SMTI TOKHULI Vs. THE UNION OF INDIA

JUDGEMENT

(1.) The petitioner in this case has approached this Court for an appropriate direction directing the respondent Union of India to make payment of Rs.10 lakhs as compensation against death of her son by army. It is the case of the writ petitioner that Army Personnel of 5th Bihar Regiment based at Diphu in the State of Assam opened fire at the son of the petitioner on 31.10.2007 at about 5.00 P.M. at Burma Camp, Lotha Colony, Dimapur, Nagaland causing death of her 21 years old son Imkongtemsu and injury on her son -in -law.

(2.) It is alleged that on the fateful day, the deceased was travelling with Shri Akato Sema, aged about 32 years in a Gypsy bearing registration number NL 07 -3557 from Diphu to Dimapur after completing some personal business there. Army Personnel chased them from behind on mere suspicion that they were NSCN(IM) rebels and were involved in transshipment and smuggling of weapons in general area of Kathkati. After reaching Burma Camp, Lotha Colony, Dimapur, Army personnel stopped their vehicle for frisking and then they opened fire from close range resulting in death of Imkongtemsu and injury to Shri Akato Sema. Shri Akato Sema suffered bullet injuries on his both legs as well as on his right palm and he was taken to Dimapur Hospital. Dimapur East P.S. Case No.202/2007 under section 302/34 IPC was registered in respect to the incident. The police released the dead body of Imkongtemsu to the petitioner on the same day. In course of enquiry in the aforesaid Dimapur East Police Station case, it came to light that some Army personnel along with some persons in civilian dress were seen near the place of occurrence and one person identified himself as Major Nitin Kumar of 5th Bihar Regiment based at Diphu. Two empty cases of AK -47 were seized from the vehicle from the place of occurrence. The Superintendent of Police Dimapur wrote a letter to the Judicial Magistrate, Dimapur Court, Dimapur in Dimapur East P.S. Case No.202/07 under Section 302/34 IPC for requisitioning appearance of Major Nitin Kumar of 5th Bihar Regiment, however, to no avail. On the other hand, Army asserted that they received information from reliable sources of Army intelligence unit about transshipment and smuggling of weapons in general area Khatkhati for which they held an operation. Having spotted a Maruti Gypsy bearing registration No.NL -07 -3557, they made a hot chase but when they came closer, they encountered fires and so had to return fire for defence. One No.4279230 Sepoy Santosh Singh was injured on his left arm and right lower abdomen. He was shifted to Military Hospital at Dimapur and he was treated there. In course of exchange of fire, one person Imkongtemsu died and other person was injured who was also shifted to the same hospital. According to the Army, the deceased Imkongtemsu and Shri Akato Sema belonged to NSCN (IM) cadre. On 20.09.2009, the Sub -Inspector J. Konyak submitted his Final Report vide No.121/09 stating that despite requisition given by him to examine the drivers of the Army personnel during investigation, they were not produced, for which the I.O. returned the police case for final report due to insufficient evidence. Under such circumstances, the writ petition has been filed by the mother of the deceased asking for compensation against killing of her son by the Army Personnel of 5th Bihar Regiment.

(3.) This Court issued notice and thereupon, the respondent Union of India submitted an affidavit -in -opposition on 20.06.2011. The affidavit was sworn in by one Colonel Yogesh Kumar Gautam of the 5th Bihar Regiment. He stated that during the aforesaid operation, the army intercepted a white Maruti Gypsy bearing Registration No.NL -07 -3557 in the general area Khatkhati, but the occupants resorted to firing at Army for which the Army also had to open fire in self defence. In the process, one Shri Akato Sema was injured and Imkongtemsu died. Similarly, Sepoy Santosh Singh was also injured by the shots fired by the militants sitting in the aforesaid Gypsy. The injured Sepoy Santosh Singh and Shri Akato Sema were evacuated to Military Hospital at Dimapur. Dimapur Police confiscated the dead body and the white Maruti Gypsy bearing registration No.NL -07 -3557 and evacuated Shri Akato Sema without arresting him. It is further stated by the Army that they recovered one 9mm pistol, one country made sten gun with two live rounds of 9mm and empty cases of 9mm rounds fired by terrorists. According to them, the place of occurrence is covered by the provisions Section 3 of the Armed Forces Special Powers Act, 1958 and the Army personnel were acting well within the purview of Section 4(a) of the said Act.