KHOKAN MAHISHYA DAS Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner is the husband of Sandhya Rani Mahishya Das and father of Suparna Mahishya Das. Sandhya Rani Mahishya Das along with Suparna Mahishya Das and Malay Mahishya Das were proceeding towards their home from one place of Indian territory to the other place in the Indian territory along the international border with Bangladesh but without crossing it. All on a sudden the BSF personnel belonging to 18 Bn. BSF at Ranibari at about 1900 hours on 03.03.2006 fired 10 rounds of bullets from their Insas rifles. On that day itself one FIR was filed to the Officer -in -Charge of Kadamtala Police Outpost stating that, "At 1900 hrs above B/Amb comprising coy Cdr & HC surrender Kumar with two others observed/heard hassling and cracking sound of leaves. Followed by silhouette of men carrying long "Dah" when these intruder were challenged, they changed the party and in self -defence party member Ct. S.N. Yadav fired 10 rds from his Insas No. 571".

(2.) IN the said FIR it has been further disclosed that two persons namely Sundara Masu (sic) Das and Suparna Masu (sic) Das had bullet injuries on their person. But in the FIR they stated that on so called questioning the injured persons admitted that they were returning from Bangladesh. From them, it has been disclosed that, some Bangladeshi currency notes, audio cassette, cosmetics, cigarette etc. were recovered. But the petitioner has stated that the said version of the BSF has nothing to do with the real state of affairs. According to him while his wife and children were returning from the house of a relative on 03.03.2006 after dusk, BSF personnel opened fire on them unprovoked. His injured wife and daughter were taken to Kadamtala Primary Health Centre at the instance of the BSF personnel and thereafter they were taken to the Kailashahar District Hospital. But Sandhya Rani Mahishya Das, his wife died on 06.03.2006 succumbing to the bullet injuries. But his daughter was released after treatment. At the instance of Malay Mahishya Das, son of the petitioner, Churaibari PS Case No. 12 of 2006 under Section 326 added with Sections 307 and 302 of the IPC was registered and taken up for investigation.

(3.) BASED on the said police report, a case being CR 231 of 2006 was registered. After the statement of accusation was read over and denied by the accused Malay Mahishya Das, the trial commenced but for wanting of any evidence he was acquitted. From the judgment and order dated 05.02.2007 delivered in CR No. 231 of 2006 by the Judicial Magistrate, 1st Class, Dharmanagar, North Tripura it transpired that the accused Malay Mahishya Das is an Indian National and in support of this he submitted some documents which were found fully reliable. It has also appeared that the place where the occurrence took place was dark and the BSF personnel fired on the accused persons without alert. For such unwarranted firing, Sandhya Rani Mahishya Das had expired and her daughter sustained bullet injury on her person. PW -3, Satyanarayan Yadav, a constable of 18 Bn. BSF of Ranibari BOP has also admitted that on the relevant date, time and place he fired on the accused persons. He has further admitted the fact that the BSF personnel fired the mother and sister of the accused person, Malay Mahishya Das and due to the said firing Sandhya Rani Mahishya Das, mother of the accused person died at the G.B. Hospital, Agartala. From a bare reading of the said judgment and order it appears that the seizure from the deceased and others was not proved and the seized articles were not identified by the independent witnesses. The trial court has further observed that