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2009 DIGILAW 301 (GAU)

Swagmoni Boraik v. State of Assam

2009-05-06

HRISHIKESH ROY, J.CHELAMESWAR

body2009
JUDGMENT Jasti Chelameswar, C.J. 1. The writ petition is filed with the prayer as follows: It is, therefore, prayed that your Lordships may be graciously pleased to issue a Rule on the respondents to show cause as to why a writ in the nature of mandamus and/or any other appropriate writ, order or direction should not be issued directing the respondent No. 1 to register a criminal case under Section302 IPC against the respondent No. 11 for causing grievous injuries resulting death of Late Anil Boraik while he was in police custody and as to why the respondent No. 1 should not be directed to pay a compensation of Rs. 15 (Rupees fifteen) lakhs only to the writ petitioner and to the widow of Anil Boraik for gross violation of his fundamental rights guaranteed under Article 21of the Constitution of India for torturing the deceased while in police custody for denying medical treatment to the deceased while in judicial custody under respondent No. 7 and after cause or causes being shown and after hearing the parties make the Rule absolute and pass such other order or orders as your Lordships may deem fit and proper. 2. The petitioner is the mother of one Anil Boraik, who died on 5.6.2007 while in judicial custody and lodged in Golaghat District Jail. 3. On 24.12.2006 Kamargaon Police registered Kamargaon PS Case No. 99/06 under Section379/353/506 IPC which subsequently got registered as GR Case No. 1324/06. It was a case based on an FIR given by the ASI of Khoomtai Police Out Post. The gist of the case is that the ASI recovered 40 ltrs. of diesel oil in a container concealed in a heap of paddy hay along with a 5 mtr long pipe which according to the said FIR was stolen. According to the report such a recovery was made from the possession of one Shri Kailash Ghatowar. The officer suspected that the oil was stolen from the rail tankers which were carrying oil from Numaligarh Refinery. In the said information the officer reported that many people belonging to Khoomtai gaon and Haldhibari gaon are involved in such alleged theft of oil from the railway tankers. The officer suspected that the oil was stolen from the rail tankers which were carrying oil from Numaligarh Refinery. In the said information the officer reported that many people belonging to Khoomtai gaon and Haldhibari gaon are involved in such alleged theft of oil from the railway tankers. It may be mentioned here that the name of the deceased Anil Boraik does not find place in the said FIR though three names Kailash Ghatowar, Babul Ghatowar and Benudhar Lahon were mentioned in the said FIR. 4. According to the petitioner five months after the above mentioned registration of the crime the petitioner's son was arrested on 12.5.2007 by police personnel of Khoomtai Police Out Post, detained him in custody for 48 hours, beaten mercilessly and finally produced before the Chief Judicial Magistrate, Golaghat on 14.5.2007. Thereafter the deceased Anil Boraik was remanded to judicial custody. While in custody Anil Boraik died at about 4 A.M. on 5.6.2007 and hence the present writ petition. 5. Three affidavits in opposition have been filed on behalf of the various respondents. On behalf of respondent Nos. 4, 6, 10 and 11 an affidavit is filed by Shri Bir Bikram Gogoi, Addl. Superintendent of Police Headquarter, Golaghat on the date the affidavit was filed. Shri Bidyadhar Saikia, the Superintendent of District Jail, Golaghat (7th respondent) filed a separate affidavit in opposition and on behalf of the 3rd respondent the Deputy Commissioner, Golaghat an affidavit came to be filed by one Shri Bipul Kumar Das, who was working on the date of filing of the affidavit as an Extra Assistant Commissioner, Golaghat. 6. It is alleged by the petitioner that in the wake of the death of Anil Boraik there was some disturbance in the locality. Whatever may be the reason of the disturbance, it appears from the affidavit filed on behalf of the 3rd respondent that the then Deputy Commissioner, Golaghat by his proceeding dated 8.6.2007 ordered for a magisterial enquiry. Pursuant to the said order an enquiry was conducted by one Smt. Tamiza Rahman, Sub-Divisional Magistrate, Golaghat and she submitted a report. 7. In the affidavit filed on behalf of respondent Nos. 4, 6, 10 and 11, referred to earlier, the arrest of the deceased is admitted. However, the respondents dispute the date of the arrest and assert that the deceased was arrested on 13.5.2007 and not on 12.5.2007, as alleged by the petitioner. 7. In the affidavit filed on behalf of respondent Nos. 4, 6, 10 and 11, referred to earlier, the arrest of the deceased is admitted. However, the respondents dispute the date of the arrest and assert that the deceased was arrested on 13.5.2007 and not on 12.5.2007, as alleged by the petitioner. The relevant portion of the affidavit reads as follows: ...the arrest of accused Anil Boraik is admitted but the date of his arrest i.e., 12.5.2007 is denied. It is submitted that the aforesaid accused was arrested on 13.5.2007 and he was forwarded to the learned court of the Chief Judicial Magistrate at Golaghat along with the relevant documents with a prayer to remand him to judicial custody. It can be noticed from the above extracted portion of the affidavit that the exact time of arrest of the deceased is not specified in the affidavit nor the exact time at which the deceased was produced before the Magistrate is specified. On the other hand it is stated in the said affidavit that the deceased was produced before the Chief Judicial Magistrate, Golaghat on 14.5.2007 and on such production the Chief Judicial Magistrate remanded the deceased to judicial custody. The exact time of the remand order is also not available on record. But from the enquiry report submitted by the Sub-Divisional Magistrate, Golaghat, referred to earlier, it appears that the deceased was brought to jail custody on 15.5.2007. A copy of the enquiry report is enclosed to the affidavit filed on behalf of the 3rd respondent and the relevant portion reads as follows: Under trial Prisoner Anil Boraik, s/o Akhe Boraik of Senduritingh TE, P.S. Kamargaon was brought to Jail custody on 15.5.2007 and died on 5.6.2007 at K.K. Civil Hospital. 8. In response to a query from the court as to the time of arrest of the deceased and his production before the Magistrate the learned State Counsel placed certified copies of the relevant GD entry of Khoomtai Police Out Post. The entries are in vernacular and examined by one of us (Justice H. Roy) and from the entries it appears that Khoomtai Police Out Post received certain information on 13.5.2008 over telephone from undisclosed source that the deceased was found stealing some diesel in a jerrycane. The entries are in vernacular and examined by one of us (Justice H. Roy) and from the entries it appears that Khoomtai Police Out Post received certain information on 13.5.2008 over telephone from undisclosed source that the deceased was found stealing some diesel in a jerrycane. On receiving the said intimation the ASI, who was the In-charge of Khoomtai Police Out Post proceeded to the residence of the deceased at Senduritine Tea Estate at about 5.15 P.M. on 13.5.2008 and the deceased was brought to Khoomtai Police Out Post immediately along with 35 ltrs. of diesel in a jerrycane allegedly seized from the residence of the deceased. On 14.5.2008 the relevant GD entry shows that the deceased was arrested at 9 A.M. Obviously, the formal arrest was shown at 9 A.M. though the deceased was in the custody of the police admittedly from the previous evening. The relevant GD entry shows that at about 11 A.M. the deceased was produced before the Chief Judicial Magistrate, Golaghat. 9. It is worthwhile to notice here that the so called certified copies of the GD entries produced by the respondents are supposed to be the GD entries made on 13.5.2008 whereas admittedly the deceased Anil Boraik died on 5.6.2007. What is the appropriate inference to be drawn from the state of affairs will be discussed later on. Apart from the discrepancy in the dates, it is worthwhile noticing that there is no crime registered against the deceased at any point of time. The GD entries only disclosed that the deceased was found in possession of 35 ltrs. of diesel oil which is not prohibited by law. However, the deceased was produced before the Chief Judicial Magistrate as an accused person in connection with Kamargaon PS Case No. 99/06, referred to earlier in this order. We have already noticed that in the FIR the name of the deceased was not found nor any other material is placed before this Court to show that the subsequent investigation revealed some connection between the deceased and the above mentioned PS Case No. 99/06. On the other hand, assuming for the sake of argument that the very possession of 35 ltrs. of diesel oil, as allegedly found with the deceased on 13.5.2007 or 13.5.2008 as the case may be, is itself an offence the police ought to have registered a separate case against the deceased. On the other hand, assuming for the sake of argument that the very possession of 35 ltrs. of diesel oil, as allegedly found with the deceased on 13.5.2007 or 13.5.2008 as the case may be, is itself an offence the police ought to have registered a separate case against the deceased. However, no separate crime was registered. In the above mentioned background the deceased was produced before the Chief Judicial Magistrate, Golaghat on 14.5.2008 and it is unfortunate that the Chief Judicial Magistrate without looking into the above mentioned aspect casually ordered remand of the deceased in connection with Kamargaon PS Case No. 99/06, referred to earlier. 10. The exact time at which the remand order was passed is not available on record except the date, i.e., 14.5.2007. If that be the case it is not known how the deceased was taken to the District Jail, Golaghat on 15.5.2007, as was recorded by the SDM in her enquiry report, referred to earlier. Obviously the only inference that can be drawn is that after the judicial custody was ordered on 14.5.2007 the deceased was illegally kept in the police custody till the next date. Asked for an explanation in this behalf the learned State Counsel tried to explain that the mention of the date in the judicial enquiry report of the custody of the deceased in the District Jail w.e.f., 15.5.2007 is an erroneous mention by the Magistrate. Except the assertion' no other material is placed on record to establish that the mention of the date made by the SDM, Golaghat is erroneous. 11. At any rate, from 15.5.2007 the deceased was in the District Jail. From the affidavit of the 7th respondent, i.e., the Superintendent of District Jail, Golaghat, however, it appears that the deceased was admitted in the prison on 14.5.2007 in connection with Kamargaon PS Case No. 99/06 and on the date of admission according to the Superintendent of the District Jail the health condition of the deceased was normal and there was no visible mark of injury on the body of the deceased at the time of admission. That, the Medical and Health Officer of the jail examined the deceased, on admission in the jail, and found the deceased physically and mentally healthy. That, the Medical and Health Officer of the jail examined the deceased, on admission in the jail, and found the deceased physically and mentally healthy. It is further stated in the said affidavit that the deceased was undergoing treatment in the jail hospital since 2.6.2007 and on 4.6.2007 the jail doctor advised the deceased to be sent to K.K. Civil Hospital, Golaghat for further treatment. In the morning of 5.6.2007 at about 7.30 A.M. the deceased was taken to K.K. Civil Hospital. He was admitted in K.K. Civil Hospital at about 8.05 A.M. and declared dead at about 8.06 A.M. by the doctors of the Civil Hospital. The relevant portion of the affidavit of the Superintendent, District Jail, Golaghat makes an interesting reading: 7. That with regard to the statements made in paragraph 8 of the writ petition, the deponent begs to state that Sri Anil Boraik was not dead at 4.00 A.M. on 5.6.2007 in District Jail, Golaghat because of negligence of Jail authority. The allegation is completely false and baseless. The U.T.P. Anil Boraik was undergoing treatment in Jail Hospital since 2.6.2007. The Jail Doctor provided him adequate necessary treatment and all required medicines etc supplied as per advice of the Jail Doctor. He was advised to send to K.K. Civil Hospital, Golaghat by the Jail Doctor in the evening of 4.6.2007 for his further investigation and treatment. Accordingly the Police authority was requested to provide police escort party vide this office Letter No. GDJ.627 dated 4.6.2007. However the Jail Doctor attended the sick U.T.P till the shifting to K.K. Civil Hospital, Golaghat on 5.6.2007. In the morning of 5.6.2007 the U.T.P. had not made any complain regarding his serious illness at the time of unlocking of the Jail, (at 4.52 A.M.). He took his morning meal normally with the other inmates. At 7.20 A.M. when the Jail Doctor examined Anil Boraik in routine manner he complained having difficulty in breathing. The Jail Doctor examined the patient and provided necessary treatment and informed the matter to the Jailor about sudden critical condition of the patient and he advised to send accused Anil Boraik to Civil Hospital Golaghat immediately for further investigation and treatment. The Patient was sent to K.K. Civil Hospital, Golaghat at 7.30 A.M. without any delay. The Jail Doctor examined the patient and provided necessary treatment and informed the matter to the Jailor about sudden critical condition of the patient and he advised to send accused Anil Boraik to Civil Hospital Golaghat immediately for further investigation and treatment. The Patient was sent to K.K. Civil Hospital, Golaghat at 7.30 A.M. without any delay. He was admitted at K.K. Civil Hospital, Golaghat at 8.05 A.M. and expired at 8.06 A.M. as reported by the attending Doctor of K.K. Hospital.... Even according to the said affidavit the deceased was undergoing treatment from 2.6.2007. The deponent does not disclose what was the health complaint for which the deceased was undergoing the treatment or what was the nature of the treatment that was given to the deceased. However, on 4.6.2007, it appears from the affidavit, that the jail doctor advised that the deceased be shifted to civil hospital for further investigation. Obviously there was something serious by that time. What exactly was the nature of the complaint of the deceased is not disclosed in the affidavit. The more interesting fact of it is that even according to the affidavit of the Superintendent of the Jail the deceased was taken to the hospital at 8.05 A.M. on 5.6.2007 and at 8.06 A.M. the doctors of the civil hospital found Anil Boraik dead. In other words a dead body was carried to the hospital. 12. In the background of the above mentioned facts brought by the affidavit of the Superintendent of District Jail the more interesting part of the story is the post mortem conducted on the deceased. A Xerox copy of the post mortem report is annexed with the petition. The doctor who conducted the postmortem examination is one Dr. Partha Gohain. According to the doctor the cause of death of Anil Boraik is due to 'pathological asphyxia secondary to lobar pneumonia'. The doctor certifies that there was no external injury on the body of the deceased. Though we are not very sure as to what is meant by pathological asphyxia the enquiry report submitted by Tamiza Rahman, S.D.M., Golaghat indicates that the illness of the deceased was infection from long time resulting in such pathological asphyxia. The relevant portion of the report of the SDM reads as follows: The deceased Anil Boraik was accused of stealing POL and S.K. Oil. The relevant portion of the report of the SDM reads as follows: The deceased Anil Boraik was accused of stealing POL and S.K. Oil. He used to suck the liquids from Oil Tanks through rubber pipe to induce the flow from the tank. The doctors assumed that the inflammable liquids were infiltered in his lungs which caused infection from long time and were neglected by the deceased which caused the pathological asphyxia as diagnosed in the Post Mortem report. From the above extracted part of the report it appears, in the opinion of the S.D.M., Golaghat, who conducted the enquiry into the matter, that the pathological asphyxia was a consequence of the habit of the deceased of inhaling inflammable liquids. We do not know whether as a matter of fact pathological asphyxia is a consequence of such habit of the deceased and it is also not known as to what is the basis on which the S.D.M. reaches such a conclusion. It appears from the above extracted portion of the report that such an opinion was formed by the S.D.M. on the basis of some assumption made by some doctors whose names are not disclosed in the report. No records pertaining to the treatment given to the deceased from 2.6.2007 to 5.6.2007 in the jail nor the nature of the complaint for which the deceased was treated is disclosed in the affidavits filed by the respondents nor any original record regarding the complaint and the treatment is placed before us. 13. The most shocking part of the entire case is that while it is admitted case of the petitioner and also the respondents that the deceased Anil Boraik died on 5.6.2007, in the alleged certified copies of the GD entries placed before this Court regarding the apprehension, arrest and production of the deceased Anil Boraik entries are made on 13.5.2008, almost 11 months after the death of Anil Boraik. The extracts are certified to be true copies by the In-charge of the Khoomtai Police Out Post on 2.9.2008. Though the name of the officer who certified them is not very clear we see no reason to suspect the certification. Obviously the GD entries are made on 13.5.2008. The entries are allegedly signed by one Mr. N.N. Gogoi, A.S.I. (respondent No. 11 herein). 14. Though the name of the officer who certified them is not very clear we see no reason to suspect the certification. Obviously the GD entries are made on 13.5.2008. The entries are allegedly signed by one Mr. N.N. Gogoi, A.S.I. (respondent No. 11 herein). 14. All the above narrated facts in our opinion can lead to only one irresistible conclusion that all the police records in connection with the detention of Anil Boraik have either been tampered with or fabricated to counter the allegations made in the present writ petition. 15. In the background of the above mentioned discussion, though it is not very clear and is not possible to record a definite finding as to the cause of death of Anil Boraik, a definite finding can be recorded by this Court that the records of Khoomtai Police Out Post do not inspire confidence. Therefore, the affidavits sworn or allegedly sworn on the basis of those records cannot be trusted. Therefore, it follows that the death of Anil Boraik, while in the custody of the State, does not appear to be a natural death and there is an utter failure on the part of the respondent officers of the State in protecting the life and liberty of deceased Anil Boraik. 16. We are, therefore, of the opinion that the State of Assam is bound to compensate the dependents of the deceased Anil Boraik. From the writ petition it appears that the deceased is survived by an old mother Smt. Swagmoni Boraik (the writ petitioner) who is aged about 70 years, his wife Smt. Lukeswari Boraik and a male child master Abishek Boraik. In the circumstances we are of the opinion that an amount of Rs. 3,00,000 (rupees three lakhs) would be an appropriate amount that should be paid by the State of Assam by way of public law damages to the above mentioned three persons from out of which an amount of Rs. 50,000 (rupees fifty thousand) only is to be paid to the mother of the deceased (the writ petitioner herein), an amount of Rs. 50,000 (rupees fifty thousand) only is to the paid to be wife of the deceased and the balance amount of Rs. 2,00,000 (rupees two lakhs) shall be kept in fixed deposit in the nationalized bank in the name of the minor child of the deceased Anil Boraik until the minor attains majority. 50,000 (rupees fifty thousand) only is to the paid to be wife of the deceased and the balance amount of Rs. 2,00,000 (rupees two lakhs) shall be kept in fixed deposit in the nationalized bank in the name of the minor child of the deceased Anil Boraik until the minor attains majority. However, the wife of the deceased shall be entitled to withdraw the interest accruing on the above mentioned fixed deposit amount from time to time to meet the expenses connected with the upbringing of the minor Child and the fixed deposit shall be dissolved and the amount paid to the above mentioned Abishek Boraik on his attaining majority. The above mentioned amount shall be paid within a period of four weeks from today. 17. We also make it clear that the State of Assam is bound to recover the amount of Rs. 3,00,000 from the following officers in equal proportion: 1. Shri Narendra Nath Gogoi, the then ASI, In-charge, Khoomtai Police Out Post. 2. Shri Bir Bikram Gogoi, Addl SP (HQ), Golaghat. 3. The Superintendent of Police, Golaghat (If more than one officer is posted as the Superintendent of Police between 13.5.2007 and 25.9.2008 on which date an affidavit was sworn on behalf of the Superintendent of Police Golaghat, both the officers holding the office.) 4. Shri Bidyadhar Saikia, Superintendent, District Jail, Golaghat. 18. In the background of the facts and the reasons given by us earlier we also deem it appropriate that the then A.S.I of Khoomtai Police Out Post Shri N.N. Gogoi and the Superintendent of District Jail, Golaghat on the date of admission of the deceased in the jail and also the doctor attached to the District Jail at the relevant point of time be prosecuted. Accordingly the State of Assam is directed to register a crime against the above named persons under Section 302 IPC read with Section 34 and also under Section 201 of the IPC or any other offence which the investigation may disclose after registration of the case in connection with death of Anil Boraik. 19. We further direct the State of Assam to initiate appropriate proceedings and report compliance within a period of four weeks. 20. We also place on record our disgust with regard to the nature of the affidavits filed by the respondent officers of the State. 19. We further direct the State of Assam to initiate appropriate proceedings and report compliance within a period of four weeks. 20. We also place on record our disgust with regard to the nature of the affidavits filed by the respondent officers of the State. Apart from the facts of the present case where we are prima facie of the opinion that the affidavits do not disclose the true picture, the affidavits do not contain any specific information except some bald assertions made to suit the convenience of the respondents. 21. With the above direction the writ petition is disposed of. 22. The certified copies of the GD entries produced by the learned State Counsel shall be kept in a sealed cover in the custody of the Registrar General and shall not be opened except with the prior permission of the Chief Justice. 23. Registry is directed to communicate a copy of this order to the Chief Secretary to the Government of Assam forthwith for further appropriate action. 24. Furnish a copy of this order to Mrs. B. Goyal, learned State counsel, free of cost.