IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.09.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU A.S. NO.512 of 2010 and M.P.NO.1 OF 2010 1.The Secretary, Home Department, Fort St. George, Chennai. 2.The Director General of Police, Chennai. 3.The District Collector, Erode District, Erode. 4.The Superintendent of Police, Erode. .. Appellants/1,2,4 & 5th Defendants Vs. 1.Damayanthi 2.Minor Sathipandy rep. by next friend, guardian and mother Damayanthi 3.Thanikachalam 4.Lakshmi ..1 to 4 Respondents/1 to 4 Plaintiffs 5.K.Krishnan 6.Rajasekaran ..5th & 6th Respondents/7 & 8th Defendants 7.The Inspector General of Police (Prison), Chennai. 8.The Superintendent, Central Prison, Coimbatore. ..7th & 8th Respondents/ 3rd & 4th Defendants This Appeal Suit has been preferred under Section 96 of the CPC against the judgment and decree made in O.S.No.35 of 2004, dated 10.2.2006 on the file of the Additional District Court-cum- FTC No.IV, Bhavani, Erode District. For Appellants : Mr.V.Ravi, Spl.G.P.(A.S.) For Respondents : Mr.N.Manoharan for RR1 to 4 RR7 and 8 arrayed as formal parties and no relief claimed against them. RR5 and 6 (No appearance) JUDGMENT Heard. https://hcservices.ecourts.gov.in/hcservices/ 2.This Appeal Suit is filed under Section 96 of the CPC challenging the judgment and decree in O.S.No.35 of 2004 (Pauper O.S.No.33/2001), dated 10.2.2006 on the file of the Additional District Court-cum-FTC-IV, Bhavani. 3.The suit was filed by the contesting respondents 1 to 4 seeking for a relief of damages from the appellants as well as defendants 5 and 6 jointly and severally quantified at Rs.8,28,000/- towards loss of life of deceased Jambu @ Shanmugam who was an under-trial prisoner No.6030 and died when he was incarcerated at the Central Prison, Coimbatore and to award cost. The suit was tried by the Fast Track Court-IV, Bhavani, Erode District in O.S.No.35 of 2004 and it was decreed on 10.2.2006 fixing the liability on the appellants as well as respondents 5 and 6. The damages were quantified at Rs.1 lakh together with interest at the rate of 7.5% from the date of filing of the plaint till the date of realisation and cost of Rs.2055/- was also ordered. 4.The case of the respondents 1 to 4 as per their plaint filed before the trial court was that the first respondent was the wife of late Jambu @ Shanmugam. The second respondent is the minor son and the third and fourth respondents are the father and mother of late Jambu @ Shanmugam. The first respondent's husband Jambu @ Shanmugam was lodged as an under-trial prisoner with prisoner No.6030 in the Central Prison at Coimbatore. He was an accused in Crime No.106/98 in the Bhavani Police Station for the offence under Section 302 IPC. He was remanded to custody by the Judicial Magistrate, Bhavani and was lodged at the Central Prison, Coimbatore as an under-trial prisoner. While he was in judicial custody, he was produced before the Judicial Magistrate Court, Bhavani on 7.4.1998 duly escorted by the Armed Reserve Constables who are respondents 5 and 6 belonging to Armed Reserve police, II Platoon at Erode. The deceased was brought to the Court for extension of his remand in connection with the case registered against him. The trial court had extended his remand. The deceased husband of the first respondent was taken back from Bhavani to Erode in a Town bus route No.83 going from Bhavani to Erode. They were to alight at the Erode Bus stand for their return journey to the Central Prison, Coimbatore. When the bus stopped around 5.30 p.m. at Bhavani Flower Bazzar Junction, some miscreants armed with deadly weapons forcibly entered into the bus and brutally attacked Jambu @ Shanmugam. He was dragged out of the bus and was murdered in view of the public in the public road. He died even under escort by respondents 5 and 6 and while under judicial custody ordered by the Judicial Magistrate, Bhavani. This fact was intimated by the 8th respondent to the first respondent by a telegram. 5.At the time of the death of the deceased Jambu @ Shanmugam, he was around 50 years of age. Due to his sudden departure, the family of respondents 1 to 4 were put to grave hardship. At the time of his death, he was earning Rs.3000/- per month. He would have survived for more than 23 years. Therefore, his loss was estimated to Rs.8,28,000/- due to pecuniary loss https://hcservices.ecourts.gov.in/hcservices/ sustained by respondents 1 to 4. No benefit was accrued on the family on account of the death of the deceased. It was due to the negligence and carelessness of respondents 5 to 6 the death had occurred. Therefore, the State as well as respondents 5 and 6 were jointly and severally liable to pay damages towards the death of the first respondent's husband. 6.A legal notice was issued on 4.10.2000 to the appellants. Thereafter, the suit was filed. Since respondents 1 to 4 did not have means to file a heavy damage suit, it was filed as pauper suit with O.S.No.33 of 2001. The suit was taken on file as O.S.No.35/2004. On notice, a written statement was filed by the District Collector, Erode, the third appellant, in the appeal. In the written statement, it was stated that it was for the plaintiffs to prove their allegations. Excepting the marital status of the first respondent, the other details were not admitted. The records in the hands of the third appellant showed that the deceased Jambu @ Shanmugam was a questionable character and was having bad antecedents and involved in a case of culpable homicide. His earning capacity and his life expectation was also disputed. It was stated that the incident described by the plaintiffs was unbelievable. It is not explained as to how respondents 5 and 6 have failed in their duty. In the midst of the crowded bus in which many passengers including women and children were traveling, it will be next to impossibility to identify and know as to who were the miscreants. Respondents 5 and 6 cannot be attacked as being negligent in their duty. The suit was filed only to get fabulous amounts in the name of vicarious civil liability. Hence they are not eligible for any compensation. 7.Before the trial court, on the side of the respondents plaintiffs, three witnesses were examined as P.W.1 to P.W.3 . On their behalf, 18 documents were filed and marked as Exs.P.1 to P.18. On the side of the appellants (defendants in the suit), four witnesses were examined as D.W.1 to D.W.4 which included fifth respondent Krishnan as D.W.2 and sixth respondent Rajasekaran as D.W.1. Two documents were filed and marked as Exs.D.1 and D.2. Exhibit D.1 was the FIR registered on account of the murder of late Jambu @ Shanmugam. Ex.D.2 was a letter sent by the first appellant to the third appellant. The trial court on an analyze of the evidence (both documentary and oral) placed before it, framed three issues initially and thereafter an additional issue also. 8.The issues were as follows: a)Whether on account of death of Jambu @ Shanmugam, an under-trial prisoner, the plaintiffs are entitled for compensation of Rs.8,28,000/-? b)Whether the plaintiffs are entitled for cost of the suit? c)Whether they are entitled for any relief? The additional issue framed reads as follows: Whether the death of Jambu @ Shanmugam, who was under judicial custody, had occurred due to carelessness and negligence of defendants? https://hcservices.ecourts.gov.in/hcservices/ 9.In respect of the additional issue, the trial court found that it was admitted that Jambu @ Shanmugam, the husband of first respondent, was involved in Crime No.1096/1998 at Bhavani police station and charged with an offence of Section 302 IPC. He was arrested and remanded to Central Prison, Coimbatore as prisoner No.6030. On 7.4.1998, he was escorted by respondents 5 and 6 to the Judicial Magistrate Court, Bhavani and his custody was extended. On way back to Coimbatore Central Prison, he got into the bus with escorts from Bhavani to Erode in route No.83 Town bus. When the bus was near to Flower Bazaar Junction, Bhavani, 10 persons with deadly weapons had entered into the bus and forcibly took out Jambu @ Shanmugam from the bus. They murderously attacked him. He was killed. It is since the death had occurred in judicial custody, the plaintiffs (contesting respondents) have sought for compensation. It was claimed by the appellants that there was no threat perception was informed to the department that his life was in danger. There was no negligence on the part of the Armed Reserve police escorts respondents 5 and 6. In fact, they had opened fire at the relevant time. Hence, there was no necessity to grant compensation. 10.The trial court found that the fact that he was in judicial custody and was escorted by respondents 5 and 6 in the bus was an admitted fact. But the evidence of P.W.1 Damayanthi, the first respondent and P.W.2 Kandasamy, friend of Jambu @ Shanmugam, insofar as they have alleged that while Jambu @ Shanmugam had requested for security with jail officials and that the accused were likely to be present in the court and despite such knowledge, the police were not showing enough diligence was not believable since those facts were not pleaded in the plaint. He had accepted the evidence of D.W.3, Jail Superintendent Rajendran (eight respondent) that late Jambu @ Shanmugam had never requested for any higher security. Even respondents 5 and 6 who were examined as D.W.2 and D.W.1 respectively had denied that the deceased Jambu @ Shanmugam had ever forewarned them about the possible danger to his life. Therefore, the allegation of the plaintiffs that late Jambu @ Shanmugam had demanded additional security and had forewarned them was not believable. But, the admitted fact was that late Jambu @ Shanmugam, an under-trial prisoner, was accompanied by the armed escort were returning from Bhavani Court to the Central Prison, Coimbatore. It was the duty of respondents 5 and 6 to entrust him in the Central Prison. During their bus travel, they themselves were threatened by the accused with aruvals. But inspite of it they took appropriate security measures to protect the deceased was not pleaded by way of any written statement. No reason was given for not filing written statements even though they were parties to the suit. Therefore, the evidence of respondents 5 and 6 (who were examined as D.W.2 and D.W.1) to the effect that they took appropriate measures to protect the deceased was unbelievable. It was clear that they had failed to discharge their duties. They were negligent and showed carelessness in saving the life of Jambu @ Shanmugam. https://hcservices.ecourts.gov.in/hcservices/ 11.The trial court referred to Police Standing Order 638, which laid down as to how a remand prisoner was to be taken from the prison to the Court and vice versa. An accused cannot be treated disrespectfully. He should not be inflicted with any torture. But, in his evidence Rajasekaran (who is R-6 and D.W.1 before the trial court) had stated that because Jambu @ Shanmugam was an old criminal and an accused in a murder case and had bad antecedent and that he was likely to escape from the custody, he was hand-chained by him and Krishnan (R-5) and came to Andiyur diversion. For menacling a remand prisoner whether any permission was obtained from the Court was not explained by them in their evidence. It is only because the accused was hand-chained, he was killed on his return journey to the prison. Therefore, the charge of negligence was clearly proved. D.W.4, Sathyanathan was examined with a view to mark Ex.D.2 which is a letter sent by the first appellant to the third appellant in which police opening fire was sought to be justified. But, in Ex.D.2, there was no assertion that the incident did not take place due to the negligence and carelessness of the armed escorts. Hence Ex.D.2 cannot be relied upon to show that the State, i.e. the first appellant was supporting the stand of respondents 5 and 6. With reference to the role of seventh respondent, the Inspector General of Police (Prison) and the eight respondent, Superintendent, Central Prison, Coimbatore, there was no evidence that there was any negligence on their part in the murder of late Jambu @ Shanmugam. Therefore, the trial court on the basis of these findings held that apart from the responsibility of respondents 5 and 6, the appellants were also clearly responsible for the death of Jambu @ Shanmugam. 12.With reference to the relief, the court below found that the family members of Jambu @ Shanmugam were entitled for compensation. But on the quantum of compensation, the evidence of respondent No.1 Damayanthi was that the deceased was working in a dyeing unit as a dyeing master and was getting Rs.1000/- per week and Rs.4000/- per month approximately. But, P.W.2 Kandasamy and P.W.3, Muruganandam who were the friends of deceased had stated that the deceased was employed in the Super Dyeing Factory as a Dyeing Master, but that factory was closed during 1996 itself. They were not aware under whom the deceased was working at the time of his death, i.e. 7.4.1998. Since there is no clear evidence about the actual employment details and the last drawn salary of the deceased, the trial court did not believe the statement of the first respondent examined as P.W.1 that her deceased husband paid Rs.3000/- per month to his family. Therefore, in the absence of any clear evidence, the court below found that approximately the deceased would have earned Rs.900/- per month and would have given to his family Rs.600/- per month. Considering that the deceased was involved in a serious crime and had uncertain future, the court decreed the suit for Rs.1 lakh as compensation payable to respondents 1 to 4. While ordering compensation, the court below held that the compensation will have to be paid by the defendants excluding respondents 7 and 8, i.e. the four appellants and respondents 5 and 6. The said amount has to be paid together with https://hcservices.ecourts.gov.in/hcservices/ interest at the rate of 7.5% and that proportionate cost of Rs.2055/- was also ordered. The case as against respondents 7 and 8 was dismissed. The suit was decreed by a judgment and decree, dated 10.2.2006. 13.In the appeal memo filed by the appellants including the State, it was contended that the trial court ought not to have disbelieved the evidence of D.W.1 and D.W.2 who were the only eyewitnesses. The deceased was involved in several criminal cases and never had known source of income. Even though no request was made by the deceased, adequate police protection was given to him. It was impossible that in a crowded bus with full of school children and women, any weapon could have been used against the assailants. The police escorts were also prevented by the assailants by having long knife held at their throats. They simultaneously attacked the deceased. The assailants comprised of more than 10 thugs and were armed with deadly weapons. The escorts had also received serious injuries. It must be noted that the appeal itself was filed after 516 days delay. 14.A memo, dated 18.8.2010 was filed by Mr.N.Manoharan, the counsel for respondents 1 to 4. In the memo, he had stated that the assailants of Jambu @ Shanmugam were tried and convicted by the First Additional District Court, Erode under Sections 147, 148, 302 IPC. The accused have filed appeals before this court. In their appeals, four of them were acquitted and against the remaining six, it was dismissed by confirming their conviction. The accused had also undergone sentence and have come out in the year 2009 on remission. 15.The grounds raised by the appellants cannot be countenanced by this court. The trial court had rightly found that the deceased was kept under hand-chain without the order of the court. It had prevented the deceased from escaping from the attack of the assailants. Further Ex.D.2 did not absolve two armed escorts from their negligence. It merely justified the police firing that took place after the assault. When the two armed escorts were armed with rifles, but the assailants were having deadly weapons which means only aruval, still they were allowed to execute their crime and ran way from the place is unbelievable. In any event, when a person was under the judicial custody on the order of a court, it is the duty of the State to protect the life of that individual until he was tried and convicted by the court. This was even if he had committed an heinous crime. The responsibility of bringing the accused from the prison to the court and taking him back is entirely vest with the police and that the State is vicariously liable for the life of such accused. The mere fact that the statement of the first respondent is not believable or the evidence of P.W.2 and P.W.3 were also not believable about the possible danger to the life of the deceased when he was produced before the Court, it must not absolve them. In such circumstances, the police should have had their own intelligence inputs and should have saved the life of the deceased even though he may be a desperado. First of all, the police ought not to have taken him in a town bus and https://hcservices.ecourts.gov.in/hcservices/ should have taken him in a police van directly to the prison. Having failed to save the life of the deceased, despite he was labelled as a desperado, this court is not inclined to interfere with the well reasoned judgment of the trial court. 16.The grounds raised by the appellants have no substance. Since the death had taken place only in a judicial custody and despite being escorted by the two armed guards, the State must bear the responsibility for the death of the deceased Jambu @ Shanmugam. It must be noted that respondents 5 and 6 did not file any appeal though they were also faced with joint and severable liability and that the finding was that it was their negligent and careless that lead to the death. 17.In this context, Mr.N.Manoharan, the learned counsel relied upon a judgment of the Supreme Court in Murti Devi Vs. State of Delhi and others reported in 1998 (9) SCC 604. In that case, the accused who was in judicial custody in Tihar Jail was seriously assaulted inside the jail by the co-prisoners. On account of the injuries suffered, he died despite being admitted in an hospital. The Supreme Court found that the death of an under-trial prisoner who was assaulted by his co-prisoners was due to case of gross negligence as the jail authorities have failed to save the life of the prisoner. The Supreme Court had observed in paragraph 1 as follows: "1.....There is no manner of doubt that because of the gross negligence on the part of the jail authorities, the said Raj Kumar, an undertrial prisoner in Tihar Jail, was subjected to serious injuries inside the jail which ultimately caused his death. It has been stated by the petitioner, Murti Devi, the mother of the said deceased, that the said Raj Kumar was the only bread-earner in the family and today she has become a helpless widow with three sons to be maintained. As it was the bounden duty of the jail authorities to protect the life of an undertrial prisoner lodged in the jail and as in the instant case such authorities had failed to ensure safety and security to the said unfortunate undertrial accused, we direct the respondent to pay a sum of Rs.2,50,000 to the petitioner Murti Devi within a period of six weeks from today...." 18.Further, the Supreme Court in Nilabati Behera Vs. State of Orissa reported in 1993 (2) SCC 746, in paragraphs 17, 29 and 31 had observed as follows: "17.It follows that ‘a claim in public law for compensation’ for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such https://hcservices.ecourts.gov.in/hcservices/ rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is ‘distinct from, and in addition to, the remedy in private law for damages for the tort’ resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy..... ...... 29..... A custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. It is not our concern at this stage, however, to determine as to which police officer or officers were responsible for the torture and ultimately the death of Suman Behera...... ..... 31.It is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. I agree with Brother Verma, J. that the defence of “sovereign immunity” in such cases is not available to the State and in fairness to Mr Altaf Ahmed it may be recorded that he raised no such defence either." 19.Further, the Supreme Court in Ajab Singh Vs. State of U.P. reported in 2000 (3) SCC 521, in paragraphs 8 and 9 had observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "8.If we may be permitted to use the same words, what appears to us to be a concocted story is that set out in the respondent’s affidavits. They are, to our mind, desperate attempts to avoid responsibility for acts committed while Rishipal was in judicial custody. There can be no doubt that the respondents have not investigated the cause of death of Rishipal as they ought to have done or that, at any rate, they have not placed all relevant material before this Court. They have attempted to pull the wool over the eyes of this Court. We do not appreciate the death of persons in judicial custody. When such deaths occur, it is not only to the public at large that those holding custody are responsible; they are responsible also to the courts under whose orders they hold such custody....... 9.The State of Uttar Pradesh is responsible in public law for the death of Rishipal and must pay compensation to the petitioners for the same. (See D.K. Basu v. State of W.B.1) We think that it is appropriate, in the circumstances, to order the State of Uttar Pradesh to pay to the petitioners compensation for the death of Rishipal in the sum of rupees five lakhs within three months......" 20.In the light of the above, the grounds raised by the appellants are without substance. The State inspite of filing such an appeal ought to have compensated the family of the deceased who is the lone breadwinner of the family. The deceased cannot be