The Army is not liable for compensation for the death of a person in custody unless there is a clear finding of custodial death.

This application has been filed by the mother of one Kamal Bhattacharyya who is alleged to have been killed by the Armed force on 1.5.92. There is the prayer to pay a sum of Rs.5 (five) lakhs to the petitioner as compensation for the brutal killing of Kamal Bhattacharyya by the Army personnel and/or for other reliefs.

2. The brief facts of the case are as follows.

3. That on 1.5.92 at about 10.30 PM a number of Army personnel raided the residence of the relative of the petitioner at Panbazar, Guwahati where the son of the petitioner Kamal Bhattacharyya stayed for some days for medical treatment. It is alleged that after the arrest, Kamal was taken away by the Army personnel to Baharghat Army Camp in the district of Nalbari. It is further alleged that the Kamal was brutally tortured and assaulted by the Army force in the Army camp. On 2.5.92 Kamal was brought by Army to his native village Agangmow. He was brought near his residence and he was asked to stand. It was however, not possible for him to stand up as he sustained grievous injury all over his body due to brutal attack of the Army personnel. Thereafter, he was dragged to nearby field where he was kept in a standing position by two Army personnel by holding his two hands from two sides. In front of a large number of villagers one Army personnel shot at him and as a result Kamal died on the spot. The Army personnel left the dead body of Kamal in the open filed. After five hours, the Deputy Commissioner, Nalbari came with a number of Army personnel and took away the body for postmortem to Nalbari Town Hospital. The body was handed over to the family members of the deceased after postmortem, and brought to the residence of the petitioner. Thereafter, the cremation was performed.

4. At the time of death Kamal was aged about 24 years. He had passed the HSLC Examination in the year 1985 securing First Division with letter marks in Mathematics. He obtained Diploma in Civil Engineering from the Assam Engineering Institute at Guwahati. In the Institute, he acquired three certificates in extra carrieular activities. It is alleged that the Kamal, was murdered in a cold blooded manner by the Army.

5. An affidavit-in-opposition has been filed on behalf of the respondent Nos.1 and 2. In the affidavit-in-opposition in paragraph 5 it is stated that while he was leading to Army for recovery of arms and on the way he was shot at while trying to escape from Army custody after giving him repeated warning. It is further claimed in this affidavit-in-opposition that he was a Member of the ULFA organisation and a numbers of police cases were pending against him.

6. Thereafter, this writ application was filed and this Court passed an interim order to pay Rs.30,000/- by way of cash payment and that amount has been paid by the Army.

7. This matter was sent for an enquiry by the learned District and Sessions Judge, Nalbari and the learned Judge submitted a report on 25.3.95 after examining a number of witnesses. Before the learned Judge, the following witnesses were examined:

(i) Smti Snehalata Devi, Petitioner (ii) ShrtiBhabes Deka

(iii) Shri Basistha Patowari (iv) Shri Nawfhan Kalita

(v) Shri Amarendra Talukdar (vi) Shri Bharath Talukdar

(vii) Shri Shri SP Kar (viii) Shri JN Sarma and

(ix) Dr. BK Sarma

8. As admitted by the mother in the deposition, Kamal was a hardcore ULFA activist. That is also evident from the Journal which was filed in this case. The learned District Judge on consideration of the evidence and other materials came to the following findings :

"In the light of my aforesaid elaborate discussion of the entire evidence on record I hereby submit my findings by holding that killing of Kamal Bhatta intentionally and deliberately by the Army has not been proved by the petitioner by adducing reliable and cogent evidence to that effect and as such, defence story of killing of Kamal under a peculiar circumstance that has been narrated above cannot be ruled out."

9. I have heard Shri SN Medhi, learned

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