Calcutta High Court Commutes Life Sentence Of Border Security Force Constable Who Fired 20 Rounds Of Bullets Resulting In Civilian's Death

The Calcutta High Court in a plea under Article 226 of the Constitution has commuted the murder charges against a Border Security Force (BSF) soldier to attempt to murder, for the offense of firing 20 rounds of bullets, which resulted in the death of a civilian. 

A single bench of Justice Ajay Kumar Gupta commuted the charges under Sections 302 (murder) & 307 IPC (attempt to murder) to Sections 304 (culpable homicide not amounting to murder) & 308 IPC (attempt to culpable homicide), and directed for the release of the ex-soldier for the 11-year imprisonment already undergone. 

It said: The offence in question was not murder but it was an offence of culpable homicide not amounting to murder as specified in Exception 4 to Section 300 and hence, the petitioner is punishable under Section 304 Part II IPC and Section 308 part II instead of Sections 302/307 of the Indian Penal Code read with Section 46 of BSF Act, 1968.  Accordingly, the conviction and sentenced is altered by directing to undergo sentence of 10 years. As the petitioner already suffered more than 11 years' imprisonment would suffice the sentenced imposed by this Court. Accordingly, Petitioner shall be set at liberty forthwith.

Facts:

The petitioner, Constable Vijay Prakash, was convicted of the offense of murder and attempt to murder for firing 20 rounds of bullets which resulted in the death of a civilian boy.

The case consists of multiple writ petitions since the shooting took place in 2010, and the petitioner's plea against the GSF Court order which declined to interfere with the conviction of murder/attempt to murder, was assigned to the single bench by the Chief Justice.

On 1st December 2010, Prakash and another constable Sanjeev Rai had stopped at a civilian shop near their base.

Prakash asked Rai to go back to camp, and when Rai reached, their commander inquired about the whereabouts of Prakash. It was submitted that Rai had informed the commander that Prakash had consumed alcohol and was standing at a shop in an intoxicated condition.

It was argued that the commander, Inspector Yaqub along with other colleagues went to bring Prakash back to base.

On reaching the shop, it was submitted that Prakash was seen arguing with the shop keeper, who said that he was trying to get Prakash to return to base, but he was not ready to leave the shop.

It was argued that when Prakash was instructed by his seniors to return to base, he refused to do so, and became furious when the matter was reported to the Adjutant of the unit.

Upon becoming incensed, it was submitted that Vijay Prakash loaded his personal weapon, and started firing toward the shop where his colleagues and civilians were standing.

It was argued that another soldier rushed towards Prakash to stop him from firing but sustained injuries in the process, and the others ran inside towards the village.

It was submitted that Vijay fled from the spot, and later a party of 10-12 personnel was gathered for a rescue mission to the place of occurrence. 

The search party found civilians in an altercation with a soldier and was told that during the firing, a civilian was hit in the abdomen by a bullet and succumbed to his injuries.

Accordingly, the petitioner was charged under Section 46 of the BSF Act, along with the offence of murder and attempt to murder under the IPC.

Accordingly, the GSF Court sentenced him to life imprisonment and directed his dismissal from service.

Proceedings before the High Court

Petitioner's counsel argued that their plea for suspension of sentence was dismissed without giving an opportunity to the petitioner to be heard.

It was submitted that the respondent had overlooked the evidence adduced by the petitioner and that the GSF Court had violated the natural justice rights of the petitioner.

It was argued that there was no previous enmity between the accused and the other individuals, and that the prosecution had failed to prove that the petitioner was under the influence of alcohol.

It was submitted that the victim died due to a delay in taking him to the hospital since no BSF personnel assisted in his rescue and that he would have survived if given proper medical attention on time.

Finally, it was submitted that the firing took place due to a sudden altercation when the BSF personnel informed higher officers of the false allegation that Vijay Prakash was intoxicated and further provoked him by saying “Oye Vijay Prakash Kya Marega Kisi Ko”.

Accordingly, the petitioners prayed that Prakash's sentence be reduced under exceptions 1 and 4 of Section 300 of the IPC, and that he be released for the 11 years he had already served.

Counsel for the respondents raised questions on the maintainability of the plea, arguing that a similar plea was taken before the Delhi HC and that a writ petition would not lie in this case since the BSF Act was a code in itself.

It was argued that the petitioner was a habitual offender and that the DG BSF had examined all the contentions raised by the petitioner, leading to the conclusion that he had indulged in indiscriminate firing, leading to the death of a civilian and bullet injuries suffered by a colleague.

It was argued that the charges had been proven beyond reasonable doubt and that the petitioner was rightly convicted.

Finally, it was argued that the act of indiscriminate firing can't come within the scope of Exceptions to Section 300 of the IPC since the petitioner was working with the BSF for almost 17 years, and was aware of the consequences of the actions of indiscriminately firing his service rifle at civilians. 

Upon hearing the parties, the Court found that the plea was maintainable. It held that the petitioner withdrawing his plea before the Delhi HC did not amount to abandoning his grievances, and that a writ petition would be maintainable to examine violation of principles of natural justice.

Court noted that when the petitioner's superiors went to bring him back from the shop, he would not move, and upon the incident being reported to Base, began loading his gun, shouting at his colleagues and when his colleague said "oye Vijay Prakash kya marega kisi ko," began indiscriminately firing.

It observed that eye-witness evidence had stated that Vijay Prakash and the shopkeeper were not engaged in any altercation and there was scuffing between the petitioner and his colleague, but nothing of the nature to show that Prakash was intoxicated. Court observed:

Firing took place suddenly due to sudden argument and scuffle took place between the petitioner and P.W. 14 and the firing was not aimed fired but it was fired downward. So, there was no intention to kill anyone.

Further evidence regarding the fact that the victim lay injured for more than an hour was recorded by the Court through eyewitness accounts. 

The Court also noted that the doctor who conducted the post-mortem of the deceased had testified that the nature of the bullet wound suffered by the victim could not have caused an instant death.

Consequently, the court declined to repose confidence in the prosecution's case for the following grounds:

First, the story of the altercation with the shopkeeper in an intoxicated state was not proven

Second, no evidence was adduced to show that the petitioner was intoxicated or under the influence of alcohol at the time of occurrence.

Court noted that it cannot be ruled out that the provocation faced by the petitioner from his colleague led to a sudden fit of rage which commenced the firing, and that the test of grave and sudden provocation may apply in this case.

Accordingly, in finding the petitioner's case fit to fall within Exceptions 1 and 4 of Section 300 IPC, the Court commuted his sentence to culpable homicide not amounting to murder, and ordered his release in view of the 11-year incarceration already undergone.

Advocates for Petitioner: Ashima Mandla, Mandakini Singh, Surya Pratap Singh, Ritu Das

Citation: 2024 LiveLaw (Cal) 46