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2015 DIGILAW 237 (GAU)

Harlongbi Engti v. State of Assam

2015-02-26

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2015
Judgment C.R. Sarma, J. 1. Heard Mr. M. Sarania, learned counsel for the petitioner and Mr. A.K. Bhattacharjee, learned senior counsel, assisted by Mr. D.K. Bhattacharjee, learned counsel, appearing for the private respondent No. 7. Also heard Mr. Nur Mohammad, learned State counsel, appearing for the State respondent. By this writ petition, filed under Article 226 of the Constitution of India, Mrs. Dhan Teronpi (since deceased), wife of late Longki Engti (hereinafter, called the deceased) of village Matikhola Dighola Engti Gaon, P.O. Duarbamuni, P.S. Howraghat, District- Karbi-Anglong, Assam prayed for compensation for the death of her husband in police custody and appropriate direction for causing a judicial enquiry through a District Judge. 2. The petitioner's case, may, in brief, be stated as follows: The deceased, who was aged about 35 years, was a cultivator and social worker, by profession. On 16.7.2007, at about 9.30 am, he went to Dengaon Bazar (a market) for repairing of his bi-cycle. Sri Jayanta Kalita, the respondent No. 7, who was the officer-in-Charge of Dokmoka Police Outpost, alongwith some police personnel, apprehended him and thereafter mercilessly beaten up, in presence of public, in the market. 3. The deceased, after his arrest in the said manner, was taken into police custody. Next morning i.e. on 17.7.2007, at about 7.00 a.m., police called the wife of the deceased to the Police Station, wherein the dead body of her said husband i.e. the deceased was shown to her. She found her husband's face swollen and clotted with blood. She also found that the face of her deceased- husband was disfigured. Subsequently, the dead body of her said husband was handed over to her, after performing post-mortem examination. 4. The petitioner, on 26.7.2007 lodged an FIR with Howraghat Police Station, alleging that her husband had died due to police torture, in custody. Accordingly, Howraghat P.S. Case No. 76/2007, under Sections 302/34 IPC was registered against the accused persons. The said case ended with submission of final report by the investigating agency. The Deputy Commissioner, Karbianglong caused a Magisterial enquiry regarding the death of the deceased. A copy of the enquiry report has been annexed to the affidavit-in-opposition filed on behalf of the Deputy Commissioner, Karbianglong i.e. the respondent No. 3. 5. Mr. The said case ended with submission of final report by the investigating agency. The Deputy Commissioner, Karbianglong caused a Magisterial enquiry regarding the death of the deceased. A copy of the enquiry report has been annexed to the affidavit-in-opposition filed on behalf of the Deputy Commissioner, Karbianglong i.e. the respondent No. 3. 5. Mr. M. Sarania, learned counsel for the petitioner has submitted that the deceased, who was arrested by the respondent No. 7 on false charge, was, was subjected to inhuman torture and was also deprived from proper medical aid. It is submitted that, the deceased, who was not connected with any extremist activities, was illegally taken to police custody and he died due to torture, in the custody. In view of the above, it is submitted that the legal representatives of the deceased are entitled to get compensation from the State authority. In support of his contention, the leaned counsel for the petitioner has relied on the decisions held in the following cases: "(1) Nilabati Behera (Smti) @ Lalita Be her a v. State of Orissa & Ors., reported in 1993 (2) SCC 746 . (2) D.K. Basu v. State of West Bengal, reported in (1997) 1 SCC 416 . (3) Chairman, Railway Board & Ors. v. Chandrima Das (Mrs) & Ors., reported in (2000) 2 SCC 465 . (4) K.L. Thariktha v. State of Manipur & Ors., reported in 2012 (2) GLT 977." 6. Controverting the said argument, advanced by the learned counsel for the petitioner, Mr. A.K. Bhattacharjee, learned senior counsel for the respondent No. 7 has submitted that the respondent No. 7, who arrested the deceased committed no illegality or error since he took him in custody in discharge of his official duty. The learned senior counsel further submitted that the deceased was admitted in the Public Health Centre and he died in the Public Health Centre itself. It is also submitted by the learned senior counsel that the post mortem report does not indicate that the deceased died due to police torture. It is also the case of the respondent No. 7 that there are materials, on record, to show that the deceased sustained the injuries due to fall and hitting against tree, while trying to evade arrest. It is also the case of the respondent No. 7 that there are materials, on record, to show that the deceased sustained the injuries due to fall and hitting against tree, while trying to evade arrest. In view of the above, the learned senior counsel has submitted that it cannot be concluded that the respondent No. 7 was responsible for the death of the deceased. 7. The learned Add. Public Prosecutor, Assam, adopting the argument advanced by the learned senior counsel, appearing for the respondent No. 7, has submitted that the deceased did not the due to police torture and that he was arrested in connection with presumption of law. 8. Having heard the learned counsel, appearing for both the parties, we have carefully perused the averments made in this writ petition, the additional affidavit and the affidavit-in-oppositions, filed by the respondents. We have also perused the postmortem report, inquest report and enquiry report, dated 17.9.2007, submitted by the learned Magistrate (Enquiry Officers). 9. The District Magistrate, Karbi-Anglong, Diphu also ordered a Magisterial Enquiry, regarding the death of the deceased. Accordingly, the Addl. Deputy Commissioner, Karbianglong, Diphu conducted a public enquiry and submitted his report indicating, therein, that the deceased sustained injuries on 16.7.2007 between 11.00 a.m. to 4.00 p.m. under the police custody and that the injuries were ante mortem in nature. 10. As revealed from the order, dated 20.8.2014, passed by the learned District Magistrate, Karbianglong, the said Howraghat P.S. Case No. 76/2007, on being transferred to the newly established Dokmoka Police Outpost was, again, registered as Dokmoka P.S. Case No. 11/2009. Though the police submitted Final Report (FR) in connection with the said case, the learned District Magistrate, Karbianglong, Diphu, by his order, dated 4.6.2014, while refusing to accept the said final report, directed the Officer-in-Charge, Dokmoka P.S. to clarify certain points, raised in the said order. Subsequently, police again submitted F.R. in the said case. Considering the final report, the learned District Magistrate, Karbianglong, by his order, dated 20.8.2014, passed in connection with G.R. Case No. 415/2007, on the basis of the report and the statement of co-accused, namely, Sri Birlong Timung, concluded that the deceased had sustained his injuries, prior to his arrest. Subsequently, police again submitted F.R. in the said case. Considering the final report, the learned District Magistrate, Karbianglong, by his order, dated 20.8.2014, passed in connection with G.R. Case No. 415/2007, on the basis of the report and the statement of co-accused, namely, Sri Birlong Timung, concluded that the deceased had sustained his injuries, prior to his arrest. It has also been noticed that, as per the post-mortem report, the cause of death could not be ascertained for which visara was sent for FSL examination and the FSL report indicated that no poisonous substance was found in the visara. 11. In view of the above, the learned District Magistrate came to the findings that the liability of the police officer could not be established. With the above observation, the leaned District Magistrate, Karbianglong, Diphu accepted the F.R. and released the respondent No. 7 from the liability of the case, under Section 302/34 IPC. 12. The respondent No. 5, i.e. the Superintendent of Karbianglong District, the respondent No. 7 i.e. the concerned Officer-in-Charge of Dokmoka Police Outpost and the respondent No. 3 i.e. the District Magistrate/Deputy Commissioner submitted their affidavit-in-oppositions. In his affidavit-in-opposition, the respondent No. 7 stated that the deceased and the co-accused, namely Birlong Timung, active members of an extremist outfit group, namely KLNLF, were arrested by him on 16.7.2007 and that they, while trying to escape police arrest, sustained injuries due to hitting against tree. He stated that one. 32 pistol was recovered at the instance of co-accused Sri Birlong Timung. According to the said police officer, both the accused persons were taken to Dokmoka Public Health Centre (for short PHC) for medical treatment and that Sri Birlung Timung was released by the Medical Officer after providing treatment. He also contended that the deceased was admitted in the PHC for his medical treatment and at about 9.15 p.m., ASI, Sri Khogen Ch. Nath, who was the in- charge of the police Station, at the relevant time, telephonically informed him that the deceased, who was admitted in Dokmoka Public Health Centre, expired. According to the respondent No. 7, he rushed to the hospital and took steps for performing inquest and post mortem examination. The respondent No. 7, in his affidavit-in-opposition asserted that the deceased was not tortured and that he died while being treated in hospital. 13. According to the respondent No. 7, he rushed to the hospital and took steps for performing inquest and post mortem examination. The respondent No. 7, in his affidavit-in-opposition asserted that the deceased was not tortured and that he died while being treated in hospital. 13. The Superintendent of Police, Karbianglong i.e. the respondent No. 5, also, supporting the statement, made by respondent No. 7, stated, in his affidavit-in opposition, that the deceased and his co-accused i.e. Birlong Timung were members of KLNLF and that they were arrested on 16.7.2007. The Superintendent of Police, further contended that the deceased was admitted in the hospital due to his weakness and difficulty in breathing and that he died in the hospital. He also stated that, while trying to evade arrest by police, the deceased had knocked against a tree and sustained injuries. He denied the allegations of torture, leveled against police, by the wife of the deceased. 14. The Addl. Deputy Commissioner, Karbianglong, on behalf of the respondent No. 3 i.e. the Deputy Commissioner, Karbianglong, also filed an affidavit- in- opposition. Admitting the arrest of deceased and Sri Birlong Timung @ Singh, the Addl. Deputy Commissioner stated that the police arrested the deceased and co-accused, namely, Sri Birlung Timung and that on being led by Sri Birlong Timung, one. 32 pistol was recovered from the premises of PHC Tonglock. In the said affidavit, he stated that the deceased, after his arrest, had complained of illness and accordingly, both the accused persons were shifted to Public Health Centre Dokmoka and the Medical Officer, after examining the accused persons, released Sri Birlong Timung and admitted the deceased in the PHC for treatment. The Addl. District Magistrate, Karbianglong, further, stated that, at about 9.15 p.m., it was informed that the deceased expired in the hospital. He also stated that, as per the statement made by the police staff and the records, it was found that the deceased was admitted in the hospital before reaching the police out post. He further contended that Dr. Thaneswar Terrong of Dokmoka PHC stated that police had taken both the accused persons to the hospital and that the deceased, who was admitted in the hospital, died at about 9.00 p.m., due to breathing problem. 15. He further stated that the District Magistrate, Karbianglong ordered a magisterial enquiry regarding the incident and accordingly, the Addl. Thaneswar Terrong of Dokmoka PHC stated that police had taken both the accused persons to the hospital and that the deceased, who was admitted in the hospital, died at about 9.00 p.m., due to breathing problem. 15. He further stated that the District Magistrate, Karbianglong ordered a magisterial enquiry regarding the incident and accordingly, the Addl. Deputy Commissioner, Karbianglong, Diphu, after completing enquiry, came to the findings that the deceased sustained injuries, on 16.7.2007 between 11.00 a.m. to 4.00 p.m. and that the injuries were ante mortem and traumatic in nature. He annexed the copy of the postmortem report, the enquiry report and the inquest report as Annexure Nos. A, B and C to the affidavit-in-opposition. 16. No rejoinder, or additional affidavit has been filed by the writ petitioner, challenging the contentions raised by the said respondents, more particularly, the respondent No. 7 i.e. the Officer-in-Charge of Dokmoka Police Station. 17. During the pendency of this writ petition, the writ petitioner, i.e. the wife of the deceased expired and on her death, her son Sri Harlong Engti got impleaded, as writ petitioner, vide order dated 29.4.2014, passed in M.C. No. 1188/2014. 18. Sri Harlongbi Engti i.e. the son of the writ petitioner, in his additional affidavit, stated that, after death of his natural father, the deceased, who was the whole blood brother of the father of the petitioner, as per the Karbi customary law, married his mother i.e. wife of the brother of the deceased and thus, he became the legal heir/representative of the deceased. The chart of legal heirs (at page 2 Paragraph 4 of the additional affidavit filed on 25.11.2014), given by the petitioner in the said affidavit reveals that the deceased married the petitioner's mother (since deceased) and he had no son from the said wife. The said chart also indicates that the present petitioner's father late Suku Engti was the brother of the deceased and the petitioner's said mother was married by the deceased. 19. From the averments made in the writ petition as well as the affidavit-in-oppositions aforesaid, it is clear that the deceased, alongwith another person, namely Sri Birlong Timung @ Singh, was arrested by respondent No. 7 and his party, on 16.7.2007 at about 11.00 a.m. and they were taken into custody. 19. From the averments made in the writ petition as well as the affidavit-in-oppositions aforesaid, it is clear that the deceased, alongwith another person, namely Sri Birlong Timung @ Singh, was arrested by respondent No. 7 and his party, on 16.7.2007 at about 11.00 a.m. and they were taken into custody. In the affidavit-in-opposition, submitted by the Deputy Commissioner, Karbianglong, it has been stated that a G.D. Entry, regarding arrest of the said persons was made in the Dokmoka Police Outpost. It is also found that the respondent No. 7 i.e. the Officer-in-Charge of Dokmoka Police Out Post and his police staff, after apprehending the said persons had taken them to Tonglo for recovery of one.32 pistol and the same was recovered, on being led by Sri Birlong Turning. 20. The respondent No. 7, in his affidavit-in-opposition, stated that both the accused persons sustained injury, while trying to flee away at the time of their arrest and that they were taken to Dokmoka Public Health Centre, at about 4.00 p.m., for their medical examination. The said deponent, clearly stated that the deceased was admitted in the Hospital and he expired at about 9.00 p.m. There is no dispute that the deceased died after his arrest by police i.e. during the period when he was in police custody. From the enquiry report, annexed to the affidavit-in-opposition, submitted, on behalf of the District Magistrate, it is found that the Enquiry Officer, during inquiry, had examined some witnesses flora the public as well as the staff of Dokmoka Public Health Centre, wherein the deceased was treated till his death. 21. The witnesses examined during the said enquiry stated as follows: 21A. Mrs. Dhan Terangpi, the wife of the deceased, stated that her deceased- husband was aged about 45 years and that he never suffered from any illness. She also stated that her neighbourer had seen that her husband was beaten by the respondent No. 7. 21B. Sri Harlongbi Engti stated that he saw injury mark on the back side of chest and legs of the deceased and that he suspected police torture. 21C. Smti Chinumai Teronpi stated that she heard hue and cry on 16.7.2007 at about 11.00 a.m. and saw the respondent No. 7 beating some persons. 21B. Sri Harlongbi Engti stated that he saw injury mark on the back side of chest and legs of the deceased and that he suspected police torture. 21C. Smti Chinumai Teronpi stated that she heard hue and cry on 16.7.2007 at about 11.00 a.m. and saw the respondent No. 7 beating some persons. She further stated that, subsequently, she came to know that respondent No. 7 had beaten the deceased and that the deceased died in the police custody. This witness could not identify the person, who was beaten up by the respondent No. 7. She came to know about the said assault from others. 21D. Mr. Khorsing Killing stated that he saw the respondent No. 7 beating two persons including the deceased and that the deceased became senseless. 21E. Shri Kangbura Kro, President of the Primary Congress Committee, Mathikhola Vilalge stated that the deceased was not connected with any anti-social activity. 21F. Shri Babu Sing Ronghang saw the respondent No. 7 beating the deceased mercilessly, on 16.7.2007 at about 11.45 am at a place 1/2 K.M. away from Dengaon Bazaar. 21G. Shri Krusing Timung, Mrs. Basa Beypi, Smti Phudang Kramsapi, Mrs. Kache Hansepi and Smti Kare Kropi, Smti Sika Hansepi, Sri Mangal Ronghang also stated that they saw the respondent No. 7 beating the deceased, on 16.7.2007, near the shop, on the road, at Dengaon Bazar. 22. From the statements of the said witnesses, recorded by the Enquiry Officer, it transpires that, the respondent No. 7, while arresting, had assaulted the deceased. 23. Sri Birlong Timung, a co-accused and eye witnesses to the occurrence made a statement under Section 164 Cr.P.C., before the said Enquiry Officer, who recorded the same in his capacity as judicial Magistrate First Class, on 30.7.2007. In his statement, the said co-accused stated that he and the deceased, after seeing police, in the bazaar, attempted to run away, as a result of which Mr. Lanki Engti (i.e. the deceased) had fallen down after dashing against a tree. He further stated that both of them were arrested by police and that they were taken to Tonglo i.e. a place situated at a distance about 3 kilometers from Dengaon Bazar. He also stated that, on being shown by him, police recovered a revolver, which was kept concealed in the ground. He further stated that after the said recovery, they were taken to Dokmoka police Out- Post. 24. He also stated that, on being shown by him, police recovered a revolver, which was kept concealed in the ground. He further stated that after the said recovery, they were taken to Dokmoka police Out- Post. 24. The Enquiry Officer also recorded the statement of the respondent No. 7 and some police officers as well as Medical Officers of Dockmoka PHC. 25. The respondent No. 7 stated that, the deceased, at the time of his arrest, sustained injuries due to falling on the ground and that he had recovered one revolver, on being led by Sri Birlong Timung. He also stated that, while returning after recovery of the said revolver, the accused persons were taken to Dockmoka Public Health Centre, wherein the deceased was admitted. He further stated that, at about 9.16 p.m., he was informed by ASI Sri K.C. Nath that the deceased had expired. 26. ASI, Sri K.C. Nath, supporting the statement of the respondent No. 7 stated that the accused persons, while trying to avoid police arrest, sustained minor injuries due to falling and that the deceased, who was admitted in the Dokmoka PHC for treatment at about 4.30 p.m. and that he died at about 9.00 p.m. He further stated that he informed the respondent No. 7 about the death of the deceased. The other police officers, examined by the Enquiry Officer, also supported the said version of respondent No. 7. 27. Dr. Thanmeswaor Teron, who was the Medical and Health Officer i/c of Dokmoka Public Health Centre, stated that, on police requisition dated 16.7.2007, he had examined the deceased (32 years) and the co-accused Sri Barenlong Timung (32 years) at about 4.00 p.m. The said Medical Officer (M.O.) stated that the deceased was found to be weak, exhausted with complication of giddiness and injury marks of bruise and swelling of both the knee joints, elbow joints, shoulder joint and buttocks. He stated that the pulse rate of the deceased was 82 PM and his pressure was 100/70. He further stated that, after giving first aid and conservative treatment, though the deceased was referred to a higher institute for better treatment both the accused persons were taken to police outpost at about 5.00 p.m. and the deceased was gain brought back to the PHC at about 6.30 p.m. and he kept under observation at the request of the respondent No. 7. He also stated that the O/C, i.e. the respondent No. 7 requested him to keep the deceased for the night with the assurance that he would be shifted to other hospital, on the next day. According to the said Medical Officer, the deceased, who was given conservative treatment, complained regarding breathing trouble at 8-30 P.M. and died at 9.30 p.m. 28. Supporting the statement of the said Medical Officer, Md. Ibrahim Ali, a peon of Dokmoka PHC and Mr. I. Probin Chandra Das, a pharmacist of the said PHC stated that the deceased was brought with bruise injury and swelling of both the knee joints, elbow, shoulder joints and the buttocks. They also stated that the Medical Officer advised to take him to a higher hospital for better medical treatment and that after about one hour, police had again brought him back to the hospital, wherein he died at about 9.00 p.m. Both of them opined that the deceased might have died to police beating. 29. Dr. Borsing Rongpi, SMO, Diphu Civil Hospital performed Postmortem in respect of the dead body of the deceased on 17.7.2007 at 12-30 p.m.. 30. As revealed from the said post-mortem examination report, the following injuries were found. "Whitish secretions present on the mouth and nostrils. Bruises seem to be present on the shoulder (both) areas and buttocks. Face seems to be slightly swollen on the right side. Little amount of dark liquid blood present on the right temporal side of the sub-Dural space. Bruises seen to be present on the shoulders (both) areas of buttocks" As revealed from the said post-mortem report, no fracture, no injury mark on the face and neck and no secretion from the ears were noticed. 31. It was opined that the injuries were anti mortem. The Medical Officer, who performed the autopsy, further opined that the cause of death could not be ascertained. 32. As revealed from the Inquest report, the following injuries were noticed at the time of inquest, made on the dead body of the deceased:-- "Dorsum "(1) Dorsum of the right foot- small stain. (2) Bruises seen on buttock, shoulder, right left. (3) Bruises seen on back side. (4) Signs of inflammatory reaction (swelling etc.) seen on the knee joint, right leg, buttock and back side." 33. (2) Bruises seen on buttock, shoulder, right left. (3) Bruises seen on back side. (4) Signs of inflammatory reaction (swelling etc.) seen on the knee joint, right leg, buttock and back side." 33. As indicated by the Enquiry Officer, the deceased sustained injuries, on 16.7.2007 between 11.00 a.m. to 4.00 p.m., under the police custody and the exact cause of death could not be ascertained. He also opined that the injuries were anti mortem and traumatic. 34. From the inquest report and the Postmortem report, which have been annexed to the affidavit-in-opposition, filed by the Addl. Deputy Commissioner, Karbi Anglong, on behalf of the Deputy Commissioner of Karbianglong District, it appears that the deceased, apart from sustaining swelling injuries in respect of his face, sustained bruises on buttock, both shoulder and back side, knee joints of both legs, buttock and back side. No fracture or other injuries were noticed. 35. Some of the witnesses, as indicated above, examined by the Enquiry Officer, clearly stated that they witnessed the respondent No. 7 assaulting the deceased, after his arrest by the police. 36. Considering the nature of the injuries sustained by the deceased, it cannot be ruled out that the injuries, found in the persons of the deceased, were the result of the alleged assault. However, the respondent No. 7, in his affidavit-in-opposition, contended that the deceased sustained the injuries while running away with a view to evade police arrest. 37. Mr. Birlong Timung @ Singh, who was also arrested, alongwith the deceased, from the same place, supporting the said version of the respondent No. 7, stated that the deceased, while trying to avoid police arrest, sustained the injuries by hitting against a tree. The said statements, made by the PW-7 and the co-accused remained unchallenged. Hence, It cannot ruled out that the deceased had sustained the said injuries due to dashing against a tree and falling at the time of arrest. 38. From the averments made by the respondent No. 7 i.e. the arresting authority, in his affidavit and the statement, made by the co-accused before the Enquiry Officer, it is clearly found that the deceased sustained injuries at the time of his arrest. The public witnesses examined by the Enquiry Officer, indicates that the police officer i.e. the respondent No. 7 had assaulted the deceased. The public witnesses examined by the Enquiry Officer, indicates that the police officer i.e. the respondent No. 7 had assaulted the deceased. Of course the veracity of the evidence given by the said witnesses has not been tested by cross examination. As no opportunity of cross examination has been given to the PW No. 7 i.e. the arresting authority, it will not be safe to draw any adverse inference against the respondent No. 7. However, it has been established that the deceased died during his custody with the police. 39. The Medical Officer of Dokmoka PHC stated that the deceased was taken to the Hospital twice. From the statement of the Medical Officer and his staff, it appears that the police was advised to take the deceased to a higher medical institute for better treatment, but both the co-accused were taken back to the police Station at about 5 p.m. It is also stated that, at about 6.30 p.m., the deceased was again taken to the Hospital and this time he was kept in the hospital due to his deteriorating health condition. But the respondent No. 7 i.e. the In-charge of Dokmoka police O.P. in his affidavit-in opposition as well as in his statement, made before the Enquiry Officer, stated that both the accused persons were directly taken to the Dockmoka PHC, without taking them to the police station and that, though Sri Birlong Timung was released after giving first aid, the deceased was admitted in the Hospital, wherein he was kept till his death. 40. The statement that the deceased was directly taken to the hospital, immediately after his arrest and that the deceased remained in the hospital till his death, stood controverted by the Medical Officer of Dokmoka PHC. 41. The respondent No. 7, in his affidavit- in- opposition annexed a medical report (Annexure-5), issued by the Medical and Health Officer of the Directorate of Health, Karbianglong. The said medical report indicates that both Sri Birlong Timung and the deceased were brought to Dokmoka PHC at 4.00 p.m. for their treatment and that the deceased was admitted in the said PHC, wherein he expired at about 9.00 p.m. due to difficulty in breathing. In the said report, it has stated that the deceased, being put on treatment, was doing fine, but at about 9.00 p.m. he started having difficulty in breathing. In the said report, it has stated that the deceased, being put on treatment, was doing fine, but at about 9.00 p.m. he started having difficulty in breathing. From the said medical report, it appears that the deceased was taken to the hospital at 4.00 p.m. and he stayed there till his death. 42. But the statement, made by the Medical Officer of the said Public Health Centre, before the Enquiry Officer, indicates that the deceased was taken to the hospital twice. According to the said medical officer, though the deceased was taken to the hospital at 4.00 p.m. and despite giving advice for taking him to higher institute for better treatment, the police took the deceased back to the police station at 5.00 p.m., wherefrom he was again brought to the hospital at 6.30 p.m., wherein he expired. In view of the said contradictions, found in the oral statements, made by the Medical Officer and his staff and the said medical report annexed to the affidavit-in-opposition, by the respondent No. 7, it is not clear as to whether the deceased was taken to the hospital twice or once. The statement made by the respondent No. 7, in his affidavit and the medical report, annexed by the respondent No. 7, remained unchallenged. In fact, no additional affidavit has been filed by the petitioner challenging the correctness of the stand taken by the respondent No. 7. 43. From the statement, made by the said Medical Officer, before the Enquiry Officer, it is clearly found that they had advised the police to take the deceased to a higher institute for better treatment, but no immediate steps were taken to take the deceased to a higher hospital for better treatment, as advised by the Medical Officer aforesaid. 44. Admittedly, the deceased was initially taken to the Dokmoka Primary Health Centre, in a critical state of health, at about 4.00 p.m. and he died after about five and half of an hour. 45. In view of the above, there was no sufficient reason for not shifting him to a higher medical institute for better treatment In fact, the deceased was kept in Dokmoka PHC, without providing the required better treatment i.e. proper medical treatment. This lapse, on the part of the State machinery, probably led to the death of the deceased. 46. 45. In view of the above, there was no sufficient reason for not shifting him to a higher medical institute for better treatment In fact, the deceased was kept in Dokmoka PHC, without providing the required better treatment i.e. proper medical treatment. This lapse, on the part of the State machinery, probably led to the death of the deceased. 46. The medical evidence, as revealed from the post mortem examination of the dead body of the deceased does not indicate the cause of death of the deceased. 47. As discussed above, in view of the attending facts and circumstance, there is no difficulty in understanding that the deceased died during the police custody for the lapse, on the part of the State machinery, in providing proper medical care and treatment. 48. Now, the question is whether the State is liable to pay compensation for the death of the deceased in custody, due to the fault on the part of its employees. 49. In the case of Nilabati Behera (Smti) Alias Lalita Behera (Supra), the Supreme Court observed: "Para 17: It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. 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 by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights." 50. In the case of D.K. Basu (Supra), the Supreme Court observed: "Para 9: The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the court, as the custodian and protector of the fundamental and the basic human rights of the citizens. Custodial violence, including torture and deaths in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental. Para 35(8): The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well." 51. In the case of Chairman, Railway Board and Others (Supra), the Supreme Court observed: "Para 32: The word "LIFE" has also been used prominently in the Universal Declaration of Human Rights, 1948. Director, Health Services should prepare such a panel for all tehsils and districts as well." 51. In the case of Chairman, Railway Board and Others (Supra), the Supreme Court observed: "Para 32: The word "LIFE" has also been used prominently in the Universal Declaration of Human Rights, 1948. (See Article 3 quoted above.) The fundamental rights under the Constitution are almost in consonance with the rights contained in the Universal Declaration of Human Rights as also the Declaration and the Covenants of Civil and Political Rights and the Covenants of Economic, Social and Cultural Rights, to which India is a party having ratified them, as set out by this court in Kubic Darusz v. Union of India. That being so, since "LIFE" is also recognized as a basic human right in the Universal Declaration of Human Rights, 1948, it has to have the same meaning and interpretation as has been placed on that word by this court in its various decisions relating to article 21 of the Constitution. The meaning of the word "life" cannot be narrowed down. According to the tenor of the language used in Article 21, it will be available not only to every citizen of this country, but also to a "person" who may not be a citizen of the country. Para 33: Let us now consider the meaning of the word "LIFE" interpreted by this court from time to time. In Kharak Singh v. State of U.P., it was held that the term "life" indicates something more than mere animal existence. (See also State of Maharashtra v. Chandrabhan Tale). The inhibitions contained in Article 21 against its deprivation extend even to those faculties by which life is enjoyed. In Bandhua Mukti Morcha v. Union of India it was held that the right to life under Article 21 means the right to live with dignity, free from exploitation. (See also Maneka Gandhi v. Union of India and Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni. Para 34: On this principle, even those who are not citizens of this country and come here merely as tourists or in any other capacity will be entitled to the protection of their lives in accordance with the constitutional provisions. They also have a right to "life" in this country. Thus, they also have the right to live, so long as they are here, with human dignity. They also have a right to "life" in this country. Thus, they also have the right to live, so long as they are here, with human dignity. Just as the state is under an obligation to protect the life of every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizens." 52. In the case of K.L. Thariktha (supra), a Division Bench of this Court observed: "Para 19: The Apex Court in Rudul Sah v. State of Bihar, (1983)4 SCC 141 had considered the important question as to whether the Apex Court in exercise of its jurisdiction under Article 32 can pass an order for payment of money as compensation for deprivation of fundamental rights; and answered the question, thus, while allowing award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a 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. The ratio laid down in Rudul Sah's case (supra) was also followed in Bhim Singh v. State of J & K, (1985)4 SCC 677 . Para 20: The Apex Court in Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 held that "the public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by (the Supreme Court) or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system which aims to protect their interests and preserve their rights. The purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting 'compensation' in proceedings under Article 32or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood as it is generally understood in a civil action for damages under the private law but in broader sense of providing relief by an order of making 'monetary award' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort. Para 21: Again the Apex Court in D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 (para 44 and 45) held: "44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalizing the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen." "45. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for Redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at the perhaps the only effective remedy to apply balam to the wounds of the family members of the deceased victim who may have been the breadwinner of the family." 53. In the case of Fatema Begum (Mustt) & Anr. v. Union of India & Ors., reported in 2003 (3) GLT 163, the petitioner's husband was taken into custody by Army of 15 Dogra Regiment and his dead body with bullet injuries was found. The Army tried to make out a case of encounter. The court, while granting compensation, observed, "he State has no alternative but to compensate them." 54. v. Union of India & Ors., reported in 2003 (3) GLT 163, the petitioner's husband was taken into custody by Army of 15 Dogra Regiment and his dead body with bullet injuries was found. The Army tried to make out a case of encounter. The court, while granting compensation, observed, "he State has no alternative but to compensate them." 54. In the case of Narmada Bai v. State of Gujarat & Ors., reported in (2011) 5 SCC 79 , the Supreme Court laid stress for free and fair investigation by CBI, in the case of encounter death by the State police. 55. In the case of Rubabbuddin Sheikh v. State of Gujarat & Ors., reported in (2010) 2 SCC 200 , the Supreme Court observed that the investigation should not only be fair but should also seem to be fair for instilling faith confidence in the mind of the victims' their relatives as well as general public. The principle laid down in the said case is that the investigation is to be done by an independent agency. In the said case, as allegation of killing was brought against the State police authority the Supreme Court directed to hand over the case to CBI authorities to investigate all aspects of the case relating to killing of Sohrabuddin and his wife Kousarbi including the alleged possibility of a large conspiracy. 56. The Supreme court in the case of Nilbati Baherea (Supra), observed as follows: "31. It is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except according to procedure established by law. There is great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except according to procedure established by law. There is great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore, his interest in the limited liberty left to him is rather precious. The Duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible according to the procedure established by law. I agree with Brother Verma, J. that the defence of "sovereign immunity" in such cases is not available to the State and in fairness to Mr. Altaf Ahmed it may be recorded that he raised no such defence either." 57. In view of the above principles laid down by the Supreme Court, the State cannot escape its duty to take care of the person in custody. The State is responsible, if the person in police custody is deprived of his life, except according to the procedure established by law. The State is vicariously liable for the acts of public servants, if they infringe fundamental right to the life of a citizen, more particularly the person in custody. The victim or his legal representative, for the lapse or inaction resulting violation of the right guaranteed by 21 of the Constitution of India is entitled to receive compensation from the State, which can in turn, recover the compensation amount from the wrong doer/wrong doers. 58. The term 'right to life' of a citizen in custody includes his right to get proper medical treatment, food and living condition, for survival with dignity during the period of such custody. Failure or negligence to provide proper medical treatment to a person, who dies in custody, without getting proper medical care, amounts to violation of right to life. In such a case, the State can't has the liability to pay compensation. 59. As held in the cases of D.K. Basu (Supra) and Nilabati Behra (Supra), aforesaid, the State has the liability for the act or lapse or omission to do, resulting the death of a person in custody. In such a case, the State can't has the liability to pay compensation. 59. As held in the cases of D.K. Basu (Supra) and Nilabati Behra (Supra), aforesaid, the State has the liability for the act or lapse or omission to do, resulting the death of a person in custody. The gravity of offence, alleged to be committed by the deceased person, cannot dilute the said liability. Law does not permit any authority to violate a person's right to life and act beyond the parameter of law, without due process of law. 60. The deceased, who was arrested by police, at about 11.00 a.m., sustained, injury on his person. He was taken to the Public Health Centre at Dokmoka at about 4.00 p.m., wherein the attending Medical Officer had advised his shifting to a higher institute for better treatment. Had the deceased been immediately shifted to a higher institute, as advised by the Medical Officer, probably, the life of the deceased could have been saved. But for the reasons best known to the concerned Police officer (arresting authority), no steps was taken in this regard. Ultimately, the deceased expired at about 9.00 p.m., virtually without getting proper medical aid. There is nothing, on record, to show that the State machinery had done anything to provide required medical treatment for saving the life of the deceased, who was struggling for life from 4.00 pm. to 9.00 p.m. in the Public Health Centre. This is a clear case of failure to protect the life of a person in custody, by denying him proper medical care. This lapse or inaction, on the part of the State machinery has resulted the infringement of the fundamental right guaranteed by Article 21 of the Constitution of India. 61. In view of the above, considering the entire aspects of the matter, we find it to be a case of custodial death, for which the State must pay compensation. 62. It is well settled that an award of compensation is proper and effective remedy for redressing infringement of fundamental right under Article 21 of the Constitution of India. 63. Though the writ petitioner has not mentioned the exact income of the deceased, it has been stated that the deceased, who was aged about 35 years, was a cultivator by profession. There is no dispute to the said fact. 64. 63. Though the writ petitioner has not mentioned the exact income of the deceased, it has been stated that the deceased, who was aged about 35 years, was a cultivator by profession. There is no dispute to the said fact. 64. Considering the age of the deceased, it can be safely held that he was capable to earn, at least, Rs. 150/- to Rs. 200/- per day and thus, his income, per month, in all probability, was not less than Rs. 5,500/- 65. Therefore, keeping in mind the age and earning capability of the deceased, we are of the considered opinion that for ends of justice it would be just and proper to grant compensation, amounting to Rs. 3,00,000/- (Rupees three lakhs) in favour of the legal representative(s) of the deceased. Accordingly, we direct the State Government to pay Rs. 3,00,000/- (Rupees three lakhs) in favour of the legal representative(s) of the deceased, as compensation for the custodial death of the deceased. The said compensation be paid within a period of three months from the date of this order. The State Government shall be at liberty to cause an independent inquiry and realise the said amount from the erring public servant(s), after fixing responsibility. 66. With the above observations and directions, this writ petition stands allowed. No costs. Petition Allowed.