Gauhati High Court
WP(C)/2370/2017 on 5 May, 2022
Bench: N. Kotiswar Singh, Nani Tagia
GAHC010235152017
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 2370/2017
Kanchan Nessa,
W/O Tofiz Uddin,
R/O Milon Nagar, Shantipur,
PO-Bhalukdubi, PS-Goalpara,
District-Goalpara (Assam), Pin-783101.
......Petitioner.
-Versus-
1. The State of Assam,
represented by the Chief Secretary to the Govt. of Assam,
Dispur, Guwahati-781006.
2. The Commissioner & Secretary to the Govt. of Assam,
Home Department, Dispur, Guwahati-781006.
3. The Commissioner & Secretary to the Govt. of Assam,
Disaster Management Deptt., Relief and Rehabilitation Branch,
Dispur, Guwahati-781006.
4. The Commissioner & Secretary to the Govt. of Assam,
Finance Department, Dispur, Guwahati-781006.
5. The Director General of Police, Assam,
Ulubari, Guwahati-781007.
6. The Assam State Legal Services Authority,
represented by its Chairman, Guwahati-781001.
7. The Deputy Commissioner, Goalpara,
PO & PS-Goalpara, District-Goalpara (Assam), Pin-783101.
8. The District Magistrate, Goalpara,
PO & PS-Goalpara, District-Goalpara (Assam), Pin-783101.
9. The Chairman of District Legal Services Authority, Goalpara,
PO & PS-Goalpara, District-Goalpara (Assam), Pin-783101.
10. The Superintendent of Police, Goalpara,
PO & PS-Goalpara, District-Goalpara, Assam, Pin-783101.
WP(C) 2370/2017 Page 1 of 22
11. The Executive Magistrate & Circle Officer of Balijana Revenue Circle,
Goalpara, PO & PS-Goalpara, District-Goalpara (Assam),
Pin-783101.
12. The Officer-in-Charge of Goalpara Police Station,
PO & PS-Goalpara, District-Goalpara (Assam), Pin-783101.
13. The In-Charge of Kharmuza Outpost,
PO & PS-Goalpara, District-Goalpara, Assam, Pin-783101.
14. The In-Charge of Naranarayana Setu Police Watch Post,
PO & PS-Goalpara, District-Goalpara, Assam, Pin-783101.
......Respondents.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE NANI TAGIA
For the Petitioner: Mr. M.R. Khandakar,
Ms. M. Talukdar. ......Advocates.
For the Respondents: Ms. M. Bhattacharjee, Addl. Sr. Govt. Adv.,
Assam,
Ms. N. Bordoloi, SC, Revenue. ......Advocates.
Date of Hearing & Judgment : 5th May, 2022
JUDGMENT AND ORDER (ORAL)
[N. Kotiswar Singh, J.] Heard Mr. M.R. Khandakar, learned counsel for the petitioner. Also heard Ms. M. Bhattacharjee, learned Additional Senior Government Advocate, Assam, appearing for respondent Nos.1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13 & 14 and Ms. N. Bordoloi, learned standing counsel, Revenue Department, appearing for respondent No.3.
WP(C) 2370/2017 Page 2 of 22
2. This petition has been filed by Kanchan Nessa, mother of the deceased, namely, Somez Ali (Somej Uddin), who the petitioner alleges was picked up by the police personnel and after subjecting him to torture resulting in his death in their custody, threw his body in a nearby pond of the Khorbuza Police Outpost, where he was detained, and accordingly, sought handing over investigation to the CBI and also for awarding adequate compensation of ` 10,00,000/- (Rupees ten lakhs) only to the petitioner and the family members of the deceased.
3. The brief case of the petitioner is that her son Somez Ali (Somej Uddin) while was on his visit to his relatives in Kumri village situated near the Naranarayan Setu Police Watch Post, Goalpara, was picked up by the personnel of the Police Outpost at around 4.30/5 p.m. on 28.07.2016 and was beaten up while in their custody. It has been also alleged that at around 6.30 p.m. a phone call came to her younger son from the said Police Outpost and again thereafter at around 7 to 7.30 p.m. informing that her son was arrested and demanded a sum of ` 5,000/- (Rupees five thousand) only for releasing him. Thereafter, again at around 10 p.m. another phone call came from Khorbuza Police Outpost asking the petitioner to take her son back from the Police Outpost. However, as there was no male member in the house at the relevant time, the petitioner requested the police to keep her son for the night and that she would come and take her son on the next day morning. However, according to the petitioner, her son was brutally tortured in the Police Outpost and WP(C) 2370/2017 Page 3 of 22 thereafter, his dead body was thrown in a nearby pond of one Suresh Rabha. According to the petitioner, on the next day on 29.07.2016 she asked her brother-in-law to go to the police post to fetch her son from the post but when he went there, the police told him that he was released on the previous night. But her search for her son on that day (29.07.2016) remained futile. Thereupon, the petitioner asked her brother-in-law to go to the police post again. When he went to the police post on 30.07.2016, he learnt that the dead body of the deceased was found floating on the pond of Suresh Rabha. Thus, the dead body was recovered on the next day morning of 30.07.2016. One U.D. Case was registered in connection with the said incident. Later, on 31.07.2016 another FIR was lodged by Habibor Rahman, petitioner's brother, against the police personnel alleging the aforesaid act of torture leading to his death as mentioned above.
4. According to the petitioner, a Magisterial enquiry was conducted, which gave a finding after hearing the petitioner and other persons including the police personnel, as follows:-
"Conclusion:
In view of the above facts & circumstances, it can be concluded that the Police action into this matter is highly doubtful as all police personnel agreed that the deceased Shri Shamej Uddin was detained by them in unfit/unwell condition and also they informed the matter to the mother of the deceased over phone. But despite request from the mother of the deceased to keep her son Shamej Uddin at the said Watch Post for that night only, but Police on what basis released the deceased person at night time that is also after dinner is not at all understood. Nowhere it is mentioned that Police informed the guardian about his release, as he was unfit/unwell. This may put police action on doubt. Also, Smti Kanchan Nessa, mother of the deceased revealed in her written statement that her son Shamej Uddin WP(C) 2370/2017 Page 4 of 22 had been being beaten up by Police and her said son was screaming which she heard during her conversation with police over phone. So, the statements of Smti Kanchan Nessa and the police personnel of Naranarayan Setu Watch Post is quite contradictory. If the deceased was not an accused which police personnel stated in their statement, then why the said physically weak person was beaten up as alleged by the mother of the deceased. Also releasing time of Shomej Uddin is differently mentioned in different statements recorded. That is, the releasing time as per statement of O/C, Goalpara is 9/9.30 PM, as per HG Sanjay Roy releasing time is around 8.30 PM, Shri Hussen Ali stated the releasing time is 10.30 PM, again mother of the deceased stated that she talked with police over phone at 10 PM.
Surprinsingly, the inquest was conducted by Iman Ali Mondal, ASI, Kharmuza Out Post which was supposed to be conducted by a Magistrate. That is in one hand the deceased was allegedly beaten up at the Naranarayana Setu Watch Post and on the other hand why his dead body was recovered from a nearby pond of the said Watch Post is not clear. So, Shri Pranay Basumatary, In-Charge of the Naranarayan Setu Watch Post may be held responsible for the above untoward incident."
5. According to the petitioner, the said report submitted by the Additional Deputy Commissioner cum Circle Officer & Executive Magistrate of Balijana Revenue Circle, Goalpara, conclusively proves that the petitioner's son died because of negligence on the part of the police authorities and also the said report cast serious doubt on the version of the police that her deceased son was allowed to go from the Police Outpost in the night of the fateful day. The report also indicated about the alleged assault by the police personnel at the Naranarayan Setu Watch Post.
6. Learned counsel for the petitioner submits that the aforesaid finding of the Executive Magistrate clearly indicates that the petitioner's son lost his life because of the illegal acts of the police resulting in violation of his right to life, which is guaranteed under Article 21 of the Constitution of WP(C) 2370/2017 Page 5 of 22 India and accordingly, under the public law remedy as also clearly held by the Hon'ble Supreme Court in D.K. Basu Vs. State of W.B.1, the petitioner would be entitled to adequate compensation and accordingly, has prayed that the petitioner may be granted a sum of ` 10,00,000/- (Rupees ten lakhs) only as compensation in the present case for the loss of life of her son.
7. On the other hand, it has been submitted by Ms. M. Bhattacharjee, learned Additional Senior Government Advocate, Assam that though the records indicate some element of negligence on the part of the police personnel who had kept the petitioner's son in the Police Outpost, but there is nothing to show that he was subjected to any torture or was illegally detained by the police or that he died at the hands of the police personnel as alleged. Referring to various documents including the report submitted by the Inspector, Officer-in-Charge of the Goalpara Police Station to the Superintendent of Police, Goalpara on 22.08.2016 as well as the report by the Additional Superintendent of Police, HQ Goalpara, which are contained in the official file submitted before this Court, it has been submitted that there is no evidence that the petitioner's son was subjected to torture and died at the hands of the police personnel.
8. In the report submitted by the Officer-in-Charge of Goalpara on 22.08.2016 to the Superintendent of Police, Goalpara, it has been mentioned that on 28.07.2016 at 5.45 p.m. HG Sanjay Roy informed the 1 (1997) 1 SCC 416 WP(C) 2370/2017 Page 6 of 22 In-Charge of the Naranarayan Setu Watch Post by mobile phone that one unknown person was loitering at the southern part of the N.N. Setu and on receipt of information, the In-Charge Head Constable Shri Pranay Basumatary along with staff rushed to that place and brought him to the Police Outpost, where he was found very weak. He was then given paratha, tea, water, etc. and they enquired about his address and thereupon, noted that his name was Somej Ali, S/O Late Tafish Ali of village Milon Nagar, Santipur. He informed the police that his wife and family members always used to quarrel with him and they used to beat him because of which he came out of his house on 25.07.2016. He gave the mobile number of his mother to the police. Thereafter, the Head Constable informed his mother that his son was kept at N.N. Setu Watch Post and asked her to take him. However, the family members did not respond to the said request though the same was intimated three times over phone. Later on at around 8.30 p.m. the said person informed Head Constable Pranay Basumatary that he was alright and would be able to return to his home and accordingly, the said Head Constable Pranay Basumatary allowed him to go. Later, on 30.07.2016 the Head Constable informed the Officer-in-Charge, Goalpara that an unknown dead body was found floating in a private pond near the Police Outpost and on receiving such information, he rushed to the place of occurrence and enquired about the matter and an U.D. Case No.20/2016 was registered. The Officer-in-Charge however, found fault with the said Head Constable Pranay Basumatary that he did not inform the Officer-in- WP(C) 2370/2017 Page 7 of 22 Charge for the Additional S.P., Goalpara about the above-mentioned facts and that he released a person at night without any receiver or jimmadar.
9. Ms. Bhattacharjee further submits that because of several complaints filed in connection with the aforesaid incident including a complaint filed by the Goalpara District Auto Tempo Owners Association, a departmental proceeding was initiated against the said Head Constable (UB) Pranay Kr. Basumatary. Accordingly, an inquiry was conducted against him. The Additional S.P., HQ Goalpara conducted an inquiry after taking the statement of civilians including village headman, members of the aforesaid association as well as family members including the present petitioner and gave the finding in the enquiry report dated 11.08.2016 as follows:-
"1. The statement of the complainant infers that they could not produce any evidence upon their allegation. In this connection there are General Diary entry references in the Namayan Setu Patrol Post as well as the Goalpara Police Station upon bringing of Shomesh Ali, feeding him dinner, making contacts with his family members to take custody of him from the PP.
2. HC Pranay Basumatary had made several calls to the family members of Shomesh Ali prior to letting him go on his own. There are documentary evidences (call records of both the numbers of HC Pranay Basumatary as well as the mother of Shomesh Ali, Kanchan Nessa) to prove the contacts that was made by the HC Pranay Basumatary.
3. The general diary entries are all corroborative of the incident.
4. The Post mortem report of Shomesh Ali is pending at the Civil Hospital, Goalpara.
WP(C) 2370/2017 Page 8 of 22
5. As such no conclusive evidence could be substantiated, suggestive upon the alleged complaint made by the complainant.
6. However, HC Pranay Basumatary had goofed up by not handing over Shomesh Ali to the custody of his family members or his nearest relatives. Since his conveyance of the message to the family members of the deceased person was not acknowledged, he could have called the village headman and handed over the custody of the person upon receipt of a written undertaking, which he overlooked as an insignificant issue to be dealt with."
10. Thus, it is the case of the respondent authorities that there is no evidence to the effect that the petitioner was illegally detained or that he was subjected to torture or that the police personnel were responsible in any manner for the death by drowning of the said deceased person and accordingly, it has been submitted that no case has been made out for directing any further investigation into the matter nor for granting any compensation.
11. We have heard the learned counsel for the parties and also perused the materials on record.
12. From the above contentious issues certain undisputed facts can be ascertained:
(i) That the deceased son of the petitioner was picked up by the police personnel from Naranarayan Setu before his death was admitted by the police themselves. It has been admitted by the police that he was kept in their custody. WP(C) 2370/2017 Page 9 of 22
(ii) That the said deceased Somez Ali (Shomej Uddin), son of the petitioner, died after he was picked up by the police and he was later found dead apparently after drowning in a pond which is located near the police station.
(iii) Death occurred between the night of the picking up of the deceased on 28.07.2016 and early next morning of 30.07.2016. He was brought to the police post at around 6 pm to 7 pm on 28.07.2016 as per the police version and he was found dead on the morning of 30.07.2016 at around 6 am.
(iv) The post-mortem report which has been referred to in the report prepared by the Additional Deputy Commissioner cum Circle Officer & Executive Magistrate of Balijana Revenue Circle, Goalpara, has given the cause of death as asphyxia as a result of drowning which was ante mortem in nature.
13. Though, there are conflicting versions as to the reason he was kept in the custody of the police, of which we shall make a reference subsequently, it is clearly established that before the death of the said Somez Ali, he was in the custody of the police and that he died within few hours on that day after he was taken into custody allegedly by drowning.
14. Under the circumstances, in absence of any clear evidence in that regard, we have to consider under what probable circumstances the said Somez Ali met his death by drowning.
WP(C) 2370/2017 Page 10 of 22
15. Since death occurred by drowning only there are three possibilities for such a death. Either he drowned himself by accidentally falling in the pond or he committed suicide by jumping into the pond or he was pushed into the water by another person leading to his drowning.
Unfortunately in the present case, there is no clear evidence about the immediate cause which led to his death by drowning, as to whether he was pushed by the police as alleged by the petitioner or he had drowned himself accidentally which is the stand of the police or was it a case of suicidal death. There is a faint suggestion from the police that he was a drug addict as claimed to have reflected in the case diary, which might led to his falling in the pond.
Of the aforesaid three possibilities, we will examine which will be the most probable cause of death.
16. According to the police, after he was released from the police station and went home on his own volition, if he lost his way and drowned himself by falling into the pond, certainly police cannot be held responsible for his death.
17. As per the reports which are on record, there was no eye witness or any such evidence which would clearly indicate that the petitioner's son was pushed to the pond by the police or by anybody which led to his drowning. Of course, it has been alleged by the petitioner that since her son was under the custody of the police, the only inference that can be drawn is that they were responsible for the drowning and death of her son WP(C) 2370/2017 Page 11 of 22 in absence of any reasonable and credible explanation forthcoming, once the police have admitted that the deceased was in their custody.
18. We are also of the view that once the police admit that the petitioner's son was in their custody before his death, it is incumbent upon them to explain satisfactorily under what circumstances he was released from their custody so as to avoid any liability for the unfortunate death of the petitioner's son.
19. Accordingly, we will examine the circumstances under which the petitioner's son was released from their custody which according to the police would relieve them of any liability. For that purpose, we would examine the version of the police as to what had happened to the deceased after he was taken into their custody.
20. It is the case of the police as stated by the concerned Head Constable Pranay Basumatary himself during the enquiry, and others in the police station that while patrolling, the deceased person was found loitering near the Naranarayan Setu and thinking that he might commit suicide, he was brought to the police outpost around 6.30/7 pm. Since he was found very weak, the police personnel gave him paratha, tea, water, etc. indicating that when the petitioner was in the custody of the police in the police outpost he was physically very weak and was treated well. According to the police, after he was given the aforesaid eatable items he gained strength and he expressed his desire to go back home alone after his family members declined to take him back home. As per the said report, he WP(C) 2370/2017 Page 12 of 22 was allowed to go home around 8.30 p.m. by the Head Constable Pranay Basumatary, though there are other evidences to indicate that he was allowed to go around 10 pm.
21. There is a similar finding given by the Additional S.P., HQ Goalpara in his report dated 11.08.2016 that the deceased son of the petitioner was fed by the police in their outpost and the police also attempted to contact his family members to take him and there were several calls made to his family in that regard. However, the said report also mentions that the Head Constable Pranay Basumatary had goofed up by not handing over the custody of the said to the family members or his near relatives and if the family members did not respond to the request of the police to take him back, he could have called the village headman and handover the custody of the person upon receipt of a written undertaking which was overlooked by him.
22. We have also been apprised of a certain departmental enquiry initiated against the said Head Constable Pranay Basumatary alleging negligence in official duties. In the said disciplinary proceeding initiated against the petitioner, though the inquiring authority did not find any conclusive evidence that the said Somez Ali was murdered by the police personnel of Naranarayan Setu Watch Post yet negligence on the part of the Head Constable was indicated in failing to handover the custody of the deceased person to a responsible person like village headman on failure of the family members to accept his custody.
WP(C) 2370/2017 Page 13 of 22
23. What comes out from the aforesaid police version is that in the initial stage of the episode, the police were apparently doing their duties and functions admirably by extending assistance to a person who was found loitering near the bridge. First, they brought him to the safe environment of the police outpost and being concerned with his frail health and hunger, he was given food which apparently made him recover his strength. These benevolent acts of the police in looking after a person who appeared to need help and assistance are highly admirable. The police even tried to contact the family members informing of his whereabouts and asking them to take him back which portrayed a picture of a very sympathetic and proactive civic role played by the police at the initial stage. However, the subsequent acts appear to be quite contrary, i.e. of utter negligence and recklessness and lack of concern for the safety of the person, which throws doubt on the initial sympathetic, helping role of the police.
24. It is the plea of the police that after the person recovered his strength on being offered food in the police station, he volunteered to go home alone at during the late hours, credibility of which version we are finding difficult to accept.
25. In view of the above subsequent acts of the police, even the aforesaid alleged benevolent acts of the police at the initial stage become suspected.
26. Though, it is not impossible, we find it hard to believe that it would be a natural conduct of the police to feed someone in the post after he is WP(C) 2370/2017 Page 14 of 22 brought there who was found loitering in a public place. More so, when we have been shown copies of the case diary maintained by the police that he was suspected to be a drug addict.
27. Sometimes, it is said that he was given paratha and sometimes it is said that he was given biscuit and tea. Be that as it may, if the said person was found loitering in a weak condition and if the police had taken all the trouble to feed him, we wonder what prevented the police not to keep him in the safe environment of the post for the night and let him go on the next day, if the police was so concerned about the well-being of the stranger.
28. If the police was so concerned about his well being, how could the police let him go at that late hour of the night. They knew that the village/residence of the person was not located nearby. It has been stated that the village of the petitioner is located about 20 km away from the police outpost. It is a common knowledge that the place where the police outpost was located was not nearby a township and as such to get a bus or rickshaw or auto-rickshaw or any means of transportation at that late hour may not be easy in which event he would be expected to walk back home on the dead of night. But the police never made any attempt to escort him to a nearby bus stand or rickshaw stand or hand over to a responsible person as also noted in one of the enquiry reports. However, he was allowed to go on his own knowing fully well that few moments before he was very frail and that none of the family members turned up to receive him in the police outpost.
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29. If police could bring him to the outpost and fetch food for him, could not the police also give him the bus fare, or rickshaw fare, provided these transportation were available at that late hour of night. Was it not known to the police that it would be difficult to get any means of transportation at that hour of night?
30. Further, at the time when he has been allowed to go, was the family members informed by the police that he was allowed to go on his own? Natural human behavior would propel the police to inform the family members, since the police knew the mobile number of the mother/family members of the person and the police had urged them to take him home. But there is nothing on record to show that the police informed the family members that he has left the police outpost for home on his own volition.
31. Thus, these subsequent queer behaviour of the police, stand in stark contrast to the earlier benevolent acts which has perplexed us. The subsequent behaviour appear to be utterly reckless, negligent and to say the last irresponsible, which makes it difficult for us to accept the subsequent version of the police.
32. There is yet another troubling aspect to this apparently bizarre behaviour of the police.
33. It has been brought to our notice that there is recording in the case diary, which have been produced before us that he was doubted to be a drug addict. This is a serious charge. If he was suspected to be drug addict, how could the police feed him and later allow him to leave the WP(C) 2370/2017 Page 16 of 22 police station? There ought to have been certain natural inquisitiveness on the part of the police to find out more about his alleged drug addiction, that is, to find out whether he was also involved in petty crimes of acting as drug courier and what is the source of such drug consumed by him. Whether the police also made any attempt to search his body and belonging to find out whether he possessed contraband drugs? Instead, he was fed by the police on seeking him apparently weak.
34. In our opinion, the afore-stated versions of the police are not only inconsistent but appear to be contradictory and these versions do not stand together harmoniously. These versions if accepted appear to be not in conformity with the normal human behaviour and functioning of the police.
35. Thus, the only inference we can draw is that the version of the police is not credible devoid of reasonableness and contrary to human behaviour.
36. If that is so, can we also draw the inference that the police is hiding certain crucial facts and seeking to mislead the authorities and may be this Court also. Under such circumstances, can it be said that he was tortured and later thrown into the pond by the police as alleged by the petitioner. Unfortunately, we do not have any clinching evidence on record, apart from the statement made by the mother of the deceased that she heard cry/scream of her son while he was in the police custody. If we accept the statement of his mother to be credible, then he was certainly subjected to beating by the police in the outpost, if not tortured. WP(C) 2370/2017 Page 17 of 22
37. Unfortunately, there are no other corroborative evidences on record that he was subjected to torture by the police. Therefore, it may fall short of legal requirement to draw any definitive conclusion that he was tortured and killed by the police. Yet, under the circumstances, as unfolded before this Court, the allegation of the petitioner that her son was tortured and ultimately the police were responsible for his death also cannot be brushed aside merely as a figment of imagination.
38. What we have found is that the police has not been able to satisfactorily explain the circumstances, in which the aforesaid deceased person died. It becomes the onerous responsibility of the police to explain satisfactorily as to what had happened after the person was picked up by the police and kept in their custody as these are things which are specially and essentially within their knowledge. In this regard, one may refer to the provisions of Section 106 of the Evidence Act, 1872 which provides that when any fact is specially within the knowledge of any person, the burden of proving that the fact is upon him.
39. We find the version of police that after the deceased was fed in the outpost, the person felt better and he wanted to go home and thereafter, the police allowed him to go home does not appear to be credible, especially in the light of the statement made by the mother of the deceased, i.e. the petitioner that she had specifically requested the police to keep her son at the outpost for the night and that she would bring him home the next day, which statement she made in course of the inquiry WP(C) 2370/2017 Page 18 of 22 conducted by the Superintendent of Police. If the police was really concerned about the well-being of the said person by giving him food in the outpost and even trying to contact his family members, we fail to understand, how the police had allowed the person to leave the outpost at such late hour of night. Under the circumstances the only reasonable inference that can be drawn is that the police are deliberately concealing certain relevant facts and they can be said to be indirectly responsible for the death of the deceased by drowning as they failed to take appropriate necessary precautionary measures.
In fact, in the departmental enquiry held against the police personal Pranay Basumatary, who was the In-Charge of the Police Outpost, the finding as submitted before us is that he did not handover the deceased to the custody of his family members or to his nearest relatives. We are also of the view that even if the message to the family members of the deceased to take him back was not acknowledged, he could have called the village headman or any responsible person and handed over the custody of the person upon receipt of a written undertaking.
40. Even if there is no direct evidence to implicate the police of causing death of the petitioner's son, it can be held without any doubt that they were indirectly responsible for the death and of being negligent in not taking proper care and not handing over the custody of the deceased person to the family members or to a responsible person but allowing him to leave the outpost at night without ensuring proper means for reaching WP(C) 2370/2017 Page 19 of 22 the house. To that extent, we hold that the police are responsible for the death though, indirectly. Thus, we will also hold that the police are responsible for violation of the right to life as guaranteed under Article 21 of the Constitution of India.
Since we have held that the aforesaid person died because of the irresponsible act of the police personnel, in our view they will be liable for the loss of life of the said deceased, for which in order to meet the ends of justice we are inclined to award certain amount of compensation to the petitioner.
41. It has come on record that the deceased person, namely, Somez Ali was married having 4(four) minor children and that the aforesaid deceased person Somez Ali is survived by his wife, his 4 children and his mother i.e. the present petitioner. It has also been stated that the said Somez Ali was not employed but was doing business of selling betel nut and he used to sell betel nut at haat/bazaar near FCI godown on the basis of which he used to support the entire whole family with his meagre earnings.
42. Under the circumstances, we are inclined to award a sum of ` 6,00,000/- (Rupees six lakhs) only as compensation to be paid to the petitioner, which shall be equally shared between the petitioner (Kanchan Nessa) i.e. the mother of Somez Ali and wife of the deceased and 4(four) minor children of the deceased on the basis of next of kin certificate, which may be issued by the competent authority. Accordingly, the respondent No.2 is directed to pay a sum of ` 6,00,000/- (Rupees six lakhs) only to the WP(C) 2370/2017 Page 20 of 22 petitioner within a period of 2(two) months from the date of receipt a certified copy of this order. The said amount will be deposited before the Registry of this Court and shall be disbursed to the petitioner (Kanchan Nessa, the mother of the deceased), the wife of Somez Ali and 4(four) minor children of the deceased on the basis of next of kin certificate to be issued by the competent authority and on being identified by the counsel for the petitioner.
43. While awarding the aforesaid amount of ` 6,00,000/- (Rupees six lakhs), we have kept in mind the Notification dated 15.07.2014 issued by the Political (A) Department, Govt. of Assam, whereby the Government of Assam notified the Assam Victim Compensation Scheme under which in respect of death, quantum of compensation has been fixed at ` 3,00,000/- (Rupees three lakhs) only in respect of person who is 40 years or below 40 years, ` 2,00,000/- (Rupees two lakhs) only for person aged above 40 years and upto 60 years and ` 1,00,000/- (Rupees one lakhs) only for person aged above 60 years.
44. In the present case, as per official records including the Post Mortem report, the deceased son of the petitioner was 32 years and as such, under the aforesaid Government Notification, the compensation amount would be ` 3,00,000/- (Rupees three lakhs) only. However, we have also noted that the death occurred was not under normal circumstances, but under circumstances for which the police indirectly responsible as discussed above. Under the circumstances, we have considered that awarding a WP(C) 2370/2017 Page 21 of 22 compensation amount of ` 6,00,000/- (Rupees six lakhs) only as on date would be just and fair. We have also taken note of the fact that there are materials to show that the deceased son of the petitioner was engaged in petty business of selling betelnuts for sustaining his family consisting of the petitioner and wife and four minor children.
45. Accordingly, with the above directions, the petition stands disposed of.
Sd/- Nani Tagia Sd/- N. Kotiswar Singh
JUDGE JUDGE
Comparing Assistant
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