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Civil Appeal No. 2606 of 2012

Decided On: 14.06.2022

Appellants: Mahadev Vs. Respondent: The Director General, Boarder Security Force and Ors.

Hon'ble Judges/Coram:
B.R. Gavai and Hima Kohli


Hima Kohli, J.

1. The Appellant is aggrieved by the judgment dated 3rd March, 2011 passed by the Division Bench of the High Court of Delhi dismissing a writ petition filed by him, registered as WP(C) No. 6709/2008, wherein he had challenged the order dated 19th March, 2008 passed by the Respondent No. 4 herein convicting him to life imprisonment for an offence committed Under Section 46 of the Border Security Force Act, 19681, that is to say for murder punishable Under Section 302 of the Indian Penal Code, 18602. By the impugned order, the Division Bench has upheld the order passed by the Respondent No. 2 - Appellate Authority, whereby the statutory appeal filed by the Appellant was dismissed and the order dated 10th March, 2007 passed by the General Security Force Court was upheld3.

2. The brief facts of the case are that the Appellant, who was serving in the BSF, was tried by the GSFC in the year 2007, for committing an offence Under Section 46 of the BSF Act, that is to say murder punishable Under Section 302 of the Indian Penal Code and the charges framed against him were as follows:

The Accused No. 89131037, Const. Mahadev, of 131 Bn. BSF is charged with:


SECTION 46: MURDER, PUNISHABLE Under Section 302 Indian Penal Code

In that he,

In a rubber garden located between BP No. 2007/S-3 and BP No. 2008/MP in AOR of BOP Bamutia, on 05/06/2004(sic) at about 08:15 hrs. by firing shots from his INSAS Rifle bearing Butt No. 503, Body No. 16397/159 caused the death of a civilian namely Nandan Deb S/o Sh. Atinder Dev R/o Village-Rangotia, PS-Sidhal, Distt.-West Tripura and thereby committed murder.

3. On the Appellant pleading not guilty to the charge framed against him, the prosecution proceeded to examine seventeen witnesses. The Appellant did not produce any witness. However, he made an oral statement in his defence. The plea of private defence taken by the Appellant was rejected and on 10th March, 2007, the GSFC held him guilty of the charge and sentenced him to suffer imprisonment for life besides dismissing him from service. Vide order dated 4th April, 2007, the Convening Officer confirmed the findings and the sentence imposed on the Appellant. Aggrieved by the said order, the Appellant preferred a statutory petition, which was dismissed by the Respondent No. 1 - Union of India, vide order dated 19th March, 2008 that has been upheld by the High Court.

4. For arriving at the aforesaid conclusion, the High Court has primarily relied on the testimony of Dr. Ranjit Kumar Das (PW-10), who had conducted the postmortem on the body of the deceased and deposed that he had died due to firearm injuries and two bullets had pierced his body. It was noticed that PW-10 had deposed that having regard to the nature and place of the injuries, the position of the firer as against that of the deceased was such that the one w........