1. Heard Mr. Satyendra Singh, learned counsel for the petitioner and Mr. Sarvendra Kumar, J.C to G.P-I.

2. Reference in this case may be made to the order dated 15-4-2003 whereby this case was adjourned upon prayer made by the G.P-I. The learned counsel for the petitioner states that pursuant to the said order, he served one more copy of the said petition under G.P-I on 16-4-2003. Mr. Sarvendra Kumar, J.C to G.P-I concedes and submits that a copy of the writ application was in fact served upon the G.P-I but they have not received any instructions till date. In that view of the matter, the right to file affidavit by the State in this case is now closed. This is a case relating to custodial death and upon going through the pleadings made in the writ application, the conscience of this Court is shocked beyond words. A dacoity was committed on 27-7-1990 and upon receiving message, the police officers of the Jagannathpur Police Station proceeded to the place and apprehended three persons namely Udai Sharma alias Munna. Wilson alias Pappu and Jenson Kiro and took them into custody. The allegations are that thereafter these three persons were taken on a policy jeep and were subjected to brutal assault by butt of rifle as also by iron rod and stouts. This resulted in the death of these persons. According to the learned counsel for the petitioner-Jenson Kiro died in the hospital while the other two died on the spot. A criminal case was registered being Jagannathpur Police Station Case No. 143/90 under Ss. 395/412. Indian Penal Code read with Ss. 258/26/27 of the Arms Act. This finally led to the accused persons being tried by the Second Additional Judicial Commissioner by Sessions Trial No. 551/93 and by judgment dated 27-3-1996 the said Court held that the police assaulted the three persons mentioned above, put them on the jeep and assaulted them with stout, butt of rifle and iron rod which led to their death. The relevant portion of the finding of the Court below referred to above is at paragraph 25 and it reads as follows:—

“Accordingly I find that the statement of the doctor taken together with the post-mortem reports (Ext. 1, 1/1 and 1/2 Tykkt supports the statement of the eye-witness that the police personnel assaulted the said three deceased with iron rod, Datta and with the butt of the rifle. Thus from the statements of the above said eye-witness, it is well proved that on 27-7-1990 at about 4.30 p.m the police caught Udai Sharma, Wilson alias Pappu and Jonson Kiro near Hesage wine Bhathi, assaulted them with rod and dants and the butt of the rifle and took them on the jeep of Jagarnathpur Thana and at about 5.30 p.m they assaulted the said three persons at Birsa Chowk also. From the statement of P.W 29 in para 26 it appears that there is S.D Entry No. 554 dated 27-7-1990 the dead body of Wilson was taken to hospital by Constable No. 1869 Sudershan Rai and the dead body of Udai Sharma was brought to hospital by Constable Krishna Yadav. That shows that the said two persons died due to assault before being taken to hospital. The said S.D Entry shows that Constable Shankar Rajak took Jonson Kiro to hospital. He was admitted in badly injured condition is apparent from the statement of P.Ws 11, 12, 15 and 17 who met him in hospital. He later on died in the hospital on 29-7-1990.”

3. Consequently, it was held that the charges levelled against all the nine police personnels were proved and they were held guilty and keeping in view the facts and circumstances of the case, the learned Court sentenced them to undergo rigorous imprisonment for a period of ten years and also to pay a fine of Rs. 20,000/-.

4. The petitioner in the instant case is the widow of Wilson V. Roy alias Pappu.

5. It further appears that the petitioner along with others moved this Court earlier vide C.W.J.C No. 1491 of 1994 (R) and by order dated 15-2-1995* it was, inter alia, ordered as follows:—

“As the criminal case, as stated above, is pending in the Criminal Court, in such a situation, to hold that three persons were murdered by the police officials will prejudice the case of the police officials, who are facing trial. The Apex Court has already ordered for ex-gratia payment of Rs. 25,000/- each to the next of the kin of the deceased and that order has been carried out as it appears from the counter-affidavit. Only the dependent of deceased-Udai Narayan Sharma has not been paid because his dependent-Smt. Sunita Devi is not living in her village. The efforts are being made for the payment to her also. So far as the legal position is concerned, it is well settled that in case of contravention of fundamental right by the State or its agency a compensation can be awarded under Art. 226 of the Constitution of India. However, the question in this case is as to whether an order for payment of compensation can be passed at this stage or not.

After having gone through the entire materials, taking into considerations the order of payment passed by the Apex Court and in the facts and circumstances of the case, I am of the view that at this stage no order for payment of compensation can be made in favour of the petitioners. However, after the disposal of the criminal case if it is found that the aforesaid persons were murdered by the police officials then it will be open for the petitioners to move for payment of adequate compensation in accordance with law.

With the aforesaid observations this application is disposed of.”

6. Mr. Singh, learned counsel for the petitioner states that after judgment in the criminal case passed on 27-3-1996, the petitioner has filed the instant Writ application on 19-9-1996.

7. Mr. Sarvendra Kumar, learned J.C to G.P-I has stated that he is not in a position to state as to whether any appeal has been filed against the aforementioned judgment of the learned Second Additional Judicial Commissioner, Ranchi. The records of this case show that sufficient time has been granted to the State to file counter-affidavit but they chose not to do so.

8. In that view of the matter, there is no option for this Court but to hold that the aforementioned judgment of the learned Judicial Commissioner has attained finality and in view of the observations made by the High Court in C.W.J.C No. 1491 of 1994 (R), the petitioner has the right to move this Court again for payment of adequate compensation.

9. This is one of those cases, which grieves the heart and shocks the conscience of this Court. A volatile wing of the Government which, for want of better name, is termed as the department of Police, appears to have gone berserk on that fateful day when they took the law in their hands. They are the protectors of law and yet, when it came to discharging their duties, they seem to have donned the attire of destructors of law. It is a dark day for the framers of our Constitution which has painstakingly engrafted Art. 21 as one of the chief heralds ensuring the constitutional assurance of the right to life so conspicuously phrased under Art. 21. While the preamble assures dignity to an individual. Article 21 on the other hand, ensures the right to life, which in turns includes the right to live decently. On the mere allegation/presumption of having committed dacoity, no person can be denigrated to the status of an animal. These officers who had donned the Khakhi, appear to have shattered our Constitution into millions of fragments and dashed it on the face of its noble framers. They virtually transformed discipline into a reign of terror-unleashing contemptible powers of the evil and killed three human beings. A day when our heads hang in shame praying silently to the Almighty that such day be not repeated in future. The Judicial Commissioner having held these Police Officers guilty and the State Counsel having not stated about the filing of an appeal, the said judgment must be deemed to have attained finality.

10. Even otherwise, whether any appeal has been filed or not two important factors are worth taking note of and which, in any event, does establish custodial death. First, is the statement recorded at paragraph 8 of the writ petition which has not been controverted in the absence of any counter-affidavit. The said paragraph 8 of the writ application reads as follows:—

“8. That on the intervention of the Hon'ble Supreme Court and specific orders passed by it in Writ Petition (Criminal) No. 621 of 1992, the concerned police officials were arrested and put on trial, the Hon'ble Supreme Court by its order passed in the aforesaid case which was filed by one Partul Kumar Sinha. Advocate, also ordered an ex gratia payment of rupees twenty five thousand to the petitioner. It is relevant to state that the petitioner has never moved before the Hon'ble Supreme Court.”

11. The second aspect is the post-mortem report which was prepared pursuant to the examination of the dead bodies which were Exhibits 1, 1/1 and 1/2 before the learned Judicial Commissioner, Ranchi. The doctor who conducted the said post-mortem examination, found two abrasions and three lacerated wounds besides internal injuries. In his opinion, all the injuries were ante-mortem and were caused by hard blunt substance like iron rod or butt of rifle. In this context, the observations of the learned Judicial Commissioner at para 25 of the judgment is therefore worth reproducing and it is being done so from the typed copy of the same which has been marked Annexure 1 to the writ petition.

“25. As per the statements of the above said eye-wtinesses the three deceased persons were assaulted by iron rod, Danta and the butt of the rifle. Some of the witnesses have said gun in place of rifle which is not very material contradiction. P.W 6 is the doctor, who held post-mortem on the dead bodies of deceased-Wilson alias Pappu and Udai Sharma on 28-7-1990 and the dead body of deceased-Jonson Kiro on 30-7-1990 and prepared the post-mortem reports (Exts. 1, 1/1 and 1/2 respectively). P.W 6 found two abrasions and three lacerated wounds besides internal injuries. The dead body of Wilson alias Pappu, in his opinion all the injuries were ante-mortem and were caused by hard blunt substance like iron rod or butt of the rifle. P.W 6 found abrasions besides internal injuries on different part of the dead body of Udai Sharma. In his opinion the said injuries which caused the death of Udai Sharma were ante-mortem and were caused by hard and blunt substance like rod and butt of the rifle. P.W 6 further stated that he found as many as ten (10) abrasions besides bruises on different parts of the body of Jonson Kiro. In his opinion the death was caused due to the said injuries which were ante-mortem and were caused by hard and blunt substance like rod and butt of the rifle. The defence has not brought out anything in the cross-examination of P.W 6 upon which his testimony can be disbelieved. Accordingly, I find that the statement of the doctor taken together with the post-mortem reports (Ext. 1, 1/1 and 1/2) supports the statement of the eye-witness that the police personnel assaulted the said three deceased with iron rod, Datta and with the butt of the rifle. Thus from the statements of the above said eye-witnesses it is well proved that on 27-7-1990 at about 4.30 p.m the police caught Udai Sharma. Wilson alias Pappu and Jonson Kiro near Hesag Wine Bhathi, assaulted them with rod and dants and the butt of the rifle and took them on the jeep of Jagarnathpur thana and at about 5.30 p.m they assaulted the said three persons at Birsa chowk also from the statement of P.W 29. In para 26, it appears that there is S.D Entry No. 554 dated 27-7-1990 the dead body of Wilson was taken to hospital by Constable No. 1869 Sudershan Rai and the dead body of Udai Sharma was brought to hospital by constable Krishna Yadav. That shows that the said two persons died due to assault before being taken to hospital. The said S.D entry shows that Constable Shankar Rajak took Jonson Kiro to hospital. He was admitted in badly injured condition is apparent from the statement of P.Ws 11, 12, 15 and 17 who met him in hospital. He later on died in the hospital on 29-7-1990.”

12. Additionally, upon perusal of the first paragraph of the order dated 15-2-1995** passed in C.W.J.C No. 1491 of 1994 (R) as contained at Annexure 2, it is evident that the petitioner and the other victims had stated that the police had arrested the 3 (three) persons in the presence of a large number of people and mercilessly assaulted them as a result of which two persons died on the spot and one died in the hospital. The petitioners moved the high-ups in the Police Department for taking action against the concerned police officials but when no action was taken, then the petitioners filed a complaint but even thereafter no action was taken. Thereafter they moved the Hon'ble Supreme Court and on the order passed by the said Hon'ble Court, the concerned police officials were arrested. It is true that in paragraph 8 it has been stated that this petitioner did not move the Hon'ble Supreme Court of India but the statements of paragraph 8 of the writ petition does show that the matter was brought to the notice of Hon'ble Supreme Court in Writ Petition (Criminal) No. 621 of 1992 and it was moved by one Partul Kumar Sinha, Advocate. It also appears from the same paragraph 8 that the Hon'ble Supreme Court also ordered ex gratia payment of Rs. 25,000/-.

13. Thus, even if an appeal has been filed, the result would either be a finding that would relate to in favour of the accused persons in their personal capacity or would be against them but from the facts pleaded, the factum of traumatic custodial death is writ large.

14. Consequently, this Court considers it appropriate to compensate the petitioner for the loss of the company of her husband who had been snatched away from her. Accordingly, the writ petition is allowed and the respondents are directed to pay compensation to the petitioner.

15. At paragraph 5 of the writ petition, the petitioner has stated that out of the wedlock, three children had been born and all of them are minors of the three children, two of them were daughters and the third, a son was still studying. Each were pursuing their scholastic careers in Class IV, II and Prep respectively. The incident occurred on 27-7-1990 (i.e about 12–13 years ago) when, as per the statements recorded at paragraph 6 of the petition, the petitioner's-husband was merely 28½ years old. At paragraph 6. it has further been stated that monthly income of the husband of the petitioner's was Rs. 2,500/-. If the life expectancy of the husband is to be taken 60 years and if the petitioner's-husband at the relevant year was 28½ (say 30 years), then he had another 30 years to live. Treating the annual income of the petitioner's-husband be Rs. 30,000/- (Rs. 2,500 × 12), the same, on multiplication by the remaining life expectancy of 30, comes to Rs. 9,00,000/-. Out of the aforementioned Rs. 9,00,000/-, if 25% thereof is deducted towards his own personal expenses, then the amount which the deceased would have given to his family would be Rs. 6,75,000/-.

16. Over and above the aforementioned amount, the loss of company, the anguish, the mental torture, the feeling of loneliness and the loss of the care and the protection of the head of the family from every angle including the welfare of the children need to be also taken note of.

17. For the aforementioned, the family should also be compensated in such a manner so that the total compensation payable to the family is rounded off to Rs. 10,00,000/-. This would also be in terms of her own application for amendment filed on 7-10-1999 which therefore, in the facts and circumstances of this case, is consequently allowed. Thus, the total compensation towards custodial death is assessed at Rs. 6,75,000/- and the compensation for the loss of company, the anguish, the mental torture, the feeling of loneliness and the loss of the care and the protection of the head of the family from every angle including the welfare of the children is computed @ Rs. 81,250/- for each of the heirs i.e the mother and her three children amounting to Rs. 3,25,000/-. Consequently, the total compensation awarded is Rs. 10.00,000/-. Let it be recorded that the aforesaid formulae of reaching to a figure of Rs. 10,00,000/- has been taken into consideration for purposes of arriving at a figure which is considered just and appropriate in the facts of this case.

18. However, the entire amount of compensation of Rs. 10.00,000/- shall be deposited in a Nationalised Bank in four respective accounts in the names of the mother (the petitioner) and her three children mentioned at paragraph 5 in the ratio of Rs. 2,50,000/- each. The minor children shall have no right to withdraw any part of the compensation money till they reach the majority.

19. So far as the amount enuring to the benefit of the petitioner, i.e to the extent of Rs. 2.5 lacs, she will be at liberty to withdraw the same. However, if the petitioner feels that her children require money in the interest of their education and/or marriage then in their interest, these children may be allowed to withdraw after furnishing proof of their requirement to the concerned Bank.

20. The writ petition is allowed. There shall, however, be no order as to costs.

21. Petition allowed.