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2018 DIGILAW 1 (MAN)

Elangbam Ibohal v. Union of India

2018-01-11

KH.NOBIN SINGH, N.KOTISWAR SINGH

body2018
JUDGMENT : N. Kotiswar Singh, J. 1. Heard Mr. L. Somendro Roy, learned counsel for the petitioner. Heard also Mr. S. Samarjeet, learned CGC for the Union Respondents and Mr. RS Reisang, learned Sr. GA assisted by Mr. Sh. Shyam Sharma, learned GA for the State. The present petition has been filed by one Elangbam Ibohal Singh alleging that his son namely, Elangbam Kiranjit Singh was killed in a fake encounter between the combined team of Manipur Police Commandos and 23 Assam Rifles. 2. It is alleged that on 23.04.2009 when his son Elangbam Kiranjit Singh was sent to search for the family's missing cow on a bicycle on the hill side of Thoubal Khunou Heibiyai Chingkhong, his son did not return. It was found that the mobile phone of his son was switched off and since there was a Thabal Chongba programme in the neighbouring village, the petitioner's family thought that he might be attending the said Thabal Chongba. However, as he did not return that night, the petitioner along with some other relatives went to the Thoubal Police Station on the next day on 24.04.2009 to make an inquiry if his son was arrested. However, it was informed that there was no information of arrest by the police of any person of the name of Kiranjit. Later, in the evening of 24.04.2009, the petitioner was informed that the dead body of his son Elangbam Kiranjit Singh was found lying at the Mortuary of the Regional Institute of Medical Sciences (RIMS) Hospital, Imphal. Later, the petitioner learnt that his son was killed by the combined team of Thoubal District Police Commandos and 23 Assam Rifles personnel at Laikot Ching area, Imphal East district in a fake encounter. 3. It is the case of the petitioner that the petitioner came to know that an FIR was lodged being FIR No. 31(4)2009 LLI P.S. u/s. 307/34 IPC, 25(1-C) A. Act & 20 UA (P) Amnd. Act, 2004 in which it has been stated that on receiving information regarding movement of 2 (two) underground persons with weapons in certain area in between village Shabungkhok and Laikot, the combined team of CDO, Thoubal led by the informant with a column of 23 Assam Rifles laid an ambush. While laying ambush, the combined team saw 2 (two) persons moving towards them in a suspicious manner. While laying ambush, the combined team saw 2 (two) persons moving towards them in a suspicious manner. On being challenged, the said 2 (two) persons opened fire and in the retaliating fire which continued for about 10-15 minutes one suspected UG was shot down but the other managed to escape. Subsequently, a 9mm Auto pistol with three fire cases and live rounds and one round in the chamber were recovered from the site. It has been however, alleged by the petitioner that no such encounter had taken place as the petitioner's son was picked up by the police and he was killed by the security forces and accordingly has filed this petition seeking for grant of compensation as well as holding of inquiry by the CBI or any other authority. 4. The Respondents have filed their respective affidavits-in-opposition denying the allegations. 5. Accordingly, in view of the conflicting versions of the cause of death of the petitioner's son, this Court by an order dated 11.8.10 directed the District Judge, Manipur West to carry out an enquiry relating to the incident. As per direction of this Court, the enquiry was duly held and the learned District Judge, Manipur West submitted his report dated 10.08.2012. Copies of the said report had been made available to learned counsel for all the parties so as to enable them to make their respective submission on such report. The aforesaid report submitted by the learned District Judge, Manipur West has made the finding that the deceased Elangbam Kiranjit Singh appeared to have been picked up by the Police Commandos personnel of Thoubal Unit and later taken to Laikot and Shabungkhok area by the combined security team under an arrangement between Jamadar, Hollal Haokip, Commander of the Thoubal CDO, Team and Maj. Asuman Badoni on 23rd Assam Rifles and killed in a fake encounter. 6. We have heard learned counsel for the parties as well as gone through the enquiry report. 7. Two issues are framed by the District Judge, Manipur West while making the enquiry: 1. Whether Elangbam Kiranjit Singh, son of the petitioner was killed on 24.3.09 by a combined team of Thoubal District Commandos and 23rd Assam Rifles personnel at Laikot Ching Area, Imphal East District in a fake encounter as alleged by the petitioner? 7. Two issues are framed by the District Judge, Manipur West while making the enquiry: 1. Whether Elangbam Kiranjit Singh, son of the petitioner was killed on 24.3.09 by a combined team of Thoubal District Commandos and 23rd Assam Rifles personnel at Laikot Ching Area, Imphal East District in a fake encounter as alleged by the petitioner? OR Whether Elangbam Kiranjit Singh, son of the petitioner was killed on 24.04.2009 at about 0615 hours during the encounter in the joint operation launched in general area of Laikot by a combined team of Thoubal District Commandos and 23rd Assam Rifles personnel to neutralize or to apprehend terrorists as alleged by the respondents? 2. What are the other facts and circumstances leading to the killing of Elangbam Kiranjit Singh, son of the petitioner on 24.4.2009 by a combined team of Thoubal District Commandos and 23rd Assam Rifles personnel at Laikot Ching Area Imphal East District? 8. The petitioner examined 4 (four) witnesses (PWs) including himself in support of his case and Respondents also examined 5 (five) witnesses. 9. The learned District Judge, Manipur West, after considering the evidences on record, came to the conclusion that the petitioner's son Elangbam Kiranjit Singh was killed by the combined team of Thoubal District Commandos and 23rd Assam Rifles personnel at Laikot Ching Area, Imphal East on 24.3.2009 but the existence of an encounter as claimed by the Respondents has not been proved in para 53 of the report which is reproduced herein below: "53. On the basis of the above discussion and evidence on record in my considered view late Elangbam Kiranjit Singh, son of the present petitioner was killed by the combined team of Thoubal CDO Unit and 23rd A.R. personnel at Laikot Shabungkhok area at a distance of 4 km. from the Yaingangpokpi A.R. Post at an uninhabited place on 24.4.2009 at about 6 a.m. However, the existence of an encounter between the Combined Team of Thoubal CDO Unit and 23rd A.R. personnel and 2 UGs. at the area has not been proved. Hence', the present issue is decided in favour of the petitioner." Accordingly, the first issue was decided in favour of the petitioner. As regards the second issue, the learned District Judge, Manipur West, after considering the evidences on record, made the following conclusion at para 63 of the report which is reproduced herein below: "63. Hence', the present issue is decided in favour of the petitioner." Accordingly, the first issue was decided in favour of the petitioner. As regards the second issue, the learned District Judge, Manipur West, after considering the evidences on record, made the following conclusion at para 63 of the report which is reproduced herein below: "63. The sequence of event that come out from the above evidence points out to the conclusion that Kiranjit Singh might have been picked up by Police Commandos personnel in the late afternoon of 23.4.2009 from the inter-village-road running at the foot hill of Thoubal Khunou Heibiyai Ching. The conclusion is strengthened by the facts that late Kiranjit Singh was a member of KCP (MC) L. Khuman Group as per the records maintained by the police as stated by PW-4." Accordingly, the learned District Judge, Manipur West made the following finding in para 64 of the report which reads as follows: "64. On the basis of the above discussion and findings in Issue No. 1, in my considered view and in the light of the evidence on records, the deceased, Elangbam Kiranjit Singh appeared to have been picked up by the Police Commandos personnel of Thoubal Unit and taken to Laikot and Shabungkhok area by the combined security team under an arrangement between Jamadar, Hollal Haokip, commander of the Thoubal CDO, Team and Maj. Asuman Badoni of 23rd Assam Rifles and killed in a fake encounter." 10. We have examined the report and also heard learned counsel for the parties. 11. The conclusion arrived at by the learned District Judge, Manipur West is based on the evidences produced before the Court and it cannot said that the conclusion arrived at by the learned District Judge, Manipur West is not based on evidences produced before the Court. This Court, of course, is not sitting as an appellate court examining the legality of the conclusion arrived at by the learned District Judge as the primary purpose of directing to hold an enquiry was to ascertain the circumstances in which the petitioner's son died. This Court, of course, is not sitting as an appellate court examining the legality of the conclusion arrived at by the learned District Judge as the primary purpose of directing to hold an enquiry was to ascertain the circumstances in which the petitioner's son died. On the basis of the materials on record and also supported by the finding of the learned District Judge, Manipur West, we have no hesitation in drawing the conclusion that a prima facie case has been made out against the Respondents that the petitioner's son died at their hands and that too, not in an encounter. We have refrained from making any detail examination as to the evidences on record as to who actually caused the death of the petitioner's son, in view of the submission made by Mr. L. Somendro Roy, learned counsel for the petitioner that the CBI has already made an enquiry in terms of the order of the Hon'ble Supreme Court concerning this case, as the said enquiry will ultimately reveal as to who were responsible for the death of the petitioner's son. The Hon'ble Supreme Court in respect of the death of Elangbam Kiranjit Singh, in their order dated 04.04.2013 passed in Writ Petition (Crl.) No. 129 of 2012 (Extra Judl. Exec. Victim Families Assn. & Anr. v. Union of India & Anr.) recorded the finding of the Commission constituted by the Supreme Court relating to alleged encounter deaths in which the case of Elangbam Kiranj it Singh was also taken up. The Hon'ble Supreme Court accepted the finding of the Commission that even if the case put forth by the complainant cannot be accepted, the case put forth by the security forces cannot also be accepted because they exceeded their right of private defence. The Commission was of the opinion that the incident, in question, cannot be justified on the ground of self-defence. The Commission further found that there was no adverse antecedents against the deceased. Therefore, in view of the above position, we leave it to the concerned investigating authority to make the necessary investigation relating to the death of Elangbam Kiranjit Singh. The Commission was of the opinion that the incident, in question, cannot be justified on the ground of self-defence. The Commission further found that there was no adverse antecedents against the deceased. Therefore, in view of the above position, we leave it to the concerned investigating authority to make the necessary investigation relating to the death of Elangbam Kiranjit Singh. However, as the learned District Judge, Manipur West has returned a finding on the basis of an enquiry held in its report dated 10.10.2012 that the petitioner's son appeared to have been killed in a fake encounter, we direct the Respondents to pay a sum of Rs. 7 lakhs to the petitioner which is to be shared equally by the State of Manipur (Respondents 3, 4, 5 and 6) as well as by the Union Respondents (Respondents No. 1 and 2). The aforesaid amount shall be paid within a period of 4 (four) months from today. The amount may be deposited to the Registry of this Court which will in turn be credited to the Individual Bank account of Elangbam Ibohal Singh, the petitioner, which is to be opened in a Scheduled Bank. Petition stands allowed with the above observation and direction.