Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE25H DAY OF SEPTEMBER20123RD ASWINA1934WP(C).No. 11712 of 2012 (L) --------------------------- PETITIONER : - ----------------------- R.BALAN,, AGED50YEARS, S/O.RAGHAVAN, PUTHENVILA HOUSE, KANNIMEL DESOM, PATTAZHI VILLAGE, PATHANAPURAM TALUK, PIN-691522, KOLLAM DISTRICT. BY ADVS.SRI.P.A.CHANDRAN V.RAVEENDRAN RESPONDENTS : - ----------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2. DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM-695001.
3. DISTRICT POLICE CHIEF, OFFICE OF THE DISTRICT POLICE CHIEF, KOLLAM-691001.
4. SUB INSPECTOR OF POLICE, KANNIKODE POLICE STATION, KOLLAM DISTRICT- 691 508. BY GOVERNMENT PLEADER SMT. R. REMA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON2509-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11712 of 2012 (L) APPENDIX PETITIONER'S EXHIBITS : EXT P1 : TRUE COPY OF THE COMPLAINT DATED156.2010 LODGED BY THE FATHER OF THE DECEASED TO THE4h RESPONDENT. EXT P2 : TRUE COPY OF THE FIR NO.595/2010 DATED166.2010 OF KUNNIKODE POLICE STATION. EXT P3 : TRUE COPY OF THE INQUEST REPORT. EXT P4 : TRUE COPY OF THE POST MORTEM CERTIFICATE. EXT P5 : TRUE COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DAILY DATED176.2010. EXT P6 : TRUE COPY OF THE PUBLIC STATEMENT UNDATED ISSUED BY THE ACTION COUNCIL. EXT P7 : TRUE COPY OF THE STATEMENT DATED168.2010 ISSUED BY THE ACTION COUNCIL. EXT P8 : TRUE COPY OF THE NEWS REPORTED IN MATHRUBHUMI DAILY DATED198.2010. RESPONDENTS' EXHIBITS : NIL. JUDGMENT
NO REPRESENTATION FOR THE PETITIONER TODAY ALSO. PETITION IS DISMISSED. 25.09.2012 Sd/- S.S.SATHEESACHANDRAN JUDGE // TRUE COPY // P.A TO JUDGE DMR/- C.T.RAVIKUMAR, J.
------------------------------ W.P.(C)No.11712 of 2012 ------------------------------- Dated 24th July, 2015 JUDGMENT
The son of the petitioner's brother Kochukunju namely, Ratheesh was found missing on 13.6.2010. He was then aged 20 years. Later, his corpse was found on 16.6.2010 morning in an open pit for septic tank that was nearing completion of its construction in the residential premises of his neighbour Mr.Kalliyikkara Haneefa. According to the petitioner, on 15.6.2010 Kochukunju lodged Ext.P1 complaint with the 4th respondent regarding the missing of his son Ratheesh from 13.6.2010, but no action was taken thereon and no case was registered pursuant to its receipt. However, Ext.P2 F.I.R. would suggest that it was based on the First Information Statement given by one Ayyappan that Ext.P2 F.I.R. was registered. An inquest report was prepared on 16.6.2010 and then the body was taken to the hospital for postmortem. Ext.P4 is the postmortem certificate. No opinion as to the cause of death was recorded in Ext.P4 postmortem certificate and in the column for opinion as to the cause of death it was entered "Reserved pending the Results of chemical Examination". One Sunny @ John Philip who is a witness to the inquest stated that in the night of 13.6.2010 at WP(C).No.11712/2012 2 about 9.30 he heard a cry from the house of Haneefa and when he reached the road he had seen a person running through the courtyard on the eastern side of the house of Haneefa towards south. It is further stated that when he enquired about it he was informed that the deceased Ratheesh was seen hiding in the bathroom of the house of Haneefa when Haneefa's wife went to the bathroom to bathe and thereupon she made a hue and cry and then Ratheesh fled from there after pushing her down. He along with some others searched for Ratheesh but, in vain and according to him, later he came to know from Ratheesh's kinsfolk about his absentment. Though the wife of Haneefa had a case that Ratheesh criminally trespassed into their property and lurked in the bathroom no complaint was lodged in respect of the said incident and no crime was also registered, it is contended by the petitioner. According to the petitioner, his brother Kochukunju told him that on 13.6.2010 at about 11 p.m. the 4th respondent, the Sub Inspector of Police and his party accompanied by one Subair, the owner of "MPS cloth shop", came to his house in search of Ratheesh and the S.I. took away photographs of Ratheesh as also a note book besides directing him to produce Ratheesh in the Police Station on the next day. According to the petitioner, there was undue hasty attempt to complete the construction of the septic tank in question since the lodging of the complaint on WP(C).No.11712/2012 3 15.6.2010 and his brother, Kochukunju too, noticed some preparations to cover up the septic tank in a hasty manner despite non-completion of its construction and the information passed on to the police in that regard was ignored. It is on the next day viz., on 16.6.2010 that the corpse of Ratheesh was found in the pit dug for constructing septic tank at 6.30 a.m. The petitioner, his brother Kochukunju and others in the family got strong suspicion regarding the cause of death of Ratheesh and according to them he was murdered. It is their belief that Ratheesh's murder took place elsewhere and his body was then brought and placed in the aforesaid pit during the late hours on 15.6.2010. The contention and grievance is that the investigation in the case is not moving in the right direction and there is an attempt on the part of the investigating officers to save the real culprits. Though the names of certain suspected persons such as Subair, Sunny, Haneefa and his wife Raziya who had lastly seen Ratheesh, were intimated to the police no proper investigation was made and they were not interrogated. Though body of Ratheesh who was missing from 13.6.2014 was found on 16.6.2014 hitherto the culprits were not identified and arrested solely because of the lackadaisical attitude on the part of the investigating officers. It is in the circumstances and with the aforesaid allegations that this writ petition has been filed mainly with the prayer to issue a writ of WP(C).No.11712/2012 4 mandamus commanding the first respondent to appoint a special team of efficient police officers to investigate into the cause of death of Ratheesh and to book the accused without further delay.
2. A statement has been filed for and on behalf of the third respondent, the District Police Chief, Kollam. In paragraph 2 therein it is stated that on 13.6.2010 at about 9.30 p.m. the deceased was found, in a suspicious circumstance viz., lurking in the bath room of one Muhammed Haneefa, Shams Vilasom Veedu, Kannimeltheri at Pattazhy and he took to his heels when Smt.Raziya Beevi, the wife of Muhammed Haneefa, saw him and made a hue and cry when she went there to bathe. After three days from the incident that is, on 16.6.2010 the body of Ratheesh was found in a pit filled with water, dug for the construction of a septic tank in Haneefa's premises. It is stated therein that in this regard Crime No.595 of 2010 under Section 174 Cr.P.C. was registered at Kunnikode Police Station on 16.6.2010 at 10.15 hours based on a statement given by one Raghavan, the petitioner's father and thereafter investigation was conducted by Sri.M.G.Vinod who was the then S.I. of Police, Kunnikode Police Station. It is further stated in paragraph 4 of the statement that on 14.6.2010 at 18.30 hours Crime No.586 of 2010 under Section 511 of 380 of the Indian Penal Code was registered at WP(C).No.11712/2012 5 Kunnikode Police Station based on the statement of Muhammed Haneefa against Ratheesh, the deceased for trespassing and lurking in the bath- room. It is also stated therein that after conducting investigation, abate charge was submitted before the court on 21.6.2010. The statements in paragraph 5 assume relevance for the purpose of the case. It is stated therein that on 15.9.2010 Sri.B.Vinod, the then Sub Inspector of Police, Punalur took over the investigation pursuant to an order issued by proceedings No.2071/GL/PSD/2010 dated 6.9.2010 of Deputy Superintendent of Police, Punalur. Later, a memo vide No.09/GL/Memo/ 2010/E dated 16.6.2010 was given to the initial Investigating Officer for the serious lapses on his part by not conducting proper search in the pit and not registering the case in time. The explanation submitted by the investigating officer was not satisfactory and later, the Deputy Superintendent of Police, Kollam instructed to submit a special report in respect of the lapses in the investigation conducted by Sri.M.G.Vinod . A special report was submitted on 8.8.2010 against Sri.M.G.Vinod regarding his lethargic and irresponsible approach which actually led to certain agitations and demand to conduct a Crime Branch enquiry. It is also stated therein that a timely appropriate action and steps by Sri.M.G.Vinod could have avoided such unpleasant situations. Going by the statement, the Doctor who conducted autopsy on the body of WP(C).No.11712/2012 6 Ratheesh from Medical College Hospital, Thiruvananthapuram was questioned and the Doctor gave the statement that opinion on the cause of death could be given only after the receipt of the result of chemical examination report as also the result of Diatom test. On 18.9.2011 another Sub Inspector of Police took over the investigation and he visited the scene of occurrence and questioned the witnesses. On 16.7.2012 the certificate of chemical analysis report was received from the Department of Forensic Medicine, Medical College Hospital, Thiruvananthapuram. Later, based on the postmortem findings and the results of chemical analysis the Professor and Head and Police Surgeon, Department of Forensic Medicine, Medical College, Thiruvananthapuram furnished the final postmortem report viz., Annexure R3(b). As per the same, the final opinion on the cause of death was given as hereunder:- "Injuries if any to soft tissues could not be detected due to decomposition changes. No injury was noted to bones. Chemical analysis revealed etyhyl alcohol in viscera and blood stained fluid. Postmortem appearances are consistent with death due to drowning." 3. Subsequently, a statement was recorded from Dr.Zachariah Thomas, Associate Professor of Forensic Medicine & Deputy Police Surgeon who conducted the autopsy of Ratheesh from MCH, WP(C).No.11712/2012 7 Thiruvananthapuram. The statement recorded from him was produced along with the statement filed by the third respondent as Annexure- R3(c). As per Annexure R3(c) the cause of death is consistent with death due to drowning and approximate time of death could be 48 to 72 hours prior to the postmortem examination. The statement filed on behalf of the 3rd respondent is concluded by stating thus:- "It is most respectfully submitted that the investigation revealed that Ratheesh died due to drowning, after he fell into the pit filled with water accidentally, while he was fleeing from the bath room of one Muhammed Haneefa. He was drunk also. No other suspicious circumstances revealed during investigation and the postmortem as well as the Chemical Analysis report also would conclude to the fact that the death was due to drowning. The police has conducted a fare, proper, effective and impartial investigation into the case and the investigation in the above case is over and it is respectfully submitted that there is no need to entrust the investigation with a special team of police officers." 4. I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader.
5. According to the petitioner, his brother lodged Ext.P1 complaint to the Sub Inspector of Police on 15.6.2010 regarding the missing of his son on 13.6.2010. It is not stated in the statement filed WP(C).No.11712/2012 8 on behalf of the third respondent as to whether such a complaint was received and based on such complaint whether a crime was registered for man missing. The contention of the petitioner is that in respect of the alleged incident that the deceased Ratheesh criminally trespassed into the property of Haneefa and lurked in the bathroom and upon seeing him a hue and cry was made by Raziya Beevi, the wife of Haneefa and he fled from there after pushing down her and in respect of the said incident based on the statement from Muhammed Haneefa Crime No.586 of 2010 under Section 511 of 380 of the Indian Penal Code was registered against the deceased Ratheesh and later abate charge was filed thereon. Going by the statement filed on behalf of the third respondent, based on the statement of Muhammed Haneefa the said crime was registered at 18.30 hours on 14.6.2010. Ext.P1 complaint was lodged by the father of Ratheesh, the petitioner's brother on 15.6.2010. I do not think it necessary to consider each and every minute aspect to consider whether an order is to be passed to constitute a special team of efficient police officers to investigate into the cause of death of Ratheesh and to book the accused, if it is a case of murder. As noticed hereinbefore, in paragraph 10 of the statement filed on behalf of the third respondent it is stated that the investigation would reveal that Ratheesh died due to drowning when he fell into the pit filled with water, WP(C).No.11712/2012 9 accidentally during his attempt to flee from the bath room of Muhammed Haneefa. Going by paragraph 4 of the aforesaid statement filed on behalf of the third respondent Crime No.586 of 2010 was registered at 18.30 hours on 14.6.2010 against Ratheesh and the body of Ratheesh was found in the septic tank which was under construction on 16.6.2010 at 6.30 a.m. Paragraph 5 of the statement would reveal that the District Superintendent of Police obtained a special report against Sri.M.G.Vinod, the then Sub Inspector of Police, Kunnikode Police Station who initially conducted the investigation and it is specifically stated in the said paragraph that going by the special report the investigation conducted by the said officer was not proper and his approach was lethargic and irresponsible. It is also stated that his failure to take appropriate timely action that resulted in agitations demanding an enquiry by the Crime Branch in the matter. Thus, it is evident from the very said statement itself that even according to the District Superintendent of Police who obtained a report on the investigation conducted by Sri.M.G.Vinod the initial investigation was not conducted properly. It cannot be viewed lightly whilst it has to be taken seriously. In this context, a perusal of Ext.P3 inquest report may not be inappropriate. As against question 8(a) in the inquest report in regard to place where the body was found it is stated thus:- WP(C).No.11712/2012 10 "oqeRUY20vpyOg RWL\O WO4V oW" qf}x]R"r wvwq}qU kYLu] v]Ssf^]$ We]So$ Sfq]p]$ oL!(cV ^UYVxj]$ j]POU DSGwU100o}c! Rf(V oLr] WOP]S(LaV--kYLu] SrLc]jV ka]4LrV vwU kYLu] NYLok5Lp>V VIII-LU vL!c]$ 548 IP k5Lp>V jR! kf]\]YOg xUyV v]sLyU v}a]R"r Rf(V-W]u(V oLr] ke] f]YOg kOfOfLp] ke]pOP q:V j]s RWY]a>]R"r Rf(V vwU Rf(V ka]4LSr oPsp]$ j]POU3o}c! 40 Ry"r]o}c! Rf(V W]u(V oLr]pOU a] v}a]R"r Rf(V W]uS( oPsp]$ j]POU3o}c! 75 Ry"r] o}c! Rf(V---- ka]4LrV oLr]pOU a] v}a]R"r Rf(V vwU n]>]pORa Aa] Ac>V j]POU1o}c! 8 c.m. Rf(V oLr]pOU WLeOPfOU3o}c! 35 Ry"r]o}c! fLuV\ DgfOU Af]$ 91 Ry"r]o}c! Bu>]$ RvgU WLeOPfOU1o}c! 28 c.m. v|LyU WLeOPfOoLp kOf]p W(PyV WOu]p]Rs Rvg>]$ va(V vwU fspORa kOrWV nLYU vq>( v]ivOU Rf(V vwU kQxVa nLYvOU, kOrWOU WLe>( v9U KqO WrO> x!YV iq]\V RRWW% q:OU CqOvwS>(OU AW>] Rvg>]$ Wo]uVPO W]a(OPO. It is evident from Ext.P3 inquest report itself that as against question No.10 therein the inquest witness Sunny @ John Philip stated thus:- "CT oq]\V W]a(OPfV IR"r v}a]jaO>V kjpjU SWLtj]p]$ fLoy](OP RWL\OWO4]-R"r oW" qf}xLeV. AvjV20vpStLtU NkLpU D:V. Ij](V WPs]pLeV S^Ls]. `LjOU nLq|pOU oWjORoL>V fLoy](OWpLeV. qf}x]jV fY]R"r ke]pLp]qOPO. xUyV v]sLy>]$ zj}lL yLr]R"r v}Y]$ qf}xV SjqS> S^Ls](V SkLp]YO:V. 13.06.10 qLNf] 9.30 oe]SpLaOWPa] zj}lL yLr]R"r v}Y]$ KqO v]t]\O WPv$ SWYO. `L" Cr0] SrLc]$ I>]pSUL% KqL% zj}lL yLr]R"r v}a]R"r W]u(VvwU oOc>VWPa] RfS(LYV KLa]SULWOPfV W:O. `L" R\PV v]vqU f]q(]pf]$ zj}lLyLr]R"r nLq| qLNf]p]$ WOt]oOr]p]$ SkLWLjLp] R\P yopU qf}xV WOt]oOr]p]$ kfO0]p]q](OPfV W:V j]sv]t]\ yopU Av" zj}lLyLr]R"r nLq|Rp fg]p]Y]YV KLa]SULp] IPV kr4O. `0% Av]RaRpLR( SjL(] Rp--K]sOU AvRj W:]sf. AvR"r v}Y]$ yL! ASj~x]\f] sOU AvR"r v}Y]$ R\P]Y]RsfPV Ar]4O. CPV qLv]Rs (10.06.10) yLr]R"r v}Y]$ j]$(OP ka" kOfOfLp] ke]f W(Py]$ RWY]p \OaOWYpV(V RvgRoLu](OvL" R\P yopU qf}xV W(Py]Rs Rvg>]$ oq]\V WouVPV W]a(OPfV W:V `LjOU SkLp] SjL(]. qf}xV1306.10 qLNf] KLa]SULp WP(C).No.11712/2012 11 vu]WLsV fY]SpL oScL W(Py]Rs Rvg>]$ v}eV oqeRUYV SkLpfLp]q](LU. oqe WLq|>]$ Ij](V ocV yUwpU KPOo]sf." Going by paragraph 2 of the statement filed on behalf of the 3rd respondent also the deceased Ratheesh was found in suspicious circumstances, on 13.06.2010 at about 9.30 p.m. in the bathroom of one Muhammed Haneefa and when his wife Smt.Raziya Beevi saw him he fled away from there and the body was found after three days, on 16.6.2010 in the pit filled with water. It is to be noted that the pit in question, as per Ext.P3, lies only 1 metre 8 centimetres away from the wall of the building on the southern side. The depth of water in the pit was only 91 cms. As against question No.3 in Ext.P3 inquest report as to `by whom first found dead when and where' it is stated that on 16.6.2010 at 6 a.m. the body was found by Suhaz Khan, aged 19 years. The said facts assume relevance in view of the statement of Dr.Zachariah Thomas who conducted the autopsy on the body of Raheesh at 10.30 a.m. carrying his opinion as hereunder:- "Approximate time in death could be 48 to 72 hours prior to the P.M. Examination." Annexure R3(a) would reveal that the postmortem examination WP(C).No.11712/2012 12 commenced at 10.30 a.m. on 17.6.2010. Thus, going by Annexure R3(a) the approximate time should be 48 to 72 hours prior to 10.30 a.m. on 17.6.2010 The alleged incident where the deceased was seen lurking in the bathroom was 9.30 p.m. on 13.6.2010. Going by Annexure R3(a) the time of death must be between 10.30 a.m. on 15.6.2010 to 10.30 a.m. on 14.6.2010. Therefore, the suspicion rather, belief of the petitioner that death occurred elsewhere and his body was put in the pit later cannot be said to be baseless. It is to be noted that the depth of water in the pit was only 91 cms. and if so, if he had fallen into the pit on 13.6.2010 while attempting to flee from there it is very difficult to believe that till 16.6.2010 morning none had seen the body of Ratheesh when the statements revealed that immediately on that night persons went in search of Ratheesh and also considering the fact that the tank in question was under construction. The contention of the petitioner is that the septic tank in question where the body of Ratheesh was found was in the courtyard of Muhammed Haneefa and it was not fully constructed at that point of time. From the statement filed on behalf of the third respondent also it is evident that the septic tank in question was not fully completed on the relevant date. Ext.P1 complaint was lodged on 15.6.2010 and according to the Police, pursuant to the statement recorded from Muhammed Haneefa in whose property the corpse of WP(C).No.11712/2012 13 Ratheesh was found on 16.6.2010, Crime No.586 of 2010 was registered on 14.6.2010. The allegation therein against the deceased Ratheesh was to the effect that he had trespassed into the property of Haneefa and lurked in their bathroom. The witness to Ext.P3 inquest report Sri. Sunny @ John Philip stated to have heard a cry from the house of Haneefa on 13.6.2010 at 9.30 p.m. and according to him, he had seen somebody running through the front side of Haneefa's house towards south. When a person allegedly trespassed into a property was later reported to have found missing it cannot be believed that the premises of Haneefa were not searched throughly in search of the person who lurked in the bath room and then ran away from there. When the investigating agency itself admits the fact that the initial investigation was not conducted properly and the investigating officer was lethargic and irresponsible in his initial investigation it will be inappropriate to refuse the relief sought for unless the investigating agency shows that subsequently the matter is being investigated appositely. Evidently, Haneefa and his family members are residing in the property from where the body of Ratheesh was found. The petitioner's case is that his family members have given a list of suspects. But, the statement did not carry the details regarding the manner in which investigation was done after the receipt of such information and as to whether such persons were WP(C).No.11712/2012 14 properly questioned. Though the death occurred as early as on 16.6.2010 still the suspicion regarding the death lingers on.
6. After hearing the learned counsel for the petitioner and the learned Government Pleader and perusing the statement filed on behalf of the third respondent and the nature of the investigation conducted till date, I cannot find fault with the petitioner and the relatives of the deceased Ratheesh raising the grievance against the investigation conducted this far and contending that the death of Ratheesh is shrouded with suspicion. When the third respondent himself admits the fact that the initial investigating officer conducted the investigation in a lethargic and irresponsible manner loss of trust in investigation is natural and it cannot be said that their distrust is without any valid reason especially, in the absence of materials to convince that subsequently it is being investigated appositely. When the death of a person aged 20 years is occurred in such a suspicious circumstance, the request of the members of his family for an apposite investigation is only reasonable. There cannot be any doubt with respect to the position that any investigation by any investigating agency should be conducted in such a manner to gain credibility and to instill confidence in the investigation. WP(C).No.11712/2012 15 7. Ext.P3 would reveal that the septic tank in which the body of Ratheesh was found was having the dimension of 3 metres 35 cms. depth and having a diameter of 1 metre 28 cms. and the pit was having a water level only of 91 cms. In Annexure R3(c) which is the statement given by Dr.Zachariah Thomas, Associate Professor of Forensic Medicine & Deputy Police Surgeon who conducted autopsy on the body of Ratheesh it is stated that injuries, if any, to the soft tissues could not be detected due to de-composition changes. In Annexure R3(a) no ante- mortem injuries were noted. Annexures R3(b) and R3(c) which are respectively the final opinion as to the cause of death and the statement given by the Doctor who conducted the autopsy on the body of Ratheesh also did not reveal any ante-mortem injuries. As per Annexure R3(a) postmortem certificate the skull was also intact. Taking into account all these circumstances and the plight of the family who lost an able bodied young man at the age of 20 I am of the view that to have an apposite investigation and to instill confidence in the investigation it is only appropriate to transfer the investigation to another agency from the present investigating officers. Hence, I am of the view that this writ petition can be disposed of with appropriate directions in the matter of continuation of the investigation. WP(C).No.11712/2012 16 In the result, this writ petition is disposed of with a direction that the investigation shall be transferred and entrusted with the concerned Homicide and Hurt Wing of the CB CID having jurisdiction over Kollam District wherein the incident took place. Considering the fact that the death occurred in June, 2010 I hope and trust that the investigation would be conducted with utmost objectivity and the investigating agency would speed up the investigation and file a final report at the earliest. Sd/- C.T.RAVIKUMAR Judge TKS