JUDGMENT

1) The petitioners have sought compensation from the respondents on account of custodial death of their kin, namely, Mohammad Ismail Shah.

2) According to the petitioners, who happen to be the legal heirs of deceased Mohammad Ismail Shah, the deceased was lodged in Central Jail, Srinagar, as an undertrial in case FIR No.174/2009 for offences under Section 302, 109 RPC of Police Station, Kulgam and in case of FIR No.169/2009 of Police Station, Qazigund. While undergoing custody in the jail, the deceased was attacked by co- prisoner, namely, Ghulam Hassan Malik, as a result of which the deceased received fatal injuries and he died in Central Jail, Srinagar. FIR No.16/2013 for offence under Section 302 RPC was registered with Police Station, Rainawari, and investigation of the case was conducted by the police.

3) It seems that the petitioners had to file a writ petition bearing OWP No.647/2013 when the investigation was not taken to its logical conclusion. The said writ petition was disposed of by this Court on 22.05.2013 with a direction to the investigating agency to complete the investigation. Ultimately, the challan was filed against Ghulam Hassan Malik before learned Sessions Judge, Srinagar, on 29.07.2013, which is stated to be pending.

4) It has been contended by the petitioners that the deceased while in Central Jail, Srinagar, was under custody and protection of State and its functionaries and, as such, they were under a legal obligation to protect his life. It has been submitted that the State and its functionaries have failed to discharge their legal duty which resulted in murder of the deceased in the jail premises itself. According to the petitioners, they have been deprived of the company and affection of their kin due to his untimely death and, as such, they are entitled to recover compensation from the respondents.

5) The respondents have filed their reply to the writ petition, in which they have submitted that the deceased was lodged as an undertrial in Central Jail, Srinagar, on 16.09.2009 in connection with case FIR 174/2009 of Police Station, Kulgam and FIR No.169/2009 of Police Station, Qazigund for offences under Section 302, 109, 34 RPC. It has been further submitted that the deceased was facing trial before learned Sessions Judge, Kulgam, and was also facing trial in FIR No.32/2008 of Police Station, Chadoora, for offences under Section 451, 454, 380, 420 and 411 of RPC before Judicial Magistrate, 1st Class, Chadoora. The respondents have submitted that on 06.04.2013 at about 7.00 AM, when all the jail inmates were in sound sleep, the deceased was attacked with a stone, while he was asleep, by another prisoner, namely, Ghulam Hassan Malik, who was also lodged in the jail in connection with case FIR No.235/2008 for offence under Section 302 RPC of Police Station, Shopian. The deceased was immediately shifted to Government JLNM Hospital, Rainawari where he was given adequate treatment but he could not survive and died in late hours of 06.04.2013. It has been submitted that postmortem of the deceased was conducted and FIR No.16/2013 for offence under Section 302 RPC was registered with Police Station, Rainawari. The challan of the case is stated to be pending before the learned Sessions Judge, Srinagar.

6) The respondents have submitted that all the measures regarding safe custody of the prisoners were taken and the jail inmates were not allowed to keep any prohibited article in their possession. It has also been further submitted that jail inmates were housed in barracks which were being regularly searched. It has also been submitted that the watch and ward staff deployed inside the jail always remains vigilant and they discharge their duties in terms of the provisions of the Jail Manual. However, it has been submitted that the jail buildings/barracks are old structured, as a result of which Ghulam Hassan Malik managed to remove a stone from the wall with which he attacked the deceased.

7) I have heard