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2019 DIGILAW 7 (MAN)

Thokchom (O) Roshini Devi v. State of Manipur

2019-02-13

KH.NOBIN SINGH, RAMALINGAM SUDHAKAR

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JUDGMENT : Kh. Nobin Singh, J. 1. Heard Shri Kh. Tarunkumar, learned counsel appearing for the petitioner; Shri Kh. Athouba, Addl. PP/Addl. GA and Shri S. Suresh, learned ASG appearing for the Union of India. 2. By the instant writ petition, the petitioner has prayed for issuing a writ of mandamus or any other appropriate writ to direct the respondents to give adequate compensation for a sum of Rs. 20,00,000/- (Rupees Twenty Lakh) only to the petitioner for illegal activities committed by the law enforcing machineries of the respondents by killing her husband in a fake encounter. 3.1 Facts and circumstances as narrated in the writ petition, are that the petitioner is a widow of late Shri Th. Kirankumar Singh who was, during his lifetime, doing some small business to earn the livelihood of his family including his old aged father and three children. 3.2 On 20.03.2008, at around 12.30 p.m., while the petitioner was attending to her 3rd child (a baby boy), her husband returned home (temporary residence) at Nagamapal Kangjabi Leirak, Imphal along with one of his friends, Shri Bhubon. After having her lunch and while her husband was trying to change his shirt, a team of Police Commandos came at her residence and took him away with them, for which no arrest memo was given to her. When the petitioner asked about it, the Police Commandos replied that they wanted to have a talk with her husband. The Police Commandos came in two Maruti Gypsy vehicles. At around 1:00 p.m. when her father-in-law returned home, the petitioner told him about it and he immediately went to the Imphal Police Station to enquire about it with only information being given by the Police that they had not received any information about the arrest of her husband. 3.3 On the next day i.e. 21.03.2008, the petitioner's father-in-law along with his neighbours searched the where-about of her husband but in vain. On being suggested by some of the neighbours, they went to the Morgue of the RIMS Hospital where they found the dead body of her husband. 3.3 On the next day i.e. 21.03.2008, the petitioner's father-in-law along with his neighbours searched the where-about of her husband but in vain. On being suggested by some of the neighbours, they went to the Morgue of the RIMS Hospital where they found the dead body of her husband. On enquiry, the petitioner learnt that the Police Commandos, Imphal East District submitted a report to the O.C. Lamlai Police Station stating that on 20.03.2008 at about 2:00 p.m. an encounter took place at Kangla Siphai area of the Imphal East District between the combined team of the Commandos, Imphal East District and 39th Assam Rifles on the one hand and some unknown persons on the other hand. After the encounter was over, one person was found shot dead at the spot, from whose possession two letters of Special Finance Team, KYKL and one 9 mm pistol with 4(four) live round were found and the same were seized by them by observing the formalities in the presence of the witnesses. Thereafter, the dead body, along with the seized articles, was handed over to the Lamlai Police Station for taking necessary action. On the strength of the said report, the OC Lamlai Police Station, Imphal East District registered a case under FIR No. 45(3)08 LLI-PS U/S. 307/34 IPC-25(1-C) A-Act on 20.03.2008 and as per the said FIR the name of the informant/complainant was stated to be Havildar L. Rameshwor with No. 0696109 of CDO/IE. 3.4 The case of the petitioner was that her husband was not killed in an encounter which was alleged to have taken place on 20.03.2008 at Kangla Siphai Awang Leikai but in fact, he had been picked up from the petitioner's temporary residence at Nagamapal Kangjabi Leirak, Imphal by a team of Police Commandos who came in two Gypsy vehicles at around 12:30 pm and had been killed in cold blood/fake encounter by the combined team of the personnel of the Police Commandos (IE) and 39th Assam Rifles. The petitioner's husband was doing small business to run his family and was never involved in any anti national/anti social activities and moreover, he did not have any criminal case record. The right to life of her husband was deprived of by the respondents in complete violation of the provisions of Article 21 of the constitution. 4. The petitioner's husband was doing small business to run his family and was never involved in any anti national/anti social activities and moreover, he did not have any criminal case record. The right to life of her husband was deprived of by the respondents in complete violation of the provisions of Article 21 of the constitution. 4. While denying the averments made in the writ petition, the stand of the Union of India as indicated in its affidavit-in-opposition, is that 39th Assam Rifles is not involved at all in the said alleged encounter and in addition thereto, it has been stated therein that from the averments made in the petition which are self explanatory, there is no allegation as regards the involvement of the 39th Assam Rifles and that on scrutiny of their record, it is found that no such operation was carried out by 39th Assam Rifles on 20.03.2008. Moreover, in the FIR lodged by Havildar L. Rameshwor Singh also, it is nowhere mentioned that the representatives of 39th Assam Rifles were involved nor was any complaint lodged by any troop of 39th Assam Rifles. 5. An affidavit has been filed by the respondent No. 4, the Superintendent of Police, Imphal East District wherein it has been stated that no material was available on record to show that late Shri Th. Kirankumar Singh was doing small business during his lifetime to earn the livelihood of his family and on the contrary, as per the information available on official records, on 20.03.2008 at around 3:30 pm, Shri Rameshwor, Havildar of CDO/IE lodged a written report to the OC, Lamlai police station stating that on 20.03.2008 at 2:00 pm, a reliable information was received that some unknown youths were loitering in and around Kangla Siphai area with a view to commit prejudicial activities like extortion of money from the general public. On receipt of the information, a team of Police Commandos, CDO/IE with a column of 39th Assam Rifles rushed to the said area and conducted frisking and checking to the suspected youths. After about 30 minutes, 2/3 persons were seen coming from Kangla Siphai Awang Leikai and when they were asked to stop, one of them instead of stopping, fired upon the security forces who retaliated immediately. After about 30 minutes, 2/3 persons were seen coming from Kangla Siphai Awang Leikai and when they were asked to stop, one of them instead of stopping, fired upon the security forces who retaliated immediately. Thereafter, the area was searched thoroughly and one dead body was found from whom 9 mm pistol and 2(two) letters of KYKL outfit were found and seized by observing the formalities which were handed over to the O.C. Lamlai Police Station along with a written report on the basis of which a case under FIR No. FIR No. 45(3)08 LLI-PS U/S. 307/34 IPC-25(1-C) A-Act was registered. The I.O. visited the spot and a rough sketch map was drawn. The deceased was identified as Shri Thokchom Kiran Kumar of Kakching Khunou Thongam. The Post Mortem examination on the dead body was also conducted on 23.03.2008 at RIMS Mortuary, Imphal. As per the report of the said Havildar, there was an encounter between the armed cadres and the security forces and that there was no any report to the police station from the side of the family. There was a delay of more than seven years in approaching this Court without sufficient cause being shown thereof and the petitioner's story was nothing but an afterthought. The reason given in the petition cannot be a ground for condonation of delay and laches as the ignorance of law is not an excuse in the eye of law. 6. Considering the disputed facts, this Court passed an order dated 16-03-2016 directing the District and Sessions Judge, Imphal East to conduct an enquiry to ascertain the facts leading to the death of the petitioner's husband and submit a report thereof within six months. During the course of enquiry, the learned District & Sessions Judge, Imphal East examined four PWs. five RWs and one CW who was the doctor conducting the autopsy. The Doctor opined that the death was due to laceration of lung and liver resulting from firearm. During the course of enquiry, the learned District & Sessions Judge, Imphal East examined four PWs. five RWs and one CW who was the doctor conducting the autopsy. The Doctor opined that the death was due to laceration of lung and liver resulting from firearm. After the enquiry being conducted by the District & Sessions Judge, Imphal East, it submitted a report dated 15-11-2018 to the effect that on going through the depositions, there was no mention of Assam Rifles being involved in the alleged encounter and that no reliance could be placed on the evidences of RWs including RW-1, the complainant and in respect of the two letters of Special Finance Team (KYKL) recovered from the dead body, there was no material produced by the respondents to prove the nexus of the deceased with the outlawed organisation, KYKL. Accordingly, the learned District & Sessions Judge, Imphal East came to the conclusion that the present case was a clear case of fake encounter. 7. We have perused the said enquiry report wherein the District & Sessions Judge, Imphal East had given a finding that it was a fake encounter. It may be noted that this Court is not sitting as an appellate Court to appreciate the evidences and examine the findings of the learned District & Sessions Judge, Imphal East but to examine whether the findings arrived at by it are based on the evidence. This Court is of the opinion that the findings arrived at cannot be said to be without any basis. The reasons given by the learned District & Sessions Judge, Imphal East do not seem to be unreasonable under the facts and circumstance of the case and hence, this Court has no reason to disagree or come to a different conclusion. Therefore, this Court is of the view that a fake encounter took place on 20-03-2008 when the present petitioner's husband was killed by the Manipur Police Commandos. Accordingly, we have accepted the enquiry report. 8. Having arrived at this conclusion, the next question that arises for consideration by this Court is as to whether the petitioner shall be entitled to compensation and if yes, what would be the quantum. Accordingly, we have accepted the enquiry report. 8. Having arrived at this conclusion, the next question that arises for consideration by this Court is as to whether the petitioner shall be entitled to compensation and if yes, what would be the quantum. It is well settled that as far as the compensation claimed by the victim's family is concerned where the breach of fundamental right to life as guaranteed under Article 21 of the Constitution is involved, it can be imposed on the State. In a number of cases, this Court as well as the Hon'ble Supreme Court directed for payment of compensation for the death occurring in such circumstances at the hands of the security forces. 9. In view of the fact that the petitioner's husband was not a member of the outlawed organisation, KYKL and he being an ordinary person, the petitioner is entitled to compensation. In similar cases, this Court had directed for payment of Rs. 5 lakh as compensation. But Shri Kh. Tarunkumar, the learned counsel appearing for the petitioner submitted that keeping in mind the circumstances in which the petitioner was left and compelled to bring up her minor children in single handed; the hardship and agony that she had suffered during the last ten years, the money that she required for children's education etc, this Court might pass appropriate order directing for payment of compensation. The loss that she suffered after the death of her husband, cannot be compensated in terms of money but the contention of the learned counsel appearing for the petitioner has some force and merit. Moreover, the orders that this Court had passed directing for payment of compensation of Rs. 5 lakh in similar cases as stated hereinabove, were passed some years ago and therefore, this Court is of the view that the end of justice will be met, if this Court imposes a compensation of Rs. 10 lakhs to be paid by the State of Manipur to the petitioner within a period of six months from today on account of the death of her husband at the hands of the Manipur Police Commandos, which we order. 10 lakhs to be paid by the State of Manipur to the petitioner within a period of six months from today on account of the death of her husband at the hands of the Manipur Police Commandos, which we order. In order to make it convenient to the petitioner to receive the amount, the State of Manipur should deposit the said amount to the Registry of this Court within the aforesaid period, which would in turn be deposited in the individual account of the petitioner which may be opened by her, if not already opened by her. 10. The instant petition stands allowed with the above directions.