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2014 DIGILAW 223 (TRI)

Sakila Debbarma v. State of Tripura

2014-06-13

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. Both the writ petitions were heard together on the prayer of learned counsel of both side since both the petitions involved identical fact and legal issues. This common judgment is therefore, passed, which shall govern both the cases. 2. Facts necessary for the disposal of both the writ petitions may be summarized thus:- 2.1. Smt. Sakila Debbarma, Wife of Foren Debbarma of North Mechuria, P.S. Kachuchara, District-Dhalai filed Writ Petition No. W.P. (C) No. 293 of 2005. Smt. Siari Debbarma, Wife of Aparup Debbarma of the same address filed W.P. (C) No. 294 of 2005. 2.2. Aparup Debbarma and Foren Debbarma both were full blood brothers, Son of Nishikanta Debbarma of Village North Mechuria. Sakila Debbarma being the wife of Foren Debbarma and Siari Debbarma being the wife of Aparup Debbarma filed the respective writ petitions inter alia alleging that their respective husband Foren Debbarma and Aparup Debbarma were activist of Indigenous Nationalist Party of Tripura (for short, 'INPT'). On the eve of election of Tripura Tribal Areas Autonomous District Council (for short, 'TTAADC'), they were campaigning for their party, INPT, and 01.03.2005 at about 10.45 p.m., while they were returning home after electioneering, SPO and DAR party intercepted them and fired on them from close range and as a result, they received bullet injuries and died on the spot at village North Mechuria. Both the petitioners stated that they lodged a common FIR on 02.03.2005 before the Superintendent of Police and before their lodging of FIR, Habildar of SPO camp of North Mechuria (Kathalbari) lodged an FIR regarding the incident, which was registered as Kachuchara P.S. Case No. 05 of 2005 under Section 148, 149, 353, 307 of IPC etc. and copies of those FIRs annexed as Annexure 1 and 2 respectively. It is also alleged by both the petitioners that Post Mortem examination were done over the dead body of Aparup Debbarma and Foren Debbarma and the Post Mortem Report, copy of which annexed as Annexure-3 would reveal that the gun shots were fired on them from close range as a result of which, they died. It is also alleged by both the petitioners that Post Mortem examination were done over the dead body of Aparup Debbarma and Foren Debbarma and the Post Mortem Report, copy of which annexed as Annexure-3 would reveal that the gun shots were fired on them from close range as a result of which, they died. It is also alleged that to cover up the incident, a false press release was made that the respective husband of the petitioners belonged to the extremist group and they alleged that the police (SPO and DAR) intentionally killed their husband in a planned manner to eliminate them in collaboration with their political rivals. The petitioner Sakila Debbarma stated that her husband was aged 18 years and that she was aged 16 years at the time of incident. The petitioner Siari Debbarma stated that her husband was aged 27 years and she was aged 22 years at the time of incident. Both the petitioners stated that their respective husband were campaigning in Simbhuchak area, but they were killed at North Mechuria near their village. They also alleged that if a fair inquiry is conducted, the evil design of killing of political opponent by fake encounter will reveal. Both the petitioners prayed for directing the respondents to pay each of them compensation of Rs. 15,00,000/- for the death of their respective husband and also prayed for a proper inquiry into the killing of their respective husband by a competent authority. The petitioner Siari Debbarma further prayed for appointing her in a Government job on compassionate ground under extremist violence/killing Scheme for the death of her husband. 2.3. Respondents contended that an information was received at Kachuchara P.S. on 28.02.2005 from S.P., DIB, Dhalai that a group of armed extremists belonged to NLFT (BM Group) under the leadership of veteran extremist Athara Babu Halam with sophisticated fire arms loitering at North Mechuria and adjoining areas and accordingly, Kachuchara P.S. alerted North Mechuria (Kathalbari SPO camp) to remain alert and to perform patrolling duty. On 01.03.2005, in-charge of North Mechuria SPO camp directed SPO jawans of the camp lead by Head Constable Madhusudan Tripura to perform patrolling in an around the area of North Mechuria and accordingly, 6 constables headed by Head Constable Madhusudan Tripura went out on a patrolling duty in the afternoon of 01.03.2005 and suspecting that the group of extremists may move through the road crossing Dhalai river at north Mechuria, they ambushed in the road side and at about 10.30/10.45 p.m., the ambush party noticed that a group of people moving towards them crossing the bamboo made bridge of Dhalai river and they suspected that the group of people may be armed extremists and one of the member of the patrolling party challenged the group of people and at that moment, the said group of people open fire towards the patrolling party and the patrolling party also in reply open fire towards the group of extremists and there were exchange of fire for some time. After the exchange of fire was stop, the SPO party searched the area and found two dead bodies and two country made guns, empty cartridges and other articles on the spot. Head Constable Madhusudan Tripura of SPO party through wireless set sent information to SPO camp and from SPO camp, O.C., Kachuchara P.S. was informed. O.C., Kachuchara P.S. as well as in-charge of North Mechuria SPO camp rushed to the spot with police force. Some of the neighbourers were called and they came to the spot and identified the dead bodies as of Aparup Debbarma and Foren Debbarma. It is also stated that Aparup Debbarma was a member of the NLFT (BM) extremist group and Foren Debbarma was an over ground collaborator of the extremist group. S.P., Dhalai and other officials also went to the spot and they were apprised about the incident. Both the writ petitioners filed a petition demanding certain relief to S.P., Dhalai and since on the basis of the FIR lodged by Madhusudan Tripura, a police case was already registered about the incident, the complaint was forwarded to the O.C., Kachuchara P.S. for taking appropriate step. It is also stated that on the basis of the FIR lodged by Madhusudan Tripura, Kachuchara P.S. Case No. 05 of 2005 under Section 148, 149, 353, 307 IPC and 25(1B)(A)/27 of the Arms Act was registered and investigation was taken up. It is also stated that on the basis of the FIR lodged by Madhusudan Tripura, Kachuchara P.S. Case No. 05 of 2005 under Section 148, 149, 353, 307 IPC and 25(1B)(A)/27 of the Arms Act was registered and investigation was taken up. Inquest report was prepared over the dead body of both the deceased and the dead bodies were forwarded to Sub-Division hospital, Kamalpur for post mortem examination. The country made gun and other articles found on the spot were seized and were taken to custody in connection with the police case. It is alleged that there was no close range firing and that the respective husband of the petitioners were members of the extremist group and in the exchange of fire they received bullet injury and died. Other extremists escaped from the spot. No fundamental right of the petitioners and their respective deceased husband has been violated and so the petitioners are not entitled to get any relief, as prayed for. 3. By order dated 01.06.2007, in both the writ petitions, this Court directed a fact finding inquiry by the District Judge, North Tripura and accordingly, District Judge, North Tripura conducted an inquiry in connection with both the cases and submitted a consolidated report dated 14.01.2008 along with the records of the inquiry. 4. In course of inquiry, as it appears, the learned District Judge, North Tripura examined both the writ petitioners and on behalf of the writ petitioners, 8 other witnesses were examined and their statements have been recorded by the learned District Judge arraying them as First Party Witnesses (for short, 'FPW'). Those witnesses are FPW 2, Shri Abhimohan Deb Barma, FPW 3, Shri Baidyanath Deb Barma, FPW 4, Shri Kishore Kumar Deb Barma, FPW 5, Shri Monoranjan Deb Barma, FPW 6, Shri Upanada Deb Barma, FPW 7, Shri Nishikanta Deb Barma, FPW 8, Shri Dharmaroy Deb Barma and FPW 9, Shri Bidyut Deb Barma. All those witnesses were cross-examined on behalf of the respondents. 5. On behalf of the respondents also, 24 witnesses were examined and statements were recorded by learned District Judge arraying them as second party witnesses (for short, 'SPW') and the witnesses are SPW 1, Shri Goutam Jamatia, SPW 2, Shri Manik Bhusan Shome, SPW 3, Shri Charan Krishna Deb Barma, SPW 4, Shri Madhusudan Tripura, SPW 5, Shri Goutam Das, SPW 6, Shri Manik Chandra Das, SPW 7. Shri Haridhan Das, SPW 8, Shri Gopesh Namasudra, SPW 9, Shri Golak Das, SPW 10, Shri Asish Namasudra, SPW 11, Shri Purnendu Dutta, SPW 12, Shri Mahananda Deb Barma, SPW 13, Shri Chandrakanta Deb Barma, SPW 14, Shri Amarchand Deb Barma, SPW 15, Shri Bishnu Deb Barma, SPW 16, Shri Bikash Deb Barma, SPW 17 Shri Chanu Das, SPW 18, Shri Swapan Kumar Deb, SPW 19, Shri Arindam Nath, SPW 20, Shri Sudip Deb Nath, SPW 21, Shri Samar Sarkar, SPW 22, Shri Ratan Deb Barma, SPW 23, Shri Amalendu Dhar and SPW 24, Dr. Sajal Gupta. 6. Learned District Judge formulated three points for determination in his report. Those are:- (i) What are the facts and circumstances leading to the killing of both the writ petitioners' husband's in connection with both the writ petitions, as referred to above? (ii) Who is/are responsible of killing of the deceased Faren Deb Barma, husband of the writ petitioner of W.P. (C) No. 293 of 2005 and similarly, killing of the deceased Aparup Deb Barma, husband of the writ petitioner of W.P. (C) No. 294 of 2005? (iii) What is/are the real cause of death of both the deceased's-husbands of both the writ petitioners and whether it took place in action of firing or was in the hands of the police personnel? 7. In the report, learned District Judge discussed the evidence collected during inquiry and submitted his report observing that Aparup Debbarma and Foren Debbarma died on receipt of gun shots during an encounter between a group of armed extremists and SPO and DAR party of police on 01.03.2005 at about 10.30/10.45 p.m. at village North Mechuria and that the gun shots were not from close range distance, but it was from a distance about 10/15 metre. The conclusion of learned District Judge on three points formulated by him has been recorded in Para 6, 7 and 8 of the report, which reads as follows:- 6. The conclusion of learned District Judge on three points formulated by him has been recorded in Para 6, 7 and 8 of the report, which reads as follows:- 6. As an upshot of the discussions and observations made hereinabove this Inquiry Authority comes to a conclusive findings that on the night of 1-3-2005 at about 10:30 p.m. in the village at North Machuria there was an exchange of gun firing in between the police party of North Machuria S.P.O. Camp and a group of unknown armed extremists, resulting death/killing of both the writ petitioners' husbands in connection with both the writ petitions, as referred to above. Hence, the point No. 1 is answered to this extent. 7. Similarly, this authority after due consideration of the above referred evidence of both the parties fails to come to a conclusion as to who is/are responsible of killing of the deceased Faren Deb Barma, husband of the writ petitioner of W.P. (C) 293 of 2005 and similarly, killing of the deceased Aparup Deb Barma, husband of the writ petitioner of W.P. (C) No. 294 of 2005, as because, none of the writ petitioners by adducing cogent evidence fails to establish beyond doubt that their husbands were killed in consequence of exchange of gun firing in between the police party and a group of unknown armed extremists, including their husband's or in consequence of cross firing at the time of such exchange of gun firing. Moreover, from the evidence of the S.P.W.s it has not been established beyond doubt that the bullets recovered from the dead bodies of both the deceaseds by the S.P.W. No. 24, Dr. Sajal Gupta, were thrown from the guns of the above referred S.P.O.s and Head Constable and constable, as because, said bullets were not caused examination by the Expert to ascertain actually from whose guns said bullets were thrown to the deceaseds. In the result, the point No. 2 is answered in the negative. 8. This authority at the time of discussion earlier has already decided that the real cause of death of both the deceaseds, the husbands of both the writ petitioners, was due to severe haemorrhage caused by multiple bullet wounds and injuries and multiple internal organs, as revealed from the evidence of the S.P.W. No. 24, Dr. Sajal Gupta and his reports marked as Ext. D/19 and D/20. Sajal Gupta and his reports marked as Ext. D/19 and D/20. But, after due considerations of the evidence of both the parties it has been established beyond doubt that the death of both the deceaseds took place in an action of firing. But, they were not killed in the hands of the police personnel and said deceaseds did not receive any bullet injuries from close range distance, as also revealed from the evidence of Dr. Sajal Gupta, S.P.W. No. 24. Hence, this point No. 3 is also decided upto this extent. 8. Heard learned counsel, Ms. S. Deb (Gupta) for the petitioners of both the writ petition and learned counsel, Mr. D.C. Nath for the respondents in W.P. (C) No. 293 of 2005 as well as learned counsel, Mr. B. Datta for the respondents in W.P. (C) 294 of 2005. 9. Ms. Deb (Gupta), learned counsel, appearing for the petitioners submitted that it was a fake encounter in which the respective husband of the petitioners were killed by SPO and DAR jawans unabatedly without any provocation and the story of encounter has been planted later on with a view to cover up the mischievous wrong committed by the police. She has further submitted that the District Judge in the fact finding inquiry has failed to appreciate the evidence collected during inquiry in its proper perspective and arrived at a wrong finding. She has also submitted that election of TTAADC was scheduled to be held on 05.03.2005. The respective husband of the petitioners were activists of INPT political party and to eliminate them due to political rivalry, the rival political group conspired with SPO and DAR party of the North Mechuria SPO camp and killed Aparup Debbarma and Foren Debbarma unabatedly and thereafter set up a story of encounter with a group of extremists. She has also contended that there is no cogent evidence to show that Aparup Debbarma and Foren Debbarma were members of the extremist group. She has also submitted that both Aparup and Foren received multiple bullet injuries in the front as well as back of their body. If the post mortem report is properly scrutinized, it will reveal that the gun shots received by the deceased Aparup and Foren were from close range. She has also submitted that both Aparup and Foren received multiple bullet injuries in the front as well as back of their body. If the post mortem report is properly scrutinized, it will reveal that the gun shots received by the deceased Aparup and Foren were from close range. The bullets recovered from the body of the deceased persons were also not examined to ascertain as to from whose fire arms those were fired. Without ascertaining it, learned District Judge wrongly and mechanically observed and has given a clean cheat to the police party, which is not at all desirable. She has also contended that both the petitioners on 02.03.2005 lodged an FIR, after the FIR was lodged by the Head Constable of SPO party and no action was taken on the FIR lodged by the petitioners. The fate of the police case registered on the basis of the FIR lodged by Madhusudan Tripura also not known and at least not reported to the petitioners. It is emphatically submitted by learned counsel, Ms. Deb (Gupta) that sum and substance of the inquiry conducted by the learned District Judge revealed that Aparup Debbarma and Foren Debbarma died on receipt of the bullet injury fired by SPO/DAR party and so the petitioners are entitled to get adequate compensation for infringement of their fundamental right guaranteed under Article 21 of the Constitution. In support of her contention, she referred a Division Bench Judgment of this Court in W.P. (C) 238 of 2002 (Md. Kala Miah & ors. vs. Union of India & ors.) and also referred the decision of the Apex Court in the case of People's Union For Civil Liberties vs. Union of India And Another reported in (1997) 3 SCC 433 and case of Rohtash Kumar vs. State of Haryana reported in (2013) 14 SCC 290 . 10. Countering the submission of learned counsel, Ms. Deb (Gupta), appearing on behalf of the respondents, learned counsel, Mr. Nath and learned counsel, Mr. Datta submitted that it was a case of encounter between the police and a group of extremists during darkness of night. The deceased Aparup Debbarma was a proclaimed extremist of NLFT (BM) group and the deceased Foren Debbarma was an over ground associate of the underground group of extremists and he was a close follower of his elder brother. Datta submitted that it was a case of encounter between the police and a group of extremists during darkness of night. The deceased Aparup Debbarma was a proclaimed extremist of NLFT (BM) group and the deceased Foren Debbarma was an over ground associate of the underground group of extremists and he was a close follower of his elder brother. There were numerous criminal cases pending between them and some of the case numbers and the warrants issued from the Court has been brought on record by filing additional affidavit, which has not been disputed rather the petitioners admitted the fact of numerous criminal cases in their statement. It is also submitted that under a command, SPO jawans headed by Madhusudan Tripura, Head Constable went out to perform patrolling duty in and around North Mechuria since there was information received from SP, DIB that a group of extremists headed by Athara Babu Halam were loitering in the area with sophisticated fire arms. Referring to the statement of Second Party Witnesses, particularly, referring the statement of SPW 15, learned counsel submitted that both the deceased Aparup and Foren were members of the extremist group under the command of Athara Babu Halam and with arms, they entered in Indian territory from Bangladesh with a view to indulging extremist activities. Also referring to the statement of SPO jawans including the statement of SPW 4, learned counsel contended that there was an exchange of fire in the darkness of night and there was every possibility of loss of life since the firing was in the dark and it was from a considerable distance. The evidence of SPOs made it clear, submitted learned counsel that they were in the ambush hiding themselves by the road side and otherwise, there was possibility of the loss of life of police and loss of fire arms. Since the extremists were suddenly attacked by the police persons, who were in ambush, the extremist could not take the advantage and as a result, two of them were killed and others could fled away. It is also submitted by learned counsel that the evidence of SPW 24, Dr. Sajal Gupta clearly shows that the deceased received the bullet injuries from a distance of 12 to 15 metre and so, the contention of the petitioners that their respective husband were shot dead from close range is an imaginary statement having no basis. It is also submitted by learned counsel that the evidence of SPW 24, Dr. Sajal Gupta clearly shows that the deceased received the bullet injuries from a distance of 12 to 15 metre and so, the contention of the petitioners that their respective husband were shot dead from close range is an imaginary statement having no basis. It is also submitted that the presence of SPW 12, 13 and 14, who are close neighbour of the place of occurrence has been admitted by the petitioners and their witnesses and those witnesses stated that the deceased Aparup and Foren were involved in extremist activity. Under such circumstances, the claim of compensation by the petitioners cannot be entertained since the fundamental right to life cannot be said to be violated by the police in the given facts and circumstances of the case. It was a natural consequence of the incident that the loss of life would occur in either side since the firing was in the darkness of the night. The petitioners, therefore, are not entitled to get any compensation. 11. It is a settled position of law that in public law actions this Court is well empowered to invoke jurisdiction in an appropriate case of deprivation of fundamental rights and to remedy the deprivation may award compensation in proceedings for enforcement of fundamental rights. 12. Burden lies on the petitioners to establish that the fundamental rights as guaranteed under Article 21 of Constitution as alleged by them has been violated. 13. Let us now scrutiny the materials placed on record. The District Judge has observed that Aparup Debbarma and Foren Debbarma received bullet injuries during an encounter between the police (SPO, DAR party) and a group of extremists. The petitioners alleged that story of encounter is false and that their respective husband were killed deliberately by the police party while they were returning to their house after electioneering. It is an admitted position that the incident occurred on 01.03.2005 at about 10.30/10.45 p.m. at village North Mechuria on the village road near the bank of Dhalai river. Immediately, after the occurrence i.e. at about 11.00 p.m., an FIR was lodged by Madhusudan Tripura, the Head Constable of SPO party to the O.C. of Kachuchara P.S. On the following day i.e. on 02.03.2005 another FIR was lodged by both the writ petitioners to the S.P. of the District. Immediately, after the occurrence i.e. at about 11.00 p.m., an FIR was lodged by Madhusudan Tripura, the Head Constable of SPO party to the O.C. of Kachuchara P.S. On the following day i.e. on 02.03.2005 another FIR was lodged by both the writ petitioners to the S.P. of the District. A copy of those FIRs have been annexed by both side in the writ case. Since the contents of those FIRs, admittedly are the version of both side at the first instance regarding the occurrence, so, for fair appreciation, let us first reproduce here the contents of those FIRs. The FIR lodged by Head Constable Madhusudan Tripura (SPW 4) reads as follows:- To The Officer In-charge, Kachu Cherra P.S. Dhalai, Tripura. Sub:- First Information Report. Sir, Today on 01-03-2005 at night about 2300 hours meeting you at North Mechuria and knowing you as the Officer In-charge of the Police Station I do hereby to lodge the First Information Report. I Sri Madhusudan Tripura a Habildar and at present posted at Mechuria S.P.O. Camp. Today on 01-03-2005 at about 1600 hours while I was on petrol duty with 6 (six) S.P.O's and 1 (one) Constable was out. At about 2200 hours when I reached North Mechuria with my staff and laid ambuse I heard murmur coming from the bamboo bridge at about 2230 hours. It appeared that some persons were trying to cross the river. When they were 50/60 cubits away from us we charged them. The extremist group started firing aiming at us. Immediately we comprehended then as extremist we also started firing in defence of ourselves and protection of Govt. properties. We were completed to do so, having been confronted such the extremist group fledge. Thereafter we had started searching the said area and recovered 2 (two) Country made Guns and 2 (two) dead bodies. The persons from locality identified the dead bodies as body of Aparup Debbarma son of Nishi Kanta Debbarma another as Faren Debbarma son of Sri Nishi Kanta Debbarma both of them resident of North Mechuria under Kachuchara Police Station. We fired 87 (eighty seven) rounds of bullets in the operation. Therefore I would request you to properly investigate the matter and to book the culprit and oblige thereby. Yours faithfully, Sd/- Sri Madhu Sudhan Tripura Habildar Mechuria S.P.O. Camp P.S. Kachuchara. Dt. We fired 87 (eighty seven) rounds of bullets in the operation. Therefore I would request you to properly investigate the matter and to book the culprit and oblige thereby. Yours faithfully, Sd/- Sri Madhu Sudhan Tripura Habildar Mechuria S.P.O. Camp P.S. Kachuchara. Dt. 01.03.2005 The FIR lodged by Smt. Sakila Debbarma and Smt. Siari Debbarma (writ petitioners) on 02.03.2005, addressed to S.P., Dhalai (SPW 19) reads as follows:- To The S.P. Dhalai, (Ambassa), Dhalai, Tripura. Sub:- F.I.R. against S.P.O. and D.A.R. party who murdered Aparup Debbarma, (30 yrs), and Faren Debbarma (18 yrs), S.O. Shri Nishikanta Debbarma, on 1-3-2005 at 10:45 P.M. at North Machuria (at Near their native village). Sir, This is F.I.R. to you that at above mentioned person, date and time the murdered was occur and after such a long observation and discussion following series point was mentioned. 1. That the 2(two) brothers was coming from meeting and they are innocent and killed by S.P.O. and D.A.R. party, they must be punished and discharged from their service. 2. That immediately C.B.I. enquiry must be taken. 3. That compensation must be given Rs. 15,00,000/- (Rupees fifteen lakh) only, each family, total Rs. 30,00,000/-. 4. That Govt. job must be given 2 (two) widow within 3(three) months. 5. That the Kathalbari S.P.O. camp (north Mechuria) must be withdraw. Dated:- 2nd March, 2005. Yours faithfully, 1. Siari Debbarma W/O, Lt. Aparup Debbarma (25 yrs.) 2. Sakhila Debbarma, W/O, Lt. Faren Debbarma Of North Mechuria. It is an admitted position that the FIR lodged by Madhusudan Tripura, Head Constable of SPO has been registered as Kachuchara P.S. Case No. 05 of 2005 and on the basis of the FIR lodged by the writ petitioners, no fresh case was registered. The respondents contended that since a case already registered on the basis of FIR lodged by Madhusudan Tripura, on the same incident, a separate case on the basis of the FIR lodged by the writ petitioners were not registered. 14. In the FIR lodged by the writ petitioners except the allegation that their husbands have been murdered, there was no other elaboration of the facts rather it consist some demand including that of compensation and job etc. 14. In the FIR lodged by the writ petitioners except the allegation that their husbands have been murdered, there was no other elaboration of the facts rather it consist some demand including that of compensation and job etc. In both the writ petitions, the petitioners stated that their respective husband were political activist of INPT and they were returning home at about 10.45 p.m. after electioneering and at that time, they were killed by SPO and DAR party with close range gun shots. There is no further elaboration of any fact as to where from they were returning during such night time. In their statements before the District Judge, both the petitioners stated that on 01.03.2005 at about 6.30 p.m. they went out from their house and attended a meeting in the house of Abhimohan Debbarma of North Mechuria and at the time of occurrence, they were returning from the house of Abhimohan Debbarma. The incident occurred on 01.03.2005. Writ Petitions were filed on 09.08.2005. Neither in the FIR nor in the writ petition, the petitioners disclosed the fact that their respective husband attended a meeting in the house of Abhimohan Debbarma in North Mechuria and were returning home from that house when the incident occurred. The contention of the petitioners, therefore, raises a great suspicion as to why they have suppressed the said fact. 15. In both the writ petitions, the petitioners clearly stated that their respective husband were political activists of INPT party. No document submitted in the writ petition that they were members of INPT party. In their statement recorded by the learned District Judge, both the petitioners stated that originally their respective husband were supporter of INPT party, but subsequently, before their death, they joined NSPT party and they were active worker of NSPT party till the date of their death. Before the District Judge, they have produced a certificate issued by NSPT party in the name of their respective husband, which is marked as Exbt. 1 in connection with both the inquiry. It raises a great suspicion as to why that fact was not disclosed in the writ petition that at the relevant time, the respective husband of the petitioners were members of NSPT party and not INPT party. 1 in connection with both the inquiry. It raises a great suspicion as to why that fact was not disclosed in the writ petition that at the relevant time, the respective husband of the petitioners were members of NSPT party and not INPT party. According to the petitioners as well as other first party witnesses, Aparup Debbarma and Foren Debbarma attended a meeting in the house of Abhimohan Debbarma (FPW 2) and Abhimohan Debbarma in his statement clearly stated that a meeting of INPT party held in his house on that evening and Aparup Debbarma, Foren Debbarma and others had attended the meeting. If Aparup Debbarma and Foren Debbarma were members of NSPT party at the relevant point of time what prevented the petitioners from saying the said fact in the writ petition, is not understood. Rather they made a contrary statement that Aparup and Foren were members of INPT party. FPW 2 Abhimohan Debbarma whereas stated that a meeting of INPT party held in his house, but other FPWs though stated that they attended a meeting in the house of Abhimohan Debbarma, but stated nothing as to which political party's meeting it was. The story of meeting in the house of Abhimohan Debbarma, therefore, appears to have a subsequent crooked story to somehow make out a case. 16. Both the petitioners in their statement recorded by the District Judge stated that on the night of occurrence their respective husband did not return home and since it was night, they did not go out to search their husband. Siari Debbarma, Wife of Aparup in her statement stated that on the following morning she was reported by wife of Foren Debbarma (Sakila Debbarma) searched her husband and after some time, Sakila saw the dead body of her husband Foren Debbarma as well as the dead body of Aparup Debbarma lying on the river side in the village at North Mechuria. Whereas, Sakila Debbarma, wife of Foren Debbarma in her statement, on the contrary, stated that she searched for her husband in the locality on the following morning and she found blood stains near the river bank of their village, but she did not find her husband and Aparup Debbarma. Whereas, Sakila Debbarma, wife of Foren Debbarma in her statement, on the contrary, stated that she searched for her husband in the locality on the following morning and she found blood stains near the river bank of their village, but she did not find her husband and Aparup Debbarma. She came to learn from the villagers that the dead bodies of her husband and Aparup Debbarma had been taken to Kamalpur hospital, but neither she nor Siari Debbarma went to Kamalpur hospital to see the dead bodies. On the night of 02.03.2005, dead body of her husband was handed over to her father-in-law by the police from Kamalpur hospital. It is therefore clear that both the petitioners made contradictory statement about the fact as to when they found the dead body of their respective husband after the incident. FPW 7, Shri Nishikanta Debbarma, the father of both Aparup and Foren stated that he went to Kamalpur hospital and he found the dead body there and at night, dead bodies were handed over him and thereafter, he brought the dead bodies and the bodies were cremated. 17. It is an admitted position that Foren Debbarma and Aparup Debbarma received multiple bullet injuries. SPW 24, Dr. Sajal Gupta conducted post mortem examination over the dead body of both the deceased and submitted report. Post mortem reports annexed by both side in the respective writ petitions. In his statement recorded by the learned District Judge, Dr. Gupta stated that he found the following injuries on the dead body of Foren Debbarma:- 1. entry wound measuring 1" above the umbilicus-1/4" in diameter; 2) one entry would 3" below right inguinal membrane-1/4" in diameter Rs. 3) another entry wound just left to mid sternum-1/4" in diameter; 4) one entry wound on the top of the right shoulder-1/4" in diameter. Exit wounds:- 1. 2" in diameter below the right scapula; 2) 2" in diameter right to T-10; 3) 4" right to L-1-1" in diameter; 4) 4" left to L-3-1" in diameter. He also found following injuries on the dead body of Aparup Debbarma:- 1. 1/2" in diameter just left to midline at T-10 level; 2. Just below right scapula-1/2" in diameter; 3. Just right to midline at L-1 level; I also found the following exit wounds:- 1. 2" in diameter in front of chest just right to midline at nipple level; 2. 1/2" in diameter just left to midline at T-10 level; 2. Just below right scapula-1/2" in diameter; 3. Just right to midline at L-1 level; I also found the following exit wounds:- 1. 2" in diameter in front of chest just right to midline at nipple level; 2. 1 1/2" in diameter in right hypocordrium; 3. 1 1/2" in diameter in right deltoid. He has made a clear and consistent statement that at the time of post mortem examination, it appeared to him that the bullet injuries were received by the deceased were not from close range and that those bullet injuries were received from a distance of about 10/15 metre. He has observed that had the dead bodies receives bullet injuries from close range, there would be presence of gun powder around entry wounds and blackish burn injuries on the entry point and he did not found any such marks. There is no controverting evidence adduced on behalf of the writ petitioners. The District Judge, therefore, appears to have rightly observed that both the deceased received gun shots injuries from a distance of 10/15 metre and it was not a case of close range gun shots. 18. The respondents, with their counter affidavit, annexed a radio message received by O.C. of Kachuchara P.S. on 28.02.2005 and that message has been proved by the respondents examining witnesses before the District Judge, which shows that a group of extremists belonging to NLFT (BM group) headed by Athara Babu Halam were hiding/moving in the area and Aparup Debbarma was also a member of that group. The said copy of radio message annexed as Annexure R-1 has also been proved at the time of recording evidence by the District Judge. SPWs i.e. the in-charge of North Mechuria SPO camp (SPW 1) and O.C. of Kachuchara P.S. (SPW 11) clearly corroborated the fact that the message was received from S.P., DIB, Dhalai and was communicated to in-charge of SPO camp and SPW 1, Gautam Jamatia issued command to Habildar Madhusudan Tripura and 6 other constables for patrolling in the area and accordingly, they went out on patrolling duty. Madhusudan Tripura, the Head Constable of SPO party as well as 6 other constables, who were on patrolling duty i.e. SPW 6, 7, 8, 9, 10 and 21 all made consistent statements that they were in patrolling duty and ambushed at North Mechuria near Dhalai river by the road side and at about 10.30/10.45 p.m., they found a group of extremists crossing the bamboo bridge and at that time, SPW 21 challenged them to stop, but they open fire towards the police party ambushed by the road side and in retaliation, the police party also fired and when firing was over, on search, dead body of deceased Aparup Debbarma and Foren Debbarma were found on the spot. Two country made guns were also recovered and other articles such as empty cartridges were also recovered from the spot. The evidence of SPO's regarding the incident found to be consistent and not shaken in the cross-examination. So, I find no force in the argument advanced by learned counsel, Ms. Deb (Gupta) that learned District Judge has failed to appreciate the statement of witnesses in proper perspective. 19. All the FPWs stated that they heard the sound of gun shots, but since it was night they did not come out of their house. Only Nishikanta Debbarma, FPW 7, father of Aparup and Foren stated that he went out to search his sons and went up to the house of Chandrakanta Debbarma and he asked Chandrakanta Debbarma as to what happened, but received no response and at that time, he heard somebody telling "shoot" and he got afraid and came back to his house. The petitioners also did not go out to search their husband on that night. From the statement of all the FPWs, it is evident that at such night hours peoples were scared of coming out of their house though they heard sound of gun shots. On the following morning, they came out and could learn about the incident. Had Foren and Aparup were not members of the extremist group, why they had been only on the road at such dead hours of night while other villagers were scared of coming out of their houses? On the following morning, they came out and could learn about the incident. Had Foren and Aparup were not members of the extremist group, why they had been only on the road at such dead hours of night while other villagers were scared of coming out of their houses? It raises a strong suspicion about the conduct of both Aparup and Faren and it supports the allegation of the respondents that Aparup was a member of extremist group and Foren was also a collaborator of those extremist group. The petitioners made allegation that the SPO, DAR party in collusion with rival political party of their husband committed murder of Aparup and Foren, but I find nothing to support the contention of the petitioners. Even there is nothing to draw an inference to that effect that the police personnel were inimical to the deceased persons. 20. The respondents by filing additional counter affidavit in response to the rejoinder affidavit of the petitioners brought on record that there were numerous criminal cases against Aparup Debbarma and Foren Debbarma. Annexure R-1 of the respondents in both the cases shows that there were numerous criminal cases against both Aparup Debbarma and Foren Debbarma. Siari Debbarma in her statement admitted that there were numerous criminal cases against her husband, but her husband was acquitted from the Court. It is, therefore, evident that both the deceased Aparup Debbarma and Foren Debbarma had crime records before the alleged incident. 21. The submission of learned counsel, Ms. Deb (Gupta) that Aparup Debbarma and Foren Debbarma were not involved in extremist activities also cannot stand in view of the evidence collected by learned District Judge in the course of inquiry. SPW 12, 13 and 14 are all residents of that locality where the incident occurred. They went to the spot on the very night of occurrence and identified the dead bodies of both the deceased. SPW 12, Sri Manabendra Debbarma, a local man in his statement clearly stated that both the deceased were well known to him. During lifetime, the deceased Aparup Debbarma was known as a member of NLFT (BM) extremist group. On several occasions, he being the member of the said extremist group collected tax from him (witness) and from some other villagers. SPW 12, Sri Manabendra Debbarma, a local man in his statement clearly stated that both the deceased were well known to him. During lifetime, the deceased Aparup Debbarma was known as a member of NLFT (BM) extremist group. On several occasions, he being the member of the said extremist group collected tax from him (witness) and from some other villagers. Before the incident, it was unknown to him whether the deceased Foren Debbarma was involved in any extremist activity, but he was an associate of his brother Aparup Debbarma. Aparup Debbarma was wanted in so many criminal cases by the police. SPW 13, Shri Chandrakanta Debbarma, a co-villager also in his statement stated that it was known to him that deceased Aparup Debbarma during his lifetime was a member of NLFT (BM) extremist group. He was absent in his house for the last one year prior to his death. On several occasions, he collected tax from the villagers including himself (witness) being a member of the NLFT (BM) extremist group. Though Foren Debbarma had been living in his house with his other family members, but sometimes he was also found absent in his house for few days. SPW 14, another local man also in his statement stated that Aparup Debbarma was known to him since his childhood. He was known as a member of NLFT (BM) extremist group. On several occasions, he collected tax from him and other villagers. Aparup was also wanted in several criminal cases by the police. Foren Debbarma was the younger brother of Aparup Debbarma. Though he was a school going student, but several occasions, he was found absent from village for some days. SPW 15, a surrendered extremist, made a horrible statement. He stated that he belonged to NLFT (BM) group and undergone training at Chitagang, Bangladesh. He knew Athara Babu Halam, a leader of the group and he also knew the fact that Athara Babu Halam along with Aparup Debbarma, Foren Debbarma and others armed extremists came to India for extremist activities. They used to collect tax from the villagers. Athara Babu Halam was suspended by the superior authority since two members of the extremist group was killed in the encounter with police. The statement of this witness gives an impression that both Aparup and Foren were with Athara Babu Halam at the time of the alleged incident. 22. They used to collect tax from the villagers. Athara Babu Halam was suspended by the superior authority since two members of the extremist group was killed in the encounter with police. The statement of this witness gives an impression that both Aparup and Foren were with Athara Babu Halam at the time of the alleged incident. 22. In the given facts and circumstances of the case, what is brought on record, I find nothing to agree with the submission of learned counsel, Ms. Deb (Gupta) that fundamental right to life of Aparup Debbarma and Foren Debbarma were taken away in a fake encounter. No doubt, the bullets found in the dead body were examined to ascertain as to from which gun those were fired. Even if it is presumed that those were fired from the police guns, the police cannot be held responsible since it was an exchange of fire between the extremist group and the police during night time. It is evident that cross firing between the extremists and the police were from the considerable distance. Therefore, it was not possible even for the police to combat the extremists without loss of life. In the facts and circumstances of the case though unfortunately, two precious lives were lost, I find no reason to compensate the petitioners granting monetary compensation. Police was bound to register the FIR lodged by the petitioners on 02.03.2005 and investigate the case independently. That has not been done. The incident occurred in the month of March of the year 2005, after 9 years, I find no justification at all to direct the police or any other authority to register the case and to investigate it independently apart from the case registered on the basis of the FIR lodged by Madhusudan Tripura. What is the fate of that case has also not been brought on record. It appears that the petitioners are also not interested as to what has happened to that case, which was under investigation. 23. I have meticulously gone through the decision referred by learned counsel, Ms. Deb (Gupta). The fact of the case of Md. Kala Miah (supra) is clearly distinguishable to that of the fact of the present case and I find no reason at all to apply the ratio of that decision in the fact of the present case. 23. I have meticulously gone through the decision referred by learned counsel, Ms. Deb (Gupta). The fact of the case of Md. Kala Miah (supra) is clearly distinguishable to that of the fact of the present case and I find no reason at all to apply the ratio of that decision in the fact of the present case. It was a case of custodial death whereas, the present case as alleged is a case of cross firing between the extremist group and police. The fact of the case of People's Union for Civil Liberties (supra) is also clearly distinguishable to that of the fact of the present case. I therefore find no reason at all to apply the ratio of that decision in the present case. The case of Rohtash Kumar (supra), was a case of fake encounter and the evidence and materials of that case clearly established that the son of the petitioner was killed in a fake encounter whereas, in the present case, the petitioners failed to prove the allegation of fake encounter rather a reasonable case that there was an encounter between the police and a group of extremist has been established. In view of the fact of the present case, the decision of Rohtash Kumar (supra) cannot be applied. 24. In view of the discussions made above, I am of considered opinion that the petitioners are not entitled to get any relief in the form of compensation since they have failed to prove that any fundamental right of their respective husband were deliberately violated by the respondents. 25. The writ petitions therefore dismissed, but in the circumstances without cost.