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2015 DIGILAW 1103 (GAU)

Lakhan Mushahary v. State of Assam & Ors.

2015-08-28

MANOJIT BHUYAN

body2015
1. Heard Mr. B.K. Mahajan, learned counsel representing the petitioner as well as Mr. P.S. Deka, learned counsel representing the Sate respondents. 2. This writ petition was laid on the premises that the petitioner's son Dwitun Mushahary having suffered demise on 25.4.2006 at Sapatgram Bazar due to unprovoked police firing, a proper inquiry be directed to be initiated by the District & Sessions Judge, Dhubri as well as for a direction to the respondents to pay compensation to the petitioner. 3. This court by order dated 12.12.2013 had directed the learned District Judge, Kokrajhar to record evidence and give findings on the circumstances leading to the death of Dwitun Mushahary. Direction was made to allow the petitioner, the police personnel and other interested persons to adduce evidence before the court of the learned District Judge, Kokrajhar in order that a determination can be made as to whether Dwitun Mushahary died due to police firing or due to firing by NDFB members. The manner for proceeding with the inquiry was laid down and the learned District Judge was made to furnish the Report within 6 months from the date of the court's order. 4. The Inquiry Report dated 12.2.2015 of the learned District & Sessions Judge, Kokrajhar was received by the Registry of this court on 16.2.2015. 5. By order of this court dated 20.2.2015, the Registry was directed to furnish copies of the Report to the counsels representing the petitioner as well as to the Senior Government Advocate, Assam. On 30.7.2015, Mr. RS. Deka representing the State Government was allowed time on his prayer for bringing the Report to the notice of the State Government. Until conclusion of hearing of this matter on 12.8.2015, no counter-affidavit has been filed by the State respondents. 6. The Report indicates that enquiry was initiated by issuing notices upon the Deputy Commissioner of both Dhubri and Kokrajhar districts, the Superintendent of Police of both the districts aforementioned as well as to the Officers-in-charge of Bogribari Police Station and Saptgram Police Station respectively. The said officials were duly represented by the Government Pleader, Kokrajhar together with the petitioner through his engaged counsel. Records pertaining to Bagribari P.S.Case No. 58/ 2006 (re--registered as Sapatgaram P.S. Case No. 71/2013) as well as Bogribari P.S.Case No. 59/2006 were requisitioned. 7. The said officials were duly represented by the Government Pleader, Kokrajhar together with the petitioner through his engaged counsel. Records pertaining to Bagribari P.S.Case No. 58/ 2006 (re--registered as Sapatgaram P.S. Case No. 71/2013) as well as Bogribari P.S.Case No. 59/2006 were requisitioned. 7. Whereas three witnesses were examined from the petitioner's side, who were also subjected to cross-examination, the respondents' side declined to adduce any evidence. According to the deposition of the writ petitioner Sri lakhan Mushahary it is stated that he came to learn of the occurrence from the witnes No. 2, i.e., Sri Keshab Kumar Brahma and had immediately rushed to Sapatgram Market. He could only find his son on the following day, i.e., 26.4.2006 lying dead a I Bagribari Police Station. Post-mortem examination was conducted at Dhubri Civil Hospital and on the same day at about 7.00 p.m. he received the corpse of his son. An ejahar was lodged and Bagribari P.S.Case No. 59/2006 came to be registered thereupon. 8. As per the First Information lodged on 25.4.2006, the NDFB organization had announced an Assam Bandh call for 24 hours. Mid­day of 25.4.2006 his son along with few others of the organization had gone to Sapatgram Market to ensure implementation of the Bandh. As differences arose between them and the shopkeepers, a Police Party arrived at the scene and started to fire upon the NDFB group. As a result, Dwitun Mushahary sustained several bullet injuries upon his person and succumbed at the spot. 9. The evidence of witnes No. 2 Sri Keshab Kumar Brahma revealed that reacting to the arrest of 8 persons of the NDFB cease-fire group at Guwahati, a 24 hour Assam Bandh was called on 25.4.2006. On the fateful day he along with Dwitun Mushahary and other 7 members of the NDFB cease-fire group had come out from the Tipkai NDFB cease-fire Camp on three Motorcycles to Sapatgram Market to oversee the effect of the Assam Bandh so-declared. According to him, they had barely reached Sapatgram Bazar when police personnel from Sapatgram Police Outpost arrived at the spot and started to fire upon them indiscriminately, as a result of which Dwitun Mushahary died on the spot being struck by firing from the police personnel. For fear of their lives he and his other 7 members fled away leaving their Motorcycles behind. For fear of their lives he and his other 7 members fled away leaving their Motorcycles behind. He informed the father of Dwitun Mushahary regarding the incident and on the following day an Ejahar was lodged by the father with Bogribari Police Station. 10. Shri Santosh Kumar Brahma @ Sadlun, as witnes No. 3, reiterated the statements made by Keshab Kumar Brahma (witness No. 2). As per his statement, he was also a member of the group who had gone to Sapatgram Bazar on the date of the incident. Both the witness Nos. 2 and 3 deposed that they had no weapon in their hands. 11. The Inquiry Report reveals that the learned District and Sessions Judge, Kokrajhar had perused the Final Report submitted by the Police. It was observed that the statement of the Investigating Officer, as recorded in the Final Report, do not portray facts different from what have been stated by the witnesses. As per the statement of the Investigating Officer although the case was under section 302, IPC, however, since there was no sufficient evidence against the accused, the Final Report in the case had been submitted. Notwithstanding that, the learned District & Sessions Judge found that in the incident that took place at Sapatgram Bazar, the police had resorted to fire in the air and in the process Dwitun Mushahary sustained bullet injuries upon his person and succumbed to it. From the Report it is also revealed that both the witnesses' Nos. 2 and 3 were subjected to cross-examination by the respondents' side but they failed to bring out any reason that the witnesses from /the petitioners' side had falsely deposed in the case. It was also recorded that the evidence so adduced by witness Nos. 2 and 3 are reliable and inspires the confidence of the court. Further, it is also recorded that the respondents' side did not come forward to prove their case by leading any evidence or even to rebut the case of the petitioner's side. In conclusion, the learned District Judge, Kokrajhar held that in the incident of 25.4.2006, that took place at Sapatgram Bazar, Dwitun Mushahary was killed by firing form the police force. 12. From the narration of facts above and having regard to the Inquiry Report, the fact that the petitioner's son Dwitun Mushahary died due to police firing stands vindicated. In conclusion, the learned District Judge, Kokrajhar held that in the incident of 25.4.2006, that took place at Sapatgram Bazar, Dwitun Mushahary was killed by firing form the police force. 12. From the narration of facts above and having regard to the Inquiry Report, the fact that the petitioner's son Dwitun Mushahary died due to police firing stands vindicated. This court is of the view that there is no illegality, infirmity and/or irregularity in the findings of the Enquiry and, accordingly, the Report submitted by the learned District & Sessions Judge, Kokrajhar stands accepted and approved. Having held so, the inevitable question that falls for consideration is with regard to the compensation payable to the petitioner by the State for the death of Dwitun Mushahary at the hands of the Police Force. Public law demands that crime victims are to be given compensation and the State is to compensate for the breach of the constitutional guarantee under article 21 of the Constitution which prescribes that no person shall be deprived of his life except according to the procedure established by law. 13. In a catena of decisions, the Apex Court has held that that where the infringement of fundamental right is established, the court cannot stop by giving a mere declaration but to go further by way of giving compensatory relief. The said relief has to be given by way of compensation under the public law jurisdiction on account of breach of public duty by the State in not protecting the fundamental right to life of a citizen. To quote from the case of D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 - "to repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience". 14. In view of the power of this court to give compensatory relief under the public law jurisdiction for the wrong done to the son of the petitioner, there is no alternative but to hold that the wrong doer has to be penalized by fixing compensation liability upon it. In that view of the matter, it is ordered that the State respondent in the Department of Home, Government of Assam, shall make payment of compensation to an amount of Rs. 2.50 lakhs only to the writ petitioner within a period of three months from the date of receipt of this order. In that view of the matter, it is ordered that the State respondent in the Department of Home, Government of Assam, shall make payment of compensation to an amount of Rs. 2.50 lakhs only to the writ petitioner within a period of three months from the date of receipt of this order. It is ordered that the State respondents shall deposit the compensation amount before the office of the Registrar General, Gauhati High Court at the Principal Seat through a Bank Draft within the period as indicated above. Upon such deposit being made, the Registry shall pay the entire amount to the petitioner after proper verification of his identity by the learned counsel representing him in the\ present proceedings. 15. In view of the observations and directions made above, this writ petition stands allowed, however, without any order as to costs.