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2004 DIGILAW 370 (GAU)

Jahura Khatun v. Union of India

2004-05-31

RANJAN GOGOI

body2004
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. K.K. Bhatra, learned counsel for the petitioner and Mr. S. Sarma, learned counsel appearing for the respondents. Also heard Mr. P. Roy, learned counsel appearing for the State of Assam. 2. This writ petition has been filed seeking adequate compensation to the petitioner on account of death of her husband Mahammad Ali, who according to the petitioner, died in the lock up of the Railway Protection Force, New Bongaigaon on 31.7.93/1.8.93. The case pleaded by the writ petitioner is that on 31.7.93 at about 9 a.m., her husband Mahammad Ali was arrested by the Railway Protection Force near the railway over-bridge at New Bongaigaon and thereafter he was taken to the Railway Protection Force post at New Bongaigaon. At about 12 noon when the petitioner had gone to see her husband she found the Railway Protection Force personnel on duty assaulting and beating her husband in the Railway Protection Force lock up. The petitioner has further stated that on 1.8.1993 the petitioner could come to know that her husband was taken to the New Bongaigaon Railway Hospital and when she had gone to the Hospital she found that her husband had already died. Accordingly on the same date, i.e., 1.8.1993 her father-in-law had lodged a FIR with the Officer-in-charge of New Bongaigaon Police Station with regard to the death of her husband Mahammad Ali. 3. The case projected in the writ petition has been resisted by the respondents No. 1 and 2 by filing an affidavit. In the affidavit filed the stand taken appears to be that in the late evening of 31.7.1993, i.e., at about 10/10'30 p.m. the deceased husband of the petitioner along with a group other persons were found loitering in the railway yard of New Bongaigaon Railway Station. One D.K. Barua, Sub-Inspector of Railway Protection Force, New Bongaigaon challenged the aforesaid persons and wanted to arrest them. The persons concerned resisted and in the scuffle that took place, the husband of the petitioner sustained certain injuries. Thereafter he was brought to the Railway Protection Force Outpost and lodged in the lock up. Next morning at about 8 a.m. the husband of the petitioner was found unconscious, whereafter, he was taken to the Hospital where he was declared dead. 4. Thereafter he was brought to the Railway Protection Force Outpost and lodged in the lock up. Next morning at about 8 a.m. the husband of the petitioner was found unconscious, whereafter, he was taken to the Hospital where he was declared dead. 4. As two different versions of the incident had emanated from the pleadings of the parties, this Court by an order dated 19.8.1997 had required the District Judge, Bongaigaon to make an enquiry with regard to the facts and circumstances leading to the death of Mahammad Ali and thereafter to submit a report to this Court. The respondents No. 1 and 2 being aggrieved by the said order instituted a Writ Appeal being W.A. 48/1998 before this Court and a Division Bench of this Court by order dated 27.7.1998 disposed of the said appeal by directing that the enquiry ordered by the Single Judge would be held by the District Judge, Goalpara and not by the District Judge, Bongaigaon. The reason for the aforesaid change made by the Division Bench of this Court is on account of pendency of the connected criminal case before the Learned District & Sessions Judge, Bongaigaon. Pursuant to the aforesaid orders of this Court, the District Judge, Goalpara has submitted a report dated 6.8.2001 to this Court. The aforesaid report after being taken on record was made available to the learned counsels for the parties by serving requisite copies and on the basis of the said report of enquiry, arguments have been advanced on behalf of the contesting parties. 5. A perusal of the report submitted by the Learned District & Sessions Judge, Goalpara to this Court would show that in the course of the enquiry proceedings, five witnesses were examined on behalf of the writ petitioner whereas the respondents Nos. 1 and 2 have examined as many as 15 witnesses. PW 2, Sober Uddin and PW 3, Sambhu Sahani, were two other persons who were apprehended by the R.P.F. personnel along with the disciplinary Mahammad Ali. According to both the aforesaid witnesses, they were taken to the New Bongaigaon R.P.F. Outpost and put in the lock up in the morning of 31.7.1993 and in the lock up S.I., Dilip Kumar Barua and four other constables had assaulted them at different points of time. According to both the aforesaid witnesses, they were taken to the New Bongaigaon R.P.F. Outpost and put in the lock up in the morning of 31.7.1993 and in the lock up S.I., Dilip Kumar Barua and four other constables had assaulted them at different points of time. According to the two witnesses i.e., PWs 2 and 3, in the morning of the next day, i.e., 1.8.1993, in the early morning, the deceased Mahammad Ali was again assaulted by the R.P.F. personnel and thereafter his dead body was found lying on the floor of the lock up. The arrest of Mahammad Ali by the R.P.F. personnel in the morning of 31.7.1993 has been testified to by PWs 4 and 5. In their deposition the aforesaid two witnesses have stated that at about 9 a.m. on 31.7.1993 they had seen R.P.F. personnel taking away Mahammad Ali in a rickshow. 6. The witnesses examined on behalf of the respondents No. 1 and 2 form two separate categories; DWs 1, 2, 3, 5, 10 and 14 have testified that on 31.7.1993 in the late evening at about 10/10'30 p.m. they had seen the R.P.F. personnel chasing certain persons in the meter gauge yard at New Bongaigaon Railway Station. None of the aforesaid witnesses have, naturally, testified as to whether the deceased Mahammad Ali was one of such persons. The second set of witnesses examined by the respondents i.e. DWs 9, 11, 12 and 13 have testified that in the morning of 1.8.1993 they have found deceased Mahammad Ali in the lock up and that he appeared to be unwell. According to the aforesaid witnesses examined on behalf of the respondents No. 1 and 2, Mahammad Ali was taken in an ambulance to the Railway Hospital where he died. However, according to DW 8, Dr. A.K. Das, the deceased was brought to the hospital at about 12 noon and at that time he was already dead. 7. The evidence tendered on behalf of both the sides have been duly noticed. In so far as the witnesses examined by the petitioner is concerned, the statements made by them are clear, consistent and does not admit of any ambiguity. PWs 3 and 4 have testified that they had seen R.P.F. personnel taking away deceased Mahammad Ali in the morning of 31.7.1993. In so far as the witnesses examined by the petitioner is concerned, the statements made by them are clear, consistent and does not admit of any ambiguity. PWs 3 and 4 have testified that they had seen R.P.F. personnel taking away deceased Mahammad Ali in the morning of 31.7.1993. PWs 2 and 3 who were the inmates of the deceased in the lock up have testified that they were picked up by the R.P.F. personnel at about 8 a.m. in the morning and during the day, they, including the deceased, was repeatedly assaulted by the R.P.F. personnel. Thereafter the deceased was found dead in the morning of next day, i.e., 1.8.1993. As against the above position revealed by the evidence of the witnesses examined by the petitioner, the picture revealed by the evidence of the witnesses examined on behalf of the respondents Nos. 1 and 2 may be noted. DWs 1, 2, 3, 5, 10 and 14 though have testified that it is in the late evening of 31.7.1993 that a group of persons were being chased by the R.P.F. personnel, it is not their version that the deceased Mahammad Ali was one of such persons. According to DW 14, i.e., S.I., D.K. Barua, in the evening of 31.7.1993 they had apprehended a group of persons who were loitering in the railway yard and as the R.P.F. party have tried to apprehend the said persons there was some scuffle with the aforesaid persons. According to DW 14, one of such persons tried to flee and on being chased by the R.P.F. personnel, he fell down on the railway track and injured himself. The other witnesses examined by the respondents No. 1 and 2 have testified as to what had happened in the morning of 1.8.1993. According to these witnesses, who claimed to be on duty in the RPF posts in the morning of 1.8.1993, they had found about 10 persons in the lock up and one of such persons was reported to be unwell. These witnesses have testified that thereafter the aforesaid person who was unwell was taken to the Railway Hospital where he died. 8. These witnesses have testified that thereafter the aforesaid person who was unwell was taken to the Railway Hospital where he died. 8. The version sought to be projected by the witnesses examined on behalf of the respondents No. 1 and 2, appears to be that the deceased husband of the writ petitioner, Mahammad Ali, belonged to a group of persons who were found unauthorisedly loitering in the Railway yard in the evening of 31.7.1993. The R.P.F. personnel tried to apprehend these persons and in the resultant scuffle, the deceased husband of the petitioner fell down on the railway track and injured himself. It is on account of the injuries suffered that the said person passed away on the next day morning. 9. The version put forward by the aforesaid witnesses examined on behalf of the respondents No. 1 and 2 appears to be inherently incredible. Even if the respondents' versions that deceased Mahammad Ali was apprehended in the evening of 31.7.1993 is believed and further credence is given to the respondents version that he was injured in the scuffle that took place preceding his arrest, what remains unexplained is why the injured person was brought to the lock up and lodged there for the night instead of being taken to the hospital for medical treatment. If the version of the respondents that as a result of such injuries sustained by Late Mahammad Ali in the evening of 31.7.1993 he had died in the following morning, is to be believed, the injuries sustained by him in the evening of the previous day must have been sufficiently serious warranting medical treatment. Yet the deceased was not taken to the hospital for medical treatment; instead he was lodged in the lock up and kept there for the night. The action of the R.P.F. in doing so, i.e., keeping the deceased in the lock up without rendering any medical aid to him renders the version which has now been projected to the inherently incredible one. As against the aforesaid position revealed by the evidence of the witnesses examined on behalf of the respondents No. 1 and 2, as already noticed, the evidence adduced by the witnesses examined on behalf of the petitioner are sufficiently clear and lucid. There is nothing in the cross-examination of the aforesaid witnesses examined by the petitioner to throw any doubt on their credibility. There is nothing in the cross-examination of the aforesaid witnesses examined by the petitioner to throw any doubt on their credibility. Balancing the two cases projected, this Court is of the considered view that the materials on record are sufficiently strong to hold that the deceased Mahammad Ali died in the lock up of the Railway Protection Force at New Bongaigaon on account of torture and assault inflicted on him by the R.P.F. personnel after his arrest in the morning of 31.7.1993. 10. The next question that this Court has to address is the entitlement of the writ petitioner, as the wife of the deceased Mahammad Ali, to compensation. The difficulty does not lie in holding the writ petitioner to be so entitled; rather, the difficulty lies in making a correct assessment of the quantum of compensation that this Court should grant. There are some materials on record to show that the deceased Mahammad Ali at the time of his death was 25 years in age and he had left behind a minor child of 21/2 years, who, it is further claimed, is physically challenged. The income of the deceased, at the time of his death, has not been established. In such a situation the determination of the quantum of compensation has to be a largely subjective process, though care must be taken to take into account all such objective factors as would be relevant to the aforesaid determination. Taking into account the totality of the facts and circumstances, I am of the considered view that an amount of Rs. 1'50 lacs, though at first sight may appear to be on the lower side, would meet the ends of justice. Accordingly, it is directed that the respondents No. 1 and 2 shall pay the aforesaid amount of Rs. 1'50 lacs to the writ petitioner, after proper identification, within a period of two months from the date of receipt of a certified copy of this order. 11. The writ petition shall stand allowed as indicted above. Petition allowed