Garamjan Bibi vs The State of Manipur

N. Kotiswar Singh, J.—Heard Mr. M. Rakesh, learned counsel appearing on behalf of the petitioner as well as Mr. R.S. Reisang, learned Sr. GA appearing on behalf of the State respondents.

The present writ petition has been filed by the petitioner, Mst. Garamjan Bibi, who is the mother of one Md. Azad Khan, aged about 12 years, who was alleged to have been killed by the personnel of the Manipur Police Commandos and 21 Assam Rifles, seeking compensation and other relieves against the respondents.

According to the petitioner, on 4.3.2009, in the morning at about 11.50 a.m. when her son, Md. Azad Khan was reading a local newspaper at the verandah of their house along with one of his friends Shri Kiyam Anand Singh, some personnel of Manipur Police Commandos rushed to their house and assaulted the said Md. Azad Khan on the charge of belonging to a proscribed organization and also abused his friend, Shri Kiyam Anand Singh. Thereafter, Md. Azad Khan was dragged away by the police personnel and fired some rounds in the air to prevent the petitioner and other family members from coming near them. The Police personnel also threatened them not to approach them by pointing their guns to them. According to the petitioner, the Police personnel after dragging Md. Azad Khan for about 70 meters was pushed down on the paddy field of Md. Abdul Azij, a neighbour and shot him dead and thereafter threw a pistol near the dead body of Md. Azad Khan. According to the petitioner, the whole incident was witnessed by the petitioner and her family members and other neighbouring villagers. According to her, after killing her son in the aforesaid manner, the dead body of Md. Azad Khan was taken away by the personnel of Manipur Police Commandos in their vehicle. According to the petitioner, on the same day a written complaint was made against the police personnel before the Officer-in-Charge, Mayang Imphal P.S. about the said incident. However, no action was taken on the basis of the said complaint. On the other hand, the Police lodged a false report on the same day before the Mayang Imphal P.S. claiming that on getting certain information about the presence of armed underground cadres of People United Liberation Front (PULF) in the general area of Phoubakchao and Sekmaijin with an intention to extort money from general public and to attack security forces at an opportune moment, two teams of Manipur Police Commandos along with a column of 21 Assam Rifles rushed to the area to pre-empt such subversive activities. According to the said report lodged by the Police, at about 11.50 am while the combined team of security forces were approaching Phoubakchao and Chatrakhong from Sekmaijin side, two youths were seen moving hastily towards the paddy field. When the combined team of security forces shouted them to stop, they run towards the paddy field who were then chased. While chasing, the said two unknown youths turned around and fired some rounds from their small arms towards the chasing security personnel and ran away in two different directions. In the subsequent retaliatory firing one of the underground extremists who was running towards the paddy field was killed but the other who ran towards the bamboo groves managed to escape.

According to the petitioner, since the said alleged encounter never took place, there was a public uproar which led to the Government to direct the Inspector General of Police, Manipur on 13.3.2009 to enquire into the incident of killing of Md. Azad Khan and to submit the report within a month. However, according to the petitioner, no such report has been submitted. Accordingly, the petitioner has approached this Court for appropriate relieves including payment of compensation for the alleged killing of her son by the personnel of Manipur Police Commandos, who were accompanied by the personnel of 21 Assam Rifles as mentioned above.

The respondent authorities had filed their respective affidavit-in-oppositions denying the allegations of the petitioner. In view of the conflicting versions of the incident in which the said Md. Azad Khan was killed, this Court by an order dated 15.06.2009 directed the District Judge, Manipur West to make an enquiry about the disputed fact relating to the death of Md. Azad Khan and to submit a report. Pursuant to the direction of this Court, the District Judge, Manipur West, after making necessary enquiry, submitted his report dated 31.7.2012 and gave following findings:

"42. In view of the findings discussed above the facts and circumstances leading to the death of the Md. Azad Khan may be briefly stated as follows: That, Md. Ajad Khan(deceased), a minor son of Md. Wahid Ali, of Phoubakchao Makha Leikai, Yumnam Leirak, PO & PS Mayang Imphal, Imphal West District, Manipur was reading news paper with his neighbour friend Kiyam Anand Singh (PW-9) on 04.03.2009 at about 11 a.m. on the veranda of their house. At about 11:30 a.m. a combined team of Manipur Police Commando and 21st AR personnel consisting of about 30 personnel came to the house of deceased Md. Ajad Khan. The Manipur Commando personnel apprehended deceased Md. Ajad Khan and commando personnel had dragged out the deceased Md. Ajad Khan towards the north of the house for about 70/80 meters near a paddy field located on the adjacent north of their house and was shot and killed by the police commando personnel. The police commando personnel then implanted a pistol near the dead body of Md. Ajad Khan."

Though this Court is not sitting as an appellate court over the findings given by the District Judge, Manipur West in terms of the orders passed by this Court, we have nevertheless given our due consideration to the report and the evidence which were produced before the Court on the basis of which the said report was prepared.

From the enquiry report submitted by the District Judge, Manipur West, it is seen that as many as 10(ten) witnesses were produced on behalf of the petitioner. On the other hand the respondents examined as many as six witnesses in support of their case.

The petitioner who was examined as PW1 and was an eye witness to the said incident stated that the 3 (three) Commando personnel''s had rushed towards her son Md. Azad Khan while he was reading a newspaper in the verandah along with his friend, Kiyam Anand Singh. The Commando personnel charged her son to be an underground activist. She also saw her son being dragged towards the northern direction and being beaten up severely. Though she and her husband, who was examined as PW2 tried to intervene, it was to no avail. When they tried to stop their son being dragged away, they were stopped by one Assam Rifle personnel pointing his gun towards her husband and her husband was also beaten up. Other relatives, namely, Ibehal Bibi who was examined as PW3, Madina Bibi who was examined as PW4 and said Kiyam Anand Singh who was examined as PW9 were all pushed inside the house which was then locked from outside. However, all of them saw the occurrence of the incident of the said Azad Khan being dragged away and shot about 70 meters away from their house in the paddy field of Md. Abdul Aziz through the window. They also witnessed one of the Commando personnel''s throwing a pistol near the dead body of Md. Azad Khan. Thereafter, the dead body was taken by the police commandos in their vehicle. The petitioner''s husband Md. Wahid Ali (PW2), the father of the deceased, Ibehal Bibi (PW3) who was sister-in-law of the petitioner and Madina Begum (PW4), the daughter of Ibehal Bibi who were all eye witnesses deposed to the same effect. Kiyam Anand Singh who was examined as PW9 was not related to the deceased but a crucial eye witness had also deposed on similar lines. He had stated that he and Md. Amzad Khan were studying together in the same school i.e., Phoubakchao High School. While he was studying in Class IX, Md. Azad Khan was studying in Class VII in the same school. He stated that on 4.3.2009, there was no class in the school as some of the teachers of their school were deputed for examination duty for the HSLC Examination, 2009 and as such he did not go to school and went to the residence of the deceased Md. Azad Khan when the said incident took place. Another villager in the same locality, namely, Salim Khan who was examined as PW5 also witnessed the incident of Md. Azad Khan being shot in the paddy field of Md. Abdul Aziz while he was planting maize at his homestead land which is adjacent to the paddy field of Md. Abdul Aziz. Another villager of the same locality, namely, Hasim Ali who was working as Chowkidar in the Phoubakchao High School and examined as PW6 had witnessed the coming of 3 (three) police Gypsy vehicles and going of some police commandos and Assam Rifle personnel''s towards the gate of the house of the petitioner and he also heard the sound of gun firing. When he came out to find out what was happening, he saw the deceased Md. Azad Khan laying down in the paddy field of Md. Abdul Aziz. He also witnessed the said Md. Azad Khan being shot by one of the police personnel.

Thus, we have noted that the incident of the deceased Md. Azad Khan dragged away from his house and shot at by the police personnel in the paddy field belonging to Md. Abdul Aziz was witnessed not only by the family members and relatives of the petitioner but also by other neighbours and villagers. The Ld. District Judge also observed that their testimonies have not been shaken.

As regards the deposition of the witnesses produced on behalf of the respondents it is in the line of the police report filed by the police that on the said day a joint operation was conducted by the police and Assam Rifle personnel''s in the Phoubakchao and Sekmaijin area at about 10.30 a.m. and as they approached one house in the Phoubakchao village, 2 (two) youths started to flee from the backside of the house and while fleeing they fired upon the combined team. The 2 (two) youths tried to run away, in spite of being warned not to do so. Thereafter, an encounter ensued for about 4-5 minutes and one was killed and another managed to escape. On searching, a pistol and some ammunitions were found near the dead body later identified as that of Md. Azad Khan which were duly seized. The respondent witnesses stated that they remained at the place of occurrence for about an hour. However, as the villagers started to converge at the place of occurrence, apprehending breach of peace, they took the dead body along with the seized articles which were later handed over to Mayang Imphal Police and a formal written report was lodged there in respect of the said incident. It was the case of the respondents that the said 2 (two) youths had run in 2 (two) different directions, one towards the paddy field who was ultimately shot dead and the other towards the bamboo bushes growing inside the village and managed to escape.

The learned District Judge had noted that though the incident allegedly occurred in a populated village during daytime, no independent witness or civilian witness was produced to corroborate the version of the respondent. The District Judge also observed that though one of the 2 (two) youths had managed to escape by firing towards the security personnel, neither the police nor the security personnel recovered any empty cases of the bullets alleged to have been fired by the escaped youth. The learned District Judge also noted that as per the account of the respondents'' witnesses, the Assam Rifles team was led by one Major Balara who, had apparently on receipt of information regarding alleged movement of underground cadres of PULF entered general area, Phoubakchao and Sekmaijin with an intention to extort money from the general public and to attack the security forces, launched the operation along with a team of Manipur police commandos on 4.03.2009. The Ld. District Judge also noted that though the said Major Balara was one of the most important witnesses as he was the one who received the information as mentioned above and who also led the Assam Rifle personnel, but he was not examined.

The learned District Judge also observed that the alleged Seizure Memo regarding the seizure of the arms and ammunitions from and near the dead body of Md. Azad Khan was not produced at the time of enquiry and also noted the lack of independent witnesses to support the said seizure. Learned District Judge after weighing the evidences of the contesting parties was inclined to believe the version of the petitioner.

Accordingly, the learned District Judge gave the finding that Md. Azad Khan, a minor son of the petitioner was killed by the combined team of Manipur Police Commandos and 21 Assam Rifles on 4.03.2009 after dragging him away from his house. This Court on going through the evidence on record and inquiry report do not find any material or reason to disagree with the analysis and conclusion arrived at by the learned District Judge, Manipur West and accordingly, we also hold that there is no reason to disbelieve the version of the petitioner that the petitioner''s son was killed by the combined team of the Manipur Police and the Assam Rifle Personnel''s after being apprehended from his residence on 4.03.2009.

Having held that the Manipur Police Commandos and the Assam Rifle personnel were responsible for the death of the petitioner''s son, they would be liable for payment of compensation under the public law remedy as the death was caused without following the process established by law. However, the next question that arises is to consider the quantum of compensation which the respondents may be liable to pay.

The issue regarding quantum of compensation based on the principle of constitutional law remedy has been dealt with by this Court in other writ petitions being W.P. (Cril.) No. 68 of 2009 (Smt. Thiyam Ongbi Tanoubi Leima vs. State of Manipur & Ors.) disposed of by this Court on 11.09.2014 and in WP(C) No. 1083 of 2002 (Shri Khundongbam Manisana Singh Vs. The Union of India & Ors.) disposed of on 18.07.2014 highlighting the absence of any uniform criteria or principles. Without elaborating on this issue, it will suffice to say that in absence of uniform standards or criteria or principles to deal with such an issue arising out of constitutional law remedy it has been left to the Courts to determine the quantum keeping into consideration the entirety of the facts and circumstances of the case.

To determine the quantum of compensation, we have taken into consideration the fact that the petitioner''s son was a minor who was only about 12-14 years of age and was a student at the time of his death. We have also noted that apart from the allegation of the respondents that he was an armed UG Cadre, there are doubts about it. Neither any independent evidence nor credible evidence had been produced to link the son of the petitioner with any underground organization. Accordingly, having regard to the facts and circumstances as disclosed in the inquiry report, we are of the view that at least an amount of Rs. 5 lakhs ought to be awarded to the petitioner under the public law remedy for the death caused to her son without following the procedure established by law, which has to be shared equally by the State respondents as well as by the Assam Rifle authorities as the personnel of Manipur Police Commandos and the Assam Rifles had jointly conducted the operation in which the petitioner''s son was killed as mentioned above.

Accordingly, under the circumstances as disclosed and for the reasons discussed above, the writ petition is allowed with the direction to the respondents to pay a sum of Rs. 5 lakhs to the petitioner for the death of her son, which is to be shared equally by the State respondents as well as the Assam Rifle authorities within a period of 4 (four) months from today.

It is also observed that, if the petitioner is desirous of getting more compensation amount in addition to the amount we have ordered, the petitioner would be at liberty to take recourse to civil law remedy.