UNION OF INDIA Vs. SUKHLAL SARKAR

JUDGEMENT

(1.) Appellant-Sukhlal Sarkar was a Constable in 16th Bn. of Border Security Force (BSF). While on duty on 13-7-96, he had an altercation with Head Constable M. Robin and Constable Sanjoy Kumar Dubey following which he became infuriated and opened fire from his rifle killing Dubey and injuring Robin. After full dressed trial by the General Security Force Court (for short, 'the GSFC'), he was convicted under Section 302, IPC and sentenced to RI for life. He was also dismissed from service. The order of punishment dated 19- 11-98 of GSFC was confirmed on 2-1 -99 by the Inspector General (IG), BSF. Being dissatisfied he filed the writ petition (W.P. (C) No. 562/99) challenging the order of conviction, sentence and dismissal and by the impugned judgment dated 13-9-01, the learned single Judge converted the conviction from 302, IPC to 304, Part-I, IPC and then reduced the sentence from life imprisonment to 10 years' RI only on the ground that the Law Officer failed to explain to the GSFC the Exceptions embodied in Section 300, IPC as a result of which the members of GSFC failed to assess the legal consequences of such exceptions and to distinguish the penal provisions of Sections 302 and 304, IPC. Against this judgment and order of the learned single Judge, the present writ appeal has been preferred by the Union of India and other 3 respondents.

(2.) The short facts leading to the unfortunate occurrence are that on 13-7-96, the appellant along with Head Constable M. Robin and Constable Sanjoy Kumar Dubey were on "Naka" duty. After walking a kilometer together, the appellant expressed his grievance that though he had done guard duty till 1600 hours he was again assigned for "Naka" duty at 1800 hours. After reaching a brick field the Head Constable detailed the duty schedule assigning 1 hour 30 minutes duration for each. When the appellant was woken up by the Head Constable for duties he was annoyed and abused and refused to get up. The Head Constable shook his leg and compelled him to get up for duty which made the appellant infuriated and while moving with them he continued to express his grievance abusing both Robin and Dubey. At one point of time, Dubey slapped and pushed the accused down which provoked the appellant to open fire from his rifle. Fearing that the appellant might shoot, both of them were on their heels running towards a tree to take shelter about 20 yards away. The appellant chased them and opened fire from his rifle injuring both Robin and Dubey. Dubey's injury proved to be fatal, but Robin survived and left for nearby BOP for help. Robin along with 3 other Constables from the BOP returned to the place of occurrence where they found Dubey already dead.

(3.) The appellant faced 4 charges under Section 302, IPC for causing death of Sanjoy Kumar Dubey, under Section 307, IPC for opening fire on M. Robin with intent to kill him, under Section 18(1) of the BSF Act for deserting the service and under Section 32(a) of the BSF Act for taking away one SLR, 2 live Rds and 2 magazines of the rifle which were the properties of the Government issued to him. During trial, the GSFC examined as many as 13 witnesses including the only eye-witness M. Robin for the prosecution, the accused explaining him the prosecution evidence providing opportunity to state his defence and then examined 3 witnesses for the defence. On the basis of the evidence on record, the GSFC found the appellant guilty of all the charges, convicting him under Section 302, IPC, heard him on quantum of sentence and sentenced him to suffer imprisonment for life and dismissal from service. As required by the BSF Act, the findings and the sentence of the GSFC Court were confirmed by the IG.