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2001 DIGILAW 192 (GAU)

Siba Nath Gogoi v. Union of India

2001-07-20

D.BISWAS, J.N.SARMA

body2001
D. Biswas, J.- This petition under Article 226 of the Constitution has been filed for issue of appropriate writ for prosecution of the offending personnels and for compensation for alleged killing of Dina Gogoi @ Rabi Gogoi of Purani Joboka Gaon, Sonari by the Army. 2. We have heard Mr. AK Bhattacharyya, the learned senior counsel for the writ petitioner, Mr. BC Das, the learned State counsel and Mr. PN Choudhury, the learned Additional Central Govt Standing Counsel for the Union of India. 3. The petitioner is the elder brother of Dina Gogoi @ Rabi Gogoi. The petitioner and his family members could come to know from newspaper reports that his brother Dina Gogoi @ Rabi Gogoi was killed in an encounter with Army. The newspaper further reported that the face of Dina Gogoi @ Rabi Gogoi was defaced and his mortal remain was burnt with kerosene and tyres. The Army authorities compelled the father of one Sri Manju Gohain to identify the dead body of Rabi Gogoi as that of Manju Gohain. Hence, this petition for issue of appropriate directions for prosecution of the offending officers and also for compensation. 4. In the affidavit filed on behalf of the Union of India and others, it has been stated that Dina Gogoi @ Rabi Gogoi was killed in an encounter with Army personnel an 15th July, 1996 near Sonari which ensued after he had hurled a grenade at Army personnels causing injuries to an Army officer and the dead body of Dina Gogoi was handed over to the police on the same day. The Union denied that the face of the deceased was mutilated beyond recognition. The Army is not concerned with the identification of the dead body and cremation thereof and, as such, the dead body was handed over to the State Police. The allegation that the Army had forced the father of Manju Gohain to identify the dead body of Dina Gogoi as that of his son is completely baseless. The respondents submitted they are not aware of as to how the dead body was disposed of by the State authorities after it was handed over to the police. 5. The allegation that the Army had forced the father of Manju Gohain to identify the dead body of Dina Gogoi as that of his son is completely baseless. The respondents submitted they are not aware of as to how the dead body was disposed of by the State authorities after it was handed over to the police. 5. There is no denial to the claim of the Army authorities that there was an encounter between the extremists group and the Army personnels and, in the process, Army officials sustained injuries and Dina Gogoi was killed The Superintendent of Police, Sibsagar, in his affidavit, submitted that on receipt of a telephonic information from the Sub Divisional Officer at Sonari, police force was dispatched at the site of the occurrence to investigate which on arrival saw Captain AK Punia being shifted to Sonari Health Centre in an injured condition. On being asked, Captain AK Punia disclosed to the police officials that he had sustained injuries from a grenade hurled during the encounter. The police recovered a dead body of an unidentified youth on the same day i.e on 15.7.96 from the place of encounter. An FIR was lodged describing the entire incident in details. One 38 Pt Revolver, 6 Nos. Pt 38 ammunition, one walkie-talkie, one detonator, one improvised remote control, 3 mm wire and some letters and documents were recovered from the site of the encounter. Inquest of the dead body was performed by Sri Pradip Kumar Rajkhowa, Executive Magistrate at Sonari. In the inquest report, it has been reflected that money bag was found in the back pocket of the trouser owned by the deceased-wherein a Command Certificate was found issued in the name of Govt of Peoples Republic of Nagaland. It further shows that enquiries have been made at different levels for ascertaining the identity of the deceased. The Superintendent of Police also denied that there was disfiguration of the dead body. The police tried to ascertain the identity of the deceased at various places including Gariachinga, Salkothori etc, but no information could be collected about Dina Gogoi @ Rabi Gogoi. On the next day, at about 12.50 PM the dead body was brought to Sibsagar for post-mortem and kept at the compound of the Sibsagar Police Station. The police tried to ascertain the identity of the deceased at various places including Gariachinga, Salkothori etc, but no information could be collected about Dina Gogoi @ Rabi Gogoi. On the next day, at about 12.50 PM the dead body was brought to Sibsagar for post-mortem and kept at the compound of the Sibsagar Police Station. Efforts were on to identity the deceased and that point of time one Sri Rampada Kalita @ Bhim Dutta and another Sri Rajkumar Duara informed the police that the dead body resembles with the appearance of one Sri Manju Gohain, an ULFA cadre. Rampada Kalita was also a member of the ULFA previously and he had worked with Manju Gohain. Accordingly, Manju's father Shri Bhubon Borgohain was contacted by the police on the same day. In the evening, he came to Sibsagar PS and identified as that of his son Khogen Borgohain @ Manju Gohain. The relatives who accompanied Bhubon Borgohain also identified the dead body as that of Manju Gohain. The body was accordingly handed over to Bhubon Borgohain on the same evening as per their request. Since the surrounding area at that time was submerged with flood waters, on request of Shri Bhubon Borgohain, police and the Magistrate concerned brought the dead body to Sonari by police van along with them where it was cremated. The police also arranged wood, ghee and other necessary materials for the cremation and ancillary religious rites. The Superintendent of Police, Sibsagar categorically denied that the dead body was burnt by Army in presence of police with kerosene and tyre before identification. 6. Although Shri Bhattacharyya, the learned senior counsel for the writ petitioner vehemently argued that the Army and the police authorities burnt the dead body before identification, yet the affidavit-in-opposition filed by the Superintendent of Police on behalf of the State clearly indicate that the dead body was properly identified as that of Manju Gohain by the father and other family members of Manj Gohain and it was burnt in presence of police, Executive Magistrate and the relatives. This obviously belies the claim of the writ petitioner that the dead body was burnt by the Army .with kerosene and tyre. There is no reason to disbelieve the statement made on oath by the Superintendent of Police. This obviously belies the claim of the writ petitioner that the dead body was burnt by the Army .with kerosene and tyre. There is no reason to disbelieve the statement made on oath by the Superintendent of Police. The Superintendent of Police in his affidavit-in-reply also reiterated that Rabi Gogoi @ Dina Gogoi was not killed by the Army in their custody. The affidavit of KK Sharma, former Superintendent of Police, Sibsagar submitted in compliance with the order dated 8.7.97 passed by this Court also evince that there was no killing by Army in custody. Even the Sub Inspector of Police, Mr. Ahmed also with more factual details described the manner in which efforts were undertaken to identify the dead body, which was at last identified by Bhuban Borgohain. The fact of identification, according to the Sub Inspector, was also entered in the C/D of the Sonari PS Case No. 123/96. 7. The pleadings as reproduced above clearly indicate that it was not Dina Gogoi @ Rabi Gogoi but Manju Gohain who was killed in the encounter with the Army. If we go by the affidavits filed by the successive Superintendents of Police and the Investigating Officer, there remains no confusion or doubt with regard to the stand taken by the Army that none was killed in their custody. The affidavits submitted by some private individuals during the course of hearing of the writ petition are not enough to dispel the above inevitable conclusion. 8. It would appear from above discussion that there was an encounter between the Army personnel and the members of the ULFA, and a Captain, namely, AK Punia was injured while the ULFA cadre was killed. The body of the deceased was brought to the Sibsagar PS where it was identified by Bhubon Borgohain as that of his son. Even other members of the family also identified the dead body. It was carried in a police van to the residence of Bhubon and, thereafter to Sibsagar PS for cremation. All these go to show that there was no dereliction of duty on the part of the State authorities in taking adequate steps for identification of the dead body and the cremation. Any contrary version by Bhuban Borgohain at this stage has to be dismissed as a pure lie in view of what had happened. All these go to show that there was no dereliction of duty on the part of the State authorities in taking adequate steps for identification of the dead body and the cremation. Any contrary version by Bhuban Borgohain at this stage has to be dismissed as a pure lie in view of what had happened. The genesis of the petitioner's claim rests with the allegation that Dina Gogoi @ Rabi Gogoi was killed in Army custody and burnt by them before identification with kerosene and tyre. The Army is not responsible for the identification and cremation. The State has stated in their affidavit-in-opposition that the Army had handed over the body of the deceased which was identified in the manner as stated above. That being the position, it is difficult to accept the petitioner's version that his brother Dina Gogoi @ Rabi Gogoi was killed by the Army in custody. Inevitable conclusion under the circumstances would be that this petition deserves dismissal. 9. We have carefully considered the decision in Nain Kaur & another vs. State of Jammu and Kashmir & others, AIR 1996 SC 2968 . In that case the Supreme Court accepted the assertion of the mother of the deceased that the dead body was not of her son and hence, directed the CBI to cause an investigation. The said direction was given in the factual matrix of the case before the Supreme Court. In the instant case, the dead body was duly identified by the father of the deceased and, as such, we find no scope for issuing a similar direction to the CBI to cause an investigation. 10. The learned counsel for the petitioner also referred to the decision of the Supreme Court in DK Basu vs.'State of Uttar Pradesh, (1997) 1 SCC 416 . This case was relating to custodial violence and, therefore, the reliefs given. in that case cannot be conceded here in the factual back ground of the case at hand. We are not concerned in the instant petition with custodial death of any person. The decision in the aforesaid case cannot be applied in the instant case since we are not convinced that the authorities violated in any manner the fundamental rights guaranteed under Article 21 and 22 of the Constitution. We are not concerned in the instant petition with custodial death of any person. The decision in the aforesaid case cannot be applied in the instant case since we are not convinced that the authorities violated in any manner the fundamental rights guaranteed under Article 21 and 22 of the Constitution. Here, the deceased, a member of the extremists group, was engaged in an encounter with the Army with arms and hand grenade. In our opinion, the death of Dina Gogoi @ Rabi Gogoi is not established and that the person killed in the encounter was Manju Gohain. Therefore, no question for further enquiry by any agency or payment of compensation for alleged death of Dina Gogoi arises. 11. In the result, the writ petition is dismissed. No order as to costs. J. N. Sarma, J.- 12. I agree with the judgment by my brother Justice Biswas, but I add the following. 13. Terrorism is an extreme form of violence. It destroys the fabric of the society, brings an imbalance in the society, ruins the harmony of the society organized terrorism is not a revolution, but an attempt to throttle the concepts of ideas, which a society accepts with grace after a good deal of churning by adopting and adhering to a particular mode of life. May be these ideals and concepts may not be to the liking of all, but in a democracy and a society wedded to the rule of law, that microscopic section who does not approve it must also adhere to that process, granting to them the right to ventilate their grievances through peaceful and civilized means. Voltaire declared "I may not agree with what you say, but I shall defend on to my death your right to say it". But the question is one who distances from the society, departs from the society and adopts gun culture, should receive equal treatment at the hand of the instrumentalities of the society created for the maintenance and upliftment of the society. Why one should shed human tears for those inhuman killers. If in trying to control it with iron hand there is some aberrations/deviations here and there is it duty of the Court to step in, to blow it out of proportion to make it a news headline. Hero worship of any form of terrorism must be condemned. Why one should shed human tears for those inhuman killers. If in trying to control it with iron hand there is some aberrations/deviations here and there is it duty of the Court to step in, to blow it out of proportion to make it a news headline. Hero worship of any form of terrorism must be condemned. The society cannot be asked to cough up compensation for the death of terrorist in encounter, because that will mean putting a premium on wrong doing fake encounter, cold blooded killings apart, for the death of a terrorist no compensation can be/should be granted by the Court. It is time that somewhere someone must toll the bell to put a stop this nuisance. The parents and other relations of a terrorist must be told/convinced by the saver section of the society that as the terrorist does not have respect/regard to the institutions of the society and as they are bent on destroying the same, these institutions cannot bestow their benevolence on them. Rights and duties are both sides of the same coin. If one clamours for right alone, being oblivious of their duties, there will be chaos in the society. Before one demands/desires something from the society, the person must ask himself whether he has given his dues to the society.