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2008 DIGILAW 633 (GAU)

Kunja Daimary v. Union of India

2008-08-28

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. N. Chakraborty, learned Counsel appearing for the Petitioner as well as Mr. D. Barua, learned Central Government Counsel (for short; the CGC) representing the Union of India/Respondent Nos. 1 and 2. Also heard Mr. P.S. Deka, the learned State Counsel on behalf of the State of Assam/Respondent Nos. 3 to 5. 2. The case, in brief, is that the incident happened on 9.1.2001 when the husband of the Petitioner one Khagen Daimary accompanied by his wife and daughters went to attend the Shradha ceremony of his brother Santi Narzary, who was killed by the Army to his brother's house at Amguri. On that day at about 11.30 p.m., the army personnel surrounded the said house and thereafter, the said Khagen Daimary (hereinafter referred to as, 'the deceased') was taken to nearby paddy field by the army, and was killed by the army suspecting him to be an NDFB militant. His dead body was sent to Mangaldai Civil Hospital for post-mortem examination. The said deceased was a cultivator and at the time of his death he left behind his wife, the Petitioner herein, two minor daughters aged about two years and three months respectively and his old mother. 3. By filing this writ petition, the Petitioner has sought for a direction to the Respondents to conduct a judicial enquiry to find out the cause of the death of her husband and thereafter to order for payment of compensation for the death of her husband in the circumstances noticed above. 4. This Court while entertaining this writ petition for its hearing, by order dated 5.3.2003 directed the learned District Judge, Darrang to conduct summary enquiry allowing opportunities to the parties concerned and to submit his report within 60 days. In compliance of the aforesaid order, an enquiry was held by the learned District Judge, Darrang and a report dated 14.9.2004 thereof was placed before this Court for its perusal and consideration. 5. A copy of the said report had also been served upon the learned CGC, who, on the instruction of the Respondents, filed objection against the said report alleging that no reasonable opportunity of hearing was afforded to the army-official Respondents. 6. 5. A copy of the said report had also been served upon the learned CGC, who, on the instruction of the Respondents, filed objection against the said report alleging that no reasonable opportunity of hearing was afforded to the army-official Respondents. 6. Having considered such objection, this Court vide order dated 6.1.2005 held that the said enquiry report could not be accepted as the said enquiry was conducted without any notice to the Union of India/Respondent Nos. 1 and 2 and remitted the matter to the learned District and Sessions Judge, Darrang, Mangaldoi to afford an opportunity to the Union of India to cross-examine the witnesses examined on behalf of the Petitioner or other Respondents, if any. It was also directed by the said order that the Enquiry Officer should also allow the Union of India to lead their evidence, if any and thereafter a fresh enquiry report be submitted to this Court. In compliance of the said order dated 6.1.2005, the District and Sessions Judge, Mangaldoi conducted the enquiry afresh by affording reasonable opportunity of hearing and cross-examination of the witnesses examined on behalf of the parties to the Union of India/Respondent Nos. 1 and 2. 7. The learned District Judge, having completed the enquiry in term of the Hon'ble High Court's direction dated 6.1.2005 and upon hearing the learned Counsel appearing for the parties as well as having appreciated the testimony of witnesses examined on behalf of the Petitioner and the Union of India came to the conclusion that the deceased was picked up by the army personnel from the house of Santi Narzary and thereafter he was taken to nearby paddy field where he was killed by the army personnel. To this effect, the learned District Judge submitted the enquiry report dated 4.5.2006 before this Court. The copy of the said report dated 4.5.2006 was also served upon the Union of India/Respondent Nos. 1 and 2 through the learned CGC who again preferred an objection dated 4.12.2007 alleging that there were some glaring contradictions in the said report and set out as many as six instances to show such contradictions in the said objection. 8. We have meticulously scanned the pleadings of the parties to this petition so exchanged between and by the parties including the Union of India. The Enquiry Report dated 4.5.2006 has been given adequate attention and due consideration. 8. We have meticulously scanned the pleadings of the parties to this petition so exchanged between and by the parties including the Union of India. The Enquiry Report dated 4.5.2006 has been given adequate attention and due consideration. We have also made a close survey on the testimony of all the witnesses examined by the Petitioner's side as well as on behalf of the Union of India. The post mortem report so annexed to the writ petition as Annexure-11 has also been thoroughly examined. As per the postmortem report, the doctor who conducted the post-mortem on 10.1.2001 found the following injuries A dead body of a male aged about 35 years, mouth and eyes open. Rigor mortis present. Injuries-About 2/3 of the skull detached from the head. Portion of brain matter found in a separate bag, beey. No other injury detected. The doctor opined that the cause of death was hemorrhage and shock as a result of injury over the head. 9. Coming to the testimony of the witnesses, it is seen that PW 1, in her cross-examination by Union of India on 11.5.2005, deposed that on the day of the incident i.e. 9.1.2001, they went to Amguri to attend Shradha Ceremony with her deceased husband and her daughter held in the house of the said Santi Narzary. There was no meeting in the place of Santi Narzary on that day. Army came and surrounded the house. They were taken outside the courtyard. Her husband was taken away to the paddy field by the army. The field was at about 200 meters away. She heard the sound of army firing. She heard army firing about 3/4 rounds. Army shot dead her husband as they had taken him away. She stated that she did not know whether FIR was filed or not before the police. She did not file any FIR as the condition of her was pitiable on that day. She stated that in her married life she had never seen her husband having any connection with any militant. Her husband was earning for their livelihood by cultivating. At the same breath, the witnesses, on being examined by the army, also stated that it was the army who killed the deceased by taking him away to the paddy field. 10. She stated that in her married life she had never seen her husband having any connection with any militant. Her husband was earning for their livelihood by cultivating. At the same breath, the witnesses, on being examined by the army, also stated that it was the army who killed the deceased by taking him away to the paddy field. 10. It would be pertinent to take note of the deposition of the witnesses so examined by the army more particularly opposite party No. 2, Padmeswar Saikia, the SI, who was in-charge of Demakuchi Out Post at the relevant time and DW 1, Narendra Ch. Rabha who was Gaonburah of Amguri of Paneri. 11. Opposite Party No. 2, Padmeswar Saikia in his deposition who was examined by the army earlier prior to the remand of the matter to the District Judge for enquiry afresh, deposed in cross that he did not have personal knowledge about the incident. He did not know if there was any encounter. No case was registered against the deceased in their Out Post. There was no record of any case against him. Though he said in chief that the deceased was a hardcore NDFB, there was no such evidence. He stated that he did not see any empty cartridges fired by Army. Though he went to the place of incident, Havildar Surrender Kumar gave him two grenades removing them from the waist of the deceased. 12. DW 1, Narendra Ch. Rabha examined by the army, in his examination-in-chief deposed that army operation was there some time in their village. But on that day army did not take him with them and did not meet him. Army used to take him with them in such operation before. In the said incident army did not take him even he was not informed. In cross, this witness testified that the deceased was a cultivator. He had not relation with terrorist. Police never wanted him nor was he arrested in connection with illegal acts. The deceased came to their village to attend the Shradha ceremony of his brother. His brother Santi Narzary lived in their village permanently. The place of occurrence was situated at a distance of 200 meters from his house. He heard the firing of 3 rounds on that day. He signed the seizure list and other signatures. The deceased came to their village to attend the Shradha ceremony of his brother. His brother Santi Narzary lived in their village permanently. The place of occurrence was situated at a distance of 200 meters from his house. He heard the firing of 3 rounds on that day. He signed the seizure list and other signatures. However, police did not show him the seized grenade and other things. He had no knowledge of recovery of any grenade or cartridges from the place of occurrence. This witness was examined by the Union of India on 28.9.2005 after the remand of the matter. In the above premises, it would clearly reveal that the deceased was killed by the army, which was duly reflected in the enquiry report submitted by the District Judge. 13. We have also thoroughly and meticulously scanned the objection filed by the army. 14. Having gone through the objection and on consideration of the contentions canvassed on behalf of the army/Respondents, it appears that according to army, no representation was filed by the Petitioner as stated by her before the District Judge and that in the cross-examination of the Petitioner, it could not be elucidated out that the husband was taken to the paddy field by the army and shot dead. The CGC has basically put emphasis on two grounds as put forward in the objection, which are as follows : (v) That the learned Judge also held that although it was stated that the militants fired with pistols, no pistol was recovered from the scene, overlooking the fact that only one militant was shot dead and at least two ran away. The pistol might have been with any one of them. The learned Judge also held that as the Army personnel were not injured in the grenades blast the fact of grenades blast was doubtful (page 18 of the enquiry report). In any such operation Army personnel take all precautions and also wear protective gear. It will be incorrect to hold that to prove a grenade blast during an encounter, few Army personnel have to be injured or killed. (vi) That the learned Judge held that "From the injury sustained by the deceased it can be held that he was shot at from close range. Had he been killed in encounter he would have sustained more injuries than sustained by him" (page 21 of the enquiry report). (vi) That the learned Judge held that "From the injury sustained by the deceased it can be held that he was shot at from close range. Had he been killed in encounter he would have sustained more injuries than sustained by him" (page 21 of the enquiry report). The learned Judge cannot arrive at this conclusion without examining the doctor who conducted the postmortem or the post-mortem report. Therefore, the conclusion of the learned Judge is perverse. In the very next line the conclusion of the learned Judge that had he been killed in an encounter he would have sustained more injuries has no basis. 15. The enquiry report has also been scrupulously scrutinized. The learned District Judge, in the enquiry report dated 4.5.2006 in her conclusion observed as follows 22. Now, it is to be seen whether the deceased was a militant, that is, a member of NDFB. It is stated by PWs 1 and 2 that the deceased was not a militant having no connection with NDFB Organization. He was an agriculturist and was earning his livelihood doing cultivation. On the day of the incident he came to attend the 'Shradh' ceremony of Santi Narzary, who was an active NDFB militant. The evidence of the opposite party, on the other hand, shows that the deceased was a militant. He came to Amguri to attend the 'Shradh' ceremony of Santi Narzary. It is also seen from the evidence that 4/5 NDFB militants came to attend the 'Shradh' ceremony of Santi Narzary and getting information about the assembly of the NDFB the army cordoned the house fired at the militant in retaliation as the militant fired at the army. It is in the evidence of Investigating Officer that there was no record of criminal cases against the deceased in the Out Post and no evidence found to show that the deceased was a member of the NDFB and on that day, he came to Amguri to meet the members of the militant group in the house of Santi Narzary instead of 'Shradh' ceremony. It is admitted by the Investigating Officer that during investigation it has come to light that the deceased came to attend the 'Shradh' ceremony of his brother Santi Narzary. It is admitted by the Investigating Officer that during investigation it has come to light that the deceased came to attend the 'Shradh' ceremony of his brother Santi Narzary. PW 3 Naren Chandra Rabha also deposed that the deceased-was known to him for last 20 years and-he used to visit his village for his relation with Santi Daimari and that he had never seen him indulging in any unlawful activities nor saw police searching him to arrest him in such case. He has further stated that on the day of the incident he came to Amguri to attend the 'Shradh' ceremony of his brother along with his family. So, from the evidence of these two witnesses including the evidence of PW 1 and PW 2, it is clearly seen that the deceased was not a militant. He was a cultivator by profession and came to Amguri to attend the 'Shradh' ceremony of his brother. The case of the opposite part Union of India that the deceased was a militant and indulged in unlawful activities was not supported by any documentary evidence. Therefore, no occasion arises to suspect that the deceased came to Amguri to meet the other militants. If he had such intention he would not have come with his family. Therefore, it cannot be inferred that the army personnel lifted him suspecting him to be militant while he came to attend the 'Shradh' ceremony of his brother Santi Narzary who was a member of NDFB Organization. The opposite party-Respondent has utterly failed to prove the fact that the deceased was a member of an unlawful organization. If it is presumed that he was a member of such organization it would be a debatable point whether he could be picked up from the house of his relative from midst of his family members and shot at brutally in the paddy field without any offence being committed by him at that time. There is no evidence against the deceased that he was armed with any arm and weapons. The Investigating Officer has investigated the case pursuant to the FIR filed by Surendra Kumar Singh. Ext-Kha is the FIR. Ext-Kha(2) is his signature. Ext-Kha(3) is the signature of O/C. Upadhayaya of Paneri Police Station. There is no evidence against the deceased that he was armed with any arm and weapons. The Investigating Officer has investigated the case pursuant to the FIR filed by Surendra Kumar Singh. Ext-Kha is the FIR. Ext-Kha(2) is his signature. Ext-Kha(3) is the signature of O/C. Upadhayaya of Paneri Police Station. He investigated the case pursuant to the said FIR and came to know that the army cordoned the village getting information that militant came to attend the 'Shradh' ceremony of Santi Narzary and at that time the militant fired at the army and one of them died on the spot while the others fled away. Accordingly, he submitted final report in the said case and Ext-Ga(1) is his signature. In evidence in cross-examination he has stated that he had no personal knowledge about the incident and did not know about the encounter. So, it cannot be inferred that there is an encounter and the deceased died in the said encounter. 23. Respondent although made attempt to project a picture of encounter but failed to show the same. The evidence of the opposite party No. 1 shows that about 60 rounds were fired by 2/3 army personnel and the firing continued for about 10 minutes. Had there been any such encounter and firing continued for ten minutes more than 5 empty cases would have been found lying at the place of encounter. The evidence of Investigating Officer clearly shows that 5 empty cases was handed over to him allegedly recovered from the place of occurrence. As regards to the recovery of grenades his evidence is that the same has been handed over to him by Havilder Surendra Singh from his possession. He had not seen the recovery of grenades from the waist of the deceased. PW 2 saw one injury on the head of the deceased. The doctor also found head injury on the deceased and he has opined that death was due to shock and hemorrhage as a result of the injury sustained. From the injury sustained. From the injury sustained by the deceased it can be held that the deceased was shot at from a close range. Had he been killed in encounter he would have sustained more injuries sustained by him. The plea of the opposite party that the deceased died in an encounter appears to be not true. From the injury sustained. From the injury sustained by the deceased it can be held that the deceased was shot at from a close range. Had he been killed in encounter he would have sustained more injuries sustained by him. The plea of the opposite party that the deceased died in an encounter appears to be not true. No evidence found to support the contention of the opposite party that Khagen Daimari died while army fired at the militant in self-defence. Rather the copy of the certificate issued by Gaon-burah available in the record shows that the incident took place while Late Khagen Daimari was present at the village Amguri with his family on account of Shradh Ceremony of his brother. The plea taken by the Union of India that Khagen Daimari died while companion fired at the army and the bullet missed and hit him and killed him is not supported by any evidence. 24. From what has been discussed above, I find that this is a clear where the deceased was brutally killed by the army personnel without any rhyme and reason. The army personnel were not authorized to pick up any innocent person from the house of his relative to kill him brutally in the paddy field. 16. Having gone through the above findings recorded by the District Judge based on an enquiry which being basically a summary enquiry and also taking into consideration of the postmortem report as well as the deposition of opposite party No. 1 and DW 1 above discussed examined by the Union of India, we do not find any substance in the objection raised on behalf of the Union of India. Such objection appears to be mechanical and without any basis. 17. Be it mentioned here that it is on the record that while the Army had undertaken taken such operation they did not inform the civil authority nor the Gaon-burah, DW 1, Narendra Ch. Rabha. 18. Be it noted that the instant enquiry report dated 4.5.2006 is the upshot of the second enquiry directed to be conducted by the concerned District Judge by this Court accepting the initial objection of the Union of India/Respondents No. 1 and 2 against the earlier enquiry report dated 14.9.2004. Rabha. 18. Be it noted that the instant enquiry report dated 4.5.2006 is the upshot of the second enquiry directed to be conducted by the concerned District Judge by this Court accepting the initial objection of the Union of India/Respondents No. 1 and 2 against the earlier enquiry report dated 14.9.2004. It is admitted fact that the deceased was killed by the army although "according to the army it was an encounter with NDFB outfit of which the deceased was a member. However, and there was no such evidence to show whatsoever that the deceased died in an encounter or he was ever connected with any illegal activities or was a member of the militant outfit NDFB. 19. Under such circumstances we have no option but to accept the report submitted by the learned District and Sessions Judge. 20. We are constrained to hold that the fundamental right of the Petitioner's husband right to life guaranteed under Article 21 of the Constitution of India was being taken away not in accordance with the procedure established by law. If the guarantee under Article 21 of the Constitution that deprivation of life and personal liberty cannot be made except in accordance with law is to be real, the enforcement of the right in case of every infringement must also be possible within the constitutional scheme. Hence an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. The same has been reflected in the International Covenant on Civil and Political Rights 1966 wherein in Article 9(5), it is provided as under: Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. The violators of the Mandate of Article 21 of the Constitution need to be burdened in the payment of monetary compensation. It is accepted that the right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. Respect of the rights for individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the Petitioner's rights. It may have recourse against those officers. [See (i) Ritdul Sah v. State of Bihar and Anr. Respect of the rights for individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the Petitioner's rights. It may have recourse against those officers. [See (i) Ritdul Sah v. State of Bihar and Anr. and (ii) Nilabati Behera v. State of Orissa reported in AIR 1983 SC 1086 and AIR 1993 SC 1960 respectively]. In the case at hand, it appears to us, the Petitioner's husband was killed by the army in contravention of the Article 21 of the Constitution. Since the precise life of the Petitioner's husband cannot be compensated by any amount, however, we find that the amount we propose to be paid as compensation to the Petitioner may bring some solace in her life and can give her minimum relief against the loss she suffered. 21. In the above premises, we are of the view that it is a fit case to award compensation which is quantified as Rs.3,00,000/- (Rupees three lakhs). Such amount shall be paid by the Respondent Nos. 1 and 2/Union of India within a period of three months from today. 22. The said amount shall be paid by the Union of India within three (3) months by depositing the same with the Registrar General, Gauhati High Court at Guwahati and on such deposit, the Petitioner on being duly identified by the learned Counsel representing her, on request, shall be at liberty to withdraw the same from the Registry. 23. In the result, this writ petition succeeds and stands allowed. No costs. Petition allowed.