JUDGMENT
B. Lamare, J.
1. Heard Mr. R. Iralu, learned counsel for the petitioner and Ms. N. Rhetso, learned Addl. Central Govt. Standing Counsel.
2. The petitioner is the father of late Ms. Rukhiezonuo. The petitioner has three daughters and four sons. The deceased late Rukhiezonuo was the eldest daughter. The said daughter of the petitioner was shot dead by one Rifleman No. 13747927 U, Ram Rattan of the 5th Bn. J&K Rifles on 29.6.1996. The story leading to the death of the deceased is clearly mentioned in paragraph 2 and 3 of the writ petition which reads as follows ;-
“That there is an army post at Chiephobozou Village which is not very far from the petitioner’s village of Nerhema. On 29.6.1996 the ‘C’ company 5th Battalion, Jammu and Kashmir Rifles, then posted at Indira Gandhi Stadium, Kohima, moved to Chiephobozou army post. On the same day, sometime in the evening Rifleman No. 13747927 Y, Ram Rattan, 5th Battalion & A.K. Rifles, left the post fully equipped with rams and ammunition which was issued to him. He went to a nearby ‘Kheti-hut’ where a Nepali cow-herd stays. The aforesaid Riflemen demanded a girl from the Nepali cow-herd. On the refusal of the Nepali cow-heard to procure any girl the Rifleman Ram Rattan shot dead the cow-herd, whose name was Hit Bahadur Shetri, with three bullets from his SLR. The cow-herd died on the spot.
Thereafter the Rifleman Ram Rattan proceeded towards the petitioner’s village Nehrema. There he knocked at the door of a house belonging to Sri Chupfuo, and on the rifleman asking, offered him tea. The Rifleman left the house after tea and approached another house nearby. He knocked at one door again which was none other then the petitioner’s house. The door was opened by one of the sons of the petitioner namely Revise Rulho. By that time it was about 4:00 am, 30.6.1996. From the boy Revise Rulho the Rifleman asked if there was any girl in the house to which the boy replied in affirmative. Thereupon, the Rifleman went to the room where the boy’s younger sister Rukhiezonuo was sleeping. When it was opened the Rifleman caught hold of the helpless girl’s arm and pushed her back into the room and the door was locked from inside by the Rifleman. And when the girl Rukhiezonuo screemed and shouted for help the Rifleman Ram Rattan, without any compunction shot her death with a single bullet form his Rifle which passed through the chest.
3. That late Rukhiezonuo died at the spot. At the time of her death she was eighteen years old and was studying in Class IX in Nerhema Govt. Middle School. She was the eldest amongst the daughter, and the second eldest of the children. The bullet which killed Rukhiezonuo entered the middle chest and exited.”
3. On account of the said incident a written complaint was lodged to the officer-in-charge, North Police Station, Rohima on 30.6.1996 by the writ petitioner. An inquest was made on the dead body and the injuries were found to be of gun spot. The police conducted search on the petitioner’s house and they found one live 7.62 ammunition, one empty case of 7.62 ammunition and seized the ammunitions and garments worn by the deceased Rukhiezonuo. The copy of the seizure list is also annexed with the writ petition.
4. The accused Rifleman Ram Rattan was arrested by the army and he was tried by a summary General Court Marshal for commission of an offence under Section 302 IPC. On conclusion of the Court Marshal, he was convicted on 22.5.1997 and sentenced to death.
5. In paragraph 12 and 13 of the petition, the petitioner has also stressed the sufferings caused to the deceased as well as to the family by the death of his said daughter by stating as follows :-
“That till today the petitioner have not been able to compromise with the bitter fact that her eldest daughter had been snatched away by a blood-thirsty army personal from his own house. The petitioner is a cultivator. The deceased daughter had come of age to shoulder responsibilities of the home which would have been a great relief to the petitioner and the mother. Despite economic constraints the petitioner had been trying to give proper formal education to the deceased daughter to establish her in life. All hopes and dreams stood shattered.
That no amount of monetary relief would bring back the life of the daughter. However, the way in which the petitioner’s daughter was killed and murdered could not be easily wiped off. The culprit has been given punishment under the law, though not sufficient. The culprit deserved death. However, the agency from which the culprit got the weapons, arms and ammunition, and the failure to discipline the personnel are also directly or indirectly should be held liable and accountable for the wrong committed by its servants. And in this view the petitioner is entitled to adequate compensation by way of exemplary damages.”
6. The respondents resisted the claim of the writ petitioner with the main contention that the said Rifleman Ram Rattan has committed the atrocity on his own free will after deserting from his service. In paragraph 5 of the affidavit in opposition it is stated as follows :-
“That it is submitted that the convict/prisoner ex-serviceman No. 1374792Y Ram Rattan had committed this atrocity on his own free will and it has nothing to do with his official work. There is no whisper anywhere in the writ petition that the convict had indulged in this atrocity while discharging his official duty. It has to be noted that the prisoner/ convict had deserted from the unit lines with arms and ammunitions with an intention not to rejoin back in the army. That the conduct of the prisoner itself showed that the prisoner deserted from the army and whatever he did after the desertion was done in his personal capacity. Since the prisoner/convict was not discharging any of the official act, the Union of India nor the answering respondents cannot be made liable for an act which is purely personal in nature. It may be recalled that for what he has done in his personal capacity, he has been severely punished. That the incident happened due to the personal act of the prisoner/ convict for which he can be only held liable for and not the answering respondents. That the petitioner has failed to make Ram Rattan (prisoner/ convict) the respondent, therefore, the writ petition needs to be dismissed for non-joinder of parties and it can be seen that since Assam Rifle has nothing to do with the prisoner/convict, the respondents Nos. 2, 4 and 6 has been unnecessarily made parties and therefore the instant writ petition need to be dismissed for mis-joinder of parties.”
7. The conviction of the accused by a Court Marshal is also admitted by the respondents in paragarph 7 of the affidavit-in-opposition. The said conviction was made against the offence committed by the said personnel in connection with the same occurrence which took place on 29.6.1996 and 30.6.1996.
8. A reading of the writ petition and the affidavit-in-opposition shows that the commission of the atrocity by the said personnel of the 5th Bn. J &K Rifles was not denied by the respondents. The only question to be seen is as to whether the said Rifleman Ram Rattan has committed atrocity while he was in service or not. The answer to this question can be seen in the charge sheet made against the Rifleman Ram Rattan by the Commanding Officer of the 5th Bn. of the J&K Rilfes which is made on 26.4.1997 (Annexure E to the writ petition) which reads as follows :-
“CHARGE SHEET
The accused, Number 13747927Y Rank Rifleman/Equipment Reparier Name Ram Rattan, 5th Battalion The Jammu and Kashmir Rifles, is charged with :-
First charge COMMITTING A CIVIL OFFENCE, THAT IS TO SAY,
Army Act CONTRARY TO SECTION 302 OF THE INDIAN
Section 69 PENAL CODE
In that he, at field on 29 June 1996, while on active service, by intentionally causing the death of Mr. Het Bahadur, son of late Mr. Ganest Bahadur, a civilian, committed murder.
Second charge COMMITTING A CIVIL OFFENCE, THAT IS TO SAY Army Act MURDER, CONTRARY TO SECTION 302 OF THE Section 69 INDIAN PENAL CODE In that he, at field on 30 June 1996, while on active service, by intentionally causing the death of Miss. Rukhieznuo, daygther of Heu Rulho, a civilian, committed murder. Third Charge DESERTING THE SERVICE Army Act Section 38(1) In that he, at field on 29 June 1996, while on active service, absented himself from the unit, until apprehended by the search party of the unit from nearby jungle on 02 July 1996. Fourth Charge COMMITTING A CIVIL OFFENCE, THAT IS TO SAY Army Act ATTEMPT TO MURDER, CONTRARY TO SECTION Section 69 307 OF THE INDIAN PENAL CODE
In that he, at field on 29 June 1996, fired three shot from his 7.62 mm self loading rifle, butt Number 395, registered Number CV-2700, at Mr. Indra Bahadur, son Mr. Rohit Bahadur, a civilian, with such intention and under such circumstances, that if by that act he had caused the death of said Mr. Indra Bahadur, he would have been guilty of murder.
Sd/-
(HSAhuja)
Colonel
Commanding Officer
5th Battalion
The Jammu & Kashmir Rifles.”
Place : Field
Dated 16 Apr 1997.
9. A bare perusal of the said charge sheet shows that the said Rifleman was in active service on 29.6.1996 and 30.6.1996 when he had committed the atrocity of shooting the deceased girl thereby casing her death instantaneously inside her own house at Nerhema village in the District of Kohima, Nagaland. Therefore, the contention of the respondents that the accused has deserted the force and committed the atrocity at his own cannot be accepted.
10. The next contention of the respondents in the affidavit in opposition is that the petitioner could have approached the civil court for the atrocity committed by the said personnel as the atrocity was committed on his own after deserting the force.
The Apex Court in the case of Chairman Railway Board and Ors. … Appellants v. Chandrima Das (Mrs.) and Ors., Respondents reported in (2000) 2 Supreme Court Cases 465, in paragraph 11 of the judgment has held as follows :-
“Having regard to what has been stated above, the contention that Smt. Hanuffa Khatoon should have approached the civil court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law.”
11. In view of the above decision of the Apex Court, this court has every jurisdiction to entertain this petition and to issue the appropriate Rule or direction in the instant case.
12. In the facts and circumstances as discussed above, this court is of the view that the plea taken by the respondents that they are not liable for the action of their employees cannot be accepted. The question, therefore, now is as to what amount of compensation the petitioner is entitled to on account of the death of his said daughter.
13. The deceased was a girl of 18 years and was studying in Class IX in Nehrema Middle School. She was the eldest daughter in the family. The atrocity was committed by the intrucsion of the said Rifleman into their house in the wee hours of the day at 4 A.M. on 30.6.1996. The atrocity committed was on a helpless and innocent girl who was sleeping in her own house. The death was caused when the entire family was expecting that the deceased would be of great help to the family after completing her studies. In paragraph 12 and 13 of the writ petition it is clearly stated that she was given education with constraint of poverty in order to settle her in life and to support the family. It is pure and simple in atrocity committed on a simple and innocent village girl. The atrocity is a clear violation of the right to life as enshrined in Article 21 of the Constitution of India.
14. In the facts and circumstances as discussed above, I am of the view that the ends of justice would be made by awarding a compensation of Rs. 6 Lakhs (Rupees Six Lakhs) only to the petitioner, the father of the victim girl.
The award is made against the respondents Nos. 1, 3 and 5 severally and jointly and the amount shall be deposited before the Registry of this Court within a period of 3 (three) months form the date a copy of this order is served on respondents 1, 3 and 5. On deposit of the amount the same shall be released to the petitioner on proper identification by an Advocate of this Court.
With the above direction, this petition is disposed of. However, considering the facts and circumstances of the case, I pass no orders as to the costs.