IMPORTANT POINT
The court reduced the conviction from murder under Section 302 to culpable homicide not amounting to murder under Section 304 IPC due to provocation.

JUDGMENT :

Susmita Phukan Khaund, J.

Petitioner’s case:

1. This writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of certiorari or mandamus or any other appropriate writ, order or direction of like nature, to set aside and quash the impugned order of sentence dated 03.10.2013, passed by the General Security Forces Court (GSFC, for short), in connection with the “Trial of No. 900039263CT Tupe Subhash of 111 Battalion, BSF”, convicting the petitioner under Section 302 of the Indian Penal Code, 1860 (IPC, for short) and sentencing him to undergo imprisonment for life and also the order dated 15.09.2024, passed by the respondent No. 3, confirming the findings of GSFC and other orders passed to the detriment of the petitioner.

2. Tupe Subhash (hereinafter referred to as the petitioner) has arrayed the Union of India, the Director General, Border Security Force-New Delhi, the Special Director General of Border Security Force-Kolkata, the Inspector General, Border Security Force- Silchar, Cachar and the Commandant of 111 Battalion, Border Security Force, Satakha, Nagaland, as respondent Nos. 1, 2, 3, 4 and 5 respectively. Through the impugned order, the petitioner was also dismissed from his services as a Constable of the Border Security Force (BSF, for short). The petitioner had joined the BSF on 15.11.1990 as a constable and during his tenure of service, the petitioner was posted at Nagaland and attached to 111 Battalion (Bn, for short) BSF at Nagaland. As soon as he joined the new Battalion at Nagaland, the petitioner requested for voluntary retirement from the forces and he was interviewed by the concerned Board on 03.08.2012 and his prayer for voluntary retirement was allowed w.e.f. 31.12.2012, as the date of retirement from the force.

3. At Satakha, Nagaland, the petitioner was sharing his barrack with one Sagir Alam (hereinafter also referred to as the deceased). The petitioner got acquainted with the deceased Sagir Alam from 11.06.2012 and he had a friendly and cordial relation with the deceased Sagir Alam and in fact, he gifted a pair of running shoes to Sagir Alam, just after completion of their training. When the deceased learnt that the petitioner was addicted to alcohol and used to wet his bed and snore while sleeping, Sagir Alam started calling names ridiculing the petitioner. Sagir Alam also used to taunt that the petitioner had contacted HIV AIDS to the annoyance of the petitioner and when the petitioner used to detest such sarcasm, Sagir Alam used to ignore the petitioner. When the petitioner used to express his disapproval Sagir Alam used to ignore him. On 14.08.2012, at 1600 hours, when the petitioner was standing outside his barrack Sagir Alam suddenly started abusing the petitioner, uttering obscene words and accused him of suffering from HIV AIDS. Annoyed by his behaviour, the petitioner immediately called his wife and informed her that he is being harassed by Sagir Alam and this may lead to disaster. The petitioner also informed another constable of the same battalion, namely, Jitendra Patil (PW-10) that he was being harassed by Sagir Alam. These facts were brought on record by way of evidence, but the evidence was ignored by the GSFC.

4. Thereafter, on the same day, i.e., on 14.08.2012, as the petitioner was detailed as Guard Commander at Tentage Stores at BN HQ for night duty, the petitioner at around 1730 hours, went to the Quarter Guard to collect his weapon for night duty and he was issued an Insas Rifle with Butt No. 81. After collecting his weapon, the petitioner went to the Magazine to collect the ammunition and collected 40 rounds of 5.56 mm Insas bullets. The petitioner loaded his weapon with 20 (twenty) 5.56mm bullets and kept the remaining in his pouch for emergency. Meanwhile, the petitioner realized that he forgot his umbrella and the magazine and went back to bring the same. At that moment, wh