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IN THE HIGH COURT OF GAUHATI
Biplab Kumar Sharma, J.
Lileswar Moran – Appellant
Vs.
Union of India – Respondent
W.P. (Crl.) No. 6 of 2012
Decided On: 15.11.2013
Constitution of India, 1950 – Article 21 and 22 – Penal Code, 1860 – Sections 120, 302, 34, 365, 326 – Arms Act – Sections 3, 27 – Death – Petitioners have contended that their respective sons have been killed by the Army ruthlessly. – Petitioners have also referred to the News Items published in the Newspapers and also in the Television Channels in support of their claim that the three deceased died because of Army atrocities. – According to them, the deceased have been killed by the Army without any crime or reason and also without any provocation. – It has been contended that the three deceased were not involved in any anti social activities and were engaged in their respective business/works till they were killed by the Army personnel. – Plea of the petitioners is that such killing of their sons by the Army has resulted in violation of Article 21 and 22(5) of the Constitution of India including constitution of an offence u/s 302 IPC. – Held, Court is of the considered opinion that the respective families of the deceased, represented by the petitioners are entitled to compensation in Public Law Remedy. – Court quantify the same at Rs. 3,00,000/- (Rupees three lacs only) for each one of the deceased and shall be paid to their respective family headed by the petitioners. Let the payments be made as expeditiously as possible, but at any rate not later than 15.01.2014 along with Rs. 30,000/- (Rupees thirty thousand) as cost of this proceeding quantified at Rs. 10,000/- for each one of the petitioners (total Rs. 30,000/-) which shall also be paid to the petitioners on or before the said date. – There could be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation, may be negligence in discharge of duty but may not constitute culpability more particularly when consequence are not directly attributable to anyone of the Army personnel who were deployed at the site. – Court is not inclined to order for further investigation/enquiry into the matter. – Petition Allowed.
Biplab Kumar Sharma, J.
1. The matter involves death of three young persons in Army firing. While according to the petitioner, the Army has caused their death illegally, according to the Army their death is a result of the Act of retaliation in self defence when one of them fired upon Army search party. The petitioners are the respective fathers of the deceased namely, Siba Moran, Janak Moran and Dhiraj Duara. As stated in the writ petition, on 25.12.2011, Siba and Janak had gone out in Janak's motor cycle and at around 4.30 p.m., they were seen at a Petrol Pump by the petitioner No. 1, where they had gone to fill petrol in the motor cycle and thereafter at around 7 p.m., they were seen by various other persons in the Makum Township. The 3rd deceased namely Dhiraj had left his home at about 2 p.m. on 25.12.2011 and as claimed by the petitioners, he was seen watching volleyball match in the village by some villagers. Later on, he was seen by many people boarding a tempo and going towards Makum in the late afternoon.
2. When the three deceased did not return home till late at night, their family members began to worry and the petitioner No. 1 rang up his son Siba (Mobile No. 9813178883), but there was no response although the phone went on ringing. Similarly, Dhiraj's family members also tried to contact him in his mobile phone bearing No. 9954390547, but there was no response. Throughout the night the family members of the three deceased along with other villagers tried to locate their whereabouts, but all efforts went vain.
3. As stated in the writ petition in the next day morning i.e. 26.12.2011 at about 9 a.m. there appeared a "Breaking News" on a few Guwahati based Televisional boys were killed in an encounter at Namsai in Arunachal Pradesh and that one of the boy was identified as Dhiraj Duara. Later on, in the day, the names of all the three boys who had been killed in the encounter were telecast in the television.
4. On receiving the news, the petitioner No. 1 again dialed his son Siba's mobile No. 9813178883 and this time it was received by one police officer at Tinsukia Police Station. The said police officer asked the petitioner No. 1 to call Namsai Police Station and also provided him the telephone number of Namsai Police Station. Immediately thereafter the petitioner No. 1 called up Namsai Police Station and he was informed that bodies of all the three slain persons were there at the police station and asked him to come to Namsai Police Station. Immediately on receipt of the said information, the family members of the deceased along with some other villagers rushed to Namsai police station, from where they were asked to go to Namsai hospital morgue to identify the dead bodies. The three petitioners along with their family members went to Namsai hospital morgue and identified the deceased. By the time, the dead bodies were handed over to their respective families, it was 5 p.m. of 26.12.2011. According to the petitioners they could clearly notice some cut marks on the bodies of the deceased.
5. According to the petitioners, on being asked as to how the death occurred to the three deceased, the Makum police station could not provide any information regarding killing of the three deceased in spite of the fact that Bikram Moran, elder brother of Siba Moran was himself posted as a home guard at Makum police station. The FIR dated 26.12.2011 was lodged by the Army with Namsai police station, Arunachal Pradesh claiming that three members of ULFA riding on a motor cycle had opened fire at the Army check post and in retaliation the Army also opened fire, as a result of which the three deceased died. Postmortem of the bodies of the deceased was conducted at Namsai hospital around noon of 26.12.2011. Thereafter a second postmortem was conducted at Tinsukia Civil Hospital op 28.12.2011, pursuant to a case that was registered on the basis of three FIR's lodged by the family members of the three deceased on 25.12.2011. The thr
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