Banalata Dash v. State Of Orissa & Others

S.K. Mishra, J.

1. The petitioner, mother of the deceased-Smruti Ranjan Das @ Papu, has filed this writ petition seeking directions from the Court to handover investigation of the custodial death of her son to CBI for independent and fair investigation and direct the State to give adequate compensation to her for the death of her son.

2. The petitioners son, Smruti Ranjan Das, was arrested on 05.09.2001 in connection with G.R. Case No.1408 of 2000 and was forwarded to the Choudwar Circle Jail on 06.09.2001, vide Admission No.3455 of 2001. While the said Smruti Ranjan Das was in Choudwar Jail under the supervision and control of the Choudwar Jail authorities, he was declared dead on 02.12.2001. On receiving the information, the petitioner and others went to Choudwar Jail and were informed that the dead body of the deceased has been sent for post-mortem examination to the S.C.B. Medical College and Hospital, Cuttack. In S.C.B. Medical College and Hospital, she requested the authorities to see the dead body but she was not allowed to see dead body before the post-mortem was conducted. After conducting post-mortem examination the authorities handed over the dead body of the deceased to the petitioner. The petitioner could notice that the deceased has sustained injuries on his body.

The petitioner further plead that this matter was reported in different newspaper leaving it to be cold blooded murder. The petitioner approached higher authorities for impartial investigation regarding the death of her son but she was informed that her son Smruti Ranjan Das had committed suicide. Therefore, she finding no other alternative filed this writ petition.

3. Notice has been issued to the opposite parties but no affidavit has been filed by the Secretary to Government, Home Department. The opposite party no.3, Superintendent of Choudwar Jail, has filed a counter affidavit. No post-mortem report has been attached to the same. The Superintendent admitted that the petitioners son was admitted to Choudwar Jail in connection with the aforesaid G.R. Case. It is further pleaded that the deceased had committed suicide inside jail on 02.12.2001 and was not murdered. The Superintendent pleaded that if the any of the inmate desires to committee suicide. It is difficult to prevent him that too in course of mentally depressed as happened in the present case.

4. On such pleadings, in this case, two important questions arise for determination. First, whether the death of the deceased was custodial death and secondly, whether the State should be directed to pay compensation to the petitioner because of the death of the deceased.

5. As seen above, in the counter affidavit the opposite parties have not filed the post-mortem report. In course of hearing, the learned Government Advocate, however, produced a copy thereof, which shows that the doctor, who conducted post-mortem examination, have opined that it to be a case of suicidal hanging. It is further apparent from the post-mortem report that Dr. Sarabana Kumar Naik and Dr. Braja Kishore Dash have conducted the post-mortem examination. At the time of examination, they found the following external injuries.

(i) 3 cut wounds of the size 1.75 cm x 0.1 cm x epidermal death, 2 cm x 0.2 x skin deep situated more or loss parallel to each other and 3rd relatively deeper wound of size 3.25 cm x 0.5 centimeter x upto muscle depth found in the flexor aspect of mid part of right forearm in a transversely manner lying 9 cm, 10 cm and 12.5 cm proximal to the wrist. The wounds are found more deeper towards medial aspects.

(ii) 3 cut wounds of sizes 3 cm x 0.5 cm x upto muscle depth, 4 cm x 0.1 cm x epidermal depth, 2 cm x 0.1 cm x epidermal depth situated more or less parallel to each other toe transversely on the flexor-ulnar aspect of left forearm 15 cm, 15.5 cm and 17 cm. proximal to the left wrist respectively. The wounds are found more deeper towards medial aspects. The cut wounds mentioned above have not cut any larger superficial vein of forearms.

(iii) Ligature Mark : Ligature mark in the form of pressure abrasion of 4 cm broad situated around neck extending obliquely upwards from right to left side of neck on both fronts and back aspects of neck lying 5 cm below the right ear lobule in right lateral aspect of neck, passing above the level of laryngeal prominence in the front of neck to end as inverted V shaped impression below the left angle on mandible. The base of the ligature mark found parch mentised at places where as the margins are congested with upper margin showing postmortem lividity. No other external injuries were found.

At the time of post-mortem examination the doctors also noticed that the wrists of the deceased tied on the back side by means of thin cotton rope.

6. After post-mortem examination the doctors opined that the above mentioned injuries were ante-mortem in nature, fresh in duration out of which the cut wounds could have been caused by light sharp cutting weapon which are not fatal in ordinary course of nature, where as the ligature mark is consistent with hanging possibly using the alleged ligature material which is strong enough to bear the weight and jerk of the deceased. The doctors further opined that the cut wounds ligature mark of hanging and manner of tying of both wrists are suggestive of suicide. Thirdly, death was due to combined effects of asphyxia and venous congestion as a result of constructing force round the neck due to hanging. The time of post-mortem examination was found to be 18 to 24 hours after the death of the deceased.

On further query the doctors opined that the injuries found on the forearms of the deceased could be self-inflicted and could have been caused by razor blade, which are sent for examination. They further opined that an adult portion can tie both his hands on the back using slipping knot at one hand or both hands before committing hanging to prevent self rescue.

7. On the basis of such findings the U.D. Case was closed on the conclusion that the deceased committed suicide. The magisterial enquiry conducted by Bijaya Kumar Rath, OAS, Ex-Tahasildar-cum-Executive Magistrate, Tangi, Chaudwar, reveals that at the time of spot visit he along with senior Superintendent Medical Officer and other jail staff and found that the body of the deceased of UTP- Smruti Ranjan Das was hanging from the branch of a small mango tree by means of cotton towel (Gamucha) behind the jail school building in a bushy and isolated place in the jail premises. The body was identified by the Senior Superintendent, Assistant Jailor Sri Ashok Das and other jail staff. Both his hands were tied in a cotton leaving one gape between two hands and his hand was found tilted towards right side, open mouth, both the eyes were half open, both the legs were touching the ground.

8. Thus, from the factual findings the following fact emerges :

1. the deceased was in the custody of the jail authorities when the occurrence of the incident took place.

2. The dead body of the deceased was hanging from small mango tree by means of cotton towel.

3. the hands of the deceased were tying at the wrist on the back of his body with a gap of one foot between two hands.

4. the legs of the deceased were touching the ground where the dead body was found to be hanging and

5. there were some cut wounds on both the forearms of the deceased.

9. Though the authorities has come to the conclusion that the injuries were self-inflicted and the deceased himself tied his hands on his back side and committed suicide by hanging himself. this Court is of the opinion that the investigation in this case do not reveal the correct picture and this is definitely a case of custodial death.

10. This Court in Sabitri Kanhar and others vs. State of Orissa, W.P.(C) No.23407 of 2010, disposed of on 18.03.2011, has come to the conclusion that in an incident where two persons were killed by another inmates, the jail authorities are responsible for the same as there has been a negligence on the part of the jail authorities keeping prisoner in safe custody. Holding, thus, a Division Bench of this Court in the aforesaid case, awarded compensation to the legal heirs of the deceased.

11. It is duty of the jail authorities to ensure safety and security of the inmates of the jail. Only when they have been negligence on their part. such an incident could take place. Though the authorities have termed the incident as a suicide, foul play cannot be ruled out. Therefore, this Court comes to the conclusion that it is a case of custodial death and the authorities are responsible for the same. The authorities being the employees of the State of Orissa, the State is vicariously liable for the death of the aforesaid deceased-Smruti Ranjan Das,

12. In NILABATI BEHERA (SMT) @ LALITA BEHERA (THROUGH THE SUPREME COURT LEGAL AID COMMITTEE) VS. STATE OF ORISSA, (1993) 2 SCCs 746, the Supreme Court examined a similar case and has come to the conclusion that enforcement of the constitutional right and the grant of redress embraces award of compensation as part of legal consequences of contravention. Award of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 226 is remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available in a defence in private law in an action based on tort. A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights and such a claim based on enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from contravention of the fundamental rights. Thus, holding the Supreme Court further clarified that such principle justified award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for contravention made by the State or its servant in the purported exercise of their power, and enforcement of fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226.

13. Similar view has been taken in Peoples Union for Civil Liberties, vs. Union of India and another, AIR 1997 SC 1203 [LQ/SC/1997/198] , wherein the ratio decided in Nilabati Beheras case (supra) was relied upon and it was further stated that in assessment of the compensation, the emphasis has to be on the compensatory and not on punitive manner. The objective is to apply alm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence, irrespective of compensation, must be left to the criminal court in which offender prosecuted , which the State, in law, is duty bound to do. A similar view has been taken by the Division Bench of this Court in Ahalya Pradhan vs. State of Orissa, 2009 (I) OLR -526 wherein the custodial death was revealed as a suicide, which was negatived by fact finding commission, the Division Bench of this Court has come to the conclusion that the legal heirs of the deceased are entitled to receive compensation

14. Keeping in view the aforesaid proposition of law, this Court comes to the conclusion that on facts the death of the deceased-Smruti Ranjan Das is custodial death and the authorities are responsible for the same. As such the State is liable to pay compensation to the petitioner keeping in view the age of the deceased, age of the petitioner and other such attending circumstances This court comes to the conclusion that a compensation of Rs.3,00,000/- shall be sufficient to sub-serve the interest of justice.

15. Accordingly, it is directed that the opposite parties shall pay a sum of Rs.3,00,000/- (rupees three lakhs) to the petitioner along with interest @ 6% from the date of filing of the writ application. The amount of compensation along with interest shall be paid to the petitioner within four weeks from the date of judgment. Writ petition allowed.