IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 Crl.MC.No. 4585 of 2010() ------------------------------------ CRIME NO.506/2009 OF KOIPURAM POLICE STATION --------------------------- PETITIONER(S): DEFACTO COMPALINANT ------------------------------------------------------------- K.J.VIJAYAKUMAR, AGED 50 YEARS, KOICKAL SREEKRISHNASADANAM HOUSE, KOIPURAM VILLAGE, KOZENCHERRY TALUK, PATHANAMTHITTA DIST. BY ADV. SRI.V.SETHUNATH SRI.PRAKASH KESAVAN RESPONDENT(S)/COMPLAINANT/STATE ----------------------------------------------------------- 1. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM PIN-695 001. 2. THE SUPERINTENDENT OF POLICE PATHANAMTHITTA PIN-689 645. 3. THE DY.S.P.OF POLICE, PATHANAMTHITTA - PIN- 689 645 4. THE SUB INSPECTOR OF POLICE, KOIPURAM, PIN-689 645. R1 TO R4 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.4585 of 2010 --------------------------------------- Dated this 11th day of March, 2011 ORDER Petitioner is the de facto complainant in Crime No.506 of 2009 of Koyipuram Police Station. He alleged that on 08.10.2009 at about 8.45p.m he was attacked by accused Nos.1 to 8 mentioned in Annexure-1, FIR. The initial investigation was conducted by Sub Inspector, Koyipuram who prepared a mahazar for scene of occurrence and questioned witnesses. An iron rod said to be used by some of the accused was recovered from the scene of occurrence. While so, accused Nos.1, 2, 6 and 8 surrendered before Court on 16.10.2009 while accused Nos.4, 5 and 7 surrendered before police as per order of the Court. In the meantime the wife of third accused preferred a complaint to the Inspector General of Police, Thiruvananthapuram alleging that her husband was falsely implicated in the case. That matter was enquired through the Dy.S.P, Crime Detachment, Pathanamthitta. Based on the report of that officer, the Superintendent of Police, Pathanamthitta ordered reinvestigation of the case and accordingly the Dy.S.P, Crime Detachment, Pathanamthitta took up investigation of the case. His investigation revealed that the Crl.M.C.No.4585 of 2010 -: 2 :- third accused is not involved in the incident. Petitioner/de facto complainant has filed this petition, in the circumstances to hand over investigation to the Crime Branch. Petitioner states that the third accused attacked him with a sword and inflicted stab injury, deep incised wound and amputation of middle finger and that third accused is being purposely exonerated from the case. Learned counsel contended that it is merely based on the allegation of the calls from the mobile phone of the third accused that the Dy.S.P has come to such a conclusion and decided to exonerate the accused. It is also stated that the offence is punishable under Sec.307 of the Penal Code but that offence is purposely omitted though, there was a large incised wound inflicted on the petitioner due to the stab and there was amputation of his middle finger. In the circumstance, it is requested that investigation may be handed over to the crime branch. 2. In answer to the allegation in the petition, the investigating officer has filed a statement where details of the investigation conducted by him is stated. Learned Public Prosecutor has submitted that it is not merely based on the calls from the mobile phone that the investigating officer has come to the conclusion that third accused is not involved in the crime. Learned Public Prosecutor has invited my attention to the Crl.M.C.No.4585 of 2010 -: 3 :- relevant paragraphs in the statement of the investigating officer. 3. In the statement of the Dy.S.P, Crime Detachment it is stated that after he took up investigation of the case he verified records and found that the former investigating officer completely relied on the statement of petitioner and the persons who were with him alone in arriving at a conclusion as to the alleged involvement of the third accused. It is stated that all the independent witnesses questioned stated that along with the injured three more persons, namely, Biju, Binu and Rajendran were present at the time of occurrence but their presence was purposely concealed by petitioner in the course of investigation. Of those persons, Biju sustained injury on his left forearm and had gone for treatment at Marthoma Medical Mission, Ranny on 11.10.2009. In the wound certificate of the said Biju history of alleged cause of injury is stated as assault on 11.10.2009 at about 2p.m but no such incident had taken place on 11.10.2009 (as investigation revealed). According to the Dy.S.P, Biju sustained injury in the incident in which petitioner sustained injury. It is stated in paragraph 8 of the statement that none of independent witnesses questioned by the Dy.S.P (whose names are mentioned in paragraph 8) corroborated version of petitioner as to the involvement of third accused. Instead, they stated that the third accused was not present at the time of incident. In paragraph 11 Crl.M.C.No.4585 of 2010 -: 4 :- reference is made to the telephone call details of the mobile phone owned by the third accused and collected by the investigating officer and which revealed that from the evening itself (on 08.10.2009, the date of incident) location of the calls was at Karakkadu, Punthala areas which are far away from the place of occurrence. It is stated that a number of witnesses questioned stated that third accused had contacted them over phone after the the incident and during all that time the location of the said phone was Karakkadu which is about 25km away from the place of occurrence (investigating officer has produced a copy of the call details along with his statement). It is stated in paragraph 12 that one independent witness, Sreekumar who is an autorikshaw driver stated that the third accused was present at his residence at Manthuaka at about 9p.m on the day of occurrence (time of occurrence is 8.45p.m). It is based on the above materials that the investigating officer came to the conclusion that the third accused is not involved in the incident. 4. Learned counsel for petitioner contends that even application for anticipatory bail preferred by the third accused was dismissed by the learned Sessions Judge as the third accused is involved in the incident but by that itself is not sufficient to show that the investigation conducted by the Dy.S.P is erroneous. Having gone through the statement of the Dy.S.P and heard Crl.M.C.No.4585 of 2010 -: 5 :- learned counsel for petitioner and learned Public Prosecutor, I am not inclined to think that this is a fit case where the investigation has to be handed over to the crime branch. If petitioner is aggrieved by any report submitted by the investigating officer deleting the third accused or on account of deletion under Sec.307 of the Penal Code, it is open to him to file proper complaint in the matter and as provided under law. If he is aggrieved by the non incorporation of Sec.307 of the Penal Code it is a matter which the trial court can consider and if in the course of trial it is revealed that offence under Sec.307 of the Penal Code is also involved, it is within the power of the trial court, if circumstances warranted to alter the charge accordingly and proceed in the matter as provided under law. With the above observation this petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge