T. Vaiphei, J.
1. This is an application under Article 226 of the Constitution of India filed by the petitioners claiming the following reliefs:
1. To pay adequate compensation to the petitioner No. 2, wife of the under trial prisoner, namely, Late Phomlin Mawlieh, who died on 11-9-1998 at Civil Hospital, Shillong while injudicial custody.
2. To cause an enquiry by an independent and impartial agency as to the cause of death of the said under trial prisoner.
3. To appoint highly qualified Forensic Science Medical Specialist for conducting Post-Mortem Examination on the dead body of the undertrial prisoner and;
4. To constitute State Human Rights Commission and Human Rights Court as required under Sections 21 arrd 30 of the protection of Human Rights Act, 1993.
2. Mr. S.P. Mahanta, the learned Counsel for the petitioner and Mr. A. Sharma, the learned Advocate General of Meghalaya have been heard at length.
3. Though the case was initially registered as Public Interest Litigation, on the petition of the Secretary General, North Eastern Co-ordination Committee and Human Rights. Meghalaya, the writ petition was subsequently amended by making the wife of the deceased as the petitioner No. 2 whereupon by the order dated 16-10-1998 the case was converted into a normal civil rule. It would appear that the matter was also taken up by the National Human Rights Commission which by the proceeding dated 17-10-2004 closed the case on the ground that there was no occasion to proceed further in the matter.
4. The case of the petitioners pleaded in the writ petition is that the deceased, namely, Late Phomlin Mawlieh, aged about 27 years, a resident of Nangsohma village, West Khasi Hills District was summoned by the Village Durbar of Nangsohma Village on 2-9-1998 at 8.30 a.m. in connection'with the alleged stealing of six cows belonging to one Shri Tret of Mairang Tynnai Village and that as he was suspected to be involved in the stealing of six cows, the Village Durbar handed over him to the Ofl'icer-in-charge Mairang Police Station on 2-9-1998, which took him to the Police Station. According to the petitioner, the deceased, who was married and had two minor children, was in good health without any sign of sickness at the time of his arrest by the police. The brother-in-law of the deceased, namely, Shri Chos Nongllait on 10-9-1998 visited the Mairang Police Station to enquire about the condition of the deceased, but was informed by the 2nd Officer-in-charge of the Police Station that the deceased had been taken to Civil Hospital, Shillong and was also offered financial help by the concerned officer to help the deceased for bail. It is also asserted by the petitioner that on 10-9-1998, when the family members of the deceased visited the Civil Hospital. Shillong, they found that he was in semi-coma condition and were subsequently informed that the deceased had expired on 11-9-1998 at the Civil Hospital. The dead body of the deceased was brought to their village by the family members of the deceased and was buried on 15-9-1998 at Nangsohma under Nongkhlaw Syiemship. The petitioners further asserted that from their enquiry, the deceased was admitted by the Jail authority in Civil Hospital on 4-9-1998 at about 7-7.30 p.m. and that the doctor attended him only on 7-9-1998 and was thus left unattended for two days. The petitioner on 23-9-1998 had applied for certified copies of the First Information Report and the other connected papers. On the basis of these documents, the petitioners were said to have learnt that Mairang Police had registered Mairang PS Case No. 19(9) 98 under Section 379/34, IPC against, the deceased and was accordingly arrested, it is alleged by the petitioner that the deceased was produced before the learned Sub-Divisional Magistrate, Mairang Court on 3-9-1998 with a prayer for remanding the deceased to police custody for a period of 48 hours i.e. till 5-9-1998 and that even before the expiry of these 48 hours, the Investigating Officer of the case, namely, Shri TR Marwein forwarded the deceased before the learned Sub-Divisional Magistrate, Mairang with a prayer to remand him to judicial custody for a period of 14 days. The case of ihc petitioners is that the deceased was subjected to inhuman torture in the police lockup as evidenced from the sign of bruise black mark in his chest and that had the deceased been seriously sick or suffering from headache and fever as examined by the Doctor of Mairang Public Health Centre on his small medical note dated 4-9-1998 duly initialed by the learned Sub-Divisional Magistrate, which was furnished to the jail authority by the escorting party, the police would have got him admitted in the Civil Hospital, Shillong but that was not done. The allegation of the petitioners is that the deceased did not die of sickness but had died of third degree method used by the police while he was in their custody.
5. The State respondents contested the writ petition by filing their affidavit-in-op-position in which, it was, inter alia, stated that the deceased was apprehended on 2-9-1998 at about 3.10 p.m. on the verbal complaint lodged by the Sardar of Nongsomah Village along with Lastingland Kharsyntiew, the brother of the deceased for stealing six cows which belonged to Trestmarling Lyngdoh and Shri Ringshan Lyngdoh Nongrum of the same village and had illegally been selling them off to one Shri Larmon Mawlieh. It was also stated therein that on the basis of the aforesaid complaint. Mairang Police Station registered a Mairang PS Case No. 19(9) of 1998 under Section 379/34, IPC against the deceased and his brother Shri Lastingland Kharsyntiew. According to the State respondents, before the registration of the case, both the accused were forwarded for medical examination to Civil Hospital, Mairang for ascertaining the existence of any physical injuries on their persons and after receipt of the medical report, they were accordingly detained at the Mairang Lock-up under safe custody. It was pleaded by the State respondents that on 3-9-98, they were forwarded to the learned Sub-Divisional Magistrate (C) Court Mairange, who on the prayer of the police, remanded both the accused to police custody for 48 hours and they were to be produced again before the said Court on 5-10-1998. On 4-9-1998, in the course of interrogation, both the accused persons admitted to their guilt and voluntarily offered to make their confessional statements before the Court. The deceased was stated to have complained to the I/O of the case of having some feverish tendency, whereupon he was forwarded to Civil Hospital, Mairang for medical check-up and necessary treatment. He was medically examined and was also administered some medicines on the basis of the medical prescription. On 4-9-98, both the accused were produced before the learned Sub-Divisional Magistrate with a prayer for remanding them to judicial custody for 14 days so as to record their confessional statements which they agreed to make, it was asserted by the State respondents that the physical condition of the deceased was reflected by the I/O in his forwarding report by enclosing the medical prescription given by the Medical Officer. Civil Hospital. Mairang and that both the accused were accordingly remanded to judicial custody on 4-9 1998 and were lodged in the District Jail. Shillong. It was vehemently denied by the Slate respondents that both the accused were ever subjected to any police torture at any time as alleged by the petitioner.
6. It is the specific case of the State respondents that the deceased was falling ill in the Jail and was admitted to District Jail Hospital, Shillong on 4-9-1998 and was found to be suffering from malaria. On 5-9-1998, he was put under treatment and observations by the Jail Doctor and that when his condition did not improve, he was moved to Civil Hospital, Shillong on 7-9-1998 for the treatment. According to the State respondents, the illness of the deceased was duly informed to his relatives on 8-9-1998 when they visited Mairang Police Station in connection with the arrest of Shri Larraon Mawlieh, the brother of the deceased and also co-accused in the theft case. It is denied by the Slate respondents that the 2nd Officer in-charge; of Mairang Police Slation offered any financial help for getting the deceased out on bail as alleged in the writ petition. According to the State respondents in connection with the death of the deceased, when the FIR was received from the relatives of the deceased, it was registered as PS CD 303 dated 26-9-1998, which was forwarded to the Superintendent of Police, West Khasi Hills Nongstoin and pursuant to this, the Superintendent of Police directed the Officer in charge, Mairang Police Station to make a thorough enquiry into the matter and submit detailed report to that effect. The Officer-in-charge of Laban Police Station, under whose jurisdiction falls Civil Hospital, Shillong registered a U/D Case i.e. Laban PS U/D Case No. 12/98 and investigated into the actual cause to the death of the deceased. As the deceased died when he was in judicial custody of the Civil Hospital, Shillong. Smti D Syiem. ADM Shillong held inquest on the dead body of the deceased on 13-9-1998 and thereafter the post-mortem examination was conducted under a video recording. It is pointed out by the State respondents that the post-mortem examination report indicated that the cause of death of the deceased was due to heart failure following disease of heart and lungs. Since there was no foul play or custodial violence in the dead body of the deceased. It is contended by the State respondents that no case for interference by this Court under Article 226 has been made out; the writ petition is accordingly liable to be dismissed.
7. The Inspector General of Prisons at the relevant time also filed affidavit-in-opposition in which he admitted that the deceased was received and admitted in the District Jail, Shillong on 4-9-1998 and claimed that the Superintendent of District Jail by his letter dated 11-9-1998 had stated that the deceased was suffering from some sort of ailment at the time of his admission in the jail. It was also mentioned by the answering respondents that the Medical Health Officer of the Hospital in his report had stated that the deceased was examined by him on 5-4-1998 and was found to be suffering from Malaria with high fever, Whereupon he was admitted to the Jail Hospital on the same day and that he had been put under observation and treatment by the Jail Doctor. It was stated by the answering respondents that the Jail Doctor did not find any visible injury marks on the person of the deceased or any symptom of internal injury and that as the deceased was found not responding to the treatment in Jail Hospital, the Jail Doctor referred him to Civil Hospital, Shillong on 7-9-1998 for further check-up and treatment, but the deceased expired in the Civil Hospital on 11-9-1998 on account of Malaria infection as certified by the Civil Hospital authority, it was thus asserted by the answering respondents that the deceased died a natural death. The answering respondents relied on the death certificate dated 11-9-1998 and the letter dated 2-11-1998 submitted by the Senior Medical and Health Officer-in-charge, Jail Hospital to substantiate his case that the deceased died of illness and not due to physical torture or custodial violence at the hands of the police. The respondent No. 9, who was the Headman (Sardar of Nongsomah Village) at the relevant time, also filed his affidavit-in-opposition. In his affidavit, he admitted that on 2-9-1998, the deceased was summoned by the Durbar of Nongsomah Village. West Khasi Hills District in connection with the alleged theft of six cows belonging to one Shri Tret of Mairang Tynnai Village and that the Village Durbar handed over the deceased to the Mairang Police Station for necessary investigation.
8. This Court by the order dated 30-11-1999 directed the learned District & Sessions Judge, Shillong to conduct an enquiry with regard to the circumstances leading to the death of the deceased and to submit his report before this Court within six months. The learned District & Sessions Judge after holding the enquiry submitted his report, which was received by this Court on 12-8-2002. A copy of the enquiry report was duly received by the learned Counsel appearing for all the parties including Mr. H.S. Thangkhiew, the learned Govt. Advocate. It is on record that no written objection has been made by all the parties against the findings recorded in the enquiry report. Perusal of the enquiry report shows that four witnesses were examined on behalf of the writ petitioners while ten witnesses were examined on behalf of the State-respondents. Some 31 documents were also exhibited by the parties in the course of enquiry. The learned District & Sessions Judge recorded the findings that there had been a foul play, that the evidences adduced by the respondents are self contradictory in nature and that the cause of the death of the deceased could not be accepted as due to Malaria. In reaching these findings, the following observations of the learned District & Sessions Judge are pertinent and same are reproduced hereinbelow:
From the evidence of P.Ws. 1, 2 and 4 and D.W. 2, it is clear that accused/deceased was quite healthy and free from any sickness at the time of arrest. Now question to be determined is what are the causes leading to the death of the accused in Police custody? D.W. 9 stated in his deposition that on 7-9-1998 accused/deceased was brought to emergency ward with a complaint of high fever and died subsequently on 11 -9-1998 and accordingly he issued a Medical Certificate which is exhibit A(22), Exhibit A(22) shows the cause of death Cardio Respiratory Failure due to Malaria (P/Vivax). According to D.W. 10 who has conducted the Post Mortem and according to Exhibit A(30) the cause of death was due to heart failure following diseases of the heart and lungs. From the evidence of D.W. 5 it appears that before administering medicines as per Exhibit A(13) no blood test had been done nor the accused had been advised for getting blood test done, neither doses are being properly prescribed and in this case, it is peculiar to know that as per the evidence of D.W. 5 though register was maintained in the hospital for showing the treatment given to the jail inmates, but in this case nothing has been entered in the Hospital Register which caused really a serious doubt about the whole episode nor any satisfactory explanation has been put forward by the State. Considering the contradictory report as per Exhibit A(22) and A(30), I am not in a position to hold that the accused was suffering from Malaria.
From the evidence of D.W. 1 it appears that on 3-9-1998 Mairang PS Case No. 19/98 under Section 379/34, IPC had been put up before him and considering the FIR and forwarding report he just forwarded the accused for a period of 48 hours police custody without accused being produced before him. Similarly from Exhibit A(3). A(4) and A(5) he passed the order as per the prayer made by the I/O concerned without seeing the accused which is mandatory under the provision of law that no remand should be granted without accused being produced and in this case it is also very interesting to note that in Exhibit A(3), A(4) and A(5) the handwriting shows that it has been written by two persons and from Exhibit A(5) it reflects that the accused was remanded to jail hajat for a period of 14 days without seeing any Medical Certificate and D.W. 1 has admitted in a question put by the Court that Exhibit A(1) and A(3) were not written by him but somebody in the PSI Office and last portion of Exhibit A(3) is written by him. From the evidence of D.W. 1 and Exhibit A(1) to A(5) it is very crystal clear that normal procedure of law has been violated and the whole purpose of Sections 57 and 167, Cr. P.C. and Article 22 of the Indian Constitution has been jeopardized, Respondents also failed to produce GD entry which was very vital for the instant enquiry nor any arrest memo has been placed before me. From evidence it is clear that guideline given in DK Basu's case has not been observed in this instant case by the police.
It is also not understood why respondent did not examine the other co-accused named Lastingland Kharsyntiew and the ADM concerned who conducted the inquest and SI PG Momin and Sri Balwant Singh who were present at the time of conducting the postmortem. Prosecution also failed to produce Video Cassette of the Post Mortem Examination or the person who has done the video recording. As per the evidence of D.W. 10, the Video recording of the Post Mortem Examination was done by a private party i.e. Mr. R. Warjri from Jaiaw, Shillong.
From the evidence and exhibits as discussed above, I do not see sufficient reason to believe with a prudent logic that the cause of death of the accused was a Malaria because had the accused been suffering from malaria, they should get blood test done to confirm the Malaria before administering any medicines. Secondly, the Death Certificate Exhibit 22 and the Post Mortem Report i.e. Exhibit A(30) are self contradictory, hence cannot be relied upon. Thirdly how and for what reasons the accused was not produced before the Court concerned on 3-9-1998 and 4-9-1998 and how without the accused being produced remand order has been obtained also creates a serious doubt about, the whole episode and fourthly, why Jail Doctor though usually maintained a register showing the treatment of Jail inmates failed to maintain the register in this case. Fifthly by what are the reasons compelled not to maintain the GD entry or arrest memo has not been explained. Sixthly, Exhibits A(1) to A(5) has also not been satisfactorily explained rather it creates a serious doubt in the mind. Seventh, from evidence it is not clear who was the doctor examining the accused on 4-9-1998 and what was his finding. Photo copy of the inquest report dated 13-9-1998 submitted by the learned Counsel for the petitioner shows that there was a plaster on the left hand of the accused/deceased against which respondent has not given any satisfactory explanation nor produced any evidence.
From Exhibit A(18) issued by Senior Medical and Health Officer, District Jail, it appears that the deceased/accused had been examined by him on 5-9-1998 and he has recorded the temperature of the accused was 100F and according to him the accused was suffering from Malaria fever and therefore Malaria medicines were administered along with anti-biotic. It is not understood when the temperature was only 100F what are the reasons that compelled the doctor to administer upon the deceased/accused the malaria medicines without getting blood test. As such it creates a serious doubt about the authenticity of Exhibit A(18), D.W. 6 stated that deceased/accused was brought to District Jail on 4-9-1998 in the evening on the strength of custody warrant along a medical prescription of Mairang health Centre duly countersigned by the SDM. Mairang, whereas D.W. 1 stated in his cross-examination that on 4-9-1998 deceased/accused was not produced nor medical certificate prescription produced before him. As such, he ordered I/O to produce the medical certificate.
From the evidence of D.W. 1, it is clear that neither accused nor the medical certificate nor the prescription produced before him on 4-9-1998 as such, it is not believable that medical certificate or prescription issued on 4-9-1998 by the doctor of CHC Mairang countersigned by the SDM Mairang. This also creates another serious doubt about the authenticity of the evidence given by the respondent.
9. I have carefully gone through the findings recorded by the District & Sessions Judge. Shillong and cannot but observe that the learned District & Sessions Judge has conducted the enquiry thoroughly and did not spare any effort in finding out the correct picture of the event leading to the death of the deceased and also of the sustained cover-up efforts made by the officials of the respondents authority. I do not find any perversity in the findings so recorded by the District & Sessions Judge, Shillong. That apart, on my independent appreciation of the evidence adduced on behalf of the petitioners, I am of the view that a case of foul play looms large in the death of the deceased. There is no dispute regarding the death of the deceased in the Civil Hospital, Shillong while he was in judicial custody. Except for minor variation here and there in the oral evidence of by P.W. 1 to P.W. 4, Which are quite natural, their evidences are on the whole credible and trustworthy. It has been the consistent evidence of all the witnesses adduced on behalf of the petitioners that while the deceased was lying in the Civil Hospital, he was found wearing clothes which were torn and exhibited some injuries on his ribs (on the left hand side) and chest and that his left hand was covered with plaster. These are elaborately discussed by the learned District and Sessions Judge. All the witnesses adduced on behalf of the petitioners have consistently testified that the injuries found on the person of the deceased were caused by kicks or blows or by lethal weapons. P.W. 3 categorically stated that at the time the deceased was taken in police custody, she saw the police personnel beating him with sticks. This was corroborated by the evidence of P.W. 4 who deposed that at the time of arrest of her husband, she saw the police assaulting her husband with lathis and put him inside the jeep all the while assaulting him and then took him away. P.W. 4, who is the wife of the deceased, further deposed that at the time of giving bath to her husband, she saw his whole body was with injury marks on his face, chest, legs and his left hand plastered with plaster of paris and that the shirt worn by the deceased was torn having blood-stain. According to this witness, the Injury marks were caused by kicks, blows and lathis. All the witnesses adduced by the petitioners were unanimous In stating that before the arrest of the deceased, he was healthy and did not have any sickness. She also deposed that the Sardar of the Village also saw the police assaulting the deceased. All these witnesses adduced on behalf of the writ petitioners were cross-examined by the respondents, but their evidence are not shaken in any manner. Thus from the evidence adduced by the petitioners, I am satisfied that the petitioners have made out a prima facie case that the deceased was a victim of custodial violence.
10. It must be remembered that a proceeding under Article 226 of the Constitution of India concerning violation of fundamental rights, more particularly, the fundamental right under Article 21 of the Constitution, is not a criminal proceeding and in a proceeding of this nature, proof beyond reasonable doubt cannot be insisted upon. Once the petitioners have made out a prima facie case of custodial violence which resulted in the death of the deceased, the provision of Section 106 of the Indian Evidence Act can be readily invoked. Under Section 106 of the Evidence Act, it is provided that when any fact especially within the knowledge of any person, the burden of proving that fact is upon him. This section like the preceding one is an exception to the general rule laid down in Section 101, which says that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue. However, I must hasten to say that Section 106 is not intended to relieve any person of that duty or burden, and says that when a fact to be proved (whether affirmative or negative) is peculiarly within the knowledge of a party, it is for him to prove it. For instance, when the incident of murder had taken place inside the house of the accused at the time when the accused person alone were present, they only knew what exactly had happened. It is true that Section 106 cannot be used to shift the onus of proving the evidence from the prosecution to the accused, but when there is satisfactory evidence which fastens or conclusively fixes the liability for the death of the inmates of the house present at the relevant time, in the absence of any other explanation, the only possible inference which can be drawn by this Court will be that all the accused inmates participated in the crime. If any one of them claims to the contrary then under Section 106, the burden of proving that fact would be upon him since that is within his special knowledge. This was the principle laid down by the Apex Court in Shambhu Nath v. State of Ajmer : 1956CriLJ794 . If this is the principle held applicable even in a criminal proceeding requiring proof beyond reasonable doubt, with due respect, there is no difficulty in holding that when there is prima facie evidence to show that the deceased was subjected to physical torture by the police personnel after he was apprehended or taken into custody, it is incumbent upon the respondents to prove that the Mairang Police Station, which took him to custody or the Jail authority which subsequently took him to custody have no hand in the death of the deceased.
11. In this connection, the observations of the Apex Court in Munshi Singh Gautam v. State of MP : 2005CriLJ320 at paragraphs 6 & 7 are instructive and are reproduced hereinbelow:
6. Rarely in cases of police torture or custodial death, direct ocular evidence is available of the complicity of the police personnel, who alone can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues - and the present case is an apt illustration - as to how one after the other police witnesses feigned ignorance about the whole matter.
7. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the Courts as well, because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lockup because there would hardly be any evidence available to the prosecution to directly implicate them in the torture. The Courts must not lose sight of the fact that death in police custody is perhaps one of the worst kinds of crime in a civilized society governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under-trial prisoners or suspects furnishes the image of any civilized nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become a law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crop, the foundations of the criminal justice delivery system would be shaken and civilization itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The Courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens, will be a sad day, for anyone to reckon with.
12. Having held that the writ petitioners have established a prima facie case that the deceased was subjected to custodial violence/police torture and died in custody, let me now proceed to examine whether the respondents led any credible evidence to discharge this burden. As noticed above, the learned District and Sessions Judge has meticulously appreciated the evidence adduced on behalf of the respondents and came to the finding that the respondents miserably failed to establish that the cause of the death of deceased was malaria fever. The learned District and Sessions Judge duly noted that DW9, who is the Doctor attending the deceased at the Civil Hospital had stated in his cross-examination that he had noticed the neck of the deceased being stiff etc. and had prescribed pain killer and anti biotic. The natural question which come to mind is if the deceased was really suffering from malaria fever, how could he prescribe antibiotic drug? This lends credence to the allegations of the petitioners that the deceased was administered antibiotic medicines by the Doctor to heal the wound caused to him due to the physical assault made by the police personnel. The following circumstantial evidence cannot be ignored:
(1) Though the senior Medical and Health Officer (DW 10) who conducted the postmortem examination on the deceased certified that his death was due to heart failure following diseases of heart and lungs, vide Exhibit A(30), the death certificate at Exhibit A(22) indicated the cause of death to be cardio-respiratory failure. This is contradictory to the cause of death given by DW 5, namely, Dr. D.R. Dekhar, who was the Jail Doctor certifying that the cause of death was due to malaria.
(2) Again DW 5 testified that no blood test was advised by him, yet he, nevertheless, prescribed tablets for treatment of malaria. Though he prescribed a number of tablets to be taken and the frequencies for taking the medicines, he did not indicate so in his prescription i.e. Exhibit A(13). He also disclosed that he did not maintain register to show the treatment given by him to the deceased, even though that was the normal practice in other cases.
(3) The deceased, as per DW4, was found healthy and had no mark of injury, but this witness went on to say that some medicines were given to the deceased when he was taken to the Medical Officer on 2-9-1998. That apart, the medical prescription issued by the Medical Officer was counter-signed by the Sub-Divisional Magistrate, Mairang, was never exhibited.
(4) When the Sub-Divisional Magistrate, Mairang Sub-Division remanded the deceased to police custody on 4-9-1998 and then to judicial custody on 5-9-1998, the deceased was not produced before him. This is not only in violation of Section 167 CrPC but also an evidence substantiating the allegations of the petitioners that the omission was for concealing the evidence of physical injuries found on the deceased.
(5) Though DW9 testified that blood test was carried out to determine if the deceased was suffering from malaria, no documentary evidence was produced in the enquiry to substantiate this allegation.
13. The cumulative effect of the circumstantial evidence indicated above leads me to one and one conclusion, which is, the conclusion of the learned District and Sessions Judge that the deceased did not die of malaria fever, and there was foul play in his death is well founded. I have no hesitation to add that the respondents are unable to discharge the burden cast on them or to demonstrate that the deceased did not die of custodial violence and that a massive cover-up operation was undertaken by the police personnel in collusion with the Medical Officers, who were produced as defence witnesses, to ensure that the truth about the custodial violence against the deceased, which culminated in his untimely death was never unearthed or made known to the public.
14. Having come to the conclusion that the deceased died due to custodial violence, the next question to be determined what is to be done by this Court on the facts and circumstances of the case. Since a case of breach of fundamental right to life guaranteed by Article 21 of the Constitution by the State and its instrumentality has been made out, the award of compensation against the State respondents can only be the appropriate and effective remedy. The relief of monetary compensation as exemplary damages, in a proceeding under Article 226 by the High Court for established infringement of the enforceable right guaranteed under Article 21 of the Constitution is undoubtedly a remedy available in public law and is based on strict liability for contravention of the guaranteed basic and indefeasible right of the citizen. To quote the Apex Court, the purpose of public law is not only to civilize public power but also to assure the citizen they live under a legal system which aims to protect their interests and preserve their rights. When therefore, the Court moulds the relief by granting compensation in proceeding under Article 226 of the Constitution seeking enforcement and protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrongdoer on the State which has failed in its duty to protect the fundamental right of the citizen. The payment of compensation in such a case is not to be understood, as it is generally understood general interest in a civil action for damages under the public law but in the brooder sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrongdoer for breach of public duty and is independent of the rights available to the aggrieved party to claim compensation under the prevalent law through a suit instituted in a court of competent jurisdiction. The quantum of compensation will, however, depend on the facts and circumstances of the case. In the instant case, the deceased was 27 years old at the time of his death, was a daily wage earner and is surviving by his wife and two minor children. Considering the condition of the deceased and the circumstances in which he died, I am of the view that a compensation of Rs. 3 lacs will meet the ends of justice.
15. For what has been stated above, this writ petition is allowed. The State-respondents are directed to pay a compensation of Rs. 3,00,000/-(Rupees three lacs) only to ithe petitioner No. 2 within a period of two months from the date of receipt of this judgment. The State-respondents shall also hold an enquiry to find out the police personnel involved in the custodial death of the deceased. The amount of compensation paid to the petitioner No. 2 may be realized by the State-respondents from the police personnel found to be involved in the custodial death of the deceased. It shall also be open to the petitioner to approach a civil Court for compensation/damage available under the law of tort.