Om Prakash Sharma vs Union Of India & Ors.
2014 Latest Caselaw 991 Del

$~R-71
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: February 24, 2014

+            W.P. (C) No. 4397/2002 and C.M. No. 11327/2006

      OM PARKASH SHARMA                                      ..... Petitioner
                   Through:            Ms.Rekha Palli, Ms.Punam Singh and
                                       Ms.Amrita Prakash, Advocates.
                          versus
      UNION OF INDIA & ORS.                               ..... Respondents
                    Through:           Ms.Anjana Gosain, CGSC with
                                       Mr.Pradeep Derodya, Advocate.

      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MR. JUSTICE JAYANT NATH

PRADEEP NANDRAJOG, J. (Oral)

1. The petitioner was tried at a General Security Force Court for having admitted to murder Ct.Bijender Singh by firing from Carbine Butt No.11 and Body No. Y-0933, an official fire arm issued to the petitioner.

2. Ten witnesses were examined at the trial.

3. Ct.Bijender Singh PW-1, deposed that he had joined BSF in the year 1988 and as of the year 1994 was with one 171st Battalion. Posted with the 'A' Coy of the Battalion he performed general duties. On May 08, 1999, which happened to be a Saturday, he was deployed at BOP Jayantipur. Ct.Madho Singh was a sentry in the post. He went outside the post to purchase articles after informing the sentry and returned after 20-25 minutes. On his return to the post, SI Janak Raj Singh (PW-3) met him and enquired as to wherefrom he was returning. He informed that he was returning after making purchases at which SI Janak Raj Sing advised him

that henceforth he should seek his permission before leaving the post. He took a bath and sat on the cot. He took his food. He saw and heard petitioner hurling abuses without naming anybody. He requested the petitioner to refrain from abusing lest a superior officer listens to the abuses at which the petitioner stated 'Mein akela sukha ghar nahi jaunga. Ek do ko sath lekar jaung'; and while so uttering, petitioner cocked his carbine after loading magazine on it and advanced towards him. At that time he was sitting on his cot at a distance of 20-25 feet away from the petitioner and on seeing the petitioner advance towards him he went inside the barrack. Petitioner followed him. He saw the petitioner pointing his carbine on the post personnel sleeping on the cots. He managed to go behind the accused with a view to snatch his carbine to avoid an untoward incident. Just as he was about to disarm the petitioner he pointed the carbine towards him. He caught the barrel of the carbine and pushed it to point downward. The petitioner fired a burst from the carbine. He was hit on both lower limbs. He shouted for help. With the carbine the petitioner returned to his cot. Ct.Arun Mahli PW-2, came running. By then the petitioner had removed the magazine from the carbine. Ct.Arun Mahli took the carbine from the possession of the petitioner and proceeded towards cot. At that time, petitioner said 'Meri carbine mere ko de do. Maine admi ko maar dia aur mai atmahatya karunga'. He did not remember what happened thereafter because he regained consciousness at Bongaon Hospital wherefrom after first aid he was referred to SSKM Hospital, where he remain admitted till August 28, 1999. Dr.S.S.Gupta had given him medical treatment.

4. Relevant would it be to note that on being cross-examined the witness denied that the fire took place accidently. We need to highlight a suggestion made to the witness for the reason the suggestion is inculpatory to the

petitioner's involvement. It is implicit in the following statement. It is made by PW-1 : 'It is incorrect to suggest that I had provoked the accused before he cocked his carbine'.

5. It is apparent that the suggestion given to the witness was that he had provoked the petitioner and that the petitioner cocked his carbine when provoked.

6. Ct.Arun Mahli PW-2, the person referred to in his deposition by PW- 1 as the one who had responded to the cry of PW-1 when he was injured corroborated PW-1. He deposed that at about 21:00 hours on May 08, 1999 he was in the barrack. He heard 'Bachao bachao mere ko goli maar dia'. He rushed and saw Ct.Bijender Singh lying on the ground who upon enquiry informed him that the petitioner had fired him. He proceeded towards the petitioner who was sitting on his cot and asked him why he had fired at Ct.Bijender Singh, to which petitioner replied 'Maine goli maar dia'. He took the carbine from petitioner's possession and handed over the same to the Post Commander, SI Janak Raj Singh.

7. The cross-examination of the witness was limited to a suggestion given that he was a tutored witness and was deposing falsely. He denied that somebody else other than Ct.Bijender Singh informed him of Ct.Bijender Singh being fired at by the petitioner.

8. Subedar Janak Raj PW-3, deposed that he was posted to 'A' Coy and on May 08, 1999 at about 19:00 hours while he was leaving for Naka checking the petitioner reported that Ct.Arun Mahli is absent. After sometime he saw Ct.Arun Mahli return to the post and he admonished him. At about 19:30 hours petitioner reported to him that Ct.Bijender Singh was absent from the post. He enquired from the sentry who intimated him that Ct.Bijender Singh had gone out of the post after informing him at which he

admonished the petitioner for his lose control over the troops. As he was about to leave he saw Ct.Bijender Singh return and upon being questioned as to where he had gone informed that he had gone to purchase articles. He told Ct.Bijender Singh to take permission from him at which Ct.Bijender Singh apologised. After checking the Naka he returned to the post at about 21:00 hours and was told by Ct.D.K.Biswas, the sentry of the post, that petitioner had fired at Ct.Bijender Singh. He reached the place of incident and saw Ct.Bijender Singh lying on the ground. He told him that the petitioner had fired at him. He saw the petitioner sitting on the cot. Ct.Arun Mahli handed over the petitioner's carbine to him. On a clarificatory question put by the Court, he said that when he enquired from the petitioner as to why he had fired, the petitioner replied 'Isne mujhe behan ka gali dia islia meine fire kia'.

9. We need not note the testimony of other witnesses who have not deposed to the facts pertaining to the incident or what happened immediately thereafter for the reason their testimony would reveal that carbine has been issued to the petitioner as also two bullets from the magazine were found fired and the fire arm was detected with smell of gun powder. The reason is that the petitioner does not dispute that the fire arm issued to him was the weapon of offence. We would only note the testimony of PW-10 for the reason an argument has been advanced before them which would warrant noting the testimony of PW-10.

10. Assistant Commandant O.P.Sharma PW-10, deposed and proved Exhibits 'S' to 'X' being communications sent to S.S.K.M.Hospital, Calcutta to ensure the presence of Dr.S.S.Gupta, the Medical Officer, who had administered medical treatment of the petitioner. He deposed that in spite of various communications, Exhibits 'S' to 'X' sent to Dr.S.S.Gupta

could not be produced as a witness.

11. In his statement under Rule 93(1) of the BSF Rules, the petitioner said that as the Platoon Commander he admonished Ct.Arun Mahli as also Ct.Bijender Singh for leaving the BOP without permission. He stated that when he was sleeping on his cot he heard somebody pick up his carbine. He saw the person turn towards the nearby stairs and he followed him. The person who was Ct.Bijender Singh fell down. The carbine fired on its own. He took the carbine and removed its magazine. He threw away the magazine and kept the carbine with himself. At that Ct.Arun Mahli came to him. Soon SI Janak Raj came over. He offered water to Ct.Bijender Singh at which Ct.Bijender Singh told him not to touch him. Assistant Commander arrived. He was removed to the Coy Headquarter.

12. The record would reveal that the Law Officer summed up the address to the General Security Force Court. The counsel for the petitioner summed up the evidence and cited the legal provisions. We highlight that while summing up the evidence, the pros and cons of the entire evidence was brought to the attention of the Court. The attention of the Court was specifically directed towards the fact that while adjudicating the charge the defence had to be considered. The attention of the Court was drawn to the evidence as deposed to by the witnesses. Of importance is the fact that the attention of the Court was drawn to Section 307 IPC with reference to doing a criminal act with intention or knowledge that by the act death would result. Section 307 IPC was brought to the notice of the Court. Exceptions to culpable homicide not amounting to murder were also bought to the notice of the Court. With reference to the suggestions given by the petitioner to PW-1, of doing an act under provocation, was also brought to the notice of the Court. Section 326 IPC was brought to the notice of the Court.

13. We have noted hereinabove for the reasons that at the General Security Force Court trial, verdict of guilt or not guilt pertaining to the offence is sans any reasons and thus it is a duty of this Court to find out whether the attention of the Court was properly drawn to the evidence and the legal provisions.

14. We find that in his address to the Court by the Law Officer, every aspect relevant to be brought to the notice of the Court, resulting in the Court, while acquitting the petitioner of the charge of attempt to murder, has convicted the petitioner for the offence punishable under Section 326 IPC i.e. voluntarily causing grievous hurt by means of using a fire arm.

15. Learned counsel for the petitioner would urge that by not examining the doctor who examined the petitioner, vital evidence favourable to the petitioner has not been brought on record. Counsel urges that the nature of the wound, the entry of the bullet and exit would be relevant to determine whether it was a possible case of PW-1 accidently shooting himself while running away with the carbine of the petitioner.

16. As noted hereinabove, every attempt was made to examine the doctor.

17. Assuming for the sake of argument that there has been an omission at trial; suffice it to state that expert opinion or lack thereof would lose significance if there is ocular evidence.

18. The ocular evidence we have in this case, as discussed above, is the testimony of PW-1 to PW-3 and we highlight that a suggestion has been made to PW-1 that the petitioner reacted when PW-1 had provoked him. No suggestions have been given to PWs two and three with respect to the contemporaneous utterances attributed by them to the petitioner after they reached the place and Ct.Bijender Singh lying injured on the floor. We highlight the testimony of PW-3 to the effect that after the incident the

petitioner, when questioned by PW-3, as to why he had fired replied 'Isne mujhe behan ka gali dia islia meine fire kia'.

19. No other point being argued on the indictment we note that full opportunity was given by the Court to the petitioner to defend himself and that there is evidence to sustain the verdict of guilt. Attention of the Court was drawn to all aspects of the evidence and the law.

20. The argument that why would petitioner do what he did and that since PW-1 and PW-3 were admonished by the petitioner, there can be a motive for them to depose falsely against the petitioner is rejected for the reason the said fact could be the cause of the petitioner to shoot at PW-1.

21. The reason which led to the firing has not surfaced, but apparently the same obviously is a protest by PW-1 to the petitioner as to why the petitioner had told PW-3 of he going out of the camp and the petitioner retorting : the dialogue turned ugly.

22. The last contention urged is that the petitioner has been in service for 29 years and if the incident was the unfortunate consequence of a verbal altercation between the petitioner and the injured, the penalty of dismissal from service would not be warranted.

23. In our opinion use of the fire arm, how-so-ever grave be the provocation, by a force personnel would not be justified. It would be difficult for us to hold that the penalty of dismissal from service is disproportionate.

24. However, drawing attention to Rule 41 of CCS Rules, 1972, we permit the petitioner to make a representation to the competent authority for paying compassionate allowance. We may state that the petitioner would bring out his pecuniary status. The competent authority while deciding the same would take into account the fact that the injured in all probability

accessed the petitioner and raised an issue as to why the petitioner informed his absence to a superior officer. The fact that immediately after the injured fell down the petitioner did not continue with the fire would be taken note of. Past service record of the petitioner would be taken note of. That the petitioner had served the nation for 29 years and that there is no motive for the crime would also be taken into account.

25. Representation, if any, made shall be decided by the competent authority within six weeks thereof and shall be communicated to the petitioner.

26. The petitioner was sentenced to rigorous imprisonment for three years. When admitted to bail by this Court, the petitioner had suffered a sentence of about two years and six months.

27. As regards the sentence we modify the same and direct that the sentence to be suffered by the petitioner shall be the period already undergone.

28. No order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(JAYANT NATH) JUDGE FEBRUARY 24, 2014/AK