The issue involved in these proceedings are relatable to custodial death.

Since the issues are of similar nature both the petitions were set down for hearing analogously.

2. Civil Rule No. 3809 of 1994 pertains to the death of Thaneswar Sarmah, a young man of 24 years who at the relevant time was studying in Nagaon College, Nagaon. In the writ petition it was alleged, inter alia, that at about 3.00 a PM on 6.8.94 some police personnel and members of para military forces of Morigaon District along with some youths surrounded the residence of late Jogeswar Sarmah at Village Boghera in the district of Morigaon, the father of the petitioner, and took up Thaneswar Sarmah into their custody in presence of the members of the family. The members of the family of Thaneswar Sarmah was informed by the Morigaon Police on 7.8.94 that Thaneswar Sarmah died in b an encounter with the security personnel at Village Mayengia under Mikirbheta Police Station. Petitioner further contended that police did not hand over the dead body to the members of the family and he was cremated near Morigaon Civil Hospital under strict supervision of Morigaon Police and Civil Administration on 7.8.94. The petitioner, therefore, knocked the door of this Court praying for writ or directions for a judicial enquiry and/or any other appropriate writ or direction for giving full and adequate relief to the members of the family.

3. This Court by order dated 21.9.94 ordered the District Judge, Morigaon to conduct an enquiry after issuing notice to all the persons. The District Judge, Morigaon conducted as enquiry in presence of the parties. The respondents, namely, the State of Assam, the Union of India, the Deputy Commissioner, Morigaon and others resisted the claim of the petitioner. According to the respondents Thaneswar Sarmah died in an encounter with police at Mayengia Village on 6.8.94. According to the respondents the deceased Thaneswar Sarmah was a member of the extremist organisation and died in an encounter with the police at Village Mayengia. During the enquiry before the District Judge eleven witnesses were examined, seven on behalf of the petitioner and four on behalf of the respondents. The learned District Judge, Morigaon on the pleadings of the respective parties framed the following issues:

(1) Whether Thaneswar Sarmah was tortured and gunned down by police and security personnel resulting his untimely death ?

(2) If not, whether Thaneswar Sarmah died in an encounter with Police at Mayengia Milage on August 6,1994 as he was an active member of the extremist organisation ?

4. During the enquiry the learned District Judge, Morigaon amongst others examined Dr. Pradip Kumar Saikia (PW 5) who conducted the autopsy on the body' of deceased Thaneswar Sarmah on 7.8.94 at Morigaon Civil Hospital. The learned District Judge in his report mentioned the findings recorded by the doctor on the basis of the post mortem report as well as the evidence of the doctor and his finding thereto in the following paragraph :

“8. PW 5 Dr. Pradip Kumar Saikia did autopsy over the dead body of Thaneswar Sarmah being identified by C/129 Krishna Hazarika of Morigaon PS and Ghana Kanta Sarmah on 7.8.94 at Morigaon Civil Hospital, the findings recorded by Dr. Pradip Kumar Saikia on basis of post mortem examination are as follows:

External appearance- A body of young adult, thinly built, male with rigor mortis present in all the limbs. Mouth half opened, eye half opened, wearing a black long pant and blood stained, black coloured sporting shirt.

Findings: Injury No.l: A circular wound of 1 cm diameter with charred inverted edge at inner canthus of left eye with a small blood clot

Injury No.2 : Circular wound of 4 cm diameter with averted lacerated edge above the occipital protuberance, brain matter .coming out through the wound.

Injury No.3: Circular wound just below the right nipple with charred inverted edge, size 1 cm in diameter.

Injury No. 4: Wound of 1 cm diameter in the lateral aspect

Click Here to Read the rest of this document