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3. When Ct.B.Kapmilian PW-2, was patrolling in his area, at about 09.40 PM, he heard the sound of gun fire from towards Bangladesh side, whereupon he went to the area where the petitioner was patrolling but could not see him and thus he went to the Coy Headquarters and informed petitioner being missing. As per the respondents, on receiving said information, the Coy Commander Subedar Sunder Singh PW-3, and a few other officers searched the petitioner and in the meantime, at about 10.30 PM, DIG R.Chandra Mohan PW-3 received a telephone call from Col.Mohd. Aftabul Islam, Sector Commander, Bangladesh Rifles (hereinafter referred to as the „BDR‟) that a BSF personnel had entered into village Moyanagri in Bangladesh and fired indiscriminately at the residents of the village, causing death and serious injuries to several villagers and that the villagers had overpowered and beaten the said BSF jawan who was rescued by the jawans of BDR and admitted for medical treatment at the local hospital in Bangladesh.

4. It transpired that one Mohd.Mustafa, a woman Mst.Majeedia Begum and her 8 month old son Mamoon had died as a result of firearm injuries, and Mohd.Shahidul Islam, husband of Mst.Majeedia Begum, was grievously injured. Petitioner was overpowered by the villagers, beaten, but rescued by BDR persons and admitted at the local hospital. DIG R.Chandra Mohan PW-3 and Deputy Commandant Binnar Paul PW-6, persuaded the officials of BDR to hand over the custody of the petitioner to them as also the various objects seized by them from the place of occurrence, which included one 5.56 mm INSAS rifle bearing butt No.328, body No.16914015, 3 empty cartridges, 5 live rounds, 1 pair of jungle boots, 1 pair of anklets, 1 cap and 3 magazines of 5.56 mm INSAS rifle. Thereafter Dr.Tarkeshwar Prasad PW-9 and Dr.Hemanta Chetia from the BSF Hospital went to Rangpur Medical College Hospital where petitioner was admitted in Bangladesh and upon finding him fit, brought him to India in safe custody.

"After assurance to initiate strict disciplinary action against Ct R P Singh as per the law of land, BDR allowed to first send two doctors of BSF to RMCH for examining the condition of the accused, as to whether he was in a position to be taken to India or otherwise. BDR officials agreed to hand over the accused, provided strict disciplinary action was taken against him."

13. HC Balbir Singh PW-7, deposed that on 16.11.2008 an INSAS 5.56 mm rifle bearing Butt No.328 and Body No.1694015 along with 50 rounds and 3 magazines was issued to the petitioner.

17. Relevant would it be to note that no suggestions were given to the witness that he was present at the culvert at the Indo-Bangladesh Border and had received injuries at the culvert or that his wife and son received injuries at the culvert.

18. Md.Abdus Saleem PW-13, deposed that on 16.11.2008 he had organized a party in his house. The party started at around 09.00 P.M. and ended 20-30 minutes thereafter. His brother Gulam Mustafa had also come to his house to attend the party and left for his residence when the party was over. At around 09.30 P.M. accompanied by his cousin brother Safiqul Islam, he had gone to his brother‟s house to bring his daughter when he heard a sound of fire. After about 5 minutes he again heard sound of firing whereupon his brother Gulam Mustafa also came out of his house. While he and his brother were standing in front of his brother‟s house he saw a person coming from the southern side of the house of his brother whereupon he flashed his torch at him. The said person told them that he is a BDR personnel. When he again flashed his torch at the said person he saw that the uniform worn by the person resembled the uniform of BSF personnel. He again made enquiries from the said person upon which the person hurled abuses at him in Hindi. Since said person abused him in Hindi he was sure that the said person was a BSF personnel and not a BDR personnel. He immediately ran from there and hid himself near a pond. At that time the said person opened fire towards his direction. With great difficulty he managed to escape from there and went to his neighbour‟s house and told him to remove his brother Gulam Mustafa to the hospital who was hit by the bullets fired by the person. He went to the BDR post and reported the incident and on return saw his brother being removed to the hospital; where he died. He stated that the person who fired looked like the petitioner.