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2015 DIGILAW 12 (MAN)

Ningthoujam Ongbi Sunibala Devi v. Union of India

2015-01-22

KH.NOBIN SINGH, LAXMI KANTA MOHAPATRA

body2015
JUDGMENT Kh. Nobin Singh, J. 1. Heard Shri M. Rakesh, learned counsel appearing for the petitioner, Shri S. Rupachandra, learned ASG appearing for the respondents No. 1, 2 and 3 and Shri A. Modhuchandra, learned Government Advocate appearing for the respondent No. 4. 2. The present writ petition has been filed by the petitioner for payment of compensation to her for the illegal and unjustified killing of her husband, Shri N. Thopchao Singh. 3. The case of the petitioner is that on 01-02-2007 there was a Thabal Chongba (customary group dance) programme at the Nongpok Sekmai Lila Kambong Playground, Thoubal District, Manipur. At about 08:00 p.m., some personnel of the 172 Bn. Border Security Forces (BSF) came in an armoured vehicle which parked on the North-Western side of the said playground along the Yairipok - Nongpok Sekmai Road. At about 09:30 p.m., when the Thabal Chongba programme was in full swing, some unknown armed assailants fired few rounds upon the said personnel of the 172 Bn. Border Security Forces, as a result one of the BSP personnel who received bullet injury on his leg felt down from the armoured vehicle. When the assailants immediately left the place, the BSP personnel started firing indiscriminately towards the crowds at the playground. Two persons namely, Shri Yambem Kala Singh and Shri W. Bikram Singh sustained bullet injuries at the earlobe and forehead respectively. Thereafter, the said BSP personnel left the place. At that point of time and on hearing the firing sounds, the petitioner's husband namely Shri N. Thopchao Singh along with his 3(three) friends namely, Maibam Hemanta Singh, Shamchetsabam Roben Singh and Maibam Sharat Singh who were at Shikhong Sekmai Bazar started returning home. When they reached the south-eastern side of the 172 Bn. BSF post, they found the personnel frisking the public. They were asked to raise their hands and were interrogated by the BSF personnel and thereafter, they were asked to proceed their way. When they reached the main gate of the Nongpok Sekmai Primary Health Centre, the BSF personnel from the bunker situated inside the said Primary Health Centre fired towards them. The petitioner's husband sustained injury on his persons and when his friends were about to pick the petitioner's husband up, they were not allowed to do so and were asked to leave the place. The petitioner's husband sustained injury on his persons and when his friends were about to pick the petitioner's husband up, they were not allowed to do so and were asked to leave the place. Accordingly, the friends of the petitioner's husband left the place and informed the villagers and the local Meira Paibis about the incident. 4. The Villagers and the local Meira Paibis rushed towards the gate of the BSF post and when they reached near about the place, they found the BSF personnel dragging the petitioner's husband inside the camp. The BSF personnel informed the villagers and the Meirab Paibis that the petitioner's husband would be taken to the hospital for treatment. At about 11:20 p.m. two local youths namely Shri Gitchandra Singh and Shri Pratipkumar Singh were asked to accompany the BSF personnel to the hospital for treatment of the petitioner's husband. At about 11:30 p.m., the husband of the petitioner was taken to the District Hospital and thereafter, he was taken to the Regional Institute of Medical Sciences (RIMS) where he succumbed his injuries. On the next day a post-mortem examination was conducted over the dead body of the petitioner's husband and the Doctor who performed the post-mortem examination found that the death was due to laceration of the lung produced by firearm injuries to the chest. 5. The petitioner came to know that on 01-02-2007 at about 09:30 p.m. one Shri Shanjib Kumar, Coy. Commander, 172 Bn. BSF made a written complaint with the Officer-in-charge, Yairipok Police Station stating therein that on 01-02-2007 at about 2000 hours, one S.I. and 9 ors left the bunker patrolling in area Nongpok Sekmai, the patrol party saw a crowd on the road. HC Binod Raghav opened the bunker to clear the road and on opening the said bunker, the militants fired upon them. HC Binod Raghav sustained injury in his left knee and in retaliation, he fired 03 rounds and Shri Jagdish Singh also fired some rounds, as a result the militants ran away in the cover of civilian crowd/jungle and started firing upon the camp from village Nongpok Sekmai and a grenade also exploded in the front of the main gate of the post. At about 2200 hours, during search of the area one civilian was found injured on the road near CI post, Nongpok Sekmai who was later identified as the petitioner's husband. At about 2200 hours, during search of the area one civilian was found injured on the road near CI post, Nongpok Sekmai who was later identified as the petitioner's husband. Both Binod Raghav and the petitioner's husband were taken to the civilian hospital. Based on the said complaint, the case being FIR No. 9(2)07YPK-PS u/s. 121/121-A/307/326/302/34 IPC, 25(1-C) Arms Act, 3 Explosive Substances Act and 15/20 UA (P) Act was registered. 6. The said incident led to the formation of a Joint Action Committee which demanded punishment of the BSP personnel involved in the incident and for providing adequate compensation. On 5-2-2007 a memorandum was submitted to His Excellency, Governor of Manipur with copies endorsed to the Deputy Commissioner, Thoubal District and the Chief Minister, Manipur. On receipt of the said memorandum, the District Magistrate, Thoubal issued a notification dated 07-02-2007 appointing one G. Bijoy Sharma, Executive Magistrate to enquire into the incident. The Executive Magistrate, on completion of the enquiry submitted its report to the District Magistrate. Simultaneously, the Deputy Commissioner vide its letter dated 07-02-2007 directed the Superintendent of Police, Thoubal District to submit a detailed report of the said case. On 10-02-2007, the father of the petitioner's husband lodged a written report with the Officer-in-charge, Yairipok Police Station, on the basis of which a case under FIR No. 19(2) 07 YPK PS u/s.302/307/326/34 IPC and 27 Arms Act was registered. The Superintendent of Police, Thoubal District submitted a report dated 28-04-2007 stating therein that the petitioner's husband was found to be innocent person having no link with any underground militants. Thereafter, the matter was placed before the District Level Screening Committee for payment of ex-gratia and consequently, the Deputy Commissioner addressed a letter dated 19-05-2007 to the Chief Secretary, Manipur recommending for payment of ex-gratia which was later released to the petitioner. Being aggrieved by the action of the said BSF personnel, the petitioner has filed the present writ petition. 7. The above writ petition was contested by the respondents No. 1, 2 and 3 by filing counter affidavit wherein the respondents gave a different version of the said incident. The case of the respondents is that on 01-02-2007 at about 2000 hours the patrol party of 'B'-Coy, Ex-BSF consisting of 05-other ranks led by one Sub-Inspector was sent for patrolling along with BP vehicle in general area around the BSF post Nongpok Sekmai. The case of the respondents is that on 01-02-2007 at about 2000 hours the patrol party of 'B'-Coy, Ex-BSF consisting of 05-other ranks led by one Sub-Inspector was sent for patrolling along with BP vehicle in general area around the BSF post Nongpok Sekmai. The patrol party in BP vehicle was stationed at T-Junction at a distance of approximately 400 yards from CI (post) Nongpok Sekmai to provide security cover to the public which were attending election function at a distance of approx. 100 yards from T-Junction. At about 2120 hours HC Binod Raghav got down from the BP vehicle to disburse the civilians, coming close towards the vehicle and he was immediately fired upon by the undergrounds with automatic weapons from nearby bushes resulting in his injury on his left leg. HC Binod Raghav fired 03 rounds from his INSAS rifle and got inside the bunker and in retaliation, his troops also fired in self-defence which continued for about 2/3 minutes. While HC Binod Raghav was being immediately taken to Nongpok Sekmai post to provide first aid, the underground open fired on them. When the bunker entered inside the post Nongpok Sekmai, a grenade also exploded at a distance of about 50 yards in the front of the main gate of the post. His troops who were on guard duty retaliated firing. After the gun battle the undergrounds stopped firing and ran into the forest. During the said encounter, one civilian namely the petitioner's husband sustained bullet injury in his belly. Both HC Binod Raghav and the petitioner's husband were taken to the RIMS where HC Binod Raghav's life could be saved by way of operation and the petitioner's husband succumbed to his injury after 40/45 minutes of reaching the hospital. 8. A written complaint dated 01-02-2007 was submitted to the Police-in-charge, Yairipok Police Station by the Coy. Commander on the basis of which the case being FIR No. 9(2)07YPK-PS u/s. 121/121-A/307/326/302/34 IPC, 25(1-C) Arms Act, 3 Explosive Substances Act and 15/20 UA (P) Act was registered by the said Police Station. On the next day i.e., 02-02-2007 a SCOI was ordered by the SHQ BSF CI (Ops), Manipur which was completed by PO and finalized by IG, BSF-M&C Ftr. Silchar on 09-05-2007. It is further stated in the said counter affidavit that during the encounter, the petitioner's husband got injured in cross-firing. On the next day i.e., 02-02-2007 a SCOI was ordered by the SHQ BSF CI (Ops), Manipur which was completed by PO and finalized by IG, BSF-M&C Ftr. Silchar on 09-05-2007. It is further stated in the said counter affidavit that during the encounter, the petitioner's husband got injured in cross-firing. The firing by the BSF personnel in retaliation to that of the undergrounds was justified in self-defence. 9. On 27-07-2011 when the above writ petition was listed before this court for consideration and on perusal of the petition and the counter affidavit, the Ld. Single Judge was of the view that there was a disputed question of facts leading to the death of the petitioner's husband and accordingly, the Ld. Single Judge was pleased to direct the Ld. Additional District Judge (FTC), Manipur to hold an enquiry in respect of the issues involved herein and to submit a repot within 6 (six) months from that day. On the request made by the Addl. District Judge (FTC), three months further time was granted for submitting the enquiry report. Thereafter, in compliance of the order of this court, the Addl. District Judge (FTC) submitted the report as is evident from the order dated 19-09-2012 passed by this court. An affidavit-in-opposition on behalf of the respondents No. 1 to 3 was filed raising objections thereto. 10. Shri M. Rakesh, counsel appearing for the petitioner, relying upon the enquiry report, submitted that the petitioner's husband died due to the injuries sustained by him in the firing by the BSF personnel and that the petitioner was entitled to adequate compensation. 11. On the other hand, Shri S. Rupachandra, ASG raised objection to the enquiry report and submitted that since the Addl. District Judge (FTC) had not given a clear finding that the petitioner's husband was killed by the BSF personnel, the question of payment of compensation did not arise at all. 12. We have perused the said enquiry report wherein the Addl. District Judge (FTC) had given a finding that the personnel of 172 Bn. Border Security Force (BSF) posted at Nongpok Sekmai Primary Health Centre was responsible for the killing of the petitioner's husband namely Ningthoujam Thopchao @ Ranbir Singh and we find that during the course of the enquiry, six witnesses were examined on behalf of the petitioner and three witnesses on behalf of the respondents. Border Security Force (BSF) posted at Nongpok Sekmai Primary Health Centre was responsible for the killing of the petitioner's husband namely Ningthoujam Thopchao @ Ranbir Singh and we find that during the course of the enquiry, six witnesses were examined on behalf of the petitioner and three witnesses on behalf of the respondents. Out of six witnesses examined on behalf of the petitioner, two witnesses namely PW 2 and PW 3 were the eye witnesses who were along with the petitioner's husband at the time of incident and their evidences as reproduced in the enquiry report appeared to be not shaken in the cross-examination and were corroborated by the evidence of the PW 6 (Dr. Memchoubi) who conducted the post-mortem examination on the dead body of the petitioner's husband. So far as the evidence of the RW 1 to 3 is concerned, the Addl. District Judge (FTC), on appreciation thereof, has rightly found that the same only established that there was an exchange of firing between the BSF personnel and the militants at the T-Junction where the BP vehicle was parked and in that exchange of firing HC Binod Raghav got injured in his left leg but there is no reliable evidence to prove that there was an exchange of firing in/around the place leading to the main gate of the BSF camp Station at Nongpok Sekmai Primary Health Centre where the petitioner's husband sustained injuries. Accordingly, we have accepted the enquiry report. Having heard the learned counsels for the parties and under these circumstances, we are of the view that the petitioner having established her case that her husband was killed in the firing by the BSF personnel, her prayer for compensation can be allowed. Accordingly, we allow the present writ petition and direct the respondents No. 1 to 3 to pay a sum of Rs. 5,00,000/- (Rupees five lakhs) as compensation to the petitioner within a period three months from the date of receipt of a copy of the judgment and order.