Gauhati High CourtSri Lakhan Mushahary vs The State Of Assam And Ors on 28 August, 2015IN THE GAUAHTI HIGH COURT

(The High Court of Assam: Nagaland: Mizoram & Arunachal
                        Pradesh)



                   Writ Petition (Civil) 2970 of 2008


                Sri Lakhan Mushahary
                Son of late Baburam Mushahary,
                Resident of Village-Sagorphena,
                P.O-Tipkai, P.S.- Bagoribari,
                District- Dhubri (BTAD),Assam.

                                           ...P etitioner
                        -Vs-
                1. The State of Assam, represented by
                   The Commissioner & Secretary to the
                   Government of Assam, Home Department,
                   Dispur, Guwfahati-6.

                2. The Superintendent of Police,
                   Dhubri, Assam.

                3. The Deputy Commissioner,
                   Dhurbi, Assam.

                4. The Officer-In-Charge,
                   Bogoribari Police Station,
                   District- Dhubri, Assam.
                                            ....R espondents


                                   BEFORE
                HON'BLE MR. JUSTICE MANOJIT BHUYAN




        For the Petitioner   : Mr. B.K.Mahajan ....Advocate
                               Mr. A.Choudhury.....Advocate


        For the Respondent- : Mr. P.S.Deka...AdvocateState
             Date of hearing       : 12.8.2015
            Date of Judgment      : 28.8.2015




                     JUDGM ENT & OR DER (CAV)


       Heard Mr. B.K.Mahajan, learned counsel representing the petitioner as well as
Mr. P. S. Deka, learned counsel representing the Sate Respondents.2.     This writ petition was laid on the premises that the petitioner's son Dwitun
Mushahary having suffered demise on 25.4.2006 at Sapatgram Bazar due to
unprovoked police firing, a proper inquiry be directed to be initiated by the District &
Sessions Judge, Dhubri as well as for a direction to the respondents to pay
compensation to the petitioner.3.     This Court by order dated 12.12.20013 had directed the learned District
Judge, Kokrajhar to record evidence and give findings      on     the    circumstances
leading   to the death of Dwitun Mushahary. Direction was made to allow the
petitioner, the police personnel and other interested persons to adduce evidence
before the Court of the learned District Judge, Kokrajhar in order that a
determination can be made as to whether Dwitun Mushahary died due to police
firing or due to firing by NDFB members. The manner for proceeding with the inquiry
was laid down and the learned District Judge was made to furnish the Report within
6 (six) months from the date of the Court's order.4.     The Inquiry Report dated 12.2.2015 of the learned District & Sessions Judge,
Kokrajhar was received by the Registry of this Court on 16.2.2015.5.     By order of this Court dated 20.2.2015, the Registry was directed to furnish
copies of the Report to the counsels representing the petitioner as well as to the
Senior Government Advocate, Assam. On 30.7.2015, Mr. P.S. Deka representing the
State Government was allowed time on his prayer for bringing the Report to the
 notice of the State Government. Until conclusion of hearing of this matter on
12.8.2015, no counter-affidavit has been filed by the State Respondents.6.    The Report indicates that enquiry was initiated by issuing notices upon the
Deputy Commissioner of both Dhubri and Kokrajhar districts, the Superintendent of
Police of both the districts aforementioned as well as to the Officers-in-Charge of
Bogribari Police Station and Saptgram Police Station respectively. The said officials
were duly represented by the Government Pleader, Kokrajhar together with the
petitioner through his engaged counsel. Records pertaining to Bagribari P.S.Case No.
58/2006 (re-registered as Sapatgaram P.S.Case No. 71/2013) as well as Bogribari
P.S.Case No. 59/2006 were requisitioned.7.    Whereas three witnesses were examined from the petitioner's side, who were
also subjected to cross-examination, the respondents' side declined to adduce any
evidence. According to the deposition of the writ petitioner Sri Lakhan Mushahary it
is stated that he came to learn of the occurrence from the witness no. 2 i.e. Sri
Keshab Kumar Brahma and had immediately rushed to Sapatgram Market. He could
only find his son on the following day i.e. 26.4.2006 lying dead at Bagribari Police
Station. Post-mortem examination was conducted at Dhubri Civil Hospital and on the
same day at about 7.00 P.M. he received the corpse of his son. An ejahar was
lodged and Bagribari P.S.Case No. 59/2006 came to be registered thereupon.8.    As per the First Information lodged on 25.4.2006, the NDFB organization had
announced an Assam Bandh call for 24 hours. Mid-day of 25.4.2006 his son along
with few others of the organization had gone to Sapatgram Market to ensure
implementation of the Bandh. As differences arose between them and the
shopkeepers, a Police Party arrived at the scene and started to fire upon the NDFB
group. As a result, Dwitun Mushahary sustained several bullet injuries upon his
person and succumbed at the spot.9.    The evidence of witness no. 2 Sri Keshab Kumar Brahma revealed that
reacting to the arrest of 8 persons of the NDFB cease-fire group at Guwahati, a 24
hour Assam Bandh was called on 25.4.2006. On the fateful day he along with
Dwitun Mushahary and other 7 members of the NDFB cease-fire group had come out
 from the Tipkai NDFB cease-fire Camp on three Motorcycles to Sapatgram Market to
oversee the effect of the Assam Bandh so declared. According to him, they had
barely reached Sapatgram Bazar when police personnel from Sapatgram Police
Outpost arrived at the spot and started to fire upon them indiscriminately, as a result
of which Dwitun Mushahary died on the spot being struck by firing from the police
personnel. For fear of their lives he and his other 7 members fled away leaving their
Motorcycles behind. He informed the father of Dwitun Mushahary regarding the
incident and on the following day an Ejahar was lodged by the father with Bogribari
Police Station.10.    Shri Santosh Kumar Brahma @ Sadlun, as witness no. 3, reiterated the
statements made by Keshab Kumar Brahma (witness no.2). As per his statement, he
was also a member of the group who had gone to Sapatgram Bazar on the date of
the incident. Both the witness nos. 2 and 3 deposed that they had no weapon in
their hands.11.    The Inquiry Report reveals that the learned District and Sessions Judge,
Kokrajhar had perused the Final Report submitted by the Police. It was observed
that the statement of the Investigating Officer, as recorded in the Final Report, do
not portray facts different from what have been stated by the witnesses. As per the
statement of the Investigating Officer although the case was underSection 302I.P.C., however, since there was no sufficient evidence against the accused, the
Final Report in the case had     been submitted. Notwithstanding that, the learned
District & Sessions Judge found that in the incident that took place at Sapatgram
Bazar, the police had resorted to fire in the air and in the process Dwitun Mushahary
sustained bullet injuries upon his person and succumbed to it. From the Report it is
also revealed that both the witnesses' nos. 2 and 3 were subjected to cross-
examination by the respondents' side but they failed to bring out any reason that the
witnesses from the petitioners' side had falsely deposed in the case. It was also
recorded that the evidence so adduced by witness nos. 2 and 3 are reliable and
inspires the confidence of the Court. Further, it is also recorded that the
respondents' side did not come forward to prove their case by leading any evidence
or even to rebut the case of the petitioner's side. In conclusion, the learned District
 Judge, Kokrajhar held that in the incident of 25.4.2006, that took place at
Sapatgram Bazar, Dwitun Mushahary was killed by firing form the police force.12.    From the narration of facts above and having regard to the Inquiry Report,
the fact that the petitioner's son Dwitun Mushahary died due to police firing stands
vindicated. This Court is of the view that there is no illegality, infirmity and/or
irregularity in the findings of the Enquiry and, accordingly, the Report submitted by
the learned District & Sessions Judge, Kokrajhar stands accepted and approved.
Having held so, the inevitable question that falls for consideration is with regard to
the compensation payable to the petitioner by the State for the death of Dwitun
Mushahary at the hands of the Police Force. Public law demands that crime victims
are to be given compensation and the State is to compensate for the breach of the
constitutional guarantee underArticle 21of the Constitution which prescribes that no
person shall be deprived of his life except according to the procedure established by
law.13.    In a catena of decisions, the Apex Court has held that that where the
infringement of fundamental right is established, the Court cannot stop by giving a
mere declaration but to go further by way of giving compensatory relief. The said
relief has to be given by way of compensation under the public law jurisdiction on
account of breach of public duty by the State in not protecting the fundamental right
to life of a citizen. To quote from the case of D.K .Basu -vs. State of W est
Bengal , reported in (1997)1 SCC 416 - " to repair the wrong done and give
judicial redress for legal injury is a compulsion of judicial conscience."14.    In view of the power of this Court to give compensatory relief under the
public law jurisdiction for the wrong done to the son of the petitioner, there is no
alternative but to hold that the wrong doer has to be penalized by fixing
compensation liability upon it. In that view of the matter, it is ordered that the State
Respondent in the Department of Home, Government of Assam, shall make payment
of compensation to an amount of Rs. 2.50 lakhs (Rupees Two Lakhs Fifty Thousand)
only to the writ petitioner within a period of three months from the date of receipt of
this order. It is ordered that the State Respondents shall deposit the compensation
amount before the office of the Registrar General, Gauhati High Court at the
 Principal Seat through a Bank Draft within the period as indicated above. Upon such
deposit being made, the Registry shall pay the entire amount to the petitioner after
proper verification of his identity by the learned counsel representing him in the
present proceedings.15.     In view of the observations and directions made above, this writ petition
stands allowed, however, without any order as to costs.JUDGE




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