CHAITANYA BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) BY means of this writ petition, the petitioners have prayed for issuance of a writ of mandamus Commanding opposite party no. 1 to pay them compensation of Rs. 10 lakhs for the murder of their son by another convict in Choudwar Jail. Brief facts of the case of the petitioners are that their son Krushna Chandra Behera having been convicted by the Second Additional Sessions Judge, Cuttack for commission of offences under sections 498 -A/304 -B of the Indian Penal Code and section 4 of the Dowry Prohibition Act in S.T. Case No. 375 of 2000 and sentenced to undergo rigorous imprisonment for life under section 304 -B I.P.C., for three years for offence under section 498 -A I.P.C. and rigorous imprisonment for a period of six months for offence under section 4 of the Dowry Prohibition Act was lodged in Circle Jail, Choudwar to undergo the sentences. He was residing in Ward No. 19 of the said Jail along with some other convicts including one life convict Pratap Khatei. On 9.6.2008 at about 7.40 p.m. Pratap Khatei assaulted Krushna inside the jail as a result of which he sustained serious injuries on the vital parts of his body and was immediately shifted to S.C.B. Medical College and Hospital, Cuttack. It is alleged that due to lack of proper treatment, the health condition of Krushna worsened and ultimately he succumbed to the injuries in the hospital on 10.6.2008. Petitioners have alleged that the opposite parties did not inform them about the assault on their son as a result of which they could not attend him in the hospital and only after the death of their son his dead body was handed over to them on 11.6.2008. The further case of the petitioners is that their son Krushna had appealed against the judgment of conviction and had a fair chance of success. It is averred that petitioner no. 1 is a physically handicapped person and petitioner no. 2 is seriously ill. The deceased was their only son and was maintaining them and he would have looked after and maintained them till their death. He was residing in Jail Custody and it was the responsibility of the opposite parties to ensure his life and safety inside Jail. His untimely death occurred due to the negligence of the State officials in protecting his life. Therefore, the State is duty bound to compensate the loss sustained by the petitioners. On the aforesaid allegation, they have filed this writ petition praying for a direction to the opposite parties to pay compensation of Rs. 10 lakhs.

(2.) LEARNED counsel for the petitioners contended that it is the duty of the State to protect the life and liberty of the citizens in terms of Article 21 of the Constitution. Where the Government falls to protect the rights of the citizens as guaranteed by the Constitution, the Government is liable to pay compensation for loss of life due to its negligence or failure. The fact that the assailant could be successful to carry the weapon of offence inside the jail exhibits lack of proper checking inside the Jail and unmistakably points to the negligence of the jail staff. The death of Krushna occurred due to negligence and carelessness on the part of the Jail staffs who are officials of the State. Therefore the opposite parties can be held to have failed in their duty to ensure and protect the life of the deceased. He has placed reliance on various decisions of the Hon'ble apex Court and of High Courts.

(3.) IT is now established that even where a person is convicted and imprisoned under sentence of Court, he does not lose all the fundamental rights belonging to all persons under the Constitution, excepting those which cannot possibly be enjoyed owing to the fact of incarceration, such as right to move freely or the right to practice a profession. In prison he shall not be deprived of his life or personal liberty except according to the procedure established by law. The deceased at the relevant time was in the jail custody and therefore it was the responsibility of the Jail authorities who are no other than officers of the State to protect his life. A similar case involving killing of a convict in jail while serving out his sentence under section 302 I.P.C. by another convict in Central Jail, Varanasi came up for consideration before the Hon'ble apex Court in Smt. Kewal Pati v. State of U.P. and others, : 1995 Cri.L.J. 2920. The apex Court referring to its earlier decisions in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, : AIR 1981 and A.K. Roy v. Union of India, : AIR 1982 S.C. 710 held that even though the deceased was serving out the sentence, the authorities were not absolved of their responsibility to ensure his life and safety in the jail. The apex Court further held that the deceased was entitled to protection and since the killing took place when the deceased was in jail, it resulted in deprivation of his life contrary to law. Therefore, the Hon'ble apex Court directed the State Government to pay compensation to the wife and children of the deceased.