DIRECTOR GENERAL BORDER SECURITY FORCE Vs. IBOTON SINGH

JUDGEMENT

(1.) THE respondent herein, namely, Kh. Iboton Singh, while working as a constable in 95 Bn. of the Border Security Force (in short, 'the BSF'), was arrested, on 15-12-84, by police in connection with Moreh Police Station Case No. 65 (12/1984) under Section 302 IPC on the allegation that he had stabbed to death constable Gharbaran Ram of 95 Bn. of BSF, the FIR against the accused having been lodged by the Coy. Commander, Moreh Coy. The BSF authorities exercised their discretion, under Section 80 of the Border Security Force Act, 1968 (in short, 'bsf Act'), to institute a General Security Force Court (in short, 'gsfc' ). A GSFC was accordingly convened and the respondent herein faced the trial on the charge of having intentionally caused death of constable Gharbaran Ram, on 14-12-94, by stabbing him with a knife, and committing thereby the civil offence of murder punishable under Section 302 IPC, the case of the prosecution being, in brief, thus: On 14-12-84, while Barbar Keshab Thakur of 95 Bn. BSF was cooking chicken in the kitchen-room of Coy HQ, the accused-respondent was also present there along with constable Ghabaran Ram (since deceased ). At that time, CQMH Mazumder came there and enquired as to why so many children were dining in the kitchen-room daily. Constable Ghabaran Ram replied by saying that the children had been dining there since long. Reacting to what constable Gharbaran Ram had said, the accused remarked by replying that his child had taken food in the kitchen only once and he (the accused) would make payment for the same. Ghabaran Ram retorted by saying as to who he (the accused) was to make the payment. Following exchange of words between the accused and the deceased, a scuffle took place between them and both of them hurled abuses on each other. The deceased, then, left for the barrack, but the accused remained inside the kitchen-room. Shortly thereafter, Ghabaran Ram was heard shouting, "iboton sale aoo; main batata hun. " It was quite a dark night and as the deceased shouted exhorting the accused to come out of the kitchen- room, the accused also replied by saying, "sale mareko mat bulao, accha nahi hoga. " Barbar Keshab Thakur, in the meanwhile, went to fetch water and the accused went out of the kitchen-room. Moments thereafter, Barbar Keshab Thakur heard HC Lal Bahadur and constable Choubay Singh uttering, "ghabaran Ram ko marker Iboton bhag gaya" or words to that effect. The other witnesses had also heard the deceased exhorting the accused to come out and the accused uttering to the effect that he was coming out and, two or three minutes thereafter, the deceased was seen coming back towards the door of the kitchen with injuries on his person and a knife in his right hand, the deceased holding the grip of the knife pointing towards himself and blade towards the opposite direction. Looking at the condition of injured Ghabaran Ram, HC Lal Bahadur Chetri asked the injured as to what had happened to him and the injured replied by saying, "iboton ne maar diya" or words to that effect. The injured was, then, taken to Moreh hospital and while undergoing treatment there, the injured succumbed to his injuries. The accused disappeared in the darkness and remained untraceable. Pursuant to an FIR lodged by Coy. Commander, a case was registered, as mentioned above, against the accused. Thereafter, the accused was arrested and put on trial as indicated hereinabove.

(2.) IN support of their case, the prosecution examined as many as 13 witnesses. The statement of the accused was, then, recorded. The accused also adduced evidence by examining himself as a witness, his case being, briefly stated, thus : An altercation had taken place between him and the deceased inside the kitchen-room. HC Nirmalaya Mazumder got them separated and sent the deceased towards his living barrack; whereas the accused stayed back inside the kitchen-room. While leaving the kitchen-room, the deceased abused the accused. Thereafter, the deceased called the accused repeatedly by saying, "iboton aoo", whereupon the accused too retorted by saying "main araha hun"; but barely after taking about 10 steps towards the living barrack, the accused felt scared, because of the darkness and thought that he might be harmed by the deceased in the darkness. The accused, therefore, walked towards the market instead of proceeding towards their living barrack. On the way to the market, the accused fell down and sustained injury, whereupon he went to a dispensary in the market, but, having found the same closed, he went to the quarter of constable driver, Shekhar Singh, of Moreh Police Station, because the said driver was known to the accused. As the said driver was not present in his residential quarter, the accused waited for the driver for quite sometime. However, when the driver arrived, he asked the accused by saying, "tum ne apne BSF camp ka ek admi mar diya, woh hospital me mar giya; BSF ka admi rifle le kar tum ko mardene ke lie dhund raha hai. " The accused felt stunned, because he had not injured or killed anyone and he was completely innocent. As the accused felt frightened, he left the residential quarter of the said driver and proceeded towards Moreh police station; but he did not go inside the police station and stayed in his deserted hut for the night and, on the following day, in the morning, he was arrested by the police from the said hut.

(3.) AFTER the prosecution and the defence delivered their respective closing addresses, the Law Officer summed up the case and the Members of the Court returned the verdict of 'guilty' against the accused. On the basis of the finding of guilt reached against the accused, the accused, on 30-7-88, was sentenced to imprisonment for life and also dismissal from service. The finding and sentence, so rendered, were confirmed by appropriate authority on 4-11-88. The accused, then, made an application seeking review of the finding reached against him by the GSFC and the sentence awarded to him. As this application did not yield any favourable result, the accused moved this High Court with an application under Article 226 of the Constitution of India challenging the finding of guilt reached by the GSFC and the sentence passed against him. This writ application gave rise to Civil Rule No. 444/1989. The learned Single Judge found, amongst others, that the case against the accused was based on circumstantial evidence, but the circumstantial evidence was not of conclusive nature. The learned Single Judge also found, as regards the oral dying declaration, which the deceased had allegedly made, that there was a qualitative difference as regard the words, which were said to have been used by the deceased, while describing the accused as his assailant. The learned Single Judge noted that the blood-stained knife had not been sent for chemical examination and nobody had proved that the knife, in question, was ever used. The learned Single Judge also noted that the summing up of the Law Officer was not legal and proper inasmuch as the Members of the Court had not been adequately told the difference between 'culpable homicide amounting to murder' and 'culpable homicide not amounting to murder', though the GSFC, in the facts and circumstances of the case, ought to have been told by the Law Officer that it is their duty to examine if the acts already done by the accused constituted offence of 'murder' or 'culpable homicide not amounting to murder'. The learned Single Judge took the view that there was no sufficient evidence of conclusive nature, which could make a prudent person reach verdict of 'guilty' against the accused. The learned Single Judge further took the view that even if the law and facts had been properly explained and summed up by the Law Officer, it was not possible to predicate that the accused could have been legally found 'guilty'. For the reasons, so assigned, the learned Single Judge held that the finding of guilt reached by the GSFC was not sustainable. The finding of guilt reached by the GSFC and the sentence awarded to him were accordingly set aside by the impugned judgment and order, dated 20-6-97. Aggrieved by the outcome of the writ petition, the BSF authorities have preferred the present appeal.