B.P. Dharmadhikari, J.
1. By this petition filed under Article 226 read with Article 21 of the Constitution of India, the petitioner - wife of the deceased and his brother claim a direction to Respondent No.3 - Central Bureau of Investigation (CBI) to carry out investigation into the death of Biju Maharu Kolla and to submit a report to this Court. A direction to register First Information Report (FIR) against the concerned Police officers who killed Biju, for offence under Section 302 of Indian Penal Code (IPC), is also sought. A mandatory compensation of Rs. One crore is also prayed for.
2. Petitioner No.1 is wife of the deceased - Biju while petitioner No.2 is his real brother. They state that Biju had purchased a Tractor on bank loan and used to let it out for agricultural work. At relevant time, his tractor was at work at village Kerkatta, at a distance of 25 kms from village -Vikaspalli where he and his family resided and had about 3 Acres of agricultural land. To supervise the work there, Biju on 14.06.2014 left his house early in the morning. He left his village wearing a black striped white shirt and black pant. He had to pass through Mandoli forest. The petitioners claim that on way, Biju was stopped, his bike key was confiscated and he was murdered by Police by shooting him in head, neck and chest. It was later on shown as an encounter with naxals and Police Officers claimed that they destroyed Training camp which was held in the forest.
3. Petitioner No.2 had come back on vacation and he had to go to Gadchiroli to collect Medical certificate. He, therefore, left his village at 11.00 AM on 14.06.2014 along with his friend Devrao Dobala Wadde. As there was heavy rains, he decided to go to Kerkatta village where his tractor was working. At Kerkatte, driver of the tractor informed him that Biju had not come. He then stayed with his friend at Kerkatta near Tractor in the field. On 15.06.2014, they started back for village - Vikaspali and came across the motorcycle of Biju, on the path of Mandoli forest. He searched for Biju in adjacent area but in vain. After reaching home, he enquired about Biju and learnt that Biju had not returned. Hence, along with others, they searched in nearby villages. On 16.06.2014, petitioner Nos.1, 2 and 6 to 7 other villagers went to Sub::: Police Station Kasansur to register missing person complaint. Shri Wagh, in-charge at concerned police station refused to register it and advised to search for him for two days more. Then petitioner Nos.1 and 2 went to Potegaon in search of Biju.
4. At Potegaon, petitioner No.2 read the news about police encounter, however, nobody in that village was aware about it. Newspaper also carried photograph of a naxalite killed by police and that photograph was of Biju. Petitioner No.2 then contacted local MLA Shri Namdeo Usendi and on 17.06.2014, at his intervention, family members of the petitioners were permitted to see the body which was kept at mortuary in Nagpur. The petitioners alleged that though body could have been kept at Gadchiroli mortuary, it was deliberately taken to Nagpur. The body was in rotten state and stinking. The police authorities then at the cost of department, delivered the body of Biju at village - Vikaspalli, where he was cremated on 18.06.2014.
5. On 18.06.2014, Respondent No.1 - Superintendent of Police, issued a statement to the Press indicating that Biju had a naxal profile and a pistol was found with Biju. According to the petitioners, FIR does not reveal finding of any such pistol. Biju was alleged to be a militia member and according to the petitioners, such members work underground and never wear naxal outfit while according to police Biju was found wearing green uniform. The petitioners plead that these inconsistencies show that encounter was fake. Respondent No.1 ought to have registered a FIR and carried out investigation in said episode in fair and free manner but all efforts were made to protect guilty police officers. Petitioner No.2 learnt that FIR was registered against Biju for the offence punishable under Sections 307, 353, 143 of IPC along with Arms Act at Kasansur Sub-Police Station where the petitioners had gone to lodge missing report on 16.06.2014. The officer in-charge of that Police Station had not disclosed incident of FIR or firing. FIR stated that 308 rounds from various guns, 1 bomb and 1 granade was used by the police officers. While Police team was on search, they were attacked by naxals ensuing into a fierce combat at about 9.00 AM. The petitioners pleaded that in this situation, finding of only one pistol reveals falsehood therein.
The petitioners also state that contradictory claims have been made by the Police department with media and none of the villagers residing in the vicinity were called for carrying out spot panchnama. As per FIR against Biju, he was taken to Primary Health Centre Potegaon located at 20 kms from Police Station Kasansur. Spot of encounter and Sub-Police Station Kasansur are separated by a distance of 10 kms but no FIR was registered at Kasansur, though an anti dated FIR is shown to be lodged by giving it '0' number on 16.06.2014 at Gadchiroli,. The petitioners also submit that number of injuries on the body of Biju do not match with number of rent over or holes on the shirt of Biju. Petitioner No.2, therefore, approached Police Station on 21.06.2014 and 25.06.2014 to lodge FIR and to seek investigation into it. However, he was turned down without giving any reasons, though a cognizable offence was made out.
6. Petitioner No.2 then approached the Collector, who directed probe. The Sub-Divisional Police Officer called for statements from the witnesses and other concerned persons. The relatives and people knowing Biju recorded their depositions in the form of affidavits and supported the petitioners. The SDPO did not visit the spot and thus enquiry conducted by him was not free and fair.
7. The petitioners pointed out that thus the respondents refused to honour the judgments delivered by the Hon'ble Apex Court and guidelines issued by the National Human Rights Commission by avoiding to register FIR and in the process protected murderers. It is in this background that this Court has been approached.
8. We have heard Shri Rathod, learned counsel for the petitioners, Shri Ukey, learned Additional Government Pleader, for respondent Nos.1 and 2 and Shri Ahirkar, learned counsel for respondent No.3.
9. After narrating the facts in brief, Shri Rathod, learned counsel invited our attention to the order dated 30.06.2015 passed by this Court and submitted that the encounter is alleged to have taken place in a nalla. In this situation, according to him, when shirt worn by Biju had holes, why his full pant was not torn if injury to his leg was caused in the encounter. He also contends that absence of rigour mortis is the important factor which needs to be taken note of. He has invited our attention to a drawing placed on record to urge that injuries sustained by Biju are possible only if he was forced to sit on his knees bent forward with his both wrists near chin and arms folded with elbows under chest near body. It is only in this position that entry and exit points of bullets as explained in postmortem or by the police can be explained. He states that thus the path or trajectory of travel of each bullet in the body of Biju shows that Biju was apprehended by police and thereafter mercilessly killed by firing bullets from close range, while he was begging for his life. He points out that all these bullets are allegedly fired through a 9 mm pistol and FIR though dated 14.06.2014 is actually lodged on 16.06.2014. It does not make any reference to nalla and 9 mm pistol was not with the deceased. He also invites attention to FIR lodged by the petitioners on 21.06.2014.
10. Our attention is drawn to report of preliminary enquiry submitted by SDPO and it is contended that therein reference to nalla as spot of incident appears. However, body of Biju is not found in nalla and there is no pistol with it. He invites attention to post mortem report to demonstrate that it does not mention that body was initially taken to Potegaon PHC at 4.00 PM. He further states that except for three bullet wounds, there were no other wounds on the body and rigor mortis was also found absent. Each wound had a dirt collar near its entry place. He has invited attention to assertions in this respect in his rejoinder and to Book on Medical Jurisprudence written by Modi. He states that spot panchnama prepared on 19.06.2014 is also looked into in this enquiry report and report received from Forensic laboratory finds consideration. However, there is no other mode to find out who could have used pistol which caused injuries to the deceased. Our attention is drawn to book authored by Sharma on Ballestic, to explain position of injuries on the deceased. Shri Rathod, learned counsel contends that in the preliminary enquiry, there is no mention of use of pistol.
11. To rebut the contentions of the respondents about availability of alternate remedy and option of filing private complaint, he seeks support of the judgment in the case of State of Maharashtra vs. Farook Md. Kasim, reported at AIR 2010 SC 2971. He states that in such matters of violation of human rights, that too by the police authorities, harsher punishment is essential. To buttress this submission, he draws support from the judgment in the case of Prakash Kadam vs. Rampradad and Anr., in Criminal Appeal Nos.1174-1178 of 2011 delivered by the Hon'ble Apex Court on 13.05.2011.
12. Shri Ukey, learned Additional PP invites attention to the affidavit filed on record by Respondent No.1 on 27.08.2015. He submits that after death of Biju, naxals erected monuments in his memory or honour, and such a monument was also seen on 02.08.2014. They also distributed pamphlets and mentioned the encounter with police as fake encounter.
13. Explaining the spot and situation of encounter, the learned Additional PP submits that number of casualties or number of injured personnel on either side are not decisive in such circumstances. He states that FIR is not an encyclopedia and during investigation, several factors become apparent. Though FIR does not mention nalla, nalla is reflected in the spot panchnama.
14. To explain three injuries on the deceased caused by 9 mm pistol, he has invited our attention to FIR pointing out type of weapons and explosives used by the police machinery and also to post mortem report. He further submits that for every bullet wound, there has to be a dirt collar. Post mortem report, particularly clause 8 therein dealing with conditions of clothes is pressed into service to show that for every bullet wound, there is a tear and, therefore, there are six wounds on body even as per shirt holes. A diagram with description of rent over clothes and wounds (page 135 of record) is also relied upon by him. The subsequent report submitted by the Doctor in this respect is also explained by urging that the Doctor was not given access to that shirt again on 15.11.2014. It is pointed out that post mortem itself was videographed and the Doctor had access to that videograph. Report of Doctor dated 15.11.2014 on bullet wounds and corresponding holes in shirt of Biju is based on that videographed shooting. The shirt carries three entry holes and three exit holes.
15. On absence of rigor mortis, the learned counsel states that it defers from case to case. He draws support from book of Modi to substantiate this submission.
16. The encounter was with naxals representing Kasansur LOC and, therefore, after encounter, it would have been risky for Police force to go to Kasansur Police Station. Potegaon PHC is on way to Gadchiroli and hence after taking the deceased to Potegaon PHC first, police squad went to Gadchiroli where FIR is registered as '0' FIR . He submits that in such case, the normal and standard practice has been followed by the police force.
17. The absence of rigor mortis is again explained by him by inviting attention to the fact that there is every possibility that rigor mortis broke or disappeared and it may be because of travel on rough road or handling of body. He draws support from Book authored by J.B. Mukharjee (4th Edt.) for this purpose. He submits that rigor mortis at the most may enable one to guess estimate time of death. Book of Modi is also relied upon by him for this purpose. The judgment in the case of Baso Prasad Vs. State of Bihar reported at (2006) 13 SCC 65, particularly paragraphs 19 to 22 are pressed into service. According to him, rigor mortis may have been partially broken when after encounter, body was moved.
18. About dirt collar, he invites attention to commentary by Dr. C.K. Parikh on Medical Jurisprudence and Toxicology. He points out that burning, scorching were not seen and there was no smoke powder or its residue. He also relies upon "fire arms in criminal investigation and trial" by B.R. Sharma, to urge that as observed by the author, the sign of dirt ring is at entrance wound and it cannot be a guide to the range from which firearm was used. To explain what is close shot, near shot and a distance shot, he refers to Textbook of Forensic Medicine and Toxicology by V.V. Pillay (16 th Edt.-Paras). He further makes a statement that charge sheet is ready for filing but because of present pending petition, it has not been filed so far.
19. According to the respondents, one 9 mm pistol was with police force on the spot. One was lost by the police force in past previously and it was also found on the spot. However, this was never used in the encounter, though in working condition. There is difference in size of bullet wounds because all bullet wounds are not caused by the same weapon. He presses post mortem report into service for said purpose. He concludes by urging that as in this matter, there are inconsistencies in the story narrated by the Petitioners, the Petitioners must be asked to file private complaint and this Court should not use its extra ordinary powers in this matter.
20. In reply arguments, Shri Rathod, learned counsel submits that the Court of J.M.F.C. had received FIR allegedly dated 16.06.2014 on 23.06.2014 though it is claimed that it was sent on 17.06.2014. He, therefore, submits that the respondents are not acting honestly in this matter and hence investigation by CBI was necessary. There were 63 officers with satellite phones and hence additional help could and should have been sought. He also argues that when the petitioners visited Kisansur Police Station on 16.06.2014, they were not aware of any firing or FIR. He, therefore, submits that the alleged FIR is ante dated.
21. Inviting attention to the reply affidavit filed on behalf of Respondent No.1 on 12.12.2014, he states that there only three holes on alleged uniform of the deceased have been disclosed. Thus, story of six holes is by way of after thought and cannot be accepted. He further contends that the alleged videography was never disclosed to the petitioners.
22. He has further stated that witnesses to alleged ambush or encounter whose statements were recorded by the police under Section 161 of Criminal Procedure Code, have filed affidavits contradicting their earlier statements before this Court. Report of SDPO also relies upon these statements and hence, said report is also liable to be discarded.
23. Inviting attention to use of words "fresh injuries" in post mortem report, he contends that the deceased, therefore, was alive for quite some time and contention that he was killed in the morning on 14.06.2014 is, therefore, incorrect. It is contended that, therefore, there is no mention of the fact of the deceased being taken to Potegaon PHC.
24. If the death has taken place about 12 hours back, the process of putrefaction starts. To explain it, he draws support from the book of Modi and Tailor. He points out that this process cannot be avoided or broken and as the Doctor conducting post mortem did not notice any putrefaction, the story of prosecution cannot be accepted. He reiterates the contention on how three bullet injury wounds with entry and exit points as seen in postmortem could have been caused. He also attempts to urge that if the picture drawn by the prosecution on path taken by each bullet within the body of deceased and presented to this Court is accepted, then the wound 'A' is not as per its description in post mortem. He again cites book written by B.R. Sharma to point out differences between wounds caused by different types of bullets. He relies heavily upon a statement in the book authored by V.V. Pillay that the scorching effect, singeing and snudging may be absent, if firing has occurred through clothing. He states that here uniform allegedly worn by the deceased was thick and hence this material also cannot help police authorities.
25. Shri Ahirkar, learned counsel appearing for respondent No.3 - CBI submits that in present matter when charge sheet is ready and can be filed, the petitioners must be asked to participate in those proceedings and raise appropriate grievance in that Court by filing the independent proceedings. He draws support from the judgment in the case of Sakiri Vasu vs. State of Uttar Pradesh and Ors., reported at (2008) 2 SCC 409.
26. The petitioners have produced before this Court a written report dated 21.06.2014 addressed to the Officer in-charge of Police Station Kasansur. This report is by petitioner No.2. Petitioner No.2 has in said report stated that he is a student of B.A. Final year. He then mentions about deceased leaving on 14.06.2014 early in the morning, he himself proceeding to Gadchiroli, starting of rain, his night stay at Kerkatta and ultimately finding motor cycle of his brother at Mandoli forest. He mentions that at Mouza Potegaon at Pan stall on 16.06.2014, he saw news item and photograph of his brother Biju. He then mentions visit to MLA Dr. Usendi and learning about taking of body of the deceased to Nagpur. He states that on 16.06.2014 in the night, they stayed at Gadchiroli. On 17.06.2014, as advised by MLA, he contacted Police Superintendent, Gadchiroli. The said officer told him that the mother of petitioner No.2 and other relatives had already contacted him and that they had gone to Nagpur. He then saw photograph of the deceased in Mobile phone of Police Superintendent. He also states that he raised question as to how uniform of naxals was put on the body of the deceased. He also demanded the body and Superintendent of Police told him that his mother and other persons would bring it from Nagpur. The Superintendent of Police then sent him to SDPO and SDPO recorded his statement. Body was then brought to Gadchiroli at costs of police at 8.00 PM and then, it was also delivered at the village of the petitioners. Last rites were performed on 18.06.2014. He has mentioned that when body was delivered in his possession, it was stinking and they could not verify the part or place of body where the injuries were sustained by the deceased. He has further mentioned that when deceased had left for Kerkatta, he was wearing black and white strips shirt and black pant. He has alleged that the police killed his brother by firing a bullet in his hand and also put on green uniform on the body.
27. The statement of one Nangsu Tirukola dated 14.07.2014 is also available on record. He has mentioned that the deceased had worn a shirt having black and while blocks (squares) and black pant when he left for Kerkatta. In the statement dated 14.07.2014 given by one Sannu Kotu Matami, shirt of the deceased is described on the same lines. The statement of Sitaram Maharu Kola dated 14.07.2014 recorded on oath shows that the deceased was wearing a shirt with black and white blocks and a black pant on 14.06.2014.
28. It, therefore, appears that there is some inconsistency about the type or pattern of shirt allegedly put on by the deceased on 14.06.2014. He left his house in the morning. The records also show that one Samari Maharu Kolla, aged about 19 years had told petitioner No.1 that on earlier day in the morning, she had heard noise of firing at Mandoli forest.
29. In this respect, narration of story by Jaini Maharu Kolla appears to be different. She states that they initially went to Kasansur Police Station for lodging report of lost person and thereafter they came to Potegaon, where they saw photograph of her son in the Newspaper. In the statement given to SDPO, she has mentioned that petitioner No.2, her daughter-in-law Chhaya and other family members went to Kisansur Police Station to lodge complaint. Varlu, the elder brother of her daughter-in-law and one Janu Kotavi then came to their house and at that juncture, Samari Kolla (aged about 19 years) informed about noise of gun shots at Mandoli forest. The brother Varlu of her daughter-in-law informed that motorcycle of the deceased was standing on said road. Varlu apprehended that Biju may have been injured in firing and, therefore, he felt need to go to Gadchiroli to verify. She also expressed her desire to accompany and came on motorcycle with them to Gadchiroli. Enquiry was made at Government hospital and then the Police Officer at Police Outpost had asked them to contact Superintendent of Police. At that time, they have shown Aadhar card, Election card and photo of Biju to Superintendent of Police and then Superintendent of Police enquired whether their son was a naxalite.
30. Thereafter one woman employee took them to other office where enquiry was made and food was served to them. They were asked to identify photographs on computer and they identified photograph of Biju. Then they were told that his body was taken to Nagpur. Hence, on 16.06.2014, they stayed at Gadchiroli and went to Nagpur on next day. They were shown the body in Government hospital at Nagpur and they returned with body to Gadchiroli at 8.00 PM. They reached their village in the morning on 18.06.2014. Thus, there is difference in narration of story by this witness.
31. Varlu has supported the story of hearing of firing by Samary Kolla, visit to Gadchiroli, identifying photo on computer and going to Nagpur. Keye Jogi Kolla has also supported hearing noise of gun firing towards Mandoli forest area on 14.06.2014. Even Dalsu Gonglu Wadde has supported this firing on 14.06.2014 in the morning.
32. Thus, mother of the deceased got knowledge either at Gadchiroli itself or at Potegaon on 16.06.2014 that her son was no more. Her reasons for coming to Gadchiroli on 16.06.2014 are also at variance with each other. The circumstances in which petitioner No.2 claimed that he got knowledge, are already mentioned by us above. This gives rise to few vital questions which can not be resolved and answered here.
33. One Kanu Mahu Pada examined as witness No.10 before SDPO has stated that his village was in naxalite affected area and two days prior to incident, there was visit by naxalite persons. He heard noise of firing between 9.00 AM to 10.30 AM on 14.06.2014 at Mandoli to Paddy forest. He also learnt that one Biju Maharu Kola was killed in an encounter but he was not knowing that person.
34. All these facts, therefore, show some inconsistency in the story of the petitioners.
35. Before embarking upon the alleged lacunae in investigation which the petitioners attempt to demonstrate, we have to keep in mind the fact that as per prosecution, investigation is already over and charge sheet has not been filed because of this Criminal Writ Petition. If the charge sheet is filed, the entire material looked into by the Investigating Agency will become available to the Competent Court and also to the present petitioners. In the light of material looked into, there,the contentions raised before us can then be better appreciated.
36. The copy of FIR lodged by Police Sub-Inspector -Praful Prabhakar Kadam reveals that the incidence has taken place when the Police party was carrying out search in Mandoli forest area on 14.06.2014 at about 9.00 AM. It is mentioned that about 30 to 40 men and women naxalites in green uniform were hiding and suddenly started firing at Police party. The Police officer also gives detail and points out the weapons and material seen scattered on the spot. A male naxalite was found lying motionless and he was taken in custody. The ammunition used by Police party is also detailed therein. It is mentioned that superior Police officers were informed by satellite phone and the naxalite who was lying on the spot was lifted and carried to PHC Potegaon where Medical Officer declared him dead. This FIR was registered as Crime No.00 of 2014 on 14.06.2014 at Gadchiroli and thereafter the same was transferred to Police Station Kasansur where it was received on 16.06.2014. The Sub Police Station, Kasansur recorded offence and then its copy was sent to JMFC, Aheri.
37. The report lodged by Petitioner No.2 - Sitaram on 21.06.2014 shows that on 16.06.2014, he had gone to Kasansur to lodge a report of his missing brother. He then states that he came back to his village Vikaspalli and thereafter total 8 persons went to Mouza - Potegaon to search for Biju. They enquired and on pan stall, in Newspaper, saw photograph of his brother. His statement recorded by the Police on 25.06.2014 is on the same lines. Mother - Jaini of Biju has mentioned that her younger son Sitaram and 6 to 7 other persons left for lodging report at Kasansur Police Station. Shri Varlu Pandu and one other person went to Mouza - Potegaon in search of Biju. At that time she saw photograph of his son in the Newspaper and she identified him. Then she states that they went to Hospital at Gadchiroli and then to the office of Superintendent of Police. In the report of SDPO, her statement has been referred to. She points out that her daughter Samary Kolla, aged about 19 years had disclosed about firing at Mandoli forest and then Warlu Pandu voicing the need of proceeding to Gadchiroli to find out whether Biju is injured. Jaini then told him that she would accompany Varlu Pandu and she came directly to Gadchiroli. She does not disclose her visit to Potegaon or seeing photograph of Biju in the Newspaper at Pan stall at Potegaon and identifying it. Her statement reveals that she for the first time saw the photograph of the deceased on the computer.
38. Thus, in the story narrated by close relatives of Biju, there is material contradiction which cannot be explained at this stage. This is at stage when the factors like influence of Police or wrong recording of version by Police, had still not entered the story. Whether Warlu and Jaini saw photograph at Potegaon, whether Jaini saw and identified the photograph at Pan stall at Potegaon, whether she for the first time saw photograph at Gadchiroli are the moot questions which raise the cloud on Petitioners' bonafides.
39. The difference or inconsistency about the description of shirt allegedly put on by Biju when he left on 14.06.2014 to Vikaspalli for Kerkatta is also noted by us above. These facts, therefore, throw doubt on correctness of the pleadings of the petitioners. The petitioners do not disclose that they have knowledge of the fact of hearing of firing at Mandoli forest.
40. It is no doubt true that before this court the persons whose statements were recorded by SDPO have given affidavits to the contrary and contended that the Police authorities have recorded twisted version of their statements. This cannot be accepted since the petitioners on 16.06.2014 itself contacted local MLA - Dr. Namdeo Usendi and he had helped them.
41. In this situation, when enquiry was being conducted by SDPO, we are not in a position to hold in this jurisdiction that an incorrect statement was recorded by said officer. The persons accompanying the witnesses or the petitioners could have immediately raised grievance about such incorrect recording. Samary Kolla or other persons who disclosed hearing of sound of gun-shots in the morning at Mandoli forest are not examined before the SDPO by the petitioners. Thus, the very narration of events leading to or resulting in a cause of action is shrouded with suspicion. The Petitioners do not point out why the police force should apprehend Biju or then kill him and then create a farce of an encounter. Facts noted in spot panchanama show an encounter and if, fabrication of a story was required, the police force could have done it with more proficiency without giving the petitioners any ground to doubt. The size of the bullet wounds show that bullets may not have been fired from the same weapon. Videographic film of the Post Mortem shall be also seen then. When law as laid down in Sakiri Vasu vs. State of Uttar Pradesh and Ors. (supra) by the Hon'ble Apex Court, particularly paragraph Nos.17 to 23 therein is seen, we find no exceptional case being made out to intervene under Section 482 of the Cr. P.C. or Article 226 of the Constitution of India.
42. In this situation, we do not find it proper to dwell more on any of the issues argued by the parties. The Petitioners can raise their grievance more effectively with relevant material after the Police presents charge sheet against deceased Biju and, at that stage, the petitioners can also seek appropriate relief. At that juncture, the Trail Court can comprehensively evaluate the rival contentions and reach suitable conclusion. That consideration must be uninfluenced and uneclipsed by the observations of this Court. To preserve its sanctity, we have not delved more into the controversy and refrained from recording any finding on the facets presented to us by the respective learned Counsel.
43. As a result, all the rival contentions are kept open and the Criminal Writ Petition is dismissed. No order as to costs.