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2015 DIGILAW 573 (TRI)

Sukiya Khatun v. Union of India

2015-07-22

DEEPAK GUPTA, S.C.DAS

body2015
ORDER 1. These three writ petitions are being disposed of by a common judgment since the issues of fact and the law involved are identical. 2. In the writ petition being W.P. (C) No. 347 of 2010 Smti. Sukiya Khatun is the petitioner and she states that she and her husband Mahabur Rahaman were returning from the jungle after collecting wooden logs. At that time Smt. Rihana Khatun (petitioner in W.P. (C) No. 348 of 2010) was also returning with her husband after collecting wooden logs. At that time 6/7 BSF personnel led by respondent No. 5 who were on patrolling duty tried to outrage the modesty of Rihana Khatun. When Amir Hussein, husband of Rihana Khatun protested one of the BSF personnel fired at him and shot him in the head. The husband of the Rihana Khatun fell down in a pool of blood. Hearing the sound of gun shots Mahabur Rahaman, husband of the petitioner in W.P. (C) No. 347 of 2010 who was working nearby came to help Rihana Khatun but on seeing him the BSF personal fired on him and he was also shot dead. Rihana Khatun has filed W.P (C) No. 348 of 2010 in which allegations are similar in nature. 3. In W.P. (C) No. 349 of 2010 the petitioner is Smt. Swapna Begum and her case is also similar. She also states that her husband Joynal Hossein had gone to jungle to collect wooden logs and when the BSF personal tried to outrage the modesty of Rihana Khatun, first her husband was shot dead when he protested, thereafter Mahabur Rahaman who came to save Rihana Khatun was shot dead and when the husband of the petitioner, Jounal Hossein who was working nearby came on the spot he was also shot dead. It appears that Swapna Begum was not present on the spot. 4. The occurrence is stated to have taken place at 11-11.30 am. One FIR was lodged at the instance of the petitioners herein and that is against the BSF personnel. On the same date about 7.30 pm another FIR was lodged at instance of the BSF personnel against as many as 10 (ten) persons with regard to the same incident. 5. The occurrence is stated to have taken place at 11-11.30 am. One FIR was lodged at the instance of the petitioners herein and that is against the BSF personnel. On the same date about 7.30 pm another FIR was lodged at instance of the BSF personnel against as many as 10 (ten) persons with regard to the same incident. 5. The stand of the respondent-BSF and its officers is that the authorities had prior information that some smuggling activities were going on in the area and a special operation was launched under the command of respondent No. 5, Sri R.G. Sharma and a police party headed by Subedar, R.G. Sharma and comprising of Constable, S.K. Rajak, Anil Ram, Dipak Kumar Sahu and Constable-driver, Nemai Roy left for village Dupuriabandh, Police Station-Kalamchoura in a Maruti Gypsy. When the BSF party reached the above village, a large number of villagers gathered together and protested on seeing the BSF personal. They started shouting “kill…..kill” and encircled the BSF officials. It is further the case of the BSF officials that 30 to 40 bundles of ganja were lying at the spot and this ganja was to be smuggled to Bangladesh since the border with Bangladesh is only about 1.5 kilometers from the place of occurrence. The BSF officials tried to seize the said ganja. At that time a mob of about 150-200 civilians carrying fire arms and sharp edged weapons attacked the BSF party. One of the persons in the crowed fired at the BSF party and Nemai Roy who was the driver of the BSF Jeep was shot and wounded seriously. It is alleged that some persons in the crowed tried to snatch the rifle of Constable Dipak Kumar Sahu and thereafter Dipak Kumar Sahu initially fired 2/3 rounds in the air but when the attackers persisted in the attack he again fired some rounds. In total he fired 14 rounds and with great difficulty they evacuated the injured constable driver to Agartala. 25 kg of ganja which was seized was also deposited with the police. It is not disputed by the respondents that three persons that is the husbands of the three petitioners died in the firing. 6. In total he fired 14 rounds and with great difficulty they evacuated the injured constable driver to Agartala. 25 kg of ganja which was seized was also deposited with the police. It is not disputed by the respondents that three persons that is the husbands of the three petitioners died in the firing. 6. The case of the petitioners is that these three deceased persons namely, Mahabur Rahaman, Amir Hussei and Joynal Hossein were killed by the BSF personnel in cold blood after these three persons protested when the BSF officials tried to outrage the modesty of Rihana khatun. The case of the BSF is that the deceased and other villagers surrounded the BSF party, threatened to kill them and seriously injured the driver of the Gypsy and the firing was resorted to in self defence. There are two conflicting versions before us. One is the version of the petitioners that the BSF officials tried to outrage the modesty of the Rihana Khatun and when her husband came to help her he was shot dead. Thereafter Mahabur Rahaman, and Joynal Hossein came to help her was also shot dead. On the other hand, according to BSF officials it was they who were surrounded by a mob of 150 to 200 persons who were armed and who in fact resorted to firing in which the driver of the BSF Jeep sustained bullet injury. Though there is dispute with regard to the manner of the occurrence, there is no dispute with regard to death of these three individuals and there is no dispute that the driver of the BSF was also shot at and received bullet injury. 7. In the FIR filed by the BSF charge was framed against as many as nine persons and they have been acquitted vide judgment dated 05.06.2013. We have carefully gone through this judgment. In this judgment the nine persons have been acquitted and we can take judicial notice of such acquittal. But the judgment does not say a word as to why they are acquitted except for recording that there was no evidence against them. The judgment is a very shoddy judgment wherein in a sessions trial the Sessions Judge has acquitted nine persons without even writing in his judgment what were the charges framed against the accused. But the judgment does not say a word as to why they are acquitted except for recording that there was no evidence against them. The judgment is a very shoddy judgment wherein in a sessions trial the Sessions Judge has acquitted nine persons without even writing in his judgment what were the charges framed against the accused. The judgment is a totally non-speaking judgment and cannot used for any purpose, least of all as a piece of evidence. 8. On the other hand the BSF authorities have placed reliance on the General Security Force Code (GSFC) proceedings which were initiated against the Dipak Kumar Sahu, the person who admittedly fired the said bullets. In the order of the GSFC evidence has been discussed and after discussion of evidence the GSFC has concluded that the accused Dipak Kumar Sahu fired from his rifle in exercise of his right of private defence and therefore, it is not a case of murder. Even with regard to the alleged outraging of the modesty of Smt. Rihana Khatun the GSFC has clearly held that even before the GSFC Rihana Khatun had stated that the BSF personnel had not tried to outrage her modesty but they had grabbed her hand when she was turning away after they had asked her to whom the ganja belongs. We may also note that in the writ petitions other than using the phrase outraging the modesty of Rihana khatuan not a word has been stated as to how the modesty of Rihana Khatun was being outraged. 9. We are not going into the merits of the case. There are allegation and counter allegations. These cannot be decided without recording evidence. The death of the three persons may be admitted but the genesis of the occurrence is disputed. Merely because death is caused during firing is not by itself a ground to award compensation. Compensation can only be awarded if it is found that either excess force was used or that firing was resorted to when it was not required. The GSFC which is the competent Court has come to a conclusion that the firing was warranted in the facts of the case. These findings cannot be brushed aside in a writ petition. 10. Compensation can only be awarded if it is found that either excess force was used or that firing was resorted to when it was not required. The GSFC which is the competent Court has come to a conclusion that the firing was warranted in the facts of the case. These findings cannot be brushed aside in a writ petition. 10. The Union of India can be held liable only because of the wrongful act of its employee and unless that employee is made a party the Union of India cannot be held responsible. In the present petition other than respondent No. 5 none of the other members of the BSF party especially Dipak Kumar Sahu who is alleged to have resorted to firing have been made party. We cannot give a decision against Dipak Kumar Sahu holding that Dipak Kumar Sahu did not have the right to private defence in his absence. We cannot condemn a person unheard because any Court is to hold that any compensation is to be paid due to the illegal act of the employee though the employer may be liable to compensate the person to whom the wrong has been done the employer also has a right to take action against the employee and to recover the amount from him. Therefore, the employee must have a chance to be heard in such proceedings. 11. We are clearly of the view that these matters cannot be decided in writ proceedings. Therefore, the present writ proceedings are disposed of with liberty reserved to the petitioners to file appropriate civil suits, if they are so advised, in the Court of competent jurisdiction. It is also made clear that in case such suit is filed then all the persons of the BSF party who have alleged to have outraged the modesty of Rihana Khatun must be made defendants in the suit. If any suit is filed, all defences will be open to the respondents including the defence that the finding given in the GSFC cannot be challenged in civil proceeding. The respondents can also contest the suit on all other grounds available including limitation. 12. The petitions are disposed of in the aforesaid terms. No order as to costs.