EX CT RAJESH KUMAR Vs. UOI

JUDGEMENT

(1.) PRADEEP NANDRAJOG, J. (Oral) 1. Petitioner, employed as a Constable under Border Security Force and attached to the 63 rd Bn. was on duty at the Indo -Bangladesh Border and deployed at BOP Ashrafpur on 25.7.2002. He caused the death of one Smt.Japani Choudhary W/o Baijnath Choudhary by firing shots from his 7.62 mm SLR (Self Loading Rifle). The petitioner was charged for the offence punishable under Section 302 IPC i.e. of having murdered Smt.Japani Choudhary as per charge dated 27.3.2009 framed against the petitioner. It may be noted that for the purposes of trial, the petitioner was attached with the 123rd Bn. BSF and the trial was at the General Security Force Court. The Presiding Officer of the Court was Deputy Inspector General P.K.Mehta and the Law Officer to advise the Court was Subhash Kumar LO GDE -II/DC.

(2.) AFTER the prosecution led evidence, the petitioner, in presence of R.K.Kanwar 2 -IC, the defending officer, made his statement in defence on 6.7.2009 which reads as under: - "Before the Honble members of GSFC, On 25 July 2002, while at BOP Ashrafpur, I was detailed for OP duty at OP No.2 along with No.89007471 Ct.Pranjit Brahma who was OP Comdr. At about 1400 hrs, I observed through binocular approx 10 -12 women going from village Falimari side towards IBB road and border. Some of them were carrying aluminum and plastic cans. I told about this to OP Comdr, who was making entries in register in respect of villagers who wanted to go ahead of IBB road for grass cutting, farming etc. On being told by OP Cmdr, I went to check that illegal movement of group of women since the women normally indulged in smuggling of country made liquor to Bangladesh. When I reached near them, I asked them to stop & not proceed ahead of IBB road without making entry in register at OP point and also to get their containers checked. Some of the women stepped back while others tried to forcibly go ahead by arguing and abusing me. While facing towards them I moved back towards forward slope of IBB Road. I again asked them to stop on which they started pelting stones towards me. Seeing their aggressive posture, in self - defence, I fired one round in upward direction while backing away from them and had also slipped while moving backwards on the steep gradient of forward slope of IBBR. The women did not stop, charged and threw dahs on me. Fearing imminent threat to my life, I fired two more rounds towards the women without aiming, in self defence. One of them women was injured and was evacuated to Distt. Hosp. Malda by Offg Coy Cdr who reached the P.O. immediately after the incident. Later, I learnt that she had died in Malda. I had fired purely in self defence to save myself. Had I not fired in self defence, I may not have survived since the villagers led by women had earlier also brutally beaten up, caused grievous hurt and maimed BSF persons on duty in the same area."

(3.) SECTION 96 to Section 106 of the Indian Penal Code deal with the right of private defence and briefly stated, vide Section 96 of the Penal Code, nothing would be an offence which is done in the exercise of the right of private defence. Vide Section 97, subject to the restrictions contained in Section 99, every person has a right to defend his own body against any offence affecting the human body. The exception under Section 99 pertains to acts in relation to public servants acting in good faith and under colour of office. Section 100 of the Code illustrates the circumstances and situations where a killing is justified. In a nutshell, Section 100 of the Code justifies the killing of an aggressor when apprehension of a crime against the accused is likely, as enumerated in the 6 clauses of Section 100. The first clause applies to cases where there is reasonable apprehension of death; the second clause is attracted where a person has a genuine apprehension that his adversary is going to attack him and he reasonably believes that the attack will result in a grievous hurt. In that event, the person apprehending assault can go to the extent of causing the latters death in the exercise of the right of private defence, even though the latter may not have inflicted any blow or injury on him.