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2002 DIGILAW 384 (GAU)

Tekarongsen v. Union of India

2002-09-05

AFTAB H.SAIKIA

body2002
A.H. SAIKIA, J.: Heard Mr. Temjenkaba, learned counsel for the petitioners. Heard also Mr. K. Meruno, learned Sr. Central Govt. Standing Counsel representing the respondents Union of India and also heard Mrs. Y. Longkumar, learned Government Advocate appearing on behalf of the State of Nagaland. 2. The allegations brought in this writ petition depict a tragic story of killing and maiming innocent civilians by the Army personnel in the name of so called encounter with the under-grounds. In the instant case a minor son of the petitioner No. 2 namely; Kharichujang aged about 15 years, a student of Class-VIII in Mayangnokcha High School, Mokokchung was killed by bullet fired indiscriminately by Army personnel of 12th Madras Regiment in the night at about 10 P.M. on 28.6.1997 at Mangmetong village. It is complained that in the said firing, other two innocent persons including a minor girl had also suffered bullet injury. Shri Imkongkumzuk, the owner of the house No. 16A upon whose house the Army personnel opened firing, received bullet injury on his left thigh when Miss Yangertola the daughter of Shri Tongpangmeren aged about 13 years, a student of Class-VI in Govt. Middle School Mangmetong, received bullet injuries on both her thighs. 3. By filing this writ petition, a direction was sought for from this Court to hold a judicial enquiry for the incidents that took place on 28.6.97 at Mangmetong village caused by the Army personnel of 12th Madras Regiment posted in the village at that point of time and also for a direction to the respondents to pay adequate compensation to the deceased late Kharichujang and two other injured persons named above. 4. This Court by order dated 15.10.98, after considering the facts and circumstances of the case was pleased to direct the Addl. Deputy Commissioner (J) Mokokchung to conduct an enquiry and submit the report in this regard about the correctness of the allegations made in this writ petition within a period of 2 (two) months from the date of receipt of the said order. Subsequently the said Officer submitted his report dated 9.12.98. On perusal of the said report, this Court was disinclined to accept the same as the enquiry was not conducted in accordance with law. Accordingly a fresh enquiry was again directed to be conducted by the said Officer by this Court's order dated 22.4.99. Subsequently the said Officer submitted his report dated 9.12.98. On perusal of the said report, this Court was disinclined to accept the same as the enquiry was not conducted in accordance with law. Accordingly a fresh enquiry was again directed to be conducted by the said Officer by this Court's order dated 22.4.99. Finally the said A.D.C. (J) Mokokchung submitted an elaborate Enquiry Report dated 14.1.2002 and the same has been placed before this Court and be kept as part of the record. 5. Refuting the allegations made in the writ petition, the respondents/Union of India has filed response. Mr. K. Meruno, learned Sr. CGSC, has submitted that the firing that took place on the fateful night of 28.6.97 was aimed against the Undergrounds and unfortunately the persons so named above were killed and injured in the cross firing. Besides the deceased and the injured civilians aforesaid, two of the army personnel also suffered bullet injury which fact goes to show that the incident was the outcome of an encounter with the insurgents. 6. The report dated 14.1.2002 referred above in its clear term goes to show that on the fateful night of 28.6.97 there was no such encounter took place between the Army personnel and the undergrounds. The learned A.D.C. (J), in the process of conducting the enquiry, examined as many as 4 witnesses on behalf of the complainant side when 3 witnesses were adduced on behalf of the respondents / Union of India. The testimonies of PWs 1, 2, 3 and 4 clearly indicates that there was no cross firing from the opposite direction to prove that any encounter took place on the eventful night and on the other hand, evidences presented on behalf of the respondents / Union of India were found to be inconsistent and contradictory as those witnesses deposed that no incriminating articles were seized nor was any pool of blood of alleged injured Undergrounds found on the alleged place of occurrence. 7. The finding of the Enquiry Report may be referred as follows : "It is clearly evident from the statements of PW-1, PW-2, PW-3 and PW-4 that there was no cross firing from opposite direction except the bullets marks fired from the position of the armies. It is ascertained from the evidence of DW-2 that during spot search conducted on 29.6.97, no incriminating articles were recovered from the place of occurrence. It is ascertained from the evidence of DW-2 that during spot search conducted on 29.6.97, no incriminating articles were recovered from the place of occurrence. The Statement of DW-2 is consistent and contradictory as he has stated in his cross examination that no incriminating articles were seized nor seen the pool of blood of the alleged injured underground. The statements of DW-3 is not corroborated by material evidence or circumstantial evidence because he admitted in his cross examination that he fired in house No. 16A without due warning or no undergrounds were killed nor apprehended. Also no indiscriminating articles could be seized. PW-2 who is the owner of the house No. 16A clearly stated that there was no underground in or around his house at the time of incident. It is therefore clear that respondents failed to discharge their burden to prove their version. Court may therefore rely upon the evidences adduced by petitioners and their witnesses as there is a prima facie case in favour of petitioners." 8. In view of the findings arrived at by the learned A.D.C. (J) above mentioned, this Court is of the view that no encounter took place on the ill-fated night of 28.6.97 at about 10 P.M. and late Kharichujang as well as Miss Yangertola and Shri Imkongkumzuk were the direct victims of indiscriminate firing by Army personnel of 12th Madras Regiment. 9. On careful perusal of the inquiry report, this Court also does not find any illegality or irregularity being committed in conducting the inquiry. It appears that both the parties had been afforded the reasonable opportunity of hearing even by allowing them to adduce evidences to defend their respective cases. Accordingly, the report dated 14.1.2002 is hereby accepted. Such action on the part of the respondents is a clear violation of the right guaranteed under Article 21 of the Constitution. Nobody is authorised under the mandate of the Constitution to take away the right to life and liberty of a person except according to procedure established by law. Respect for the rights of individuals is the bedrock of true democracy. A person is born free to his basic human rights. Hence it is the bounden duty of the State to repair the damages done by its Officers to the individuals' rights. Respect for the rights of individuals is the bedrock of true democracy. A person is born free to his basic human rights. Hence it is the bounden duty of the State to repair the damages done by its Officers to the individuals' rights. In order to prevent the violation of such right reasonably and also to secure the due compliance of Article 21, it is needed to mulch its violators in the payment of monetary compensation. Accordingly the victims of such firing are entitled to get adequate compensations. 10. In the catena of decisions, this Court relying on several landmark decisions of the Apex Court especially Nilabati Behera-Vs.- State of Orissa reported in (1993) 2 SCC 746 and D.K. Basu - Vs.- State of West Bengal reported in (1997) 1 SCC 416 , has adequately compensated the victims of similarly situated circumstances, [See; (1) Zukheli Sema -Vs. Union of India and Ors. reported in 1998 (4) GLT 333, (2) Tarulata Devi-Vs.- State of Assam & Ors. reported in 2001 (2) GLT 419 and (3) Mahmud Ali -Vs.- Union of India and Ors. reported in 2001 (3) GLT 542]. 11. Having regard to the precedents .above mentioned and on overall consideration of the factual matrix of this case as well as upon hearing the learned counsel of the parties, this Court considers fit and proper to order as follows : (a) The respondents, particularly respondents 2 and 3 are directed to pay compensation of Rs. 2,00,0007- (Rupees two lakhs) to the petitioner No. 2 for the death of her son deceased Kharichujang. (b) The respondents above mentioned are also directed to pay sum of Rs. 1,00,0007- (Rupees one lakh) each as compensations to Miss Yangertola, daughter of Shri Tongpangmeren and Shri Imkongkumzuk, Owner of house No. 16 A, Mangmetong village, Mokokchung. It is made clear that the entire amount of compensation quantified above shall be deposited by the above named respondents before this Registry through Bank draft within a period of 3 (three) months from the date of receipt of this order. On being deposited, this Registry shall pay the said amount of compensation to the respective persons on proper identification. For the foregoing reasons and observations, this petition is allowed. No costs.