Jammu & Kashmir High Court Upholds Acquittal Of BSF Personnel In Army Patrol Firing Case That Occurred During Kargil War

The Jammu and Kashmir and Ladakh High Court has recently upheld the acquittal of Border Security Force (BSF) personnel accused in the highly controversial Army patrol firing case that took place on the fateful night of July 16/17, 1999 during the Kargil War.

"Unfortunately, respondents have been roped in, merely on the basis of suspicion, otherwise, there is absolutely no evidence to establish that respondents had deliberately fired upon the Army patrol party", a bench of Justices Sanjay Dhar and Rajesh Sekhri observed.

The court was hearing an appeal against the judgment handed down by the Sessions Court clearing the respondents of charges under Sections 302/307/34 of the Ranbir Penal Code (RPC).

The prosecution's case centered around an incident where an army patrol party, led by Lieutenant Sanjiv Dahiya, was on its way to a forward post when it approached a BSF bunker. It was alleged that the BSF personnel on duty opened fire on the patrol party, resulting in the tragic death of three Army personnel and grievous injuries to another soldier.

Initially, the incident was considered to be an accidental death, but it took a different turn when the injured soldier, Sepoy Keshav Singh, came forward with a shocking revelation. Sepoy Singh, in his testimony, claimed that the patrol party had signaled the BSF bunker using a flashlight, but received no response. Upon further investigation, Dahiya found the BSF personnel sleeping upstairs. Allegedly, when Dahiya reprimanded them, the BSF personnel indiscriminately opened fire, leading to the unfortunate casualties.

Based on the Sepoy's testimony, an FIR was registered, and a comprehensive investigation was initiated. The prosecution presented a total of 28 witnesses in an attempt to establish the guilt of the accused and had argued that the BSF personnel's actions were intentional and demonstrated a disregard for human life. They presented ballistic reports, which showed that the bullets recovered from the deceased soldiers matched the weapons issued to the accused BSF personnel. Additionally, the prosecution highlighted the fact that no evidence of an exchange of fire or any threat to the BSF bunker was found.

On the other hand, the defendants contended that the prosecution's case was based on circumstantial evidence and lacked concrete proof linking them to the crime. The defence argued that the witnesses' testimonies were inconsistent and contradictory, and the prosecution failed to establish a motive for the alleged attack.

After careful analysis of the prosecution's evidence, the trial court had concluded that the involvement of the defendants in the alleged offences was merely based on suspicion and accordingly acquitted the BSF personnel.

Aggrieved of the acquittal, the State of Jammu and Kashmir preferred an appeal before the High Court and argued that the trial court had erred in its assessment of the evidence and that the acquittal was a miscarriage of justice.

Upon careful examination of the statement of injured PW-Keshav Singh and the testimonies of rest of the prosecution witnesses, the Division Bench found that the testimonial potency of the injured is not only discrepant on material factual aspects, but it does not inspire confidence to sustain conviction of the respondents.

Elaborating on prosecution witnesses, the court pointed out that the prosecution's star witness, Sepoy Keshav Singh, claimed that Captain Sanjiv Dahiya and Sepoy Ram Paul provided passwords and information to the BSF personnel. However, inconsistencies emerged as other witnesses contradicted this statement. The 2nd in Command, who allegedly provided the passwords, was not examined, and witnesses mentioned different individuals as the source of the passwords and this crucial testimony of the injured witness lacked corroboration and was falsified on this crucial point, the bench underscored.

The court further added that the prosecution's failure to provide evidence of serious injuries sustained by witness Keshav Singh, undermines the credibility of their case as without medical evidence or documentation, the prosecution's claims are weakened.

Observing that the unfortunate incident happened during the breakout of "Kargil War" the bench noted that during the Kargil War, forces on the border were ordered to be vigilant with restricted movement and shoot-at-sight orders to prevent enemy infiltration.

"Pertinently, the restrictions were not for the common people only but forces were also advised to exercise restraint to coordinate between themselves as and when they were expected to move along the border", the bench recorded.

Witness testimonies reveal that coordination between forces was maintained through daily-changing passwords and during the incident, amidst rain, thunderstorm, and firing from across the border, a lack of coordination between the Indian Army and the BSF resulted in these casualties, the bench said.

Stressing that sole testimony of the injured has not been corroborated by any prosecution witness and does not inspire confidence to sustain conviction the court dismissed the appeal, and concluded that suspicion, howsoever great, cannot take place of legal proof and conviction cannot be sustained merely on the basis of surmises and conjectures.

Case Title: State of J&K Vs Gulji Bhai & Ors.

Citation: 2023 LiveLaw (JKL) 170

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