Delhi High Court
Parvesh Rani & Ors. vs Uoi & Ors. on 3 July, 2012
Author: Pradeep Nandrajog
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : May 18, 2012
Judgment Pronounced on : July 03, 2012
+ WP(C) 2732/2010
PARVESH RANI & ORS. ..... Petitioners
Represented by: Ms.Jyoti Singh, Senior Advocate
instructed by Mr.Amandeep
Joshi and Ms.Saahila Lamba,
Advocates.
versus
UOI & ORS. ....Respondents
Represented by: Ms.Anjana Gosain, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
PRADEEP NANDRAJOG, J.
1. Enrolled as a Constable with Border Security Force, deceased
Chandervir was attached with E Coy of the 18th Bn. which in the
year 2004 was deployed at Border Out Post Tarakpur, North
Tripura.
2. On September 24, 2004, Chandervir was on operational duty
at the Out Post and thus was issued a Self Loading Rifle and a
magazine containing 50 bullets. He was to patrol the Line of
Control assigned to him at the Border Out Post. Ct.Sube Singh and
Ct.B.N.Hazara were the two other colleagues of Chandervir who
were on duty at the Border Out Post. As per practice, the three
had to individually and separately patrol different segments of the
border which were assigned to them. At around 12:05 PM, when
the duty time was over and as Ct.Sube Singh and Ct.B.N.Hazara
were on the way back to the company headquarters, there was a
sound of gun fire and a civilian named Girija Kumar Das rushed to
the place from where the sound of gun fire was heard and saw
Chandervir lying injured on the ground with his Self Loading Rifle
lying at a distance of about 2 - 2½ feet. Girija Kumar rushed to the
town nearby to arrange a rescue vehicle and before he could
return SI Sahay Sanga and HC T.T.Joseph reached the spot and in
the jeep brought by Girija Kumar removed Chandervir to a
government dispensary at Kadamtala where after administering
first aid to Chandervir he was taken to the Sub-Divisional Hospital
at Dharamnagar.
3. In the meanwhile, Dr.S.K.Mishra, Chief Medical Officer
attached with the 18th Bn., accompanied by ASI/PH Surender But
reached the hospital at Dharmanagar where the doctor treating
Chandervir informed them that Chandervir‟s condition was critical
and it was immediately necessary to evacuate him to a full-fledged
hospital where necessary medical facilities were available
inasmuch as the Sub-Divisional Hospital was not equipped to deal
with such emergencies and thus arrangements were made by
requisitioning a helicopter to shift Chandervir to Silchar Medical
College and for which Chandervir was removed from the hospital in
an ambulance to the nearby helipad. Unfortunately, due to
inclement weather the rescue helicopter could not land and hence
returned to its base. Chandervir was taken back to the Sub-
Divisional Hospital where he expired at around 08:40 PM the same
day i.e. after about 8 hours and 35 minutes of the incident in which
he got injured.
4. Death being unnatural FIR No.19/2004 PS Dharamnagar was
lodged pertaining to the incident and it would be our duty to
highlight that the FIR was registered pursuant to a written letter
written by Dy.Comdt.Nitin Arora, relevant portion whereof reads as
under:-
"It is inform that on 24 Sept. 2004 about 1205 pm,
when one OP party of BOP Tarakpur was returning
from BOP from duty one firing caused accidental
nature took place. The OP party Constable of Ct.
No.89141292 of Sube Singh
(2) No.92187047 Ct. BN Hazra
(3) No.90173897 Ct. Chandbir Singh
While the above party was 500 short of
Tarakpur, Ct. Chandbir Singh who was walking in the
car & the party was climbing towards the port,
slipped on the roadside while he was falling down,
due to disbalance Jawan could not control his body &
weapon and as a result one accidental shot from his
personal weapon SLR body No.CR-3909 Butt No.423
took place. The bullet pierced his stomach from left
side and exited from left side of the back of the
body......" (Emphasis Supplied)
5. The next day i.e. on September 25, 2004 the Commandant,
18th Bn. issued a signal addressed to the Headquarters, BSF Control
Room, informing about the death of the deceased. The relevant
portion whereof reads as under:-
"OBITUARY (.) DG BSF AND ALL RANKS OF BSF
CONDOLE WITH DEEPEST SORROW ON THE SAID
UNTIMELY DEMISE OF NO.90173897 CONST
CHANDVIR SINGH OF THIS UNIT ON 24 SEPT‟ 04 AT
ABOUT 2040 HRS DUE TO ACCIDENTAL FIRE BULLET
INJURY AND SUCCUMBED IN SUBDIVISIONAL
HOSPITAL DHARMANAGAR....." (Emphasis Supplied)
6. On the same day i.e. September 25, 2004 Dr.Manindra
Kumar Malakar conducted the post-mortem of the deceased and
prepared the post-mortem report. The relevant portion whereof
reads as under:-
"Wounds position, size, character
1. Multiple abrasions of varying sizes and
irregular shapes over flexor aspect of distal half of
the left forearm.
2. Other wounds (ie, Entry wound and exit wound
of bullet) described later.
.....
EXIT WOUND: - 1 ½" diameter with ragged exerted
margin over the Left Lower chest wall along posterior
axillary line causing fracture of 10th and 11th ribs.
Shape of the wound - Oval.
....
ENTRY WOUND:- In the epigastric region of the
abdomen, ½" (half) diameter, circular in shape with
contused, ragged inverted margin and there is
surrounding blackening, tattooing 1" width around
the said wound which is caused by a bullet. Particles
of unburnt gun powder drivened into the Entry
wound.
.....
Distance from where it was fired: - „POINT BLANK‟
....
COURSE:- Bullet pierced with Laceration - Skin,
anterior abdominal wall in the epigastric region,
peritoneum, stomach, splenic flexure of the colon,
spleen, intercoastal muscles and Left Lower chest
wall along posterior axillary line. In this process
spleen shattered and clotted blood present, 10th and
11th ribs along exit wound fractured and there is
massive haemoperitoneum.
....
In our opinion, the cause of death is due to Syncope
caused by hemorrhagic shock following Firearm
injury which is Antemortem in nature.
Circumstantial evidence will ascertain whether
it was suicidal, accidental or homicidal in nature."
7. The place where Chandervir sustained the injury was
searched and an empty cartridge was recovered and hence seized.
The Self Loading Rifles issued to the deceased, Ct.B.N.Hazara and
Ct.Sube Singh were also seized. The personal belongings of the
deceased were searched and anti-depressant medicines, namely:
Riazepam, Risperidone and Risprocone were found in his kit box
and were seized.
8. On September 27, 2004 Comdt.A.K.Singh, prepared a report
in respect of the incident, relevant portion whereof reads as
under:-
"6. FULL DETAILS OF THE CASE:
On 24/09/2004 at about 1210 hrs, when OP
party of Ex-BOP Tarakpur, „E‟ Coy this unit, consisting
of No.89142142 CT Sube Singh (Comdr),
No.90173397 CT Chandvir Singh and No.97187057
CT B N Hazra, returning back from OP duty after its
completion, CT Chandvir Singh of the party received
a gunshot injury from his personal weapon i.e. SLR in
a accidental fire incident......
COMMENTS OF THE COMMANDANT:-
I, personally visited place of occurrence and
enquired from CT Chandvir Singh when he was
conscious and also enquired the incident in detail. It
appears to be a case of accidental fire, in which
No.9173897 CT Chandvir Singh sustained fatal injury
due to firing from his service rifle i.e. SLR Butt
No.423 Body No.CR-3909. All out efforts were made
to save the deceased, but could not succeed."
(Emphasis Supplied)
9. On September 27, 2004 DIG, Station Headquarters BSF,
Paniasagar convened a Staff Court of Inquiry to enquire into the
circumstances under which the deceased had sustained the bullet
injury on September 24, 2004. During the Court of Inquiry the
department examined 21 witnesses. Highlighting that at the Court
of Inquiry the petitioners i.e. the wife and the children were not
associated, we proceed to briefly note the depositions of such
witnesses whose testimony is relevant to the controversy involved
in the present petition, which we immediately highlight is the
denial of such benefits to the petitioners which would be available
to them if the death of Chandervir was treated as accidental while
on duty. The respondents had treated it to be a case of suicide
and hence have denied the insurance benefit under Seema Parhari
Beema Yojana in sum of `9 lakhs, Extraordinary Family Pension
and an ex-gratia compensation as per policy in sum of `5 lakhs.
We highlight that family pension is being disbursed.
10. SI Sahay Sanga, Post Commander, witness No.1, deposed
regarding the facts relating to the deceased being removed from
the spot where he was injured first to the dispensary at Kadamtala
and thereafter to the Sub-Divisional Hospital at Dharamnagar.
Certain portions of the deposition need to be extracted by us.
They are as under:-
"Q1. How was the general behavior of Ct Chandvir
Singh?
A1. Normal.
Q2. Did Const. Chandvir Singh report any of his
problem or grievances to you during his stay in the
post?
A2. No.
Q3. Was he taking his meals regularly in the post?
If so, did he take/or carry his breakfast on 24 Sept 04
before leaving for OP duty?
A3. Ct Chandvir Singh was taking his meals
regularly. Even on 24 Sept 04 before leaving for OP
duty in the morning he had his breakfast in the
langer (Mess).
....
Q6. Did Ct Chandvir Singh remain sick?
A6. He at time reported of low blood pressure and
used to visit local doctor at Rajnagar, Tarakpur,
namely Dr.Chakraborty.
...
Q8. Did unit CMO visit the BOP for medical
checkup/treatment of tps? If so, when did he visit
last?
A8. Dr. S.K. Mishra, CMO visited the post for
medical treatment he last visited 04 Apr 04."
(Emphasis Supplied)
11. HC T.T.Joseph, witness No.2 also deposed facts relating to
the deceased being removed first to the dispensary at Kadamtala
and thereafter to the Sub-Divisional Hospital at Dharmanagar.
Relevant portions of his testimony which need to be extracted and
noted read as under:-
".....During 2003 while the unit was deployed in
Soura, Srinagar (J&K), Const Chandvir Singh
appeared to be suffering from some neurological
problem. On many occasions he would suddenly get
up from sleep in the midst of night and would start
saying that he was to go for duty even though he
actually returned from duty some time bell before
going to sleep. For this ailment he went on leave
many times while in Srinagar and as per him took
treatment from same civil doctor in his home town.
For last one year there was marked improvement in
his behavior and recently he was quiet normal...On
24 Sept 04 I was performing the duties of PI NCO. On
23 Sept 04 I was on Ambush at Ambush point No.II
(also OP No.II) alongwith 4 other pers wef 231730 hrs
to 240600 hrs. It was the OP party of Ct Sube Singh
comprising of Ct Chandvir Singh and Ct B N Hazra
relieved our Ambush Party at 0600 hrs on 24 Sept
04. At the time of charge handing/taking our at OP
No.II, Ct Chandvir Singh was in absolute normal
condition. There was no sign of any depression etc
seen/noted in him.....I alongwith Post Cdr, Ct Sube
Singh and Ct Radha Krishan accompanied injured
Const Chandvir Singh to Govt. Dispensary
Kadamtala.....Since Ct Sube Singh, who is also
nursing assistant, had told me not to let him close his
eyes, I kept on talking to him and asked as to what
happened. At this Ct Chandvir Singh said "Me gir
gaya tha".....
QUESTIONS BY THE COURT
Q1. Was Ct Chandvir Singh taking his food/meals
regularly?
A1. Yes.
Q2. Did he take his breakfast in the morning before
leaving the post for OP duty on 24 Sept 04?
A2. Yes he took his breakfast on 24 Sept 04. I
hereby produce the diet attendance register before
the Court. The Court having verified the entries
returned the said document to the witness."
(Emphasis Supplied)
12. Girija Kumar Das, witness No.3, deposed that on September
24, 2004 at about 12.05 P.M. he was present in his tea estate when
he heard the sound of firing. When he went in the direction from
where sound of firing had come he saw the deceased lying injured
on the ground. He arranged a vehicle to remove the deceased to a
hospital. It is relevant to note following portion of the deposition of
the witness:-
".....On enquiring from the 02 BSF pers who were
present at the PO, they told that the injured person
got slipped and a shot was fired from his personal
wpn (ie by Ct Chandvir Singh from his personal
wpn)...."
13. HC Lal Singh, witness No.4, deposed that the SLR found lying
on the ground at the place of occurrence at a distance of 2-2½ feet
from the deceased had been issued to the deceased. It is relevant
to note following portion of the deposition of the witness:-
"....QUESTION BY THE COURT
....
Q6. Did you notice any unusual behavior in Ct
Chandvir Singh during your stay in the BOP or just
before 24 Sept 04?
A6. He was absolutely normal. He used to have
regular food and sound sleep as his bed was next to
mine in jawan barrack." (Emphasis Supplied)
14. Ct.Anchal Kumar, witness No.6, deposed that he and the
deceased used to live in the same barrack and that the bed of the
deceased was adjacent to his bed. It is relevant to note following
portion of the deposition of the witness:-
"....Ct Chandvir Singh was living with me in same
barrack and my bed was adjacent to his bed. Also HC
Lal Singh was having his bed next to Ct Chandvir
Singh bed on the other side. During my stay in BOP
Tarakpur or even other wise in the Coy I never found
Ct Chandvir Singh behaving in an abnormal fashion.
As far as remember he even did not take medicines
regularly as he was not sick or suffering from any
ailment. He was never seen in depression or anxiety.
He did take regular meals and used to have sound
sleep. Even on couple of days prior to 24 Sept 04 he
was normal and had sound sleep and proper food."
(Emphasis Supplied)
15. Asstt.Comdt.Mukesh Kumar, witness No.8, deposed having
conducted a general inquiry into the incident and relevant would it
be to note his answers to questions Nos.2, 3 and 4, which read as
under:-
"....
Q2. Did Const Chandvir Singh reported of any of his
grievances to you?
A2. No Const. Chandvir Singh never reported of
any grievances whatsoever to me during my tenure
in E Coy or any entry exists in the Coy grievances
register. The court verifies the entries in said register
and return the same to the Witness.
Q3. Was he reported of suffering from any
ailment/disease?
A3. No.
Q4. When did the unit medical officer last visited
your E Coy before the firing incident took place on 24
Sept 2004? Did he also visit BOP Tarakpur?
A4. Dr S K Mishra, CMO 18 Bn BSF visited E Coy on
31 Aug and 01 Sept 04. He also visited BOP
Tarakpur."
16. Ct.B.N.Hazara, witness No.10, deposed the circumstance
under which they found the deceased lying injured and relevant
portion of his testimony reads as follows:-
"....On 24 Sept 04 OP Party of OP No.II comprising of
Ct. Sube Singh, Ct Chandvir Singh and myself
relieved OP No.II headed by HC T T Joseph at about
0600 hrs. At about 241150 hrs another OP Party
headed by Ct Jagannath and 02 others relieved us at
OP No.II. Our party left for BOP Tarakpur on Post. It
takes around 20-25 min along the IBB road, to reach
BOP Tarakpur while returning to BOP after the OP
duty I was leading the party whereas Ct Sube Singh
(OP Cdr) was in the middle and Ct Chandvir Singh
was at the end. There was a gap of 20-25 feet
between each other....At about 1210 hrs while the OP
party reached near a hut which is by the side of IBB
road approx 400 yards short of BOP Tarakpur, I heard
sound of a gunshot behind me from a very near
distance. Since there was sharp bend/curve at the
place, I could see only Ct Sube Singh, Ct Chandvir
Singh saying "Hazara Jaldi awo, Chandvir girgaya"
Immediately both of us ran towards Ct Chandvir
Singh was lying on the road on his back and face
upwards....There was a bullet injury on his stomach
with some blood marks...."
17. Ct.Sube Singh, witness No.11, deposed in terms similar as
Ct.B.N.Hazra.
18. Dy.Comdt.Nitin Arora, witness No.12, deposed having
prepared the report dated September 27, 2004, relevant extract
whereof has been extracted by us in para 8 above and relevant
portion of his deposition as a witness which needs to be extracted
and noted, reads as follows:-
"QUESTIONS BY THE COURT
Q1. Did Ct Chandvir Singh ever report for any of his
personal grievances to your HQ? If so, what was the
grievances and how was it redressed?
A1. As per available records, Ct Chandvir Singh
never report any grievances to Bn HQ."
19. Dr.S.K.Mishra, Chief Medical Officer of the 18th Bn., witness
No.13, deposed facts relating to the medical condition of the
deceased before and after the incident in question and relevant
portion of the testimony of this witness reads as foll0ws:-
"...I alongwith ASI/Phrm Surendra Bhat of 18 Bn BSF
accompanied Shri A K Singh, Comdt 18 Bn BSF to
Sub-Div Hospital at Dharmanagar...On arriving of the
said hospital at about 1345 hrs, I went to the
emergency were Ct Chandvir Singh was
admitted....The individual was wincing with pain and
producing sound "Aahw Aahw" or words to that
effect. His eyes were closed and clinically he
appeared to have toxic looks and pale. I asked his
name and he uttered his name. Then I asked him to
open his eyes and look at me. He looked at me and I
also asked him to put out his tongue in order to
ascertain the degree of coma. The patient put out his
tongue abruptly. He was de-hydrated. I further asked
him as to how he got the bullet injury and his reply
was "Muze pata nahi" or words to that effect. In
order to probe the cause of bullet injury, I asked the
same question repeatedly but his answers always
remained the same ie "Mujhe pata nahi"....I then met
the treating surgeon Dr Ajay Saha and the Supdt of
the Sub-Div Hospital, Dharmanagar in order to
ascertain the clinical status of the patient and further
management. It was made clear to me that his
condition was very clinical and that he should be
immediately evacuated since the hospital did not
have adequate infra structure/Surgical
instruments/anaesthetizes to deal with such cases.
On informing the condition of the patient, Sh A K
Singh, Comdt requisitioned hepter for speedy
evacuation to military Hospital Mashimpur (Silchar).
Since by there the weather was again getting packed
up with thick clouds I tried to explore the possibility
of evacuating the patient to RMG Hospital,
Kalashahar which is at a distance of 1 ½ hour drive,
as the patient was to be suggested to immediate
surgical intervention. However the surgeon Dr
Lashkar of RGM Hosp KLS expressed his inability
telephonically to operate upon the patient, as it was
a bullet injury involving multiple organs and also his
assistant surgeon was on leave as stated by him. He
also suggested the patient to be evacuated to Silchar
Medical College immediately. The hepter was to
arrive Helipad Baghbasa, Dharmanagar at 1550 hrs,
as such the patient was discharged from Sub-Div
Hospital Dharmanagar and the patient was shifted to
Helipad Ground by ambulance at 1535 hrs. En-route
the patient was stable, responding to verbal
Command and patient was contently getting up to
urinate as he had urge to urinate due to catheter
being intact in the bladder. I asked him to lie-down
and made him to understand that he could intimate
while lying down in the stretch. Meanwhile he was
being closely monitored by me and given necessary
life saving drugs. At about 1600 hrs, the hepter
arrived but after hovering around Dharmanagar it
went back without landing at Bag Basa helipad. At
this Comdt 18 Bn BSF impatiently tried to contact Air
force authorities Khumbigram, but the Air force
another ties told the hepter would be able to make
the next sortie only on the next day morning (ie
25/04/04). At this Juncture Comdt 18 Bn BSF directed
to proceed to Silchar alongwith the patient, but when
I went to the ambulance, if found the condition of
patient suddenly getting deteriorating and he was
then gasping for breath. I immediately administered
necessary emergency medicines and rushed to
Dharmanagar Sub-Div Hospital. At about 1730 hrs he
was re-admitted. I requested the surgeon to wheeling
the patient to OT, as we had ample chances of
loosing him, as he abruptly lost his consciousness.
The surgeon was very reluctant but finally agreed to
operate upon the case in consultation with the
anesthetist who in turn refused due to limited stock
of N2O and O2 liquids....Arrangements were also
made to get the N2O Cylinders from RGM hospital
KLS....During the personal at about 2040 hrs before
the N2O and O2 cylinders to be arranged, the patient
Ct Chandvir Singh breath his last for want of surgical
intervention.
QUESTION BY THE COURT
...
Q3. Did Const Chandvir Singh ever reported for
above ailment before you or was he ever treated for
depression in unit MI Room of 18 Bn BSF?
A3. Ct Chandvir Singh never reported with
symptoms of depression neither he was treated for
same at unit hospital, as per the records.
Q4. What was the medical category of Chandvir
Singh as per records of 18 Bn BSF?
A4. He was medical Cat SHAPE-1."
20. ASI/PH Surender But, witness No.14, deposed in terms
identical as Dr.S.K. Mishra; pertinently, Surender But also deposed
that the deceased could not be operated upon at the hospital at
Dharmanagar due to non-availability of N2O and O2 gases at the
hospital.
21. Dr.Ajay Saha, witness No.15, deposed that he attended to
the deceased at the hospital at Dharmanagar and the facts
pertaining to the medical condition of the deceased while at the
hospital at Dharmanagar. Relevant portion of his testimony reads
as follows:-
"I, Dr Ajay Saha, am serving in Dharmanagar Sub-
Divisional Hospital on deputation for last one and half
months. I am a general surgeon. Once patient
namely Chandvir Singh of BSF (18 Bn BSF) age
approx 34 years, Paniasagar was admitted at
aforesaid hospital in emergency ward at about 1 PM
on 24 Sept 04. I attend the patient on call. He was
having history of fall and accidental fire arm injury.
His condition was very very critical....At 6 PM on
24/09/2004, the patient was brought back to
Dharmanagar Sub-Divisional Hospital with the history
that the hepter did not land at Dharmanagar, so
seeing no alternative that they had brought the
patient back. The condition of the patient was very
grave. He was in a gasping state. So resuscitation
treatment was started. As there was no alternative
so I suggested Dr Mishra to put the patient for
emergency operation with risk. Dr.Mishra consented
for the operation immediately necessary
arrangement for the operation started this hospital
was not having sufficient O2 Cylinder and N2O
cylinders at that time to undertake the prolonged
operation as stated by DrSubash Ranjan Das,
anesthesiologist so requisition for O2 N2O and one
nitrous oxide cylinder was made to RGM Hospital by
us. BSF authorities by then were making efforts to
get the aforesaid cylinders from RGM Hospital KLS.
We were ready to start the operation with available
O2 and nitrous oxide but unfortunately the patient
expired at about 08.40 PM...."
22. Dr.Manindra Kumar Malakar, witness No.15, deposed having
conducted the post-mortem of the deceased and explained what
he meant by the expression „point blank‟ with reference to the
entry point of the bullet in the body of the deceased as follows: -
„"POINT BLANK" means that the firing occurred from a distance
which is not more than 6" from the target but it can be fired by
keeping contact with the Target/Body.‟
23. Dr.Subrata Das, witness No.18, deposed that on September
24, 2004 he attended the deceased at the Primary Health Centre,
Kadamtala, Tripura and relevant would it be to note that he
deposed:-
"....On 24 Sept 04 at about 1230 hrs one BSF
personal namely Const Chandvir Singh was brought
to primary Health Centre Kadamtala by some of his
colleagues as a case of gunshot injury and was
described to be of accidental nature...."
24. R.P.Kukreti, witness No.20, deposed facts pertaining to
attempts made to remove the deceased to Silchar, as also
volunteered personal information statedly received by him from
petitioner No.1 i.e. the wife of the deceased, as follows:-
"....In the mean time, while unit was trying to
establish communication with NOK (wife) Smt
Parvesh Rani, at the known address/Telephone
Number of the injured Const Chandvir Singh. Co-
incidentally Mrs Parvesh Rani (NOK) W/o Ct Chandvir
Singh contacted me from her mobile phone
No.01251321 and during the conversation, she
informed me that Ct Chandvir Singh was suffering
from the problem of sleeplessness/insomnia and had
earlier undergone medical treatment for 03 months
in Rohtak Medical College during 2003. Now he was
again complaining of the same problem to her since
past 2-3 days. So she had advised him (her) husband
on telephone 2 to 3 days back to take required
Medicare...."
25. SI Paramjit Ghose, witness No.21 who had investigated the
incident pertaining to the FIR No.19/2004 PS Dharmanagar
deposed that investigation conducted by him resulted in his
submitting a report that the deceased had committed suicide by
firing at himself from the Self Loading Rifle issued to him, and in
respect of which opinion formed by him, relevant portion of his
testimony reads as follows:-
"QUESTION BY THE COURT
....
Q2. During investigation how could you reach to a
conclusion that it was a case of suicide and not a
"Murder" or "Accidental fire"?
A2. (a) On the day of incident ie 24 Sept 04 the
weather was clear and the PO place is pucca
metalled road and was not slippery. As such chances
of Ct Chandvir Singh falling down can be ruled out.
(b) The safety mechanism of SLR 7.62mm rifle is
such that until and unless the safety catch is in „R‟
position and trigger is pressed, the rifle will not fire.
(d) As per the statement of some of the witnesses,
the magazine was found lying near by the rifle of Ct
Chandvir Singh and one live round (Amn) was also
found inside the chamber when the said rifle was
cleared. Had it been on accidental rifle, the chances
of another round getting loaded in the chamber of
the said rifle after the first shot, is bleak. Also
witnesses near by po at the time of incident saw Ct
Chandvir Singh falling on the ground after they had
heard sound of gunshot.
(e) According to postmortem examination report
there was slight elevation of the exit wound in
comparison to the entry wound. Had it been an
accidental fire then the exit wound ought to have
been on higher elevation then the entry wound and
in upward direction.
(f) As per the statements of some of the witnesses
at the time of incident weather was clear, road was
dry and Ct Chandvir Singh was wearing Jungle boot
(Shoes), as such chances of slippery/falling down so
as to have impact on the weapon leading to
accidental fire can be ruled out.
(g) As per the statements of some of the
witnesses, at the time of incident Ct Chandvir Singh
was carrying nothing other than his rifle and amn, as
such chances of Ct Chandvir Singh getting
disbalanced to fall down is rare. Also the chances of
the rifle hitting the surface with sufficient impact to
cause accidental fire from weapon like SLR in the
instant case can be rule out beyond doubt.
(h) Considering the length of SLR magazine the
location of entry wound on the body of Ct Chandvir
Singh, chances of accidental fire can be ruled out, as
because had it been an accidental fire the wounds
would have been anywhere on the upper side of the
abdomen, whereas the wound was in the lower
abdomen and from the point blank range, as per post
mortem report.
(i) As per the statement of witnesses who were
nearby the PO at the time of incident, prior to the
sound of gunshot, none of them heard any sound of
any object what-so-ever falling on the road.
(j) The general tendency of a person at the time
of falling is to place his palms on the object (in this
case „Road‟) to save other parts of his body. But in
the instant case it was found that Ct Chandvir Singh
did not sustain any injury/abrasions on his palms but
got some abrasions on the left fore arm. On the other
hand, had he been holding his rifle with his hand, the
question of hitting the said bullet on the lower part of
his abdomen due to accidental fire does not arise.
From the aforesaid deductions the possibility of
accidental fire in the instant case is ruled out beyond
doubt.
The following points/information are suggestive
of that the instant case is not a Murder Case:-
(a) There was no enmity in between Const
Chandvir Singh and Ct B N Hazra or in between Ct
Chandvir Singh and Ct Sube Singh.
(b) Both Ct Sube Singh and Ct B N Hazra made all
sincere efforts to evacuate injured Ct Chandvir Singh
to hospital for his treatment.
(c) The Gunshot wound was from "Point blank
Range" whereas all of them were walking
maintaining sufficient distance from each other
(approx 20 feet).
(d) There was not hot altercation among them just
before the firing.
(e) From the time of incident and up to the death,
Ct Chandvir Singh spoke to some witness but never
he made any allegations against anybody in general
and Ct Sube Singh and Ct B N Hazra in particular.
(f) Ct Chandvir Singh was suffering from some
mental depression for quiet sometime.
(g) As per FSL (Ballistic Expert) report, the firing
was done from weapon i.e. SLR 7.62 mm Butt
No.423, body No.CR-3909 which was personal
weapon of Ct Chandvir Singh and was in his
possession at the time of incident.
Also as the sound of gunshot was heard from
nearby distance and also as per the postmortem
report wherein fire arm used was from a "Point Blank
Range", as such possibility of firing by a shipper
(ANE) across the border at Ct Chandvir Singh, is ruled
out. On the other hand, the EFC was also found from
nearby the PO."
26. Based on the evidence led at the Court of Inquiry, report
submitted was that Chandervir had committed suicide. Relevant
portion of the findings reads as under:-
"4. From the statement of witnesses, postmortem
examination report, forensic examination report and
from circumstantial evidence following was
revealed:-
(a) On the day of incident ie 24 Sept 04 the weather
was clear and the PO place is pucca metalled road
and was not slippery. As such chances of Ct Chandvir
Singh falling down can be ruled out.
(b) The safety mechanism of SLR 7.62mm rifle is
such that until and unless the safety catch is in „R‟
position and trigger is pressed, the rifle will not fire.
(c) As per the statement of some of the witnesses,
the magazine was found lying near by the rifle of Ct
Chandvir Singh and one live round (Amn) was also
found inside the chamber when the said rifle was
cleared. Had it been on accidental rifle, the chances
of another round getting loaded in the chamber of
the said rifle after the first shot, is bleak.
(d) Witnesses nearby PO at the time of incident
saw Ct Chandvir Singh falling on the ground after
they had heard sound of gunshot.
(e) According to postmortem examination report
there was slight elevation of the exit wound in
comparison to the entry wound. Had it been an
accidental fire then the exit wound ought to have
been on higher elevation then the entry wound and
in upward direction.
(f) As per the witnesses, at the time of incident
weather was clear, road was dry and Ct Chandvir
Singh was wearing Jungle shoes, as such chances of
slippery/falling down so as to have impact on the
weapon leading to accidental fire can be ruled out.
(g) At the time of incident Ct Chandvir Singh was
carrying nothing other than his rifle and amn, as such
chances of Ct Chandvir Singh getting dis-balanced to
fall down is rare. Also the chances of the rifle hitting
the surface with sufficient impact to cause accidental
fire from weapon like SLR in the instant case can be
rule out beyond doubt.
(h) Considering the length of SLR magazine the
location of entry wound on the body of Ct Chandvir
Singh, chances of accidental fire can be ruled out, as
because had it been an accidental fire the wounds
would have been anywhere on the upper side of the
abdomen, whereas the wound was in the lower
abdomen and from the point blank range, as per post
mortem report.
(k) As per the statement of witnesses who were
nearby the PO at the time of incident, prior to the
sound of gunshot, none of them heard any sound of
any object whatsoever falling on the road.
(l) The general tendency of a person at the time
of falling is to place his palms on the object (in this
case „Road‟) to save other parts of his body. But in
the instant case it was found that Ct Chandvir Singh
did not sustain any injury/abrasions on his palms but
got some abrasions on the left fore arm. On the other
hand, had he been holding his rifle with his hand, the
question of hitting the said bullet on the lower part of
his abdomen due to accidental fire does not arise.
From the aforesaid deductions the possibility of
accidental fire in the instant case is ruled out beyond
doubt.
5. The following points/information are suggestive
of that the instant case is not a Murder Case or firing
by a snipper (anti-national element) from near the
IBB road:-
(a) There was no enmity in between Const
Chandvir Singh and Ct B N Hazra or in between Ct
Chandvir Singh and Ct Sube Singh.
(b) Both Ct Sube Singh and Ct B N Hazra made all
sincere efforts to evacuate injured Ct Chandvir Singh
to hospital for his treatment.
(c) The gunshot wound was from "Point blank
Range" whereas all of them were walking
maintaining sufficient distance from each other
(approx 20 feet).
(d) There was no hot altercation among them just
before the firing.
(e) From the time of incident and up to the death,
Ct Chandvir Singh spoke to some witness but never
he made any allegations against anybody in general
and Ct Sube Singh and Ct B N Hazra in particular.
(f) Ct Chandvir Singh was suffering from some
mental depression for quiet sometime.
(g) As per FSL (Ballistic Expert) report, the firing
was done from weapon i.e. SLR 7.62 mm Butt
No.423, body No.CR-3909 which was personal
weapon of Ct Chandvir Singh and was in his
possession at the time of incident.
(i) Witnesses nearby the PO heard the sound of
gunshot near the PO at the time of incident, as such
a snipper (ANE) firing from a distance at Ct Chandvir
Singh can be ruled out. Besides this even as per PM
examination report the firing was done from "Point
Blank Range". On the other hand, the EFC was also
recovered from nearby the PO."
27. Relevant portions of the opinion on which the findings
aforesaid were returned reads as follows:-
"....After corroboration of all the circumstantial
evidences as well as the post mortem report, it
appears that Ct Chandvir Singh committed suicide
with his personal weapon from point blank range
while he was in a depressed state of mind. (witness
No.13,14,15,16, appx „P‟ and inference drawn by the
court).
....
Doctors of Sub-divisional Hospital attending the
injured Ct Chandvir Singh did not handle the case
effectively as they neither had adequate infra
structure/medical Eqpts in the hospital nor the
Anesthesiologist had ensured adequate stock of
Nitrous oxide and oxygen cylinders to undertake the
emergency case like that of Ct Chandvir Singh.
(witness No.13,14,15 and inference drawn by the
Court)
Dr K Sen Laskar, Surgeon of RGM Hospital
Kailashahar showed inability to accept the patient (Ct
Chandvir Singh) on flimsy ground with the plea that
his assistant surgeon was away on leave. (witness
No.13 and 15)
There was sufficient ie more than 07 hours at
the disposal of the doctors of sub-divisional Hospital
Dharmanagar to operate upon the injured Ct
Chandvir Singh but due casual/reluctant attitude on
part of doctors, the patient was deprived of the
required treatment and he kept on battling for his life
and finally breath his last at 2040 hrs (8.40 PM) for
want of required surgical intervention. (witness
No.13 and inference drawn by the court).
.....
OPINION OF THE COURT
The Court after having examined all the
relevant witnesses and evidences tendered on the
record, is of the opinion that No.90178397 Ct
Chandvir Singh of E Coy 18 Bn BSF deployed at BOP
Tarakpur, North Tripura, while returning from OP
duty at 1205 hrs on 24 Sept 04 committed suicide by
firing from his personal weapon SLR 7.62 mm IAI,
butt No.423 regd No. CR-3909, resultantly he
succumbed to his injury on the same day at 2040 hrs
(8:40 PM) at Sub-divisional Hospital Dharmanagar,
North Tripura, for which nobody is to be blamed.
The Court further recommends the following:-
....
(i) That a dedicated helicopter of BSF may be
stationed at appropriate place so that services of the
same is made available on call, to evacuate
dangerously/seriously ill case to bigger hospital
without loosing time.
(j) That Health department of Tripura Govt may
be approached to equip the district/Sub-div Hospitals
with adequate infrastructure and surgical
equipments in order to enable the doctors to
effectively attend and treat the Emergency Cases
giving specific reference of the instant case."
(Emphasis Supplied)
28. Accepting the findings returned at the Court of Inquiry,
treating Chandervir having committed suicide, thereby denying the
benefits claimed by the petitioners as noted by us in para 9 above,
the respondents released only the family pension and such other
sums as were payable treating the death as a result of suicide.
The claims were rejected as per letter dated November 07, 2005
by DG BSF.
29. In the writ petition, the petitioners, who are the wife, the
minor son and the minor daughter of the deceased claim that the
findings returned at the Court of Inquiry that Chandervir committed
suicide be quashed and they be paid `9 lakhs under Seema Prahari
Beema Yojana and `5 lakhs ex-gratia payable by treating the death
as accidental while on duty as also extraordinary family pension.
30. It is apparent that our duty is to decide the core issue i.e.
whether the departmental action in treating the death of
Chandervir as a case of suicide is correct; and if not why.
31. We proceed by highlighting once again that the petitioners
were not associated at the Court of Inquiry and we cannot but
resist highlighting at the outset, a fact which strikingly glares in the
eyes that the findings of the Court of Inquiry is a mirror reflection
of the report submitted by SI Paramjit Ghose and for which we
would highlight to the reader of our opinion to revisit paragraphs
25 and 26 above, where we have extracted the testimony of SI
Paramjit Ghose and the findings at the Court of Inquiry and to bring
out the point of cut-copy-paste, we juxtapose the two.
(a) On the day of incident (a) On the day of incident
ie 24 Sept 04 the weather ie 24 Sept 04 the weather
was clear and the PO was clear and the PO
place is pucca metalled place is pucca metalled
road and was not slippery. road and was not slippery.
As such chances of Ct As such chances of Ct
Chandvir Singh falling Chandvir Singh falling
down can be ruled out. down can be ruled out.
(b) The safety (b) The safety
mechanism of SLR mechanism of SLR
7.62mm rifle is such that 7.62mm rifle is such that
until and unless the safety until and unless the safety
catch is in „R‟ position and catch is in „R‟ position and
trigger is pressed, the rifle trigger is pressed, the rifle
will not fire. will not fire.
(d) As per the (c) As per the
statement of some of the statement of some of the
witnesses, the magazine witnesses, the magazine
was found lying near by was found lying near by
the rifle of Ct Chandvir the rifle of Ct Chandvir
Singh and one live round Singh and one live round
(Amn) was also found (Amn) was also found
inside the chamber when inside the chamber when
the said rifle was cleared. the said rifle was cleared.
Had it been on accidental Had it been on accidental
rifle, the chances of rifle, the chances of
another round getting another round getting
loaded in the chamber of loaded in the chamber of
the said rifle after the first the said rifle after the first
shot, is bleak. shot, is bleak.
Also witnesses near by po (d) Witnesses nearby
at the time of incident saw PO at the time of incident
Ct Chandvir Singh falling saw Ct Chandvir Singh
on the ground after they falling on the ground after
had heard sound of they had heard sound of
gunshot. gunshot.
(e) According to (e) According to
postmortem examination postmortem examination
report there was slight report there was slight
elevation of the exit elevation of the exit
wound in comparison to wound in comparison to
the entry wound. Had it the entry wound. Had it
been an accidental fire been an accidental fire
then the exit wound ought then the exit wound ought
to have been on higher to have been on higher
elevation then the entry elevation then the entry
wound and in upward wound and in upward
direction. direction.
(f) As per the (f) As per the
statements of some of the witnesses, at the time of
witnesses at the time of incident weather was
incident weather was clear, road was dry and Ct
clear, road was dry and Ct Chandvir Singh was
Chandvir Singh was wearing Jungle shoes, as
wearing Jungle boot such chances of
(Shoes), as such chances slippery/falling down so as
of slippery/falling down so to have impact on the
as to have impact on the weapon leading to
weapon leading to accidental fire can be
accidental fire can be ruled out.
ruled out.
(g) As per the (g) At the time of
statements of some of the incident Ct Chandvir Singh
witnesses, at the time of was carrying nothing
incident Ct Chandvir Singh other than his rifle and
was carrying nothing other amn, as such chances of
than his rifle and amn, as Ct Chandvir Singh getting
such chances of Ct dis-balanced to fall down
Chandvir Singh getting is rare. Also the chances
disbalanced to fall down is of the rifle hitting the
rare. Also the chances of surface with sufficient
the rifle hitting the surface impact to cause accidental
with sufficient impact to fire from weapon like SLR
cause accidental fire from in the instant case can be
weapon like SLR in the rule out beyond doubt.
instant case can be rule
out beyond doubt.
(h) Considering the (h) Considering the
length of SLR magazine length of SLR magazine
the location of entry the location of entry
wound on the body of Ct wound on the body of Ct
Chandvir Singh, chances Chandvir Singh, chances
of accidental fire can be of accidental fire can be
ruled out, as because had ruled out, as because had
it been an accidental fire it been an accidental fire
the wounds would have the wounds would have
been anywhere on the been anywhere on the
upper side of the upper side of the
abdomen, whereas the abdomen, whereas the
wound was in the lower wound was in the lower
abdomen and from the abdomen and from the
point blank range, as per point blank range, as per
post mortem report. post mortem report.
(i) As per the (k) As per the
statement of witnesses statement of witnesses
who were nearby the PO who were nearby the PO
at the time of incident, at the time of incident,
prior to the sound of prior to the sound of
gunshot, none of them gunshot, none of them
heard any sound of any heard any sound of any
object what-so-ever falling object whatsoever falling
on the road. on the road.
(j) The general (l) The general
tendency of a person at tendency of a person at
the time of falling is to the time of falling is to
place his palms on the place his palms on the
object (in this case „Road‟) object (in this case „Road‟)
to save other parts of his to save other parts of his
body. But in the instant body. But in the instant
case it was found that Ct case it was found that Ct
Chandvir Singh did not Chandvir Singh did not
sustain any sustain any
injury/abrasions on his injury/abrasions on his
palms but got some palms but got some
abrasions on the left fore abrasions on the left fore
arm. On the other hand, arm. On the other hand,
had he been holding his had he been holding his
rifle with his hand, the rifle with his hand, the
question of hitting the said question of hitting the said
bullet on the lower part of bullet on the lower part of
his abdomen due to his abdomen due to
accidental fire does not accidental fire does not
arise. From the aforesaid arise. From the aforesaid
deductions the possibility deductions the possibility
of accidental fire in the of accidental fire in the
instant case is ruled out instant case is ruled out
beyond doubt. beyond doubt.
The following 5. The following
points/information are points/information are
suggestive of that the suggestive of that the
instant case is not a instant case is not a
Murder Case:- Murder Case or firing by a
snipper (anti-national
element) from near the
IBB road:-
(a) There was no enmity (a) There was no
in between Const Chandvir enmity in between Const
Singh and Ct B N Hazra or Chandvir Singh and Ct B N
in between Ct Chandvir Hazra or in between Ct
Singh and Ct Sube Singh. Chandvir Singh and Ct
Sube Singh.
(b) Both Ct Sube Singh
and Ct B N Hazra made all (b) Both Ct Sube Singh
sincere efforts to evacuate and Ct B N Hazra made all
injured Ct Chandvir Singh sincere efforts to evacuate
to hospital for his injured Ct Chandvir Singh
treatment. to hospital for his
treatment.
(c) The Gunshot wound (c) The gunshot wound
was from "Point blank was from "Point blank
Range" whereas all of Range" whereas all of
them were walking them were walking
maintaining sufficient maintaining sufficient
distance from each other distance from each other
(approx 20 feet). (approx 20 feet).
(d) There was not hot (d) There was no hot
altercation among them altercation among them
just before the firing. just before the firing.
(e) From the time of (e) From the time of
incident and up to the incident and up to the
death, Ct Chandvir Singh death, Ct Chandvir Singh
spoke to some witness but spoke to some witness but
never he made any never he made any
allegations against allegations against
anybody in general and Ct anybody in general and Ct
Sube Singh and Ct B N Sube Singh and Ct B N
Hazra in particular. Hazra in particular.
(f) Ct Chandvir Singh (f) Ct Chandvir Singh
was suffering from some was suffering from some
mental depression for mental depression for
quiet sometime. quiet sometime.
(g) As per FSL (Ballistic (g) As per FSL (Ballistic
Expert) report, the firing Expert) report, the firing
was done from weapon i.e. was done from weapon
SLR 7.62 mm Butt No.423, i.e. SLR 7.62 mm Butt
body No.CR-3909 which No.423, body No.CR-3909
was personal weapon of Ct which was personal
Chandvir Singh and was in weapon of Ct Chandvir
his possession at the time Singh and was in his
of incident. possession at the time of
incident.
Also as the sound of gunshot (i) Witnesses nearby
was heard from nearby distance the PO heard the sound of
and also as per the postmortem gunshot near the PO at
report wherein fire arm used the time of incident, as
was from a "Point Blank Range", such a snipper (ANE) firing
as such possibility of firing by a from a distance at Ct
shipper (ANE) across the border Chandvir Singh can be
at Ct Chandvir Singh, is ruled ruled out. Besides this
out. On the other hand, the EFC even as per PM
was also found from nearby the examination report the
PO. firing was done from
"Point Blank Range". On
the other hand, the EFC
was also recovered from
nearby the PO.
32. Now, while it was permissible for the Court of Inquiry to have
considered and relied upon the report submitted by SI Paramjit
Ghose, but it is not acceptable that the Court of Inquiry would sing
like a canary and would indulge in a cut-copy-paste exercise. It
was not expected to act like a copycat. The application of mind
had to be reflected independent of SI Paramjit Ghose‟s report.
33. Now, both, SI Paramjit Ghose and the Court of Inquiry have
heavily relied upon the fact that anti-depressant medicine was
recovered from the personal belongings of the deceased. The
Court of Inquiry has also relied upon the testimony of HC
T.T.Joseph that the deceased was suffering from neurological
problems in the year 2003 and the testimony of R.P.Kukreti of what
he claimed petitioner No.1 having told him i.e. that her husband
was suffering from depression.
34. We find that the Court of Inquiry has not even noted and
hence has not discussed the effect of the testimony of SI Sahay
Sanga, HC Lal Jawan, Ct.Anchal Kumar and Asstt.Comdt.Mukesh
Kumar who categorically deposed that in the recent past they had
found the deceased to be a normal human being and there was
nothing abnormal in his behaviour which was noted. The deceased
was taking food as all others would, the deceased would sleep
arise and awake as all others would, the deceased was performing
duties as all others would and was behaving as all others would.
There was no evidence led as to who had recommended anti-
depressant drugs to the deceased, which we may note are also
liberally used by those who suffer from a sleep disorder. The Court
of Inquiry did not address itself to the question whether it was
possible that due to some sleep disorder the deceased procured
the drugs found in his personal kit box. The Court of Inquiry did
not even address itself to the question as to with what frequency, if
at all, the deceased was regularly consuming the medicine or was
it that the deceased had procured the drugs, to be used as standby
as and when he could not sleep properly and thus would consume
a pill or two to have a sound sleep.
35. The Court of Inquiry has just not considered the initial
response soon after the incident of the officers concerned i.e.
firstly the letter written by Dy.Comdt.Nitin Arora to the office in-
charge PS Dharmanagar, contents whereof have been noted by us
in paragraph 4 above wherein the initial response was to inform
that the deceased had suffered an accidental gunshot wound; the
signal dated September 25, 2004, contents whereof have been
noted in paragraph 6 above; the report dated September 27, 2004
prepared by Comdt.A.K.Singh, contents whereof have been noted
by us in paragraph 8 above, all of which refer to the fatal shot
being accidental. The Court of Inquiry has also ignored the
testimony of HC T.T.Joseph who stated that immediately after the
incident the deceased had told him that he i.e. the deceased had
slipped.
36. Unfortunately, the Court of Inquiry failed to clinically
evaluate the post-mortem report of the deceased, which in our
opinion throws considerable light on the subject: Whether the
deceased intentionally shot himself with the Self Loading Rifle
issued to him i.e. committed suicide.
37. We have noted in paragraph 7 above, the relevant extracts
of the post-mortem report and would highlight that the situs of
bullet and trajectory of the projectile, piercing internal organs of
the deceased show that the entry point of the bullet is at the
epigastric region of the abdomen, and the exit point is between the
10th and the 11th rib, rupturing the spleen of the deceased. Human
anatomy guides us that the 10th and the 11th rib, emanating from
spinal cord, do not attach themselves with the sternum zone i.e.
their ends are loose. The trajectory of the bullet from the entry
point to the exit point needs to be understood with reference to the
fact that the stomach cavity and the thoracic cavity of the human
body is akin to an oval shaped cylindrical object. The bullet had
made an entry at the epigastric region and had traversed the
stomach cavity moving towards the back, en-route rupturing the
spleen and after damaging the 10th and the 11th ribs made the exit.
This means that the bullet travelled somewhat diagonally inside
the stomach cavity and along a path making a 40 degree or a 45
degree angle with reference to the base line being drawn, with
reference to the trajectory line of the bullet along a straight line
from the point of entry of the bullet towards left side of the body of
the deceased. To fire a shot like this, the barrel has to be held in
the absolute opposite direction to the base line. Meaning thereby,
the journey of the bullet would be at an angle of 180 degree.
38. It was not disputed before us that the height of the deceased
was 5‟7". Now, with reference to the trajectory of the bullet inside
the body of the deceased, with the entry point being at the
epigastric region i.e. below the sternum and the exit being at the
back where the spleen is situated in between the 10th and the 11th
rib, to fire the shot at himself, the deceased had to point the barrel
of the Self Loading Rifle at himself, meaning thereby that the butt
of the Self Loading Rifle, where the trigger is situated had to be in
the opposite direction of the body of the deceased. The length of
the Self Loading Rifle is 3‟9". The length from the butt to the
trigger is 14" to 15"; facts which are not on record but have been
noted by us in Court after summoning a CRPF Constable on duty in
the Delhi High Court who was armed with a Self Loading Rifle. To
be shot in the manner, keeping in view the reach of the arm of a
man having height 5‟7", the deceased had to outstretch himself
and if we may use the expression, contrive to put his finger on the
trigger: with arms outstretched and the body leaning over and then
shoot at himself.
39. Why would the deceased, who as per the respondents
committed suicide, resort to such a strategy of contrivance to kill
himself when the simplest thing would be to rest the butt on the
ground - point the barrel either at the chest where the heart is
situated or in the forehead where the brain is situated or below the
chin and simply pull the trigger; we highlight that as per Modi‟s
Medical Jurisprudence and Toxicology it stands recorded that
where the weapon of offence is a long barreled weapon, in a case
of suicide the most convenient is to place the muzzle in the mouth
or under the chin.
40. The Court of Inquiry is always conducted, if the force
personnel is dead, in the absence of the legal heirs, whose
valuable civil rights are involved and thus it is expected that at a
Court of Inquiry a 360 degrees evaluation of the evidence is done
and all possible alternatives have to be considered before
conclusions are arrived at.
41. It is true that a Writ Court would not re-evaluate evidence,
but we highlight that it would be the duty of a Writ Court to
consider whether the primary adjudicator has considered all the
relevant evidence, and where it is found that relevant evidence or
relevant circumstances have been ignored, to then reconsider the
matter to find out the effect of the relevant evidence and
circumstances; doing so in the instant case, we find that the
respondents have acted mechanically and have ignored relevant
evidence and circumstances requiring the Court of Inquiry findings
to be set aside.
42. We would be failing not to highlight that the Court of Inquiry
has overlooked a very vital aspect in the present case i.e. whether
it was negligence or delay in giving effective treatment to the
deceased which was the direct and the proximate cause of the
death.
43. We begin by highlighting that except for the spleen, no
internal organ of the deceased was damaged. The rupturing of the
spleen by itself is not fatal if timely medical assistance is rendered,
for if the damaged organ is not repaired or surgically removed,
death is the result of internal bleeding; and indeed this has
happened in the instant case. The Court of Inquiry acknowledged
the fact that, (Quote):- "there was sufficient ie more than 07 hours
at the disposal of the doctors of sub-divisional Hospital
Dharmanagar to operate upon the injured Ct Chandvir Singh but
due casual/reluctant attitude on part of doctors, the patient was
deprived of the required treatment and he kept on battling for his
life and finally breath his last at 2040 hrs (8.40 PM) for want of
required surgical intervention."
44. This opinion of the Court of Inquiry is based upon the
testimonies of Dr.S.K.Mishra and Dr.Ajay Saha which brings out
that it was the lack of nitrous oxide and oxygen gas at the Sub-
Divisional Hospital due to which the deceased could not be
operated upon. Attempt to air lift the deceased to Silchar Medical
College failed due to weather being inclement and for which the
authorities concerned could do nothing, but if the Sub-Divisional
Hospital was equipped with nitrous oxide i.e. an anaesthetizes and
oxygen, the deceased could have been saved. The deceased, as
noted herein above, died after 8 hours and 35 minutes of the
incident and it is obvious that he bled himself to death. The
testimony of Dr.S.K.Mishra brings out that Dr.Laskar, the surgeon
concerned at RMG Hospital who was contacted initially refused to
operate upon the deceased citing non-availability of the assistant
surgeon, but when the helicopter could not land to remove the
deceased to Silchar Medical College Hospital, Dr.Ajay Saha agreed
to operate upon the deceased at the Sub-Divisional Hospital at
Dharmanagar but due to lack of N2O and O2 could not perform the
operation.
45. This aspect of the matter cannot be ignored when we have
before us as a petitioner, the widowed wife of a constable with two
minor children to be brought up in life and receiving family
pension, commensurate with the service rendered by the
deceased, and as told to us during hearing `3172/- per month, as
against a pension of approximately `9,000/- per month which she
would receive as extraordinary family pension. We highlight that
we have brought out as aforesaid with reference to the lack of
medical facilities to bring home the point that the deceased could
have been saved, and not to bring out that compassion requires
relief to be granted.
46. For the reasons stated herein above the writ petition is
allowed and a mandamus is issued to grant extraordinary family
pension to the petitioners with effect from the date they are
entitled to and after adjusting the ordinary family pension paid to
pay the past arrears within 12 weeks from date of this decision as
also to pay such other amounts as would be payable by treating
Chandervir‟s death to be accidental while on duty within the same
period, and if not paid within 12 weeks, to be paid with interest
@9% per annum reckoned from 12 weeks from the date of this
decision till date of payment.
47. Costs allowed to the petitioners and against the respondents
in sum of `10,000/-.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
JULY 03, 2012
dk
