Gauhati High Court
Khangra Daimary vs State Of Assam And Ors. on 19 December, 2007
Equivalent citations: 2008(1)GLT338
Author: Jasti Chelameswar
Bench: Jasti Chelameswar
JUDGMENT B.P. Katakey, J.
1. The petitioner, the elder brother of Benudhar Daimary, filed the present writ petition alleging that on 20.12.2000 at about 10 AM the Officer-in-Charge of Rowta Out Post along with one police contingent came to their house and picked up his younger brother Benudhar Daimary along with three other persons from village Gangumakha under Udalguri Police Station in the district of Darrang, Assam in connection with Udalguri Police Station Case No. 24/2000 in presence of his wife and the other villagers and was tortured by the police in presence of the other three persons, who were picked up alongwith Benudhar Daimary in Rowta Police Out Post, resulting in inflicting grievous injuries as a result of which, he died. It has further been contended that on the next date, i.e. on 21.12.2000, when the writ petitioner alongwith other persons of the locality went to the Police Out Post to enquire about his brother, the Officer-in-Charge of the said Out Post informed that Benudhar Daimary and others picked up from the village were arrested in connection with the aforesaid Police Station case and sent to jail custody. In the writ petition, it has further been contended that on 22.12.2000the dead body of Benudhar Daimary was handed over to the family members of the deceased bearing a number of injuries signifying inhuman torture by the police, whose body, according to the police, was found near the railway track. It has further been contended that though the writ petitioner filed the petition before the Sub-Divisional Officer, Civil, Darrang, praying for making an enquiry regarding the unnatural death of his brother leveling specific allegation against the Officer-in-Charge of Rowta Police Out Post, but no action has been taken by the authority to enquire into and to punish the persons guilty for such offence.
2. This Court initially vide order dated 02.02.2001while issuing notice of motion, upon hearing the learned Counsel for the parties, directed the Superintendent of Police, Darrang, Mangaldoi to appear in person on 19.02.2001 and to explain as to why the police case has not been registered despite the complaint dated 22.12.2000. Accordingly the Superintendent of Police, Darrang, Mangaldoi, personally appeared before this Court on 19.02.2001 and upon hearing passed an order directing the learned District and Sessions Judge, Darrang, Mangaldoi to conduct an enquiry into the allegation made in the complaint dated 22.12.2000 (Annexure-2 to the writ petition) and to submit a report to this Court within a period of 4(four) months, by observing that the learned District and Sessions Judge will give all the due opportunities before him including the opportunity to examine and cross-examine the witnesses to be produced by the parties. The learned District and Sessions Judge, Darrang at Mangaldoi accordingly, made an enquiry in presence of all the parties concerned and by giving all opportunities to examine and cross-examine the witnesses and submitted his report dated 08.09.2003 with the finding that the deceased, Benudhar Daimary, died in police custody due to the physical torture by the then Officer-in-Charge of Rowta Out Post resulting in his death. Copy of the said enquiry report submitted by the learned District and Sessions Judge was furnished to the learned Counsel for the writ petitioner as well as the learned State counsel appearing on behalf of the State respondents and also to the learned Counsel appearing on behalf of the respondent No. 6, who was the Officer-in-Charge of Rowta Police Out Post at the relevant point of time. The respondent No. 6, thereafter, on 07.05.2007 filed the affidavit, stating inter alia that the report of the learned District and Sessions Judge cannot be accepted as the findings recorded therein are perverse being contrary to the evidences adduced by the parties and as the Sessions Case being Case No. 42(DM)/2007 has already been registered against him wherein the charge under Section 302 IPC has been framed, which is pending, the writ petition cannot proceed further. The State respondents, however, have not filed any affidavit opposing the findings recorded by the learned District and Sessions Judge in his report.
3. We have heard Mr. N.N.B. Choudhury, learned Counsel for the petitioner, Mrs. B. Goyal, learned State counsel appearing on behalf of the respondent Nos. 1 to 5 as well as the learned Counsel appealing on behalf of the respondent No. 6.
4. Referring to the findings recorded by the learned District and Sessions Judge in his report dated 08.09.2003, Mr. Choudhury, learned Counsel for the writ petitioner has submitted that it is apparent from the said report that his brother Benudhar Daimary, who was taken into custody in connection with Udalguri Police Station Case No. 24/2000, died while he was in police custody because of the physical torture by the respondent No. 6. It has further been submitted that 11 (eleven) injuries on the body of Benudhar Daimary was also found by the Doctor, who conducted the autopsy over the dead body, which were antemortem in nature and proved such inhuman torture by the respondent No. 6. Mr. Choudhury has submitted that such custodial torture and eventual death of the brother of the writ petitioner violates the rights guaranteed under Article 21 of the Constitution of India and, therefore, the deceased family has to be compensated by awarding compensation.
5. The learned State counsel, Mrs. Goyal has submitted that the State Government after accepting the report submitted by the learned District and Sessions Judge has initiated criminal action against the respondent No. 6 and in fact the respondent No. 6 has been charged under Section 302 IPC in Sessions Case No. 42(DM)/2007 and he is presently facing the trial in the court of the learned District and Sessions Judge, Darrang at Mangaldoi. It has further been submitted by the learned State counsel that for the same incident the Assam Human Rights Commission was also approached wherein the compensation of Rs. 75,000/- has been awarded for the custodial death of Benudhar Daimary. The learned Counsel appearing for the writ petitioner on instruction has also admitted about passing of such order for compensation by the Assam Human Right Commission.
6. The learned Counsel appearing on behalf of the respondent No. 6 has contended that since the respondent No. 6 is presently facing the trial in the aforesaid Sessions Case in which the charge under Section 302 IPC has been framed for the death of Benudhar Daimary, the prayer made in the writ petition for making an enquiry and to initiate criminal proceeding have become infructuous. The learned counsel, however, during the course of argument has disputed the custodial torture as well as the custodial death of Benudhar Daimary.
7. We have considered the submissions made by the learned Counsel for the parties and also perused the pleadings as well as the records on the basis of which the learned District and Sessions Judge, Darrang at Mangaldoi has submitted his report dated 08.09.2003.
8. It appears from the report submitted by the learned District and Sessions Judge that before proceeding with the enquiry in terms of the direction of this Court contained in the order dated 19.02.2001, the learned Distinct and Sessions Judge issued notices to all concerned including the present respondent No. 6, who entered appearance on receipt of such notice and Participated in the enquiry by cross-examining the witnesses. The writ petitioner and the respondents were represented by the learned counsel in the said proceeding. The Deputy Commissioner, Darrange in the written statement filed in the said enquiry admitted the death of Benudhar Daimary in police custody and has also stated that an enquiry by the Executive Magistrate was directed and the officer-in-charge of Udalguri Police Station was also directed to take necessary action against the respondent No. 6, i.e. the Officer-in-Charge of Rowta Police Out Post. In the written statement filed the respondent No. 6 while admitting picking up of the deceased from his house for interrogation in connection with Udalguri Police Station Case No. 24/2000, has stated that as he tried to flee away from the police custody on the pretext of natures call, while he led the Police party to identify the person accused in the said police station case, he fell on the railway line with his face downward and as a result of which he sustained injuries for which he was treated initially in Rowta PHC and then referred to Mangaldoi Civil Hospital, where he died. The respondent No. 6 denied committing any torture.
9. In the enquiry conducted by the learned District and Sessions Judge, the report of the post mortem examination conducted over the dead body of Benudhar Dfaimary was proved. The Doctor has recorded the following injuries found on the person of Benudhar Daimary, in the post mortem examination:
(1) Subcuteneous haemorrhage on the left and from shoulder to arm joint. Several scratch marks on his shoulder with variable size and shape. (2) Subcuteneous haemorrhage on the right hand extending from shoulder joint to the middle of the forearm with a scratch mark on the shoulder extending from 1cm x 11/2cm. (3) One abrasion on the dorsum of the right hand measuring 2cm x1/2 (4) Multiple scratch mark of various size and shape on frontside of both thigh. (5) one cut mark on the left foot measuring cm x 5 cm x 1 cm.
(6) Three cut marks-all are superficial on the right foot.
(7) one haematoma scratch on the posterior aspect of the left thigh measuring 5 cm x 2 cm with small scratch on it. (8) Four bruises on the right cuff muscle-length varies from 3cm x 31/2 (9) One haematoma on the left cuff muscle measuring 3 cm x 2 cm.
(10) Two obliquely placed haematoma on the posterior aspect of the left thigh. (11) One haematoma on the left thigh measuring 5 cm x 2 cm with a scratch mark over it measuring 1 cm x 1 cm Injuries are antemortem in nature.
10. The learned District and Session judge, upon appreciation of the evidences on record, both oral and documentary, recorded the following findings:
(24) Findings:
Evidence of all the PWs including Dubra Daimari, co-accused with Benudhar (deceased) is very much clear that the deceased was picked to Rowta Police Out Post by S.I. Manzoor Ahmed. There is clear evidence that they were arrested and kept at the police lock up. Evidence of PW2 Dubra daimary is there that S.I. Manzoor Ahmed tortured Benudhar in his room with lathi and used his police boots. He stated that Benudhar died in the police lock up at night. Evidence of PW2 Dubra Daimaary could not be Discredited by the Respondents through any kind of meaningful cross-examination.
(25) From the side of the respondents DW1, DW3 and DW4 stated that the deceased was taken at night to the house of Khabjang at Doipam and while he tried to escape from police custody he fell down on the railway track and sustained injuries.
(26) Even if the plea of the respondents is accepted , the injuries sustained by the deceased do not go to substantiate the same. Evidence of DW2, Dr. Nabajyoti Dutta is very much clear that while the deceased was produced before him towards the end of the night, he was found gasping for life. Evidence of DW2 totally belies the evidence of DW1, DW3 and DW4. A person gasping for life cannot walk limping as stated by DW4. The three police witnesses definitely tried to conceal the actual fact.
(27) According to the respondents, the deceased fell down in the railway track and sustained the injuries. It should be bone in mind that the deceased did not so fell down from the roof of a house or from high up of a tree. His legs were there in the earth. So the momentum of fall would not be so much. Further a man was not a football that falling upon somewhere he would sustained injuries on different parties of the body. There is no evidence that the deceased slipped from a hilltop. It was not a vehicular accident.
(28) From above angle we have to consider the case through the medical evidence of DW Dr. Goswami. There were injuries on the left shoulder, right shoulder and right hand, dorsum of the right hand and on both thighs. There were cut mark on the left foot. There was scratch and haematoma over the posterior aspect of the left thigh. Injuries were over right and left cuff muscles. Haematoma was there on the posterior aspect of the left thigh and all those were with scratch marks. Thus, the above injuries found in the post-mortem report by doctors of Mangaldoi Civil Hospital has no bearing with injuries sustained by the deceased falling upon railway track. If he had so fall upon the railway track, he would have sustained injuries over his face and hands There cannot be any injury over his face and hands. There cannot be any injury over the posterior aspect of the thigh and other parts of the hands and fee. Thus, medical evidence adduced by the Respondents totally belies the story of sustaining injuries by the deceased falling upon the railway track.
(29) That the deceased Benudhar was in police custody is and admitted fact. That he died in police custody is further admitted by the responents. Evidence adduced by writ petitioner clearly go to prove that's I. Manzoor Ahmed tortured the deceased Benudhar and caused his physical death was falmost complete by the time he was produced before Dr. Nabajyoti Dutta, DW. 2 (30) The injuries sustained by the deceased could not be explained by the respondents. In my considered opinion, the deceased had not sustained those injuries falling upon the railway track TheG.D. Entry prepared by police cannot go beyond the injuries sustained by the ddeceased. It is a record of police and the same can be destroyed and prepared by police at any time. Through cross-examinationof the respondent No.6.(DW1) it has been brought out that all the GD Entries were by one person. Whatever be the case, in view of evidence of direct eye witnesses and in view of the injuries sustained by the deceased there should be no scope for any doubt or dispute that the deceased Benudhar died in the police custody due to torture by S.I. Manzoor Ahmed.
(31) Definitely, the deceased was in police custody, but there is no authority to tortures person by police under his custody,.For such act the Police Officer must be held responsible in his personal capacity. The State cannot be vicariously implicated in such cases. The remedy and reliefs available to the writ petitioner should go against S.I. Manzoor Ahamed only.
(32) In the result, I hold S.I. of Police Manzoor Ahamed personally and individually responsible for causing death of Benudhar Daimary in his custody.
11. The respondent No. 6, though in his affidavit filed before this Court against the findings recorded by the learned District and Sessions Judge in his report dated 08.09.2003, has contended that such report being perverse cannot be accepted, he could not demonstrate how the findings recorded by the learned District and Sessions Judge are perverse and also, which are the evidences produced before him were either not considered or improperly considered. On the other hand, it is evident from the report that the learned District and Session Judge has considered all the materials available on record in his proper perspective and came to the aforesaid finding. As noticed above, the State Government has accepted the report and has not filed any affidavit opposing the findings recorded in such report. Moreover, the nature and number of injuries found on the person of Benudhar Daimary belies the story set up by the respondent No. 6 in the written statement filed in the enquiry before the learned District and Session Judge that he received the injury as he fell down on the railway track while trying to flee from the police custody. In fact the State Government after accepting the report initiated the criminal action against the respondent No. 6. We do not find any reason for not accepting the report submitted by the leaned District and Sessions Judge whereby it has been held that the brother of the writ petitioner, namely Banudhar Daimary, was tortured in police custody and he died in police custody because of the injuries inflicted on his body. However, since the respondent No. 6 is presently facing the trial in the aforesaid Sessions Case for the charge framed under Section 302 IPC, we do not make any comment about the culpability of the respondent No. 6 in such offence as the same has to be decided by the learned Trial Court on the basis of the evidence to be adduced by the parties.
12. In Sube Singh v. State of Haryana the Apex Court referring to its earlier decisions including the decisions rendered in Nilabati Behera v. State of Orissa and D.K. Basu v. State of West Bengal has observed that custodial violence requires to be tackled from two ends i.e., by taking measures that are remedial and preventive. It has further been observed that award of compensation is one of the remedial measures. Effort should be made to remove the very causes, which leads to custodial violence so as to prevent such occurrence. It has further been held that where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, the Court may award compensation in a proceeding under Article 32 or 226 but the quantum of compensation will, however, depend on the facts and circumstances of each case and such awarding compensation by way of public law remedy will not come into the way of the aggrieved person claiming additional compensation in a Civil Court, in the enforcement of the private law remedy in fact, nor come in the way of Criminal Court ordering compensation under Section 357 of the Criminal Procedure Code.
13. In the case in hand, the materials produced before the learned District and Sessions Judge in the enquiry gives no rise to any suspicion as to the cause of death to the writ petitioners brother as it is conclusively proved that Benudhar Daimary died in police custody due to the torture, which in fact has been admitted by the Deputy Commissioner in the written statement filed in the said enquiry and also by the State, The State Government, as discussed above, has also accepted the report recording such findings by the learned District and Sessions Judge. Hence, the violation of the fundamental right guaranteed under Article 21 of the Constitution is patent and incontrovertible and such violation is gross and of a magnitude that shocks judicial conscience.
14. For the aforesaid reasons, we hold that the State respondents are liable to pay the compensation for causing the death of Benudhar Daimary while in custody. The next question, which requires our consideration is relating to the quantum of compensation.
15. It is evident from the statements made in the writ petition as well as the materials made available before the learned District and Sessions Judge during the enquiry conducted by him that Benudhar Daimary was an agriculturist and left behind his non-earning wife s well as his minor child of six months old, who were dependent on the income of Benudhar Daimary, the deceased, Keeping in view, such un-controverted factual position in our considered opinion an amount of Rs. 3 lakh would be the appropriate amount of compensation payable for the custodial death of Benudhar Daimary, under the public law remedy for violation of the fundamental right guaranteed under Article 21 of the Constitution of India. We, therefore direct the respondent Nos. 1 and 2 to pay a sum of Rs. 3 lakh ans compensation to the wife and the minor child of the deceased Benudhar Daiumary. Since admittedly a sum of Rs. 75,000/- has already been paid to the members of the deceased family in terms of the order of the Assam Human Right Commission, the aforesaid respondents are directed to pay the balance amount of Rs. 2,5,000/- (two lakhs twenty five thousand only) (Rs. 3,00,000/- - Rs. 75,000/-). The said respondents are directed to deposit the said amount before the Registrar General of this Court within a period of 3 (three) months from today. The Registrar General, on receipt of the said amount, shall invest the same in a long term fixed deposit account in any nationalized bank having branch at Mangaldoi in the district of Darrang, in the name of the minor child (name to be furnished by the writ petitioner) of Benudhar Daimary, on being identified by the Deputy Commissioner, Darrang at Mangaldoi shall be entitled to withdraw the monthly interest accrued on such deposit. It is, however, made clear that it is open for the State respondents to recover the said amount form the person responsible for the custodial torture and death of Benuddhar Daimary.
The writ petition is accordingly allowed with cost of Rs. 5,000/-.