The conviction for murder was altered to culpable homicide not amounting to murder due to lack of evidence and violation of natural justice principles during the appellate process.

JUDGMENT :

Ajay Kumar Gupta, J:

1. Both writ petitions are taken up together for disposal by a common judgment since similar issues are involved in both the writ petitions filed by the petitioner, Ex. CT. Vijay Prakash.

FACTS LEADING TO FILING OF TWO WRIT PETITIONS:

2. In the first writ petition being WPA No. 31234 of 2017, the writ petitioner has assailed the order dated 04.04.2013 passed by the Director General, Boarder Security Force (herein referred to as The D.G, BSF), Block-10, CGO Complex, New Delhi -110003 in appeals/representations filed by the Jail Authority as well as through his counsel under Section 117 of BOARDER SECURITY FORCE ACT , 1968 (BSF Act) thereby declared the petitioner as guilty and further confirmed the judgment and order of conviction dated 17.04.2012 passed by Learned General Security Force Court (hereinafter referred to as ‘GSF Court’) in a Trial, No. 941062422 Constable Vijay Prakash of 140 BN BSF, whereby convicted him for an offence committed under Section 46 of the BOARDER SECURITY FORCE ACT , 1968 that is say for murder and attempt to murder punishable under Sections 302 and 307 of the INDIAN PENAL CODE , 1860 and sentenced him “To Suffer Life imprisonment and to be dismissed from service”.

The contention of the Petitioner is that appeal was considered by the Respondent No. 3 only on the basis of aforesaid written representations/appeals. No proper appreciation or marshalling of evidences either oral or documentary adduced by the Prosecution have been taken into consideration by the Respondent No. 3. Surprisingly, no opportunity was afforded to the Petitioner to place the case through his learned counsel and thereby violated the principles of natural justice. The Respondent No.3 decided the case without applying his judicious mind and finally confirmed the judgment and order dated 17.04.2012 passed by the GSF Court illegally and erroneously contending therein simply that the appeal is devoid of merit.

Feeling aggrieved by and dissatisfied with the order dated 04.04.2013 passed by the Respondent No. 3/the D.G, BSF, the writ petitioner had earlier preferred a Writ Petition being WP(C) No. 4462 of 2013 before the Hon’ble High Court of Delhi at New Delhi through his earlier counsel on the impression that the territorial jurisdiction lies before the Delhi High Court as the head office of the Appellate Authority is situated in New Delhi. In the said writ petition, the Hon’ble High Court of Delhi on several occasions, directed to file reply and rejoinder to the parties but at the time of hearing, a preliminary question of territorial jurisdiction was raised by the respondents since the alleged incident took place within the State of West Bengal and Trial held in West Bengal on the basis of case originated in the West Bengal. Accordingly, the writ petitioner had to seek before the Hon’ble High Court of Delhi for withdrawal of the writ petition and the said prayer for withdrawal of the said writ petition was simply allowed on 11.12.2014 by the Hon’ble High Court of Delhi.

3. Thereafter, the writ petitioner filed first writ petition being WPA No. 31234 of 2017 before this court seeking for setting aside and/or quashing of the purported order dated 04.04.2013 passed by the D.G, BSF and impugned judgment and order dated 17.04.2012 passed by the General Security Force Court with other consequential relief.

4. The said first writ petition was heard by Hon’ble Justice Arindam Mukherjee of this Court on 05.10.2021 and after hearing and considering the provision laid down in Border Security Force Act and Rules framed thereunder, His Lordship was pleased to pass an order, i