Gauhati High Court
W.P.(Crl.)/4/2019 on 14 February, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/38
GAHC010105662019
2025:GAU-AS:1538
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
(PRINCIPAL SEAT AT GUWAHATI)
WP(Crl.) No. 4/2019
Tupe Subhash, son of Namdev,
Aged about 48 years,
Resident of Banpuri, Satara, Maharashtra.
..........Petitioner.
-Versus-
1. The Union of India,
Through the Secretary, Ministry of Home Affairs,
New Delhi-1.
2. The Director General, Border Security Force,
Block No. 10, CGO Complex, Lodhi Road,
New Delhi- 110003.
3. The Special Director General of Border Security
Force, (Eastern Command) 20/1, Gursaday Road,
Kolkata-19.
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4. Inspector General, Border Security Force,
M & C Frontier, Masimpur, Silchar,
Cachar, PIN- 788014.
5. Commandant, 111 Battalion,
Border Security Force, Satakha,
Nagaland.
.........Respondents.
Advocates for the appellant: Mr M Phukan,
Advocate for the respondent: Ms B Sarma.
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Date of hearing : 10.12.2024.
Date of judgment : 14.02.2025
JUDGEMENT AND ORDER (CAV)
(Susmita Phukan Khaund, J.)
Petitioner's case:
1. This writ petition has been filed under Article 226 of the Constitution of
India for issuance of a writ in the nature of certiorari or mandamus or any
other appropriate writ, order or direction of like nature, to set aside and
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quash the impugned order of sentence dated 03.10.2013, passed by the
General Security Forces Court (GSFC, for short), in connection with the "Trial
of No. 900039263CT Tupe Subhash of 111 Battalion, BSF", convicting the
petitioner under Section 302 of the Indian Penal Code, 1860 (IPC, for short)
and sentencing him to undergo imprisonment for life and also the order
dated 15.09.2024, passed by the respondent No. 3, confirming the findings
of GSFC and other orders passed to the detriment of the petitioner.
2. Tupe Subhash (hereinafter referred to as the petitioner) has arrayed the
Union of India, the Director General, Border Security Force-New Delhi, the
Special Director General of Border Security Force-Kolkata, the Inspector
General, Border Security Force- Silchar, Cachar and the Commandant of 111
Battalion, Border Security Force, Satakha, Nagaland, as respondent Nos. 1, 2,
3, 4 and 5 respectively. Through the impugned order, the petitioner was also
dismissed from his services as a Constable of the Border Security Force (BSF,
for short). The petitioner had joined the BSF on 15.11.1990 as a constable
and during his tenure of service, the petitioner was posted at Nagaland and
attached to 111 Battalion (Bn, for short) BSF at Nagaland. As soon as he
joined the new Battalion at Nagaland, the petitioner requested for voluntary
retirement from the forces and he was interviewed by the concerned Board
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on 03.08.2012 and his prayer for voluntary retirement was allowed w.e.f.
31.12.2012, as the date of retirement from the force.
3. At Satakha, Nagaland, the petitioner was sharing his barrack with one
Sagir Alam (hereinafter also referred to as the deceased). The petitioner got
acquainted with the deceased Sagir Alam from 11.06.2012 and he had a
friendly and cordial relation with the deceased Sagir Alam and in fact, he
gifted a pair of running shoes to Sagir Alam, just after completion of their
training. When the deceased learnt that the petitioner was addicted to
alcohol and used to wet his bed and snore while sleeping, Sagir Alam started
calling names ridiculing the petitioner. Sagir Alam also used to taunt that the
petitioner had contacted HIV AIDS to the annoyance of the petitioner and
when the petitioner used to detest such sarcasm, Sagir Alam used to ignore
the petitioner. When the petitioner used to express his disapproval Sagir Alam
used to ignore him. On 14.08.2012, at 1600 hours, when the petitioner was
standing outside his barrack Sagir Alam suddenly started abusing the
petitioner, uttering obscene words and accused him of suffering from HIV
AIDS. Annoyed by his behaviour, the petitioner immediately called his wife
and informed her that he is being harassed by Sagir Alam and this may lead
to disaster. The petitioner also informed another constable of the same
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battalion, namely, Jitendra Patil (PW-10) that he was being harassed by Sagir
Alam. These facts were brought on record by way of evidence, but the
evidence was ignored by the GSFC.
4. Thereafter, on the same day, i.e., on 14.08.2012, as the petitioner was
detailed as Guard Commander at Tentage Stores at BN HQ for night duty, the
petitioner at around 1730 hours, went to the Quarter Guard to collect his
weapon for night duty and he was issued an Insas Rifle with Butt No. 81.
After collecting his weapon, the petitioner went to the Magazine to collect the
ammunition and collected 40 rounds of 5.56 mm Insas bullets. The petitioner
loaded his weapon with 20 (twenty) 5.56mm bullets and kept the remaining
in his pouch for emergency. Meanwhile, the petitioner realized that he forgot
his umbrella and the magazine and went back to bring the same. At that
moment, when the petitioner returned to collect his umbrella Sagir Alam
again started making fun of the petitioner and jeered at him. Sagir Alam
passed lewd remarks about his wife and verbally abused the petitioner with
obscene language, which infuriated the petitioner. In a fit of rage, the
petitioner fired at Sagir Alam, which resulted in the death of Sagir Alam and
another constable, named Varadagiri Chinna Raydu. The petitioner claims
that he was not aware that the other person was also injured in the same
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incident. The petitioner sustained bullet injuries on his chest and he
recovered in the hospital.
4.1 An FIR was lodged by the Deputy Commandant of 111 Bn BSF, under
Section 302 IPC, read with Section 25 (1) A of the Arms Act. The petitioner
was taken into custody on "Closed Arrest", under Rule 33 (A) of the BSF
Rules, 1969 and "Staff Court of Inquiry (SCOI)" was taken up vide order
dated 16.08.2012.
5. On the findings and opinion of the SCOI on 28.08.2012, appropriate
disciplinary proceeding was recommended against the petitioner for being
responsible for the death of Sagir Alam and Constable Varadigiri Chinna
Rayudu.
6. Vide order dated 31.08.2013, the Inspector General, FTR HQ BSF,
convened a General Security Force Court, for trying the offence committed by
the petitioner on 14.08.2012, wherein the members of the GSFC were
appointed and detailed. On 18.09.2013, charges under Section 302 IPC were
framed, read over and explained to the petitioner. Evidence was recorded.
The petitioner submitted his written statement before the GSFC. In his
written statement under the BSF Rules, the petitioner has stated that his act
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of shooting Sagir Alam was a result of sudden and extreme provocation as he
flew into a fit of rage on the remarks made by the deceased Sagir Alam
about his wife. The petitioner has expressed his remorse and repentance for
his act. At the conclusion of trial, the petitioner was held guilty on all the
three counts, i.e., for
i) Committing offence of murder under Section 302 IPC, of Sagir
Alam,
ii) Committing the offence of murder under Section 302 IPC, of
Varadigiri Chinna Rayudu
iii) Attempting to commit suicide.
7. It is submitted on behalf of the petitioner that the closing argument of
the prosecution side was taken into consideration by the GSFC, while the
argument on behalf of the petitioner was totally ignored by the Court. The
confessional statement of the petitioner was also relied upon.
8. It is argued on behalf of the petitioner that the Court passed the order
of sentence without following the principles of jurisprudence and failed to
appreciate and collate the provisions of the IPC to the facts of the case. The
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defending officer on behalf of the petitioner argued before the GSFC that the
petitioner in a fit of rage and under grave and sudden provocation committed
the offence. He ought to have been held guilty under the Exception I of
Section 300 of the IPC and he ought to have been convicted under Section
304 of the IPC, instead of Section 302 of the IPC. It is submitted that despite
the credible arguments on behalf of the petitioner, learned Court ignored the
aspect of law and has erroneously held the petitioner guilty of offence under
Section 302 IPC. Moreover, it is submitted that he learned Court went a step
further and without any jurisdiction, passed the sentence of Imprisonment for
Life and dismissal from service. An employee can be dismissed from service
by the appointing authority and not by a Court dealing with cases under
Section 302 IPC.
9. The petitioner prayed for commutation of his sentence and for passing
an order for shifting him to the Central Jail, which is near his home, which
was rejected vide order dated 15.09.2014, by the Inspector General, BSF. It
is further submitted that the petitioner, as per the provisions of BSF Act and
Rules, preferred pre-confirmation petition dated 05.10.2014, which was
attended to, by the Inspector General, BSF.
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10. It is further contended that while passing the aforementioned order,
the respondent authorities once again re-appreciated the evidence led before
the GSFC and it was affirmed that the petitioner had intentionally committed
the murder of Sagir Alam and the erroneous findings of the GSFC was thus,
upheld. Thereafter, on 14.10.2014, the GSFC promulgated the findings and
sentence passed against the petitioner and confirmed the sentence. Since
then, the petitioner has been lodged in the Central Jail at Dimapur, to carry
out his sentence for imprisonment for life and since then, he has been
languishing in the jail.
11. It is further submitted that the petitioner approached the respondent
No. 2 with a petition and prayed earnestly that the post-confirmation petition
be taken on record and the respondent authorities may be pleased to decide
the merits of the case as stated in the petition filed before the respondent
No. 2. The petitioner has also prayed that the order dated 15.09.2014,
passed by the IG, BSF, dismissing the pre-confirmation petition, be set aside
and quashed, as he committed the offence basically on grave and sudden
provocation and no mens rea could be attributed to him.
12. It is submitted that the respondent authorities are yet to pass any
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order on the post-confirmation petition filed by the petitioner. The petitioner
forwarded the post-confirmation petition (dated NIL), through his friend, who
has assured him that the petition has been dispatched to the appropriate
authority.
13. It is submitted that the petitioner had an unblemished career and the
behaviour of Sagir Alam towards him precipitated in such an untoward
incident. In fact, Late Sagir Alam had earlier made fun and jeered at the
petitioner to his annoyance. On the fateful day, i.e., on 14.08.2012, the
deceased ridiculed the petitioner to such an extent, which was beyond his
tolerance and which resulted in the untoward incident.
14. It is further submitted on behalf of the petitioner that the opinion of
the GSFC was that the words used by Late Sagir Alam were not so grave to
provoke the petitioner to such an extent and the petitioner intentionally
caused the death of Sagir Alam and Varadagiri Chinna Raydu without any
grave or sudden provocation.
15. It is submitted that the Court has erroneously held the petitioner guilty,
as the petitioner deserves a lesser sentence for a lesser offence. The Court
has totally ignored the abuses hurled by his fellowmate Sagir Alam
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continuously and this act on 14.08.2012, was the last straw that broke the
camel's back. The Court has totally ignored that all along the petitioner had
maintained a friendly relation with Sagir Alam and the other unfortunate
individual, Varadagiri Chinna Raydu was not at all in the scene.
16. It is further emphasized that to commit an offence, two elements must
be in existence, i.e., mens rea and actus reus. It is further argued that in
fact, the prosecution has proved beyond a reasonable doubt that one of the
deceased hurled abuses at the petitioner not once, but on several occasions
and on the relevant day, the deceased went to the extent of hurling abuses
twice on the same day.
17. It is further submitted that the petitioner is the sole bread winner of his
family with a minor son to be nurtured.
18. It is further submitted that the petitioner's wife is ailing and this is a fit
case where the petitioner's unblemished conduct in service can be taken into
consideration. The petitioner has contributed 20 years of his life in service to
the BSF without a blemish and he deserves that his grievance is taken into
consideration.
19. It is further submitted that the petitioner is not praying for exoneration,
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but for an appropriate sentence, in accordance with law.
Case of the Respondents:
20. All the respondents have jointly filed the affidavit-in-opposition. It is
admitted that the petitioner has served as a constable in the BSF for 21 years
and he joined 111 Bn, BSF, at Satakha in Nagaland, on 25.05.2012. At 13 th
Bn, BSF, he was performing general duties in 'A' Coy since his posting and he
underwent Coy collective training from 11.06.2012 upto 21.07.2012. On
14.08.2013, at about 17:45 hours, the petitioner turned up at the gate of unit
magazine with his personal weapon, i.e., 5.56 mm Insas Rifle, Butt No. 81,
Body No. 16624393, issued to him from Kote at 1730 hours for night guard
duty at FWC (old tenth guard) and indiscriminately fired at 101325310 CT
Sagir Alam and 111876114 CT Varadagiri Chinna Raydu, who were at that
time filling their personal Insas Rifles with magazines in the verandah of the
unit magazine for performing their night guard duties. It is further alleged
that the petitioner was earlier issued 40 rounds of 5.56 mm Insas Rifle from
unit magazine at 1720 hours, for night guard duty.
21. On hearing the commotion, Offg 21C, QM and Adjutant, who were in
the office and the other troops rushed towards the place of occurrence and
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found Sagir Alam and Varadagiri Chinna Raydu critically injured. They were
immediately evacuated to the District Hospital, Zunheboto in unit ambulance
after being provided with first aid by nurse. Meanwhile, the petitioner was
overpowered by the other BSF personnel and taken to unit Quarter Guard,
but injuries were detected on the petitioner below his left arm pit and he too
was immediately evacuated to the District Hospital in another vehicle after
being provided with necessary first aid. The place of occurrence was
searched and 80 rounds, i.e., 40 rounds each of 5.56 mm Insas ammunition
issued to Sagir Alam and Varadagiri Chinna Raydu, along with 4 magazines
were recovered. 13 EFCs (Empty Fire Cases) and 26 live rounds of 5.56 mm
Insas rifle, along with two magazines issued to the petitioner were recovered
from the ground in front of the unit magazine. The Medical Officer of the
District Hospital, Zunheboto declared both Sagir Alam and Varadagiri Chinna
Raydu, as brought dead, whereas the petitioner was provided treatment and
his condition was found to be stable. An FIR regarding this incident was
lodged with the Police Station at Satakha vide L/No.
Estt/Disc/111/2012/14942, dated 14th August, 2012. Spot investigation was
carried out by the Civil Police of Satakha Police Station, immediately. As per
advice of the Medical Officer, the petitioner was evacuated to Army Base
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Hospital at Dimapur on 15.08.2012, by an army helicopter for further
treatment and he was discharged on 22.08.2012. The petitioner was placed
under suspension vide unit order dated 08.09.2012, which was reviewed and
further extended vide order dated 05.12.2012 and the suspension order was
revoked vide unit order dated 06.03.2013.
22. A Staff Court of Inquiry (SCOI) was ordered by Ftr HQ vide order dated
16.08.2012, to investigate into the circumstances under which the incident
took place. The SCOI was conducted by Sh. U L Subramani, DIG, SHQ BSF,
Aizawl. On the basis of the remarks of IG, Ftr HQ, on the SCOI proceedings,
application was submitted before the District and Sessions Judge, Zunheboto,
Nagaland, (dated 30.11.2012), to transfer the criminal case bearing No.
05/2012, under Section 302 IPC, read with Section 25 (1) of the Arms Act,
for trial by the GSFC under the BSF Act and Rules.
23. The District Court, Zunheboto transferred the criminal case to BSF vide
order dated 20.02.2013 and thereafter, charges were framed and as has been
mentioned in the petition, the trial was concluded. Through this objection,
the respondents have reiterated the details of the proceedings in the GSFC,
till the conclusion of trial and the sentence passed by the Court. The
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petitioner was held guilty of all the charges of indiscriminately firing at Sagir
Alam and Varadagiri Chinna Raydu, i.e.,
i) firing indiscriminately at Sagir Alam,
ii) firing at Varadagiri Chinna Raydu, and
iii) an attempt to commit suicide by self inflicting a bullet wound from
the same 5.56 mm Insas Rifle.
24. It is apt to mention at this juncture that the petitioner submitted a
pre-confirmation petition dated 05.10.2013, addressed to the DG, BSF.
Though the petitioner had addressed the aforementioned pre-confirmation
petition dated 05.10.2013, but in view of the provision of Section 117(1) of
the BSF Act, 1968, read with Rule 167 (1) of the BSF Rules, 1969, one
petition before confirmation can be submitted to the confirming authority.
The Special DG (Eastern Command), BSF has been empowered by the
Central Government as confirming authority to confirm trials by GSFC. Thus,
the pre-confirmation petition was examined by the Offg Spl. DG, BSF EC in
detail and it was observed that in view of the evidence brought at the trial
and all other attending facts and circumstances of the case, the petitioner
was sentenced to the minimum prescribed punishment for committing
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murder and the pre-confirmation petition was rejected vide order dated
15.09.2014. The request of the petitioner for shifting him to a Central Jail
near to his home town was taken into consideration and it was suggested
through the order that the petitioner may be committed to civil prison. As
such, he may submit a request in this regard to the jail authorities as per the
provisions of law.
25. A copy of the letter was handed over to the petitioner on 14.10.2014
with proper receipt.
26. It is also pertinent to mention that the pre-confirmation petition was
rejected on the same grounds, stating that the petition is devoid of merits.
The petitioner was then handed over to the Superintendent of Civil Prison,
Zunheboto, on 14.10.2014 to undergo the sentence awarded by the GSFC.
27. On 27.01.2017, an application of the petitioner dated 23.01.2017, was
received by the unit, through which the petitioner requested to provide
copies of the documents to file an appeal in the Court of law and the
documents were provided to the petitioner, vide unit letter dated 31.03.2017,
on 07.04.2017, on proper receipt. Thereafter the petitioner has filed this writ
petition to set aside and quash the order passed by the Court on 03.10.2013
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and also the order dated 15.09.2014, of the confirming authority and for
directing the respondent authorities to restore the service benefits to the
petitioner as available in law.
28. It is contended by the respondents that the UOI through Home, has
been erroneously arrayed as respondent as the Home Secretary, MHA, is
nowhere involved in the matter. It is also emphasized that the petitioner was
tried by duly constituted GSFC, as per provisions stipulated under the BSF Act
and Rules and appropriately sentenced to imprisonment for life and to be
dismissed from service.
29. It is admitted by the respondents that the petitioner had applied for
voluntary retirement on 31.12.2012, owing to domestic problems and his
prayer for voluntary retirement was accepted by the Commandant of 111 Bn,
BSF, w.e.f. 31.12.2012, with all the pensionary benefits to be endowed to the
petitioner.
30. It is also averred that the petitioner never made any complaint to
senior officials, either verbally or in writing against Sagir Alam's aggressive
and delinquent attitude, despite the fact that the BSF, a disciplined armed
force of the Union has a well-established grievance redressal mechanism in
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conformation with the Rules and Act of the BSF SCORFORMETION. It has
emerged for the first time when the confessional statement of the petitioner
was recorded by the ADC (First Class Magistrate) that Sagir Alam used to
taunt the petitioner and indulge in name calling to the annoyance of the
petitioner.
31. It is averred that the petitioner has indiscriminately opened fire,
endangering the life of not only Sagir Alam, but the other BSF personnel,
which also resulted in the loss of life of one more person, i.e., Varadagiri
Chinna Raydu.
32. It is alleged that it is not justified that the petitioner went amok with
his service weapon and indiscriminately opened fire causing death of not one
but two important individuals at one go. Now, the petitioner cannot take the
cover of Exception under Section 300 IPC.
33. It is submitted that a meticulous investigation was carried out and the
SCOI was presided over by none other than the DG. It is submitted that it is
not a case under Section 304 Part-I or Part-II of the IPC, but this a fit case
and the petitioner was properly convicted under Section 302 of the IPC and
this is the reason that the findings of the Court were confirmed by the Special
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DG, BSF EC on 15.09.2014.
Discussions and decision:
34. Heard Mr. M. Phukan, learned counsel appearing on behalf of the
petitioner as well as Ms. B. Sharma, learned CGC for the respondents.
35. The arguments submitted by both the sides reiterates the petition and
the written reply.
36. Learned counsel for the petitioner has submitted that the trial was not
conducted by the proper forum. This Court is of the opinion that trial was
conducted as per Section 80 of the Border Security Force Act, 1968, read
with Rule 41 of the Border Security Force Rules, 1969. The order of the
learned Sessions Judge, Zunheboto dated 20.02.2013, marked as Annexure-A
of the petition, clearly reflects that the prayer of the applicant to refer the
case to BSF, to try the case under BSF Rules was allowed. Both the parties
were heard and the learned Additional Public Prosecutor (prosecution) had no
objection for referring the case to BSF for trial under the BSF Act and Rules.
The case was thereby allowed to be tried by the BSF Court under the order of
the learned Sessions Judge, Zunheboto, Nagaland, with a direction to
intimate the outcome of the trial.
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37. The argument of the learned counsel for the petitioner that the GSFC
has no jurisdiction to try this case, holds no water. Proper procedure was
followed and the trial was conducted by the GSFC.
38. It apparent that the petitioner was accorded a fair trial. He was duly
represented by his learned counsel. 18 witnesses were examined by the
GSFC. The petitioner was also afforded an opportunity to submit his written
statement. The defending officer was Sri Lima Tenjen, though not legally
qualified. The petitioner, however, did not engage any civil counsel though he
was informed that he had every right to defend himself. The evidence put
forth by the examination of all the witnesses is not discussed in detail to
avoid prolixity. For the sake of brevity, the relevant part of the evidence is
discussed in a nutshell. The following witnesses were examined after the
petitioner pleaded not guilty on all the three charges framed against him-
PW-1- No. 891328894 Subhash Chander of 111 Bn BSF.
PW-2- No. 850052925 ASI Prem Chand of 111 Bn BSF.
PW-3- No. Recruit Constable Sanjay Malviya of Batch No. 330-
Madhya Pradesh Police.
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PW-4- No. 954030432 Constable Baljinder Singh of 111 Bn BSF.
PW-5- Dr Kanato T.
PW-6- IRLA No. 19770536- Sunil Saibam, DC (OPS) FHQ.
PW-7- Sri T Nungasang (EAC).
PW-8- Madhu Sarma-Scientific Assistant.
PW-9- No. 93633621 ASI GD Ugan Singh of 111 Bn BSF.
PW-10- No. 99003783 Constable Jitendra Patil of 13th Bn BSF.
PW-11- No. 101110019 ASI/Pharmacist Smarjit Pradhan of 111 Bn BSF.
PW-12- No. 08254052 Constable Rajender Singh of 111 Bn BSF.
PW-13- IRLA No. 1097754 Thephuvizo Mere of 111 Bn BSF.
PW-14- Dr S Manyau.
PW-15- No. 880090481-ASI Mahipal, 'F' Coy of 111 Bn BSF.
PW-16- No. 1098 UB (Unarmed) SIL Kughzhae Yeptho-OC, Satakha PS.
PW-17- No. 031002057 Constable/Armourer Partha Sarathi Ghosh of 57
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Bn BSF.
PW-18- No. 02401447HC/Nursing Assistant Md Mojahid.
39. It could be deduced from the evidence of the witnesses that-
PW-1 reached the place of occurrence immediately after the
incident.
PW-2 issued 40 rounds of 5.56 mm Insas ammunition to the
petitioner for performing night duty at 07:20 pm. The issue register has
been proved by this witness as Exhibit-N. PW-2 also heard the firing
and he later saw the petitioner sitting in the verandah of the unit
magazine and the rifle belonging to the petitioner was lying on the
ground. PW-2 immediately raised alarm and he along with the help of
Constable Baljinder Singh, PW-3 and Constable Sanjay Malviya, PW-4,
disarmed the petitioner.
PW-3 also heard the fired shots and heard someone (PW-2)
shouting- 'bachao, bachao'. He also saw PW-2 snatching the rifle from
the petitioner and disarming him.
PW-4 witnessed the entire incident.
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PW-6 heard the firing sound emanating from the unit magazine
side and he rushed towards the spot. He saw some jawans evacuating
two injured constables to the unit ambulance.
PW-9 also heard firing of gun shots emanating from the unit
magazine side and he rushed to the spot and witnessed the disaster.
PW-12 witnessed the incident. He deposed that at about 17:45
hours, he heard the sound of a single shot fired and when he peeped
outside, he saw a heavily built jawan firing at two constables, who were
filling their magazines in the unit magazine verandah. Thereafter, the
heavily built jawan (petitioner) again fired 2/3 rounds on the jawans.
Then he heard Prem Chand (PW-2) shouting-'bachao, bachao'. He then
went out of the Guard Room and saw constable Baljinder Singh and
constable Sanjay Malviya holding the petitioner and Prem Chand (PW-2)
was holding the Insas Rifle. Then, he saw the injured jawans lying in a
pool of blood.
PW-13 heard the shots and by the time he reached the place of
occurrence he saw the two injured constables being evacuated from the
spot.
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PW-18 also heard the sound of firing and somebody crying out-
'bachao, bachao'. He saw ASI/Pharmacist and HC/Nursing Assistant
coming out from the unit room with first aid box and stretcher. He then
picked up the oxygen cylinder and followed them.
40. The evidence of all the witnesses, PWs-1, 2, 3, 4, 6, 9, 12, 13, 18 and
some more prosecution witnesses reveal that the witnesses saw two
constables lying in a pool of blood in an injured condition. It could be
deduced from the evidence that as the petitioner fired indiscriminately, the
constables Sagir Alam and Varadagiri Chinna Raydu sustained the fatal
injuries. They were helped into the ambulance by all the BSF personnel, They
were carrying the stretchers to the ambulance. Meanwhile, the petitioner was
confined by the BSF personnel present at the spot. His hands were tied up
and he was confined.
41. It is also apt to mention at this juncture that the evidence of the
witnesses also reveal that the petitioner sustained injuries on his chest and
he too was taken for treatment. Now, it will be apt for this Court to narrow
down to the point raised by the petitioner that he was provoked by the
deceased Sagir Alam to act in the way he did. The petitioner has not denied
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that he caused the death of Sagir and Varadagiri.
42. It is not denied by the petitioner that he fired at the deceased Sagir
and Varadargiri. There are eye witnesses to this effect and PW-4 and PW-12
witnessed the incident.
43. PW-10 Jitendra Patil is the petitioner's friend. He deposed that on
14.08.2012 at around 17:15 hours, the petitioner called him on his mobile
phone. He has been acquainted with the petitioner for the last four years and
when their unit was deployed to Cooch Bihar, he learnt that the petitioner is
from Maharashtra. As he (PW-10) is also from Maharashtra, they became
good friends. The Unit moved to Koirengei in the month of May, 2012. Tupe
Subash was posted at 111 Bn. BSF. On 14.08.2012, the petitioner, Tupe
Subhash made 3-4 calls on his mobile phone. He received the calls made by
the petitioner who asked him about his wellbeing. When he asked about the
petitioner's wellbeing, the petitioner informed him that he was distressed as
some jawans were harassing him. He (PW-10) then asked the petitioner
whether he reported the matter to CHM, Coy. Comdr. or any senior officials
and the petitioner informed him that he did not apprise anybody about such
harassment. The petitioner also did not give the names of the jawans who
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have been harassing him. The petitioner informed him that he had some
altercation with the jawans and they might assault him. Then he (PW-10)
advised the petitioner to meet Constable Vidhyadhar Kulkarni, who was also
posted at 111 Bn. from 13th Bn. BSF or to report the matter to any other
officer of the Unit. The petitioner repeatedly sought his (PW-10's) advice how
to deal with the jawans who were harassing him and who may also assault
him. The petitioner also informed him that some jawans were referring to
him as 'AIDS patient'. He (PW-10) then advised the petitioner to go the
doctor for a thorough checkup and thereafter, show the medical certificate of
the doctor to the jawans to prove that he is not an AIDS patient. Then, the
petitioner stated that "Main hee kuch karta hoon." He (PW-10) then advised
the petitioner not to get into trouble. The petitioner then asked him (PW-10)
to inform his family members about his altercation with the jawans. He (PW-
10) then informed the petitioner that he did not have their mobile numbers.
The petitioner then informed him that he would himself inform his family
members and disconnected the phone.
44. PW-10 further deposed that on the next day, Sri Amitab Panwar, 21C of
his Unit called him and informed him that the petitioner shot dead two
constables of 111 Bn., and the petitioner also sustained bullet injuries. He
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informed Panwar about the entire conversation between him and the
petitioner.
45. Highlighting the evidence of PW-10 and PW-13, learned counsel for the
petitioner laid stress in his argument that the exchanges between the
petitioner and the deceased Sagir, thus, led to the unfortunate incident. The
evidence is loud and clear that the simmering situation provoked the
petitioner to act in the way he reacted. The Jawan, who according to PW-10,
was harassing the petitioner, was none other than Sagir Alam. This has been
admitted by the petitioner in his written statement and in his statement as
per Rule 93 and 93(2) of the Border Security Force Rules, 1969.
46. PW-13 Thephu Vizo Merrey, an Assistant Commandant has deposed
that at the time of the incident, he heard the thud of two shots fired at that
time. He reached the place of occurrence, i.e. the Unit magazine and saw
some jawans holding a person and when confronted, they replied that the
person fired at two constables. He noticed a pool of blood on the verandah,
and some magazines and live rounds were lying scattered near the pool of
blood. He asked for a rope and tied the hands of the person who fired the
shots and took him to the quarter guard. He noticed a tiny hole on the left
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chest of the injured jawan between the nipple and the sternum and blood
was oozing out from the tiny wound but he could not figure out if it was a
gunshot injury. When he asked the jawan, i.e. the petitioner, he noticed a
comparatively larger wound below the left armpit of the jawan and blood was
oozing out from the wound. Then he could ascertain that it was a gunshot
injury. The jawan/petitioner was forcibly taken to MI room where the
Pharmacist was present and first-aid was provided to the petitioner, who was
referred to the District Hospital at Zunheboto.
47. PW-5 and PW-14 are the doctors and PW-15 and PW-11 are the
Pharmacists. PW-16 is the Investigating Officer and PW-17 is the Armourer.
Proper treatment was provided to the injured petitioner, who finally recovered
from the injuries.
48. As per Section 134 of the Indian Evidence Act, the evidence of a single
witness, if found reliable will suffice. In this case, we have the evidence of
PW-10, who was aware of the harassment endured by the petitioner.
Although PW-10 has not named the person tormenting the petitioner, the
evidence of PW-10 and the statement of the petitioner leads us to believe
that Sagir Alam was the tormentor.
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49. It is further submitted that when several questions were asked to the
petitioner on the evidence projected against him by the prosecution and
when his statement was recorded, he had categorically stated in his answers
to Question No. 3 that the deceased Sagir Alam used to taunt him for his
snoring disorder. To Question No. 4, the petitioner has categorically replied
that on 14.08.2012, he was ridiculed by Sagir Alam, for suffering from AIDS.
He has categorically denied in his answers to Question No. 6 and stated that
he had no intention to shoot him or any other person. This statement
corroborates the evidence of PW-10.
50. Through his written statement, the petitioner has stated that he was
enraged as Sagir Alam made fun of him for his weight and for having AIDS
and for his snoring disorder. On the date of the incident, when Sagir Alam
made fun of him, it was the last straw that broke the camel's back and he
flew into a rage, which resulted in the disastrous incident. The written
statements also depict that he was remorseful and he tried to take his own
life after the unfortunate incident. Although the petitioner did not adduce any
evidence in his defence, he submitted a written statement. He has also
admitted in his answer to Question No. 24 that he had a conversation with
Jintendra Patil- PW-10 and he informed him about the harassment he was
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subjected to, by Sagir Alam and he informed Jitendra Patil about the
harassment he was subjected to, by the deceased Sagir Alam and he
admitted that he told PW-10, Jitendra Patil that as he was being
harassed-"Main hi kuch karta hu" and immediately thereafter, the incident
took place. Thus, it has surfaced through the evidence and the statements of
the petitioner that prior to the incident, he was taunted by some Jawans and
this provoked him to open fire at Sagir Alam, who was the Jawan, the
petitioner was complaining about to PW-10.
51. I have scrutinized the impugned findings dated 03.10.2013, passed by
the GSFC, along with the order dated 15.09.2024, confirming the sentence
and the findings of the Force Court. It is not disputed that the petitioner is
responsible for the death of Sagir Alam and Constable Varadagiri Chinna
Raydu. The following has been elaborately discussed by the Court-
"......On reaching the Magazine morcha he saw Ct Sagir Alam and Ct Varadigari
Chennarayudu were seen sitting close to each other and filling their magazines on the
verandah of the Magazine. While he was searching for his umbrella, Ct Sagir Alam who was
filling the magazine mockingly said the following words to the accused, "He makra Mottu
major tum aur Das major chhutti ke douran apni aurat se sex nahi karta hoga aur hi koi
karta hoga" and after saying this he spit at the accused. These words by Ct Sagir Alam, who
was more than 20 years junior, involving purely personal matters between the accused and
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his wife was so insulting and difficult to digest that the accused felt humiliated and hurt. His
self-respect was at stake. It suddenly provoked him up to such an extent that he lost self-
control of his senses which led him to immediately cock his rifle then and opened fire on Ct
Sagir Alam.
As this issue is not under dispute and the accused admitted the issue hence, in the
light of available evidence, the Court takes this issue that the death of No. 101325310
Constable Sagir Alam of 111 Bn BSF was caused by the accused by firing shots from 5.56
INSAS Rifle Butt No 81 Body No 16624393, at about 1745 hrs, on 14th Aug 2012 at Bn HQ,
Satakha Nagaland as "proved".
52. It was held by the Court that there was sudden provocation due to
which the accused (petitioner) fired on Constable Sagir Alam, but the Court
did not believe the version that the accused passed some lewd remarks
against his wife and these sentences were an afterthought. It was also held
by the court that statements of PWs-7, 10 and 13, depict that there was
provocation from the deceased, but the provocation was not to such an
extent or not so grave that the petitioner deserves the benefit of Exception-1
of Section 300 IPC. It was held by the Court that the act of the petitioner falls
under Clause-1 of Section 300 IPC.
53. It is also apt to mention that while discussing the issue on second
charge, the learned Court has elaborately discussed that the petitioner made
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a confessional statement before Sri T Nanseng Sangtam, PW-7, on
16.01.2013, at about 1430 hours, that on 14.08.2012, after collecting the
Insas weapon, he was insulted by Sagir Alam with abusive words and on the
very spot, he intentionally fired 14 rounds at Sagir Alam, but unfortunately
another jawan constable, Varadagiri Chinna Raydu, who was alongside with
Sagir Alam, was also shot by him.
54. The learned counsel for the petitioner has submitted that the Court has
misconstrued that this intentional firing of 14 rounds at Sagir Alam, as
murder being committed by the petitioner as death was caused intentionally,
whilst what the petitioner meant was that he had fired 14 rounds, on being
insulted by the deceased Sagir Alam. Thus, the sudden provocation by the
deceased was evident and this has been ignored by the learned Force Court.
55. We find substance in the argument of the learned counsel for the
petitioner.
56. The evidence of the witnesses clearly depicts that the petitioner had no
intention at all to cause the death of Varadagiri Chinna Raydu, but
unfortunately, Varadagiri also sustained fatal wounds, at the same time.
57. We agree with the findings of the learned trial Court that after firing 14
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rounds at Sagir Alam and after causing the injuries on Sagir Alam and
Varadigiri, the petitioner pointed the gun towards himself and opened fire.
The petitioner also had to be taken for treatment. The evidence of Assistant
Commandant, PW-13, Thephuvizo Mere, was relied upon by the Court to
arrive at a decision that the petitioner tried to commit suicide. The learned
Court relied on the evidence of PW-13, who stated that the petitioner who
was taken on 14.08.2012, to the Zunheboto hospital for treatment was
aggressive and he uttered words like-"leave me, I want to kill myself, I want
to die." "Give me dah, I want to die, shoot me, I want to die." The learned
Court although acknowledging that the petitioner confided before PW-13 that
Sagir Alam insulted him and then he fired at him, but accidentally, Constable
Varadigiri also succumbed to the injuries, was not considered to be a
situation, where the petitioner was provoked by Sagir Alam to act in the way
he did. It was held by the Court that the petitioner cannot be given the
benefit of the Exception-1 of Section 300 IPC. It was held by the Court that
the conduct of the victim Sagir Alam and the words uttered by him were not
to such an extent as to cause sudden provocation and cause the death of the
person, who gave the provocation. The Court, however, relied on the same
set of evidence and held that the petitioner had no intention to kill Varadagiri
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Chinna Raydu.
58. This Court agrees with the decision of the Force Court that the
petitioner had no intention to kill Varadagiri Chinna Raydu. However, in the
wake of the foregoing discussions, it is held that there was indeed grave and
sudden provocation, which induced the petitioner to fire at the deceased
Sagir Alam.
59. The petitioner has relied on the decision of Hon'ble the Supreme Court
in Criminal Appeal No. 2232 of 2023, arising out of SLP Crl. No. 9777/2022,
wherein vide order dated 01.08.2023, it has been observed that-
"12. It is not in dispute that the relations between the deceased on one hand, and the
other members of the family consisting of the appellant, wife of the deceased, his son, the
original accused, and Priyanka (PW-1) daughter of the deceased, on the other hand, were
not cordial. If the testimony of PW-1 is read as a whole, it would reveal that her father and
mother often quarreled. PW-1, in her evidence, has stated that the deceased Mast Ram
fractured the leg of her mother during one of such quarrels, and a criminal case was also
pending against him for the said offence. Her testimony would show that her father was
residing separately in the old house whereas the three other members were residing
separately. It is stated that, on the date of the incident, she got up at about 07.00 o'clock in
the morning and asked her father to give Rs.500/- as she wanted to take part in the NCC
Camp. Her father refused to provide the said amount. PW-1 narrated the said incident to her
mother. Her mother asked her father to give the said amount to her. Even then, the father did
not provide the said amount. Thereafter, a quarrel started between her father and mother.
Her mother gave blows with a stick on the head and legs of her father. Her father sustained
injuries, which led to his death.
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13. It is to be noted that the weapon used in the crime is a stick which was lying in the
house, and which, by no means, can be called a deadly weapon. Therefore, the possibility of
the appellant causing the death of the deceased while being deprived of the power of self-
control, due to the provocation on account of the deceased not agreeing to pay Rs.500/- to
PW-1, cannot be ruled out."
60. In the instant case too, the evidence of PWs-7, 10 and 13, clearly
reveal that the petitioner on earlier occasion was also taunted by Sagir Alam
and on the day of the incident, the victim passed such lewd remarks, which
infuriated the petitioner and he flew into a rage and being deprived of the
power of self-control, he fired indiscriminately and thus, caused the death of
not one but two persons, at the same time. It is true that the offence is
deplorable as two lives were lost at the same time, due to the act of the
petitioner. The evidence also reveals that the petitioner was taunted on
earlier occasions by Sagir Alam. On the fateful day, after calling names, Sagir
Alam also spat at the petitioner.
61. The evidence of PW-13 also depicts the conduct of the petitioner after
the incident, as per Section 8 of the Indian Evidence Act, 1872. It is apparent
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that the petitioner was remorseful and he wanted to die after the incident
and went to the extent of committing suicide. The petitioner was not
successful in his attempt to commit suicide. However, his subsequent conduct
reveals his state of mind. The facts and circumstances of this case clearly
depicts that the incident cannot be termed as a cold-blooded murder,
although two persons have died due to the unfortunate incident. Although
the petitioner aimed and fired at Sagir Alam indiscriminately, unfortunately,
Varadagiri Chinna Raydu came within the line of fire and sustained the fatal
injuries, despite the fact that the bullets were not meant for him.
62. It is manifestly clear that the petitioner was provoked to act in an
aggressive manner, on being provoked by Sagir Alam. Thus, the mens rea or
intention to commit murder cannot be attributed to the petitioner. The sequel
of events leads us to believe that this case was within Exception-1 to Section
300 of the IPC, which reads:-
Exception 1.--When culpable homicide is not murder.--
Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the
provocation or causes the death of any other person by
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mistake or accident.
The above exception is subject to the following provisos:
--
First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
63. In view of the foregoing discussions, the conviction of the petitioner is scaled down to Section 304 Part-I of the IPC and he is sentenced to Rigorous Imprisonment for 10 years and a fine of Rs. 1,000/- and in default of Page No.# 38/38 payment of fine, to undergo Rigorous Imprisonment of one month. The judgment and order dated 03.10.2013, in connection with the "Trial of No. 900039263CT Tupe Subhash of 111 Battalion, BSF", convicting the petitioner under Section 302 IPC and sentencing him to undergo Rigorous Imprisonment for Life, is hereby set aside. The period of detention already undergone by the appellant is set off with the period of custodial sentence.
64. In terms of the above observations, this writ petition stands disposed of.
65. Send back the LCR.
JUDGE JUDGE Comparing Assistantc