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2008 DIGILAW 557 (GAU)

Rameswari Basumatary v. Union of India

2008-08-01

ANIMA HAZARIKA, J.CHELAMESWAR

body2008
JUDGMENT A. Hazarika, J. 1. The Petitioners herein, three in numbers, are the mothers of the victim Dwijen Basumatary, Nageswar Boro and Borhumkha Boro and have approached this Court invoking jurisdiction under Article 226 of the Constitution of India seeking the following reliefs viz: (a) to award compensation amounting to Rs. 10,00,000/- each to the Petitioners; (b) direct prosecution of erring/guilty officers/Jawans of 16 Punjab Regiment on the basis of the findings of the judicial enquiry and pending the case a direction seeking judicial enquiry by the learned District & Sessions Judge, Darrang to enquire into the incident of killings of three members of Bodo Liberation Tigers by Army Personnel of 16 Punjab Regiment on 01.04.2000. 2. The facts leading to the case seeking the relief as indicated above are briefly summarised as follows: (a) Admittedly, the victims were the members of Bodo Liberation Tigers (hereinafter referred to as BLT for short) who were killed by the army, belonging to 16 Punjab Regiment after signing of the peace accord between the Union of India, Government of Assam, Army Headquarter and the BLT led by its vice-Chairman to pave the way for lasting peace in the region; (b) The aforesaid three victims as pleaded in the writ petition were unarmed, there was no provocation from their side when they were killed by the army which was the result of unilateral unprovoked firing by the army personnel and hence the Petitioners have approached this Court seeking the reliefs as aforesaid. 3. The Court vide order dated 20.6.2006 directed the learned District & Sessions Judge, Darrang to enquire into the facts leading to the killing of the victims by the army. Accordingly, the learned District & Sessions Judge, Darrang has made an enquiry and submitted its report on 1.2.2007 to the Registry of the Court holding that the army personnel belonging to 16 Punjab Regiment shot dead the victims in the name of fake encounter after they were picked up by the said regiment. 4. Opening the argument on behalf of the Petitioners, Mr. B.D. Konwar, learned Counsel has drawn attention of the Court to the enquiry report submitted by the learned District & Sessions Judge, Darrang wherein and whereunder 8 (eight) witnesses were examined on behalf of the victims and 1 (one) witness was examined by the Army. The postmortem reports relied upon by Mr. B.D. Konwar, learned Counsel has drawn attention of the Court to the enquiry report submitted by the learned District & Sessions Judge, Darrang wherein and whereunder 8 (eight) witnesses were examined on behalf of the victims and 1 (one) witness was examined by the Army. The postmortem reports relied upon by Mr. Konwar would go to show that the cause of death, as opined by the doctor were due to haemorrhage and shock as a result of bullet injuries. 5. The counsel at the very outset took up the evidence adduced by all the witnesses and placing reliance upon the evidence so adduced by the prosecution witnesses, the counsel wants to impress upon the Court that the army had picked up the three victims and shot them dead by showing a fake encounter. 6. The evidence of PW-1 Mrs. Basanti Boro was pressed who deposed that she knew the victims. On 1.4.2000 at about 3/4 p.m. she saw these three victims proceeding towards northern side of their village from Bhergaon. Suddenly, near the 'Bathow Mandir' (Temple) she saw 6 army personnel in civil dress, coming in three motor bikes intercepted the victims and thereafter the victims were taken forcibly by army to some unknown destination and later on she came to know that the army personnel shot dead those three victims. In the cross-examination she has deposed that she could identify the army personnel since they were loitering in civil dress in the village. She has deposed on a query that these three victims were taken away by the army guarding them by motorbikes asking them to follow in their respective bicycles. 7. Mrs. Minu Boro, who was examined as PW-2 deposed that she knew the three victims and she came to know that they were shot dead by the army and their dead bodies were handed over to the respective families. In cross-examination she has deposed that she saw the army men in civil dress but she could not give the exact year including the present year. 8. In cross-examination she has deposed that she saw the army men in civil dress but she could not give the exact year including the present year. 8. The evidence of PW-3 Shri Nabin Basumatary reveals that he knew all the victims who were members of BLT and at the relevant time he saw the army men picked up the three victims and took them to an unknown destination and later on he came to know that the three youths were shot dead by the army and their dead bodies were handed over to their respective families. He has further deposed that he saw the army personnel in civil dress and in motorbikes. In cross-examination he has deposed that though the army had taken away these victims in civil dress yet their identity is known to him since he has seen one of them in army dress earlier. 9. The evidence of PW-4 Khagen Boro would reveal that one of the victims Borhumkha was known to him before the incident but the other two victims were not known to him by name and face. He has deposed that about 6 (six) years back at about 4 p.m. he saw these victims were taken away by the army from his village nearby his house and on the following day he came to know that the victims were shot dead by the army. 10. The evidence PW-5 Kandri Boro disclosed that the victims were known to her since they belong to the cadre of BUT, but she could not say how they died. The witness has deposed that she saw the army men taking away the victims to some unknown destination and later on she came to know that they were shot dead by the army and she had heard the gunshot from her residence and in the cross-examination she has admitted that she had not counted the gun shot. 11. Evidence of PW-6 Rupamal Daimari, the village Headman disclosed that these three victims were not known to him. But he came to know that they were killed by the army. In cross-examination he has admitted that he had not seen the army carrying those youths. He had heard from others about the same. 12. PW-7 Akhar Boro has deposed that Barhumkha was known to him from before. However, the other two victims were not known to him. But he came to know that they were killed by the army. In cross-examination he has admitted that he had not seen the army carrying those youths. He had heard from others about the same. 12. PW-7 Akhar Boro has deposed that Barhumkha was known to him from before. However, the other two victims were not known to him. He had heard that those three youths w ere taken away by the army and they were shot dead. In cross-examination he had admitted that he had not seen anything. 13. Mitharam Basumatary was examined as PW-8, who had deposed that prior to joining the mainstream he was the Home Secretary of BLT and on 15.3.2000 he came to the mainstream in pursuance to the assurance of the Union Home Minister. During his involvement with BLT those three victims were cadres of BLT. He had further deposed that on 1.4.2000 at 7 a.m. he alongwith those three victims were at Harisinga and during that time those three victims urged upon him to allow them for postering. He did not allow. However, the victims left in the morning and thereafter at about 2:00 p.m. he had heard that his cadres i.e. the victims were caught hold by the Jawans of 16 Punjab Regiment and they were subjected to physical torture. Thereafter, he had immediately informed the Deputy Commissioner with a request to intervene into the matter. But he could not say what action was taken by the Deputy Commissioner and in the evening he came to know that they were killed in a fake encounter. He had heard that the victims were allowed to run away and when they obliged they were shot dead from behind. This part of evidence was under objection by the army. He had further deposed that the family of the victims are very poor and they should be adequately compensated. In cross-examination he had deposed that prior to the encounter those three persons (militants) were subjected to brutal torture by the army. 14. This part of evidence was under objection by the army. He had further deposed that the family of the victims are very poor and they should be adequately compensated. In cross-examination he had deposed that prior to the encounter those three persons (militants) were subjected to brutal torture by the army. 14. Relying on the evidence of the witnesses as indicated above coupled with the enquiry report submitted by the learned District & Sessions Judge, Darrang, the counsel appearing for the Petitioners would urge that the finding arrived at was a logical conclusion that the victims were killed by the army in the name of fake encounter and therefore urged to compensate the Petitioners adequately since it is a glaring violation of Article 21 of the Constitution of India. 15. Countering the arguments advanced by the counsel of the Petitioners, Mr. Dilip Barua, learned Central Govt. Counsel has drawn attention of the Court to the pleadings set forth in the affidavit-in-opposition filed by Respondent Nos. 1 to 4 and the objection filed by the Union of India in regard to the findings arrived at by the learned District & Sessions Judge, Darrang. The counsel has placed the affidavit-in-opposition contending inter alia that certain facts were essential for a fair decision of the case in hand. Admittedly, the army was placed for operation to flush out BLT militants and they used to get information that extortion was earned out by the militants in the villages Nizpatlaand Shikari Banglaand on 1.4.2000 secret information was received that Bodo militants were carrying out extortion at village-Nizpatla and accordingly a patrol party of 7 army moved on 4 motorcycles. The route the army followed was Nizpatla-Nagachuba-Galachuba-Shikari Bangla. The army enquired from many people regarding extortion party through whom the army came to know that there were three people who collected money. When the army was about to come back to the company location, on way the patrol party enquired from one person who told them that three men were moving along the bank of the canal towards Kala Nala. The army patrol party kept the motorcycles and two persons were left at that place and remaining 5 of the patrol party started moving along the bank of the canal towards Kala Nala and the patrol party saw them hiding in the canal in a suspicious condition. The army patrol party kept the motorcycles and two persons were left at that place and remaining 5 of the patrol party started moving along the bank of the canal towards Kala Nala and the patrol party saw them hiding in the canal in a suspicious condition. When the patrol party came close and asked them to stop and identify themselves, these three persons opened fire on the army patrol and in self defence the army patrol also opened lire on them. 16. The counsel further urged that after the firing, the entire area was searched and the three militants were found dead. One 9 mm pistol was found with a person having long hair who was identified as Nageswar Boro. Second militant wearing blue jeans was identified as Dwijen Basumatary. The following articles were found viz; (a) Cloth containing 11 round of live ammunition; (b)9mm pistol magazine having three round and one round struck in chamber; (c) Extortion money worth Rs. 3225/- (d) Slips containing extortion receipts; (e) M-20 pistol was found in his possession and one round magazine of M-20 pistol and five fired cases were recovered from the site of encounter. 17. Thereafter, at about 2130 hrs. on the same day Paneri Police Station was informed about the encounter and approximately at 0130 hrs. on 2.4.2000 police from Dimakuchi outpost came to the site of the encounter and the dead bodies and recoveries were handed over to the police. Accordingly an FIR was lodged at Paneri Police Station on 2.4.2000 stating the facts mentioned hereinabove. 18. The counsel would further urge that the facts pleaded in the writ petition in regard to fake encounter is totally distorted. Accordingly an FIR was lodged at Paneri Police Station on 2.4.2000 stating the facts mentioned hereinabove. 18. The counsel would further urge that the facts pleaded in the writ petition in regard to fake encounter is totally distorted. The counsel has urged that seizure memo, extortion notice, FIR lodged for investigation into kidnapping of Purash Ramchiary was filed before Tangla Police Station, wherein the name of Nageswar Boro (one of the victims) appeared alongwith other BLT members as an accused and which was registered as Tangla P. Section Case No. 29/98 under Sections 341/ 364/34IPC read with Section 10/13 U.A. (P) Act, FIR relating to the instant case and the meeting of the members of the BLT District Committee and the Deputy Commissioner, Darrang would show that the army personnel took the step in self defence and in encounter the victims were killed and no illegal and/or high handedness can be attributed to the army personnel in the instant case. 19. In regard to the enquiry report submitted by the learned District & Sessions Judge, Darrang the learned Central Govt. counsel the Court to the pleadings of the writ petition, the evidence of the witnesses and the findings arrived at by the learned District & Sessions Judge, Darrang and the objections filed thereto, wherefrom it would reveal that in paragraph-4 of the findings the evidence of PW-2, PW-3, PW-4, PW-5, PW-6 and PW-7. are contradicted on material points. All the witnesses have deposed, as it would reveal from the findings that they saw the three victims proceeding towards northern side of their village from Bhergaon on 1.4.2000 and it was about 3/4 p.m. near 'Bathow Mandir' (Temple) that they saw 6 army personnel coming in civil dress in three motorbikes intercepted the alleged victims and took them to some unknown destination which are perverse inasmuch as none of the witnesses except PW-1 said anything about 'Bathow Mandir'. 20. The counsel has further drawn the attention of the Court relating to the residence of the witnesses of the PW's more particularly PW-1 who is from village Babarikhat, PW-3 is from Nagrasar (Kachubeel), PW's 5 and 7 are from village Nizcekhar. These four witnesses have deposed that they had seen the army taking away these three victims though their respective residences are located at a distance of 3 to 4 km from each other which cannot be believed. These four witnesses have deposed that they had seen the army taking away these three victims though their respective residences are located at a distance of 3 to 4 km from each other which cannot be believed. These have been ignored by the learned District & Sessions Judge in its report and on this ground alone the report cannot be accepted. 21. The counsel would urge that the report of the learned District & Sessions Judge cannot be accepted, inasmuch as the evidence and the findings are contradicted. The learned District & Sessions Judge has recorded in its findings that the three youths were taken away by the army though the depositions in examination-in-chief are otherwise. PW-6 in his cross-examination has admitted that he had not seen army taking away these youths. He had heard from others. Similarly, PW-7 had admitted that he had not seen anything and therefore the findings implicating the army personnel for whisking away the victims is perverse and beyond the scope of judicial. 22. The counsel has further referred acceptance to paragraph 5 of the findings of the learned District & Sessions Judge, Darrang and would urge that the evidence of PW-8 who was Home Secretary of BLT is hearsay. PW-8 deposed that he had heard that those three victims were shot dead from behind by the army after allowing them to run away which fact has been considered while arriving at the findings without even calling for the post mortem report and examining the doctor and therefore the finding is incomprehensive. 23. Drawing attention of the Court to the deposition of DW-1, Mr. Barua has submitted that, DW-1, Major G.P. Kliaria, in his deposition specifically stated that on 1.4.2000, when he was working as Officer-Commanding in Barangajuli Camp at Darrang District, he had received information that some extortion was going on and it was carried out by the militants. Therefore, DW-1 deployed army persons in four motorbikes to stop such extortion and to apprehend the culprits. He himself led the said operation. At village Nizpatla at about 5:30 p.m., when they started moving towards a canal they saw three persons hiding on the bank of the canal and when asked to identify themselves they fired on the army personnel which resulted retaliation in self defence resulting into death of those three victims. He himself led the said operation. At village Nizpatla at about 5:30 p.m., when they started moving towards a canal they saw three persons hiding on the bank of the canal and when asked to identify themselves they fired on the army personnel which resulted retaliation in self defence resulting into death of those three victims. DW-1, in his cross-examination again deposed that, the extremists were detected within 5 to 10 ft. Immediately the extremists started firing at them. The army personnel did not sustain any injury in the encounter because they were trained people and covered with bullet-proof jackets, whereas the learned District and Sessions Judge, Darrang at Para 7 of the finding held that although the victims started firing from a distance of about 5 to 10 ft., but none of the army were injured and thus the deposition of the Army failed to inspire confidence of the Court. Referring to the Para 7 of the report, Mr. Barua thus submitted that, it would be absolutely absurd to hold that in any operation, army personnel must die, though they are covered by bullet proof jackets and therefore urged that the findings are perverse and cannot be accepted in a situation like this, where the areas are prone to extremists. 24. In the concluding paragraph of the report the learned District & Sessions Judge, Darrang has held that when there were three militants and the militants opened fire on the army wherein only two fire arms were recovered, in that case, how all the three victims could start firing simultaneously at the army personnel. The learned District & Sessions Judge thus came to the conclusion that the victims had no fire arms with them at the relevant time as alleged, and therefore, there was no firing on the part of the victims. But the fact remains that one 9 mm pistol and 20 mm Chinese made pistol were recovered from the slain militants and they opened fire when asked by the army to identify themselves. The recovery of these five arms and five cartridges show that these three militants were not only carrying fire arms with them but also had fired at the army personnel when challenged. The learned District & Sessions Judge had completely ignored this vital point. The recovery of these five arms and five cartridges show that these three militants were not only carrying fire arms with them but also had fired at the army personnel when challenged. The learned District & Sessions Judge had completely ignored this vital point. Therefore the findings of the learned District & Sessions Judge cannot be accepted, more so when 20 mm pistol recovered was made in China. Hence the counsel concluded his argument that the facts pleaded being disputed question of facts the writ court would not determine the lis between the parties awarding compensation to the Petitioners. 25. The counsel appearing for the State of Assam has urged that an affidavit-in-op-position has been filed alongwith the status report relating to Panery P.S. Case No. 31 of 2000. The affidavit so filed indicates that upon registration of the case the matter was investigated into and the investigation would reveal that there were lack of sufficient materials to substantiate the allegations made against the army and accordingly the case was ended in final report being FR No. 44 dated 25.10.2004. 26. Considered the submissions so made by the parties. The Court has meticulously gone into the evidence on record alongwith the pleadings of the parties and the annexure appended thereto. The Court has also gone through the report submitted by the learned District & Sessions Judge, Darrang whereby he has held that these three victims were killed in a fake encounter and the objections filed thereto and the status report of Panery P.S. Case No. 31 of 2000 which ended in F.R. due to lack of sufficient materials against the army. 27. A conjoint reading of the evidence on record would reveal that the evidence of the PW's being contradicted to each other at the material points do not inspire confidence of the Court. The evidence of PWs-1, 2, 3, 4, 5, 6 and 7 are not trustworthy and therefore cannot be believed. The evidence of PW-8 would reveal that he came to the mainstream on 15.3.2000 and he was Home Secretary of BIT. In that case, why these three victims would seek permission from PW-8 to poster the ceasefire agreement between the Central Government, State Government and BLT on 1.4.2000? The evidence of PW-8 would reveal that he came to the mainstream on 15.3.2000 and he was Home Secretary of BIT. In that case, why these three victims would seek permission from PW-8 to poster the ceasefire agreement between the Central Government, State Government and BLT on 1.4.2000? His deposition would show that they were allowed to run and when the victims obliged the command of the army, they were fired from behind resulting in instantaneous death, which contradicted with other witnesses deposed during the enquiry. 28. The report submitted by the learned District & Sessions Judge, Darrang, more particularly paragraphs 4, 7 and 8 of the report would show that the learned Judge has been swayed away with the statements of the prosecution witnesses, though they materially contradicted each other. He believed the evidence of PW-8 who is an interested witness in the entire case and the learned Judge committed an error apparent on the face of the record ignoring the postmortem report and the status report of the Panery P.S. Case No. 31/2000 for which the Court finds it difficult to accept the report. 29. The entire facts averred would go to show that the claim and counter claim are disputed questions of fact which cannot be gone into by a writ Court in the facts and circumstances of the case. 30. In the result this writ petition is dismissed as not maintainable due to the involvement of complex disputed questions of fact. However, liberty is granted to the Petitioners to approach the appropriate forum to agitate the matter claiming compensation, if so advised. 31. In the facts and circumstances of the case parties are left to bear their own costs.