JUDGMENT Maibam B.K. Singh, J. 1. Heard Mr. S. Deb, learned senior counsel assisted by Mr. S.B. Debnath, learned Counsel appearing on behalf of the Appellant and Mr. T.D. Majumder, learned Counsel appearing on behalf of the Respondents. 2. This appeal is directed against the order dated 8.4.2002 passed by the learned Single Judge in WP(C) No. 157 of 2002 dismissing, in limine, the writ petition flied by the present Appellant. The writ petition was flied alleging to the effect that her son, Bijoy Debbarma, was killed by personnel of the TSR while he was in their custody and praying mainly for directing the Respondents to pay a sum of Rs. 5 lakh as compensation to her in that regard. 2.1. In the opinion of the learned Single Judge, there was nothing to show that the death of tie said Bijoy Debbarma was due to torture or otherwise on the pat of the TSR personnel. Further, the learned Single judge considered to the effect that at that at that stage, no direction could be issued for any enquiry in the matter because that might interfere with the investigation of the FIR Case which had been registered on the basis of a report having been lodged by one N.K. Subedar Prantosh Das, Post, I.C. of Kantia Thakurpara Post, A-Coy, 6th Bn. TSR (I.R.-11) to the, O.C., Kalyanpur P.S. alleging opening of fire by some extremists on 13 TSR personnel on 30.4.2001 at Kungchak Para jungle at about 1330 hours leading to the exchange of fire in between TSR personnel and the extremists for some time, the arrest of three persons, namely, Dhiru Debbarma, Pradip Debbarma and Bijoy Debbarma (the said son of the writ Petitioner-Appellant) in the course of a search operation subsequent to the exchange of fire, making of attempts by the said three arrested persons to escape by jumping in a nearby lunga and sustaining of injuries by them in the said attempt leading to the expiry of the said Bijoy Debbarma at Kalyanpur PHC and praying for taking legal actions against the culprits and their associates. 3. 3. In the course of proceeding of this appeal, this Court, having regards to the dispute in between the parties on the question if the said Bijoy Debbarma had died as d result of the torture or assault made by the personnel of TSR in their custody or if he had died as a result of injuries caused by himself while attempting to escape from the custody of the personnel of TSR, on 28.8.2002, ordered the learned District Judge, West Tripura, Agartala to conduct an enquiry into the matter and submits a report within the period specified In the order. Both the parties were given liberty to adduce their respective evidences before the learned District Judge, who was also asked to take ail the necessary step as he might deem fit and proper. In pursuance or the direction of this Court, the learned District Judge made the necessary enquiry and submitted his enquiry report dated 28.8.2002. 4. On perusal of the record of the said enquiry, we have ascertained that four witnesses namely, Smt. Chandrapati Debbarma (the writ Petitioner-Appellant), Shri Dhiru Debbarma, who was admittedly arrested with the writ Petitioner-Appellant's son, Shri Pradip Debbarma, who was also admittedly arrested with the said son of the writ Petitioner-Appellant and Shri Jiten Debbarma, another son of the writ Petitioner-Appellant were examined on the side of the writ Petitioner-Appellant as PW1/PW2, PW3 and PW4 respectively. 5. As per testimony of PW1, on die said clay at about 1.30 p.m., her son Bijoy Debbarma was apprehended by police from her home and her said son was mercilessly beaten by police on the way to police station. Further, according to her (PW1), after two days of the occurrence, on getting information from police, she went to Kalyanpur Hospital and found the dead body of her said son. Sue (PW1) saw swelling on me neck and other parts of the body of her son. At the time of cross-examination, PW1 is found to have denied the suggestion of the Respondents to the me effect that her son and two others namely, Pradip and Dhiru were unable to flee away as such they were apprehended from the jungle just after an exchange of fire in between personnel of TSR and the extremists and that on the way to TSR camp, her son and the said other two persons received injuries in their attempt to escape. 6. 6. Shri Dhiru Debbarma's (PW2) testimony is to he effect that on 30.4.2001 at about 1/1:30 p.m., he was apprehended by some police personnel from the house of his uncle namely, Bikirrai Debbarma at North Ghilatali, Khumchak Para According to the PW2, he was taken to the house of Bijoy Debbarma, who was also arrested. PW2 found Pradip Debbarma also under arrest. Further, according to the PW2, all the three arrested persons, i.e., he, the said Bijoy Debbarma and the said Pradip Debbarma were beaten with lath, at TSR Camp and, thereafter, they were taken to Kalyanpur Police station in a vehicle. As per testimony of PW2, he and Pradip were taken inside the police station and the said Bijoy Debbarma was left at the courtyard of the police station and in respect of it, he was told by a police personnel that Bijoy Debbarma had died and he and Pradip were threatened so as not to divulge the said fact. According to PW2, he and the said Pradip were under treatment at Karyanpur PHC for two days. He (PW2) is found to have denied all the suggestions put to the effect that they were arrested from the jungle and that they received injuries in their attempt to escape from the custody of the personnel of TSR 7. PW3's testimony is to the effect that he was arrested from his house by some personnel of TSR on 30.4.2001 at about 1/1.30 p.m. and that Bijoy Debbarma was also arrested on the same day from his own house. Further, according to PW3, after their arrests, they were taken to TSR Camp and they were beaten. PW3 is found to have stated that while being taken to Kalyanpur P.S. Bijoy and Dhiru were in one vehicle and he was in another vehicle and that at the time of crossing Khowai river, he saw Bijoy Debbarma being carried by TSR jawans and that he thought that the said Bijoy had already expired. According to PW3, he and the said Dhiru were in Kalyanpur PHC for two days. PW3 is also found to have denied almost all the suggestions to the effect that they were beaten and that they received injuries in their attempt to escape from the custody. 8. According to PW4, his elder brother Bijoy Debbarma was arrested from their house and beaten by personnel of TSR. PW3 is also found to have denied almost all the suggestions to the effect that they were beaten and that they received injuries in their attempt to escape from the custody. 8. According to PW4, his elder brother Bijoy Debbarma was arrested from their house and beaten by personnel of TSR. PW4 did not find any other public along with TSR personnel when they came to their house. Further, as per testimony of PW4, Bijoy was seen being taken towards TSR Camp and also towards the Kalyanpur P.S. According to the PW4, Bijoy and personnel of TSR went up to the Bank of Khowai river on foot but he did not see as to how personnel of TSR and Bijoy crossed the river. PW4 learnt about the death of his elder brother after two days. He (PW4) identified Naik Subedar Prantosh Das as one of the personnel of TSR who came at the time of the said arrest of his eider brother. 9. On the side of the Respondents, two witnesses namely, Shri Prantosh Das, Shri Hariranjan Ghosh, Dr. Hemendra, Ch. Banik and Shri Rajesh Ch. Das were examined as OPW1, OPW2, OPW3 and OPW4 respectively. 10. OPW1 and OPW2 are personnel of TSR, who were posted at Kantia Thakur Para, 6th Bn. TSR at the relevant time. According to them (OPW1 and OPW2), on 30.4.2001, on receipt of a secret information about the presence of some extremists at Kunchak Para, some personnel of TSR numbering 13(thirteen) proceeded towards the said place and while so proceeding, the said party of TSR were fired upon leading to exchange of fire in between the party of TSR and the extremists. Further, according to the OPW1 and OPW2, after the said exchange of firing was over, the area was cordoned and in the course of search operation, Dhiru Debbarma, Pradip Debbarma and Bijoy Debbarma were apprehended. Moreover, according to OPW1 and OPW2, the said three persons received injuries on their persons in their attempt to escape from the custody of the said personnel of the TSR by jumping into a lunga. As per testimony of OPW1 and OPW2, the said three apprehended persons were taken to Kalyanpur Hospital for treatment in connect on with the injuries received by them in their attempt to escape. As per testimony of OPW1 and OPW2, the said three apprehended persons were taken to Kalyanpur Hospital for treatment in connect on with the injuries received by them in their attempt to escape. OPW1 and OPW2 are found to have testified to the effect that after the say jumping down of the three apprehended persons into the lunga, the personnel of TSR searched the area after cordoning it and that only two of the said persons, namely, Pradip Debbarma and Dhiru Debbarma were found with injuries en their persons and that the said persons were taken to the camp first. According to OPW1 and OPW2, the third person, namely, Bijoy Debbarma was found afterwards and he was also taken to the camp. 11. It will be pertinent to note that as per testimony of OPW1, as he was sick on the said day, he was not in the said party engaged in the operation. OPW1 was not having personal knowledge as to what actually happened at the time of the arrest of the said three persons and also at the time of taking them to the camp. He (OPW1) was not also having personal knowledge about the said abortive attempt made by the three persons to escape. Accordingly, whatever OPW1 testified was based on information received from others. 12. The testimony of OPW2, who was serving as a Havildar of the 6th Battalion TSR is to the effect that he was a party in the said operation on the said day. However, according to the OPW2, after the said jumping down of the three, arrested persons into a lunga, in an attempt to escape, on searothing the areas after cordoning it, they could arrest only Dhiru Debbarma and Pradip Debbarma at first and four personnel of the group including himself took the said Dhiru Debbarma and Pradip Debbarma to the camp. OPW2 and his party reached the camp at 5/5.0 p.m. OPW2 is clear that OPW2 was not present at the area when the said Bijoy Debbarma was found after his abortive attempt too escape. 13. OPW2 and his party reached the camp at 5/5.0 p.m. OPW2 is clear that OPW2 was not present at the area when the said Bijoy Debbarma was found after his abortive attempt too escape. 13. Both the OPW1 and OPW2 were nor having persona knowledge about the condition in which the said Bijoy Debbarma was found during the search operation and also about as to what happened during the period from the time finding or the said Bijoy Debbarma after his abortive attempt to escape till he was brought to the camp. 14. Dr. Hemendra Ch. Banik (OPW3) was the medical officer in-charge of Kalyanpur Hospital at the relevant time. According to the OPW3, on 1.5.2001, he performed post mortem examination on the dead body of Bijoy Debbarma and the dead body was identified by constable bearing No. CS 1485 and constable Prafulla Debbarma. OPW3 found the following external injuries on the dead body: - (1) one bruise over the right shoulder back measuring 1" x 1/2"; (2) an abrasion over left elbow joint; (3) an abrasion over knee joint; (4) a haematoma over left anterior abdominal wail. On opening, the spleen was round ruptured and converted into multiple fragments. According to OPW3, the cause of death is shock and haemorrhage due to multiple injuries mentioned above caused by blunt force. The main cause of death is rupture of spleen. If one falls down or jumps into a lunga and got obstruction or come in contact with trees, bamboo or any hard substance, then, this sort of injuries, i.e., rupture may occur. Except the aforesaid injuries, we do not find any other injuries including the bullet injury. 14.1. In the course of cross-examination, OPW3 opined that if there was a hit on the spleen by boot, then, also the said type of rupture might occur. He (OPW3) could not say when the said Bijoy Debbarma died. According to OPW3, the dead body of Bijoy Debbarma was apparently brought to Kalyanpur hospital on 30.4.2001 at 7.35 p.m. 15. Shri Rajesh Ch. Das (OPW4)'s testimony is to the effect that when he examined the said Bijoy Debbarma on 30.4.2001 at about 7.35 p.m., he found that he had died. According to OPW4, he also took part in the said post mortem examination and he did not find any bullet injury on the dead body of the said Bijoy Debbarma. Shri Rajesh Ch. Das (OPW4)'s testimony is to the effect that when he examined the said Bijoy Debbarma on 30.4.2001 at about 7.35 p.m., he found that he had died. According to OPW4, he also took part in the said post mortem examination and he did not find any bullet injury on the dead body of the said Bijoy Debbarma. As per dead certificate issued by this Medical Officer (OPW4), the death of the said Bijoy Debbarma was due m cardio respiratory failure as a consequence of shock and haemorrhage due to multiple injuries caused by blunt force. 16. After examination of the statements of the witnesses produced by both sides, having regards to the lack of consistency on the part of the writ Petitioner in respect of the cause of death of her son, Bijoy Debbarma, i.e., alleging in the writ petition that her son sustained bullet injuries and saying at the time of enquiry that her son was tortured by police after arrest from her house, taking into consideration the discrepancies in the statements of PWs and holding that the Respondents case was supported by medical evidence, the learned District Judge. West Tripura, concluded as follows, in his report: "in view of the discussion and analysis made above, my findings is that the Petitioner miserably failed to prove her case that her son died due to bullet injury as caused by the TSR/police personnel on 30.4.2001 at Kungchakpara jungle". 17. The above said view of the learned District Judge, West Tripura, clearly shows that instead of finding out as to how and under what circumstances the said son of the writ Petitioner died in the custody of the personnel of TSR, he proceeded to ascertain if the Petitioner succeeded to prove her story of her son having been killed by personnel of TSR either by causing bullet injury or torture. Apparently, the learned District Judge proceeded on assumption that it was for the Petitioner to prove her story that the said death of Bijoy Debbarma while in custody of the personnel of TSR had been caused by any personnel of the TSR. The writ Petitioner-Appellant submitted objection in respect of the said enquiry port submitted by the learned District Judge. As per the said objection of the writ Petitioner-Appellant, she is a rustic lady and he was not having personal knowledge about the matter. The writ Petitioner-Appellant submitted objection in respect of the said enquiry port submitted by the learned District Judge. As per the said objection of the writ Petitioner-Appellant, she is a rustic lady and he was not having personal knowledge about the matter. On perusal of the said objection as well as the writ petition, we have ascertained that the writ Petitioner was not, in fact, having any personal knowledge as to how and under what circumstances her son had died in the custody of TSR though she alleged in the writ petition that her son died due to bullet injury having been caused by indiscriminate firing of the personnel of TSR. 18. In case of police torture or custodial death, direct ocular evidence of the complicity of the custodian is rarely available. In the present case, there is no dispute about the fact that the Petitioner's son, namely, Bijoy Debbarma, was in the custody of the personnel of TSR at the time of his death. Though there is dispute in respect of the question if the said Bijoy Debbarma was arrested from his house on the said day or if he was arrested after a combing operation after having occurred an exchange of fire in between the extremists and the personnel of TSR or if he received injuries on his person in making an attempt to escape from the custody of the said personnel of TSR, there is no dispute that he died in the custody of the personnel of TSR because of injuries found on his person. In the facts and circumstances, and personnel of TSR, who actually were present at the time of the said attempt made by the three persons to escape and also at the time of arresting them again after the said attempt are in the best position to testify if the said Bijoy Debbarma was found with injuries and to explain the circumstances under which he received the said injuries on his person leading to his death in their custody. It is a matter of common knowledge, that atrocities within the precincts of a police station or in the custody of armed persons are often left without any ocular or direct proof to prove who the offenders are. It is a matter of common knowledge, that atrocities within the precincts of a police station or in the custody of armed persons are often left without any ocular or direct proof to prove who the offenders are. In many cases, the hon'ble Apex Court has observer that ignoring of ground realities, the fact situations and the peculiar circumstance of a given case often results in miscarriage of justice and makes the justice delivery system suspect. 19. In State of M.P. v. Shyamsunder Trivedi and Ors., (1995) 4 SCC 262 , the hon'ble Apex Court held at para No. 17, page 273: - ... In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late, are on an increase, receive encouragement by this type of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them if an odd prisoner dies in the lock-up, because there would hardly by any evidence available to the prosecution to directly implicate them with the torture .... The court must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may lose faith in the judiciary itself, which will be a sad day. The hon'ble Apex Court took note of the recommendation of the law commission in its 113th report for amendment to the Indian Evidence Act, 1872 so as to provide that if there is evidence that the injury was caused during the period when the person was in police custody, the court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. The hon'ble Apex Court expressed hope that the Government and the Legislature must give serious thought to the recommendation of the law commission as well as to see that custodial crime does not go unpunished. 20. Similar view was expressed by the hon'ble Apex Court in Munshi Singh Gautam and Ors. v. State of M.P., (2005) 9 SCC 631 . We are also aware of the caution that is required to be observed in decaling with a case involving allegation of custodial death or torture. 20. Similar view was expressed by the hon'ble Apex Court in Munshi Singh Gautam and Ors. v. State of M.P., (2005) 9 SCC 631 . We are also aware of the caution that is required to be observed in decaling with a case involving allegation of custodial death or torture. In Sube Singh v. State of Haryana and Ors., (2006) 3 SCC 178 , the hon'ble Apex Court observed at para 45, page 201: 45. Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established. Where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark, scar, it may not be prudent to accept claims of human rights violation, by persons having criminal records in a routine manner for awarding compensation. That may open the floodgates for false claims, either to mulct money from the State or as to prevent or thwart further investigation. The courts should, therefore, while zealously protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable the police to discharge their duties fearlessly and effectively. While custodial torture is not infrequent, it should be borne in mind that every arrest and detention does not lead to custodial torture. 21. In the present case, admitted facts are that the said Bijoy Dabbarma was arrested by personnel of TSR on 30.4.2001 and that he died without having been released from custody and that the death was due to multiple injuries found on his person, particularly, rupture of spleen. It is nobody's case that at the time of the said arrest, the said Bijoy Debbarma was having the said injury. The burden is, therefore, dearly on the Respondents to explain how the said Bijoy Debbarma sustained those injuries which caused his death unless a plausible explanation is given by the Respondents which is consistent with their innocence, an obvious inference is that the said fatal injury was inflicted on the said Bijoy Debbarma in the custody of the personnel of the TSR resulting in his death, for which the Respondents are responsible. In the present case, the explanation given by the Respondents is that the said Bijoy Debbarma made an attempt to escape from the custody of the personnel of TSR by jumping down into a lunga and that when he was arrested after some time after a search operation, he was found having the said injuries on his person. During the enquiry conducted by the learned District Judge, none having personal or direct knowledge of the said fact of finding the said Bijoy Debbarma with injuries on his person after the abortive contempt to escape was produced from the side of the Respondents. OPW1 was not present at the spot. As per testimony of OPW2 also, he was not present at the spot when the said Bijoy Debbarma was found with injuries on his person after his attempt to escape as he and three other personnel of TSR had already gone to their camp taking the other two arrested persons. No explanation is given as to why any of the personnel of TSR, who were present at the spot at the time of finding the said Bijoy Debbarma with injuries on his person after his said abortive attempt to escape, was produced during the enquiry. Since the said fact of finding the said Bijoy Debbarma with injuries on his person after his said abortive attempt to escape was within the direct and exclusive knowledge of those personnel of TSR, who remained behind after leaving of OPW2 and three other personnel of TSR, along with two arrested persons, Dhiru Debbarma and Pradip Debbarma, all or any of the said TSR having the said direct or exclusive knowledge of the fact should have been produced. However, none of the said personnel of TSR was produced without giving any explanation. In the facts and circumstances, an adverse inference has to be drawn as against the Respondents. We may presume that had, all or any one of the said TSR personnel been produced, they or the one produced would not have given statement in support of the case of the Respondents. In the facts and circumstances, an adverse inference has to be drawn as against the Respondents. We may presume that had, all or any one of the said TSR personnel been produced, they or the one produced would not have given statement in support of the case of the Respondents. Merely on the basis of the statements of OPW1 and OPW2, who were not admittedly present at the spot and at the relevant time, as well as on the basis of the statement of OPW3, who performed the post mortem examination on the dead body, we cannot conclude that in his attempt to escape, the said Bijoy Debbarma must have received the said injuries as a result of his falling down into a lunga or bumping as against trees or any hard substance. It has to be noted that as per opinion of the OPW3 also, if he was hit on the spleen by boot, the said type of rupture found in the body of the deceased might occur and as such, as per the said opinion, the possibility of the said rupture of the spleen having been caused as a result of kicking by one of the personnel of TSR is not ruled out. 22. In the light of the above considerations, basing on the evidence collected during the enquiry conducted by the learned District Judge, we are of the opinion that the injuries found on the person of the said Bijoy Debbarma leading to his death, while in the custody of the personnel of TSR, were caused by one or more of the said personnel of TSR. We cannot agree with the conclusion of the learned District Judge in the said enquiry report inasmuch the same was made without having regard to all the relevant facts a and circumstances of the case. In our considered opinion, the learned District Judge also made a wrong approach inasmuch as instead of proceeding to find out the truth by keeping in view the admitted factual situation, he proceeded on the wrong assumption that the burden of establishing that it was a case of custodial death resulting from injuries inflicted by the personnel of TSR was wholly on the Appellant. The learned District Judge completely ignored the Respondents to establish their case by producing the concerned personnel of TSR having exclusive knowledge about the said ending of the said Bijoy Debbarma with injuries after his said abortive attempt to escape. 23. The said causing of injuries by the personnel of TSR on the person of the said Bijoy Debbarma leading to his death while in the custody of the said personnel of TSR falls within the inhibition of Article 21 of the Constitution of India. The said violation of Article 21 is patent and incontrovertible. We also consider the said violation is of the nature which shocks the conscience of the court. For the said established violation of Article 21, compensation can be awarded. 24. Enforcement of the constitutional right and ground of redress embraces award of compensation as part of legal consequence of its contravention. It is well settled that award of compensation in a proceeding under Article 226 is remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. In Nilabati Behera v. State of Orissa and Ors., (1993) 2 SCC 746 , the hon'ble Apex Court held that the defence of sovereign immunity being inapplicable and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution. [Radul Sah v. State of Bihar, (1983) 4 SCC 141 , Sebastian M. Hongray v. Union of India (1984) 1 SCC 82; Bhim Singh v. State of J&K, (1984) Supp SCC 504, Bhim Singh v. State of J&K, (1985) 4 SCC 677 , Saheli: A Women's Resources Centre, v. Commissioner of Police, Delhi Police Headquarters, (1990) 1 SCC 422 and D.K. Basu v. State of W.B., AIR 1997 SC 610 .] 25. In the result, this appeal is allowed. In the result, this appeal is allowed. The impugned order of the learned Single Judge is set aside. In quantifying the amount of compensation payable to the Petitioner, in respect of the said violation of the fundamental right of her unmarried son, Bijoy Debbarma, there will be certain amount of guess work. Having regards to all the relevant considerations, including the decisions of the hon'ble Apex Court and this Court in similar cases, we direct the State of Tripura to pay a sum of Rs. 4 lakh to the Appellant as compensation in the nature of palliative. The State of Tripura (Respondent No. 1) shall deposit the compensation amount of Rs. 4 lakh before this registry within a period of three months from the date of receipt of this order. On being deposited, the registry shall pay the compensation amount of Rs. 4 lakh to the appoint after proper verification and identification. 26. With this directions and observations, this appeal stands disposed of. Appeal allowed