SRINAGAR: The Jammu and Kashmir and Ladakh High Court recently upheld the acquittal of Border Security Force (BSF) personnel who were charged in the contentious Army patrol firing case from the night of July 16 and July 17, 1999, during the Kargil War.
“Unfortunately, respondents have been roped in, merely on the basis of suspicion, otherwise, there is absolutely no evidence to establish that respondents had deliberately fired upon the Army patrol party”, a bench of Justices Sanjay Dhar and Rajesh Sekhri observed.
The court was reviewing an appeal against the decision made by the Sessions Court, which had acquitted the defendants of charges under Sections 302/307/34 of the Ranbir Penal Code (RPC).
The prosecution presented a case centred on an incident involving an army patrol party led by Lieutenant Sanjiv Dahiya. The patrol party was en route to a forward post when they approached a BSF bunker. Ith was alleged that the BSF personnel on duty fired upon the patrol party, resulting in the tragic death of three army personnel and severe injuries to another soldier.
Initially, the incident was considered to be an accidental death. However, the situation took a different turn when the injured soldier, Sepoy Keshav Singh, came forward with a shocking revelation. During his testimony, Sepoy Singh claimed that the patrol party had attempted to signal the BSF bunker using a flashlight, but received no response.
Lieutenant Dahiya conducted further investigation and discovered that the BSF personnel were asleep upstairs. Reportedly, when Dahiya reprimanded them, the BSF personnel opened fire indiscriminately, leading to the loss of lives.
The Sepoy’s statement led to the filing of a FIR, and a thorough investigation began. The prosecution called 28 witnesses to try to prove the guilt of the accused. They argued that the BSF personnel’s actions were deliberate and showed a lack of regard for human life. They presented reports that showed the bullets found on the deceased soldiers matched the weapons issued to the accused BSF personnel. Furthermore, they pointed out that there was no evidence of a firefight or any threat to the BSF bunker.
On the other hand, the defendants argued that the prosecution’s case relied on indirect evidence and lacked solid proof connecting them to the crime. The defence claimed that the testimonies of the witnesses were inconsistent and contradictory, and the prosecution failed to establish a motive for the alleged attack.
After carefully examining the evidence presented by the prosecution, the trial court concluded that the involvement of the defendants in the alleged crimes was only based on suspicion and, as a result, acquitted the BSF personnel.
Aggrieved of the acquittal, the State of Jammu and Kashmir preferred an appeal before the High Court and argued that the trial court had erred in its assessment of the evidence and that the acquittal was a miscarriage of justice.
Upon careful examination of the statement of injured PW-Keshav Singh and the testimonies of rest of the prosecution witnesses, the Division Bench found that the testimonial potency of the injured is not only discrepant on material factual aspects, but it does not inspire confidence to sustain conviction of the respondents.
Elaborating on prosecution witnesses, the court pointed out that the prosecution’s star witness, Sepoy Keshav Singh, claimed that Captain Sanjiv Dahiya and Sepoy Ram Paul provided passwords and information to the BSF personnel. However, inconsistencies emerged as other witnesses contradicted this statement. The 2nd in Command, who allegedly provided the passwords, was not examined, and witnesses mentioned different individuals as the source of the passwords and this crucial testimony of the injured witness lacked corroboration and was falsified on this crucial point, the bench underscored.
The court further added that the prosecution’s failure to provide evidence of serious injuries sustained by witness Keshav Singh undermines the credibility of their case as without medical evidence or documentation, the prosecution’s claims are weakened.
Observing that the unfortunate incident happened during the breakout of “Kargil War” the bench noted that during the Kargil War, forces on the border were ordered to be vigilant with restricted movement and shoot-at-sight orders to prevent enemy infiltration.
“Pertinently, the restrictions were not for the common people only but forces were also advised to exercise restraint to coordinate between themselves as and when they were expected to move along the border”, the bench recorded.
Witness testimonies reveal that coordination between forces was maintained through daily-changing passwords and during the incident, amidst rain, thunderstorm, and firing from across the border, a lack of coordination between the Indian Army and the BSF resulted in these casualties, the bench said.
Stressing that sole testimony of the injured has not been corroborated by any prosecution witness and does not inspire confidence to sustain conviction the court dismissed the appeal, and concluded that suspicion, howsoever great, cannot take place of legal proof and conviction cannot be sustained merely on the basis of surmises and conjectures. (LiveLaw)
