Bindita @ Bindikta Devi vs The State Of Jharkhand Through Its ...
2022 Latest Caselaw 4204 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                (Letters Patent Appellate Jurisdiction)
                             LPA No. 90 of 2020

Bindita @ Bindikta Devi, w/o Sri Fulchand Tirkey, r/o Q. No. 1011, Street-37,
9D Bokaro Steel City, PO Sector IX, PS Harla, District Bokaro, Jharkhand
                                                               ......Appellant
                                  Versus
1. The State of Jharkhand through its Chief Secretary, Government of
Jharkhand at Project Building Dhurwa, PO&PS Dhurwa, District Ranchi
(Jharkhand)
2. The Chief Secretary, Jharkhand, Ranchi at Project Building, PO&PS
Dhurwa, District Ranchi, Jharkhand
3. The Secretary, Department of Home, Government of Jharkhand, at Project
Building, Dhurwa, PO&PS Dhurwa, District Ranchi (Jharkhand)
                                                        ..... Respondents
                              ---------------
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant         : Mr. Binod Singh, Advocate
For the State             : Mr. Devesh Krishna, SC Mines-III
                            Mrs. Rukmini Kumari, AC to SC Mines-III
                               ---------------
                              ORDER

th 17 October 2022 Per, Shree Chandrashekhar, J.

Bindita @ Bindikta Devi who is the mother of Manraj Tirkey is aggrieved by the order dated 13 th December 2019 passed in WP(C) No. 2392 of 2009. The writ petition seeking compensation of Rs. 50 lacs was premised on the ground that Manraj Tirkey who was taken into custody at about 8:00 am on 22nd December 2005 along with five other boys of Gumla Nagar, Sector-XII, Bokaro Steel City suffered custodial death.

2. Briefly stated, the petitioner has pleaded that Manraj Tirkey was kept in illegal custody for six days and brutely assaulted by the police in the lock-up; he was admitted in Bokaro General Hospital on 28 th December 2005 and in course of treatment he died on 30 th December 2005. Several complaints were made to the higher police authorities by the parents of Manraj Tirkey alleging illegal confinement of their son but no action was taken on their complaints. Therefore, constrained, a Public Interest Litigation was instituted in the High Court vide WP(PIL) No. 1654 of 2006 in which by an order dated 22nd December 2006 a direction was issued to the Central Bureau of

Investigation (in short, CBI) to take up investigation of Bokaro Steel City PS Case No. 406 of 2005. This case was registered in connection to UD Case No. 1 of 2006 which was registered on 1 st January 2006 on death of Manraj Tirkey in course of his treatment at Bokaro General Hospital. In RC Case No. 1(S)/2007 which was registered after the CBI took over investigation of Bokaro Steel City PS Case No. 406 of 2005, a chargesheet was filed under sections 323 and 343 of the Indian Penal Code against Upendra Narayan Singh and Rukshar Ahmad who were posted at Sector-12 Police Station, Bokaro Steel City, Bokaro at the relevant time. This chargesheet was however not accepted by the SDJM-cum-Special Judicial Magistrate, CBI, Dhanbad who took cognizance of the offence under sections 323, 343 and 304 read with section 120-B of the Indian Penal Code vide order dated 09 th February 2009 and issued processes against Upendra Narayan Singh, Rukshar Ahmad and Sandhya Rani Mehta who was City Deputy Superintendent of Police at Bokaro. However, the trial in Sessions Trial No. 299 of 2010 proceeded only against Upendra Narayan Singh and Rukshar Ahmad because the order taking cognizance dated 9th February 2009 qua Sandhya Rani Mehta was set aside by this Court by order dated 16th April 2014 passed in Cr.MP No. 1149 of 2009.

3. In Sessions Trial No. 299 of 2010, 15 prosecution witnesses were examined out of whom PW3 was the mother who is the appellant before us and PW8 was the father of Manraj Tirkey.

4. Dr. Sunil Kumar Singh who was examined as PW15 has conducted autopsy over the dead body of Manraj Tirkey. The opinion of PW15 that (i) no external injury was found over the body, (ii) cause of death could not be ascertained, and (iii) no poisonous substance was found in the viscera; was the prime reason why the Sessions Court has held Upendra Narayan Singh and Rukshar Ahmad guilty under sections 323 and 343 of the Indian Penal Code - charge under section 304 has been found not proved.

5. Mr. Binod Singh, the learned counsel for the appellant has raised a point in law to challenge the writ Court's order, contending that the illegal confinement of Manraj Tirkey is established and a finding in this regard has been rendered by the Sessions Court which convicted Upendra Narayan Singh and Rukshar Ahmad under section 343 of the Indian Penal Code and while so the State is liable to pay compensation to the family of the victim. The learned counsel would submit that the plea of illegal confinement and custodial death of Manraj Tirkey has been found correct by the National Human Rights

Commission which awarded compensation of Rs. 5 lacs to the family of the victim. The learned counsel has further contended that the plea of custodial death is required to be examined by applying the test of preponderance of probability and on the ground that the Sessions Court has not found the charge under section 304 of the Indian Penal Code established, the writ Court could not have dismissed the writ petition.

6. In the order dated 13th December 2019 passed in WP(C) No. 2392 of 2009, the writ Court has observed as under:

"15. This Court, is of the view with respect to such submission advanced on behalf of the learned counsel for the petitioner that the writ court, while exercising the power under Article 226 of the Constitution of India, although, is having extraordinary jurisdiction, but the same is to be exercised only upon the admitted documents without travelling with the controversial facts and if there is controversy on facts which requires adjudication, the writ court is to refrain itself in exercising extraordinary jurisdiction conferred under Article 226 of the Constitution of India.

16. Accordingly, on account of the fact that the appeal has been preferred against the judgment dated 10.05.2019 passed in Session Trial No.299 of 2010, it cannot be construed to be replacement of the judgment passed by the trial court unless the judgment passed by the trial court would be reversed with conclusive finding about commission of offence under Section 304 of Indian Penal Code but on presumption that the petitioner has a case on merit of custodial death, no such direction can be passed by the High Court under its extraordinary jurisdiction on the ground of pendency of appeal.

17. Although, a sum of Rs.5,00,000/- has been paid by the State of Jharkhand on behest of the interference of National Human Rights Commission but that will not give any aid to the petitioner's grievance at this stage in view of the judgment pronounced by the trial court wherein no ingredient of commission of offence under Section 304 of the Indian Penal Code has been found.

18. This Court, in the entirety of facts and circumstances and the detailed discussion made hereinabove, is of the view that at this stage no direction can be passed upon the respondent-State for making payment of compensation holding it a custodial death.

19. Accordingly, the writ petition fails and is dismissed.

20. However, it is open for the petitioner to re-agitate the grievance depending upon the outcome of the appeal preferred against the judgment dated 10.05.2019 passed in Session Trial No.299 of 2010."

7. The case pleaded by the appellant who is the mother of Manraj Tirkey is that her son was assaulted brutely while kept in illegal confinement on account of which he died in course of his treatment at the Bokaro General Hospital. The postmortem of Manraj Tirkey was conducted on 1 st January 2006. The doctor found no external or internal injury on the dead body of Manraj Tirkey. There was no poisoness substance found to have been administered to him and the cause of death could not be ascertained by the doctor who was examined as PW15. From the pleadings in the present Letters

Patent Appeal and other documents, we observe that Manraj Tirkey was admitted in the hospital with complain of stomach pain. In course of the investigation, CBI took opinion from Dr. Sanjeev Lalwani, Assistant Professor, Department of Forensic Medicine, AIIMS at New Delhi regarding cause of death of Manraj Tirkey. The opinion rendered by Dr. Sanjeev Lalwani has been extracted in paragraph no. 20 of the counter-affidavit filed by the State of Jharkhand, which reads as under:

"20. That it is submitted that CBI had taken opinion of Dr. Sanjeev Lalwani, Astt. Professor, Department of Forensic Medicine, AIIMS, New Delhi regarding cause of death of Manraj Tirkey and it was opined as follows:

'Nothing incriminating was found in Viscera and no injury was found on the body of the deceased as per postmortem report and other reports, the cause of death of Late Shri Manraj Tirkey is acute renal failure following Upper Gastro Intestinal Tract Hemorrhage which may be caused by ingestion of NSAID.' "

8. We have been informed that CBI has not preferred appeal against the judgment dated 10th May 2019 passed in Sessions Trial No. 299 of 2010 by which Upendra Narayan Singh and Rukshar Ahmad have been convicted and sentenced for the offence under sections 323 and 343 read with section 120-B of the Indian Penal Code.

9. In our order dated 07th June 2022, we have indicated that this Court was apprised that the parents of Manraj Tirkey have also not chosen to challenge the judgment in Sessions Trial No. 299 of 2010.

10. Still, accepting the plea urged on behalf of the appellant that the question of custodial death needs to be examined on preponderance of probability and not by looking for evidence beyond all reasonable doubt, we find no ground to interfere in this matter because, as notice above, the medical opinion rendered by PW15 and Dr. Lalwani disclose that no bodily harm was caused to Manraj Tirkey. Rather, the cause of death in the opinion of Dr. Lalwani was renal failure.

11. In our opinion, had there been any substance in the stand taken by the parents of Manraj Tirkey that their son was brutely assaulted in the police lock-up there should have been some observation by the doctor - which, of course, is not recorded in the postmortem examination report.

12. Even accepting the stand of the appellant that her son was in illegal confinement of the Jharkhand Police, in view of the medical opinion, it is difficult to hold that the death of Manraj Tirkey had any proximate

relationship with his illegal confinement between the period 22 nd December 2005 and 27th December 2005. A mere doubt of a mother who lost her son that police brutality might have inflicted upon her son is not sufficient to hold that Manraj Tirkey has died a custodial death.

13. Having examined all relevant aspects of the matter, we are not inclined to interfere with the order dated 13 th December 2019 passed by the writ Court and, accordingly, LPA No. 90 of 2020 is dismissed.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 17th October 2022 Tanuj/N.A.F.R