THE HON’BLE SRI JUSTICE G.CHANDRAIAH S.A.NO.1021 OF 2009 JUDGMENT Aggrieved by the judgment and decree dated 31.7.2009 passed by the I Additional District Judge at Nizamabad in A.S.No.85/2007 in confirming the judgment and decree dated 28.8.2007 passed by the court of Senior Civil Judge, Nizamabad in O.S.No.91/1997 in awarding damages to the plaintiff, for the death of her son in the fake encounter, the defendants – Government in the original suit, filed the present second appeal. 2. The plaintiff is the resident of Badsi village, Nizamabad mandal. Her case is that her son Errolla Buchanna studied up to SSC and that he is aged 20 yeas. By doing petty jobs, he used to earn Rs.2,500/- per month and maintain his family consisting of himself and his mother i.e., the plaintiff. Her further case is that Buchanna was not an extremist. They attended a marriage ceremony of their relative Srinivas at Domakonda and that while returning, on the evening of 5.4.2004 they stayed back at Nizamabad in the house of one Ramaiah, who is their relative, as he arranged a feast on the occasion of marriage. While so at about 9.00 a.m. on the said date, three jeep loads of police party suddenly appeared and took Buchanna, stating that he is required for interrogation in connection with killing, by the peoples War group radicals in Badsi village and assured his return in the evening. But they killed him on 6.4.1994 at Triambakpet in Dichpally mandal and issued press statement that anti-naxalite combing party while searching the forest around Triambakpet, found some unknown persons attacking the police party that the police party replied with guns in self defence and after firing was over, the surroundings were searched and found the corpse of unknown extremist. The case of the plaintiff is that the version of the police is incorrect and as she lost her son Buchanna in a fake encounter, sought damages of Rs.1,00,000/-. 3. On the other hand, the case of the defendant/appellant in the written statement is that the police killed the deceased Buchanna on 6.4.1994 at Triambaket in the encounter when they exchanged fire in self-defense, when extremists opened fire against the police. Their further case is that the deceased was involved in number of crimes and that he is active member of CPI (ML) PWG. Therefore, they sought for dismissal of the suit. 4. From the above, the specific case of the plaintiff is that the police have taken his son on 5.4.1994 from the house of Ramaiah and killed him on 6.4.1994 at Triambakepet and branded the incident as encounter. On the other hand, the case of the police is that the deceased was an active member of CPI (ML) and when the extremists opened fire, for self defence, they opened fire and in the said incident, the deceased died. To prove her case the plaintiff was examined as P.W.1 and reiterated the averments in the plaint and she also examined P.Ws.2 and 3. P.W.2 is the mother of son-in-law of P.W.1, who stated that the plaintiff came to their hose along with the deceased to attend the marriage of her son. P.W.3 is the person who went to the hose of Ramaiah to attend the marriage reception. Both the witnesses categorically stated that in their presence police came in three jeeps and made search and forcibly picked up the deceased stating that he was required for interrogation. The evidence of P.W.2 with regard to picking up of the deceased remained unrebutted and the defendants did not lead any evidence in support of their case. Though the defendants pleaded that the deceased died in the encounter, they did not choose to examine any member of the team who were involved in the alleged encounter. Therefore, in the absence of any evidence to prove that the deceased was killed in the encounter, and based on the evidence of P.Ws.1 and 2 and further though the defendants pleaded that the deceased was involved in number of crimes, they did not produce any documentary evidence in support of their claim, both the courts below categorically recorded finding of fact that the deceased was killed by the police in the fake encounter and this being finding of fact based on evidence, cannot be interfered with in the second appeal. 5. In the second appeal, the appellants sought to contend that the courts below did not properly appreciate the evidence on record and awarded compensation without there being any evidence about the earnings of the deceased. 6. As already noted above, based on the evidence available on record, the courts below categorically recorded finding of fact that the deceased was killed by the police in the fake encounter. 7. With regard to earnings, the trial court had categorically framed an issue that ‘whether Buchanna was earning a sum of Rs.2,500/- per month by the time of his death?’. The claim of the plaintiff is that the deceased was aged 20 years and was earning an amount of Rs.2,500/- per month by doing petty jobs. The plaintiff as P.W.1 reiterated her version in the plaint and P.Ws.2 and 3 also supported her version. The admitted fact on record is that the deceased family is dependant on labour and, therefore, the trial court found that the deceased being a young person, would definitely earn an income of Rs.2,500/- per month. Further, the defendants did not lead any rebuttal evidence. Therefore, the trial court considering this factor and as the deceased was killed on the pretext of encounter and as the sovereign immunity was not available, relying on the judgment of the Apex Court reported in NILABATI BEHERA v. STATE OF ORISSA[1] awarded damages of Rs.1,00,000/-. The Government did not challenge the quantum of damages in the first appeal. Therefore, I am of the view that the awarding of the damages, is based on the evidence and the decision of the Apex court and the same does not warrant any interference. 8. For the foregoing reasons, I do not find any question of law much less substantial for interference of this court under Section 100 C.P.C. and the second appeal is devoid of any merit and the same is dismissed. No costs. AVS ------------------------------------ 30—10—2009 [1] 1993 ACJ 787