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2014 DIGILAW 116 (MAN)

Soubam Radhe v. State of Manipur

2014-09-11

LAXMI KANTA MOHAPATRA, N.KOSIWAR SINGH

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JUDGMENT N. Kotiswar Singh, J. 1. Heard Mr. M. Rakesh, learned counsel appearing on behalf of the petitioner and Mr. R.S. Reisang, learned Senior Government Advocate appearing on behalf of the State respondents and Mr. Amarjit, learned CGSC for the Union respondents. 2. The present writ petition has been filed by the mother of one Soubam Baocha @ Shachuinta, who was alleged to have been killed by the personnel of Manipur Police Commando and 23 Assam Rifles on 28th December, 2008 at the foot hill of Huimei Ching, Imphal East District claiming reliefs, inter-alia, for payment of compensation. It is the case of the petitioner that on 28th December, 2008, in the morning at around 8.30 am, the petitioner had sent her son, Soubam Baocha to purchase certain iron bars for construction of their house. However, he never returned after leaving for the market. On the next day, the petitioner learnt that two unknown youths were killed at Leimakhong Mapal by the security forces and the dead bodies were kept in the mortuary of the Regional Institute of Medical Sciences, Lamphelpat. On hearing the said information and as her son was missing, the petitioner's family members visited the RIMS mortuary where they found the bullet riddled dead body of Soubam Baocha. On further enquiry, the petitioner ascertained that on 28th December, 2008, after leaving their house, her son had gone to the house of one Salam Gurung and thereafter, along with another friend, Moirangthem Rakesh Singh, went to a restaurant. Later, at about 1 p.m., the petitioner's son along with Salam Gurung went in a motor cycle belonging to Moirangthem Rakesh Singh to purchase certain eatables from a hotel in North AOC, Imphal. However, they never returned. According to the petitioner, it was later ascertained that they were abducted by the personnel of the Manipur Police Commandos and 23 Assam Rifles and were taken to Leimakhong Mapal Village, Imphal East District. According to the petitioner, some of the villagers had witnessed two persons on a motor cycle travelling on the inter village road sandwiched by the Manipur police vehicle and Assam Rifles vehicles. The petitioner alleged that her son and his friend were taken to the foot hill of Huimei Ching, Imphal East District where they were tortured and shot dead. 3. The petitioner alleged that her son and his friend were taken to the foot hill of Huimei Ching, Imphal East District where they were tortured and shot dead. 3. The State and Assam Rifles respondents filed their respective affidavits-in-opposition denying the allegations of the petitioner's son and his friend being abducted, tortured and killed by the Assam Rifles and Manipur Police. On the other hand, it is the case of the respondents that while laying an ambush on 28th December, 2008 by a joint party of 23 Assam Rifles and Imphal West Police commandos in and around Leimakhong Mapal and Laikot Village on receipt of certain intelligence report about suspicious movement of two individuals on a black motor cycle, the two persons on a motorcycle were detected and on being challenged, they tried to flee in their motor cycle but as the road condition was bad, after a brief chase they abandoned the motor cycle and started firing indiscriminately towards the joint column in a bid to escape towards the foot hill. They were killed in the ensuing retaliatory firing. It was also claimed that two pistols and some live rounds and empty cartridges were recovered near their bodies along with the said motor cycle. 4. As there was a dispute relating to the circumstances leading to the death of the petitioner's son and his friend, this Court on 05.5.2010 directed for an enquiry to be conducted by the District Judge, Manipur East. The enquiry was duly held and the learned District Judge, Manipur East completed his enquiry report on 24.5.2012 and submitted the same before this Court on 28.05.2012. Copies of the said enquiry report were duly furnished to the learned counsel for the parties and they submitted their respective comments/objections. 5. The findings of the learned District Judge, Manipur East were that the petitioner's son was arrested along with his friend, Salam Gurung by the combined team of the Manipur Police Commando of Imphal West and personnel of 23 Assam Rifles on 28th December, 2008 and were taken to the foothill of Huimei Ching along the inter village road of Leimakhong Mapal and both were killed by indiscriminate firing from their service weapons and there was no encounter between the two deceased persons and combined security personnel of Manipur Police Commando and Assam Rifles as claimed by the respondents. 6. 6. We have heard the learned counsel for the parties and also perused the enquiry report. The learned District Judge, Manipur East examined as many as 8 witnesses and 5 documents which were produced in support of the claim of the petitioner. On the other hand, the respondents produced 4 witnesses and 3 documents in support of their case. The learned District Judge, Manipur East, on consideration of the evidences produced on behalf of the petitioner, found the evidences trustworthy. The learned District Judge, Manipur East relied on the evidences of the villagers of Leimakhong Mapal Mamang Leikai, more particularly of a villager, an eye witness, who testified about two persons riding in a bike being led by the police in their Maruti Gypsy vehicle and followed by two Assam Rifles vehicles and hearing of gun shots near the vicinity after about half an hour on 28.12.2008. The learned District Judge, Manipur East, however, found the testimonies of the witnesses produced on behalf of the respondents about the alleged ambush laid and the ensuing encounter in which the petitioner's son and his friend were stated to have been killed and also about the recovery of arms and ammunitions to be unreliable. The learned District Judge, Manipur East also found that the statements of the witnesses produced by the respondents did not corroborate with one other. The learned District Judge, Manipur East observed that during the cross-examination of RW-4 (an Asstt. Sub-Inspector of Police in the Manipur Police Department), who had lodged the FIR case stated in his cross-examination that he did not personally receive the information about the loitering of two armed terrorists in a motor cycle and also he also did not know from whom he received the said information and stated that his police team met the personnel of 23 Assam Rifles at Lamlong Bazar and thereafter they proceeded towards Leimakhong Mapal I.U. Road where they met the duo in the motorcycle. While the Assam Rifles witnesses talked of laying an ambush, the police personnel did not mention of such ambush but stated to have met the unknown two individuals on the road while they were travelling. 7. While the Assam Rifles witnesses talked of laying an ambush, the police personnel did not mention of such ambush but stated to have met the unknown two individuals on the road while they were travelling. 7. The issue seems to have been clinched in favour of the petitioner by the depositions of the independent witnesses, namely, Mangshidam Ongbi Sobita Devi (PW No. 5), Ngangbam Ashangbi Devi (PW No. 6) and Thoudam Ongbi Pishakmacha Devi (PW No. 7), who were all residents of Leimakhong Mapal Mamang Leikai and not related to the petitioner. PW No. 5 had deposed that on 28.12.2008 at about 4.30 pm, while she was engaged in the gleaning process in the paddy field near the Huimei Ching, Imphal East District, some security personnel came there and shouted them to leave the place and after sometime when she reached home, she heard sound of gun firing from the side of Huimei Ching, Imphal East District. Later on, she came to know that two unknown individuals were killed. PW No. 6, Ngangbam Ashangbi Devi who was the star witness, had witnessed one bullet proof Maruti Gypsy white in color and two Tata trucks driving towards the inter village road and between them, there was a motor cycle ridden by two individuals in civil dress and they all proceeded towards Huimei Ching and after about half an hour, she heard gun firing. Later on, she learnt that the two individuals, who were brought by the security personnel, were killed on the Huimei Ching. Similarly, PW No. 7 also deposed that while she was in the paddy field at around 4.30 pm, she heard the sound of moving vehicles and after some time, she was told by the security personnel to leave the place. Later, she heard some sounds of gun firing towards Huimei Ching and later came to know that the two persons were killed. The learned District Judge, Manipur East observed that the evidences and testimony of other witnesses produced on behalf of the petitioner were not shaken in the cross-examination. Later, she heard some sounds of gun firing towards Huimei Ching and later came to know that the two persons were killed. The learned District Judge, Manipur East observed that the evidences and testimony of other witnesses produced on behalf of the petitioner were not shaken in the cross-examination. The learned District Judge, Manipur East, on considering the materials, found that the testimonies of the PWs were more convincing than that of the RWs and made the following findings:- "Therefore, I have decided that the son of the petitioner, namely Soubam Baocha @ Shachuinta Singh was arrested along with his friend Salam Gurung @ Jingo Singh by the combined team of Manipur Police Commando of Imphal West and personnel of 23 Assam Rifles on 28-12-2008 and taken to the foothill of Huimei Ching along the inter village road of Leimakhong Mapal and killed both of them by firing indiscriminately from their service weapons and there was no encounter in between the deceased persons and combined security personnel of Manipur Police Commando of Imphal West and 23 Assam Rifles." 8. We have gone through the enquiry report as well as the depositions of the witnesses and documents relied upon by the parties and given our due consideration to the report based on the evidence so recorded before the Court. Though we are not sitting as a Court of Appeal over the findings given by the learned District Judge, Manipur East, we have gone through the report to satisfy ourselves of the reasoning and conclusions arrived at by the learned District Judge, Manipur East and we do not find any reason to take a different view. The aforesaid enquiry directed by this Court is not meant to be a criminal investigation but merely to ascertain certain facts in view of the conflicting versions of the parties. The enquiry report has clearly indicated that the version of the petitioner is more believable than that of the respondents authorities. The version of the respondents that the two civilians died in an encounter can not stand in view of the testimony of the villagers, who are independent witnesses. The fact that the two on the motorcycle were led by the security personnel towards the foothill which was seen by an independent witness belies the theory of laying of an ambush by the security personnel and subsequent encounter. The fact that the two on the motorcycle were led by the security personnel towards the foothill which was seen by an independent witness belies the theory of laying of an ambush by the security personnel and subsequent encounter. Accordingly, we do not have any hesitation to hold on the basis of the aforesaid enquiry report that there was no encounter as alleged by the respondents and the petitioner's son and his friend had died an unnatural violent death at the hands of the police and Assam Rifles personnel. 9. Having held that the Manipur Police Commandos and the 23 Assam Rifles are responsible for the death of the petitioner's son, the next issue that arises for consideration is as regards the amount of compensation which the respondents are liable to pay under the constitutional law remedy. The issue regarding quantum of compensation based on the principle of constitutional court has been dealt with by this Court in other writ petition being W.P. (Cril.) No. 68 of 2009 (Smt. Thiyam Ongbi Tanoubi Leima Vs. State of Manipur & Ors.) disposed of by this Court on 11.09.2014 and also in WP(C) No. 1083 of 2002 (Sri Khundongbam Manisana Singh Vs. Union of India & Ors.) disposed of by this Court on 18.07.2014. It is suffice to say that in absence of uniform standards or criteria or principles to deal with such an issue arising out of constitutional law remedy it has been left to the Courts to determine the quantum keeping into consideration the entirety of the facts and circumstances as may be deemed fit. 10. We have taken into consideration of the fact that the petitioner's son was about 23 years old and had studied upto Xth standard and was engaged in certain business to earn his livelihood at the time of his death and his involvement with any unlawful organization has not been proved by the respondents authorities. 10. We have taken into consideration of the fact that the petitioner's son was about 23 years old and had studied upto Xth standard and was engaged in certain business to earn his livelihood at the time of his death and his involvement with any unlawful organization has not been proved by the respondents authorities. We have also noted that the encounter alleged by the respondents having not been proved leads to the only logical inference that the petitioner's son was apprehended by the police and Assam Rifle personnel's and were responsible for his death thus depriving his fundamental right to life as guaranteed under Article 21 of the Constitution of India without following the procedure established by law as the life of a citizen can be extinguished by the State only after following the procedure established by law on conviction of grave and serious offence under Section 302 IPC which is in the nature of the rarest of the rarest, or such offences against the State as provided under the IPC. Accordingly, we are of the view that at least an amount of Rs. 5 lakhs ought to be awarded to the petitioner under the constitutional law remedy for the death caused to the petitioner's son as compensation which has to be shared equally by the State respondents as well as the Assam Rifles authorities. Accordingly, under the circumstances as disclosed, and for the reasons discussed above, the writ petition is allowed directing the respondents to pay a sum of Rs. 5 lakhs to the petitioner which has to be shared equally by the State respondents as well as the Assam Rifles authorities within a period of 4(four) months from today.