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2001 DIGILAW 121 (PAT)

Ram Sakhi Devi v. State Of Bihar

2001-02-12

R.M.PRASAD

body2001
Judgment R.M.Prasad, J. 1. In this writ petition, the petitioner, who is the mother of Rajesh Umar alias Raju Yadav, has sought for a direction to the respondents to pay compensation of Rs. 5 lakh for custodial death of his said son. 2. In short, the case of the petitioner is that her said son died on brutal assault by the Excise officials at the place from where he was arrested and also while he was in Excise Hazat till produced before the Chief Judicial Magistrate, Patna on 19th February, 2000. In support of this, petitioner has relied upon photograph of the deceased taken by a Photographer (Annexure 1)(as. claimed) and the news items published in the newspaper on 22.2.2000 (Annexure 2 series). It is alleged that the petitioner gave written report to the Officer-in-Charge, Kadamkuan Police Station for registering a case under Sec. 302, IPC but the police gave undue pressure and by threatening her obtained her signature and also the signatures of her family members on a blank paper. According to the petitioner, the entire version has been changed by helping the accused Excise officials and Kadamkuan P.S. Case No. 188/2000 was registered by the police only under Secs. 304/ 34, IPC on 4.4.2000, vide Annexure 4. According to her case, her deceased son was a young man and the only source of livelihood of her and her family members and his death occurred in custody because of assault, torture and cruel and inhuman action of the Excise officials as is apparent from the postmortem report and also because there are so many ante-mortem injuries on the dead body. Accordingly, she has claimed for compensation of Rs. 5 lakh. 3. Separate counter-affidavits have been filed on behalf of the Senior Superintendent of Police, Patna, the District Magistrate, Patna (respondent No. 5), the Inspector-General of Prisons, Government of Bihar and the Jail Superintendent, Central Jail, Beur, Patna (respondents No. 3 and 4 respectively) and also on behalf of Shri A.K. Verma, Assistant Commissioner of Excise, Patna (respondent No. 6). 4. The counter-affidavit filed on behalf of the District Magistrate (respondent No. 5) admits about conducting of excise raids on 18.2.2000 at 4.00 p.m. by a team of Excise officials which included Sub-Inspector of Excise, Shri Ajoy Kumar Roy. 4. The counter-affidavit filed on behalf of the District Magistrate (respondent No. 5) admits about conducting of excise raids on 18.2.2000 at 4.00 p.m. by a team of Excise officials which included Sub-Inspector of Excise, Shri Ajoy Kumar Roy. It is stated that the shop of accused Raju Yadav was duly searched and a total of 17.00 litres of illicit liquor was recovered from there. The accused was arrested under Sec. 47(a) of the Excise Act for illegal possession and sale of illicit liquor and was taken into custody by the said Excise Sub-Inspector, who later forwarded and produced him before the Chief-Judicial Magistrate, Patna on 19.2.2000 within 24 hours of his arrest. Meanwhile, he remained in the custody of the said Sub-Inspector of Excise and kept in lock-up situated on the back portion of the Office of the Assistant Excise Commissioner, Patna. On production before the Chief Judicial Magistrate, the accused did not make any complaint or allegation against the Excise officials before the Chief Judicial Magistrate, Patna in the concerned Case No. 304(2) of 2000 as is evident from the case record. The accused was forwarded to Adarsh Central Jail, Beur by the Chief Judicial Magistrate, Patna and the jail authority so admitted the accused into jail without any objection regarding the state of health of the accused. Photocopy of the relevant extract of the case record of the Chief Judicial Magistrate has been annexed as Annexure A and of the report of the Jail Superintendent as Annexure B. With respect to the news item published in the local newspaper dated 22.2.2000, it is stated that vide Memo No. 935 dated 22.2.2000, the Sub-Inspector of Excise concerned was asked to submit his explanation on the alleged beating of the accused while fn his custody, who, in his explanation dated 23.2.2000, denied the alleged beating of the accused. Photocopy of the report of the Sub-Inspector of Excise has been annexed as Annexure C. According to the said respondent, he took prompt action in the matter, and also directed the Senior Superintendent of Police to complete the investigation at the earliest. Photocopy of the report of the Sub-Inspector of Excise has been annexed as Annexure C. According to the said respondent, he took prompt action in the matter, and also directed the Senior Superintendent of Police to complete the investigation at the earliest. In paragraph 19, it is alleged that the deceased son of the petitioner along with other members of his family were engaged in illegal sale of liquor since long and available details of cases registered against him and other members of his family has been mentioned therein as follows: (I) Excise P.R. No. 490, dated 10.2.2000 under Sec. 47(A) Accused-Rajesh Kumar, son of Ramdhani Gope. (II) Excise P.R. No. 206, dated 5.8.1996 under Sec. 47(a), Spl. Case No. 45/96. (III) Excise P.R. No. 448, dated 24.1.1996 Accused Vijay Kumar Yadav son of Ramdhani Gope under Sec. 47(A) Excise. (IV) Excise P.R. No. 138, dated 27.8.1994 under Sec. 47(a) accused Vijay Yadav son of Ramdhani Gope. (V) Excise P.R. No. 34, dated 13.5.1993, under Sec. 47(a). Accused Siv Gope, son of Ramdhani Gope. (VI) Kadam Khan P.S. Case No. 176/99, dated 20.7.1999 under Sec. 354, Indian Penal Code. Accused Raju Kumar was son of Ramdhani Gope. It is stated that the cause of death of deceased Raju has been kept reserved as viscera of the deceased had been sent to Forensic Science Laboratory and the report is still awaited and that the police investigation is going on and until the investigation is completed, it is not possible to reach to a conclusion regarding reason of the death of the accused. 5 The Senior Superintendent of Police in his counter-affidavit has stated that Phulwari Police Station was informed about the death of undertrial prisoner Rajesh Kumar @ Raju Yadav by Arjun Prasad Singh, Assistant Jailor, Central Jail, Beur, whereupon Phulwari P.S. Case No. 7/2000, dated 20th February, 2000 was registered. It is mentioned in the complaint that the prisoner Rajesh Kumar was kept under judicial remand in Excise case No. 304(2) 2000, dated 19.2.2000. The inquest and post-mortem was done and the opinion about the cause of death in the post-mortem was kept reserved till the chemical analysis report of the viscera of the deceased. It is mentioned in the complaint that the prisoner Rajesh Kumar was kept under judicial remand in Excise case No. 304(2) 2000, dated 19.2.2000. The inquest and post-mortem was done and the opinion about the cause of death in the post-mortem was kept reserved till the chemical analysis report of the viscera of the deceased. He has also alleged about the involvement of the deceased in the sale of illicit liquor and also about the order-sheet of the Chief Judicial Magistrate wherein it is mentioned that the accused did not made complaint against the police force. He has also mentioned about his involvement in numerous criminal cases. The said counter-affidavit also mentions about the progress made in the investigation in Kadamkuan P.S. Case No. 188 of 2000, and a reference to the supervision note of Dy. S.P., Town contained in Memo No. 594/Cri. in which he has mentioned about the medical report of the Medical Officer, Central Jail, Beur that "the deceased, under trial prisoner Raju Yadav, was admitted in Jail Hospital on 19.2.2000 under observation for the complaint of giddiness. He was examined and given medication from the same by me. There was no sustained injury on his body as mentioned in observation register". On the basis of the Investigation and supervision, Phulwari Police Station registered U.D. Case No. 7/2000, dated 20.2.2000 and Kadamkuan Police registered Case No. 138/2000, dated 4.4.2000, under Secs. 304/34, IPC. 6. In the counter-affidavit filed by the jail authorities, complaint of giddiness by the deceased on 19.2.2000 and his admission in Jail Hospital on the same day and keeping him there on observation are admitted. It is stated that subsequently he died on 20.2.2000 at 1.50 a.m. in course of treatment. A copy of the report of the Jail Medical Officer has been annexed as Annexure A and the inquest report as Annexure D. It is further stated that Raju Yadav died in Jail Hospital of Beur Central Jail, about which his family members as well as the Officer-in-Crtarge of Kadamkuan Police Station were informed, vide Memo No. 551 dated 20.2.2000 and the dead body of the deceased was handed over to his elder brother Munna Yadav on 21.2.2000. 7. Assistant Commissioner of Excise, Patna (respondent No. 6) in his counter-affidavit has emphatically denied about his involvement in the matter and asserted that the allegation against him is absolutely false. 7. Assistant Commissioner of Excise, Patna (respondent No. 6) in his counter-affidavit has emphatically denied about his involvement in the matter and asserted that the allegation against him is absolutely false. According to him, the fact of the matter is that this respondent No. 6 did never see deceased Rajesh Kumar alias Raju Yadav and has got no idea as to under what circumstances said Raju Yadav died. It is further stated that he was not a member of the raiding party. It is also stated that he did not even see the accused since the look-up is in the back side of his official premises. It is alleged that the petitioners son was a habitual offender. He was earlier arrested in Excise P.R. No. 206 dated 4.8.1996 (Spl. Case No. 45/96) for an offence under Sec. 47(a) and was forwarded to the jail and chargesheeted. He was also accused in Kadamkuan P.S. Case No. 176 of 1999, dated 20th March, 1999 for an offence under Sec. 354, IPC in which charge-sheet No. 107 of 1999, dated 10.4.1999 was submitted against the deceased. Photo-copies of the certified copies of the said charge-sheets have been annexed as Annexures A and B. It is further alleges that the means of earnings of the petitioners son was his illegal and criminal activities and she deliberately has not disclosed his source of income to claim compensation of Rs. 5 lakh. It is also alleged that the entire family of the petitioner is engaged in the illicit liquor trade. The husband of the petitioner Ramdhani Gope and others sons of the petitioner namely, Siva Gope and Vijay Kumar Yadav an accused in Kadamkuan P.S. Case No. 379 of 2000 for offences under Customs Act and Excise Act. Her sons Vijay Kumar Yadav and Siva Gope were also accused in Excise P.R. Nos. 34,138 and 440 during 1993,1994 and 1996". Photo-copies of the said P.Rs. have been annexed as Annexures C, D and E. He has also reiterated that the deceased accused was in the custody of the Excise Sub-Inspector Ajoy Kumar Roy, who was called upon by him to submit explanation, whereupon she said Sub-Inspector denied about the petitioners son being beaten up by any of the members of raiding party. have been annexed as Annexures C, D and E. He has also reiterated that the deceased accused was in the custody of the Excise Sub-Inspector Ajoy Kumar Roy, who was called upon by him to submit explanation, whereupon she said Sub-Inspector denied about the petitioners son being beaten up by any of the members of raiding party. Further he reiterated recording of no complaint of ill-treatment by the Excise officials in the record of the Chief Judicial Magistrate and about the reports of jail authorities, including the Medical Officer of Adarsh Central Jail, Beur, Patna. It is stated that the registers, of the jail and report of the Medical Officer attending the accused clearly point to the fact that there was no injury on the body of the accused till his admission in the Jail Hospital on his complaint of giddiness. 8. A supplementary counter-affidavit sworn by the Deputy Superintendent of Police (Town), Patna has also been filed in which he has stated that he directed the Investigating Officer of Kadamkuan Police Station to submit his progress report, and, further, that he submitted his progress report, vide Memo No. 1185/Crime dated 16.12.2000. It is also stated that the opinion of the Doctor, who conducted the post-mortem of the deceased which was sought subsequent to result of chemical analysis of viscera, was necessitated. It is also stated that he in his opinion, vide letter dated 11.12.2000, has stated "cause of death-head injury". This opinion of the Doctor conducting post-mortem finds mentioned in the progress report submitted by him. Photo-copies of the opinion of the Doctor and the progress report have been annexed as Annexures A arid B. 9. No reply to any of the counter-affidavit has been filed on behalf of the petitioner. 10. This opinion of the Doctor conducting post-mortem finds mentioned in the progress report submitted by him. Photo-copies of the opinion of the Doctor and the progress report have been annexed as Annexures A arid B. 9. No reply to any of the counter-affidavit has been filed on behalf of the petitioner. 10. This Court, after noticing the statement made in paragraph 8 of the counter-affidavit filed on behalf of the Senior Superintendent of Police, Patrva which showed that the Deputy Superintendent of Police, Patna Sadar supervised Phulwari U.D. Case No. 7/2000 relating to the death of Raju Yadav alias Raju Gope and that he is in his supervision note vide Memo No. 2359, dated 5.8.2000 mentioned that the viscera was sent to Forensic Science Laboratory for Chemical Examination, on 20th May, 2000 and that the cause of death would be clear after the report of chemical examination of viscera to be submitted by the Forensic Science Laboratory, adjourned the matter for two weeks for its listing at the top of the list and meanwhile, directed the Director, Forensic Science Laboratory, Patna where viscera was sent for examination/to complete the examination and submit a report and a copy thereof be also forwarded to this Court. A copy of the said order was directed to be sent to the Director directly and also through learned Standing Counsel No. VI appearing for the State Later, a reminder was also sent on 4.9.2000. In pursuance of the said, a report of the Director was received vide Memo No. 656 dated 8.9.2000 at flag H, as was reported by the Office on 13.9.2000. However, on the joint request of the learned Counsel for the parties, this Court, vide order dated 25.9.2000, adjourned the matter for its listing after Puja holidays. On 8.11.2000 on the request of the learned Counsel for the petitioner, this Court directed for supply of a copy of the said viscera report to him as well as to the learned Standing Counsel No. VI. 11. It has been contended by the learned Counsel for the petitioner that it is a. clear case of violation of human rights and fundamental freedom by State and its agencies. 11. It has been contended by the learned Counsel for the petitioner that it is a. clear case of violation of human rights and fundamental freedom by State and its agencies. He submitted that the custodial death is perhaps one of the worst crimes in civilised society governed by the rules of law and any act of torture or cruel, inhumane or degrading treatment would fall within the inhibilition of Article 21 of the Constitution as has been held by the Apex Court as also by this Court in numerous decisions. He has referred to decisions of the Supreme Court in the case of D.K. Basu V/s. W.B. -- , then in the case of Nilabati Behera V/s. State of Orissa -- and Division Bench judgment of this Court in the case of Shakuntala Dew V/s. State of Bihar 1991 (2) PLJR 494 and the judgment of the learned Single Judge in the case of Mostt. Ahulash Devi v. Union of India 2000(1) PLJR 672 . It is, thus, submitted by the learned Counsel for the petitioner that the pendency of investigation and criminal case cannot defeat the claim of the petitioner for award of compensation on account of custodial death of her deceased son, who was the only source of livelihood of her and her family members. 12. Learned standing Counsel appearing on behalf of the State, on the other hand, has submitted that the petitioner has deliberately suppressed about the source of income of the deceased to claim compensation of Rs. 5 lakh as the deceased and the entire family of the petitioner was engaged in illicit liquor trade, about which the details have been mentioned in the counter-affidavit filed on behalf of respondent No. 6 and also other counter-affidavits filed on behalf of the other respondents. According to him, in fact, counter-affidavits, especially the counter-affidavit filed on behalf of the jail authorities (respondent Nos. 3 and 4, show that there was no complaint made by the deceased before the Chief Judicial Magistrate, and that at the time of the admission of the deceased in Central Jail, no injury was found on his person. According to him, in fact, counter-affidavits, especially the counter-affidavit filed on behalf of the jail authorities (respondent Nos. 3 and 4, show that there was no complaint made by the deceased before the Chief Judicial Magistrate, and that at the time of the admission of the deceased in Central Jail, no injury was found on his person. It is only that when the deceased came to Central jail, Beur on 19.2.2000, he claimed giddiness and he was admitted in the Jail Hospital on the same date and was kept on observation but subsequently he died on 29th February, 2000 at 1.50 a.m. in course of treatment. As such, according to the learned Standing Counsel, it is not at all a fit case for awarding compensation. 13. There may be some substance in the submissions of the learned Standing Counsel that the records of the C.J.M. Court show that when the deceased accused Raju was produced before the Chief Judicial Magistrate on 19.2.2000, he did not at all complain against the police force as recorded by the Chief Judicial Magistrate, in his order dated 19.2.2000, a photo copy whereof has been annexed as Annexure A to the counter-affidavit filed on behalf of respondent No. 5. The report of the Superintendent of Adarsh Central Jail, Beur, Patna to the District Magistrate, photo copy whereof is Annexure B to the said counter-affidavit, mentions that the accused on being forwarded to the jail custody was admitted in jail on 19-2-2000. When being asked, he fully explained about his name and address. According to the Jail Superintendent, at that time his appearance was weak, but no injury on his body was found nor any such injury was noted in his warrant from Court. It is further reported by him that the deceased while in his ward with other prisoners complained about giddiness and immediately thereafter he was taken out from that ward and shifted to the ward of the hospital where Jail Doctor treated him. He also annexed the copy of the report of the Jail Doctor to his said report. But, the petitioner has annexed post-mortem examination report conducted on 20.2.2000 by Dr. Singh of the Department of Forensic Medicine, P.M.C.B., Patna as Annexure 5, which shows that ante-mortem external injuries were found which does not stand explained by the report of the Jail authorities or the Jail Doctor. But, the petitioner has annexed post-mortem examination report conducted on 20.2.2000 by Dr. Singh of the Department of Forensic Medicine, P.M.C.B., Patna as Annexure 5, which shows that ante-mortem external injuries were found which does not stand explained by the report of the Jail authorities or the Jail Doctor. The viscera report received from the Director, Forensic Science Laboratory shows that no metallic, alkaloidal, glycosidal, pesticidal or volatile poison could be detected in the portions of viscera of Raju sent for examination. 14. Admittedly, deceased died while in jail custody, yet the aforementioned ante-mortem injuries have been found by the Doctor of P.M.C.H. in the report, contained in Annexure-5. It is true that the petitioner has alleged assault, torture or cruel and inhuman action of the Excise officials, but the learned Counsel for the petitioner has failed to substantiate it in view of the order-sheet of the Chief Judicial Magistrate in Case No. 304 (2) of 2000 (Annexure-A) and also the report of the Jail Superintendent, contained in Annexure-B, because till the deceased was admitted in jail there is nothing on record to show that any injury was found on his person. It is only in the post-mortem examination report that ante-mortem injuries have been found on the dead body. However, in the said post-mortem examination report, opinion of the Doctor regarding the cause of death has been kept reserved till the chemical analysis report. As against the column nature of violence the Doctor has reported "hard and blunt object". 15. Under the above circumstances, this Court finds it difficult to rule out causing of injuries upon the deceased while in jail custody. This Court also finds it difficult to outright reject the claim for compensation on the ground that the deceased was a man of criminal antecedents involved in illicit liquor trade with his other family members as it was the mandatory duty and responsibility of the jail authority to save the life of the deceased after he was admitted into jail. It is not borne out from the report of the Jail Superintendent or the Jail Doctor that the deceased had any fall on account of giddiness complained by him, as claimed by them. It is not borne out from the report of the Jail Superintendent or the Jail Doctor that the deceased had any fall on account of giddiness complained by him, as claimed by them. Under such circumstances, this Court finds it to be a fit case for directing the State authority to entrust the C.B.I., to make a thorough inquiry/investigation and to institute criminal prosecution against the guilty person(s) involved in causing the death of Raju the deceased son of the petitioner by inhuman acts. 16. This Court, having regard to the aforementioned facts as also considering the fact that the petitioner has not disclosed the source of income of the deceased, feels inclined to award compensation of Rs. 50,000.00 (fifty thousand) to the petitioner, which shall be paid to her by the State Government within a period of two months. 17. The writ petition is, thus, allowed as stated above, but without costs.