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 CourtPetitioner'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...

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

Srinjoy Das

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