Dharam Singh vs Union of India and others

Ranjit Singh, J.—Petitioner - Dharam Singh was serving as Constable with 124 Battalion BSF. He has approached this Court through present Criminal Writ Petition for quashing the order of conviction dated 28.3.2003 for an offence u/s 24(a) of the Border Security Force Act, 1968 (for short ''the Act''). Section 24 of the Act punishes certain forms of disgraceful conduct. Any person subject to this Act who commits any of the offences being guilty of any disgraceful conduct of a cruel, indecent or unnatural kind, on conviction by a Security Force Court is liable to suffer imprisonment for a term which may extend to seven years.

A complaint was filed by one Rajinder Parshad with the Company Commandant alleging that on 15.8.2000 some incident where in an offence of unnatural kind was committed on the person of said Rajinder Parshad. The matter was brought to the notice only on 19.8.2000. On the basis of a complaint made by said Constable Rajinder Parshad direction to prepare ''record of evidence'' was initiated. It is alleged that the petitioner had made the said Constable Rajinder Parshad to inhale some medicines and thereafter committed an act of unnatural kind while the said Constable was lying unconscious. The petitioner thereafter was tried by General Security Force Court and upon conviction was sentenced to suffer rigorous imprisonment for one year and to be dismissed from service.

Having failed in his pre and post confirmation petition, the petitioner has filed the present petition to impugn his conviction and award of sentence. The main submission of the petitioner appears to be that statement of Constable Rajinder Parshad was not recorded by the Court and, accordingly, it is a case of lack of evidence in this regard.

The record would show that Constable Rajinder Parshad committed suicide because of shame and, accordingly, he was not available for being examined as witness during trial of General Security Force Court. In this background it can not be said that the non-examination of the complainant was in any manner with any purpose for which any adverse inference is to be drawn.

Otherwise, Constable Rajinder Parshad had narrated all the incident to Shri Wakil Pandey in detail on 15.8.2000. Thereafter, the complaint was made. The record also shows that the matter was enquired into by the Court of enquiry as can be noticed from the reply filed. Thereafter, record of evidence was prepared and the petitioner was charge-sheeted u/s 24(a) of the Act. Trial of the petitioner was conducted from 19.12.2002 to 7.1.2003. The Court found the petitioner guilty of the charge and sentenced him to suffer rigorous imprisonment coupled with dismissal as already noticed. It is also seen from the evidence recorded during the trial and also from the ''record of evidence'' that the late Constable Rajinder Parshad had reported to his Company Commandant on 15.8.2000 itself. In this background it cannot be said there is a case of lack of evidence as at the first available opportunity late Constable lodged complaint with his Company Commandant. No grounds are otherwise urged to challenge the finding and proceedings of the General Security Force Court. The Court had followed the legal procedure and adhered to the relevant provisions while finding the petitioner guilty and sentenced him to suffer rigorous imprisonment as noticed. I do not find any reason to interfere in exercise of writ jurisdiction and would dismiss the writ petition.