High Court
Case Details
WP(C) 5735/2006 BEFORE HON’BLE MR. JUSTICE T. VAIPHEI
Legal Reasoning
Heard Mr. M H Ahmed, learned counsel for the petitioner and Mr. C Baruah, learn ed Central Government Council. This writ petition is directed against the order of conviction and sentence date d 25.2.06 passed by the Deputy Inspection General and Law officer, H.Q. 56 BN. B .S.F., convicting the petitioner U/s 302 of the IPC and Section 40 of the Border Security Force Act and sentencing him to suffer life imprisonment and dismissin g him from service. Though the petitioner was serving as constable under 182 Bn BSF, he was at the relevant time attached to 56 BN BSF. An accusation is made ag ainst him that on 28.12.04 while he was on duty at Naka along Indo- Bangladesh B order Road BOP, Beldova, he shot dead Constable Dharmindar Singh of the same Bat talion and he crossed over to Bangladesh along with his weapons without any auth ority. He returned to India on 30.12.04. The petitioner was accordingly charged U/s 46 of the BSF Act for committing a c ivil offence of murder punishable under Section 302 IPC and Section of the 40 of the BSF Act for committing an act prejudicial to the good order and discipline of the Force for crossing over to Bangladesh with his service weapon after shoot ing at constable Dharminder Singh improperly without any authority. Petitioner w as ultimately tried by the General Security Force Court. The prosecution examine d as many as 16 witnesses to prove their case against the petitioner and exhibit ed as many as 23 documents. The case of the petitioner appears to be one of self defense, but he did not adduce any evidence. The proceeding of the court was cl osed on 25.2.2006 by finding him guilty of the charges whereafter the impugned o rder of conviction and sentence was passed by Deputy Inspector General -cum- Pre siding Officer of the Court. Both the findings and the sentence of Deputy Inspec tor General were confirmed by Inspector General, Head Quarter A.M. F.T.R., B.S.F ., Shillong, who directed that the petitioner be confined to civil prison whereu pon he was lodged in the District Jail, Tura. In course of hearing, the learned counsel for the petitioner submits that the se ntence imposed upon the petitioner is illegal when there is evidence to show tha t he had acted in self-defense. The learned counsel for Central Govt. Counsel al so contends that even if the petitioner is found guilty of the charges, the pena lty inflicted upon him harsh and disproportionate to the misconduct proved again st him and, as such, the same does warrant the interference of this Court. It is , however, contended by the learned CGC that as the petitioner has miserably fai led to substantiate his plea that he killed the victim in self defense, the impu gned order is not liable to be interfered with by this Court. According to the l earned CGC, the scope of interference by this Court on the quantum of punishment imposed by the disciplinary authority is extremely limited and unless the punis hment is found to be shockingly disproportionate, this Court cannot interfere. H eavy reliance is placed by him on the decision of the Apex Court in Mithitesh Si ngh v. UOI & ors., (2003) 3 SCC 309 to fortify his submission. The right of private defense or self-defense is based on the instinct of self-pr eservation. The instinct of self-preservation is indomitable in a human being an d this instinct has been recognized as a lawful defense in the laws of all civil ized countries. It the danger to the body or property is there to a citizen, he need not flee away: he is entitled to hold his ground and strike back in defense . But he can do so within the limits prescribed by the law governing the right o f private defense. The burden which rests on the prosecution to establish its ca se beyond reasonable doubt is neither neutralized nor shifted because the accuse d pleads the right of private defense. The prosecution is bound to discharge its initial burden to establish the complicity of the accused and until it does so, no question arises as to whether the accused has acted in self-defense. It is o pen to a Criminal Court to find out, even if the accused does not take the plea of self-defense, from the evidence of the witnesses examined by the prosecution and the circumstances of the case either that what would otherwise be an offence is not one because the accused has acted within the strict confines of his righ t or private defense or that the offence is mitigated because the right of priva te defense is exceeded. In other words, the accused is not required to prove his case beyond reasonable doubt: it is sufficient that the defense plea is plausib le on preponderance of probabilities. Before proceeding further, I must point out, even at the cost of repetition, th at no evidence was led by the petitioner to prove that he acted in self-defense. That being the position, the only question to be examined is whether, from the evidence brought on record, the petitioner had acted in self defense when he sh ot dead the deceased. This leads me to refer to the findings recorded by the Gen eral Security Force with respect to the third issue hereunder: (cid:28) That the above fact was done by the accused with the requisite intention/knowl edge as envisaged in Section 300 IPC. The Court did not believe the versions of the defense that neither the accused c aused the death of the deceased nor was having any knowledge being in a state of intoxication, as no evidence has come before the court to substantiate the same . The Court also feel that there is nothing to justify that the accused was rend ered so helpless, that he could not save his honour except by shooting the decea sed. The defense has also failed to prove that the deceased was in such a domina ting position which compelled the accused to take such a step. In such circumsta nces the court believe that the accused had no valid ground for taking recourse to the right of private defense in shooting down the decease. The Court took the judicial notice of the fact that the accused being a trained soldier of the For ce, was having full knowledge of the fact that the injuries caused by firing a 7 .62 mm SLR weapon for certain will be lethal enough to cause death in the ordina ry course of nature. The intention of accused is further substantiated by the fa ct, that he fired not only once but four rounds from his rifle in succession. Th e court also believe the testimony of Dr. M R Sangma (PW-12) that all the injuri es were fatal in nature and were sufficient to cause the death of a person in no rmal course of nature. The court took all the circumstances into consideration a nd is inclined to believe that there is sufficient direct as well circumstantial evidence that the accused caused the death of the deceased with the requisite i ntention and knowledge as envisaged in Section 300 IPC. Considering all the fact s and evidence adduced before it, the court is convinced that the above act of t he accused does not fall in any of the exceptions to Section 300IPC. Hence the c ourt take this issue as proved and find the accused guilty of first charge. (cid:29) In my opinion, the above findings of the General Security Force do not s uffer from any infirmity: the plea of self defense taken by the petitioner canno t be established from such findings. The petitioner is unable to prove that he w as in a state of intoxication at the time of the incident. The finding of the tr ial court that the defense failed to prove that the deceased was in such a domin ating position that compelled him to take such a step, is not at all perverse an d cannot, therefore, be assailed in any manner. The remaining findings are also quite consistent with the evidence on record. The plea of self defense or right of private defense is based on three ideas: (i) there must be no more harm infli cted than is necessary for the purpose of defense; (ii) secondly, there must be a reasonable apprehension of danger to the body from the attempt or threat to co mmit some offence; and thirdly, the right does not commence until there is a rea sonable apprehension. The trial court recorded the findings that judicial notice of the fact that the accused being a trained soldier of the Force was having fu ll knowledge of the fact that the injuries being caused by firing from a 7.62 mm SLR weapon for certain will be lethal enough to cause death in the ordinary cou rse of nature and that the intention of the accused was further shown by the fac t that he fired not only once but four rounds from his rifle in quick succession ; that there was nothing to justify that the petitioner was rendered so helpless that he could not have saved his honor except by shooting the deceased; that th e defense had also failed to prove that the deceased was in such a dominating po sition so much so that he was compelled to take such a step and that under such circumstance, the Court believed that the petitioner had no valid ground for tak ing recourse to the right of private defense in shooting the deceased. I have carefully perused the proceedings of the General Security Force Court pro duced by the learned CGC and examination of the evidence adduced in the course o f the trial persuades me to hold that the findings recorded by the General Secur ity Force Court are fully corroborated by evidence on record. In my judgment, t his is not a case of perverse finding. On the contrary, the findings are based o n evidence, and they cannot be upset by this Court. In view that I have taken, n o case of right of private defense is made out by the petitioner to acquit him. As no case of self-defense could be established by the petitioner, the punishmen ts imposed upon him for the offence punishable U/s 302 IPC and Section 40 of the BSF Act cannot be said to be harsh or shockingly disproportionate to warrant th e interference of this Court. For reasons stated in the foregoing, this writ petition has no merit and is, acc ordingly, dismissed but by directing the parties to bear their respective costs.