IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc. No. M- 1948 of 2010 Date of decision: 18.11.2010 Kalawati ......Petitioner Vs. State of Haryana and others ...Respondents CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr.J.S.Bedi, Advocate, for the petitioner. Mr.S.S.Mor, Sr.DAG, Haryana. Mr.Surya Parkash, Advocate, for private respondents. **** ORDER The present petition has been filed on behalf of petitioner Kalawati for issuance of directions to respondents No. 2 and 3 to hand over the investigation of case FIR No.199 dated 23.9.2009 under Sections 328/302/34 IPC registered at Police Station Kurukshetra to CBI or any other independent agency as pressure is being put upon the petitioner as well as her husband not to pursue the case as respondents No. 8 and 9 are sons of police officials. Notice of motion was issued on 3rd February, 2010. In response to the notice of motion, written statement was filed on behalf of respondents No. 1 to 5 which is on record. Mr.Bedi, learned counsel for the petitioner, contends that the FIR was registered on 23rd September, 2009 but no action has been taken by the police and no arrest was ever made by Crl.Misc. No. M- 1948 of 2010 [2] respondents No. 3 and 4. The request was made to the police authorities but pressure was being put upon the petitioner to compromise the matter. Learned counsel further submits that petitioner earlier filed Crl.Misc.Petition No.M- 31387 of 2009 before this Court for issuance of direction to respondents No. 2 to 4 to arrest accused - respondent Nos. 6 to 9 which was disposed of with a direction to respondent No.3 to decide the representation of the petitioner within two months from the date of receipt of copy of that order. Instead of taking action on the representation filed by the petitioner, the respondent authorities sought another report from the same laboratory which is contrary to the report already given by FSL, Madhuban. Mr.Bedi also submits that as per report of Forensic Science Laboratory, Madhuban, the following result was given: (i)“An organoposphorous pesticide and ethyl alcohol were detected 1a and 1b. (ii)Exhibit 1e (blood) was found to contain the ethyl alcohol in the strength of 126.5 mg% (iii)No common position could be detected in exhibits-1d.” After obtaining the said report from the Forensic Science Laboratory, Madhuban the case was registered against the accused persons but just to save respondents No. 8 and 9, second opinion was sought. Respondent No.2 directed respondents No. 3 and 4 not to arrest the accused till second opinion was received. Moreover, as Crl.Misc. No. M- 1948 of 2010 [3] per FSL Report 'Diatoms' was not detected in the blood sample and Ethyl alcohol was detected. As per second opinion, the cause of death in the case was 'asphyxia due to drowning' and on chemical examination 'organoposphorous pesticide' was found negative and 'ethyl alcohol' was found positive. Mr.Bedi also submits that the second opinion was obtained with ulterior motive at the instance of private respondents as the earlier opinion was not found in favour of the accused-respondents, otherwise there was no reason to call for the second opinion. In view of the submissions made by the learned counsel for the petitioner, the Director General of Police, Haryana was directed to be present in the Court and he was asked to file an affidavit as to in how many cases the second opinion was sought? An affidavit was also filed by the Director General of Police, Haryana and it was mentioned that in six cases the second opinion was sought. In the present case also, a request was made from the accused side and the case was sent for second opinion. Mr.S.S.Mor, learned Sr.DAG, Haryana also submits that the investigation may be conducted by any Senior Police Officer of the State and there is nothing wrong with the second opinion wich is self explanatory and based on reasoning. On the other hand, learned counsel for the petitioner submits that fair investigation cannot be expected as the petitioner belongs to weaker section of the society and lot of pressure is being put not only upon the petitioner but also upon the husband of the Crl.Misc. No. M- 1948 of 2010 [4] petitioner to withdraw the case. The accused are influential persons and they are intentionally avoiding fair investigation and second opinion was sought just to help the accused persons. Mr.Bedi learned counsel for the petitioner very emphatically argues that if 'diatoms' was negative then it cannot be a case of drowning and just to know real cause of death, the investigation is required by some independent agency other than police officers of the Haryana State. He relied upon the Division Bench judgment of this Court reported in Iqbal Singh and others v. State of Punjab and others 2006(2) R.C.R. (Criminal) 836 in support of his contention. Heard the arguments of learned counsel for the parties and have also gone through the written statement and other documents available on record. In the present case, son of petitioner Satish Kumar was doing B.Tech from Krishna Institute Engineering College at Kurukshetra and was living in rented accommodation along with respondents No. 8 and 9. On 27.6.2009 the husband of the petitioner talked to his son on Mobile and he was told that respondents No. 8 and 9 always quarreled with him. On 28.6.2009 respondent No.8 called the petitioner on Mobile and on asking about the health of her son she was told that Satish Kumar had gone to market and would come back within few minutes. When he was contacted, it was told by respondent No.8 that Satish Kumar had drowned in canal. On asking the reason for his drowning, the said Crl.Misc. No. M- 1948 of 2010 [5] mobile number was disconnected. Respondents No. 6 to 9 had neither informed the police nor the college authorities regarding that incident. Complaint was made by the husband of the petitioner regarding death of Satish Kumar and he did not name anybody in the complaint as husband of the petitioner was not aware about the actual position of the case at that stage. The proceedings under Section 174 Cr.P.C. were conducted. The dead body of Satish Kumar was recovered by the police from the river which was sent for post mortem examination on 1st July, 2009. As per post mortem report, there were multiple abrasions on various parts, hands, both knees, toes, multiple abrasions on both ears and forehead. The details given by the doctor show that scuffle took place between Satish Kumar and respondents No. 6 to 9. Two front teeth of Satish Kumar were also found broken and there was strangulation mark also on his neck. When no action was taken by the police authorities against respondents No. 6 to 9 despite making complaint by the father of the deceased, the matter was referred to CIA Staff for making enquiry into the matter. As per report of Forensic Science Laboratory, Madhuban, Karnal, an organoposphorous pesticide and ethyl alcohol were detected. Ethyl alcohol was also found in the blood which was in the strength of 126.5 mg %. After obtaining the report /opinion, FIR No. 199 dated 23.9.2009 under Sections 328/302/34 IPC was registered against respondents No. 6 to 9 at Police Station Kurukshetra University, Kurukshetra but the accused were not arrested by respondents No. 3 and 4. The Crl.Misc. No. M- 1948 of 2010 [6] petitioner filed Crl.Misc.No.M-31387 of 2009 before this Court for issuance of direction to respondents No. 2 to 4 to arrest the accused persons and the said petition was disposed of with a direction to respondent No.3 to decide the representation within two months from the date of receipt of copy of that order. The petitioner came to know regarding some other report which was contrary to the earlier report given by Forensic Science Laboratory, Madhuban, Karnal. Pressure was put upon the petitioner and her husband by the accused persons not to pursue the case. The argument of the learned counsel for the petitioner is that it was a case of either drowning or poisoning and it cannot be the case of both. The second opinion was obtained with ulterior motive at the instance of accused-respondents. The present petition has been filed by the petitioner for handing over the investigation of the case either to CBI or any other independent agency out of State of Haryana as accused-respondents No. 8 and 9 are sons of police officials and lot of pressure has been put upon the petitioner and her family members not to pursue the case. The Director General of Police, Haryana was called and he was asked to file an affidavit to explain why the second opinion was taken. As per affidavit filed by the DGP, Haryana, which was also on record, respondent No.6 who is accused in the case, moved an application before DGP, Haryana on 15th October, 2009 and another application was moved by President, Kissan Union on 19th Crl.Misc. No. M- 1948 of 2010 [7] October, 2009 wherein a suspicion was raised about FSL Report and they requested to carry out the investigation fairly. The said applications were forwarded to Superintendent of Police, Kurukshetra with the direction that a team of officers be constituted to conduct thorough and fair investigation with the consultation of Director,FSL. A special team headed by Inspector, Detective Staff Kurukshetra along with other police officials under the supervision of DSP Headquarters, Kurukshetra was constituted vide order dated 23rd October, 2009 and during investigation a clarification/opinion was also sought from the doctors on 28th October, 2009 who conducted post mortem of the deceased to the effect that the pesticide was not detected in the blood of the deceased whereas the same was found in the visera of the deceased and that as to whether Satish Kumar died due to intake of pesticide and what was the quantity of pesticide and whether that quantity was sufficient to cause death and what was the cause of death? As per opinion given by the doctor, the cause of death was asphyxia due to drowning. As per opinion of the Director,FSL the following clarification was given: “On chemical examination, chemical tests for presence of organoposphorous pesticides were found negative whereas those for ethyl alcohol were found positive. The quantity of ethyl alcohol in blood sample (exhibit 1c) was found in strength of 23 mg % whereas it was mentioned in the strength of 126.5 mg % in initially examination carried out by SSO/Chemistry. Resultantly, the Crl.Misc. No. M- 1948 of 2010 [8] difference of opinion was found in initial examination carried out by SSO/Chemistry and Board of Expert on the same sample (visera case)”. The report given by the Board of Expert was treated as correct by Director,FSL, Madhuban and action under Rule 7 of Haryana Civil Service (Punishment and Appeal) rules, 1987 against Surinder Singh, SSO/Chemistry FSL Haryana, Madhuban was recommended for committing serious misconduct in the case. Mr.S.S.Mor, learned Sr.DAG, Haryana submits that he has no objection in re-investigation of the case by any Senior Officer of the Police Department even from other district. On the other hand, Mr.J.S.Bedi, learned counsel for the petitioner submits that it would be justified if the re-investigation is conducted other than Police Officers in Haryana as accused-respondents are sons of police officials and fair investigation may not be expected from the police officers of Haryana State. In view of the above, I am of the considered view that two contrary opinions have come in two different investigations and as per post-mortem report, two front teeth were found broken and there were marks of strangulation on the neck of Satish Kumar. As per report of Forensic Science Laboratory, Madhuban, an organoposphorous pesticides and ethyl alcohol were detected but in the second opinion and the clarification given by Director, FSL the presence of organoposphorous pesticides were found negative and ethyl alcohol were found positive in the blood sample. The second Crl.Misc. No. M- 1948 of 2010 [9] report is totally contradictory to the earlier report which creates doubt that investigation of the case has not been conducted fairly and since the accused persons are sons of police officials, it would be justified if the re-investigation is conducted outside the State of Haryana. In view of the peculiar facts and circumstances of the case and since the learned counsel for the State has no objection in conducting re-investigation of the case by any authority, a direction is issued to the Inspector General of Police, Union Territory, Chandigarh to constitute a team of two Senior Police Officers who shall investigate all aspects of the case relating to cause of death of Satish Kumar and complete the investigation within a period of three months from the date of receipt of a copy of the order. The report be submitted before this Court within a period of one month thereafter. The Registry is directed to supply copy of the order along with paper book of this case to Inspector General of Police, U.T. Chandigarh. The case be put up as and when the report is submitted to this Court. (DAYA CHAUDHARY) JUDGE November 18, 2010. raghav