K.G. SHANKAR, J.

1. This Writ Appeal is directed against the order of the learned single Judge in Writ Petition No.24419 of 2001, dated 18.02.2002. The claim for a declaration that the action of the police in detaining, torturing and beating the deceased from 08.07.1998 till 11.07.1998 and not paying compensation for the loss of the life of the deceased-Yesubabu was illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India was not found favour with the learned single Judge. Aggrieved by the same, the present Writ Appeal is laid by the petitioner.

2. Primarily, compensation is sought for the death of Battelanka Yesubabu by his father. The case of the petitioner is:

a) On 08.07.1998, at about 7 a.m., a Constable by name Venkateswara Rao of Allavaram Police Station, East Godavari District took away the deceased Yesubabu from the presence of the writ petitioner proclaiming that the Sub-Inspector of Police, Allavaram Police Station directed the presence of the deceased Yesubabu.

As Yesubabu did not return for a day, Satyavathi and Parvathi, wife and daughter of the petitioner went to Allavaram Police Station on 09.07.1998 (i.e., the next day) and found the deceased Yesubabu in the police lockup. Yesubabu informed his mother and sister that the Sub-Inspector and the Constable (Venkateswara Rao) beat the deceased indiscriminately, albeit the deceased informed them that he underwent an operation about three months prior to the date of the incident.

b) The wife and daughter of the writ petitioner then requested the Sub-Inspector of Police by name Krishna Rao not to subject the deceased to torture.

The Sub-Inspector informed them that Yesubabu was suspected to have committed theft of a cycle and that the Sub-Inspector would use his baton till Yesubabu confessed the offence.

c) On 11.07.1998, the deceased came home limping with injuries all over the body. He informed the petitioner and others that the Sub-Inspector and the other Constables beat him severely in the lockup and did not provide food and water to the deceased.

The petitioner was immediately shifted to the private hospital of Dr. Basava Varahalu, Allavaram. The Doctor reported that the condition of the deceased was critical and that the deceased might not survive. On 15.07.1998 the deceased breathed his last on account of the torture meted out to him by the Sub-Inspector-Krishana Rao, Constable-Venkateswara Rao and others. Police failed to register a case against the Sub-Inspector. Police, on the other hand, threatened the petitioner with dire consequences in the event he lodged a report.

3. The petitioner, who is the father of the deceased-Yesubabu, claimed compensation for the commission of a constitutional tort.

4. Sri V. Narayana Reddy, inter alia contended that the death of the son of the petitioner was owing to custodial violence of the deceased Yesubabu by Krishna Rao, Sub-Inspector of Police, Venkatewara Rao, Constable and other personnel of Allavaram Police Station. He submitted that when the death was owing to torture, the Government is liable to pay compensation to the petitioner. On the other hand, the learned Government Pleader submitted that it has not been established that the death of the deceased was on account of injuries let alone on account of the injuries sustained owing to the third degree methods adopted by the personnel of Allavaram Police Station. Further, as rightly submitted by the learned Government Pleader, where there is controversy as to the cause of the death of the deceased, it becomes a question of fact. We are afraid that it would not be appropriate to embark upon a detailed enquiry into such a question of fact.

5. Be that as it may, the learned counsel for the writ petitioner time and again contended that it has been established clearly and cogently that the death was on account of the torture meted out to Yesubabu by Allavaram police. We, therefore, may examine whether the petitioner made out prima facie that the death of the deceased was on account of third degree torture inflicted upon him by the police.

6. Before going into this question, we may briefly notice the legal principles in this regard. One of us (V.V.S.Rao, J) summarized the general principles of constitutional tort in K.P. Hussain Reddy v. Executive Engineer, M.I. Division, Nandyal 2003 (1) ALD 435. [LQ/TelHC/2002/1094] After considering various authorities, it was observed in this case thus:

The principles that emerge from the decided cases in India and Britain areas under:

(i)Torts like assault, battery, and false imprisonment which are trespass to person by Police Officer and investigating agencies which are not authorized under law are Constitutional Torts.

(ii)Awarding of compensation is public law remedy and available in a claim for deprivation of life and liberty alone. The compensation awarded is for the pecuniary and non-pecuniary loss suffered by the person due to illegal detention/imprisonment and is given to recompense for the inconvenience and distress suffered by the person.

(iii)The order of compensation is in the nature of palliative and is passed to mulct the violators of the fundamental rights in payment of monetary compensation.

(iv) When a person is arrested and imprisoned which malicious intention his constitutional and legal rights are said to be invaded. The malice and invasion of the right is not washed away by setting the person free and in appropriate cases the Court has jurisdiction to award compensation to the victim.

(v)The public law remedy of monetarily compensating the violation of fundamental rights is part of the constitutional scheme based on strict liability for such contravention of rights and therefore the principle of sovereign immunity does not apply as it applies in private law.

(vi)Judicially evolved right to compensation in public law is available for breach of public duty by the State of not protecting the fundamental right, but it is given for infringement of inalienable right to life and by way of applying balm to the wounds of the deceased family.

(vii)For the tortuous acts of the Government Officers and Police Officers, the State is liable to pay compensation for violation of fundamental rights to life and liberty.

(viii)The order for awarding compensation need not be in the coercive form. It can be by way of declaration of the right of the person to be paid by the Government certain amount to be assessed by the Court. This is especially so in a case where fundamental right to property is breached in violation of law.

7. In Sube Singh v. State of Haryana and others AIR 2006 SC 1117 [LQ/SC/2006/100] , the Supreme Court observed that compensation as public law remedy can be awarded in custodial death.

8. Reverting to the case on hand, the District Judge, East Godavari was directed by the High Court, through orders dated 07.09.2009 to submit a report regarding the death of Bettilanka Yesubabu. In response to the direction, the then learned District Judge held enquiry, recorded the evidence of six witnesses and ultimately submitted his report dated 07.01.2010. The learned District Judge opined that there was absolutely no basis to accept the allegations of the writ petitioner herein that the death of Yesubabu was on account of custodial violence against him. PW.6 treated the deceased after he was released by police. PW.6 deposed that he treated the deceased in 1997-98 for a period of 10 days for a hole in the diodinum of the deceased.

He further deposed that he treated the deceased shortly before his death and found the deceased suffering from painful abdomen. He, however, did not find any external injuries on the person of the deceased. Thus, PW.6, who was the Doctor, who treated the deceased before his death, did not allege and did not prove that the deceased died on account of injuries let alone injuries inflicted by the police.

9. PW.5 examined the dead body of the deceased after exumation. He was a Civil Assistant Surgeon, Community Health Centre, Amalapuram at the relevant time. The exumation was on 29.07.1998. The death of the deceased-Yesubabu was on 15.07.1998. However, PW.5 claimed that the skull of the deceased already stood detached from the body and that various bones of the body were also separated at all joints. There was no semblance of any soft tissues attached to the bones when PW.5 observed the exumated body. It is somewhat surprising that as early as in about a fortnight, the bones became disjoint. PW.5 further deposed that in view of the opinion from the Professor, Forensic Medicine, PW.5 considered that no conclusion could be arrived at regarding the cause of death, which was on account of high level of putrification of the dead body. Thus, PWs.6 and 7 who are primarily concerned with the cause of death have certified that no opinion could be given as to the cause of death.

10. Once the cause of death could not be ascertained, whether police highhandedly had taken away the deceased with them, whether the deceased was subjected to the third degree torture and the like would not arise as the death was not proved to be a case of custodial violence. As it is not a case of custodial death, the petitioner would not be entitled to compensation for a constitutional tort.

11. Indeed, the mediators at the time of inquest formulated the opinion that the death of the deceased was either on account of custodial violence or was due to acute abdominal pain (sic). The mediators were not certain as to the cause of death. Assuming that the mediators at the time of inquest opined that the death was due to torture administered upon the deceased, the medical opinion would have prevailed over the opinion of the mediators. At any rate, mediators also did not clearly opine that the death was due to custodial violence. Viewed from any angle, the petitioner has failed to make out that the death of his son, Yesubabu was on account of the third degree torture administered upon him by Krishna Rao-Sub Inspector of Police, Venkateswara Rao-Constable and other police personnel of Allavaram Police Station. In Sube Singh (supra), there was no clear-cut evidence about custodial violence. There was no medical report regarding any injury or disability to the victims, the Court considered that it was not a fit case for award of compensation. Same is the position in the present case. Where it is not established that the death of Yesubabu was on account of custodial violence and where it is not even established that the deceased had injuries on his body soon after he came out from the police custody, it could not be considered to be a case of custodial death. The petitioner, therefore, is not entitled to any compensation. The learned single Judge was perfectly justified in dismissing the writ petition filed by the petitioner. We see no merits in this appeal.

12. The Writ Appeal is, accordingly, dismissed. No costs.