P.K. Musahary, J.

There's none can comfort mother,

Now that her boy is dead.

...........

1. Lord Denning quoted in his work "The Family Story" from 'Pathetic Song' to describe the deep sorrow of a mother, whose son died a martyr in the war field at the age of 23. Here is a case unlike the one, which Lord Denning refers to. The petitioner, as a mother has lost her young son in jail custody. No matter, his was not a martyr's death, yet all mothers carry sorrow alike on the death of their sons. None can, probably, comfort this UTP's mother too. This grief stricken 65 years old widow, rustic, illiterate and poor mother is before us to bring to our notice thus: There was an FIR lodged by one Smt. Konmai Buragohain on 22.5.2010 with the Officer-In-Charge, Sadiya Police Station, alleging that on 20.5.2010, petitioner's deceased son Mandil Buragohain @ Borgohain forcefully kidnapped her minor daughter, aged about 14 years, Miss Boby Buragohain. The police registered a case, being Sadiya P.S. Case No. 31 of 2010, under Section 366A IPC against the petitioner's son. The police arrested and produced him before the court of SDJM, Sadiya on 23.5.2010. The IO of the case made a prayer to remand Mandil to jail custody so as to enable him to complete the investigation. Accordingly, the learned SDJM, vide his order dated 25.5.2010 rejected the bail petition moved for Mandil and remanded him to jail custody. On 30.7.2010 the petitioner's son Mandil Buragohain @ Borgohain died in the district jail at Sapakhowa under mysterious circumstances. Initially, in regard to the said incident, Sadiya Police Station UD Case No. 19/10 was registered and an inquest was held over the dead body of UTP Mandil Buragohain @ Borgohain. Post mortem examination over the dead body was also conducted in the Assam Medical College and Hospital (AMCH), at Dibrugarh on 31.7.2010. The doctor concerned opined that the cause of death was asphyxia as a result of manual strangulation and the injuries described were ante mortem caused by blunt weapons.

2. The petitioner has alleged that her son died in jail custody due to the fault of the State Government and as such, the State of Assam is vicariously liable for violation of fundamental rights guaranteed under Article 21 of the Constitution of India The State is also liable to pay adequate compensation for the death of her son.

3. This Court, vide order dated 23.12.2010, issued notice upon the respondents making it returnable by 27.1.2011. In reply to the notice, the Inspector General of Prisons, Assam filed an affidavit on 10.3.2011 stating inter alia, that the UTP Mandil Buragohain @ Borgohain died in Sadiya district jail on 30.7.2010 and the post mortem was conducted over the dead body. On receipt of the post mortem report, the Superintendent, District Jail lodged an FIR on 30.8.2010 which was registered as Sadiya Police Station Case No. 52/2010 under section 302 IPC. An affidavit was also filed by the Superintendent of Police, Tinsukia on 10.3.2011 confirming the statements of the IG, Prisons about registration of the aforesaid Sadiya P.S. Case and also initiation of investigation by the Officer-In-Charge of Sadiya Police Station.

4. On receipt of the said affidavit, this court, vide order dated 7.4.2011, as an interim measure, directed the State of Assam to pay an amount of rupees one lakh as compensation to the petitioner for unnatural death of her son, within a period of four weeks from the date of order. In compliance of the said order an amount of Rs. 1 lakh has been paid to the petitioner as reflected from order dated 19.5.11.

5. The matter was posted for hearing on 21.12.2012 but none appeared on behalf of the petitioner. In the interest of justice, Mr. D. Chakraborty, learned counsel was appointed as Amicus Curiae to assist this court and the matter was directed to be listed on 11.1.2013. At the time of hearing Mr. P. Sen Deka, learned Addl. Senior Govt. Advocate has produced a status report in regard to investigati