Udesh Kumar Rathi vs Uoi & Anr.
2014 Latest Caselaw 1263 Del

$~R-116
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Date of Decision: March 10, 2014
+                           W.P.(C) 3266/2003
         UDESH KUMAR RATHI                                ..... Petitioner
                 Represented by:         Mr.P.Banerjee, Advocate with
                                         Ms.Princy Ponnan, Advocate
                                         versus
         UOI & ANR.                                       ..... Respondents
                  Represented by:        Mr.Pavan Narang, Advocate with
                                         Mr.Lohitaksha Shukla, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE JAYANT NATH
PRADEEP NANDRAJOG, J. (Oral)

1. Heard learned counsel for the parties.

2. The record would reveal that taking cognizance of an offence report the Commandant of the Battalion to which petitioner was attached directed Record of Evidence to be prepared for the reason undisputedly from the SLR issued to the petitioner a shot had been fired within the precincts of the barracks on July 22, 2001 on the intervening night of July 22 and July 23, 2001. The bullet hit the wall near the ceiling.

3. The petitioner was working as a Constable with BSF.

4. Deputy Commandant R.Siakeng was directed to prepare the Record of Evidence. The Record of Evidence would reveal that six witnesses were examined at the Record of Evidence. Only the first was cross-examined (as recorded) by the petitioner. The Record of Evidence would reveal that the signatures of the petitioner are not to be found in the proceedings.

5. Whereas, petitioner alleges that Record of Evidence was vitiated on account of Rule 48 of the BSF Rules, 1969 being violated, in that, he was not present when the Record of Evidence was prepared, the respondents would urge that the petitioner was present during Record of Evidence but did not co-operate by penning his signatures on the proceedings.

6. With respect to cross-examination of witness No.1, whereas respondent would urge that the same evidences petitioner's presence, the petitioner would respond that even the so called cross examination is a sham for he was not present at the Record of Evidence.

7. Tried for the offence punishable under Section 307 IPC, at the General Security Force Court Trial, when this issue surfaced, Deputy Commandant R.Siakeng was examined as court witness No.1. He deposed having drawn up the Record of Evidence. He deposed that the petitioner was present during Record of Evidence. He deposed that he drew up the certificate so recorded. Ct.Lokender and Ct.Sanjay Singh deposed as Court witness No.2 and 3 and proved the roznamcha register evidencing petitioner's departure when he proceeded to participate at the Record of Evidence and when he returned.

8. Contention urged is that no credence can be given to the testimony of Deputy Commandant R.Siakeng because at the General Security Force Court Trial he acted as the prosecutor. But what about the testimony of court witnesses No.2 and 3 who proved the roznamcha entries whenever petitioner departed to participate in the Record of Evidence and when he returned? Learned counsel for the petitioner has no answer.

9. It is apparent that the petitioner is taking advantage of negligence by the respondents who when faced with objection by the prosecutor at the trial

that Rule 48 of the BSF Rules 1969 was violated required BSF to lead evidence that at the Record of Evidence the petitioner was present and for which Assistant Commandant R.Seikeng had to be examined. BSF should have replaced him with another prosecutor.

10. Learned counsel for the respondents, when put the question as to why Assistant Commandant R.Siakeng acted as the prosecutor when he became a court witness to prove the Record of Evidence, has no answer.

11. All we have to say is that nearly everyday we are coming across cases where officers of BSF who conduct trial, act like mules. Just like a mule walks on a known treaded path, ignoring that on a particular day due to a landslide either a part of the path is broken or there are stones lying thereon, would obstinately walk on the path and create problems for himself and others, so is the case with the officers of BSF. They go by the letter of law and the Rule and not the spirit thereof. They create problem for themselves and others.

12. Be that as it may, assuming that the Record of Evidence was not drawn up in the presence of the petitioner, it would hardly matter, for the reason at the trial the witnesses were examined; not that their statements recorded during Record of Evidence were treated as their statements at the trial. Petitioner was afforded full opportunity to cross examine the witnesses at the trial.

13. But, we would commend to the DG BSF to make his officers understand logic and commonsense. They must understand that not only the letter of the law but even the spirit thereof has to be upheld.

14. At the trial, the petitioner pleaded Not Guilty to the charge that on the intervening night of July 22 and 23, the year being 2001, he fired a shot

from rifle SLR 7.62 mm, Body No.BS-3189, Butt No.143 at Ct.Manoj Kumar with intent to kill him.

15. After examining 3 court witnesses on the subject pertaining to whether Record of Evidence was drawn up in the presence of the petitioner and holding that the trial should proceed and that there was no violation of Rule 48 of the BSF Rules 1969, BSF led evidence.

16. Ct.Manoj Kumar PW-1, the person who was stated to be the victim as per the charge deposed that after he completed sentry duty at Gate No.1 and returned to the barrack at 01:00 hours in the night of 22nd and 23rd July, 2001 he was required to wake up 8-9 sentries for the next duty. As he went to the barrack the petitioner who was present in the barrack said 'tu idhar se bhaag ja halla mat karo idhar'. He told the petitioner that he was performing his duty as he had to ensure that for the next duty jawans got up from their sleep. The petitioner again told him to leave. He said that he would leave after waking up the sentries. The petitioner made a derogatory comment upon him regarding his Bihari origin. The petitioner swore at his sister and simultaneously picked up his rifle. He cocked the rifle and pointed the same towards him. As petitioner was about to fire he pushed the barrel of the rifle. Petitioner fired. The shot did not hit him. Since the barrel of the rifle was pointing towards the roof the shot proceeded upward and hit the wall near the ceiling. Ct.Devi Singh snatched the rifle from the petitioner as he got alerted due to sound of fire. The Coy Commander Insp.T.R.Kala was informed of the incident and he came.

17. The remaining part of the testimony of the witness wherein, with reference to the site plan he pointed out on the site plan the place from where he entered the barrack, the position where he was standing, the place

where the petitioners cot was lying etc. as they are not relevant for the reason, as noted hereinafter, the petitioner did not dispute a scuffle between the two and a shot being fired from the SLR rifle issued to him, but gave a version of what happened.

18. Ct.Devi Singh PW-2, the person referred to in his testimony by Ct.Manoj Kumar as the one who witnessed the petitioner fire deposed that during the intervening night of July 22 and 23, 2001 he was sleeping in the cot and at 01:00 hours he heard Ct.Udesh Kumar Rathi i.e. the petitioner having an altercation with Ct.Manoj Kumar. During argument the two grappled and he heard the sound of fire. When he heard the sound of fire he saw that the butt of the rifle was in the hand of the petitioner and Ct.Manoj Kumar was holding the barrel of the rifle and had pointed it upwards.

19. HC Bijender Singh PW-3, likewise deposed that he was sleeping. He was roused as he heard a sound of fire. He saw that the butt of the SLR rifle was in the hand of the petitioner and Ct.Manoj Kumar was holding its barrel with his hands pointing the same upwards.

20. We need not note the testimony of other witnesses who have proved the SLR in question and two magazines each having 50 rounds issued to the petitioner and that a round was fired from the SLR in question, for the reason, the petitioner does not dispute that from his SLR a shot was fired.

21. In his defence statement the petitioner stated that Ct.Manoj Kumar picked up his rifle and holding the barrel tried to hit him with the butt. As he defended himself the shot got fired.

22. In other words, the petitioner tries to explain the testimony of PW-2 and PW-3 having witnessed him with the butt of the rifle in his hand and the barrel of the rifle in the hand of Ct.Manoj Kumar by stating that Ct.Manoj

Kumar used his SLR rifle as a club. Holding the same from the barrel and intending to use the butt as the head of the club, as Manoj Kumar hit him and as he defended and as the shot got fired, the two saw him.

23. Learned counsel for the petitioner would urge that save and except Ct.Manoj Kumar no witness has deposed to have witnessed the fire as it took place in the spur of the moment; in a fraction of a second.

24. Now, if we peruse the testimony of PW-2 we find that he has deposed that he heard the petitioner and Ct.Manoj Kumar having a verbal dialogue. During the verbal dialogue there was a sudden burst of one round of fire. He deposed that he saw petitioner holding the butt of the rifle in his hand and Ct.Manoj Kumar holding the barrel of the rifle in his hand; pointing the same upwards.

25. Concededly the shot had hit the wall near the roof.

26. If the firing took place as stated by the petitioner, upon holding the barrel of the rifle and using the rifle as a club, as Ct.Manoj Kumar would direct the blow at the petitioner who would respond to save himself and in the process his hand would trigger off the trigger of the rifle, the position of the rifle would be not more than at 15 degrees angle. The shot would have hit Ct.Manoj Kumar and not the top of the wall near the ceiling.

27. Besides, from the testimony of PW-2 and PW-3 no such likelihood of the firing taking place can emerge. We see no reason to disbelieve Ct.Manoj Kumar. We see no reason to disbelieve PW-2 and PW-3. We concur with the view taken that there is sufficient evidence that during a verbal altercation with Ct.Manoj Kumar, being disturbed by the fact that Ct.Manoj Kumar was trying to wake up the jawans to report for next sentry duty, probably he was shouting too much, the petitioner got angry and in anger he

fired the shot. But fortunately for him, Ct.Manoj Kumar who had sensed danger reacted by pushing the barrel of the SLR upwards and thus had a providential escape.

28. The gravity of the wrong committed by the petitioner is to use the self-loading rifle when it is in a cocked position and firing a shot during the verbal altercation with a fellow jawan.

29. Last contention urged is that everything happened at the spur of the moment and even as alleged by the prosecution, the wrong committed would not warrant the penalty of dismissal from service being inflicted; the same would be disproportionate to the gravity of the wrong.

30. We note that holding the petitioner guilty for the offence punishable under Section 307 of the Ranbir Penal Code keeping in view the nature of the incident, the sentence imposed is to undergo RI for a period of one year and dismissal from service.

31. A constable using a SLR and firing even one shot therefrom is a serious wrong and we do not find the penalty of dismissal from service to be disproportionate to the gravity of the wrong.

32. No other point arises nor has been urged and hence the petition is dismissed but without any orders as to costs.

(PRADEEP NANDRAJOG) JUDGE

(JAYANT NATH) JUDGE MARCH 10, 2014 mamta