Gauhati High Court
Smt. Sabitri Brahma vs The Union Of India And 11 Ors on 13 March, 2020
Author: K.R. Surana
Bench: Manojit Bhuyan, Kalyan Rai Surana
Page No.# 1/16
GAHC010176372016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7812/2016
1:SMT. SABITRI BRAHMA
W/O. LT. RATNESWAR BRAHMA, R/O. BORGAON, P.O. SILKGHAGURI, P.S.
BIJNI, DIST. CHIRANG, BTAD, ASSAM.
VERSUS
1:THE UNION OF INDIA and 11 ORS
REP. BY THE SECRETARY TO THE UNION OF INDIA, HOME DEPTT., NEW
DELHI.
2:THE SECRETARY TO THE UNION OF INDIA
DEFENCE DEPTT.
NEW DELHI.
3:THE ARMY CHIEF
ARMY HEAD QUARTER
NEW DELHI
C/O. 56 APO.
4:THE GENERAL COMMANDING OFFICER
GAJRAJ CORPS.
TEZPUR
ASSAM
C/O. 56 APO.
5:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME and POLITICAL DEPTT.
DISPUR
GUWAHATI-6.
6:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
RELIEF and REHABILITATION DEPTT.
DISPUR
Page No.# 2/16
GUWAHATI-6.
7:THE DEPUTY COMMISSIONER
CHIRANG DISTRICT
KAJALGAON
DIST. CHIRANG
BTAD
ASSAM.
8:THE SUPERINTENDENT OF POLICE
CHIRANG DISTRICT
KAJALGAON
DIST. CHIRANG
BTAD
ASSAM.
9:THE SUB-DIVISIONAL OFFICER CIVIL
BJNI SUB-DIVISION
BIJNI
DIST. CHIRANG
BTAD
ASSAM.
10:THE ENQUIRY OFFICER
NAMELY GOKUL CH. BRAHMA
ELECTION OFFICER-CUM-EM
BIJNI SUB-DIVISION
DIST. CHIRANG
BTAD
ASSAM.
11:THE COMMANDANT
7 SIKHLI REGIMENT
INDIAN ARMY
C/O. 56 APO.
12:THE OFFICER-IN-CHARGE
BIJNI POLICE STATION
P.O. BIJNI
DIST. CHIRANG
BTAD
ASSAM
Page No.# 3/16
BEFORE
HON'BLE MR. JUSTICE MANOJIT BHUYAN
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioner : Mr. K.R. Patgiri, Ms. C. Das,
: Ms. U. Choudhury.
For respondent Nos. 1 to 4 & 11 : Mr. S.C. Keyal, A.S.G.I.
: Mr. S.K. Medhi, C.G.C. For respondent Nos. 5 to 10 & 12 : Mr. R. Dhar, Addl. Sr. G.A. Date of hearing : 17.09.2019, 19.09.2019, : 14.02.2020, 05.03.2020.
Date of judgment : 13.03.2020
JUDGMENT AND ORDER
(C.A.V.)
(K.R. Surana, J.)
Heard Mr. K.R. Patgiri, learned counsel for the petitioner, Mr. S.C. Keyal, the A.S.G.I, and Mr. R. Dhar, Addl. Sr. Govt. Advocate for the respondents.
2) The petitioner has projected that her husband, namely, Ratneswar Brahma was killed by the Army and, as such, prayer for constituting a judicial enquiry and for awarding monetary compensation of Rs.20.00 lakh has been made in this writ petition filed under Article 226 of the Constitution of India.
3) The case projected by the petitioner, in brief, is that her husband was doing book-store business for his livelihood. On 26.06.2015 at about 10.30 p.m. some army personnel belonging to 7 Sikh Light Infantry (Sikh LI for short) Regiment stationed at Panbari Camp had picked up the petitioner for no reason. As her husband did not return home even Page No.# 4/16 by the next morning, the petitioner made search, but could not get any information. However, on 28.06.2015, the petitioner was informed that her husband was admitted in Lower Assam Hospital, Bongaigaon in a serious condition, where he was declared dead at about 3.00 p.m. Thereafter, the petitioner with other villagers came to the police station and accordingly, Bijni P.S. Case No. 194/15 under Section 302/34 IPC was registered against Major Nitin, Captain Naresh and troops of 7 Sikh LI Regiment stationed at Panbari Camp. It is projected that from the post mortem report it can be observed that the husband of the petitioner was brutally tortured in his chest and abdomen, resulting in his death. It is projected that after huge public out-cry against the brutal murder, the Deputy Commissioner, Chirang, by an order dated 28.06.2015, directed an enquiry and accordingly, the S.D.O.(Civil), Bijni conducted the enquiry in his office. The petitioner has also projected that no ex- gratia compensation has been made till the date of filing of the writ petition despite proposal forwarded to the Government by the Deputy Commissioner, Chirang.
4) The learned counsel for the petitioner has made his submissions on the basis of case projected in the writ petition alleging brutal killing of the husband of the petitioner by army. He has also referred to the Inquiry Report dated 12.04.2019 of the learned District Judge, Chirang, and to the copy of the examination- in- chief and cross- examination of 20 witnesses. It is specifically submitted that while conducting search, there was no Assam Police personnel present, which was in violation of the guidelines framed for army operation in the State. In support of his submissions, the learned counsel for the petitioner has cited the following case citations, viz., (i) Rudul Sah Vs. State of Bihar & Anr., (1983) 4 SCC 141; (ii) Nilabati Behera Vs. State of Orissa & Ors., (1993) 2 SCC 746; (iii) D.K. Basu Vs. State of W.B., (1997) 1 SCC 416; (iv) Naga People's Movement of Human Rights Vs. Union of India, (1998) 2 SCC 109; (v) Sube Singh Vs. State of Haryana & Ors., (2006) 3 SCC 178; 9vi) Re: Inhuman Conditions in 1382 Prisons, (2017) 10 SCC 658; (vii) Thokchom (O) Roshini Devi Vs. State of Manipur & Ors., 2019 (2) GLT (MN) 596 (DB).
5) Per contra, the learned A.S.G.I, has made his submissions to exonerate the armed forces from the allegations of committing excesses or brutality. It is submitted that on Page No.# 5/16 26.06.2015, intelligence inputs was received regarding presence of weapons with a Bedai Group of N.D.F.B.(S) over-ground worker. Accordingly, after obtaining instructions from the Commanding Officer, an operation by a Quick Reaction Team was done under Major Nitin C. Nambiar in the night. After reaching the village, the house of petitioner was cordoned off and upon knocking on the gate, Ratneswar Brahma came out, who was identified by the Intelligence JCO. He was apprehended and taken into custody. After moving some distance in the army vehicle, it developed some mechanical problem and while the army personnel were pushing the vehicle, the petitioner's husband jumped out of the vehicle and started running. While running, he fell down and one army personnel also fell on top of him. While the husband of the petitioner was still aggressive, his hands were then tied again and taken to the waiting vehicle and they all went to the Company Operating Base. In the next morning along with the Intelligence JCO, Major Nitin met the husband of the petitioner and asked a few questions for 1-2 minutes. After some time, the sons of the petitioner along with some villagers came to the army camp and met Major Nitin, who welcomed them and spoke to them. As the husband of the petitioner seemed innocent, Major Nitin was thinking to hand him over to police and also spoke to the Colonel and also asked his QRT Havildar to be prepared to hand him to police. After some time, QRT Havildar informed Major Nitin that the husband of the petitioner was required to be taken to hospital for check-up as he complained of chest pain, for which Major Nitin ordered to get the vehicle ready and to take him to hospital. He was first taken to C.H.C., where he was referred to Lower Assam Hospital at Bongaigaon. On reaching the said Lower Assam Hospital, the doctors wanted consent form to be signed by family for conducting an operation. As such, a team was dispatched to bring family members but they refused to come. Later on, Major Nitin was informed that the husband of the petitioner had died of pre-existing kidney and heart problems. It was submitted that all army personnel were wearing bullet proof jackets, and it was quite possible that while running to apprehend the husband of the petitioner after he had escaped, when the army personnel fell over the husband of the petitioner, he could have suffered fracture in his ribs, which was not intentional and it was not due to any brutality by the army personnel.
6) By referring to the examination- in- chief and cross- examination of the Page No.# 6/16 doctor at C.H.C. (PW-11), it is submitted that the husband of the petitioner was able to talk and he had only complained of chest pain and faced difficulty in taking breath and nothing else. He had also opined that blunt trauma can happen by falling on ground. It is submitted that in his cross examination, the PW-13 had stated that on 27.06.2015, the husband of the petitioner was sitting on the bench and he was physically fit. It is submitted that as per examination- in- chief of PW-14, the cause of death of the petitioner's husband was blunt chest and abdominal injury and in his cross- examination, it was stated that he was suffering from right renal calculus and right pelvi- ureteric junction calculus and chronic renal disease and that his creatinine level was 3.5, the normal range of which should be 0.8 to 1.2 and that he was also suffering from hypertension. It is also submitted that from the cross- examination of PW-15, his evidence could not be demolished and the prosecution could not establish that there was any army brutality upon the husband of the petitioner. By referring to the examination- in- chief of PW-16, it is submitted that the husband of the petitioner had showed sign of only minor external injury, which was consistent with injury that one may receive on falling on the hard ground. In his cross- examination, the PW-16 had opined that blunt trauma injury could occur if a person fell down on another person. By referring to the examination- in- chief of PW-19, it is submitted that one police personnel was accompanying the army during search operation in a different vehicle.
7) Thus, it is submitted that there is no evidence at all on record from which it can be inferred that the husband of the petitioner had died due to torture by the armed force. It is submitted that the respondent nos. 1 to 4 and 11 have submitted an objection affidavit against the Judicial Inquiry Report submitted by the learned District Judge, Chirang, Kajalgaon on the ground that the said learned Inquiry Officer had over-looked the facts and circumstances as projected by the army personnel that the husband of the petitioner had sustained injury while escaping from army custody, but as there was no complaint by him, medical aid was not necessitated then, however, as soon as physical uneasiness was complained of, he was provided with immediate medical aid by taking the husband of the petitioner to the C.H.C. and then to Lower Assam Hospital at Bongaigaon. It is also submitted that medical evidence as well as evidence of his pre-existing disease were also ignored by the Page No.# 7/16 learned Inquiry Officer. In support of his submissions, the learned A.S.G.I. had relied on the case of Ruthsan Jidung Vs. The Union of India & others, W.P.(C) 2391/2009 , decided by this Court on 11.02.2015.
8) Perused the (i) writ petition, (ii) affidavit- in- opposition filed on 07.04.2017 by the respondent no.8, (iii) affidavit- in- opposition filed on 02.06.2017 by the respondent nos.1, 2, 3, 4 and 11, (iv) affidavit- in- reply filed by the petitioner on 21.07.2017 against the affidavit- in- opposition by the respondents no.1, 2, 3, 4 and 11, (v) affidavit- in- opposition filed on 13.08.2017 by the respondent no.6, (vi) additional (sic.) affidavit- in- opposition filed on 28.03.2018 by the respondent no.7, (vii) affidavit- in- reply filed by the respondent no.1 on 06.06.2018 against the affidavit- in- opposition by the respondents no.1, 2, 3, 4 and 11, and additional (sic.) reply filed by respondent no.7, (viii) objection submitted by the respondents no.1 to 4 and 11 against "Fact Finding Inquiry Report of Judicial Enquiry conducted by the learned District Judge, Chirang, Kajalgaon," and (ix) Examination- in- chief and cross- examination of 20 witnesses examined by the learned Inquiry Officer.
9) It may be mentioned that by order dated 08.11.2018, this Court had directed a judicial enquiry to be conducted by the learned District Judge, Chirang and to submit a report. The period to conclude the enquiry was extended by order dated 19.02.2019. Thereafter, on conclusion of the enquiry, the Inquiry Report was placed before this Court.
10) It is seen that the learned Enquiry Officer had examined 20 witnesses. The petitioner's side had examined 11 (eleven) witnesses, viz., (1) Smt. Sabitri Brahma, petitioner (2) Sri Abinash Brahma, son of deceased, (3) Sri Rudra Brahma, uncle of deceased, (4) Sri Ajit Basumatary, Village Headman, (5) Sri Haneswar Brahma, Secretary of Village, (6) Sri Satyajit Brahma, brother- in- law of deceased, (7) Sri Anjalu Brahma, son of deceased, (8) Smt. Benu Daimary, President of All Bodo Women Welfare Federation, Bijni Committee, (9) Sri Gokul Chandra Brahma, Executive Magistrate, Bijni, (10) Sri Bitya Binod Warie, Executive Page No.# 8/16 Magistrate, Bongaigaon, (11) Dr. Prakash Madhua, M&HO, Bhetagaon CHC. The respondent's side (i.e. Army) had examined 6 (six) witnesses, viz., (12) Major Niraj Kumar, Captain of 7 th Sikh Regiment, (13) Subedar Satish Kumar Yadav, Retired Subedar, Military Intelligence, (15) Major Nitin C. Nambiar, O.C. in Army Camp, Panbari, (17) Sri Monohor Singh, Quick reaction Team Commander, (18) Major Irfan Khan, Regimental Medical Officer, 7 th Sikh Light Infantry, Kajalgaon, (19) Sri Sushil Kumar Singh, Sepoy at Panbari Army Camp. Moreover, 3 (three) official witnesses were examined, viz., (14) Dr. Ameng Tham, Surgeon, Lower Assam Hospital, Bongaigaon, (16) Dr. Kochir Ali Ahmed, Senior M&HO, Civil Hospital, Bongaigaon (DW-5) and (20) Sri Ratneswar Barman, I/c., Panbari Watch Post.
11) In his cross- examination, the Witness No. 15 had stated that the hands of the husband of the petitioner was tied by two Sepoy, namely, Sushil Kumar and Manjit Singh. He along with 5-6 army personnel were travelling in the Tata Sumo vehicle together with the husband of the petitioner. He was in the co-driver's seat and the husband of the petitioner was in middle row seat with two army personnel on each side. From the overall case projected by the said Witness No. 15, it appears that the Tata Sumo vehicle developed mechanical problem and was being pushed. Thus, the husband of the petitioner, with his hands tied, had jumped out from a Tata Sumo vehicle being pushed by army personnel. Four army personnel were in pursuit. As per the army version, the husband of the petitioner fell down and one Army sepoy (Witness No. 19) also fell on top of him. However, the husband of the petitioner did not make any complaint in the night of 26.06.2015 and till around 11.30- 12.00 on 27.06.2015. On 27.06.2015, the husband of the petitioner was seen sitting on the bench in good health at 6.30 a.m. As per PW-17, the husband of the petitioner was seen sleeping at 9.00 - 9.30 a.m. on 27.06.2015. As per the examination- in- chief of Witness No. 19, nothing had happened till 10.00 a.m. on 27.09.2015. Then all of a sudden, he developed chest pain and breathing problem and died sometime in the night of 27.06.2015. On 28.06.2015, the villagers were informed about the death of petitioner's husband. The following injuries were detected in the post mortem report:-
"Fracture of right 3rd, 4th, 5th, 6th ribs and left 6th rib; faint bruise on right Page No.# 9/16 lateral aspect of the chest wall (3 inch X 2 inch) and left lateral aspect of chest wall (2 inch X 1 inch); abrasion on medial aspect of left elbow (2 inch X 1 inch); one incised wound with mark of stitches (therapeutic wound), incised wound on left side of chest wall at 5th rib level (1 X ½ X 2 inch), and similar incised wound with mark of stitches (therapeutic wound) on right 5th rib intercostals space (1 X ½ X 2 inch).
12) In his examination- in- chief, the doctor of Lower Assam Hospital (Witness No. 14) had stated that at the time of admitting the husband of the petitioner, proper history could not be taken as he was having respiratory distress and according to the army personnel, the patient received injury to the chest and abdomen following the fall. His chest was tendered bilaterally and auscultation crepitations ( clicking, rattling or crackling noises that may be made by one or both lungs of a human with respiratory disease during inhalation, usually heard with a stethoscope) were found bilaterally and his initial diagnosis was blunt chest trauma and blunt abdominal trauma with shock. His pulse was 140 per minute and abdomen was distended ( bloating and swelling in the belly area) . On needle aspiration (medical procedure to remove something from an area in body ), blood was aspirated from abdomen and chest. Therefore, emergency inter- costal water seal chest drain was inserted and investigations were advised. The husband of the petitioner was provisionally prepared for emergency exploratory laparotomy ( a surgical incision into the abdominal cavity for diagnosis or in preparation for major surgery ). The pulse beat and blood pressure of the husband of the petitioner had come down and necessary cardio- respiratory resuscitation was tried and given and all necessary emergency medications were given, but he had died at 3.30 a.m. on 28.06.2015. It was also stated by PW14 that on examination of CT scan report, bilateral lower lobe lung posterior medical collapsed condition, bilateral minimal pleural effusion, bilateral mild pneumothoraces ( abnormal collection of air in the pleural space between the lung and the chest wall ) with pleural chest tube seen, and fracture of 3 rd, 4th, 5th and 6th ribs on right side and 6th rib on the left side and bilateral chest wall surgical emphysema (chest trauma, causing air to enter the skin of the chest wall from the neck or Page No.# 10/16 lung; penetrating trauma; causes air to travel from the lung to the muscles and subcutaneous tissue of the chest wall) was seen. It was also stated that CT scan of abdomen showed mild ascities (fluid retention of built-up of fluid in abdomen) with suspicious right lower perirenal clot (hematoma in the right perirenal space ), right renal pelvi- ureteric junction large calculus causing right sided severe obstructive hydronephrosis (part of kidney is blocked), right renal calculus, moderately distended stomach and bowels with moderate amount of fluid in stomach. The Witness No. 14 had opined that the immediate cause of death of Ratneswar Brahma was blunt chest and abdominal injury.
13) Thus, there is no dispute that the husband of the petitioner received injuries in his chest and abdomen while in army custody.
14) As per the contents of the Magisterial Enquiry Report submitted by the Executive Magistrate, Bijni on 01.09.2015 to the District Magistrate, Chirang, till the date of submission of the report, association of the husband of the petitioner with any outlawed organisation was not established. The author of the Magisterial Enquiry Report was examined as Witness No.9. As per the said report, it is stated as follows:-
"... And now, Major Nitin, Officer Commanding, 7 th Sikh Light Infantry, Panbari Army Camp, at the time of incident, and all Army Officials involved in the operation , who are examined nowhere state that Ratneswar Brahma got injured when he tried to flee which lasted only for 1-2 minutes. And Army has not explained as to how Ratneswar Brahma had tried to flee when his hands were tied. As the Army Officials involved in the act have not stated how the ribs of Ratneswar Brahma got fractured in their custody, it is apparent that Ratneswar Brahma was tortured in their captivity which resulted in the fracture of ribs of the victim, exacerbated by his pre existing kidney trouble, subsequently succumbed to his injuries in hospital on 28.06.2015."
15) On the specific query of the Court, it has been admitted by the learned Page No.# 11/16 A.S.G.I. that there is a standing guidelines for Army operation that a local police must accompany the armed forces. It is seen that the Witness No. 19 (for the respondent) in the Judicial Enquiry, in his statement had stated that one police personnel was along with them. However, the said Assam Police personnel was not examined by the Army's side either during Magisterial Enquiry or during the judicial enquiry conducted by the learned District Judge, Chirang. However, the said witness had also stated that the said police personnel was travelling in the Bolero vehicle i.e. a vehicle different from one in which the husband of the petitioner was made to travel. The Witness No. 13 (for the respondent) was travelling in the Bolero vehicle. He had stated that he, Major Nitin and 9 (nine) other personnel had gone to the house of the petitioner in two vehicles, one Bolero and one Tata Sumo. He was travelling in Bolero vehicle, but he had not given any statement to the effect that Assam Police personnel was accompanying them. The In-charge of Panbari Police Out- Post was examined as Witness No.20 (official). In his cross- examination, he had stated that "... It is not a fact that Major Nitin asked me for police requisition but I told him that there was no sufficient strength in our Watch- Post for which major Nitin took police requisition from S.P. I do not know whether army personnel directly contacted with S.P. for police requisition or not . ..." Thus, the army has not been able to establish that one Assam Police personnel was accompanying them during the search operation to apprehend the husband of the petitioner.
16) In the case of Naga Peoples Movement of Human Rights (supra) , the "Do's and Don'ts" issued by the Army Head Quarters while acting under Armed Forces Special Powers Act, 1958 has been quoted in extensio. Hence, we refrain from repeating it. The said list does not envisage State police personnel to accompany the Army, rather, it is envisaged that Civil Administration representative should be present. In paragraph- 53 of the said case of Naga People's Movement (supra), at Sl. No.1(c) of the list of Do's, it has been mentioned that - "Before launching any raid/ search, definite information about the activity to be obtained from the local civil authorities ." In Sl. No. 1(d) thereof, it is provided that - "As far as possible coopt representative of local civil administration during the raid ."
17) At the fateful time, when the Tata Sumo vehicle allegedly stopped for some Page No.# 12/16 technical reasons, on being asked over walkie- talkie by Major Nitin, the Bolero vehicle remained stationary 500 metres away and after about 15-20 minutes, they were given signal over walkie- talkie to start. There is no explanation how the defect in Tata Sumo vehicle got rectified after the alleged re-apprehending of the husband of the petitioner. Thus, if everything from stoppage of Tata Sumo vehicle to escape and his re-securing and command to move happened in 15-20 minutes, it is evident that the husband of the petitioner, with hands tied, could not have run very far from the vehicle. As per the statement of Witness No. 13 (for the respondent), he, Major Nitin and 9 other personnel had gone for the operation. The Tata Sumo vehicle had four army personnel in addition to Major Nitin and Driver, thus, the Bolero Vehicle would have 5 army personnel in addition to Witness No. 13, but it is unusual that although a prisoner had escaped, and a second army vehicle, which took part in the operation, though is in the vicinity with 7 armed Army personnel are asked to stop and not to help.
18) The evidence of the evidence of the Doctor (Witness No. 14) (official), leaves no room for doubt that the husband of the petitioner had suffered extensive injury in his chest and abdomen, which led to "complete collapse of lobe area of the lung", apart from other complications, which are morefully mentioned in the foregoing paragraph where his evidence is discussed. We are unable to accept that such extensive injury would be suffered even if one army personnel had accidentally and not intentionally fell on the husband of the petitioner. Moreover, even if for the sake of argument it is assumed that the husband of the petitioner had sustained such extensive internal injuries in the mid-night of 26.06.2015, he could not have been physically fit and normal till 11.00 a.m. on 27.06.2015. If he was normal till 11.00 a.m. on 27.06.2015, then some untoward incident must have happened after that time, which is not projected by the Army.
19) Thus, the Court is unable to find any material to differ from the Magisterial Enquiry Report submitted on 01.09.2015 and the Judicial Enquiry Report dated 12.04.2019, submitted by the learned District Judge, Chirang, to the effect that the husband of the petitioner had died of custodial torture during Army captivity. The Army had violated the Page No.# 13/16 standing instructions to the effect that State Police personnel should accompany Army during search operations. In this connection, it would be in the interest of justice to mention herein that at our insistence, the learned A.S.G.I. had produced the copy of the (1) Directions of the General Officer Commanding 21 Mountain Division on circumstances leading to the death of Ratneswar Brahmo, son of Ronen Brahmo, resident of Village Bargaon at Lower Assam Hospital, Bongaigaon on 28 Jun 15, who was apprehended by 7 Sikh LI on 26 Jun 15 , and (2) Proceedings of Court of Inquiry to investigate the death of Ratneswar Brahmo, S/o Ronen Brahmo, R/o. Vill. Bargaon at Lower Assam Hospital, Bongaigaon on 28 Jun 15, who was apprehended by 7 Sikh LI on 26 Jun 15. We find that while a finding is recorded to the effect that one Belt No. 119 Constable Farookh Ali was detailed by the S.P.'s Office, but in his statement in the Court of Inquiry, the said person had given his statement to the effect that he was travelling in Bollero vehicle. He had stated that "... We stopped the vehicles short of the village and from there the party move on foot. Major Nitin told me to stay back as I was not of the area and the people. ..." The opinion of the Court of Inquiry, amongst others, is to the effect that Major Nitin had failed to take alongwith him the police representative, which was a procedural lapse and that he did not ensure that the police representative was present in the same vehicle alongwith the suspect while returning back to the COB (i.e. Company Operating Base), nor did he call for the leading vehicle once his vehicle had stopped. Thus, the finding of the Court finds support from the opinion of the Court of Enquiry of the Armed Force.
20) We are conscious of the law that this Court is not sitting as an appellate Court to appreciate the evidence and to examine the finding of the learned District Judge, Chirang. Therefore, we have applied our mind only to ascertain whether the finding arrived at by the said learned District Judge are based on evidence on record. We are unable to find any reason for disagreeing with the finding recorded by the said learned District Judge. Moreover, the finding does not appear to be contradictory to the finding recorded in the Magisterial Enquiry conducted by the Executive Magistrate, Bijni. Hence, we are unable to sustain the objection filed by the respondents No. 1 to 4 and 11 against the fact finding Inquiry Report of Judicial Enquiry conducted by the learned District Judge, Chirang, Kajalgaon. Accordingly, the Page No.# 14/16 Court is inclined to accept the said Inquiry Report dated 12.04.2019, submitted by the learned District Judge, Chirang, Kajalgaon.
21) Therefore, in view of the discussions above, the Court is of the considered opinion that consequent upon torture while in Army custody, the husband of the petitioner died in Lower Assam Hospital.
22) The power of the High Court to award compensation in such cases has been upheld by the Supreme Court of India in the case of Nilabati Behera (supra), D.K. Basu (supra), Sube Singh (supra), Re: Inhuman Conditions in 1382 Prisons (supra) . In the case of Thokchom (O) Roshini Devi (supra), the Manipur High Court had awarded compensation. It is, thus, well settled that compensation can be claimed by the family members of deceased where there has been a breach of fundamental right to life guaranteed under Article 21 of the Constitution of India.
23) Having arrived at the aforesaid conclusion, the next question that arises for consideration of the Court is as to whether the petitioner would be entitled to any compensation. In this regard, we are guided by the ratio laid down in the case of D.K. Basu (supra) and paragraph 54 thereof is quoted below:-
"54. Thus, to sum up, it is now a well accepted proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duly bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other Page No.# 15/16 action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit."
24) Thus, in addition to the remedies available to the petitioner under civil action for damages and compensation, by way of applying a balm as envisaged in the above quoted paragraph 54 of the case of D.K. Basu (supra), we are inclined to award a compensation of Rs.5,00,000/- (Rupees Five lakh only), to be paid jointly and severally by (1) the Union of India, represented by the Secretary to the Govt. of India, Ministry of Defence, New Delhi, (2) 7th Battalion of the Sikh Light Infantry, Indian Army, C/o. 56 A.P.O. The said compensation shall be deposited before the Registry of this Court within a period of 4 (four) months from today on account of the death of Ratneswar Brahma, the husband of the petitioner while in custody of the 7th Battalion of the Sikh Light Infantry, Indian Army. It is made clear that if the said awarded compensation amount is not deposited within the time allowed, the same shall carry interest at the rate of 9% per annum on and from 16.12.2016, the date of filing of this writ petition till recovery.
25) Upon such deposit being made, out of the amount of Rs.5,00,000/-, the Registry shall deposit a sum of Rs.3,00,000/- (Rupees Three lakh only) in interest bearing fixed deposit account for 3 (three) year term with any nationalized bank where banking is convenient for the petitioner and her sons, in form of 2 (two) fixed deposit receipts for a sum of Rs.50,000/- (Rupees Fifty thousand only) each in the name of (1) Sabitri Brahma (petitioner), (2) Abinash Brahma (son of Late Ratneswar Brahma), and (3) Anjalu Brahma (son of Ratneswar Brahma). The petitioner shall be entitled to receive the balance amount of Rs.2,00,000/- (Rupees Two lakh only) by way of account payee cheque in the name of the Page No.# 16/16 petitioner, on being identified by her learned counsel.
26) This writ petition stands allowed in terms of the above directions.
27) The Court Master shall return the (1) Directions of the General Officer Commanding 21 Mountain Division, and (2) Proceedings of Court of Inquiry to the learned A.S.G.I. JUDGE JUDGE.
Comparing Assistant