JUDGMENT B. Sudershan Reddy, C.J. 1. This writ petition has been filed by one Indrajit Terang alleging that his younger brother Bhupen Singh Terang was picked up by the police personnel from the Home of Orphan and Destitute Children at Rongkhelan, Diphu and thereafter has been subjected to torture due to which he died at Diphu Hospital. 2. This Court vide its order dated 19-9-2005 directed the learned District and Sessions Judge, Nagaon to make an enquiry into the matter and submit report to this Court recording its findings with reference to the allegations made in the writ petition. 3. The learned District and Sessions Judge having made an enquiry into the incident pursuant to the directions of this Court submitted report dated 17-7-2006, which is to the following effect: In the light of my above the discussions based on unimpeachable account of the eye witnesses coupled with the circumstantial evidence, it is found to be established that the death of Bhupen Singh was caused not due to injuries sustained by him in an accidental fall from a weak bamboo bridge during search operation as stated by the respondents, but it was a culpable homicide, as a result of torture in the police custody. Accordingly, I am constrained to hold that the death of Bhupen Singh was a custodial death. 4. This is one of those unfortunate cases where the security forces indulged in brutal acts of torture while in custody resulting in ultimate death of individual in custody. 5. The petitioner's brother Bhupen Singh Terang, aged about 14 years, was a student of Class DC of Rengbonghom Higher Secondary School, Diphu. He was studying as an Inmate of the Home for Orphan and Destitute Children, Rongkhelan, Diphu since 1996. He was stated to be a brilliant student and also a prominent athlete of the school, having participated in annual sports and cultural competitions and won several medals and prizes to his credit. 6. On 21-3-2004, at about 9.30 p.m., the police personnel picked up the said Bhupen Singh along with one Elwin Engthi Kathar and Arun Tokbi in order to take them to police station, but, however, Bhupen Singh rescued himself and went to his hostel, but the police personnel came to the Orphanage and picked up Bhupen Singh and took him to police station at Diphu. 7. 7. On 24-3-2004, at about 12.30 p.m., the petitioner received information that his brother Bhupen Singh was undergoing treatment at Civil Hospital, Diphu, where the petitioner together with his family members went and found Bhupen Singh in the hospital bed with severe injuries on his person. He was unable to speak, but with great difficulty informed the petitioner that since the night of 21-3-2004, the 3rd respondent, the Officer Incharge of Diphu Police Station and few other police personnel severely tortured and assaulted him inhumanly. He was unable even to sit and walk properly. His health condition deteriorated due to which hospital authorities referred him to GMCH for further specialized treatment. The petitioner along with some police personnel took Bhupen Singh to the GMCH for further treatment on the same night, where Bhupen Singh underwent treatment from 25-3-2004 to 3-4-2004. The condition further deteriorated and did not improve. 8. Even, while the petitioner's brother was undergoing medical treatment at GMCH, the police personnel came on 3-4-2004 and took him into the custody for his production before the Court at Diphu on 4-4-2004. That immediately after production in Diphu Court on 4-4-2004, he was taken to Diphu Hospital, where he died on the same day. The said Bhupen Singh, admittedly, died while in the police custody on 4-4-2004. 9. The petitioner lodged complaint before the Deputy Commissioner and District Magistrate, Karbi Anglong, Diphu, on 18-5-2004 praying inter alia to apprehend the guilty police personnel including the 3rd respondent under whose custody the petitioner's brother died after being tortured. 10. The Deputy Commissioner directed the petitioner to appear in his Court on 22-5-2004 for giving evidence in respect of custodial death of his brother at Diphu Hospital and accordingly, the petitioner appeared, where an enquiry was held into the matter but nothing happened. The authorities did not even provide a copy of the postmortem report, which could, however, be obtained by the petitioner on his own. The postmortem report revealed the cause of death to be due to shock and haemorrhage as a result of massive intramuscular haemorrhage. 11. The case set up by the petitioner is that the police did not reveal any reason whatsoever as to why his brother was picked up from Orphanage Hostel without providing any information of his detention. The postmortem report revealed the cause of death to be due to shock and haemorrhage as a result of massive intramuscular haemorrhage. 11. The case set up by the petitioner is that the police did not reveal any reason whatsoever as to why his brother was picked up from Orphanage Hostel without providing any information of his detention. Later, he was found to have been admitted at Diphu Civil Hospital with severe multiple injuries on his body. The petitioner states that it is a clear case of custodial death due to torture. 12. During the course of enquiry, as many as six witnesses were examined for and on behalf of the petitioner and four witnesses including the 3rd respondent herein were examined on behalf of the respondents. 13. The case set up by the respondents is that the petitioner's brother was arrested and detained in Diphu Police Station, he was not tortured but sustained Injuries in an accidental fall from a weak bamboo bridge, while he was accompanying a Search Party during the search operation. 14. The learned District Judge framed following two points for determination: a) Whether Bhupen Singh died due to injuries sustained by him in an accidental fall from a bamboo bridge, while conducting search operation? b) If not, whether death of Bhupen Singh in custody is a case of culpable homicide as a result of torture in Police Custody? 15. That even according to the police, the petitioner's brother was arrested on the allegation of his involvement in Diphu P.S. Case No. 5/2004 registered under Section 384, I.P.C. and he was sent to Diphu Civil Hospital for medical examination. On 23-3-2004, he was produced in Diphu Court with a prayer for allowing police custody for 5 days, but the Court allowed 3 days police custody. He was interrogated in the police control room, while in custody. It Is, thus, a clear case where the police admitted that the petitioner's brother was arrested and detained In police custody for interrogation In connection with the investigation in Diphu PS Case No. 5/04. 16. The said Bhupen Singh, while in police custody, is alleged to have confessed to be a member of UDPS (a banned militant organization) and agreed to show the weapons concealed by him at various places. It is also the case set up by the police that some weapons were recovered from different places. 16. The said Bhupen Singh, while in police custody, is alleged to have confessed to be a member of UDPS (a banned militant organization) and agreed to show the weapons concealed by him at various places. It is also the case set up by the police that some weapons were recovered from different places. That while a search party was coming back from a village and while crossing a weak bamboo bridge Bhupen Singh along with Home-guard Arun Das fell down from the bridge and sustained injuries. 17. The learned District Judge, after an elaborate consideration of the matter and upon appreciation of the materials available on record, found that a truncated picture of an accidental fall and injuries is sought to be depicted by the respondents with an intention to distract attention on the allegations of torture made against the deceased. 18. The following injuries were found on the body of the deceased: 1) Bluish colouration of left fact, on cut section, haematoma was present over left facial area of the dead body. 2) Swelling and bluish colouration of both buttock, thighs and calf of legs. On cut section haematoma and distorted muscles fibers were present over buttock, back and thighs and calf area of both legs. 3) Both ankles of foot of the dead body also had the same type of injuries. (4 Inner side of both arms and forearms had also become bluish colouration and swelling on cut sections. Haematoma and distortion of muscles fibers were detected. 19. On examination, the doctor opined that the Injuries found on the body of the deceased could not have been caused by a fall. 20. The 3rd respondent, Officer Incharge of Diphu Police Station, in his evidence admitted that the deceased sustained only minor injuries in the accidental fall. 21. The learned District Judge, upon appreciation of materials available on record, found that the theory of accidental fall has been pressed into service in order to camouflage the truth. The learned District Judge, accordingly, held that the deceased did not sustain any fatal injuries in the alleged accidental fall from the weak bamboo bridge and the injuries were attributable to severe torture inflicted upon the deceased while in police custody. 22. The learned District Judge in clear and categorical terms found that the deceased has been subjected to physical torture during the course of interrogation. 22. The learned District Judge in clear and categorical terms found that the deceased has been subjected to physical torture during the course of interrogation. The learned District Judge recorded the following features that have emerged out from the evidence available on record. a) Bhupen Singh was arrested on 21-3-04 along with two others namely and Alwinson Kathar Arun Tokbi. Alwinson Katha (PW 3) was released on P.R. bond by the police. Bhupen Singh and Arun Tokbi were produced on 23-3-04 before Diphu Court, in connection with Diphu P.S. Case No. 5/04 with a prayer for 5 days police custody. Diphu Court allowed 3 days police custody. b) Alwinson Kathar PW 3, who was arrested with Bhupen Singh deposed that they were severely assaulted by the police official in the police station. He could hear the cries of Bhupen Singh, when he was tortured in another room of the police station. PW 3 was severely tortured in the police custody. This has been confirmed by his mother PW 4. c) The case was investigated by O/C, Sri I.M. Saikia himself and Bhupen Singh was taken into police custody for 3 days from 23-3-04. d) Admittedly Bhupen Singh was interrogated by police officers in the police station, Diphu. At 10 p.m. on 23-3-04, Bhupen Singh was taken to different remote locations in and around Diphu for search operation, by a Police party headed by the Supdt. of Police, Diphu. During search operation carried out on the night intervening 23rd and 24th April, 2004, Bhupen Singh allegedly fell down from a weak bamboo bridge and sustained injuries. However, eye witnesses' account regarding the extent of injuries sustained by Bhupen Singh in the incident could not justify any severe fatal injury on his person, thus rendering the story not believable. e) On 24-3-04 Bhupen Singh was hospitalized at Civil Hospital, Diphu, for treatment. Bhupen Singh narrated before PW-1 and PW-2 the magnitude and type of torture meted out to him by the police official. f) Bhupen Singh was referred to GMCH for treatment on 24-3-04. g) Before expiry of 3 days police custody period, without informing and without taking permission from the Court, Bhupen Singh was sent to GMCH by the O/C, Diphu Police Station for further treatment. The alleged torture continued by putting fetters on a sick and serious Bhupen Singh, even while he was taken to Guwahati for treatment. g) Before expiry of 3 days police custody period, without informing and without taking permission from the Court, Bhupen Singh was sent to GMCH by the O/C, Diphu Police Station for further treatment. The alleged torture continued by putting fetters on a sick and serious Bhupen Singh, even while he was taken to Guwahati for treatment. h) Seriously injured Bhupen Singh was brought from GMCH, against medical advice who was undergoing treatment for his production before the Diphu Court on. i) After getting released from GMCH against the medical advice, Bhupen Singh was produced in the Diphu Court on 4-4-04 in a very deteriorating condition of health. On 4-4-04, the deceased succumbed to death. He was declared dead at 12.55 p.m. by the Civil Hospital, Diphu. j) Ante mortem medical report of P.W. 5 and the opinion of P.W. 6 the doctor who conducted the post mortem of Bhupen Singh directly raised accusing finger towards police official by indicating that the ante mortem injuries upon the body of Bhupen Singh were caused by hitting on the body of the deceased. There is no rebuttal evidence to negate the opinion of the doctors to justify hitting on the body of an accused during police custody. PW 6, ruled out possibility of Bhupen Singh sustaining fatal injury due to fall from a certain height. 23. The learned District Judge, accordingly, concluded which we have already noted. 24. It is a clear case where only conclusion that could eventually be drawn is that the petitioner's brother was taken into custody by the 3rd respondent and other police personnel in connection with the investigation into the Diphu P.S. Case No. 5/04 registered against him and has been subjected to brutal torture in custody resulting in his death while in custody. 25. The only question that survives for our consideration is as to whether the respondents are liable to pay compensation to the petitioner for causing the death of the petitioner's brother. The liability of the respondents in the present case to pay compensation cannot be doubted. 26. 25. The only question that survives for our consideration is as to whether the respondents are liable to pay compensation to the petitioner for causing the death of the petitioner's brother. The liability of the respondents in the present case to pay compensation cannot be doubted. 26. The Apex Court in Sube Singh v. State of Haryana after referring to its earlier decisions including the decision rendered in Nilabati Behera v. State of Orissa 1993 CriLJ 2899 and D.K. Basu v. State of West Bengal 1997 CriLJ 743 reiterated that in cases where custodial death or custodial torture or other violation of rights guaranteed under Article 21 is established, Courts may award compensation in a proceeding under Article 226 of the Constitution of India. However, the Apex Court cautioned that before awarding compensation, the Court will have to pose to itself the following questions : (a) Whether the violation of Article 21 is patent and incontrovertible, (b) Whether the violation is gross and of a magnitude to shock the conscience of the Court, (c) Whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible scars of disability. 27. The case, in hand, gives no rise to any suspicion as to the cause of death of the petitioner's brother as it is conclusively established that he died in custody due to torture. The violation of Article21 is patent and incontrovertible. There cannot also be any doubt that the violation is gross and of a magnitude that shocks Judicial conscience. 28. Be it noted that the respondents did not file any affidavit in opposition nor raised any objection whatsoever as regards to the conclusions drawn and findings recorded by the learned District Judge. The respondents have participated in the enquiry before the learned District Judge where they have set up a false case by propounding a theory as if the deceased fallen from a weak bamboo bridge and sustained injuries. The whole case set up by the respondents has been shattered into pieces by their own admissions and conduct. It is a clear case where the petitioner's brother has been arrested arid taken into custody and subjected to torture during the course of interrogation due to which the petitioner's brother met with eventual death. 29. The whole case set up by the respondents has been shattered into pieces by their own admissions and conduct. It is a clear case where the petitioner's brother has been arrested arid taken into custody and subjected to torture during the course of interrogation due to which the petitioner's brother met with eventual death. 29. The respondents undoubtedly acted in an unconstitutional and unlawful manner in performing the public duties resulting in the infringement of indefeasible rights guaranteed under Article 21 of the Constitution of India. 30. For all the aforesaid reasons, we hold that the respondents are liable to pay compensation for causing the death of petitioner's brother while in custody. Accordingly, the writ petition is allowed with the following directions: a) The respondents are directed to pay compensation of Rs. 3,00,000.00 (Rupees Three Lakhs) only to the petitioner and parents of the deceased, who are not impleaded as petitioners in this writ petition. It is on record that the parents of the petitioner and the deceased are alive. The said amount shall be recovered from the salary of 3rd respondent and others who are found responsible for causing death of the petitioner's brother in custody. b) The amount of compensation shall be deposited with the Registrar General of Gauhati High Court within a period of three months from today. The amount shall be disbursed and paid to the parents of the deceased on their being properly identified to the satisfaction of the Registrar General. c) The 1st respondent is directed to take appropriate disciplinary action as against the 3rd respondent and all others, who are found responsible for causing the death of petitioner's brother, while in custody and report compliance to this Court within three weeks from today. d) The 1st respondent is further directed to take appropriate steps for registration of a criminal case against the 3rd respondent and all others and entrust the investigation to the C.I.D., so that culprits are punished in accordance with law. The Investigation shall be entrusted to the Superintendent of Police (C.I.D.). e) Progress of investigation shall be reported to this Court through the Registrar General of Gauhati High Court and the first status report shall be submitted to this Court within eight weeks from today. The Investigation shall be entrusted to the Superintendent of Police (C.I.D.). e) Progress of investigation shall be reported to this Court through the Registrar General of Gauhati High Court and the first status report shall be submitted to this Court within eight weeks from today. f) However, we make it clear that the observations made in this order and the conclusions and findings recorded by the learned District Judge are confined only for the purposes of disposal of this writ petition and they shall not in any manner effect the defence, if any, of the persons against whom criminal case is to be registered and as well as shall have no bearing on the disciplinary proceedings to be initiated. g) Writ petition is accordingly allowed with cost quantified at Rs. 15,000/- (Rupees fifteen thousand) only to be recovered from the salary of the 3rd respondent. 31. Registry is directed to dispatch a copy of this order within three days from today. B.P. Katakey, J. 32. I agree. Petition allowed.