Calcutta High Court: While considering the instant matter wherein the petitioner challenged his conviction and sentence passed by the GSF Court for an offence committed under Section 46 of the Border Security Force Act, 1968 i.e., for murder and attempt to murder punishable under Sections 302 and 307 of Penal Code, 1860 and sentenced him to life imprisonment along with dismissal from service; the Bench of Ajay Kumar Gupta, J.*, based on detailed analysis of evidence provided by the prosecution (respondent herein), gave the petitioner benefit of Exception 4 to Section 300 and held that the offence in question was not murder but it was an offence of culpable homicide not amounting to murder as specified in Exception 4 to Section 300 and hence, petitioner is punishable under Section 304 Part II IPC and Section 308 Part II instead of Sections 302/307 of the Penal Code, 1860 read with Section 46 of BSF Act, 1968.
With the conviction thus modified, the Court also commuted the petitioner’s sentence and directed him to undergo sentence of 10 years for the offence punishable under Section 304 Part II and sentence of imprisonment for 7 years for offence punishable under Section 308 Part II of the Indian Penal Code read with Section 46 of the BSF Act, 1968. Both sentences will run concurrently. The Court however did not change the petitioner’s sentence regarding his dismissal from service.
Background: On the evening of 01-12-2010, the petitioner who was serving as a BSF Constable, was returning from his duty along with another constable. On their way, they stopped at a civilian shop to buy gutka etc. The other constable left for BOP Satimari upon being insisted by the petitioner. When the inspector enquired about the petitioner, he was informed that the petitioner had consumed liquor and is standing at the civilian shop in an intoxicated state.
The Inspector along with few other personnel, left immediately to bring back the petitioner. upon reaching the shop they found the petitioner and civilian shopkeeper indulging in a quarrel. The incident was reported to the Adjutant of the unit on mobile, however, this infuriated the petitioner, and he went towards the other side of the road towards his bicycle and suddenly cocked his personal weapon and started firing indiscriminately towards the shop where the BSF personnel and few civilians had gathered. One of the BSF personnel rushed towards the petitioner to stop him from firing but was hit by a bullet on his hand. During the firing a civilian was shot in the abdomen who later succumbed to injuries in the hospital.
The father of the deceased civilian then filed an FIR against the petitioner under Section 302 IPC. The BSF also lodged another FIR on issue of firing and murder of one civilian. Subsequently, the case was transferred for trial to the General Security Force (GSF) Court from the Court of ACJM as per the provisions of BSF Act, 1968.
After the trial, the GSF Court concluded that the petitioner started firing indiscriminately which resulted in murder of one civilian boy and injured one BSF personnel on his hand and found him guilty of the alleged offences and convicted him for an offence committed under Section 46 of the Border Security Force Act, 1968 and sentenced him “To Suffer Life imprisonment and to be dismissed from service”.
The petitioner challenged the impugned order contending that the same had been passed by the GSF Court without judicious application of mind and without following principles of natural justice.
Court’s Assessment: Perusing the facts of the case and its legal trajectory, the Court proceeded to analyse the case on merits. The Court noted that entire case relies mainly on eyewitness statements.
It was noted that there was no dispute as to the fact that one civilian was injured and later died due to the bullet fired by the petitioner and a BSF personnel was injured during the scuffle.
Examining the oral evidence provided by the vital eyewitnesses, the Court pointed out that the petitioner was a BSF jawan in service for more than 17 years, he should have known the consequence of firing. Due to his firing, one civilian boy died and one BSF personnel also sustained bullet injury in his right hand. It cannot be denied more casualties might have been occurred due to such firing but other persons, who were present near the place of occurrence any how they escaped narrowly. However, it cannot also be denied that there was no previous enmity between BSF personnel or any civilian. Firing took place suddenly due to sudden argument and scuffle took place and the firing was not aimed but it was fired downward. So, there was no intention to kill anyone.
Upon perusal of the evidence provided by the prosecution, the Court could repose confidence about the version of prosecution that the petitioner engaged in argument or altercation with the shop owner under the influence of liquor. It was pointed out that story of argument or altercation with the shop owner under influence of liquor was not proved by the prosecution with cogent or reliable evidence.
It was further pointed out that no justified or reliable evidence transpired from the version of the prosecution witnesses that petitioner was under the influence of liquor or petitioner had consumed liquor at the place of occurrence or in between the way of BOP Satimari to a shop situated in the village.
The Court further pointed out that contentions of prosecution itself proved beyond reasonable doubt that the petitioner had no intention or pre-meditation to murder or assault anybody else. Therefore, it cannot be ruled out that sudden quarrel/scuffle took place between the Petitioner and the injured BSF personnel. BSF personnel went towards the shop and invited or picked up quarrel with the shopkeeper, but actual reason was not known. Thus, it can be safely accepted it was sudden quarrel or scuffle took place at the place of occurrence and in a fit of passion and without any pre-planned/pre-meditation, Petitioner started firing on the instigation of the injured BSF personnel who at that time exclaimed “Oye Vijay Prakash Kya Marega Kisi ko.”
The Court noted that the instant case appeared to come under Exception 4 to Section 300 of IPC. “The cause of quarrel is not relevant nor is it relevant that offered the provocation or started the fight. The factual scenario as appears from entire evidence goes to show that in course of sudden quarrel/altercation, the petitioner fired the shots without target”. The Court thus stated that the instant case is covered under Exception 4 to S. 300 of IPC based on the following reasons-
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There was no pre-meditation or intention for commission of offence causing murder or attempt to murder by the petitioner.
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No conclusive evidence was adduced by the prosecution to prove any kind of enmity amongst the shop owner, civilian boy or injured BSF personnel with the petitioner prior to the incident. The Act was in a heat of the moment.
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Incident was occurred on 01.12.2010, when BSF personnel came to the shop and started inquiry about the petitioner and ensued sudden quarrel/scuffle between the petitioner and the injured BSF personnel.
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It was clearly established that no altercation happened between the petitioner and the shop keeper under the influence of alcohol.
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Due to sudden quarrel and altercation between the petitioner and injured personnel and with him exclaiming, “Oye Vijay Prakash Kya Marega Kisi ko.” resulted in firing and finally caused death of a civilian boy, who was standing near the shop. Though the target of firing was not in aimed in any position, but it was fired downward. The petitioner being BSF Jawan, having experience in firing, had not taken any undue advantage or acted in a cruel manner.
The Court thus held that the offence committed by petitioner was not murder, but it was an offence of culpable homicide not amounting to murder.
[Vijay Prakash v. Union of India, WPA 15518 of 2022, decided on 12-02-2024]
*Judgment by Justice Ajay Kumar Gupta
Advocates who appeared in this case :
For petitioner- Ashima Mandla, Adv.; Surya Prakash Singh, Adv.; Ritu Das, Adv.; Sangkrito Ray Chowdhuri, Adv.
For Union of India: Dayashankar Mishra, Sr. Adv; Sushil Kr. Mishra, Adv.; Shailendra Kr. Mishra, Adv.; Sabnam Laskar, Adv.
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