JUDGMENT
Muzaffar Jan, J.
1. The writ petition has been submitted praying for direction to the respondents to complete the investigation in FIR No. 21 of 1995 for offence under Section 302 R.P.C and to pay compensation of 50.00 lacs on the death of Sheikh Mohammad Yasir and Rs. 1.25 crore on the death of Mohammad Yousuf Bhat.
2. The main submissions made in the petition are that the regular Army 2- Granade Bn. and 84, 81 and 15 BNs. of B.S.F., on 20.01.1995, during search and cordon operations apprehended Sheikh Mohammad Yasir and Mohammad Yousuf Bhat by entering in their houses situated at Dan-derkhah, Batmaloo, and killed both the boys without any justification, in abject disregard of law. An FIR No. 21 of 1995 under Section 302 R.P.C. was lodged. It is submitted that on completion of the investigation, no case was made out against any person and the case was treated as closed.
3. While admitting that search and cordon operation was conducted on 20.01.1995 in the Batmaloo area, the stand and submission of respondents 2 and 3 is that five persons were killed in cross firing on the said date. It is further submitted that the security forces also opened fire because they had no other option but to kill the militants and during cross firing, Sheikh Mohammad Yasir and Mohammad Yousuf Bhat were killed.
4. Counter has not been filed by respondents 1, 4, 5, and 6. Learned Counsel for the respondents 1, 4, 5, and 6, while admitting that the search and cordon operation was performed by the regular Army 2-Granade Bn. and 84, 81 and 15 Bns. of B.S.F. on 20.1.1995, at Danderkhah Batmaloo, near Middle School Building, the stand and submission of learned counsel for respondents 1, 4, 5, and 6 is that on the complaint of attroticities and killing, FIR No. 21 of 1995 under Section 302 R.P.C. was filed in Police Station Shergari. It is further submitted that in the massive exchange of fire between militants and security forces, five residents were killed, three were injured and among dead, Sheikh Mohammad Yasir and Mohammad Yousuf Bhat were also found to have been killed. During the course of investigation, it was found that both Sheikh Mohammad Yasir and Mohammad Yousuf Bhat were killed by bullet injuries during exchange of fire. It is also admitted that both Sheikh Mohammad Yasir and Mohammad Yousuf Bhat were not killed by torture, but as per post mortem report they died by gun shot injuries.
5. Heard learned counsel for the parties at length, perused the record and considered the submissions of learned counsel for the parties.
6. The facts which are not denied but are admitted and supported by the record, are that, on 20.01.1995, during search and cordon operation at Danderkhah, Batmaloo, in cross firing, five persons were killed on spot. It is also admitted that on insistence of the next of kin of deceased persons, FIR No. 21 of 1995 under Section 302 R.P.C. was filed in Police Station Shaheedgunj. As per Mr. M. A. Rathore, learned Addl. Advocate General, the investigation did not reveal involvement of intentional killing any person and, as such, the case came to be closed.
7. It will be pertinent to observe that although stand taken by the respondents 2 and 3 is, that all the five persons killed on spot, opened fire, and as such the presumption of their involvement in militancy related activities, cannot be accepted for multiple reasons.
8. There is nothing on record to show that the deceased Sheikh Mohammad Yasir and Mohammad Yousuf Bhat, on whose behalf petition for compensation has been filed, were involved in any previous act of militancy. There is no record to reveal that on the date of encounter with militants, all dead persons were equipped with arms and five rifles were seized from the dead bodies on spot. On perusal of the counter filed by respondents 2 and 3, it is specifically stated that only one AK 56 rifle, 3 Magazine and 10 rounds of ammunition were recovered on spot. In the absence of any previous police record, supporting documents or recovery of five rifles from the five dead persons, there is no justification to accept the submission of learned counsel for the respondents that all the five dead persons resorted to cross firing with a single rifle and were involved in militancy related violence. In these circumstances, the settled position of law is that when the State fails to protect the life of an innocent citizen, the State is bound to pay compensation, as held by the Apex Court in case reported as 2001 AIR SCW 1130 (S.S. Ahluwalia v. Union of India and Ors.), relevant portion of which reads as under:-
“The High Court of Delhi by its Order dated July 5, 1996 held that in the expanded meaning attributed to Article 21 of the Constitution it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered. If in any circumstances the State is not able to do so, then it cannot escape the liability to pay compensation to the family of the person killed during riots as his or her life has been extinguished in clear violation of Article 21 of the Constitution.”
9. The aspect which has to be considered, is that when the state has failed to extend, effective and adequate protection to the citizens, and they get killed, what would be the obligation of the State.
10. No amount of cash value can be put to compensate the death of a human being, for the reason that human life is beyond any pecuniary value. However, for providing relief to the next of kin of deceased persons, the compensation of Rs. 50 lacs, claimed in the facts and circumstances, without giving the supporting evidence to justify the same, would not be permissible. The State has fixed ex-gratia relief of Rs. 1.00 lac on the death of a person due to militancy related violence, but considering the age of Sheikh Mohammad Yasir, the amount of compensation of Rs. 1.00 lac would be on the meager side. The compensation of Rs 4.00 lacs for the death of Sheikh Mohammad Yasir and Rs. 3.00 lacs for the death of Mohammad Yousuf Bhat would serve the ends of justice.
11. Therefore, for the reasons given above, the petition is allowed with the direction that the State will pay the amount of compensation of Rs. 4 lacs for the death of Sheikh Mohammad Yasir and Rs. 3 lacs for the death of Mohammad Yousuf Bhat, to the petitioners.
12. The petitioners can pursue other remedies, if they are available. The petition is, disposed of, accordingly.