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Judgment
Kh. Nobin Singh, J
[1] Heard Shri N. Jotendro, learned Senior Advocate assisted by Ms. M.C. Linthoingambee, learned counsel appearing for the petitioner in WP(C) No.92 of 2013; Ms. K. Neeru, learned counsel appearing for the petitioner in WP(Cril.) No. 25 of 2013; Shri S. Suresh, learned ASG for the Union of India and Shri L. Shyam Sharma, learned Government Advocate appearing for the State respondents in both the writ petitions.
[2] Since both the writ petitions have arisen out of the same set of facts and circumstances, the same are being disposed of by this common judgment and order.
W.P.(C) No. 92 of 2013:
[3] By the instant writ petition, the petitioner who is the wife of late Shri Moirangthem Ibungo Singh @ Ingo, has prayed for issuing a writ of mandamus or any other appropriate writ to direct the respondents to pay compensation on account of the illegal killing of her husband.
[4.1] The case of the petitioner as alleged in the writ petition, is that her husband late Shri Moirangthem Ibungo Singh @ Ingo was, at the relevant time, serving as a SPO, Heirok under the jurisdiction of Superintendent of Police, Thoubal District, Manipur. He was the only earning member of the family. On 14-01-2012 at about 11:30 pm, the petitioner show a message on his mobile phone from Captain Hemraj of 15th Assam Rifles wishing him rest with family members but cautioning him to take care of himself. The petitioner was very much suspicious of the message so received from Captain Hemraj and was apprehensive, as the receipt of such message from army personnel in Manipur creates restlessness in the mind of the people.
[4.2] On 14-01-2012 after having his lunch, the petitioner's husband was preparing for going out somewhere and when she enquired, her husband replied that he was going out with Ibai (brother-in-law) Biren Singh for some work. Thus, he went out but he never returned home thereafter. Ibai Biren is none other than Shri Moirangthem Biren Singh who is serving as Havildar in 15th Assam Rifles. On the next day, the petitioner learnt from the local newspaper "Naharolgi Thoudang" dated 15-01-2012 that three persons had been killed at Langol and Kameng area in exchange of fire between the combined force of CDO/IW and Assam Rifles on the one hand and the undergrounds on the other hand. Their death bodies were kept in the Mortuary, RIMS, Imphal. As suspected on account of the message received from the Assam Rifles on 14-01-2012, the petitioner's husband was one of those who were killed.
[4.3] According to the petitioner, it was a well plan for which the 15th Assam Rifles, D-Company of Thoubal took her husband to their custody and shot him dead in the guise of exchange of fire to cover up a fake encounter. On 15-01-2012 Shri Ishak Shah, MPS, Addl. Superintendent of Police (OPS), Imphal West submitted a report to the Office-in-charge, Lamphel Police Station about the encounter, on the basis of which a case under FIR No.17(1) 2012 LPS u/S 307/34 IPS, 16/20 UA(P) Act, 25(1-C) Arms Act, 3 & 5 Expl. Act. was registered. The dead body of her husband was sent to RIMS, Imphal where the postmortem was conducted on 17-01-2012.
[4.4] Disbelieving the version of the police, the public raised hue and cry demanding for a judicial enquiry but the State Government issued an order dated 28-03-2012 for holding only a Magisterial Enquiry by an Executive Magistrate who issued a notification dated 03-04-2012 inviting evidence from the general public. Having no confidence with the magisterial enquiry, the petitioner, even after a notice dated 05-06-2012 being received from the Executive Magistrate, did not appear before it informing in writing that she would prefer to approach the High Court for redressal of her grievances.
[4.5] The illegal, brutal, inhuman and custodial killing of her husband compelled her to lead a pitiable life, for which the respondents are wholly responsible. The custodial death strikes a blow at the rule of law. No person should be deprived of his life except in accordance with the procedure prescribed in law. Since the fundamental rights guaranteed under Article 21 of the Constitution of India have been infringed, the award of compensation shall be an effective remedy for it.
[5] In the affidavit filed on behalf of the Union of India, the averments made in the writ petition were denied as baseless and false and in addition thereto, it has been stated therein that on 14/15-01-2012 no operation was launched by the 15th Assam Rifles in and around Langol and Kameng area and moreover, the said areas did not fall under the area of responsibility of the battalion. The operation was carried out by the Addl. Superintendent of Police (OPS), Imphal West wherein the Assam Rifles troops were not involved at all, as is evident from the FIR. On 16-01-2012 the Assam Rifles came to know about it when the brother of Md. Abdul Haque informed that his brother got killed in a police-UG encounter which was later confirmed from the newspaper. The State respondents also filed an affidavit denying the allegations made in the writ petition. According to them, on receipt of reliable information on 15-01-2012 that armed cadres of KYKL and MDF would collect arms and ammunitions including explosive materials from Lamsang area, the Addl. S.P, Ishak Shah along with police personnel proceeded towards the hill side for patrolling and when they reached Langal and Kameng hill range, one torch light was seen. They shouted as to who they were and without any delay, the police was fired upon, to which the police retaliated. A fierce encounter was ensued and after the encounter was over, a search was carried out wherein three dead bodies were found and one AK rifle with magazine, one 9mm pistol, two grenades were also found near the dead bodies.
W.P.(Cril.) No. 25 of 2013:
[6] By the instant writ petition, the petitioner has prayed for issuing a writ of mandamus to direct the respondents to pay compensation for the illegal and unjustified killing of her son, Md. Abdul Haque.
[7.1] According to the petitioner, she is the mother of Md. Abdul Haque who was serving as a rifleman of the 15th Assam Rifles. On 15-01-2012 at about 8.30 am, her son came home and on being asked, he told that he would be going for a secret mission along with others including Shri Moirangthem Biren Singh under the command of Captain Hemraj. After his meal, he prayed 'namaz' and at about 2 pm, he was heard talking to someone over the mobile. After the talk was over, he told that he was instructed to remain waiting for the team at Lilong Lamkhai Road for which he requested his brother (elder son) to drop him there and accordingly, both of them went by a two wheeler. While waiting for the team, he talked with Shri Moirangthem Biren Singh and a couple of minutes later, they saw three vehicles of 15 Assam Rifles approaching in a row. He got into the Gypsy where Captain Hemraj and Moirangthem Biren Singh were already sitting. At about 7 pm, her elder son tried to contact him but his mobile was found switch off. Her elder son rang up a personnel of 15 Assam Rifles whose short name was 'S.K' who replied that he was not aware of the whereabouts of her son. On enquiry at about 9 pm, Shri Moirangthem Biren Singh told her elder son that since her son and other had gone on a mission, their mobiles were switched off.
[7.2] On the next day, her elder received a call from Md. Raruk Khan, a police personnel asking whether her son was at home or at AR camp and when her elder son replied that he might be at AR camp, Md. Faruk Khan told that there was a news in the paper about an encounter in which three persons died and the name of one of them was Md. Abdul Haque. After going through a paper 'Naharolgi Thoudang', the petitioner and her elder son went to the camp of 15 Assam Rifles at Thoubal and met the CO who informed them that since her son had died while on duty, all arrangements be made by the Assam Rifles for her son's funeral ceremony, for which the petitioner was given Rs.50,000/-on the same day.
[7.3] On 15-01-2012 Shri Ishak Shah, MPS, Addl. Superintendent of Police (OPS), Imphal West submitted a report to the Office-in-charge, Lamphel Police Station about the encounter, on the basis of which a case under FIR No.17(1) 2012 LPS u/S 307/34 IPS, 16/20 UA(P) Act, 25(1-C) Arms Act, 3 & 5 Expl. Act. was registered.
[7.4] The postmortem was conducted on the dead body on 17-01-2012. On the same day, the dead body was brought back home by the personnel of Assam Rifles and ritual ceremony was performed accordingly.
[7.5] On 15-03-2012 the Major/ Deputy Commandant, 15th Assam Rifles issued a false certificate certifying that her son was on casual leave from 06-01-2012 to 20-01-2012 in order to keep the real scene hidden and that her son demised on 15-01-2012 during cross firing of police and the terrorist which took place at Lamdeng Village. On 05-10-2012, Record Officer, Unit Pay & Accounts Office, Directorate of Assam Rifles, Shillong issued an order granting provisional family pension and death gratuity in respect of her son declaring that the petitioner is eligible for the same.
[7.6] As there erupted a public uprising against the unjustified killing of her son, the District Magistrate issued an dated 29-03-2012 for conducting a magisterial enquiry. The petitioner and her eldest son filed their affidavits but the report thereof was not declared till then and made known to her. Having seen in the past that such reports of the magisterial enquiry were kept hidden without declaration, on 10-01-2013 the petitioner submitted a memorandum to the Hon'ble Deputy Chief Minister who held the portfolio of Home for initiating a judicial enquiry but in vain.
[7.7] Her son was eliminated by a combined team of Manipur police commando, Manipur Rifles and IRB deliberately without any justification and therefore, the respondents are not inclined to take any action against the personnel involved in such crime. The personnel of Manipur police commando, Assam Rifles and other security personnel had killed a large number of innocent people but no personnel involved in such heinous crime was prosecuted or punished in Manipur, as a result of which the atrocities and harassment meted out by them towards the citizens increases day by day. It is high time that such perpetrators be awarded exemplary punishment so as to secure confidence of the people in the judicial system.
[8] An affidavit in opposition on behalf of the respondent Nos.4 & 5 has been filed wherein it has been denied that the petitioner's son was brutally killed by the Manipur police Command in connivance with the personnel of Assam Rifles. The petitioner's son was on casual leave for 15 days from 06-01-2012 to 20-01-2012 and as per the findings of the Staff Court of Enquiry, her son was killed in a cross fire between the police and the undergrounds due to bullet injuries on 15-01-2012. No operation was launched by the unit on 15-01-2012 as alleged by the petitioner nor did the area fall within the area of its responsibility. The stand of the State Government is similar to that of the stand taken in WP (C) No. 92 of 2013 and therefore, the same are not repeated here for the sake of brevity. In addition thereto, it has been stated that the deceased, Shri Th. Benanta Singh had been arrested twice on earlier occasions for being a member of KYKL and also for indulging in criminal acts. So far as Md. Abdul Haque is concerned, it has been stated that he died due to the encounter and all the three deceased colluded along with others and committed the offence of attacking police personnel to murder them.
[9] In respect of the WP(C) No.92 of 2013, in order to ascertain the facts and circumstances leading to the death of the late Shri Moirangthem Ibungo Singh @ Ingo, this Court vide order dated 15-12-2014 directed the learned District & Sessions Judge, Imphal-East to inquire into and submit a report to this court. The order dated 15-12-2014 is reproduced herein below:
"W.P. (C) No. 92 of 2013
BEFORE
HONB'LE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE KH. NOBIN SINGH
05.12.2014
C.J.
Having perused the writ application as well as counter affidavit filed by the respondents and after hearing the learned counsel appearing for the parties, we are of the view that an enquiry is required to be conducted with regard to the allegation of fake encounter. We accordingly, direct the learned District & Sessions Judge, Manipur East to conduct an enquiry and submit the report within six months from the date of receipt of this order.
A copy of this order along the copy of the writ application/counter be transmitted to the learned District & Sessions Judge, Manipur East by the office to conduct the enquiry.
Put up this case after receipt of the enquiry report of the learned District & Sessions Judge, Manipur East.
JUDGE CHIEF JUSTICE"
In compliance with the said order, the learned District & Sessions Judge, Imphal-East, after the enquiry was over, submitted its report dated 31-10-2018. After going through the report, we find that the learned District & Sessions Judge framed four issues and examined six prosecution witnesses and five respondent witnesses. After appreciating the evidences, the learned District & Sessions Judge came to the conclusion that the issue whether the deceased was actually killed in an encounter by a combined force of CDO and Assam Rifles, could not be answered for want of materials and it is rather a mystery. As regards the issue whether the deceased was killed in a fake encounter, the learned District & Sessions Judge expressed its inability to form an definitive opinion on the ground that the weapons used by the security personnel were not seized and not subjected to forensic test as to ascertain whether the bullets as seized from the spot, were fired from any of the service weapons of the security personnel. Moreover, there is no any mention of a person fleeing from the place of occurrence either before the firing or during the firing or after the firing. The relevant paragraphs of the report are as under:
"X. After analysis of the deposition of witnesses and exhibits before this Court and coming to the issue at hand:-
It has been unanimously stated by all prosecution witnesses excepting the Doctor and admitted by two respondent witnesses, namely R.W. No. 2, Hav. M. Biren Singh and R.W. No. 4, Inspect H. Balram Singh that the deceased was serving as an SPO, Heirok Thoubal. Hence, issue No. 1 is in favour of the petitioners.
Regarding whether the deceased Moirangthem Ibungo Singh was utilized by the 15th Assam Rifles in connection with Surrender Policy, the prosecution witnesses excepting the Doctor, here too unanimously stated knowing the fact either directly or indirectly. However, respondents have flatly denied using the deceased as an agent in the Surrender Policy.
Regarding whether the deceased was killed by a combined force of CDO, Manipur Police and Assam Rifles, it has been charged and claimed by prosecution witnesses (excepting the Doctor) that the deceased was killed in the said manner. Respondents, on the other hand, denied that Assam Rifles was ever involved in the said incident.
Surprisingly, the I.O. of the case, R.W. No. 4, H. Balram, during cross examination stated twice that he saw Assam Rifles personnel [Para VIII (21)] and Central Forces [Para VIII (23)] present at the spot when he visited the P.O. As such, presence of personnel 15 Assam Rifles at the spot and whether the deceased was actually killed in an encounter by a combined force of CDO, Manipur Police and (including) Assam Rifles is rather a mystery.
Lastly, as regards whether the deceased was killed in a fake encounter, it is seen that in the deposition of the I.O. of the case, R.W. No. 4, Heisnam Balram, it was stated that Forensic Report of seized articles (weapons, ammunitions, fired empty cases and bullets) from the spot that two fired bullets Ext. F and Ext. J2 were unaccounted for. The relevant portion is reproduced hereunder:-
"As per FSL report vide opinion/ report No. 47(10)12-BA dated 12/10/2012. LAB case No. 33(4)12/BA dated 07/04/2012, Exhibited as Ext. C is a 9 mm caliber serviceable NORINCO pistol, EXT CI to C3 are 9 mm serviceable pistol cartridge, Ext D is a 7.62 mm caliber serviceable AK type Rifle, Ext D1 is a 7.62 mm caliber serviceable AK cartridge, Ext E1 to E10 are fired empty 7.62 mm caliber AL cartridge cases, Ext F and J2 are
7.62 mm caliber fired AK bullets, EXT E2, E5, E6, E7, E8 and E9 were fired from Ext D and a definite opinion on Ext E1, E3, E4 and E10 were not possible as to whether they were fired from D or not, and Ext F was not fired from D and no definite opinion possible whether Ext J2 was fired from Ext D or not."
Further, the weapons used by the security personnel were not seized and subjected to forensic test as to ascertain whether the bullets mentioned above were fired from any of the service weapons of the security personnel. There is no mention also of any person fleeing the place of occurrence, either before the firing, during the firing or after the firing. Furthermore, the I.O. of the case, during his investigation found no criminal record against the present deceased person [VIII (23)]. Hence, no definitive opinion can be form in connection with this issue.
Final opinion regarding the issues at hand are left to the wise and learned reasoning of the Hon'ble Judges of the High Court of Manipur."
[10] Similar is the case with the WP(C) No.25 of 2013 for which in compliance with the order dated 22-04-2015, the learned District & Sessions Judge conducted an enquiry and submitted a report. On perusal of it, it is seen that two issues were framed and both the prosecution and the respondents examined five witnesses each to prove their cases. After appreciating the evidence, the learned District & Sessions Judge came to the conclusion that while IO being cross-examined, he agreed to a suggestion that he did not find any criminal antecedents of late Md. Abdul Haque. According to the Assam Rifles, late Md. Abdul Haque was a Rifleman and was killed in a cross firing between the police and the undergrounds. Therefore, all the benefits accrued to him had been given to the next of kin. But on the other hand, the Under Secretary (Home), Government of Manipur alleged in his affidavit that late Md. Abdul Haque who attempted to commit murder, had been indulging in activities for waging war. In view of this, the learned District & Sessions Judge left the issues undecided. The relevant paragraphs of the report are as under:
"XI. On analyzing the statements of the prosecution witnesses as well as that of the respondents, it is seen that for the petitioner and her supporting witnesses, there is not a single deviation from the facts alleged and they have not been shaken when cross-examined.
1) It has been alleged by the prosecuting party that (L) Md. Abdul Haque was on a secret mission on 15/01/2012 led and supervised by Captain Hemraj of 15th Assam Rifles and also consisted of one Moirangthem Biren Singh, Havildar of 15th Assam Rifles [IX(2)]. However, the said Captain Hemraj and Moirangthem Biren Singh, in their respective examination as respondent witnesses, denied having gone on a secret mission on 15/01/2012 along with (L) Md. Abdul Haque and rather stated that they were in their Camp on the alleged day [X(10), X(14)].
2) It has also been alleged that after the death of (L) Md. Abdul Haque, the Authority of 15th Assam Rifles gave immediate relief of Rs. 50,000/- for funeral proceedings of (L) Md. Abdul Haque [IX(10)], that on 16/1/2012, the 15th Assam Rifles decorated the coffin of (L) Md. Abdul Haque with Indian National Flag and gave salute to the dead body as a martyr, who sacrificed his life for the sake of good cause of the nation [IX(15)]. The respondents have also refuted this claim of the petitioners. However, respondent No. 1, Captain Hemraj, on being crossed by the ld. Counsel for the petitioner, agreed that Record Officer, Unit Pay and Account Office, Directorate General Assam Rifles, Shillong - 11 issued letter for grant of provisional family pension and death gratuity in respect of (L) Md. Abdul Haque [X(8)].
3) It has also been alleged by the petitioners that the Major/Deputy Commandant of 15 Assam Rifles issued a false certificate that (L) Md. Abdul Haque was on casual leave from 06/01/2012 to 20/01/2012, and that the certificate was issued only on 15/03/2012 after 2 months of the actual occurrence [IX(39)]. The respondents have also denied this allegations stating that (L) Md. Abdul Haque indeed took casual leave during the above mentioned period and that the leave certificate was issued on 05/01/2012 [X(4)]
XII. On further scrutinizing the depositions made by respondent witnesses, there are evidently some discrepancies:-
1) First, R.W. No. 3, Heisnam Balram Singh, the I.O. of the case, in his examination-in-chief stated that the complainant, Shri Ishak Shah, MPS (Addl. S.P.-Ops) stated in the complainant that Ishak Shah saw one torch light signal on the particular day before the firing started [X(36)]. However, the said torch was never recovered at the P.O. after the firing incident.
2) Secondly, R.W. No. 3, Heisnam Balram Singh also stated in his examination-in-chief, that as per the report of the complainant, the militants attacked from left and right of northern side towards the security personnel [X(37)]. However, none of the security personnel involved in the firing sustained any injury despite being fired from two opposing directions.
3) Thirdly, R.W. No.4, Ishak Shah, the complainant, in his examination-in-chief, stated that the distance between their security team and the position of the militants would have been about 250-270 feet (76.2m to 82.3m) [X(59)]. R.W., No. 3, the I.O. of the case, however, when crossed by the ld. Counsel for the petitioner stated that the distance between the spot of the police team and the alleged attacker would be in between 50 to 100 m [X(53)]. The same distance, however, by P.W. No. 5, Dr. Khagembam Pradipkumar Singh, the doctor who conducted post mortem examination over the dead body of (L) Md. Abdul Haque, stated that the range of the firearm of all the injuries sustained by (L) Md. Abdul Haque to be in between 2.5 to 3 feet away [IX(66)].
XIII. Further, R.W. No. 3, the I.O. of the case, when cross-examined agreed to the suggestion that he did not find any criminal antecedents of (L) Md. Abdul Haque during the course of his investigation [X(55)].
XIV. Finally, it is seen that, V.S. Ramting, Under Secretary (Home) Government of Manipur, in the affidavit-in-opposition on behalf of the respondent No. and 3 alleged that (L) Md. Abdul Haque has been accused as armed cadre of banned outfit, KYKL (MDF), who attempted to commit murder on the police and he has been indulging to commit the offence of waging war [IV(2)]. However, on considering failure of the respondents to produce substantiating evidence in this regard, on one hand and the release of all the benefits to next of kin by authority of 15th Assam Rifles, on the other, it can be safely presumed that (L) Md. Abdul Haque was not a member of the banned outfit KYKL (MDF).
Final analysis and decision as to the issues framed are kept pending to be decided by the wise and learned reasoning of the Hon'ble Judges of the High Court of Manipur."
[11] This Court is not sitting as an appellate Court to appreciate the evidence and examine the correctness of the findings of the learned District & Sessions Judge, Imphal East but to examine whether the conclusion of the learned District & Sessions Judge is based on the evidence. Having gone through the report, we are of the view that the conclusion arrived at cannot be said to be without any basis. The reasons given by the learned Sessions judge do not seem to be unreasonable under the facts and circumstance of the case and hence, this Court has no reason to disagree or come to a different conclusion. We are of the further view that the petitioners have failed to prove their prima facie cases and since the petitions are devoid of any merit, the same are liable to be dismissed.
[12] For the reasons stated hereinabove, the instant writ petitions are dismissed with no order as to costs. But it is open to the petitioners to approach any appropriate forum for redressal of their grievances including the claims for payment of compensation, in the event of the respondents being found to be guilty of killing their husband/ son after the criminal trials are over.