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2018 DIGILAW 21 (MAN)

Sapam Subol Singh v. Union of India

2018-05-22

N.KOTISWAR SINGH, RAMALINGAM SUDHAKAR

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JUDGMENT : N. Kotiswar Singh, J. Heard Mr. L. Somorendro Roy, learned counsel for the petitioner as well as Mr. S. Samarjit, learned CGC for the Union respondents. 2. The present petition has been filed by the father of one deceased Sapam Gitchandra Singh, who at the relevant time was about 23 yrs old. The plea of the petitioner is that his son, while staying with his elder sister received a call in his mobile on 25.5.2009 and left his house thereafter. However, he did not return home that night. The next day, i.e. on 26.5.2009, the petitioner was informed by his daughter that the petitioner's son, who was staying in her house, did not return the last night. Thereafter, he started searching for his missing son. However, as there was a general strike in the State in connection with killing of one Professor Islamuddin of Manipur University, he could not make any extensive search. Unfortunately, on the next day on 27.5.2009, he was informed that the dead body of his son was lying in the mortuary of RIMS hospital. On reaching there, it was confirmed that the dead body was, indeed, his son's. There, he was told that his son was killed by the personnel of 34 Assam Rifles in an encounter at Thoubal Khunou area. Subsequently, the petitioner came to know that one Subedar R.B. Thapa of 34 (Assam Rifles) AR lodged a report with the Office-in-Charge, Thoubal P.S. on 25.5.2009 at about 5.05 pm, that on receiving a report regarding movement of 3/4 armed cadres suspected to be members of PREPAK between Thoubal Khunou and Poiroukhongjin, the 34 AR immediately launched an operation at about 1515 hrs on 25.5.2009. It was also reported that the presence of some armed cadres dropped by a white maruti car at the foot hill of Thoubal Khunou was confirmed. Thereafter, the area was cordoned of and when the personnel of AR approached the site, there was a heavy firing by the insurgents and there was retaliation by the AR personnel and after about 15 minutes of firing, the Assam Rifles team gunned down two armed UG cadres at 1600 hrs. Certain arms and ammunition were allegedly recovered from the two slain bodies. 3. Certain arms and ammunition were allegedly recovered from the two slain bodies. 3. As the petitioner did not believe the said version, he filed a written complaint to the Director General of Police, Manipur on 06.6.2009 and on 07.6.2009 against the personnel of 34 AR for killing his son. As no action was taken by the Director General of Police, having no other alternative, the petitioner filed this petition seeking for a direction for payment of compensation for the alleged illegal and unjustified killing of his son and also for a direction to the Central Bureau of Investigation (CBI) for investigating, etc. 4. The allegations of the petitioner were denied by the Assam Rifles respondents who reiterated the same version of the cause of the death of the petitioner's son as mentioned in their complaint lodged before the police station. The State respondents also filed an affidavit-in-opposition supporting the version of the Assam Rifles. 5. In view of the conflicting versions of the circumstances under which the petitioner's son died, this Court by an order dated 01.6.2010 directed the learned District & Sessions Judge, Manipur West to conduct an enquiry to ascertain the facts leading to the death of the petitioner's son on 25.5.2009 and submit a report within six months. The learned District & Sessions Judge, Manipur West, after conclusion of the enquiry, submitted his report, which was made available to all the counsel appearing for the respective parties. 6. Because of certain pending matters before the Hon'ble Supreme Court where similar issues were raised, the consideration of the matter had been adjourned. Later on, it was submitted by the parties that the matter can be heard and disposed of on the basis of the enquiry report. 7. We have heard the learned counsel for the contesting parties and also perused the report submitted by the learned District & Sessions Judge, Manipur West. 8. The learned District & Sessions Judge, Manipur West, on the basis of the pleadings of the parties based on the writ petition and the affidavits-in-opposition filed by the respondents framed the following issues on 20.11.2010:- "1. Whether late Sapam Gitchandra Singh was killed at Thoubal Khunou area on 25.05.2009 by the personnel of 34 Assam Rifles after picking him up somewhere from Wangkhei area of Imphal East District? 2. Whether late Sapam Gitchandra Singh was killed at Thoubal Khunou area on 25.05.2009 by the personnel of 34 Assam Rifles after picking him up somewhere from Wangkhei area of Imphal East District? 2. Whether late Sapam Gitchandra Singh was killed in an encounter at Thoubal Khunou by the personnel of 34 Assam Rifles?" 9. In support of his case, the petitioner produced and examined 7 witnesses and exhibited 14 exhibits. The respondents No. 1 to 4, in support of their cases, examined three witnesses. 10. The learned District & Sessions Judge, Manipur West, on appraisal of the evidences recorded and produced before the Court came to the conclusion and gave the following findings as follows:- "38. From the discussion above and from the circumstantial evidence, I am of the considered view that the respondents No. 4 has failed to prove that there had been an encounter between the 34 Assam Rifle troops on one hand and underground cadres of PREPAK on the other at Thoubal Khunou foot hill on 25.05.2009 at about 3:30 p.m. wherein the son of the petitioner was killed. Over and above, the respondents have not disputed the opinion of PW-6, Dr. Ksh. Manglem Singh who held post mortem examination over the dead body of Sapam Gitchandra Singh to the effect that the cause of death of Sapam Gitchandra Singh was due to internal bleeding following multiple gun-shot injuries leading to shock and death and homicidal in nature and that external injury at item No. 1 was a contact shot. So I have no hesitation to come to the conclusion that the deceased was fired from a close range and not from a distant range of about 50/60 meters by the AR personnel and killed. 39. From the findings above, the two issues are decided in favour of the petitioner and against the respondents No. 1 to 4." 11. As regards the Issue No. 1 referred above, the learned District & Sessions Judge, Manipur West referred to the evidence of PW No. 2, another sister of the deceased and the daughter of the petitioner, who stated that her residence was located at a distance of about one kilometre from the place of occurrence at Thoubal Khunou hill area and that she heard 3/4 rounds of gun shots with an intermittent firing from the direction of Thoubal Khunou foot hill at about 3 pm of 25.5.2009. She also deposed that at about 4 pm, she learnt from a villager from her village that two persons were killed at Thoubal Khunou hill area after bringing them there by the Army. However, she did not bother to find out more about the incident, as she did not know that her brother, S. Gitchandra Singh was one of the victims. Next day, she was informed in the morning by her father that the her younger brother did not return to the house of her sister at Wangkhei where he was staying and enquired from her if the deceased had come to her house. Since there was a general strike on 26.5.2009 in Manipur in connection with the death of one Prof. Md. Islamuddin of Manipur University, she could not venture out to enquire about the whereabouts of her deceased brother. However, she stated that she later came to know about the death of her brother. She also stated that on the day of "Asthi" (5th day of the death ceremony) she had gone to the place of occurrence where she was told by the villagers from the nearby village that there was no encounter at the Thoubal Khunou area and the two youths were brought by the Army and were shot. 12. There is another witness, namely, PW No. 3, Sanasam Ongbi Premila Devi, a relative of PW No. 2, who stated that in the last week of May, 2009 at about 3 pm, while she was waiting for a passenger bus at the road side in front of her husband's workshop at Thoubal Okram Wangma Taba, she saw two army vehicles consisting of a Gypsy and bullet proof vehicle coming from Imphal direction which then veered towards the crossing of Thoubal Khunou Inter Village Road. After about 20/25 minutes, she heard 3/4 rounds of gun shots with intermittent firing from Thoubal Khunou hill side. She later learnt that two persons had died in the Thoubal Khunou hill area. Later on, she also saw one vehicle where the death bodies were carried and the said vehicle had stopped near her husband's workshop filling fuel and she was told by the people who had seen the dead body that one of dead bodies was that of Sapam Gitchandra Singh, the deceased. 13. Later on, she also saw one vehicle where the death bodies were carried and the said vehicle had stopped near her husband's workshop filling fuel and she was told by the people who had seen the dead body that one of dead bodies was that of Sapam Gitchandra Singh, the deceased. 13. There is another witness PW No. 4, namely, Thokchom Ongbi Sonia Devi, a resident of Thoubal Haokha Mamang Leikai, who deposed that while she was working in the paddy field along with six other women, she saw two army vehicles consisting of one white Maruti Gypsy and a bullet proof army vehicle coming from Imphal side and these vehicles stopped near a hill slope. She also saw one DI Tata coming towards the hill side and she and other women folk were walking near the place, they were signalled by the police present there to leave the place/paddy field and when they reached the main road, they heard gun firing sounds of 3/4 with short intervals. Later on, in the evening, she learnt that two youths were killed by the Assam Rifles at the said Thoubal Khunou hill area. The aforesaid witness, Thokchom Sonia Devi is an independent witness and a villager and a resident of Thoubal Haokha Mamang Leikai near the aforesaid place of occurrence. 14. The Doctor who conducted the post mortem over the dead body of the deceased on 27.5.2009 at Lilong Mortuary was also examined. He found the following external injuries on the body. "1. One bullet entry wound ( 1cm x 1 cm) contact shot, 7 cm from Midline, 101 cm above right heel passing backward through the abdominal organs and existing through a wound 6 cm x 3 cm on right side of the abdomen, 17 cm from midline, 110 cm above right heel. 2. One bullet entry wound (1cm x 1 cm) on the right and back side of the body, 5 cm from midline, 97 cm above rt. heel passing through the abdominal organs and existing through a wound (3cm x 2cm) on the right side of the abdomen,13 cm from midline 109 cm above right heel. 3 One bullet entry wound (1cm x 1cm) on the right glutial region 4cm from midline 81 cm above right heel." The said Doctor further deposed that, "On internal examination I found no injury in the Head, Neck, Spinal Column and chest. 3 One bullet entry wound (1cm x 1cm) on the right glutial region 4cm from midline 81 cm above right heel." The said Doctor further deposed that, "On internal examination I found no injury in the Head, Neck, Spinal Column and chest. I found the following injuries in the abdomen. There were laceration in the small intestine, large intestine, liver and Gall Bladder, Urinary Bladder. In my opinion the cause of death was internal bleeding following multiple gun-short injuries leading to shock and death. Homicidal in nature. Death occurred within 3 to 4 days of P. M. Examination. The injuries were ante mortem in nature. Death was instantaneous. The dead body was brought on 27-5-2009 at about 3 p.m. and I conducted the P.M. Examination at 4 p.m. The contact shot which appeared at Item No. 1 in the External Injuries which I stated in the forgoing paras mean as under: I mean contact of the muzzle of the gun with the skin of body of the person and also in the contact shot there is presence of abrasion color, singeing of the hair in the presence of carbon particles at the site of the wound. In both the external injuries No. 1 and 2 I found the tract of the bullet upward." 15. He clarified that there was a contact injury thus, clearly indicating that the deceased was shot from a close range. In the cross-examination, he also stated that injury caused by the gun-shots from long range were not present on the body. 16. As far as the evidences of the respondent No. 1 to 4 are concerned, one Neeraj Rawat, who was the Company Commander of A-Company at Yairipok of the 34th Bn. AR at the relevant time was examined. He stated that on getting a reliable information from their source regarding movement of 3/4 armed cadres suspected to be belonging to PREPAK, an operation was launched by proceeding in two vehicles and they got a reliable information that a white maruti car at Thoubal Khunou had dropped 3/4 persons having arms at the foot hill of Thoubal Khunou. Immediately, they proceeded towards the said place. However, they were fired upon by some persons with automatic weapons and an encounter ensued. Immediately, they proceeded towards the said place. However, they were fired upon by some persons with automatic weapons and an encounter ensued. In the retaliatory firing by the personnel of Assam Rifles which lasted for about 15 minutes, two persons were found dead and a number of arms and ammunitions were recovered. The other two witnesses also narrated the incident in the similar manner. 17. As mentioned above, while coming to the aforesaid conclusion, the learned District Judge relied on the evidences of not only the relatives of the deceased but also the PW No. 4, who was an independent witness and a villager of the village near the place of occurrence, who also witnessed certain contemporaneous happenings as referred to above. The learned District Judge also referred to the many inconsistencies in the evidence of the respondents No. 1 to 4. The learned District Judge also noted the absence or non-recovery of empty cases of ammunitions of AK 47 rifles said to have been used by the Assam Rifles personnel in the alleged encounter inspite of firing for about 15 minutes though they claimed to have recovered only 8(eight) empty cases of 9 mm ammunitions. The learned District Judge also noted that the respondents have not led evidence to prove that those 8-9 mm fired empty cases said to have been recovered, were fired from the assault carbine and 9 mm pistol alleged to have been recovered from the body of the deceased persons. Accordingly, the learned District Judge did not believe the version of the respondents that the deceased was killed in an encounter by the Assam Rifles troops on 25.5.2009. On the other hand, in the light of the evidences of the witnesses including the independent witness, a woman villager, near the place of occurrence (PW No. 4) and also the medical evidence to the effect that the deceased received injuries caused by fire arms shot from close range and also the presence of injury caused by a contact shot, absence of the injuries caused by long distance gun shots, came to the conclusion that the deceased was killed by the Assam Rifles personnel. 18. From the above, we are of the view that the findings and conclusion arrived at by the learned District Judge are based on cogent materials and relevant evidences brought on record in course of the enquiry. 18. From the above, we are of the view that the findings and conclusion arrived at by the learned District Judge are based on cogent materials and relevant evidences brought on record in course of the enquiry. It may be remembered that the enquiry conducted by the learned District Judge is not in the nature of a criminal trial but merely to ascertain the broad facts and circumstances under which the deceased had died and as such, the aforesaid enquiry being not in the nature of criminal trial, this Court is not examining the correctness or otherwise of the findings recorded by the learned District Judge as a criminal Appellate Court. The aforesaid enquiry had been conducted on the direction of this Court primarily to decide whether any prima facie case has been made out of the claim of the petitioner that his son had died not in an encounter but was killed by the personnel of 34 Assam Rifles. On the basis of the report of the District Judge, there appears to be a prima facie material in favour of the petitioner seeking compensation on the death of his son that his son died in an encounter is a matter of evidence which has to be established before the appropriate forum. We, however, conclude in the facts and circumstances in this case, that the petitioner is entitled to compensation on the death of his son from respondents No. 1-4. Learned counsel for the petitioner has also pleaded for compensation on the death of petitioner's son. In this view of the matter, we allow the writ petition to the extent that the respondents No. 1-4 shall pay compensation to the petitioner a sum of Rs. 6,00,000/- on the death of his son in the incident which happened as detailed above. While deciding the quantum of compensation, this Court has taken into consideration the fact that the deceased was 23 years old and bachelor and was doing his last year in B.Sc. and also serving as a conductor or handyman of a school bus, Manipur Public School. If income of the deceased is taken as Rs. While deciding the quantum of compensation, this Court has taken into consideration the fact that the deceased was 23 years old and bachelor and was doing his last year in B.Sc. and also serving as a conductor or handyman of a school bus, Manipur Public School. If income of the deceased is taken as Rs. 5000/- per month and by applying the principles laid down in the case of Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 and National Insurance Company Limited v. Pranay Sethi and Others reported in (2017) 16 SCC 680 decided by the Supreme Court, the compensation would come to Rs. 6,00,000/- 19. It is further directed that the aforesaid amount of Rs. 6 lakhs be paid by the respondents No. 1 to 4 to the petitioner within two months from the date of receipt of this order. In default, the sum of Rs. 6 lakhs will bear interest @ 9 % per annum till the date of actual payment of the compensation. 20. All other reliefs are declined.