KHANGRA DAIMARY Vs. STATE OF ASSAM AND OTHERS

JUDGEMENT

(1.) The petitioner, the elder brother of Benudhar Daimary, filed the present writ petition alleging that, on 20.12.2000 at about 10 a.m. the Officer-in-Charge of Kowta Out Post along with one police contingent came to their house and picked up his younger brother Benudhar Daimary along with three other persons from village Gangumakha under Udalguri Police Station in the district of Darrang. Assam in connection with Udalguri Police Station Case No. 24/2000 in presence of his wife and the other villagers and was tortured by the police in presence of the other three persons, who were picked up alongwith Benudhar Daimary in Kowta Police Out Post, resulting in inflicting grievous injuries as a result of which, he died. It has further been contended that on the next date, i.e. on 21.12.2000, when the writ petitioner alongwith other persons of the locality went to the Police Out Post to enquire about his brother, the Officer-in Charge of the said Out Post, informed that Benudhar Daimary and others picked up from the village were arrested in connection with the aforesaid Police Station case and sent to jail custody. In the writ petition, it has further been contended that on 22.12.2000 the dead body of Benudhar Daimary was handed over to the family members of the deceased bearing a number of injuries signifying inhuman torture by the police, whose body, according to the police. was found near the railway track. It has further been contended that though the writ petitioner filed the petition before the Sub Divisional Officer. Civil, Darrang, praying for making an enquiry regarding the unnatural death of his brother levelling specific allegation against the Officer-in Charge of Rowta Police Out Post, but no action has been taken by the authority to enquire into and to punish the persons guilty for such offence.

(2.) This Court initially vide order dated 2.2.2001 while issuing notice of motion, upon hearing the learned Counsel for the parties, directed the Superintendent of Police. Darrang, Mangaldoi to appear in person on 19.2.2001 and to explain as to why the police case has not been registered despite the complaint dated 22.12.2000. Accordingly the Superintendent of Police. Darrang, Mangaldoi, personally appeared before this Court on 19.2.2001 and upon hearing passed an order directing the learned District and Sessions Judge, Darrang, Mangaldoi to conduct an enquiry into the allegation made in the complaint, dated 22.12.2000 (Annexure-2 to the writ petition) and to submit a report, to this Court within a period of 4 (four) months, by observing that the learned District and Sessions Judge will give all the due opportunities before him including the opportunity to examine and cross-examine the witnesses to be produced by the parties. The learned District and Sessions Judge, Darrang at Mangaldoi accordingly. made an enquiry in presence of all the parties concerned and by giving all opportunities to examine and cross-examine the witnesses and submitted his report, dated 8.9.2003 with the finding that the deceased. Benudhar Daimary. died in police custody due to the physical torture by the then Officer-in-Charge of Rowta Out Post resulting in his death. Copy of the said enquiry report submitted by the learned District, and Sessions Judge was furnished to the learned Counsel for the writ petitioner as well as the learned State Counsel appearing on behalf of the State respondents and also to the learned Counsel appearing on behalf of the respondent No. 6. who was the Officer-in-Charge of Rowta Police Out Post at the relevant point of time. The respondent No. 6. thereafter, on 7.5.2007 filed the affidavit, stating inter alia that the report of the learned District, and Sessions Judge cannot be accepted as the findings recorded therein are perverse being contrary to the evidences adduced by the parties and as the Sessions Case- being Case No. 42 (DM)/2007 has already been registered against him wherein the charge under section 302. I.P.C. has been framed, which is pending, the writ petition cannot, proceed further. The State respondents, however, have not filed any affidavit opposing the findings recorded by the learned District and Sessions Judge in his report.

(3.) We have heard Mr. N.N.B. Choudhury, learned Counsel for the petitioner, Mrs. B. Goyal, learned State Counsel appearing on behalf of the respondent Nos. 1 to 5 as well as the learned Counsel appearing on behalf of the respondent No. 6.