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Uttarakhand High Court · body

2019 DIGILAW 155 (UTT)

Upender Singh v. Union of India

2019-03-01

LOK PAL SINGH

body2019
JUDGMENT : (1) Present writ petition has been filed by the petitioner seeking writ in the nature of mandamus commanding the respondents to make a high level inquiry into the cause of death of Rifleman Rajesh Singh by any Central Agency like Central Bureau of Investigation. (2) Briefly put, facts of the case are that the son of petitioner namely Rajesh Singh got recruited in the Indian Army and after completion of training he joined his duties as a Rifleman in 4th Garhwal Rifles. He moved along with the 4th Garhwal Rifles to Jammu and Kashmir. On 23.06.2013, Rajesh Singh was on patrol duty under the command/leadership of Captain Saket Mahendra in Jalandhar Company area. On specific intelligence inputs of infiltration attempts by terrorists, while carrying out search in dense forest at around 08:45 A.M., Rifleman Rejesh Singh is said to have been bitten by an unknown reptile. He was given first aid and immediately shifted to Jalandhar Post where he was administered medical aid. Thereafter Rifleman Rajesh Singh was evacuated to 92 Base Hospital by helicopter where he was declared dead at 08:05 P.M. on 23.06.2013. (3) An enquiry was set up on 24.06.2013 to investigate into the circumstances leading to the death of Rifleman Rajesh Singh on 23.06.2013. During the course of inquiry statements of Major Sandeep Singh, Captain Saket Mahendra, Captain Pawan Kumar, Subedar Karan Singh and Nursing Assistant Sahadevan T. were recorded. The conclusion of court of inquiry dated 20.06.2013 was that the death of Rifleman Rajesh Singh was probably caused by snakebite and the death having been attributable to military service should be classified as Battle casualty. In the court of inquiry report it is also mentioned that postmortem was carried out at Civil Hospital, Srinagar. The Army authorities intimated the petitioner that his son got killed in an encounter with infiltrators on the border. When the dead body of Rifleman Rajesh Singh was flown to his native village on 27.06.2013 and handed over to his family members for cremation, he was cremated with full Army honours. (4) Learned counsel for the petitioner contended that the petitioner got information under Right to Information Act in regard to the cause of death. When the dead body of Rifleman Rajesh Singh was flown to his native village on 27.06.2013 and handed over to his family members for cremation, he was cremated with full Army honours. (4) Learned counsel for the petitioner contended that the petitioner got information under Right to Information Act in regard to the cause of death. The report of J&K Forensic Science Laboratory, Srinagar, Kashmir dated 18.10.2013, supplied to the petitioner, pertaining to analysis of skin patch and blood sample of Rifleman Rajesh Singh suggests that no snake venom was detected in the skin patch and no organophosphorous was detected in the blood sample. It is alleged that the petitioner has apprehension that his son died otherwise the reason shown by the Court of Inquiry. It is further contended that the FSL report does not suggest death due to poisoning. However, in the postmortem report it was written in the column of ‘appearance of body’ that swelling and cut marks (skin patch) were present near the right eye of the deceased. In the FSL report it was categorically mentioned that Ext. no. T-675/13 (containing subcutaneous tissue from the site (skin patch) was tested for snake venom and no snake venom was detected. Exh. No. T-676/13 (containing blood sample) was tested for organophosphorus insecticide and the presence of the same was also not detected. (5) In the Court of Inquiry in respect of late Rifleman Rajesh Singh of 4th Garhwal Rifles, the remarks of the Commanding Officer was that he agrees with the opinion of the Court of Inquiry. The death of Rifleman Rajesh Singh was caused due to probable snakebite. There is no foul play involved and no one is to be blamed for the death. Thereafter, the matter was closed with the noting that Rifleman Rajesh Singh died on 23.05.2013 due to snakebite, while carrying out anti-terrorist operation in J&K. (6) Army Rule 177 to the Army Rules, 1954, deals with the procedure to record the Courts of Inquiry. The same is reproduced below: “177. Courts of Inquiry. -(1) A court of inquiry is an assembly of officers or of junior commissioner officers or of officers and junior commissioned officers, warrant officers or noncommissioned officers, directed to collect evidence, and if so required, to report with regard to any matter which may be referred to them. The same is reproduced below: “177. Courts of Inquiry. -(1) A court of inquiry is an assembly of officers or of junior commissioner officers or of officers and junior commissioned officers, warrant officers or noncommissioned officers, directed to collect evidence, and if so required, to report with regard to any matter which may be referred to them. (2) The court may consist of a Presiding Officer, who will either be an officer or a junior commissioned officers, and of one or more members. The Presiding Officer and members of Court may belong to any Regt of Corps of the Service according to the nature of the investigation. (3) A court of inquiry may be assembled by the officer in command of any body of troops, whether belonging to one or more corps.” (7) Army Rule 180 to the Army Rules is also apt in the present context and the same is also reproduced hereunder: “180. Procedure when character of a person subject to the Act is involved. -Save in the case of a prisoner of war who is still absent whenever any inquiry affects the character or military reputation of a person subject to the Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross-examining any witness whose evidence, in his opinion, affects his character or military reputation and producing any witnesses in defence of his character or military reputation. The presiding officer of the court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of and fully understands his rights, under this rule.” (8) Learned counsel for the petitioner further contended that the death of Rifleman Rajesh Singh is attributable to Military Service and was classified as Battle Casualty in terms of Army Order 01/2003 as the individual was part of anti terrorist operations. Liberalised family pension and all other financial benefits were also paid to Smt. Yojana, widow of late Rifleman Rajesh Singh. Report of J&K Forensic Science Laboratory, which was received by the petitioner under Right to Information Act indicates that the death of the son of the petitioner was not caused due to any snakebite. Liberalised family pension and all other financial benefits were also paid to Smt. Yojana, widow of late Rifleman Rajesh Singh. Report of J&K Forensic Science Laboratory, which was received by the petitioner under Right to Information Act indicates that the death of the son of the petitioner was not caused due to any snakebite. It is also contended that the postmortem report and Court of Inquiry report are contrary to each other in regard to the death of the son of the petitioner. The declaration made by late Rifleman Rajesh Singh on 17.06.2013 and the signatures of the son of the petitioner thereon does not match with the documents executed earlier. Therefore, the petitioner is not satisfied with the Court of Inquiry and has apprehension about the death of his son. Lastly it is contended that in view of conflicting report of the Court of Inquiry and postmortem/FSL report as to the cause of death of Rifleman Rajesh Singh, the same calls for a high level inquiry. (9) The averments made in the writ petition have not been specifically denied in the counter affidavit. This Court has directed Mr. Sanjay Bhatt, Standing Counsel for Union of India to produce the record. The original record was produced and the same was perused by the Court. Perusal of the record would reveal that there is no material available on record suggesting that Rifleman Rajesh Singh died due to snakebite and in the FSL report no poisonous substance was detected in the analysis of skin patch and blood sample. The Army has closed the matter mentioning it to be a case of snakebite. A perusal of record would reveal that J&K FSL examination report suggests that snake venom and Organophosphorus insecticide were not detected in the chemical and chromatographic examination in the subcutaneous tissue from the site (skin patch) and in the blood sample. After the injury sustained by the deceased on his face near right eye it is nowhere mentioned that he made any complaint of pain or there were any symptoms of vomiting and nausea at the relevant point of time. It appears that the postmortem was not properly conducted and none of the Doctors, who attended Rifleman Rajesh Singh during treatment, noticed any symptoms of snakebite. It appears that the postmortem was not properly conducted and none of the Doctors, who attended Rifleman Rajesh Singh during treatment, noticed any symptoms of snakebite. (10) Admittedly, death of rifleman Rajesh Singh is unnatural death and according to the Court of Inquiry, swelling was found on his face near right eye, but since the poisonous substance was not found in the deadbody of victim and all the organs of deceased viz. heart, lungs, kidneys were found in order and cause of death cannot be attributed to snakebite. (11) Respondents have projected their case according to the finding recorded by the Court of Inquiry. To find out the symptoms of snakebite, I tried to consult with the Twenty-Second Edition of Modi’s Medical Jurisprudence and Toxicology, but Dr. Modi, who has conducted maximum autopsy in his lifetime, did not refer a single autopsy on snakebite case in his book. (12) In HWV Cox Medical Jurisprudence and Toxicology, in its Chapter Eight, titled as ‘Miscellaneous Poisons’, a mention of postmortem appearance of snakebite is there. It says snakebite is generally accidental and as such usually such causes are not sent for medico-legal autopsy. However, when proper history is not available, the body of the victim of suspected snakebite may be sent for postmortem autopsy. On external examination of such bodies two fang marks at the site of bite with local swelling may be seen. Internal examination of the body may show haemorrhagic lungs, pleura and pericardium in case of bite by a viper, but in case of a bite by an elapid, usually there are no characteristic findings and only signs of asphyxia may be seen. (13) All these things are the thoughts and experiences of the persons, who have mentioned their experiences in the aforementioned books in regard to snakebite. (14) I have personally witnessed two cases of snakebite during my childhood and gathered experience that there should essentially be two fang marks present on the bite site and the colour of the body of victim must turn blue and the victim of snakebite generally complains of pain at the bite site, difficulty in breathing, vomiting & nausea and blurred vision. (15) A perusal of the material placed on record by the petitioner viz. (15) A perusal of the material placed on record by the petitioner viz. the court of inquiry report, statement of the departmental witnesses, postmortem report and FSL report would depict that the FSL report does not support the version of court of inquiry as no poisonous substance was detected in the analysis of skin patch and blood sample. As per the HWV Cox Medical Jurisprudence and Toxicology, none of the symptoms of snakebite were found during postmortem examination of Rifleman Rajesh Singh and, in view of this Court, the cause of his death is not due to snakebite, but might be for any other reason. Since the court of inquiry is based only on the statements of departmental witnesses and is not based on any scientific technique, this Court finds that court of inquiry has not been conducted in a proper, impartial and fair manner. (16) Considering the entire conspectus of things, I am of the view that the death of Rifleman Rajesh Singh does not appear to be a case of snakebite and a high level inquiry should be conducted into the matter to ascertain as to whether the death of late Rifleman Rajesh Singh was due to any adversarial attack on him or the injury found on his person was caused by any of the members of the patrolling party, of which he was a member during search operation. Fair investigation is basic feature of fair trial and every citizen has a right to get the fair investigation in its matter. This Court is of the view that the Court of Inquiry has not been conducted in a fair and impartial manner by the members and Presiding Officer forming part of the Court of Inquiry. (17) Considering the facts and circumstances of the case, this Court direct the respondent no. 1 to ensure fair and impartial Court of Inquiry in the matter within six months from today by constituting a Special Court for conducting Court of Inquiry to be headed by the Presiding Officer not below the rank of a Colonel along with two other members. The Special Court of Inquiry shall take into consideration the statements of the witnesses already recorded, the postmortem report and the report of the J&K Forensic Science Laboratory, Srinagar, Kashmir to ascertain the exact cause leading to the death of late Rifleman Rajesh Singh of th Garhwal Rifles. The Special Court of Inquiry shall take into consideration the statements of the witnesses already recorded, the postmortem report and the report of the J&K Forensic Science Laboratory, Srinagar, Kashmir to ascertain the exact cause leading to the death of late Rifleman Rajesh Singh of th Garhwal Rifles. The entire material relating to earlier Court of Inquiry be handed over to the Special Court constituted for said purpose forthwith. It is hoped and expected that the petitioner should also be informed about the outcome of the Special Court of Inquiry. (18) With the directions as above, the writ petition stands disposed of.