Violation of fundamental rights under Article 21 warrants compensation if incontrovertible and gross in magnitude, shocking the conscience of the Court.

B.S. Reddy, C.J.

1. This is yet another case where an innocent poor man has been brutally killed at the hands of the security agencies in the name of counter insurgency operations.

2. The widow of the deceased is before us in the proceeding under Article 226 of the Constitution of India seeking an appropriate writ against respondents for payment of compensation. The case set up by her is a simple one.

3. On 24th August, 1999 at about 5 A.M. the writ petitioner's husband Phanidhar Das aged about 55 years went to answer the calls of nature in the open area at a distance of few feet away from his residential house, then all of a sudden the Army personnel fired on him and as a result of which he sustained grievous injuries resulting in his death. The inquest report was prepared by Executive Magistrate, Mangaldoi, Darrang in the hospital and later on the postmortem examination was conducted by Dr. D.N. Saikia of Mangaldoi Civil hospital. The postmortem report clearly reveals that the deceased sustained injuries caused by fire Arm and died on account of the same. The petitioner states that at the time of death her husband was aged about 55 years and left behind the petitioner and two minor daughters aged about 15 and 10 years respectively. The petitioner further states that the incident was witnessed by the neighbouring villagers and she was informed about the incident. The incident later on was published and widely circulated in local newspapers on 25th August, 1999. It is under those circumstances, the petitioner invokes the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India with the prayer to issue appropriate directions as against the respondents directing them to pay adequate compensation.

4. This Court vide its order dated 15th June, 2000 having directed notice on motion, required the respondents to file their affidavit in the matter. The respondents in their counter affidavit denied the allegations and the averments made in the writ petition. In such view of the matter, this Court vide its order dated 10th October, 2001 directed the District Judge, Mangaldoi to hold an enquiry into the allegations made in the writ petition and submit a report to this Court within a period of four months from the date of certified copy of the order. The parties were accordingly directed to appear before the learned Judge on 19th November, 2001 to receive further instructions in the matter. The learned District Judge accordingly submitted his report which was later on set aside by this Court on the ground that no opportunity was given to the respondents Army by the learned District Judge before submitting his report to this Court. On the directions of this Court dated 8.3.2006, the learned District Judge held a de novo enquiry and due notices were issued to all the parties and submitted the report of enquiry on 12.7.2006.

5. The Union of India entered appearance before the District Judge court on 25th April, 2006 and participated in the enquiry. That altogether four witnesses were examined for and on behalf of the writ petitioner and where as two witnesses were examined for and on behalf of the Respondent Nos. 1 and 2. The State Government did not lead any evidence whatsoever.

6. The writ petitioner has been examined as PW 1. She stated in her evidence that on the date of the incident at about 5 A.M. when the deceased left the house to answer the call of nature and he was shot dead by army personnel without there being any provocation whatsoever. P.Ws 2 and 4, according to her witnessed the incident. On the information received from them she went to the place of occurrence and found the dead body of her husband lying at the place of the occurrence. She admitted that she had not seen the actual incident of killing of her husband by the army personnel.

7. PW2 in his evidence stated that at 5 A.M. early in the morning on the date of the occurrence, he was coming towards the embankment to look after his cattle