Smt. Theingaila Hungyo v. Union of India

Smt. Theingaila Hungyo, aged about 60 years, w/o Aring Hungyo of Chahong Khullen Village, P.O. & P.S. Kamjong/Chassad, Kamjong District, Manipur. … Respondent HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR BEFORE For the Appellants/Applicants :: Mr. B.R.Sharma, Advocate For the Respondent :: Mr. Osbert Khaling, Advocate Date of Judgment & Order :: 22.08.2022 RFA No.1 of 2022 with MC(RFA) NO.5 of 2022 JUDGMENT AND ORDER (ORAL) [1] The Union of India and officials of the Assam Rifles filed this first appeal under Section 96 CPC r/w Order XLI CPC, aggrieved by the Judgment and Decree dated 20.12.2019 passed by the learned Civil Judge (Senior Division), Ukhrul, in Original Suit No.4 of 2017. The said suit was filed by the respondent herein, the mother of late Salmon Hungyo, seeking damages for his wrongful death while in the custody of the Assam Rifles. By the Judgment under appeal, the Trial Court accepted her claim and directed the defendants to pay a sum of ‘3 Lakh to her for causing the wrongful death of her son. ‘30,000/- was also awarded as costs for his funeral and burial service, in addition to the costs of the suit. Hence, this appeal. [2] Heard Mr. B.R.Sharma, learned counsel for the appellants; and Mr. Osbert Khaling, learned counsel for the respondent. [3] [4] Parties shall hereinafter be referred to as arrayed in the suit. The case of the plaintiff was that, on 12.08.2008, while Salmon Hungyo was on the way towards Shakok Village and was passing near a passenger bus, that had broken down due to a mechanical failure, a vehicle of 23 Assam Rifles appeared on the scene and they started firing. Though Salmon Hungyo tried to save himself, the personnel of Assam Rifles assaulted him with their rifle butts and muzzles in the presence of the bus passengers and the bus driver. He was taken away by the personnel of Assam Rifles and in the evening, his dead body was handed over to Shangshak Police Station by the personnel of Assam Rifles. [5] Earlier, the plaintiff filed W.P(C) No.587 of 2009 before the High Court of Manipur seeking payment of compensation for the wrongful death of her son. By order dated 08.06.2012 passed therein, this Court directed the learned District & Sessions Judge, Manipur East, to conduct an enquiry to ascertain the truth. Basing RFA No.1 of 2022 with MC(RFA) NO.5 of 2022 on the Report dated 08.04.2013 submitted by the learned District Judge, Manipur East, this Court awarded compensation of ‘5 Lakh to the plaintiff and left it open to her to approach the competent forum for higher compensation, if she so chose. [6] In view of this liberty, the plaintiff filed the subject suit. She sought ‘5 Lakh for causing physical and mental pain and for causing the death of her son; ‘30,000/- for performing funeral services; ‘70,000/- for mental distress and loss of love and affection; and for costs. Therein, the Trial Court framed the following points for determination/issues: - “(i) Whether the deceased Salmon Hungyo (son of plaintiff) was apprehended by the 23 Assam Rifles on 12.03.2009 from the road towards Shakok village? (ii) Whether the deceased (Salmon Hungyo) died in the custody of 23 Assam Rifles personnel? (iii) Whether the deceased (Salmon Hungyo) died in an encounter of firing occurred on 12.08.2009 between the 23 Assam Rifles and the underground elements or whether the deceased Salmon Hungyo died in the custody of the 23 Assam Rifles or not? (iv) Whether the plaintiff is entitled for grant of any enhanced compensation as plaintiff has already been adequately compensated under public law remedy as per direction of the Hon’ble High Court on 28.08.2017? (v) Whether there is any cause of action? (vi) Whether the suit is maintainable? (vii) Whether the plaintiff is entitled for any relief claimed or not?” [7] The plaintiff examined herself as PW No.1 and one Vareiyo Hungyo as PW No.2. She marked in evidence a copy of the Writ Petition filed by her and the Enquiry Report dated 08.04.2013 of the learned District Judge, Manipur East. The defendants examined four witnesses, viz., the personnel of 23 Assam Rifles. [8] The Trial Court meticulously examined the oral and documentary evidence and found that the testimonies of the bus passengers and the bus driver, RFA No.1 of 2022 with MC(RFA) NO.5 of 2022 recorded by the learned District Judge, Manipur East, were trustworthy and compelling. Though the defence witnesses, being the personnel of the Assam Rifles, claimed that there was cross-firing and that Salmon Hungyo died in such exchange of fire, there was no corroborative evidence in proof of such an encounter. None of the personnel of 23 Assam Rifles were injured in the alleged encounter and there was no acceptable rebuttal to the testimonies of the bus passengers that Salmon Hungyo was arrested by the personnel of the Assam Rifles in their presence and taken away by them. [9] In the light of this clinching oral evidence of independent witnesses, the Trial Court decreed the suit in part, granting a sum of ‘3 Lakh to the plaintiff for the wrongful death of her son and for causing her mental pain and distress. The Trial Court made it clear that this amount was in addition to the amount already awarded by the High Court in W.P(C) No.587 of 2009. The amount was to be paid within three months, failing which interest was payable thereon @ 8% per annum. ‘30,000/- was awarded as costs for performing funeral and burial services of the plaintiff’s son. The defendants were also directed to pay costs of the suit. [10] Perusal of the Judgment dated 09.08.2016 passed in W.P(C) No.587 of 2009 manifests that a Division Bench of this Court observed therein that the Report dated 08.04.2013 could not be considered to be a judgment rendered by a Criminal Court and that its limited purpose was to satisfy the Court as to whether there was a prima facie case that the son of the petitioner therein was arrested by the Assam Rifles and was killed while in their custody and not during an encounter, as alleged by them. The Division Bench went on to hold that there was no reason not to accept the findings of the learned District Judge, Manipur East, and that there was prima facie material to draw the conclusion that the son of the petitioner therein RFA No.1 of 2022 with MC(RFA) NO.5 of 2022 met with his death at the hands of Assam Rifles and not during an encounter, as alleged by them. The Division Bench further opined that, as the compensation of ‘5 Lakh was given to the petitioner therein under a public law remedy, she would be at liberty to approach the competent Court or forum, if desirous of higher compensation for the death of her son. The Division Bench left it open to her to approach the competent authority for grant of sanction, on the basis of documents available, including the Report dated 08.04.2013 of the learned District Judge, Manipur East, to proceed against the personnel responsible for the death of her son. Significantly, the Division Bench observed that it was satisfied that the said Report clearly indicated prima facie liability of the personnel of the Assam Rifles in the custodial death of the writ petitioner’s son. [11] Mr. B.R.Sharma, learned counsel, would contend that the Trial Court erred in decreeing the suit on the strength of just two exhibits and more particularly, the Report dated 08.04.2013. However, he fairly concedes that no appeal was filed against the Judgment dated 09.08.2016 passed in W.P(C) No.587 of 2009 and that the compensation of ‘5 Lakh was paid to the plaintiff pursuant thereto. In consequence, it is not open to the appellants to contend that the Report dated 08.04.2013 submitted by the learned District Judge, Manipur East, should be eschewed from consideration. The observation of the Division Bench in the Judgment dated 09.08.2016 was only to the effect that the said Report could not be treated as the Judgment of a Criminal Court, whereby penal consequence could be visited upon the personnel of Assam Rifles, who were responsible for the death of the plaintiff’s son, and no more. In fact, the said Report was directed to be taken into consideration even launching criminal prosecution against those responsible. RFA No.1 of 2022 with MC(RFA) NO.5 of 2022 [12] Viewed thus, reliance placed by the Trial Court upon the Report dated

08.04.2013 cannot be said to be untenable or unsustainable. Having suffered the adverse Judgment dated 09.08.2016 passed by the Division Bench of this Court in W.P(C) No.587 of 2009 and also the adverse findings recorded in the Report dated

08.04.2013 of the learned District Judge, Manipur East, it is not open to the appellants to assert that there should be a trial de novo on all aspects and argue that the judgment under appeal is liable to be set aside on that ground. [13] This Court therefore finds no reason whatsoever to entertain this unworthy appeal and keep it pending for adjudication. It may be noted that the failure on the part of the appellants to pay the compensation within the time frame stipulated by the Trial Court would entail an interest burden and it is the public exchequer who would have to bear the same. [14] On the above analysis, the appeal is found to be bereft of merit as the Judgment and Decree dated 20.12.2019 passed by the learned Civil Judge (Senior Division), Ukhrul, in Original Suit No.4 of 2017, does not brook interference on any ground, either factual or legal. The first appeal is accordingly dismissed under Order XLI Rule 11 CPC. In consequence, MC(RFA) No.5 of 2022, filed for interim relief, shall also stand dismissed. In the circumstances, there shall be no order as to costs. FR/NFR Opendro CHIEF JUSTICE RFA No.1 of 2022 with MC(RFA) NO.5 of 2022