Loitongbam Sarat Singh vs The Statement of Manipur

Laxmi Kanta Mohapatra, C.J.—The petitioner is the father of late Loitongbam Satish @ Tomba Singh and he has filed this writ application claiming compensation on allegation that his deceased son was taken to custody along with his friend, Pebam Gunindro Singh, by the CDO Thoubal and security personnel of 23rd Assam Rifles and was killed by them on 18.5.2009.

Petitioner''s case, in brief, is that his deceased son had married to one Chongtham Ningol Loitongbam Ongbi Ranjita Devi and they had a child about 6 months old. The deceased was educated and was earning about 18-20,000/- rupees per month through private tuition in subjects such as Mathematics and Economics. On 16.5.2009 the deceased and his friend, Pebam Gunindro Singh, did not return home in the night. The petitioner, therefore, inquired from the family members of the said P. Gunindro Singh. He learnt that he had also not come back on that night. Thereafter, the wife of the petitioner along with the wife of the deceased went to Heingang P.S. and lodged a written complaint on 17.5.2009 having learnt that the deceased and his friend had been picked up by some unknown armed persons when they were coming out from Manipur Central Jail, Sajiwa after meeting the other son of the petitioner. On 19.5.2009 from a local Daily publication the petitioner learnt that the deceased had been killed in an encounter by the combined force of Thoubal police commandos and 23rd Assam Rifles at Laikotching under Lamlai P.S. Imphal East on 18.5.2009 at about 6.15 p.m. and the dead body of the deceased had been kept in the mortuary of RIMS. It was also published in the Newspaper that one.32 pistol with a magazine containing 5 live rounds, 3 live round of AK 47 Rifles and 2 detonators had been recovered from the deceased. Upon further enquiry it came to the notice of the petitioner that one Hollal Haokip Jemandar, a police personnel of Lamlai P.S. had also lodged an FIR on 18.5.2009 alleging therein that on receiving reliable information that some active members of PLA group were taking shelter in general area of Laikotching holding small weapon with a motive of hijacking vehicles for ransom and ambush on security forces, the combined team of CDO/Thoubal and a team of 23rd A.R. immediately rushed to the said general area. On the way in between Sabungkhok and Laikot village at about 6 p.m. the team saw suspicious movement of some 2/3 individuals and on challenge they opened fire towards them. Thereafter, the combined team took position and retaliated firing. One person was killed at the spot and the other managed to escape taking advantage of darkness into the jungle. It was also alleged that in course of search one .32 pistol with live rounds, 3 empty cases and detonators were recovered from near the dead body.

Considering the claim of the petitioner and the stand taken by the respondents, the Court directed the learned District Judge, Manipur East to conduct an enquiry and submit the repost. In compliance of the said order, the learned District Judge has submitted report on 16.5.2012 holding that when the deceased and his friend were coming out of the Sajiwa Jail on 16.5.09 after meeting the brother of the deceased, on reaching the Imphal-Ukhrul road, some security personnel picked them up in a Maruti Gypsy and took them to one army camp. In the said army camp the deceased and his friend were tortured and on 18.5.09 the deceased was killed in cold blood by the security personnel of 23rd Assam Rifles while he was under their custody. The conclusion of the learned District Judge, appearing in para 23 of the report, is quoted below:

"23. In the result, I have decided that the petitioner''s son Loitongbam Satish @ Tomba Singh was killed by the personnel of 23 Assam Rifles led by Major Kaushalendra Singh (R.W. No. 2) and personnel of Thoubal Police Commandos led by S.I. Hollal Haokip while he was in their custody in a fake encounter and the deceased L. Satish @ Tomba Singh was not killed from any exchange of firing alleged by the respondents."

Mr. Amarjit Naorem, learned CGSC appearing for the respondents submitted that there is no eye witnesses to the death of the deceased and there is also no record to show that the deceased had been arrested by the CDO Thoubal and in absence of any such evidence, the learned District Judge committed an error by concluding that the death of the deceased was at the time when he was under the custody of the CDO Thoubal and the personnel of 23rd Assam Rifles. It was also submitted by Mr. Amarjit Naorem, learned counsel appearing for the respondents that the arms and ammunitions having been found near the dead body of the deceased, the stand taken by the respondents should have been accepted by the learned District Judge. Similar argument was also advanced by RS Reisang, learned Sr. Government Advocate appearing for the State respondents.

Mr. Ph. Sanajaoba, learned counsel appearing for the petitioner placed reliance on the report of the learned District Judge, with reference to evidence of PW 2, who was all along there with the deceased till his death and submitted that there is no reason for the Court to discard the report submitted by the learned District Judge.

We have carefully perused the report of the learned District Judge as well as the deposition of witnesses examined in course of the enquiry. The learned District Judge, considering the stand taken by both the parties, framed an issue to the effect as to whether the deceased was apprehended by the combined team of Manipur police and personnel of 23rd Assam Rifles near Sajiwa Central Jail on 16.5.2009 and if so whether he was killed by the combined team in an encounter on 18.5.2009. It appears from the enquiry report that 4(four) witnesses were examined on behalf of the petitioner and the respondents also examined two witnesses. The main witness is PW 2 who, as per the version of the petitioner, was all along with the deceased from the time of arrest till death of the deceased.

From the report we also find that the learned District Judge has elaborately discussed the deposition of PW 2 in the report. From the deposition of PW 2, it appears that he along with the deceased had gone to the Central Jail, Sajiwa on 16.5.2009 to meet the brother of the deceased. After they came out from the Jail and were moving towards the main road in a Scooter, they were stopped by some security personnel on the main road who were in civil dress. The said security personnel approached the deceased and PW 2 and asked them to get themselves into the bullet proof Gypsy used by them. On being questioned, both the deceased and the witnesses were informed that their presence is required by the Officer in-Charge of the concerned Police station. After they moved in the vehicle for some time on the Imphal-Ukhrul road, both of them were blind folded and were ultimately taken to a Military camp where they were asked to sit in a room with blind fold and thereafter they were tortured. On 18.5.2009 the deceased was shot dead and this witness was released. The deposition of this witness is corroborated by the external and internal injuries found on the body of the deceased. The other witnesses support the evidence of PW 2 to the extent that both the deceased and the PW 2 had gone to Sajiwa Jail to see the brother of the deceased and that they came to know about the death of the deceased from Newspaper.

Though a stand has been taken by the respondents that the deceased was killed in an encounter and had fired upon the security personnel and some arms and ammunitions were recovered from near the dead body, the said stand taken by the respondents has been disbelieved by the learned District Judge with reasons. We, therefore, find no justification to discard the report of the learned District Judge and we are also of the view that the conclusion arrived at by the learned District Judge in the inquiry is justified specially on consideration of the evidence of PW-2 and the Post Mortem report.

Having accepted the report of the learned District Judge, next question comes up for consideration is as to what should be the quantum of compensation. Though it is claimed by the petitioner that the deceased was earning 18-20,000/- rupees per month, no documentary evidence has been produced in course of the enquiry to prove the claim. On the other hand, we find that the deceased was a married person and was also having a child. Since he was maintaining his family, he must be having some income of his own. On consideration of this fact, we are of the view that compensation of Rs. 5 lacs in the facts and circumstances of this case would be just and proper.

We accordingly allow the writ petition and direct the respondents-8, 9 and 10 to pay the compensation of rupees five lakh to the petitioner within 6(six) months from the date of communication of this order. Out of the said compensation, a sum of Rs. 3 lakh shall be kept in a nationalized Bank in the name of the wife of the deceased. If the petitioner is not satisfied with the quantum of compensation, it will be open for him to approach competent civil court to establish a claim for higher compensation.