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2014 Supreme(Del) 790
High Court of Delhi
THE HONOURABLE MR. JUSTICE PRADEEP NANDRAJOG & THE HONOURABLE MR. JUSTICE JAYANT NATH
Madan Singh Bishta
Versus
UOI & Others
W.P.(C) No. 5548 of 2003
Decided On : 11-03-2014
For the Petitioner:Anil Gautam, Advocate.
For the Respondents:Anjana Gosain, Pradeep Desodiya, Advocates.
The main legal point established in the judgment is the application of the right of private defence under the Indian Penal Code and the evaluation of circumstances to determine the reasonableness of apprehension and the use of force in retaliation.
Headnote:
Right of Private Defence - Criminal Law - Section 302 IPC, Section 304 Part I IPC - Summary of Acts and Sections: The court discussed the legal provisions related to the right of private defence under Section 96 to Section 106 of the Indian Penal Code. It highlighted the circumstances justifying the killing of an aggressor under Section 100 of the Code and emphasized the factors to be considered in evaluating the reasonableness of apprehension and the use of force in retaliation.
Fact of the Case:
The petitioner, a Constable with BSF, was charged with culpable homicide not amounting to murder for causing the death of a person. The petitioner claimed self-defence, stating that the deceased assaulted him with a chopper and he fired a shot in self-defence.
Finding of the Court:
The court found the petitioner guilty of culpable homicide not amounting to murder under Section 304 Part I IPC and sentenced him to undergo RI for 10 years and be dismissed from service.
Issues: The key issues included the petitioner's claim of self-defence, the nature of the deceased's assault, and whether the petitioner exceeded the right of private defence.
Ratio Decidendi: The court applied the legal provisions related to the right of private defence and evaluated the circumstances to determine whether the petitioner exceeded the right of private defence.
Final Decision: The court discharged the accused by acquitting him and directed his reinstatement with full back wages and continuity of service for purposes of increments and pensionary benefits.
Pradeep Nandrajog, J. (Oral)
1. The charge at which petitioner, working as a Constable with BSF, was tried at a General Security Force Court was for having committed an offence punishable under Section 302 IPC, in that, near village Thana Basti, PS: Khowai, District Tripura (West) on June 25, 1999 around 19:30 hours he caused the death of Sh.Lalit Deb Barma by firing a shot from his 7.62 mm SLR Butt No.325, Registration No.BC-9989.
2. The finding of the Court is that the petitioner was guilty of culpable homicide not amounting to murder punishable under Section 304 Part I IPC and the sentence imposed is to undergo RI for 10 years and being dismissed from service.
3. Regretfully we note that the petitioner has undergone the sentence for the reason he was declined suspension of the sentence and the writ petition has matured for hearing in the list of final hearing matters today.
4. At the trial the petitioner did not dispute the homicidal death of Lalit Dev Barma. As per him the deceased died when, armed with a Dah (Chopper), he assaulted the petitioner who was on patrol duty; the petitioner warded off the attack by using his SLR as a shield; the deceased tried to snatch his SLR and the petitioner was constrained to fire one shot in self defence.
5. At the trial Asst.Comdt.Kamal Singh Rathore PW-1, the Second In Command : 2-IC M.S.Sharma PW-2, Deputy Comdt.R.S.Jhakar PW-3 and HC R.K.Bhadra, the Post Commander PW-4 deposed that as they heard of the incident they rushed to BOP Asharambari and saw a dead body and the petitioner nearby who informed them that he spotted 5-6 persons in suspicious condition and as he challenged them. Some ran away and one assaulted him with a Dah. They saw a small cut on petitioner’s face below the right eye with a blood clot. The petitioner showed a cut mark on the front hand guard of his rifle. Buttons of the shirt of the petitioner were torn. They also saw a Dah lying there. The local police seized the Dah, the torn shirt of the petitioner and the damaged rifle. The witnesses also stated that militants had in the recent past fired at force personnel in the area, meaning thereby the area was prone to militancy.
6. Dr.Narayan Chandra Saha PW-13 who had conducted post-mortem of the deceased and had also examined the petitioner on the night of the incident deposed that he had observed a minor injury on petitioner’s person and that the post mortem of the deceased showed two injury marks, one caused by the entry of a bullet and the other by the exit; the entry point being just above the right nipple over Mammary Region with black discolouration around the wound. As per him the weapon had been discharged from a close distance of approximately 2 feet.
7. Shambu Telanga PW-6, Smt.Panchmi Telanga PW-7, Manty Telanga PW-8, Draupadi Telanga PW-9, Savita Telanga PW-10 and Surender Dev Barma PW-11 were the local inhabitants and we note that cumulatively read their testimony would be that before the incident a BSF personnel had a fight with Shambhu Telanga. Two personnel came and took along with them the BSF personnel who had beaten him. At that time the deceased was present in house and also left. The BSF personnel who had beaten Shambu Telanga shot dead Lalit Dev Barma. Relevant would it be to highlight that whereas PW-6, PW-7 and PW-8 did not identify the petitioner as the one who had shot Lalit Dev Barma, Draupadi Telanga PW-9 and Savita Telanga PW-10 deposed to have witnessed the shooting and said that the petitioner was the assailant.
8. Record would establish that whereas the petitioner was charged for the offence of murder by shooting dead Lalit Dev Barma, seven other constables were charged for the offence punishable under Section 201 IPC i.e. misstating facts to hide evidence and before the trial two separate proceedings of Recording of Evidence were conducted. One concerning the petitioner and the other concerning said seven persons. In neither Recording of Evidence proceedings the two ladies identifi
