Mahesh Prasad Singh vs Union Of India & Anr.
2011 Latest Caselaw 6302 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                CM No. 16686/2011 in WP(C) No.7357/2011


%                       Date of Decision: 22.12.2011


Mahesh Prasad Singh                                        .... Petitioner

                     Through Mr.Anil Gautam, Advocate



                                Versus


Union of India & Anr.                                  .... Respondents

                     Through Mr.Sunil Kumar, Advocate



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE INDERMEET KAUR


ANIL KUMAR, J.

*

CM No. 16686/2011

1. This is an application by the petitioner/applicant seeking stay of

his order of conviction and sentence and confirmation of sentence and

for suspension of his sentence and for releasing him on bail. The

petitioner/applicant, accused Constable Mahesh Prasad Singh having

no. 860650036 of 115 Bn was found guilty of charge u/s 46 of BSF Act

punishable u/s 302 of IPC. Pursuant to incident FIR No. 13/2004 dated

16.2.2004 PS. Hilli, Dist South Dinajpur on the complaint of Shri

Sachindra Nath Mahato s/o BAidyanath Mahto, Village Lakma PO

Jamalpur PS Hilli, Distt. South Dinajpur was registered.

2. The petitioner had served for more than 19 years as a constable.

In February, 2004 he was posted at BOP, Mathurapur, West Bengal.

The petitioner was charged under Section 46 of the BSF Act r/w Section

302 of IPC alleging that on 16th February, 2004 at OP Point Ex. BOP

Mathurapur he fired a shot from his INSAS Rifle which resulted in the

death of Smt. Lili Mahato.

3. The petitioner was tried by General Security Force Court of BSF

from 11th April, 2005 to 2nd May, 2005 and was found guilty of the

charge and was sentenced to undergo life imprisonment and dismissal

from service. The conviction and sentence of the petitioner by order

dated 2nd May, 2005 was confirmed by order dated 24th August, 2005.

4. The respondents held that it is not disputed that the death of

Smt. Lili Mahato, W/o Sh. Sachin Mahato, R/o Village Lakma, PS Hilli,

Distt. Dakshin Dinajpur was caused on 16th February, 2004 on account

of bullet fired from the INSAS Rifle of the petitioner.

5. The respondents, while convicting and sentencing the petitioner

believed the testimony of Sitesh Mahato, PW-5 and Sarvopiya Mahato,

PW-4 that hot arguments/altercation took place between the deceased

whereafter the petitioner had fired one round from his personal weapon

to finish the altercation/arguments. The respondents disbelieved the

version of the petitioner that Bangladeshi man had entered into Indian

territory for exchanging packets and when the intruder was asked to

stop and he did not stop single shot was fired at the intruder, however,

the deceased came in between and got the bullet wound and bled to

death on account medical help being not given to him and for

corroboration relied on the testimony of PW-1, PW-2, PW-6 and PW-11.

The respondents also held that though no motive for commission of

offence has been established but there is cogent evidence that the

petitioner fired at Smt. Lili Mahato to finish her arguments which

proved fatal to her and thus convicted the petitioner and sentenced him

to undergo life imprisonment.

6. The learned counsel for the petitioner has very emphatically

contended that the petitioner had fired on a Bangladeshi intruder when

he was fleeing after getting the packet and when he did not stop on

being challenged, the petitioner had fired the shot. The petitioner had

not fired on Smt. Lili, however, she had come in the line of fire and got

injured and subsequently died.

7. The learned counsel has pointed out that the testimony of PW-4

Sarvopiya Mahato and PW-5 Sitesh Mahato is not reliable as they are

closed relatives of the deceased and they are not even the eye witnesses.

Learned counsel has also emphasized on the contradictions in the

statements of Sarvopiya Mahato and Sitesh Mahato and has contended

that their testimonies are unreliable and the conviction could not be

based on them.

8. Mr. Anil Gautam, learned counsel has contended that the

respondents have committed an error in disregarding the testimony of

Sh. Dalip Singh, Pw 11 on behalf of the prosecution, who had

categorically deposed that constable Mahesh Prasad Singh had

disclosed that two Bangladeshi nationals, i.e., one male and female had

reached near Smt. Lili in the field where she was working and had

exchanged some packet. The petitioner had reached the spot and had

challenged them and had fired one round from his INSAS rifle however,

Smt. Lili Mahato came in between the line and the bullet hit her on her

left thigh and she succumbed to injuries. He contended that the

testimony of the said witness was challenged by the respondents and

the while convicting the petitioner it has not been taken into

consideration. The testimony of said witness does not corroborate the

version of the respondents rather demolished the testimonies of pw4

and pw-5 which have been relied on for convicting the petitioner. The

counsel contended that from the testimony, it has not been established

that the bullet was fired on Smt. Lili Mahato nor it could be established

beyond reasonable doubt that there was any altercation between the

petitioner and Smt. Lili and the bullet was fired to silence or terminate

the altercation. From the nature of injury on the deceased, according to

the learned counsel for the petitioner, it could not be inferred that the

injury was caused with the intention to cause death as the deceased

had died on account of excessive bleeding as she had not been provided

timely medical help.

9. This has been very emphatically contended that the GSFC failed

to consider the Exceptions 2 to 4 of Section 300 of IPC in the facts and

circumstances and also failed to take into account that the place of

occurrence was bushy with thick growth of bamboo and banana trees

with obstructed clear view and facilitated concealment and in the

circumstances, no foot prints or other evidence could be detected.

According to the learned counsel no foot prints in the grassy and bushy

area does not rule out completely the presences of intruder who had

been challenged by the petitioner and when they did not stop, the

petitioner had fired a single shot but unfortunately the deceased came

in the line of fire and she was not rendered timely medical assistant

leading to her death.

10. Learned counsel for the petitioner/applicant has also contended

that the petitioner is in the custody for more than 7½ years as he is

incarcerated since 20th February, 2004 and there are no such factors or

circumstances, which will disentitle the petitioner for suspension of his

sentence and for his release on bail.

11. Pursuant to the order passed by this Court, the nominal roll of

the petitioner was called for. The nominal roll of the petitioner reveals

that during the period of detention, nothing objectionable against the

petitioner has been found. The petitioner had not availed any parole

during the period of detention. The nominal roll of the petitioner also

reveals that the petitioner has spent 4 years 7 months and 7 days as on

13th December, 2011 in Correctional Home from 21st December, 2005 to

28th July, 2010.

12. The nominal roll also reveals that petitioner was committed to

Balurghat District Correctional Home on 16th September, 2005 and was

transferred to Berhampore Central Correctional Home on 21st

December, 2005.

13. The petitioner is continuing in Gaya Central Jail from 29th

August, 2010. He was in Aurangabad District jail from 29th July, 2010

up to 29th August, 2010.

14. The petitioner served as constable for more than 18 years and he

has one son and two daughters. At the time of his conviction he had

one old aged mother. Nothing has been shown which will disentitle the

petitioner for suspension of his sentence and to release him on bail in

the facts and circumstances.

15. In the facts and circumstances and for the foregoing reasons, the

order of conviction and sentencing the petitioner dated 02.05.2006,

confirmed on 24.08.2005, is stayed during the pendency of the present

writ petition. The sentence of the petitioner is suspended during the

pendency of the writ petition and the petitioner is ordered to be released

on bail on furnishing a personal bond in the sum of Rs.20,000/- with

one surety of the like amount to the satisfaction of the Superintendent,

Central Jail, Gaya (Bihar) where the petitioner is undergoing his

sentence as per the nominal roll produced by the respondents.

Petitioner is released on bail subject to the condition that the petitioner

shall keep the authorities informed about his residential address and

change in the address. The petitioner shall also not leave the country

without prior permission of the Court.

A copy of this order be sent to the Superintendent, Central Jail,

Gaya (Bihar) for its compliance forthwith. Copies of this order be given

Dasti to the counsel for the parties.

W.P.(C) No.7357/2011

List the writ petition for hearing in the category of 'After Notice

Miscellaneous Matters', on 07.03.2012.

ANIL KUMAR, J.

INDERMEET KAUR, J.

December 22, 2011.

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