JUDGMENT
B.L. Hansarla, C.J.
1. Pramod Kumar Jena was involved in a number of cases under Section 395 IPC He was admittedly taken into custody on the night between 11th and 12th August, 1990, though, according to the petitioner, the arrest was on 10th August. He was thereafter brought to Kendrapara Police Station and was said to have been released from that Police Station on 15-8-1990, which is denied by the petitioner. Thereafter, he was again taken into custody in connection with sortie other cases under Section 395 IPC on the night between 22nd and 23rd August, 1990 and brought to Jajpur Road Police Station on 23-8-1990 at 9. 00 a. m. the petitioner’s case is that on 24th August, 1990, he was informed by the police staff of Kendrapara that his son (Pramod) had committed suicide in Police Station of Jajpur Road. According to the petitioner, however, his son was intentionally murdered in the Police Station and his dead body was reduced to ashes despite his protest after refusing handing over of the dead body to him. The case of the opposite parties, however, is that Pramod committed suicide on the morning of 24th at about 5.15 a. m. by hanging himself by means of a rope which was prepared from the lade of his wearing lungi, by tying the rope at the iron bar of the sky-light inside the latrine.
2. A magisterial inquiry in the matter was held and as per the report of the Subdivisional Magistrate (S. D. M.) Jajpur, the death of Pramod had been caused “due to suicidal hanging”. The report is dated 29-1-1992.
3. Shri Kanungo appearing for the petitioner submits that the finding of the S.D.M. is believed by certain important features which have been mentioned in the post mortem report dated 24-8-1990, a copy of which has been enclosed along with the report of the S. D. M.
4. The first submission made by Shri Kanungo in this regard is that the finding of 300 C.C. of partially digested food matters in the somuch of the deceased as noted in. col. 4 of Part IV of the report dealing with ‘Abdomen’ would belie the case of the opposite parties that the death had taken place around 5.15 a. m. of 24th August. This submission has been made, because station diary No. 587, whose copy is also available with the report, states that the deceased was fed with rice and dal at the rate of Rs. 2/- at 9.00 p. m. the learned counsel submits that if Pramod had taken his last meal at 9.00 p. m. by 5.15 a.m. the entire food taken by him would have been digested fully and the autopsy surgeon would not have found 300 c. c. of partially digested food in this stomach. In this connection, our attention has been invited to 12th Edition of Samson Wright’s “Applied Physiology”, at page 416 of which it has been stated that “with a meal of gruel the stomach is usually empty in about 2 1/2 hours. With the heavier and more solid barium meal, the stomach should be completely empty within 6 hours at the longest.” Reference is also made to what has been stated in paragraph 18 of Charan Singh v. State of Punjab, AIR 1975 SC 246, in which it was stated that normally a vegetable diet containing mostly farinaceous food (which means consisting of cereals added by us) as usually taken by an Indian does not leave the stomach completely empty within six to seven hours after its ingestion (see page 151 of Modis’ Medical Jurisprudence and Toxicology, 16th Edn.) ” Shri Kanungo then draws our attention to the 21st Edition of Modi’s above treatise, at page 185 of which it has been stated that the rate of emptying of stomach varies in man from 2.5-6 hours. The learned author has, however, stated in that page that sometimes emptying of stomach remains in abeyance for a long time in state of profound shock and coma. This had happened when soon after the meat the person concerned had received severe head injuries and died within 12-24 hours afterwards. In one case the food consisting chiefly of rice, and, dal (as was in the present case) remained in the stomach for about 48 hours without undergoing digestion. But then, this happens: in cases of profound shock and coma. In the instant case, there is nothing to show if after Pramod had been given his meal at about 9 p. m. he had undergone profound shock and coma ; indeed, according to the opposite parties, everything was normal till 4.45 a. m. of 24th August, 1990. Therefore, the normal course of emptying of the stomach must have taken place and it must have been empty latest by 6 hours of taking food. As meal had been taken by Pramod at about 9 p. m. the stomach would have been completely empty by about 3 a. m. and the autopsy, surgeon would not have found anything in the stomach if the death would have been around 5.15. a.m.; whereas in the present case, the stomach contained as much as 300 c. c. of food materials. Shri Kanungo submits that as Pramod had been fed with rice and dal costing Rs. 2/-, at which price only small quantity of rice and dal could have been purchased, the finding of 300 c. c. partialy digested food materials would show that the death was soon after the taking of the meal.
5. The aforesaid submissions do have sufficient force. The further submission is that the presence of ligature mark on the neck as noted in the post mortem report is not conclusive of the matter inasmuch as it has been pointed out at page 157 of Modi’s aforesaid work (15th. Edn.) that “the presence of ligature mark alone is not diagnostic of death from hanging, inasmuch as, being a purely cadaveric phenomenon, it may be produced if a body has been suspended after death.”
6. Shri Kanungo has also something to say about the falsity of the case of the opposite parties relating to suicidal hanging, relying on the finding of the autopsy surgeon, of which mention has been made in col. 3 of Part IV of the post mortem report, wherein it has been stated that the mouth, pharynx and oesophagus were ‘normal’. Shri Kanungo refers to the observation made at page 181 of the aforesaid work of Modi in which it has been stated that the effect of the ligature pressing the neck is ‘to force up the epiglottis and the root of the tongue against the posterior wall of the pharynx. Hence, the floor of the mouth is jammed against its roof, and occludes the air passages, also the uvual and soft palate are pushed upwards and the laryngeal opening is blocked by the depressed epiglottis.
7. In this connection, reference is also made to the statements made at page 512 of Taylor’s “Principles and Practice of Medical Jurisprudence”, Vol. 1 (11th Edn.) dealing “General External Appearances of hanging” to the following effect :
“………The secretion of saliva is a vital act, and its presence in sufficient quantity to run down over the chin and clothes is strongly indicative of suspension during life, or at any rate immediately after death, for the secretion ceases after cessation of the circulation.
So, finding of saliva, about which mention has been made in the report of the Subdivisional Magistrate as well as in the post-mortem report is not conclusive of the matter that the present was a case of suspension during life, as saliva would be present even if a person is hanged immediately alter death.
8. As to the tongue being protruded and bitten, about which mention has been made in the post mortem report, it may be stated that as per the statement made at page 191 of the aforesaid work of Modi, in a case of hanging, the tongue is drawn in or caught between the teeth or protruded and bitten. So, the fact that the tongue was protruded and bitten is also not conclusive of the matter.
9. Shri Kanungo has vehemently urged that the case of the opposite parties regarding suicidal hanging cannot be believed because Pramod could have had no reason to commit suicide, more so, even when at about 4.45 a. m. of the crucial day, he had asked for a tooth brush stick from the constable whereafter he went inside the latrine, and during the night he was not grumbling anything, as stated by the constable in his statement before the Sub-divisional Magistrate. Learned counsel submits, and rightly, that if Pramod would have been a veteran dacoit, as he is stated to be by the opposite parties and if he was absolutely normal by 4.45 a.m., it cannot be said that psychologically he had made preparations for ending his life. This apart, the story that the lace of the Lungi was torn out to convert it into a rope does not sound believable. It is doubtful if, even if such a rope was made, the same would be strong enough to bear the weight of a grown-up person like Pramod, who, at the relevant time, was aged about 25 years and was allegedly a veteran dacoit.
10. The cremetion of the dead body at Jajpur itself throws further doubt on the veracity of the case of the opposite parties. Though in this connection the petitioner has stated that the dead body of his son was not handed over to him and he was forced to place the dead body on the funeral pyre, we are not giving credence to these statements because of the denial of the same in the counter affidavit. But then, it is an admitted position that the cremation was at Jaipur. The deceased being a man of Hatabanapur under Kendrapara Police Station and being only recently married, we would have thought that if the dead body would have really been handed over to the petitioner, he would have liked the last rites to be performed in the village giving an opportunity to the widow among others to pay her tributes and have the last darshan of the deceased. The cremation of the dead body at Jajpur, therefore, speaks about some foul-play which the opposite parties wanted to conceal by getting the dead body cremated there. It may be pointed out that the death was admittedly in the premises of the Jajpur Road Police Station. The fact of taking the photograph of the petitioner while he was placing (as forced, according to the petitioner) the dead body on the funeral pyre adds further weight to the case of the petitioner, as in normal course this would not have been done by the Police. The fact of taking the photograph is admitted in the counter, though according to the statement made in this regard in para 9 is that photo snaps “of the deceased as well as the spot” were taken. Photographs of the above act of the petitioner must have been taken to prove that the dead body was cremated by the petitioner himself as if voluntarily. If Pramod would have killed himself, this precautionary act was not required to be performed.
11. Because of all the above, we would hold that the case of the opposite parties that Pramod had died because of suicidal hanging is not acceptable to us. The only other conclusion which can be drawn on the facts of the case is that he had died due to police torture. Though in this connection Shri Patra has submitted that the autopsy did not reveal any external injuries which would rule out any assault by police personnel, it is too well known a fact that when an accused is tortured by police they take all steps to see that external marks do not appear on the body.
12. Though Pramod-was stated to be a veteran dacoit being involved in a number of cases under Section 395, IPC even so, his life could not have been taken away by torturing him. Our Constitution and the laws do not permit it according to which, even a culprit, however notorious he may be, has to be dealt in accordance with law. Nobody’s life can be taken away except in accordance with the procedure established by law. That is what Article 21 of the Constitution widely proclaims.
13. The death of Pramod was, therefore, violative of Article 21 of the Constitution. So, it is a fit case where appropriate compensation should be awarded to the petitioner. The question is about the quantum of compensation. In Saheli v. Commissioner of Police, AIR 1990 SC 513, the State Government was directed to pay a sum of Rs. 76,000/-as compensation to the mother of the victim of police torture who was aged about 9 years in Peoples’ Union for Democratic Rights v. State of Bihar and Ors., AIR 1987 SC 355, the Court had, however granted a sum of Rs. 20,000/- to the victims of police firing.
14. In the present case what we find is that according to the petitioner Pramod had been married just two months earlier and he was the only member of the house looking after agriculture. The loss to the wife of Pramod cannot really be compensated by money. This apart, as he was said to be the only member of the house looking after agriculture, the financial hardship of the family can well be imagined; more so when the petitioner belong to the lower strata of the society.
15. Keeping in view all the above, we would direct payment of a sum of Rs. 30,000/- as compensation which amount shall be paid by the State within a period of two months from today. We have fastened the liability on the State because it is vicariously liable for tortious sets of its employees as held in the aforesaid case of SAHELA. Out of the sum of Rs. 30,000/-, the petitioner would be paid a sum of Rs. 10,000/- and the remaining amount of Rs. 20,000/- shall be made available to the widow of Pramod whose name is Kabita.
16. The petition is disposed of accordingly.
K.C. Jagadeb Roy, J.
17. I agree.