* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 30th August, 2011
Judgment Pronounced on: 13th September, 2011
+ W.P.(C) 5878/2011
EX.CONST./GD RANA PRATAP SINGH ....Petitioner
Through: Ms.Rekha Palli, Ms.Punam Singh
and Ms.Amrita Prakash, Advocates.
versus
UNION OF INDIA & ORS. ...Respondents
Through: Mr.Ankur Chhibber, Advocate and
Dy.Comdt.Bhupinder Sharma, BSF.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. Shorn of unnecessary details, the facts leading to filing of
the present petition are that the petitioner was enrolled as a
Constable under Border Security Force and was attached with
the 23rd Battalion and on 16.11.2008 was performing duties in
the D Coy on Indo-Bangladesh border at BOPs Soldighi and
Nayabari.
WP(C) No.5878/2011 Page 1 of 28
2. The petitioner and Ct.B.Kapmilian PW-2, were detailed to
perform patrolling duty at Ambush Point No.3 from 05.30 PM
on 16.03.2008 till 08.00 AM on 17.03.2008. The area
comprising Ambush Point No.3 extended from BFL Poles No.8
to 22. Ct.B.Kapmilian PW-2 and the petitioner decided amongst
themselves that the petitioner would patrol between BFL Poles
No.8 to 14 and Ct.B.Kapmilian would patrol between BFL Poles
No.15 to 22.
3. When Ct.B.Kapmilian PW-2, was patrolling in his area, at
about 09.40 PM, he heard the sound of gun fire from towards
Bangladesh side, whereupon he went to the area where the
petitioner was patrolling but could not see him and thus he
went to the Coy Headquarters and informed petitioner being
missing. As per the respondents, on receiving said
information, the Coy Commander Subedar Sunder Singh PW-3,
and a few other officers searched the petitioner and in the
meantime, at about 10.30 PM, DIG R.Chandra Mohan PW-3
received a telephone call from Col.Mohd. Aftabul Islam, Sector
Commander, Bangladesh Rifles (hereinafter referred to as the
„BDR‟) that a BSF personnel had entered into village Moyanagri
in Bangladesh and fired indiscriminately at the residents of the
village, causing death and serious injuries to several villagers
and that the villagers had overpowered and beaten the said
BSF jawan who was rescued by the jawans of BDR and
admitted for medical treatment at the local hospital in
Bangladesh.
WP(C) No.5878/2011 Page 2 of 28
4. It transpired that one Mohd.Mustafa, a woman
Mst.Majeedia Begum and her 8 month old son Mamoon had
died as a result of firearm injuries, and Mohd.Shahidul Islam,
husband of Mst.Majeedia Begum, was grievously injured.
Petitioner was overpowered by the villagers, beaten, but
rescued by BDR persons and admitted at the local hospital.
DIG R.Chandra Mohan PW-3 and Deputy Commandant Binnar
Paul PW-6, persuaded the officials of BDR to hand over the
custody of the petitioner to them as also the various objects
seized by them from the place of occurrence, which included
one 5.56 mm INSAS rifle bearing butt No.328, body
No.16914015, 3 empty cartridges, 5 live rounds, 1 pair of
jungle boots, 1 pair of anklets, 1 cap and 3 magazines of 5.56
mm INSAS rifle. Thereafter Dr.Tarkeshwar Prasad PW-9 and
Dr.Hemanta Chetia from the BSF Hospital went to Rangpur
Medical College Hospital where petitioner was admitted in
Bangladesh and upon finding him fit, brought him to India in
safe custody.
5. Holding a staff court of inquiry and in view of the prima
facie finding therein, a decision was taken to initiate action
against the petitioner and complying with Rule 45 of the BSF
Rules i.e. conducting proceedings pertaining to hearing of the
charge, the Commandant framed following 6 charges against
the petitioner:-
“FIRST CHARGE COMMITTING A CIVIL OFFENCE THAT IS
U/S 46, BSF ACT SAY MURDER PUNISHABLE U/S 302 IPC
1968
In that he,
WP(C) No.5878/2011 Page 3 of 28
On the intervening night of 16th and 17th of
November 2008, at Moynaguri within PS
Tetulia, Distt-Panchgarh, Bangladesh, by
firing shot from his personal INSAS rifle butt
No.328, Regd No.169014015, committed
murder by intentionally causing the death of
Mohd. Gulam Mustafa aged about 55 years,
S/O late Jamshed Ali, resident of village
Moynaguri, PS Tetulia, Distt – Panchgarh,
Bangladesh and thereby committed an
offence punishable under Section 302 of IPC.
SECOND CHARGE COMMITTING A CIVIL OFFENCE THAT IS
U/S 46, BSF ACT SAY MURDER PUNISHABLE U/S 302 IPC
1968
In that he,
On the intervening night of 16th and 17th of
November 2008, at Moynaguri within PS
Tetulia, Distt-Panchgarh, Bangladesh, by
firing shot from his personal INSAS rifle butt
No.328, Regd No.169014015, committed
murder by intentionally causing the death of
Majeeda Begum aged about 28 years, W/O
Shahidul Islam, resident of village
Moynaguri, PS Tetulia, Distt – Panchgarh,
Bangladesh and thereby committed an
offence punishable under Section 302 of IPC.
THIRD CHARGE COMMITTING A CIVIL OFFENCE THAT IS
U/S 46, BSF ACT SAY MURDER PUNISHABLE U/S 302 IPC
1968
In that he,
On the intervening night of 16th and 17th of
November 2008, at Moynaguri within PS
Tetulia, Distt-Panchgarh, Bangladesh, by
firing shot from his personal INSAS rifle butt
No.328, Regd No.169014015, committed
murder by intentionally causing the death of
Mohd Mamunur Rashid Alias Mamun aged
about 8 months, S/O Shahidul Islam,
resident of village Moynaguri, PS Tetulia,
Distt – Panchgarh, Bangladesh and thereby
WP(C) No.5878/2011 Page 4 of 28
committed an offence punishable under
Section 302 of IPC.
FOURTH CHARGE COMMITTING A CIVIL OFFENCE THAT IS
U/S 46, BSF ACT TO SAY ATTEMPT TO MURDER
1968 PUNISHABLE U/S 307 IPC
In that he,
On the intervening night of 16th and 17th of
November 2008, at Moynaguri within PS
Tetulia, Distt-Panchgarh, Bangladesh, by
firing shot from his personal INSAS rifle butt
No.328, Regd No.169014015, with intent to
kill Mohd. Shahidul Islam (aged about 35
years) S/O late Hussain Ali, resident of
village Moynaguri, PS Tetulia, Distt –
Panchgarh, Bangladesh, caused injury to
said Bangladeshi National, and thereby
committed an offence punishable under
Section 307 of IPC.
FIFTH CHARGE WITHOUT ORDERS FROM HIS SUPERIOR
U/S 16(d) BSF OFFICER LEAVES HIS PICKET
1968
In that he,
While performing ambush duty (an active
duty), at ACP No.3 Ex-BOP Nayabari from
1730 hrs to 2200 hrs on the intervening
night of 16th and 17th Nov 2008, left the
place of duty (picket) without order from his
superior officer.
SIXTH CHARGE AN ACT PREJUDICIAL TO GOOD ORDER
U/S 40, BSF ACT DISCIPLINE OF THE FORCE
1968
In that he,
While performing ambush duty Ex-BOP
Nayabari from 1730 hrs to 2200 hrs on 16th
November 2008 improperly and without
authority, crossed over to Bangladesh.”
6. After hearing the petitioner on the charge, the
Commandant directed that Record of Evidence be prepared.
WP(C) No.5878/2011 Page 5 of 28
7. At the Record of Evidence proceedings, several witnesses
were examined by the department. Thereafter, as per the
requirement of Rule 48(3) of the BSF Rules, the petitioner
made a statement in which he stated that while patrolling he
saw 6 persons trying to cross over the fence from Bangladesh
and as he challenged them, they hid in the bushes. A stone
was thrown at him, followed by verbal abuses and one person
taunted him by showing his private parts. To scare them, he
cocked his rifle thinking that they would run away. They
didn‟t. He got angry and decided to pursue them and
overcome by emotion, he jumped over gate No.44 of the
border fence. In the past, Bangladeshis used to abuse BSF
jawans and due to this he had developed hatred towards them.
As he was in the culvert, somebody hit him on the head and
tried to snatch his rifle and as he resisted, shots got fired. His
rifle was snatched and somebody else fired indiscriminately.
He lost consciousness and when he regained consciousness he
found himself in a hospital.
8. The matter was placed before the IG BSF, North Bengal
Frontier, who considered the Record of Evidence and directed
petitioner‟s trial at a General Security Force Court; and at the
trial the prosecution examined 25 witnesses.
9. Ct.P.Joga Rao PW-1 and Ct.A.Chidambaram PW-12,
deposed that on 16.11.2008 they were performing patrolling
duty at Ambush Point No.4 when at about 09.25 PM they heard
sounds of gun fire from towards Bangladesh side and that they
learnt that the petitioner was found missing from his duty
WP(C) No.5878/2011 Page 6 of 28
around that time. On being questioned about crossing the
fencing by the force personnel, the witness (PW-1) stated:
(Quote) „During my service record I have never crossed the
fence during night duty. There are instructions that no one will
cross the fence either during day or night except with prior
permission and after following the laid down
procedure…..Briefing was done by the Coy Comdr at the time
of departure of ACP parties and oftenly he told not to cross
fencing and in event of suspicious movement having been
observed by the ACP party immediate intimation be given to
the Coy Comdr for action.‟
10. Ct.B.Kapmilian PW-2, deposed that during patrolling duty
the petitioner was found missing. On being questioned about
crossing the fence by the force personnel he said: (Quote)
„During ACP duties our area of responsibility extends upto IB.
However, there are instructions that we could not go across
the fencing alone during night time….There were directions of
Coy Comdr that troops performing duty in ACP during night
time were not permitted to go across Border fencing.‟
11. Sunder Lal PW-3, deposed of petitioner being reported
missing and information received from BDR of petitioner being
in their custody and his being brought back to India from
Bangladesh. On being questioned about crossing the fence by
the force personnel he stated: (Quote) „I used to pass all the
instructions of Higher HQs during roll-call like the instructions
that no one will go across the fencing except for zero line
patrolling, Special patrolling duties and that too, during day
WP(C) No.5878/2011 Page 7 of 28
time. No one was allowed to go across the fence for any
purpose during night duty, unless directed by Bn HQ or in
special situation and only in presence of Officer/Coy
Comdr….There were instructions that no person would go
across the Border Fencing without prior permission, either
during day or night time. There were instructions that no single
person would go across the fence during day or nighttime. If
personnel had to go across the fence for duty, Gate drill had to
be followed by the party…. The crossing of gate or fence by
BSF personnel without getting the gate opened was strictly
prohibited.
12. Dr.R.Chandra Mohan PW-5, DIG BSF Northern Frontier
and Binnar Paul PW-6 Deputy Commandant and Diwakar
Kumar (2-IC) PW-10, deposed of petitioner being brought back
from Bangladesh to India and all of them deposed that on
17.11.2008 when they visited the place of the incident they
saw bullet marks on the trees and CGI sheets wall of the
houses situated near the place of occurrence. On being
questioned about crossing the fence by the force personnel,
Dr.R.Chandra Mohan PW-5, stated: (Quote) „There were clear
instructions that no BSF person on duty should cross the fence
during night or day time on his own without following the
proper procedure.‟ On being questioned about force personnel
crossing the fence 2-IC Diwakar Kumar PW-10, stated: (Quote)
„If during ACP duty the ACP party observed any suspicious
happening between fencing and IB concerning his AOR then he
is supposed to immediately inform about this to his Coy/Post
Comdr, and they are not supposed to go ahead of fence on
WP(C) No.5878/2011 Page 8 of 28
their own under any circumstances.‟ On the subject of the
circumstance under which the petitioner was brought back
from Bangladesh to India, since an argument was raised, we
note that DIG R.Chandra Mohan PW-5 stated during his
testimony as under:-
“After assurance to initiate strict disciplinary action
against Ct R P Singh as per the law of land, BDR
allowed to first send two doctors of BSF to RMCH for
examining the condition of the accused, as to
whether he was in a position to be taken to India or
otherwise. BDR officials agreed to hand over the
accused, provided strict disciplinary action was taken
against him.”
13. HC Balbir Singh PW-7, deposed that on 16.11.2008 an
INSAS 5.56 mm rifle bearing Butt No.328 and Body
No.1694015 along with 50 rounds and 3 magazines was issued
to the petitioner.
14. Dr.Tarkeshwar Prasad PW-9, deposed that on 17.11.2008
he had gone to Rangpur Medical College Hospital, Bangladesh
and on finding the petitioner conscious with some injuries on
the non-vital parts of his body, he brought the petitioner to
India in an ambulance.
15. Dr.A.Sen Gupta PW-11, Senior Scientific Officer, Forensic
Science Laboratory, Kolkata deposed that he examined 5.56
mm INSAS rifle bearing butt No.328, body No.16914015, and 3
empty cartridges recovered from the place of occurrence. As
per his opinion the 3 empty cartridges recovered from the
place of occurrence were fired from 5.56 mm INSAS rifle
bearing butt No.328, body No.16914015.
WP(C) No.5878/2011 Page 9 of 28
16. Mohd.Shahidul Islam PW-15, deposed that on 16.11.2008
he was sleeping in his house when his wife Majeeda Begum
woke him and told him that she had heard sound of firing from
outside their house. He and his wife thought that somebody
was bursting crackers and thus they did not pay heed, but
when they again heard the firing sound from near their house
he asked his wife to get up and make enquiries. At that time,
few bullets hit the wall of his house whereupon his wife picked
up their younger son Mamoon and he picked up their elder
child and rushed out of their house. When he opened the door
of his house, he saw a BSF jawan standing there. He tried to
close the door but the jawan fired several rounds and one
bullet hit his left hand and another bullet hit him in the
abdomen. He fell on the ground and the jawan entered his
house. His wife who was holding their son in her lap ran to
save her life but the jawan fired several rounds at her due to
which she fell on the ground. His son who was held by his wife
in her lap also sustained bullet injuries. His wife and son died
due to the bullet injuries caused to them. On hearing the firing
sound his relatives came to his house and removed him to a
hospital.
17. Relevant would it be to note that no suggestions were
given to the witness that he was present at the culvert at the
Indo-Bangladesh Border and had received injuries at the
culvert or that his wife and son received injuries at the culvert.
18. Md.Abdus Saleem PW-13, deposed that on 16.11.2008 he
had organized a party in his house. The party started at around
WP(C) No.5878/2011 Page 10 of 28
09.00 P.M. and ended 20-30 minutes thereafter. His brother
Gulam Mustafa had also come to his house to attend the party
and left for his residence when the party was over. At around
09.30 P.M. accompanied by his cousin brother Safiqul Islam, he
had gone to his brother‟s house to bring his daughter when he
heard a sound of fire. After about 5 minutes he again heard
sound of firing whereupon his brother Gulam Mustafa also
came out of his house. While he and his brother were standing
in front of his brother‟s house he saw a person coming from
the southern side of the house of his brother whereupon he
flashed his torch at him. The said person told them that he is a
BDR personnel. When he again flashed his torch at the said
person he saw that the uniform worn by the person resembled
the uniform of BSF personnel. He again made enquiries from
the said person upon which the person hurled abuses at him in
Hindi. Since said person abused him in Hindi he was sure that
the said person was a BSF personnel and not a BDR personnel.
He immediately ran from there and hid himself near a pond. At
that time the said person opened fire towards his direction.
With great difficulty he managed to escape from there and
went to his neighbour‟s house and told him to remove his
brother Gulam Mustafa to the hospital who was hit by the
bullets fired by the person. He went to the BDR post and
reported the incident and on return saw his brother being
removed to the hospital; where he died. He stated that the
person who fired looked like the petitioner.
19. Relevant would it be to note that no suggestions were
given to the witness that he was present at the culvert at the
WP(C) No.5878/2011 Page 11 of 28
Indo-Bangladesh Border and that firing took place at the
culvert. Further relevant would it be to note that on being
questioned about his passport and visa, he stated: (Quote) „I
do not have passport and visa for coming to India today but I
have my I-card issued by the Bangladesh Govt. and I have
been permitted by m y country to visit India and depose before
the Court about the firing incident.‟
20. Mohd.Hanif Miya PW-16, deposed that on 16.11.2008 at
about 08.00 P.M. he was sleeping when his mother woke him
up and told him that she had heard sound of fire from the
eastern side of their house. He got up and was lighting the
lamp when he again heard sound of firing coming from the
eastern side of his house. He and his wife went out of the
house to look into the matter. Thereafter he went to the rear
side of his house for urination when he saw the petitioner enter
his house and he heard the screams of his children whereupon
he immediately ran inside his house and saw the petitioner
pointing his rifle towards his children. He caught hold of the
barrel of the rifle and pushed it in the upper direction. He
grappled with the petitioner to snatch the rifle and with the
assistance of his wife he managed to snatch the rifle.
Thereafter the petitioner ran out of his house and he chased
him. On hearing his screams, his brother Mohd.Hamidul, who
was sleeping in his house came out of the house and caught
hold of the petitioner. They tied the petitioner with a rope and
after sometime handed over the petitioner and his rifle to BDR.
It is relevant to note the following portion of the cross-
examination of the witness, which reads as under:-
WP(C) No.5878/2011 Page 12 of 28
“…..I do not have valid Visa and Passport for coming
here to depose my statement before the Court……It
is correct to say that my hand suffered little burn
when I pushed the barrel in upper direction. However,
I do not have any document to show that I took
treatment of that injury as I did not take any formal
treatment…..It is incorrect to suggest that I go for
fishing in Bhutijhari nullah flowing across the border
and in that process I cross towards India. The
villagers of Moynakuri do not go for fishing in
Bhutjihari nullah. It is incorrect to suggest that while
some villagers were fishing in nullah on India side
and were objected by accused then some villagers
caught hold of the accused, beat him and in that
process took him in their custody….” (Emphasis
Supplied)
21. Mohd.Mintu PW-17, deposed that on 16.11.2008 at about
09.45 P.M. he heard sound of indiscriminate firing and as the
firing stopped he saw his brother Shahidul Islam crawling and
screaming saying that he had suffered a bullet injury and that
his wife Majeeda Begum and son Mamoon were dead. He
removed his brother to the hospital but had no knowledge of
the identity of the person who fired. On being questioned
about his Passport and Visa he stated: (Quote) „I do not have
Visa and Passport for coming to India and depose my
statement before the Court.‟
22. Subedar Nipen Chandra Das PW-18, Havildar Turab Ali
PW-19, officials of BDR, and Sub Inspector Mohd.Abdul Latif
Miah PW-20, official of Bangladesh Police, deposed the seizures
effected by them and handed over to BSF personnel.
WP(C) No.5878/2011 Page 13 of 28
23. Dr.Bahram Ali PW-21, deposed that he conducted the
post-mortem on the dead body of Gulam Mustafa, Mazeeda
Begum and Mamoon and that the cause of death of the said
persons was the bullet injuries.
24. Dr.Mohd.Abdul Quayum PW-22, deposed that on
17.11.2008 at about 07.00 A.M. the petitioner was brought to
the surgical ward of Rangpur Medical College Hospital with
history of assault and multiple cut injuries over right shoulder,
scalp and right shin. He examined the petitioner at about
09.00 A.M. and the condition of the petitioner was stable at
that time.
25. Vipin Kumar Yadav PW-23, Deputy Commandant, BSF,
and Captain Ashraf Parvez PW-24 proved the correspondences
exchanged between the BSF, BDR and the Ministries of Home
Affairs and External Affairs regarding the production of
Bangladeshi nationals before the General Security Force Court
for the purposes of recording their testimony in the present
case.
26. 2-IC Rajesh Kumar Sahay PW-25, deposed that he
prepared the Record of Evidence and the statement Ex.BB
made by the petitioner was recorded by him. Be it noted here
that no suggestion was given to the witness that the statement
was incorrectly recorded by him.
27. After prosecution evidence was led, the petitioner made a
statement under Rule 93 of the BSF Rules wherein he stated
that on 16.11.2008 along with Ct.Kapmilian he was detailed to
WP(C) No.5878/2011 Page 14 of 28
perform patrolling duty at Ambush Point No.3. He and Ct
B.Kapmilian PW-2, decided amongst themselves that he would
perform patrol duty between BFL Poles Nos.8 to 15 and that Ct.
B.Kapmilain would perform patrol duty between BFL Poles
Nos.15 to 22. There was a culvert in the area between BFL
Poles Nos.8 and 9 under which there was a Hume pipe through
which water flowed from India to Bangladesh. At about 09.00
P.M. he was performing patrolling duty on his bicycle in the
area around BFL Pole No.8 when he heard a noise as if
someone was walking in the water. Thereafter he saw about 6
persons running here and there, some of whom came towards
the culvert and hid themselves in bushes. After a while he
thought of reporting the matter to Ct.Kapmilian and called out
his name 2-3 times but he did not receive any response. There
were strict instructions from Coy Commander and CHM that
nobody should be allowed to enter Indian territory from
Bangladesh. After sometime someone threw a stone which hit
the border fencing. In order to scare said persons he took out
the magazine from his rifle and cocked his rifle once or twice
but the said persons did not run away. He saw said persons
change their hiding place. He saw one intruder run towards
Bangladesh side. While running, the intruder provoked him by
using abusive language against him and also showed his
private parts to him. Since it appeared to him that the said
intruders were planning to enter into Indian Territory, he
crossed over to the other side of the border fence from gate
No.44 to chase or catch said intruders. While he was in the
process of chasing the intruders he fell on the ground. By the
WP(C) No.5878/2011 Page 15 of 28
time he got up the said intruders had reached on a high
ground in Bangladesh Territory. Thereafter he saw some
people catching fish in the river. While he paused to regain
breath in a kneeling position, suddenly he felt as if someone hit
him in his back and he fell on the ground. At that time some
persons put net on him and covered his face with bamboo
basket and tried to snatch his rifle. Even though he was in
acute pain he held on to his rifle but was dragged through the
water and taken in Bangladesh territory. Someone hit him on
the right side of his temple and legs with a sharp edged
weapon and he became unconscious and thus had no
knowledge as to what happened thereafter, till he regained
consciousness and found himself surrounded by BDR personnel
who were torturing him.
28. The petitioner was cross-examined and relevant part of
his cross-examination reads as under:-
“While on duty on that night I was not agitated
despite they shouted BSF dog and showed their
private parts. The prosecutor draws the attention of
the accused to a portion of his statement given at
the time of ROE wherein he had stated “I was very
very annoyed with all this and was thinking whether
should catch him and beat him. The relevant portion
is underlined in red ink and signed by the Law
Officer. On being asked about the correctness of the
statement the accused states that he did not say so
during ROE.
The accused is also shown portion of his statement at
Page No.46 wherein he stated “I had developed a
hatred towards them. Hence, that night I was
determined to catch one of them and beat them”. OnWP(C) No.5878/2011 Page 16 of 28
being asked if he had stated so the accused declined
to have stated so.”
29. The petitioner did not lead any evidence in defence.
30. After the evidence was recorded, the Law Officer
addressed the Court on the law relating to culpable homicide
amounting to murder as also the law relating to appreciation
of evidence. The law officer formulating the facts in issue to
be considered with respect to the charges. The 3 facts in
issue to be considered by the Court were stated as under:-
“FIRST ISSUE OF FIRST/SECOND/THIRD CHARGE
That death of Mohd. Gulam Mustafa/Majeeda
Begum/Mohd Mamunur Rashid…… took place on the
intervening night of 16th and 17th Nov 2008.
SECOND ISSUE OF FIRST/SECOND/THIRD CHARGE
That the accused caused the death of Mohd Gulam
Mustafa/Majeeda Begum/Mohd Mamunur Rashid by
firing shot at him/her from his personal weapon
INSAS Rifle Butt No.328, Regn No.16910415.
THIRD ISSUE OF FIRST/SECOND/THIRD CHARGE
That the above act was done by the accused with the
requisite intention/knowledge as envisaged in
Section 300 of IPC.”
31. On 28.10.2009, the Court returned a finding of guilt
against the Petitioner and inflicted the punishment to
undergo imprisonment for life and dismissal from service
upon the petitioner.
WP(C) No.5878/2011 Page 17 of 28
32. While summing up the evidence on the third fact in
issue, which was the only issue which required a
consideration; inasmuch as the petitioner never disputed the
first two facts in issue, in that, he never disputed the death
of Mohd.Gulam Mustafa, Majeeda Begum and Mamoon as
alleged and the 3 dying as a result of receiving gun shot
wounds from the rifle issued to him. The law officer summed
up the evidence pertaining to petitioner‟s intention or
knowledge as under:-
“THIRD ISSUE
That the accused did act with requisite
intention/knowledge as envisaged in Section 300
IPC.
As regards the intention and knowledge is
concerned, these are mental attitude which are not
capable of positive proof. However, it can be
inferred from the facts and circumstances of the
case. The accused by unauthorisedly crossing over
the Fence by scaling the gate, went in the
Bangladesh village Moynaguri alongwith his
personal weapon i.e. INSAS rifle and 50 rds. In the
said village when PW-13 Abdus Salem asked the
accused about his identity, then he (accused) firstly
said “Ami BDR log” but subsequently abused in
„Hindi‟ and opened fire as a result of which Gulam
Mustafa, Majeeda Begum and Mamun sustained
bullet injuries and died. The accused, as per PW-15
Shahidul Islam, had fired from vary close range and
injured him and after entering inside the room fired
at his wife and son and killed them. The accused
had opened burst fire, indiscriminately, and besides
causing bullet injuries to all four victims, evidence
of firing in form of bullets hitting the CGI sheets wall
of houses and trees were seen by PW-5, PW-6 and
PW-10 who visited the place of incident during the
WP(C) No.5878/2011 Page 18 of 28
Flag Meeting with BDR. While the accused has
taken a plea that he had gone across the fence to
deter the intruders and catch hold of them, but the
manner in which he crossed over the Fence
violating all norms, SOPs and instructions, his plea
is not sustainable, and the act of the accused were
intentional. Hence the Court take this issue as well
as charges as proved.”
33. That sentence and findings of the Security Force Court
was confirmed by the confirming authority on 12.2.2010 and
petitioner‟s petition under Section 117 of the BSF Act being
rejected by the DG (BSF) on 28.6.2011 the instant petition
has been filed by the petitioner under Article 226 of the
Constitution of India.
34. During hearing of the writ petition, following 4
submissions were advanced by the learned counsel for the
petitioner:-
A. The hearing of the charge as per Rule 45 was vitiated
for the reason the Commandant of the Unit to which the
petitioner was attached considered the opinion of the IG BSF
to the effect that disciplinary action be initiated against the
petitioner. It was urged that if the superior officer has so
opined, it was but obvious that the Commandant had no
option but to direct Record of Evidence to be prepared. It
was urged that the petitioner lost the chance to explain to
the Commandant that matter be dropped hence the trial is
vitiated.
WP(C) No.5878/2011 Page 19 of 28
B. That the testimony of DIG R.Chandra Mohan PW-6
evidences an assurance given to Bangladesh rifle personnel
that petitioner would be tried and thus it was urged that the
prosecution had acted with a pre-determined and a
motivated mind.
C. That PW-13, PW-15, PW-16 and PW-17, all Bangladesh
Nationals were brought illegally to India to depose against
the petitioner and proof of they being illegally brought to
depose against the petitioner was the fact that they neither
had a passport nor a visa authorizing them to enter the
territory of India.
D. At best, the offence committed by the petitioner was
culpable homicide not amounting to murder inasmuch as
petitioner‟s cross examination showed that the prosecution
suggested to him that he got provoked by Bangladesh
Nationals who used to, in the past, abuse BSF jawans and
taunt them by exposing their private parts at BSF jawans.
35. Before dealing with the submissions advanced by the
learned counsel for the petitioner, we remind ourselves of our
jurisdiction to be exercised with respect to Security Force
Court Trials when petitions are brought under Article 226 of
the Constitution of India. Deciding W.P.(Crl.) No. 93/1980 R.S.
Ghalwat v. UOI & Ors. on 4.6.1981, a Division Bench of this
Court laid down the parameters of the jurisdiction of the High
Court while examining the correctness of the finding and
WP(C) No.5878/2011 Page 20 of 28
sentence at Court Martial while exercising power under Article
226 of the Constitution of India in the following terms:
“16. Effort was then made to go through the record
of court martial (and we did go into it) and
persuade us to hold that the finding of court martial
was vitiated because of various alleged illegalities
in the matter of confession, admissibility of
evidence and other irregularities. Now if the writ
petition was to be treated as a Habeas Corpus
petition the only jurisdiction the court has would be
to see whether the return shows that the detenu is
held lawfully. Once it is shown, as in the present
case that court martial, properly convened and
constituted has passed an order in pursuance of
which the Petitioner is being held no relief would be
possible as this Court cannot go into the question of
sufficiency of evidence, and the conviction by
competent court would be a sufficient answer to the
petition under Section 491, Criminal P.C. AIR 1946
Lah 103: 47 Cri LJ 1022, Kartar Singh v. Emperor.
The court is entitled to go into the regularity of
steps taken by the court martial in the course of
trial or by the confirming authority in the finding
and the sentence which do not go to their
jurisdiction and confirming. Interference is possible
only where the irregularity or illegality affects the
jurisdiction of the court martial or the confirming
authority’
17. We, however, do not propose to dispose of this
matter on this short point and heard the matter on
the footing that the writ Petitioner was also asking a
writ of certiorari, against the finding of a statutory
tribunal, i.e. General Court Martial constituted
under the Act. But even then the jurisdiction of this
Court is limited to only finding out whether there is
error of jurisdiction or it is a case of total lack of
evidence. We do not sit as a court of appeal. If
there was legal evidence available on which a
finding could be given, the sufficiency or otherwise
WP(C) No.5878/2011 Page 21 of 28
is for the authority to decide and this Court cannot
substitute its opinion for that of Court martial.
19. Thus where the court martial acts within
jurisdiction, habeas corpus would not issue to
interfere with its decision on the ground of mere
insufficiency of evidence or irregularity of
procedure except where there has been no hearing
at all or the rules of natural justice have not been
followed. In the Canadian case of Ex parte Forgan, it
was recognized that, where a court martial has
acted within its jurisdiction neither the merits of the
conviction not the propriety of the sentence could
be reviewed by the Supreme Court upon an
application for either certiorari or habeas corpus.
(See Military Law in India by Sharma P. 202, Notes
68 and 69).
20 Where a quasi judicial authority has jurisdiction
to decide a matter, it does not lose its jurisdiction
by coming to a wrong conclusion, whether it is
wrong in law or in fact…. A tribunal may lack
jurisdiction if it is improperly constituted, or if it fails
to observe certain essential preliminaries to the
inquiry. But it does not exceed its jurisdiction by
basing it decision upon an incorrect determination
of any question that it is empowered or required
(i.e. had jurisdiction) to determine.
See AIR 1962 SC 1621 Ujjam Bai v. State of Uttar
Pradesh. A writ of certiorari under Article 226 of the
Constitution can be issued for the purpose of
examining the record and proceedings of a
courtªmartial if the complaint is that the court-
martial was not duly constituted, that it had no
jurisdiction over the person or over the subject
matter of the charge or that there is an error of law
apparent on the face of the record or that the
principles of natural justice were violated so as to
result in miscarriage of justice. Where a court
martial has acted within its jurisdiction neither the
merits of the conviction nor the propriety of the
WP(C) No.5878/2011 Page 22 of 28
sentence can be reviewed by this Court, upon an
application for certiorari. The courts-martial are in
fact a specialised form of administrative courts and
the scope of review traditionally afforded by the
civil courts over their judgments has been very
limited. This is evident from the fact that Article 136
of the Constitution expressly excluded the power of
judicial review in respect of any judgment,
determination sentence order passed or made by
any court or tribunal constituted by or under any
law relating to the armed forces though the
jurisdiction of the Supreme Court and High Courts
under Article 32 and Article 226 of the Constitution
respectively to issue writs to any person or
authority has been preserved. See (2nd (1976) 2
Del 691, Ram Murti Wadhwa v. Union of India. It is
true that general power to issue writs of Habeas
Corpus and certiorari given to this Court under
Article 226 does not make the finding of the court-
martial totally immune from scrutiny by this Court.
But as said by (1952) 346 US 137: 97 L Ed 1508,
Burns v. Wilson “the statute which vests federal
courts with jurisdiction over applications for habeas
corpus from persons confined by the Military Courts
is the same statute which vests them with
jurisdiction over the applications of persons
confined by the civil court. But in military habeas
corpus the inquiry, the scope of matters open for
review, has always been more narrow than in civil
cases. Thus the law which governs a civil in the
exercise of its jurisdiction over military habeas
corpus applications cannot simply be assimilated to
the law which governs the exercise of that power in
other instances. It is suit generis; it must be so,
because of the peculiar relationship between the
civil and military law. Military law, like State law, is
a jurisprudence which exists separate and apart
from the law which governs in our federal judicial
establishment. We have held before that this does
not displace the civil courts’ jurisdiction over an
application of habeas corpus from the military
prisoner. But these provisions do mean that when a
WP(C) No.5878/2011 Page 23 of 28
military decision had dealt fully and fairly with an
allegation raised in the application it is not open to
a federal civil court to grant the writ simply to re-
evaluate the evidence…” (Emphasis Supplied)
36. From the aforesaid observations, it is clear that while
examining the correctness of finding and sentence of the
Court Martial/Security Force Courts, in exercise of its power
under Article 226 of the Constitution of India, the jurisdiction
of the High Court is limited to finding out only whether there
exists an error of jurisdiction or is it a case of total lack of
evidence. It is not open to the High Court to re-evaluate the
evidence on record or whether the evidence on record is
sufficient to sustain the finding of the Court Martial/Security
Force Court or to substitute its opinion for that of the Court
Martial/Security Force Court.
37. The first submission advanced and as noted in para 34
(A) above is based upon an incorrect reading of the opinion of
the IG North Bengal Frontier which was penned by him after
considering the staff court of inquiry. The opinion penned is
that disciplinary action needs to be initiated. He never opined
that the petitioner is guilty. Now, we all understand that staff
court of inquiry is akin to a preliminary inquiry and the object is
to find out whether there is prima facie material to initiate
formal legal proceedings. These opinions are always tentative
and being not final we see no scope that the Commandant of
the unit got so overwhelmed by the remark of the superior
officer that he lost objectivity.
WP(C) No.5878/2011 Page 24 of 28
38. The second plea premised on the testimony of DIG
R.Chandra Mohan PW-6 who admitted having given assurance
to Bangladesh rifle personnel that petitioner would be tried in
India does not mean that the witness admitted that the
assurance given was that come what may, the petitioner would
be convicted and punished. It has to be remembered that the
petitioner had admittedly, even as per his defence statement,
crossed over the border fence and entered Bangladesh
territory. Now, if the case of the prosecution is correct, it is
apparent that when he was overpowered, after he had killed 3
Bangladesh citizens and had grievously injured 1 more, the
crowd would be rooting for petitioner‟s blood and there would
be immense local pressure on Bangladesh Rifle personnel and
the local police, to try the petitioner as per laws in Bangladesh
since the offence was committed in the territory of
Bangladesh. It was to the benefit of the petitioner that he was
brought to India for trial. Now, to sooth the frayed temper, an
assurance had to be given that the petitioner would be tried in
India. Surely, the authorities in Bangladesh would not have
permitted the petitioner to be brought back to India without an
assurance of his being subjected to the legal process. Said
assurance only means that the BSF personnel assured that
petitioner would be tried as per law and not that the assurance
was that come what may, the petitioner would be convicted.
39. The third plea that PW-13, PW-15, PW-16 and PW-17
entered India without a passport is a plea which is neither here
nor there for the reason the testimony of PW-23 and PW-24
proves that special permission was given to let said persons
WP(C) No.5878/2011 Page 25 of 28
enter the territory of India and deposed at the trial of the
petitioner.
40. On the last plea, it would be incorrect to urge that no
particular intention of the petitioner has surfaced. The
testimony of PW-13, PW-15, PW-16 and PW-17 brings out that
the petitioner fired indiscriminately and the weapon used was
an INSAS rifle; capable of rapid firing and indeed the petitioner
fired a complete magazine. He may not have desired to kill
any person specifically, but the desire was to kill Bangladesh
Nationals and the motive is obvious. Bangladesh citizens used
to taunt BSF jawans. The petitioner was seething in rage. The
indiscriminate firing by a rapid fire assault rifle is akin to the
situation as per illustration (d) to Section 300 IPC i.e.: „A
without any excuse fires a loaded canon into a crowd of
persons and killed one of them. A is guilty of murder although
he may not have had a premeditated design to kill any
particular individual.‟
41. The testimony establishes that the petitioner had crossed
over the fence, which he was not supposed to do. He
obviously did so as some actions or acts of Bangladesh citizens
had provoked him. He chased them to teach them a lesson.
The statement Ex.BB recorded during Record of Evidence, from
which he resiled at the trial, and in respect whereof we find
that the petitioner never challenged the testimony of 2-IC
Rajesh Kumar Sahai who stated that he recorded the said
statement correctly, made by the petitioner brings out the
truth and the same is that the petitioner chased the citizens of
WP(C) No.5878/2011 Page 26 of 28
Bangladesh and it was anger which propelled him to so do.
The alternative submission urged with respect to the act of the
petitioner attracting Exception 1 to Section 300 IPC, suffice
would it be to state that the Exception applies when self
control is lost by a provocation which is grave and sudden. As
per the statement made by the petitioner, in the past, there
were instances of Bangladesh Nationals taunting BSF jawans.
Petitioner claims to have been taunted in the past. Thus, we
see no scope for the provocation to be sudden. We do not find
the provocation to be grave. An illiterate villager, and we
presume that Bangladesh citizens who live in a village in a
border area would be so, if taunts a BSF jawan, would not
invite the retribution of being shot or the BSF jawan being
overcome by a grave provocation. It is not provocation but the
intense past hatred which triggered the action from the
petitioner.
42. Though no serious attempt was made during argument
that the defence of the petitioner was wrongly rejected, we
may only highlight that the manner in which the petitioner
claims to be hit on his head and thereby losing consciousness
and he not knowing how his rifle was used, is not believable for
the reason he never cross-examined the eye witnesses by
putting his version as aforesaid. Further, his cross-examining
PW-16 by suggesting that it was correct that his hand suffered
a little burn when he pushed, in the upper direction, the barrel
of the rifle of the petitioner shows that the petitioner admitted
to the version of firing as disclosed by PW-16. The evidence of
Dr.Mohd.Abdul Quayum PW-22 brings out that the petitioner
WP(C) No.5878/2011 Page 27 of 28
was conscious when he was brought to the hospital in
Bangladesh, which deposition has not even been challenged,
and thus belies the claim of the petitioner that when some
Bangladeshi citizen hit him on his head he lost consciousness.
There is tell-tale evidence against the petitioner and we need
not discuss the same, save and except highlight as aforesaid
for the reason we are not sitting in appeal. As regards the
injuries suffered by the petitioner, which no doubt was serious,
inasmuch as he was hit with a blunt object on his head, suffice
would it be to state that when he was disarmed, the angry
crowd or someone within the crowd hit him on the head and by
that time the petitioner had executed his gruesome acts.
43. Finding no merit in the writ petition we dismiss the same,
but without any order as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
September 13, 2011
mm
WP(C) No.5878/2011 Page 28 of 28