High Court
Case Details
WP(C) 8902/2005 BEFORE HON’BLE MR. JUSTICE A.K. GOSWAMI This writ petition under Article 226 of the Constitution of India was filed, amo ngst others, with the prayer for a judicial enquiry into the death of Deben Laha kar, husband of petitioner No. 1 and father of the other 4 petitioners on 17.01. 2005 and for grant of compensation. 2. Mr. S. Chakraborty, learned counsel for the petitioners submits that as the respondents have placed on record the report of the Executive Magistrate, wh o conducted an enquiry into the incident, he will not press for a judicial enqui ry and make submissions for grant of compensation on the basis of available mate rials on record including the report of the Executive Magistrate. 3. The projected case of the writ petitioners in the writ petition, inter-a lia, is that the husband/father of the petitioners, who was a cultivator and the sole earning member of the family was killed by army personnel on 17.01.2005 at about 04:45 a.m. without any prelude and provocation. It is pleaded that some a rmy personnel cordoned off the house of the petitioners around the aforesaid tim e, and when the husband/father of the petitioners opened the door on being knock ed, he was directed to raise his arms and then they had taken him to the backyar d of their house and was shot at resulting in his death. A hue and cry was raise d by the petitioners and the people who had gathered were prevented from going n ear the site. The petitioner No. 2 was made to sign on a blank paper showing tha t no instance of firing had taken place. The Gaonbura and the Ex-member of Ghagr apar Gaon Panchayat were also forced to put their signatures in the blank paper. Around 09:00 a.m. on 18.02.2005, Magistrate alongwith some police personnel arr ived at the house of the petitioners and the petitioners were allowed to enter t heir house and found that the dead body of their husband/father was cordoned off by army personnel. An F.I.R. was lodged by the petitioner No. 2 on 18.01.2005, registered as Ghagrapar P.S. Case No. 5/2005 under Sections 395/397/447/302/384/ 34 I.P.C. A bullet cartridge bearing No. 323-98 being found near the body of the deceased on 21.02.2005, same was handed over to the Circle Officer on 21.02.200 5 and a receipt bearing No. 258 dated 21.02.2005 was issued acknowledging the sa me. Though a Magisterial enquiry was ordered, outcome of the enquiry is not know n. An application for compassionate appointment was received by the Deputy Commi ssioner, Nalbari on 09.03.2005. However, the same did not evoke any response. An affidavit-in-opposition on behalf of the respondent No. 3 was filed o 4. n 06.05.2006. The army authorities also filed an affidavit on 29.03.2006. In the affidavit-in-opposition of the respondent No. 3, it is stated that on 18.01.200 5 at 04:00 a.m., army personnel of No. 16 Garhwal Red Horn Division, from Gopal Bazar Camp, Nalbari came to Burburi village under Ghograpar P.S. alongwith a con stable of Ghograpar P.S. and after reaching the village at around 05:30 a.m., co mpleted search operation at 06:00 a.m. One Sri S.R. Bora, ACS, Circle Officer an d Executive Magistrate of Ghograpar Revenue Circle, who was directed to make an enquiry by the respondent No. 3, submitted his Report on 14.02.2005 indicating t hat Indian army cannot be made responsible for the death. 5. In the affidavit of the army dated 29.03.2006, it was denied that any op eration was carried out by the army personnel on 17.01.2005 at 04:45 a.m. at vil lage Burburi as pleaded by the petitioners. However, on the basis of information received about presence of terrorists in village Burburi, operations were launc hed by army alongwith police representative, on 18.01.2005 by establishing a cor don at 05:30 a.m. and commencing a search operation at first light. During the s earch in the house of the writ petitioners, the petitioner No. 2 had informed th at their house was looted at approximately 01:30 a.m. by dacoits and the dacoits had also fired at him and had injured them and that his father had run away fro m the house at around 04:30 hours apprehending danger to his life and he had not returned till then. Around 07:45 a.m., the Officer-in-Charge of Ghograpar P.S. reached the place followed by the Additional Superintendent of Police (Security) . Search of the area was continued and the army authorities chanced upon a dead body in a bamboo groove at around 08:30 a.m. on 18.01.2005 and the dead body was identified as the husband/father of the petitioners. 6. One affidavit-in-reply was filed by the petitioners on 23.11.2010 to the affidavit of the army authorities reiterating the version in the writ petition. The version of the army authority that the army unit was told about the absence of the husband/father of the petitioners is denied. It is pleaded that there wa s large-scale discontentment among the people because of killing of the husband/ father of the petitioners and there was wide media coverage of the incident. Against the said reply of the petitioners, the army authorities filed on 7. e more affidavit-in-opposition, primarily dealing with the Enquiry Report of the Executive Magistrate. 8.
Legal Reasoning
Mr. S. Chakraborty, learned counsel for the petitioners submits that the date (cid:28)17.01.2005 (cid:29) in the ejahar and also in the writ petition actually reflects the date (cid:28)18.01.2005 (cid:29). As the incident of dacoity as well as the killing of the husband/ father of the petitioner had taken place at night, as is normally desc ribed by the villagers, the previous date being (cid:28)17.01.2005 (cid:29) was mentioned. It i s submitted by him that appearance of the date as (cid:28)17.01.2005 (cid:29) is of no conseque nce inasmuch as the respondents have themselves stated that there was an army op eration on 18.01.2005 in the early hours and that dead body of the husband/fathe r of the petitioners was also recovered during the course of search operation on 18.01.2005 itself. It is submitted by him that it was a co-incidence that dacoi ts had also committed dacoity on that fateful day but dacoity and army operation s are two separate incidents and the death of the husband/father of the petition ers was not as a result of firing by dacoits but was as a result of cold-blooded murder by the army authorities. Learned counsel submits that although in the En quiry Report, it is held that Indian Army cannot be held responsible for the sai d death because of absence of eyewitnesses, it is also appearing therefrom that Deben Lahakar died on 18.01.2005 between 04:30 a.m. to 05:00 a.m. due to bullet injury, the only conclusion that can reasonably be drawn is that the version of the petitioners is true and the death had occurred because Deben Lahakar was sho t to death by army. In view of the above, learned counsel submits that this Cour t may issue directions for compensation. 9. Mr. D.C. Chakraborty, learned CGC, placing reliance on the report of the Magistrate submits that in view of the finding recorded by the Magistrate, ther e is no substance in the allegations made by the petitioners that army personnel had killed the deceased by shooting him in the backyard of his house. It is sub mitted by him that dacoits may have killed him and the army authorities are soug ht to be falsely implicated by the petitioners in order to make a case for grant of compensation. The learned CGC was emphatic in his submission that the writ p etitioners deliberately did not mention in the writ petition that a dacoity had taken place in their house at around 01:30 a.m. in the morning and because of su ch suppression of material fact, the writ petitioners are not entitled to any eq uitable relief. 10. Ms. B. Dutta, learned State Counsel submits that Ghograpar P.S. Case No. 5/2005 under Sections 395/397/447/302/384/34 I.P.C. registered on the basis of the ejahar lodged by the petitioner No. 2 relating to the incident was returned in FR as case true but no clue vide Ghograpar P.S. F.R. No. 30/2011 dated 27.07. 2011. Learned counsel submits that Enquiry Report of the Magistrate dated 14.02. 2005 has noted that version of the army is not 100% true but in absence of any e yewitness, it will not be possible to hold the army responsible for death of Deb en Lahakar. Learned State Counsel has also placed before the Court the records p ertaining to the Magisterial Enquiry in the form of statements recorded, etc. 11. I have heard the learned counsel for the parties and have perused the ma terials on record. I have also perused the record produced by Ms. B. Dutta, lear ned State Counsel. 12. At the outset, it will be appropriate to clear the controversy regarding the date (cid:28)17.01.2005 (cid:29) to dispel the air of confusion, thus clearing the deck fo r further discussion. It is nobody’s case that the incident of death had taken place actually 13. on 17.01.2005 and dead body was found more than 28 hours later. FIR was lodged o n 18.01.2005. In the said F.I.R., there is also reference that around 09:00 a.m. , Magistrate and Police had come. Therefore, the event disclosed in the F.I.R. a nd the version of the army that it had conducted an operation in the village and in the house of the deceased on 18.01.2005, unmistakably, is referable to 18.01 .2005 and mentioning of the date as 17.01.2005, is a mere mistake, which does no t materially alter the position with regard to the dacoity committed as also arm y operation. What is of significance is the time lag of about 3-4 hours in these two separate independent events. Much had been said by Mr. D. C. Chakraborty that the writ petitioners su 14. ppressed the fact of dacoity being committed in their residence and it is quite probable that, may be, the dacoits had killed Deben Lahakar when the F.I.R. disc loses use of fire arms by the dacoits. The contention is without any merit. The petitioners have annexed the copy of the ejahar in the writ petition wherein the fact of dacoity committed is clearly mentioned alongwith the loss suffered. The case of the petitioners is based on army personnel killing the husband/father o f the petitioners. In the aforesaid backdrop, even if the earlier event of dacoi ty is not mentioned in the writ petition, the same, at best, may be stated to be an omission and not suppression. Plea of suppression may have been tenable in a given case where no material at all is placed relating to the aforesaid two sep arate events but that is not the case here. 15. The army authorities have placed reliance on the Report of the Magistrat e and they have annexed the Enquiry Report dated 14.02.2005 as Annexure - I in t heir affidavit-in-opposition to the affidavit-in-reply filed by the petitioners to the earlier affidavit-in-opposition filed by the army. The said Report is als o enclosed in the affidavit of the respondent No. 3. The Report of the Magistrat e is in vernacular. The Enquiry Report dated 14.02.2005, the translated version of which is annexed as Annexure - I in the affidavit of the army, reads as follo ws: (cid:28)GOVERNMENT OF ASSAM Office of the Executive Judicial Magistrate, Ghagrapar, District Nalbari GBC/42/2003/199-267 Dt : 14/02/05 To, Subject : Reference :- District Magistrate of Nalbari District letter No. 12 04/77-A dt 02 /02/05 Petition for investigation of death of Deven Lahkar. The District Magistrate Nalbari, District - Nalbari Executive Magistrate, Ghagrapar letter No. GPC 42/2003/199 dt. 02/02/05. Sir, It is hereby informed that the Army Authority of 16 GARH RIF, Red Horn D ivision has submitted the statement regarding death of Deven Lahkar of Village B urburi, Ghagrapar on 11/02/05. Keeping in security point of view, the name of Officer-in-Charge of 16 G ARH Rif who went to the house of Deven Lahkar on 18/01/05 has not been mentioned . Discussion-Decision:- 03 statements of Army Authority’s have been seen. On 18/01/05 at 4.00 o’clock a team of 16 GARH RIF alongwith a constable (a) of Ghagrapar Police Station started to move on foot towards Burburi village. The y arrived at village Burburi at 5.30 o’clock and cordoned the village within 30 minutes. Cordon has been completed at 6.00 o’clock in the morning. The Indian Army personnel has searched the other houses of the village. (b) (c) The Indian Army personnel was searching the houses Deven Lahkar for firs t time from 6.15 o’clock to 6.25 o’clock on 18/01/05. The dead body of Deven Lah kar has not been seen during the first searching. On 18/01/05 between 7.15-8.30 o’clock in the morning, when second search (d) ing was started by the Army alongwith the Officer-in-Charge of Ghagrapar Police Station. Additional Superintendent of Police, Nalbari, the dead body of Deven La hkar has been found on the backside of his house. Study of Investigator:- 1. On 18/01/05 at 4.00 o’clock the Indian army team alongwith a constable N o. 390 (Dhanesh Deka) of Ghagrapar Police Station started to move to Burburi vil lage on foot. Let statement of constable No. 390 be seen. Statement is matching. 2. As per statement of Indian Army, they have arrived in the village at 5.3 0 o’clock in the morning and cordon has been established at 6.00 o’clock and sea rching carried out some houses of the village. There were 30 personnel of Indian Army in the team out of which 06 personnel alo ngwith the constable stayed 1 kilometer back before reaching the Deven Lahkar’s house. There were 25 Army personnel available in the village. The measurement of village Burburi is 1532 Bigha 01 Katha and 19 Lecha or 2.05 s quare kilometers (Approximate). It is not possible to establish the cordon with the 25 Army personnel. The searc hing was carried out by the Army in the house of Deven Lohkar and another house of Mr. Jivan Lohkar located 1‰ meter away from the Deven Lohkar house because al l house hold family members of Mr. Jivan Lohkar were kept away from their house by the Army. (Let statement of Jivan Lohkar be seen). 3. As per statement of Army they have cordoned the house of Jivan Lohkar in the morning at 6.15 o’clock and searching was carried out in the house upto 6.2 5 o’clock. This time the army personnel did not know about the death of Deven Lo hkar. The second searching was carried out from 7.50-8.30 o’clock in the morning . This time the Army personnel accompanied with 03 personnel of Assam Police hav e noticed the dead body of Deven Lohkar. Let statements of Bapdhan Lohkar, Mantu Lohkar, Rantu Lohkar, Nilima Lohkar, Jaimati Lohkar (Entire family members) and Jivan Lohkar, Pariskhit Lohkar, Motibar Rahman be taken (Three villagers). As per statement of entire family members, 03 rounds of firing were heard in the morning between 4.30-5.00 o’clock. Since then Deven Lohkar has not been seen by the family members. Let seen the maps submitted by the investigators. The dead body was found in the area between 1-3 meters of Lohkar’s house. The Indian army do not carry out the searching unless cordon is established. The y stated that they have taken 30 minutes time to establish the cordon. Therefore , it correct that they have not seen the dead body during the first searching. Therefore, the 3 statement of Indian Army is 100% correct. OPINION OF THE INVESTIGATORS (a) (b) (c) orn Division, were present. (d) f death. (e) med for the death of Deven Lohkar. (cid:29) On 18/01/05 in the morning at 3.30 o’clock, Deven Lohkar was alive. Deven Lohkar has died between 4.30-5.00 o’clock on 18/01/05. At the time of death of Deven Lohkar, the troops of 16 GARH RIF’s, Red H The names of three personnel who have seen to Deven Lohkar at the time o On the above statements, it is opined that the Indian Army cannot be bla 16. The translated version of the Report of the Magistrate as enclosed in th e affidavit of the respondent No. 3 is required to be reproduced as the same is found to be somewhat different than the one produced by the army. The same reads as follows: (cid:28)(Translated copy of Enquiry Report submitted by the Executive Magistrate, Gogra par. (cid:29) GOVT. OF ASSAM OFFICE OF THE EXECUTIVE MAGISTRATE : GOGRAPAR NALBARI DISTRICT. No. GPC/42/2003/199-267 Dated : 14.2.2005. To, The District Magistrate, Nalbari, District - Nalbari. Enquiry Report on the death of Lt. Deben Lahkar. Sub : Ref : No. NM.12-04/77-A dated 19.1.2005 issued by the District Magistrate, Nal bari. And Executive Magistate, Gograpar’s Letter No. GPC.42/2003/199 dated 2.2.2 005. Sir, With reference to the above, I have the honour to state that the officer of No. 16 Garhwal Rifles, Red Horn Division of Indian Army submitted his opinio n/view and written statement before the undersigned. On the ground of secrecy an d security of the officer, the name of the officer of the No. 16 Garhwal Rifles is not mentioned. DISCUSSED & CONSIDERED: Perused the written statement and view of the Army Officer. (i) One party from No. 16 Garhwal Rifles, Red Horn Division of Indian Army p roceeded to Burburi village along with a Constable from Gograpar Police Station on 18.1.2005 at 4 A.M. on foot. On reaching the village at 5.30 A.M. they made a cordon and the said cordon completed at 6.00 A.M. The Indian Army searched the houses of other persons of the village. (ii) (iii) The Indian Army for the first time searched the house of Lt. Deben Lahka r from 6.15 A.M. to 6.25 A.M. on 18.1.2005. In the first search the Indian Army did not see the dead body of Lt. Deben Lahkar. (iv) When the Indian Army again searched for the second time from 7.50 A.M. t o 8.30 A.M. on 18.1.2005. The dead body of Lt. Deben Lahkar was seen at the back side of the house by the Officer-in-Charge of Gograpar P.S. and Addl. Superinte ndent of Police, Nalbari District. OBSERVATION OF INQUIRY OFFICER: 1. The above mentioned team of Indian Army proceeded on foot alongwith a Co nstable No. 390 (Promesh Deka) of Gograpar P.S. to Burburi village at 4 A.M. of 18.1.2005. Perused the statements of Constable No. 390. It is corroborating. According to Indian Army they were present at 5.30 A.M. and made cordon 2. within 6 A.M. and searched some houses of the village. Perused the statement of Constable No. 390. The Indian Army consisted of 30 persons. 6 out of the Indian Army, kept standing at da mb (motouri) alongwit h Constable No. 390 at a place 1 K.M. away from the house of Deben Lahkar, there remain 25 other members of the Indian Army. The area of Burburi village is 1530 Bigha, 01 K - 19 Ls which is equal to 2.05 Sq.K.M. (approximate). Therefore, it is not possible to cordon the entire village by 25 number of Army personnel. As per spot enquiry of the undersigned, the Army, perhaps, searched the house of J iban Lahkar which is situated at a distance of 1‰ Mtr. from the house of late De ben Lahkar. Because the Army brought out the whole family members of Jiban Lahka r from their house and kept them at a distance (perused the statement of Jiban L ahkar). 3. According to Army, they entered the house compound of late Deben Lahkar at 1.15 A.M. and searched the house till 6.25 A.M. Till then the Army was ignora nt about the death and dead body of Deben Lahkar. The Indian Army and the Assam Police recovered the dead body of Deben La hkar when they made a second search in the morning between 7.50 A.M. - 8.30 A.M. Sri Bapdhan Lahkar, Montu Lahkar, Rantu Lahkar, Nilima Lahkar, Joymati Lahkar ( all family members) and Jiban Lahkar, Parikshit Deka, Motibor Rahman (co-village rs) - perused their statements. According to them there was sound of 3 firings at 8.30 - 5.00 A.M. and s een then the family members did not find Deben Lahkar. Perused the sketch map submitted by the I.O. The place where the dead bo dy was found is about 1-3 Mtr. from the house of Deben Lahkar. The Indian Army do not search the house without making cordon. They said that it took 30 minutes for cordoning. Therefore, plea of non-finding of dead body at the first search by the A rmy is nothing but expression of ignorance on the entire occurrence. Therefore, the statements and version of the Indian Army about the occur rence is not acceptable by 100%. OPINION OF THE ENQUIRY OFFICER: (1) (2) Late Deben Lahkar healthy and alive till 3.30 A.M. of 18.1.2005. Late Deben Lahkar died on 18.1.2005 between 4.30 A.M. to 5.00 A.M. due t o Bullet injury. (3) At the time of death of Deben Lahkar the troop of No. 16 Garhwal Rifles, Red Horn Division of Indian Army was definitely present. (4) (5) There is not a single eye witness of the death of Deben Lahkar. In absence of any eye witness it will not be possible to hold the Indian Army responsible for the said death. (cid:29) 17. I have perused the vernacular version of the report dated 14.02.2005. Ou t of the two reports produced, the one annexed with the affidavit of the respond ent No. 3 more or less correctly reproduces the Assamese version. However, even in that report, there are some mistakes. For instance, in paragraph 3 of the rep ort, instead of 1.15 A.M., it should be written as 6.15 A.M. and instead of 8.30 - 5.00 A.M., it should be written as 4.30 A.M. - 5.00 A.M., followed by (cid:28)and si nce (cid:29) instead of (cid:28)and seen (cid:29). (cid:28)da mb (motouri) (cid:29) is wrongly typed and described for the word (cid:28)embankment (cid:29). There are few other mistakes in translation which is not very material. The opinion of the Enquiry Officer, however, is correctly reprod uced. So far as the report as annexed by the army in their affidavit is concerne d, it will be necessary to highlight few glaring mistakes on material points. Th e heading of the office is itself wrong. It is written as (cid:28)Executive Judicial Ma gistrate (cid:29). It should be Executive Magistrate. The last sentence above (cid:28)Opinion o f the Investigators (cid:29) reads as (cid:28)Therefore, 3 statements of Indian Army is 100% co rrect (cid:29) (emphasis added). The correct translation should read as (cid:28)Therefore, the statement and version of the army officer with regard to the occurrence is not 1 00% acceptable (cid:29). The word (cid:28)definitely (cid:29) in Clause - (c) of the (cid:28)Opinion of the In vestigators (cid:29) is not written. Clause - (d) of the (cid:28)Opinion of the Investigators (cid:29) should read as has been reflected in Clause - 4 of the report as annexed in the affidavit of respondent No. 3. Similarly, Clause - (e) should read as reflected in Clause - 5 of the report annexed in the affidavit of the respondent No. 3. It is significant to note that the army has not challenged the report of 18. the Executive Magistrate and in fact, relies on the same. In view of the above, I do not consider it necessary to refer to the statements of the members of the family as well as the co-villagers. The opinion recorded, amongst others, that at the time of death of Deben Lahakar, the troop of No. 16 Garhwal Rifles, Red H orn Division was definitely present, that he died of bullet injury between 04:30 a.m. to 05:00 a.m., and that Deben Lahakar was hale and hearty and alive till 0 3:30 a.m. are not in question. 19. The records produced by Ms. Dutta reveals that a statement of an officer of Red Horns Division was recorded on 11.02.2005. He had also given a statement in writing. From the statement recorded, it appears that the army column had re ached Ghograpar Police Station at 04:00 a.m. The purpose of visit was that army had received information at around 03:00 a.m. regarding presence of some cadres of ULFA in the residence of the petitioner No. 2. He had stated that the petitio ner No. 2 informed him that dacoits had come to his house at 01:30 a.m. and late r on at 04:30 a.m. in combat dress. He stated that no bullets were fired by the army. He also stated that petitioner No. 2 had informed him that his father, Deb en Lahakar was missing since 04:30 a.m. when the group of dacoits in combat dres s had come to their house. He had also stated that there was information of invo lvement of petitioner No. 2 with ULFA and that it is probable that the so-called dacoits were actually ULFA cadres and that the he had introduced the story of p resence of dacoits to mislead the police to cover up the fact that ULFA militant s were taking shelter in the house of the petitioner No. 2. 20. In the affidavits filed by the army, there was no mention of presence of ULFA extremists in the house of petitioner No. 2 and also his involvement with ULFA. It has also not been indicated that dacoity may not have taken place at al l and probably ULFA cadres had come to their residence. 21. The statement of Pramesh Deka, whose name was wrongly typed as Dhanesh D eka in the report of the Magistrate annexed by the army in their affidavit, is t he constable who had accompanied 16 Garwal Rifles on 18.01.2005. His statement r eveals that he was left behind along with six other army personnel about one kil ometer ahead of the house of the specified person and he was stationed at the sa me place for about two hours. Later on, after around 07:30 a.m., he went to the house of the specified person along with the Officer-in-Charge of Ghograpar Poli ce Station. Thus, it is seen that he was not present when the search was made in the house of the petitioners and this fact is also taken note of by the Enquiry Officer. 22. The dead body of Deben Lahakar, according to the affidavit of the army, also acknowledged in the Enquiry Report of the Magistrate, was recovered in a ba mboo groove at about 08:30 hours of 18.01.2005. According to the Enquiry Report, location of the place where the dead body was found is between 1-3 meters of th e house i.e., in very close proximity of the house. The statement made in the af fidavit of the army that the petitioner No. 2 had informed search party that his father had run away from the house at around 04:30 a.m. apprehending danger to his life from the dacoits, has to be tested on the basis of surrounding facts an d circumstances. It is not the stand in the affidavit that the dacoity had taken place around 04:00 - 04:30 a.m. The stated case of the petitioners is that daco ity had taken place at around 01:30 a.m. A question will naturally arise why out of the blue at 04:30 a.m., the father of the petitioner No. 2 suddenly became a pprehensive, so much so, that he ran away from the house out of fear of his life when the incident of dacoity was at 01:30 a.m., leaving all his family members including his wife behind. The doubt expressed by the army officer in his statem ent that probably at 04:30 a.m., ULFA cadres had come to the residence of the pe titioners to take shelter, bearing in mind his own statement that the petitioner No. 2 is also involved in ULFA activities, does not explain the death of Deben Lahakar due to bullet injury. 23. The net result of the discussion is that a bullet-ridden body of the own er of the house is found in the backyard within 1-3 meters of the house after an army operation was carried out in his house. The allegation of the petitioners is that army killed him after taking him out of the house. It would appear that shelter is sought to be taken by the army that death of Deben Lahakar had someth ing to do with the dacoits. Such a categorical stand, however, is also not taken . The stand of the army is very evasive. A bullet was found in the place of occu rrence. The same was delivered to the Circle Officer. The number of cartridge is also reflected in Annexure - 2 of the writ petition. Neither the state nor the army authorities has placed on record through what kind of firearms such cartrid ge is fired and whether such firm arms are normally used by the army. 24. Though the Enquiry Officer had, in Clause - 5 under the heading (cid:28)Opinion of the Enquiry Officer (cid:29) (Enquiry Report as annexed with the affidavit of respon dent No. 3), stated that in absence of any eye-witness, it will not be possible to hold the Indian Army responsible for the said death, in effect, the same is a conclusion of the Magistrate. It is not that one can be held responsible only i f there is an eye-witness. For the purpose of grant of compensation, a conclusio n that the death of Deben Lahakar is highly probable as a result of an army oper ation will be consistent with the attending facts and circumstances of the case. 25. Accordingly, this Court is of the considered opinion that the petitioner s are entitled to grant of compensation. It is considered that a compensation am ount of Rs. 3,00,000/- would be the just compensation. Taking that view, the res pondent No. 1 is directed to pay compensation of Rs.3,00,000/- to the petitioner s within a period of 4 months through the Deputy Commissioner, Nalbari. 26. Writ petition is allowed as indicated above.