The court upheld the dismissal of a constable for accidental firing, affirming that the trial was fair and charges were proven beyond reasonable doubt.

JUDGMENT :

SUBHENDU SAMANTA, J.

1. Petitioner joined Border Security Force in the post of Constable and he was posted in 47 Battalion, BSF, under the authority of Commandant, 144 Battalion, BSF, Kalayani, District-Nadia, West Bengal.

2. The brief fact of the case is that hence the instant writ petition on 03.09.2013 an accidental firing was done by the Petitioner at B.O.P. Sandeshkhali at 10:10 PM, ASI Ram Singh (PW-4) was wounded in his below left knee position, incidents occurred when the Petitioner in the process of weapon clearing drill prior to depositing his Firearm (NS Rifle) to the KOTE of B.O.P. Sandeshkhali. Thereafter on 04.09.2013 The Petitioner put under close arrest and was taken in BSF custody till 30.10.2014 and by order of the Commandant of 47 BN BSF Mr. J.S. Sandhu the Petitioner was suspended. Thereafter on 05.09.2013 FIR was lodged against the Petitioner by the Coy. Commander of B coy of 47 BN BSF Dilip Kumar Biswas before Hingalgunge Police Station vide Hingalgunge P.S. Case No. 96 dated 05.09.2013 @ 15:15 Pm by alleging that the Petitioner intentionally fired towards S.I. Babu Lal (PW-1) to kill him and also wounded ASI Ram Singh (PW-4). Thereafter on 14.09.2013 Vide an order passed by the Commandant of 47 BN BSF Mr. J.S. Sandhu three charges were framed against the Petitioner as follows:

(a) FIRST CHARGE: Under section 46 of the Border Security Force Act for committing a civil offence that is to say attempt to murder punishable under section 307 of the Indian Penal Code.

(b) SECOND CHARGE: Under section 46 of the Border Security Force Act for committing a civil offence that is to say voluntarily causing grievous hurt by means of an instrument punishable under section 326 of the Indian Penal Code.

(C) THIRD CHARGE: Under section 32(a) of the Border Security Force Act making away with arms and ammunitions (AMN) the property of the Government issued to him for his use. Thereafter on 17.06.2016 an order was passed by the DIG under office of the IG, South Bengal Frontier, BSF to form General Security Force Court to conduct trial of the Petitioner upon above three charges. From 27.06.2016 to 28.07.2016 trial conducted by the General Security Force Court (GFSC) by taking deposition of total number of 13 prosecution witnesses including eye witness cum victim as PW-4 (ASI Ram Singh). Thereafter on 28.07.2026 the Learned GFSC sentenced the Petitioner by pronouncing as “To suffer rigorous imprisonment for two years and to be dismissed from the service.” Thereafter on 10.01.2017 the ADG, BSF confirmed the aforesaid sentence of the Petitioner and subsequently the Petitioner preferred a statutory appeal before the Director General, BSF and such appeal has been dismissed on 30.01.2018 by the Director General, BSF. Hence this Writ Petition.

3. Mr. Soumya Majumder, Learned Counsel appearing on behalf of the petitioner argued that the petitioner was performing weapon clearing drill before depositing the weapon after duty at the time accidental firing was happened. He further argued that the several inconsistencies appeared in the statement of PWs regarding the alleged fact of firing. The authority concerned/prosecution has failed to prove the primary ingredients of offence i.e. mens ria of the petition against the wounded ASI Ram Singh (PW-4). The evidences also disclosed that there are several contradictions regarding the alleged fact of firing. He further argued that the evidences of seizure of used bullets has not been specifically proved the intention of petitioner for causing grievous hurt or causing such an injury which may lead to loss of life.

4. Mr. Majumder further argued that the trial conducted by the authority has not proved the charge against petitioner beyond reasonable doubt. The criminal trial requires the offence/charges to proved beyond reasonable doubt. In this case the authority has acted illegally dealing with the trial of an accidental firing.

5. It is the further argument of Mr. Majumder that there is utter