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2019 DIGILAW 776 (GAU)

Debala Brahma v. State of Assam

2019-06-20

UJJAL BHUYAN

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JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. M. Hussain, learned counsel for the petitioner, Mr. P.S. Deka, learned Standing Counsel for the Revenue Department, Government of Assam and Ms. K. Phukan, learned Government Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to recover her husband Probin Kumar Brahma @ Probin Kumar Basumatary from the clutches of extremists, who had kidnapped him on 15.3.1999; alternatively, a direction is sought for payment of just and adequate compensation to the family members of Probin Kumar Basumatary in the event of loss of life and/or injury. 3. Case of the petitioner is that she is the wife of Probin Kumar Brahma @ Probin Kumar Basumatary, who was a school teacher. On 15th March, 1999 some unknown extremists had kidnapped her husband from Choraikhola under Kokrajhar district. This has reference to Kokrajhar PS Case No. 84/1999 registered under Section 365 IPC. 4. During investigation, it transpired that Probin Kumar Brahma @ Probin Kumar Basumatary was a member of Bodoland Administrative Council (BAC) and in this connection, he used to reside temporarily at Choraikhola in government quarter. 5. On 15.03.1999, he was kidnapped by extremists, where after his whereabouts were not known. It appears that on completion of investigation no clue could be found though Police had recorded that the victim was kidnapped by unknown miscreants. Factum of kidnapping was found correct but the victim could not be recovered nor could any assailants be apprehended. Ultimately, final report was submitted under Section 173 Cr.P.C. being Final Report No. 147 dated 30.11.2010. 6. Petitioner submitted representation dated 22.03.2017 before the Secretary to the Government of Assam, Relief and Rehabilitation Department. Though some interdepartmental communications were made, no monetary relief was granted to the petitioner. It is in such circumstances, that the writ petition came to be filed. 7. Notice in this case was issued on 10.11.2017. 8. Following notice, Superintendent of Kokrajhar has filed affidavit. In paragraph-4 of the affidavit it is stated that petitioner had lodged First Information Report on 3.4.1999, alleging mat her husband was found untraced since 15.03.1999. Accordingly, Kokrajhar PS Case No. 84/1999 was registered under Section 365 IPC. On completion of investigation, case was returned in final report vide F.R. No. 147/2010 dated 30.11.2010. In paragraph-4 of the affidavit it is stated that petitioner had lodged First Information Report on 3.4.1999, alleging mat her husband was found untraced since 15.03.1999. Accordingly, Kokrajhar PS Case No. 84/1999 was registered under Section 365 IPC. On completion of investigation, case was returned in final report vide F.R. No. 147/2010 dated 30.11.2010. As it was found that the case was true but no clue of the victim in the last 10 years could be found, Final Report was accepted by the Court on 24.11.2011. However, it is stated that whether Probin Kumar Brahma and Probin Kumar Basumatary is one and the same person is a matter of enquiry. 9. Submissions made by learned counsel for the parties have been considered. 10. The fact that petitioner's husband was kidnapped and is untraceable since 15.3.1999 is on record. There is no dispute to this. However, police could not recover him. No assailants could be apprehended. Consequently, criminal investigation has been closed which has ended in the form of final report. Thus, for more than 20 years whereabouts of petitioner's husband is not known. 10.1. Under Section 108 of the Indian Evidence Act, 1872 (Evidence Act) when a question arises as to whether a man is alive or dead and it is proved that he has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, burden of proving that he is alive is shifted to the person who affirms it. 11. In the present case, petitioner's husband has not been heard of since 15.03.1999. No one has come forward to say that he has heard of him during this period. As a matter of fact, filing of final report by the police stating that they could not recover the victim is a testimony to the fact that the husband was not heard of from the date of kidnapping till the date of submission of final report on 30.11.2010, which was accepted by the Court on 24.03.2011. Ordinarily, such a declaration is required to be obtained from a civil court of competent jurisdiction, but in a case of this nature and considering the attending facts and circumstances, a presumption can be drawn that petitioner's husband is no longer alive. 12. In a recent decision of this Court dated 28.05.2019 in the case of Padma Kalita Vs. Ordinarily, such a declaration is required to be obtained from a civil court of competent jurisdiction, but in a case of this nature and considering the attending facts and circumstances, a presumption can be drawn that petitioner's husband is no longer alive. 12. In a recent decision of this Court dated 28.05.2019 in the case of Padma Kalita Vs. State of Assam, 2019 (3) GLT 635 : WP(C) No. 447/2019, a contention was raised on behalf of the State that husband of the petitioner in that case was not killed by extremists but by ordinary miscreants. Therefore, it was contended that the petitioner was not entitled to ex-gratia payment in terms of Government notification dated 22.06.2004 and Office Memorandum dated 29.07.2013. Considering the provisions of Section 357 A Cr.P.C. and Assam Victim Compensation Scheme, 2012 as amended, this court had framed the following issues: "Without entering into the controversy as to whether petitioner's husband was killed by extremists or by terrorists or by miscreants (who cannot be termed as extremists/terrorists), Court is of the view that since the factum of murder of petitioner's husband is not disputed, petitioner may be eligible for victim compensation under Section 357-A of the Code of Criminal Procedure, 1973 and under the Assam Victim Compensation Scheme, 2012, as amended, framed thereunder. Learned counsel for the parties may examine this aspect of the matter and make their respective submissions." 13. From the narration of facts as above, what is evident is that a crime was committed in which there was a victim. The victim could not be recovered and now a legal presumption has been drawn that he is dead. In the course of police investigation no assailant could be apprehended. Investigation reached a dead end and resulted in filing of final report. Consequently, there was no trial. Matter ended thus. 13.1. Section 357 A was inserted in the Code of Criminal Procedure, 1973 (Cr.P.C.) by the Amendment Act of 2009, with effect from 31.12.2009. It provides for victim compensation. Section 357 A Cr.P.C. is extracted hereunder:- "357-A. Victim compensation scheme- (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation. It provides for victim compensation. Section 357 A Cr.P.C. is extracted hereunder:- "357-A. Victim compensation scheme- (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation. (2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1) (3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation. (4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation. (5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months. (6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit." 14. As would be evident from the above, under Sub-section (1), every State Government in coordination with the Central Government is mandated to prepare a scheme for providing funds for the purpose of compensation to the victim or his dependants, who have suffered loss or injuries as a result of a crime and who require rehabilitation. 14.1. Sub-section (4) is relevant. As would be evident from the above, under Sub-section (1), every State Government in coordination with the Central Government is mandated to prepare a scheme for providing funds for the purpose of compensation to the victim or his dependants, who have suffered loss or injuries as a result of a crime and who require rehabilitation. 14.1. Sub-section (4) is relevant. It says that where an offender is not traced or identified but the victim is identified and where no trial takes place, the victim or his dependants may make an application to the State or District Legal Services Authority for award of compensation. 14.2. As per Sub-section (5), on receipt of such application, State or District Legal Services Authority shall make due enquiry and thereafter award adequate compensation within 2 months. 15. In exercise of the powers conferred by Section 357 Cr.P.C. Government of Assam in coordination with the Central Government framed the Assam Victim Compensation Scheme, 2012, providing funds for the purpose of compensation to the victim or his/her dependants, who have suffered loss or injury as a result of crime or who require rehabilitation. As per the scheme, initially in case of death, compensation was fixed at Rs. 2 lacs. However, Government of Assam in the Home and Political Department, thereafter, issued notification on 01.02.2019, revising the quantum of compensation under the Assam Victim Compensation Scheme, 2012. In case of death, compensation has been revised to Rs. 5 lacs. 16. In the light of the above, Secretary, District Legal Services Authority (DLSA), Kokrajhar is directed to examine the claim of the petitioner to victim compensation, keeping in mind the discussions made above. 17. Let the enquiry be completed within 2 months from today, where after, adequate compensation shall be paid by the District Legal Services Authority (DLSA), Kokrajhar or by the Assam State Legal Services Authority (ASLSA) to the petitioner within the aforesaid period. 18. Writ petition is disposed of.