Bihar Timung vs Union of India (UOI) and Others

M. Sharma, J.—In this writ petition for Habeas Corpus, the Petitioner Shri Bihar Timung claims compensation and judicial (sic) Into the mysterious death of his elder sister Ms. Someswari (sic) and deterrent punishment of the culprits for her murder.

The case of the Petitioner in brief is that his elder sister Someswasi, was a Grade-IV employee (attendant) of Majikuchi subsidiary Health Centre within Gohpur Constituency in Sonitpur District marriage was scheduled to be solemnised within a short (sic) with one Prabin Mudoi of the locality and sometimes they sued to live together.

On 9.12.90 at about 3 A.M. to 4 A.M. three vehicles (sic)ying Army personnel and police entered the compound of the(sic) ikuchi Subsidiary Health Centre,'' where the Doctor, In-charge of the Health Centre namely Dr. D. Chetri and Someswari were residing is separate Government quarters. on that day Shri Prabin Mudoi (sic) also staying with Someswari in her quarter. Army persounel (sic) entered into her quarter and brought out Prabin Mudoi and took him away elsewhere. Thereafter Someswari was tortured. There was (sic) dy to rescue her. At about 9 A.M. on 9.12.90 a (sic) spread (sic) in the locality that Someswari was hanging in her quarter. After hearing the rumour police of Howaijan out post came and found someswari hanging in her quarter. Police kept the dead body in the open front of the Out-post till 11.12.90 and no past mortem Examination of the dead body was held.

On the evening Prabin Mudoi was released by the Army personnel as nothing incriminating was found with him regarding his connection with ULFA activities.

On 11.12.90 the dead body was brought to Bihali Primary Health Centre and Post mortem Examination was held by Dr. Basanta Duara. The Petitioner somehow managed to see the post mortem report and the following injuries were found.

(1) Bruises--

(i) One over the inner side of the left Arm.

(ii) One over the face.

(iii) One over the upper part of the interior Chest wall.

(iv) Over the inner sides of both thighs.

(2) Ligature mark around the upper part of the neck with its knot behind the left ear.

The Petitioner has contended that from the post mortem report it is clear that sexual assault was committed by the Army presonnel and in course of such sexual Intercourse the victim received (sic) bruises on different vital parts of the body which was the result of gang rape, The, death of the victim was committed by some of the Army personnel by hanging her in her quarter.

Both the Army and the State of Assam filed affidavits denying the charge of murder.

Capt. M.S. Pattabandhan as Captain, 21 Mt. Division, has fifed Affidavit on behalf of Respondent No. 1, Union of India and Respondent No. 4 Lt. General Brar, Eastern Command, In-charge of operation Bajrang, Assam. The deponent has denied the allegation against them and the involvement of the Army Personnel in the raid on 9, 12, 90. The averment of the deponent in the affidavit is that the raid was conducted by the police and H.S.F, and Someswari''s lover Pranab was apprehended and released on P.R. Bond and the case of death of Someswari was not known to the deponent and he was not aware of the facts that happened in this case.

The State of Assam, through Under Secretary to the Govt. (Assam, Political Department on behalf of Respondent Nos. 2 and 3 has filed counter denying the allegations. In the counter, the under Secretary tried to give detailed description of the raid and its events The deponent has averred that on that day, about 4-30 A.M. along with 2 sections of B.S.F. and 2 sections of A.P. Bn. personnel led by Shri Nandewsar Das, S.I., i/e Howaijan out-post and S.I. Kamal Bora of Gonpa P.S. conducted raids in different places in sea(sic) of suspected ULFA activists and on suspicion the police party (sic) rched Govt. quarter of Miss Someswati Tinning in presence of the doctor D. Chetri after observing for nullities of house search One Prabin Mudoi of the same village who, was not related to Timungpi, was found in her room. On interrogation he could not give satisfactory replies, to the queries made by police, therefore he was picked up for further interrogation and the police party left the place at 5-05 A.M. leaving Someswari in her room. At that time Dr. Chetri was also present. His further averment is that on receiving a written ejahar by I/C Howaijan Police out-post, he rush(sic) to the place of occurrence on the same day at about 12 noon and issued W.T. message to S.D.P.O. Biswanath Charali for the Morgue Van, held inquest over the dead body and brought it to the O.P. and arrangements were made for post mortem examination of the dead, body. The post mortem examination was conducted on 11.1190 by Dr. Basanta Duwara and the Respondent annexed the post mortem report as Annexure ''A'' to the counter affidavit.

We found the description of the injuries give in the Annexure-''A'' post mortem report corroborated those given in the writ petition by the Petitioner. The State of Assam, Respondent No. strongly denied the involvement of the B.S.F. and police in the murder of the victim by hanging.

Heard learned Counsel Mr. A.K. Phukan for the Petitioner and also Mr. M.A. Laskar, learned Addl. Advocate General for the Respondents.

Mr. Phukan, learned Counsel strenuously urged that it is a case of murder and after committing gang rape, the murder was committed by the raiding party and tried to colour the incident of murder as suicide by hanging. In support of his submission he invited our attention (sic) the post mortem report and contested it on the following ground (1) the post mortem report was not countersigned, (2) Absence of (sic) iva/blood from the mouth which is common in case of death Ranging, (3) Presence of ligature mark can not be diagnostic death form hanging, inasmuch as, being a cadaveric phenomenon, it may be produced if a body has been suspended after death. Person hanged alive similar murk can be produced if suspended within 2 hours or even a longer period after death. However one can safely say that death was due to hanging if, in addition to the cord mark: there were tickling of saliva from the mouth of the victim and slight abrasions about the ligature mark, laceration of the intima of the carotid arteries with extravasation of blood within their walls and signs of struggle and nail marks, fatal injuries, or poisioning. To Substantiate his submission Mr. Phukan referred Modi''s Medical (sic)sprudence 28th Edition (Chapter 7 page 158). Mr. Phukan has submitted that on perusal of the post mortem report there is no such statement in the post mortem report to support the same except the finding that "Ligature mark around the upper part of the (sic) with its knot behind the loft car". Mr. Phukan has re-iterated that absence of drippling of saliva from the mouth substantiate, the (sic)eness of the story of death by suicide by hanging. He has fur-(sic) submitted that surprisingly, inspite of this Court''s order, the (sic) who conducted the post mortem did not appear before the court substantiate the post mortem report.

In view of the facts and circumstances of the case we are constrained to believe that the death of Someswari by hanging her-self disputed and to unvail the cloud of suspicion proper probe (sic) to ascertain her suspicious death.

In respect of judicial enquiries Mr. Phukan has submitted if proper inquiry/investigation is not made and deterent punishment is not awarded to the culprits, more particularly, when they (sic) the protector of life and property of the citizen, people will (sic) confidence in the administration and as both the Army or B.S.P. (sic) personnel are involved, no justice can be expected from (sic) Administration. Admittedly Petitioner is not in a position to (sic) materials and produce real culprits because of the peculiar (sic) and circumstances of the case.

Heard Mr. M.A. Laskar, learned Addl. Advocate General, (sic) who has submitted that already a case has been registered (sic) Gohpur P.S. Case No. 12/90 and investigation is pending, (sic) therefore no parallel inquiry can be ordered. In this regard Mr. (sic) submission is that in this connection a U.D. case was reg(sic) the Gohpur Police. The learned Addl. Advocate General has further Submitted that in the instant case no specific case (sic) been established against the Army/Police personnel and there (sic) direction for holding a judicial enquiry and for payment of (sic)tia is not sustainable.

In the instant case from the facts and circumstances (sic) find it difficult to arrive at a decision regarding the facts (sic) to the death of Someswati. That apart, we find it difficult to (sic) enquiry directly, such as taking evidence etc. without which the (sic)stion in dispute can not satisfactorily be decided, more so, when (sic) Petitioner approaching this Court for enforcement of fundament (sic) right is not in a position to furnish all the relevant material (sic) necessary particulars. In such a case the court may appoint (sic)ssion or direct investigation or inquiry through appropriate (sic) or may also direct the case to be investigated by another (sic) like Central Bureau of Investigation to find out the proof of (sic)gation. in appropriate cases the apex court referred such mat(sic) the Central Bureau of Investigation for a thorough investigation (sic)Pite Of pendency of Magisterial enquiry or investigation by the (sic) It is submitted in the Bar that the case has been registered (sic)st the Army personnel (un named; as U.D. case and it is (sic) known how far the investigation is proceeding. At this stage it (sic) be helpful to refer the decision of the Supreme Court in State (sic) State of West Bengal and Others Vs. Sampat Lal and Others, In that case(sic) bodies of two boys were found from the railway track. The (sic) (sic) High Court directed the Director General of Central (sic) investigate the cause of death and to submit the report to the (sic) Hero in this case the police investigation, as we found, has act (sic) Proceeding as expected. Mr. Phnkan has unequivocally expressed (sic) about the feasibility of fair and Undisputed investigation (sic) Police authority of the State in view of the State of (sic) vailing in the State.

From the above discussion we hold that the case (sic)gated by the Central Bureau of Investigation Accordingly (sic) that the ease shall be referred immediately to the Central (sic) of Investigation for thorough and detailed inquiry by it. A (sic) the report shall be submitted to this Court for follow up act (sic)

On the prayer of compensation we heard bath the (sic) at length. Mr. Phukan, learned Counsel for the Petitioner has (sic) fended that the Petitioner is an unemployed youth. The (sic) Someswari was the bread-earner of the family. They are three brothers and his father is an old man aged about 60 years and a paralitic patient for mole than 11 years and their mother is also old. The entire family was financially helped by Someswari from her monthly salary and the family was somehow pulling on. On the facts and circumstances of the case, we are of the view that ex-gratia payment (payment without legal consideration) or some monetary payment in the nature of a palliative would be admissible in such a case. Moreover, Someswari was at the prime of her youth-aged only 22 years. If alive, she could have maintained the family for a long time. In view of the matter, if an amount of Rs. 2,00,000/- (Rupees two lakhs) is ordered to be paid to the parents of the deceased Someswari, it would meet the ends of justice.

For what has been stated above, we direct the Superintendent of Police, Central Bureau of Investigation, Shillong to register a case u/s 302 IPC and proceed with the investigation and after investigation is completed, this Court may be appraised of the result. It is needless to say that, the said Investigating Agency after completion of investigation shall proceed in accordance with the low. We further direct the Director General of Police, Assam, to handover the records of Gohpur Police Station Case No. 12/90 to the Superintendent of Police, Central Bureau of Investigation, shillong, immediately and positively within 15 days.

Regarding compensation, we make both Union of India and the State of Assam jointly and severally responsible for the payment of the aforesaid turn of Rs. 2 Lakhs (Rupees two lakhs) and the said sum shall be paid by an A/c Payee Cheque to the District and Sessions Judge, Sonitpur, Tezpur. The learned District and Sessions Judge, Tezpur shall disburse the amount to the parents of the Lt. Someswari Timungpi and the present Petitioner - viz Bihar Timung shall bring the parents to the Court of the learned District and Sessions Judge, Tezpur. If necessary, the learned District and Sessions Judge may send an officer for proper identification to the village, where the parents are residing. Out of the above sum of Rs. 2 lakhs (Rupees Two lacks) a sum of Rs. 1.50,000/- (Rupees One lakh fifty thousand) shall be kept in fixed deposit either with a Nationalised Bank or may be Unvested in the Unit Trust of India or any other similar scheme, so that, from the said amount the parents of the Late Someswari Timungpi and other family members may get a monthly income to maintain themselves.

A copy of this order may be sent to the Director General of Police Assam, Superintend of Police, CBI, Shillong and the learned District and Sessions Judge, Sonitpur, Tezpur.

With the above directions and observations, the writ petition is disposed of and the Rule Nisi is made absolute as we have awarded compensation. No order as to costs.