.Raina PW-6, Scientific
Officer, deposed that blood was detected on the articles seized at the place
of occurrence. Dr.P.A.Khan PW-10, deposed that he had conducted the
post-mortem of the body of the deceased. One bullet injury was found on
the person of the deceased. The entry of the wound was on the nape of
neck and the exit wound was on the right portion of the face. The cause of
death was sudden cardio respiratory arrest due to bullet injury in the skull
blowing out brain substance. SI Abdul Gani PW-11, J&K Police deposed
regarding the investigation conducted by the police.
21. When the incriminating circumstances appearing in the evidence
were put to the petitioner he admitted possessing the 7.62mm SLR since
it was issued to him as also that five magazines containing hundred
rounds were issued to him. He denied everything, but gave no explanation
as to how the SLR issued to him was used and under what circumstances
three bullets out of the hundred issued to him were used.
22. Vide decision dated March 09, 2002 the GFSC held the petitioner
guilty of the charge framed against him and awarded the sentence to
undergo imprisonment for life and to be dismissed from service upon the
petitioner which finding and sentence was confirmed by the Inspector
General, BSF.
23. Statutory petition filed by the petitioner to the DG, BSF was
rejected on October 31, 2002.
24. Instant petition challenges the petitioner being convicted.
WP(C) No.2575/2003 Page 9 of 18
25. The writ petition came up for preliminary hearing on April 21, 2003
when Rule was issued. Application seeking suspension of sentence was
dismissed. Unfortunately, learned counsel for the petitioner took no steps
for either the writ petition to be listed for hearing or the petitioner to be
admitted to bail. The counsel who filed the petition died. The writ
petition matured for hearing as per its priority position on February 25,
2014. The respondents were directed to find out the prison in which the
petitioner would be and on being informed that the petitioner was
undergoing the sentence at the Central Jail, Kotbhalwal, Jammu, the
petitioner was admitted to bail on furnishing a personal bond in sum of
` 2000/-. Since the petitioner indicated that he be provided a counsel at
State expense, vide order dated March 07, 2014 Mr.Ankur Chibber,
Advocate was appointed as the Amicus Curiae. The matter was ultimately
heard by this Bench on April 21, 2014.
26. On going through the evidence led at the trial, learned counsel for
the petitioner made no submissions on the indictment with reference to the
evidence led for the reason once the petitioner admitted that the offending
SLR was issued to him and so was he issued hundred rounds in the five
magazines issued to him out of which three were fired, unless the
petitioner gave an explanation of how his SLR was used and how three
rounds were fired from the same, these being special facts to his personal
knowledge, it would be a virtually open and shut case against him.
Besides the testimony of Ct.S.Murmu who was an eye witness in the
absence of being shaken would nail the guilt. The submissions made,
were four in number as under:-
WP(C) No.2575/2003 Page 10 of 18
A Rule 175 of the BSF Rules, 1969 require that the proceedings of the
Court of Inquiry shall be submitted by the Presiding Officer to the
officer or authority who ordered the Court and such officer or authority
on receiving the proceeding may either pass final orders on the
proceeding himself or refer them to a superior authority. In the instant
case, the next day after the incident i.e. on December 12, 2000 the DIG,
BSF, Rajouri Sector, constituted a one man Staff Court of Inquiry to be
presided over by Deputy Commandant M.C.Pandey who submitted a
report on December 19, 2000 opining that the deceased died as a result of
gun short fired at him by the petitioner which report was placed before
the DIG, BSF, Rajouri Sector, who prima facie agreed with the findings of
the Staff Court of Inquiry and directed admissible family pension to be
paid to the family of the deceased and action to be taken against the
petitioner as per law. Placed before the IG, BSF, Jammu, while penning
his opinion on January 04, 2001, the IG, BSF returned a positive verdict
of guilt against the petitioner. Learned counsel argued that since the
highest level officer i.e. IG, BSF had returned a positive verdict of guilt
against the petitioner the same would obviously colour the minds of the
officers constituting the General Security Force Court because all of
them were junior level officers and it is inconceivable that junior level
officers would return findings contrary to the opinion expressed by the
highest level officer. Learned counsel relied upon a decision of a learned
Single Judge of this Court reported as 44 (1991) DLT (SN) 22
Lt.Col.Satish Kumar Sharma vs. UOI & Ors. as also the decision of the
Supreme Court reported as (1998) 7 SCC 84 Punjab National Bank &
Ors. vs. Kunj Bihari Mishra .
WP(C) No.2575/2003 Page 11 of 18
B Rule 45 of BSF Rules, 1969 was violated with impunity because
record would evidence that custody of the petitioner was handed over to
the BSF authorities only on November 16, 2001 when the District &
Sessions Judge, Poonch transferred the FIR to the BSF authorities for the
petitioner to be tried at the General Security Force Court and prior thereto
the petitioner was in judicial custody. Learned counsel urged that under
Rule 45 of the BSF Rules, 1969, taking cognizance of an offence report
the Commandant has to hear the accused in the presence of the witnesses
and thereafter form an opinion whether the charge has to be dismissed
summarily or the accused has to be punished summarily or a Record of
Evidence to be prepared. Learned counsel urged that proceedings under
Rule 45 are akin to a pre-charge evidence and a valuable right is vested in
the accused under the Rule.
C The Commandant Sh.G.K.Sharma and the Officiating Commandant
Sh.M.S.Chauhan were witnesses, in that, being the two senior officers of
the battalion to which the petitioner was detailed they had reached the
place of the occurrence soon after the incident and had personal
knowledge of what had happened at the spot. Learned counsel referred to
Rule 46 of the BSF Rules, 1969 which provides that the Commandant of
a battalion shall not deal with a case where the offence with which the
accused is charged is against the Commandant himself or where the
Commandant is a witness himself or where the Commandant is otherwise
personally interested in the case.
D Rule 59 of the BSF Rules, 1969 was violated because on September
10, 2001 the Commandant decided that the petitioner should be tried at a
WP(C) No.2575/2003 Page 12 of 18
General Security Force Court. As per the Rule in question the decision
had to be that of the Inspector General.
27. Dealing with the first contention urged, from the facts noted by us
in paragraph 3 above, it is revealed that on December 12, 2000 the DIG,
BSF, Rajouri Sector, J & K constituted a one man Staff Court of Inquiry
to be presided over by Deputy Commandant M.C.Pandey who submitted a
report on December 19, 2000 opining that the deceased died as a result of
gun shot fired at him by the petitioner. Prima facie agreeing with the
findings of the Staff Court of Inquiry the DIG, BSF, Rajouri Sector
directed admissible family pension to be paid to the family of the deceased
and the action to be taken as per law against the petitioner. The file was
thereafter placed before the IG, BSF, Jammu, who on January 01, 2001
agreed with the opinion of the Staff Court of Inquiry and the remarks of
the DIG, BSF, Rajouri Sector but wrote that strict disciplinary action be
taken against the petitioner for killing Ct.Dharmapal Singh.
28. It is apparent that the IG, BSF has used inappropriate words while
expressing himself. The purpose of a Staff Court of Inquiry is akin to a
preliminary fact finding inquiry with which we all are familiar in service
jurisprudence. Its aim is to identify the circumstances enwombing an
incident; the probable cause thereof and the persons responsible for the
same as also to gather evidence wherefrom an opinion can be formed as
to what further course of action has to be chartered. Pertaining to the
Armed Forces and Central Para Military Forces, if a force personnel dies
an unnatural death while on duty, the findings at a Staff Court of Inquiry
would determine not only what penal action has to be taken with respect
WP(C) No.2575/2003 Page 13 of 18
to proceedings to be initiated against the accused persons but also to
determine what financial benefits have to be paid to the family of the
deceased. What has happened in the instant case is that the IG, BSF has
blurred the distinction which he had to keep in mind while passing
necessary orders in light of the opinion of the Staff Court of Inquiry. On
the subject of pensionery benefits and other financial benefits admissible
as per Rules, he ought to have passed a conceptually distinct order opining
that in view of the material gathered by the Staff Court of Inquiry it being
writ large that the deceased died vide on active duty the admissible
financial benefits had to be the ones payable when a BSF jawan dies while
on active duty. Since admittedly the death was homicidal, a conceptually
distinct order has to be passed as to what further action should be initiated
against the wrong doers identified by the Staff Court of Inquiry. The
overzealous officer, by adding the word ‘for killing Ct.Dharmpal Singh’
has given birth to an unnecessary controversy; the words which are
determinative of a finding of guilt could have been avoided. But, it being
settled law that opinions have to be construed meaningfully and
purposively and not as statutes, meaningfully read, the opinion would be
that since Ct.Dharmpal Singh died while on active duty financial benefits
admissible under Rules when a Government servant dies on active duty
should be paid to the family and that action as per law should be taken
against the accused. We see no scope for an inference that the officers of
the General Security Force Court would be influenced by the fact that
their superior officer has returned a verdict of guilt and thus, come what
may, they had to convict the petitioner. We would highlight that with
reference to the evidence led at the trial the learned counsel for the
WP(C) No.2575/2003 Page 14 of 18
petitioner could not through light even on a minuscule area which would
evidence a possible influence on the minds of the members of the General
Security Force Court. The trial record evidences that the opinion as per
the decision dated January 04, 2001 was not even before the Court. We
need to highlight that the decision to try the petitioner at a General
Security Force Court was the result of the consideration of the Record of
Evidence by the Commandant followed by a concurrence thereto by the
IG, BSF on February 05, 2002. In other words, nothing turns on the Court
of Inquiry proceedings and the administrative decision taken thereon
concerning the trial of the petitioner at the General Security Force Court.
29. Pertaining to the second contention concerning Rule 45 of the BSF
Rules, 1969, the same has been premised on the fact that on November 16,
2001, custody of the petitioner was handed over to BSF officers for he to
be tried at the General Security Force Court when the learned District &
Sessions Judge, Poonch transferred the FIR to the BSF authorities. As
noted above, proceedings under Rule 45 were held by the Commandant on
January 19, 2001. The argument proceeds on the assumption that on the
day of incident itself the petitioner was taken into custody by the police
and thereafter the petitioner was sent to a civil prison in judicial custody
by the Court and thus the petitioner could not be produced before the
Commandant on January 19, 2001. The argument overlooks the fact that
after the incident, the petitioner was taken into force custody and record
would evidence that on January 19, 2001 he was produced before the
Commandant. On a warrant issued by the Magistrate concerned before
whom the local police filed a charge-sheet, the petitioner was produced
before the learned Magistrate by the BSF authorities on February 27, 2001
WP(C) No.2575/2003 Page 15 of 18
on which date after committing the case to the Sessions the learned
Magistrate took the petitioner in judicial custody and sent him to the
District Jail, Poonch. Thus, the argument advanced is sans any factual
basis.
30. The third contention is again without any factual basis because
there is no evidence of the Commandant Sh.G.K.Sharma and the
Officiating Commandant Sh.M.S.Chauhan being associated with any
investigation. Of course, being superior officers they were kept aware of
the ongoing proceedings concerning the investigation of the incident.
Neither were the two examined at the Court of Inquiry nor at the Record
of Evidence. The two were not cited as witnesses. The two were not
examined as witnesses.
31. The last contention urged is also baseless for the reason the decision
to try the petitioner at a General Security Force Court, as per record
produced before us, being the decision dated February 05, 2002, has been
taken by the IG, BSF. The recommendatory opinion of the Commandant
is treated by the petitioner as the final decision to try him at a General
Security Force Court. Inherent in a multitier decision making process is
the opinions of the officers who have to deal with a file at different levels.
Every opinion, by its inherent nature, contains a recommendation. The
recommendatory opinions are not to be equated as decisions. The
decision would be the final opinion expressed by the competent authority.
32. Though no submissions were advanced pertaining to the evidence,
from the evidence led at the trial the following circumstances emerged:-
WP(C) No.2575/2003 Page 16 of 18
The petitioner, the deceased and Ct.S.Murmu were detailed to
perform night guard duty on December 10, 2000 from 12.00 mid-night to
03.00 A.M.
Petitioner was angry with the deceased because the deceased had
prevented the petitioner from making tea.
Ct.S.Murmu had reported the deviant behaviour of the petitioner to
HC S.V.Kamble who had to intervene by cautioning the petitioner not to
do so.
Soon thereafter a gun shot was fired. Ct.S.Murmu could seen in the
moon-light that the petitioner was standing near the dead body of the
deceased with his SLR in his hand. He immediately informed HC
S.V.Kamble who came out of his bunker.
HC S.V.Kamble saw the petitioner pick up something from the
ground and keeping the same in his pocket soon after the sound of fire was
heard by him.
An empty fire case was recovered from the pocket of the shirt of the
petitioner.
The empty fire case recovered from the pocket of the shirt of the
deceased was fired from the SLR issued to the petitioner. Five magazines
containing hundred rounds were issued to the petitioner out of which only
ninety seven rounds were recovered from him.
The petitioner had confessed before Ct.Kajal Singha and Sub.
N.K.Singh that he had murdered the deceased.
The petitioner admitted at the trial that the SLR in question was
issued to him and that five magazines containing hundred rounds were
issued to him. He gave no explanation as to how and under what
WP(C) No.2575/2003 Page 17 of 18
circumstances the SLR issued to him was used and under what
circumstances three rounds were missing.
The witnesses of the prosecution, particularly Ct.S.Murmu and HC
S.V.Kamble, were cross-examined at length by the petitioner but nothing
could be extracted therefrom which could discredit their testimonies.
33. From the facts/circumstances enumerated above, the inescapable
conclusion which emerges is that the petitioner is the assailant of the
deceased.
34. In view of submissions made above, the present petition deserves to
be dismissed.
35. The petitioner shall surrender and serve the remaining sentence.
We cancel the personal bond furnished by the petitioner when he was
admitted to bail.
36. No costs.
(PRADEEP NANDRAJOG)
JUDGE
CHIEF JUSTICE
APRIL 30, 2014
skb
WP(C) No.2575/2003 Page 18 of 18