Ex-Constable Vinod Kr.Singh vs Union Of India & Ors.
2011 Latest Caselaw 4313 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision : 5th September, 2011

+                           W.P.(C) 4081/1997


        EX-CONSTABLE VINOD KR.SINGH            ..... Petitioner
                 Through:   Mr.Bishram Singh, Advocate with
                            petitioner in person.

                                  versus
        UNION OF INDIA & ORS.            .....Respondents
                   Through:   Ms.Anjana Gosain, Advocate

        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. On 11.3.1995, it is alleged against the petitioner, that while on Naka duty he shot dead a colleague i.e. HC Balbir Singh.

2. At a General Security Force Court trial, verdict of guilt was returned in view of it being held that 16 witnesses examined by the prosecution established the charge against the petitioner.

3. Convicting the petitioner for the offence of murder he was sentenced to undergo imprisonment for life and also lost his job.

4. Instant petition lays a challenge to petitioner‟s conviction and we note that vide order dated 15.12.1997, the petitioner was admitted to bail.

5. Of the various pleas which have been urged in the writ petition, learned counsel for the petitioner states that if the first plea is accepted, it may not require the petitioner to urge the remainder.

6. Amongst others, a plea has been urged in the writ petition that the mandate of law requiring incriminating circumstances appearing from the evidence to be put to the accused at a trial for the offence of murder has been breached. Indeed, sub-rule 2 of Rule 93 of the BSF Rules 1969 enjoins upon a Security Force Court to examine the accused to enable him to explain circumstances appearing in the evidence against him.

7. Petitioner being tried for the offence having murdered a colleague required each and every incriminating circumstance appearing against him from the evidence to be put to him.

8. We have seen the original record which has been produced and would note that each page bears a running number. At page 59 and 60 are the questions put to the petitioner as Questions No.7, 8 and 9. The questions and the answers read as under:-

"QUESTION TO THE ACCUSED

Question No.7: It is in evidence that sometimes in June‟ 94 when your Battalion was deployed in Kashmir you had some „Jhagrah‟ with HC Balbir Singh since deceased.

Answer: It is not correct that there was a „Jhagrah‟ but it was some exchange of hot words.

Question No.8: Exhibit „V‟ has been brought on record. It is your hand writing?

Answer: The hand writing is not mine but signature is mine.

Question No.9: It is in evidence that some words of apology have been written in the body of the letter. Do you have anything to say under what circumstances such letter was written to which you have subscribed your signature?

Answer: I was detailed on duty at No.4 bunker at Srinagar. Balbir Ustad came to our bunker from bunker No.3 that day. I was on sentry duty in the bunker. It was around 1400 hrs that day, when he asked me to prepare tea to which I replied that since I was alone on sentry duty let me wait for my reliever to come then I prepare the tea. I further said if I were busy in making tea and something untowards happen due to militant action like throwing of grenades into the bunker then it will be a great loss. HC Balbir told me that at the bunker where he was detailed earlier, the Consts used to prepare tea to which I replied that I could do it only after I was relieved of the sentry duty. At which HC Balbir Singh abused me and we had hot exchange of words. He reported that incident to Inspr Swaran Singh Coy Comdr on next day. He reported to the Coy Comdr who came there next day that Ct.Vinod Kumar has refused to obey my order. Coy Comdr asked both of us to put that in writing. I further said that I apologized for what happened yesterday. Then Coy Comdr further directed us to put that in writing. Accordingly this letter was written. I can not recall who actually wrote this letter but it is me who signed the letter. I know what the letter contains. I submitted this letter to the Coy Comdr himself. The matter ended there.

The questions to the accused and his answers both recorded verbatim as far as possible. "

9. Since the questions have been listed from Sl.No.7 to 9, we have asked learned counsel for the respondent to check up whether the record is complete or not. Learned counsel states that the record is complete. It remains a mystery to learned counsel and to the Court, as to why the questions have been put Sl.No.7, 8 and 9.

10. Learned counsel for the respondents has also drawn our attention to the fact that when petitioner made a statutory representation against the verdict of guilt rendered against him by the General Security Force Court, the Law Officer had opined on 21.5.1997 that Rule 93 of the BSF Rules was breached and that the breach was serious. We note that in spite thereof, the statutory representation has been rejected and conviction and sentence has been affirmed.

11. The reason appears to be the note of the Law Officer on the other points, as per which he found that there was sufficient evidence against the petitioner.

12. Now, it is settled legal position that at a trial for the offence of murder, be it before a Court of Sessions or a General Court Martial or a General Security Force Court, the accused has to be given an opportunity to explain incriminating circumstances appearing from the evidence against him. This right is inviolable. Such circumstances which are not put to the accused cannot be taken into consideration.

13. We may briefly note that from the testimony of the various prosecution witnesses evidence has emerged that the petitioner, HC Tara Chand and Ct.Jitender Singh were detailed for Naka duty at Naka No.8 from 6.00 PM to 9.00 PM. At 9.00 PM HC Tara Chand distributed duty between himself,

Ct.Jitender Singh and the petitioner. The purpose of distributing the duties was that one person would remain vigilant, and on patrol, whereas the other two would rest. At about 9.40 PM when HC Tara Chand and Ct.Jitender Singh were resting they heard sound of fire and proceeding towards the Naka position asked petitioner why he had fired. Soon thereafter SI Mehar Chand, accompanied by few officers, reached the Naka point as he also heard gun fire. When questioned, petitioner said that he had fired at an intruder and told that the intruder was hiding about 10 yds. away. When SI Mehar Chand probed the matter he saw the deceased lying dead. 3 empty cartridges were recovered the same night. 2 empty cartridges and a live round was recovered the next day. Petitioner‟s SLR was seized and it was found that ammunition issued to him had been used. Evidence has been led that there was a Light Pole No.19 nearby. Evidence has emerged that the sky was cloudy and it was foggy. Letter Ex.V, stated to be in the handwriting of the petitioner was recovered from the pocket of the deceased and it was alleged that as per said letter there was an evidence of past animosity between the deceased and the petitioner. Forensic evidence has been led of a ballistic expert.

14. We note that the petitioner raised a defence that while patrolling at the fence, as he walked towards Pole Light No.20, which was not illuminated, he saw headlight of a vehicle coming from the opposite side. From the light he could make out that the vehicle was a tractor. When the tractor was about 22-25 yds. he warned by saying „Thum‟. He saw Nk.Makhan Singh, CHM Daya Nand and Coy Commander Swaran Singh in the tractor and saluted them. He was asked whether

everything was alright and he replied in the affirmative. As they left, light at Pole No.19 started flickering and fused. As he continued patrolling, after 5-7 minutes of the tractor having left, he heard sound from Sarkanda side i.e. Pakistani side. He could visualize a person at a distance of 30-35 yds. He shouted "Thum. Kaun Aata Hai?". He again shouted "Thum". As both lights i.e. of Pole No.19 and 20 were not working he could not recognize the person. The person continued to move towards him and when the person was at a distance of 10-12 yards, he shouted "Thum". The person did not stop and therefore he fired.

15. We note that in returning the verdict of guilt the Law Officer has summed up the evidence and has brought out the incriminating evidence with respect to the defence version of the petitioner and looking at the said address it is clear that various circumstances against the petitioner were emerging at the trial and none of them has been put to the petitioner.

16. Learned counsel for the respondent, short of conceding to the point, has not been able to justify the stand of the Confirmation Authority at the stage when trial proceedings had to be confirmed; in spite of being pointed out by the Law Officer that there was a serious lacuna at the trial, no corrective steps were taken.

17. We are noticing a very obstinate and obdurate attitude of Appellate Authorities and Confirming Authorities in the Armed Forces as also the Central Para-Military Forces, in not seeing a reason whenever pointed out in the office notings or the statutory representations or appeals. The consequence faced by the department is that when brought before a Court of Law the actions of the authorities are quashed. Not only

unnecessary litigation results but persons have to be reinstated and salary paid without they doing any meaningful work.

18. In the instant case, if the Confirming Authority had not acted obstinate and had seen the reason of the note of the Law Officer which is dated 2.5.1997, the corrective action could have been taken i.e. setting aside the conviction with a direction that the Court would reassemble and after putting the incriminating evidence to the petitioner would re-hear the matter and pronounce the verdict.

19. Learned counsel for the respondent urges that the same can be done today.

20. The difference between the Confirming Authority directing as noted by us herein-above and our so directing is that whereas for the offence which is alleged as of the date 11.3.1995, by May 1997, only 2 years had passed by, but today 16 years and 5 months have passed by. It is this time gap which creates a problem.

21. Why should the petitioner continue to suffer the pain of a protracted trial; protraction whereof is the direct result of the Confirming Authority not seeing the reason of the Law. We wish to highlight that if the Confirming Authorities or the Appellate Authorities have to ignore the Law, it may compel this Court not to insist that statutory remedies be exhausted before approaching the Court. We remind the Confirming Authorities and the Appellate Authorities that the legislature has reposed a trust and faith in them that they would discharge their duties honestly, with purpose and without a bias. The very purpose of in-house corrective mechanism by providing consideration by Appellate Authorities or Confirming

Authorities is to set right the wrongs at the first instance when the wrongs are detected.

22. We are of the opinion that due to the passage of time it would be unjust to put the clock back and recommence the trial from the stage where the taint took place i.e. after removing the taint directing the onward journey to be re- marched.

23. Learned counsel for the petitioner makes a statement that in view of the fact that the petitioner is succeeding on a technicality of law, he would not claim reinstatement and would accept his being dismissed from service and for which learned counsel has handed over an affidavit deposed to by the petitioner and recording an undertaking as afore-noted. The affidavit is taken on record and the undertaking contained therein is accepted, requiring the petitioner to be bound by the same.

24. The writ petition is disposed of quashing petitioner‟s conviction for the offence of murder. The bail bond and the surety bond furnished by the petitioner when he was admitted to bail are discharged. In view of the statement made by learned counsel for the petitioner which is backed by the affidavit of the petitioner, we hold that the petitioner need not be reinstated in service.

25. No costs.

PRADEEP NANDRAJOG, J.

SEPTEMBER 05, 2011                     SUNIL GAUR, J.
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