IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(C).No. 32500 of 2008(R) -------------------------------------- PETITIONER(S): --------------- KALEELURAHMAN, S/O.LATE M.P.MUHAMMED MUSTAFA, DOOR.NO.9/1, KUMARAN ROAD, (PALLADAM ROAD) POLLACHI, COIMBATORE DISTRICT. BY ADV. SRI.H.BADARUDDIN RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HOME AFFAIRS, THIRUVANANTHAPURAM. 2. DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH CID, PALAKKAD(269CR-2006), 3. STATION HOUSE OFFICER, TOWN SOUTH POLICE STATION, PALAKKAD (CRIME NO.479/05 DT.13.11.2005) 4. INSPECTOR OF CENTRAL BEURO OF INVESTIGATION, COCHIN UNIT, OFFICE OF KADAVANTHARA COCHIN. 5. MOHAMED ASKAR, S/O.MOHAMED YUSUF, FATHIMA MANZIL, PUTHUPALLY THERUVU, PALAKKAD. 6. MOHAMED YUSUF, FATHIMA MANZIL, PUTHUPALLY THERUVU, PALAKKAD, 7. LALLABI, W/O.MOHAMED YUSUF, FATHIMA MANZIL, PUTHUPALLY THERUVU, PALAKKAD. WP(C).No.32500/2008(R) 8. MOHAMED ASHRAF, S/O.,MOHAMED YUSUF, FATHIMA MANZIL, PUTHUPALLY THERUVU, PALAKKAD. ADV. SRI.M.V.S.NAMBOOTHIRY, STANDING COUNSEL, C.B.I. FOR R4 GOVERNMENT PLEADER, S.U. NAZAR FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS P1 - COPY OF POSTMORTEM REPORT P2 - COPY OF THE EXPERT OPINION DR. EDWIN JOE'S(M.D.;B.L); REPORT ON 19.2.2006 SUBMITTED BEFORE THE DISTRICT COLLECTOR, COIMBATORE. P3 - COPY OF THE REPRESENTATION TO THE HOME MINISTER KERALA. P4 - COPY OF THE REPORT IN LOCAL DAILY “THURANNAKATHU” DATED 17.11.2005 P5 - COPY OF THE REPORT IN MADYAMAN DAILY DATED 15.11.2005 P6 - COPY OF THE ARREST AND REMAND OF THE 6TH RESPONDENT, PUBLISHED IN MALAYALA MANORAMA DAILY ON 15.11.2005. P7 - COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.479 DATED 14.11.2005. P8 - COPY OF THE LETTER NO.D1740/CD/PKD-06 DATED 4.10.2008 OF THE OFFICE OF THE SUPERINTENDENT OF POLICE CRIME BRANCH CID, PALAKKAD. P9 - COPY OF THE ORDER IN B.A.6438 OF 2006. RESPONDENT'S EXHIBITS NIL. M.SASIDHARAN NAMBIAR, J. ================== W.P(C). No.32500 of 2008 ================== Dated this the 18th day of November, 2009. J U D G M E N T 1. Petitioner is the father of Dilshad Banu who died on suspicious circumstance on 13/11/05 at her matrimonial home. Ext.P7 FIR was registered for the offence under Section 304(B) read with Section 34 of Indian Penal Code on 13/11/2005. Dissatisfied with the investigation, petitioner addressed the Home Minister for entrusting the investigation to a competent officer under Ext.P3 representation. The investigation was entrusted to Crime Branch CID, Palakkad. Dissatisfied with the investigation, alleging that proper investigation has not been carried out, this petition is filed under Article 226 of Constitution of India for a writ of mandamus to entrust the investigation to Central Bureau of Investigation. 2. Petitioner would contend that Dilshad Banu had reported the harassment and cruelty by her husband and in- WP(C).NO.32500 OF 2008 -2- laws and her parents were persuading her to be with the husband and while she was in the matrimonial home, she telephoned petitioner and informed that her stay at the matrimonial home is so unbearable as she cannot continue to live there. According to the petitioner, as instructed by him, his wife went to the house of the husband of Dilshad Banu on 13/11/2005 and found that father-in-law, mother-in-law and others were there in the house. According to the petitioner, though her daughter wanted to return back with the mother, she was not permitted and the father-in-law and others threatened that if she is to return, the relationship is to be terminated before her departure. According the petitioner, when his wife contacted him, he was told the wife that the daughter be there for two days and therefore his wife returned back. It is alleged that before the mother could reach home, petitioner contacted the matrimonial home of their daughter and getting suspicious, as they refused to handover the telephone to the daughter, he contacted WP(C).NO.32500 OF 2008 -3- another relative at Palakkad to go to their house and find out the truth. Then he was informed that the daughter is no more. It is alleged that even to the neighbours, the in-laws did not disclose the true facts and they got suspicious and when petitioner and others reached there, the neighbours disclosed that and they suspected that it is a case of homicide. The petitioner would contend that even though the Postmortem Certificate shows that there are several anti- mortem injuries, which according to the opinion of Dr. A. Edwin Joe of Department of Forensic Medicine, Coimbatore Medical College could be inflicted before hanging and it can be a case of homicide, as the deceased could have been hanged in an unconscious stage, no proper investigation was conducted and for a proper and fair investigation, necessary directions are to be issued. 3. The Deputy Superintendent, Crime Branch CID, Palakkad who took over the investigation filed a statement showing the progress of the investigation. As per the said WP(C).NO.32500 OF 2008 -4- statement, the opinion of the Doctor (Dr.P.B.Gujaral), who conducted the autopsy is that death is due to hanging. It is also stated that though 12 anti-mortem injuries in the form of contusions were seen in the Postmortem Certificate, according to the Police Surgeon, those injuries independently or collectively are sufficient for death or incapacitating the injured and might have been caused while bringing down the body and the findings are consistent with death due to hanging. It is also contended that the investigation revealed that soon after the body was cut down from the hanging position, the saree used for hanging by the deceased was found in a box kept near the bed of the mother-in-law and thereby an offence under Section 201 of Indian Penal Code is also made out. According to the Investigating Officer, the scientific evidence clearly points out that it is not a case of homicidal death but suicidal. The report received from Forensic Laboratory shows that the examination of cellophane taken from the hands of the WP(C).NO.32500 OF 2008 -5- deceased and the ligature show that fibres similar to the one in the saree are found in the cellophane taken from the hands suggesting that the deceased used the saree as the ligature to hang and therefore it is a case of suicide and not homicide and only offences under Sections 304(B), 120(B) and 201 of Indian Penal Code are made out and the final report could not be filed because of the order passed by this Hon'ble Court. 4. Learned counsel appearing for the petitioner and learned Government Pleader were heard. 5. There are sufficient circumstances to suspect the conduct of the inmates of the matrimonial home. Admittedly the deceased was staying with them during the time and on the critical day. The investigation also show that on the day on which the deceased was found dead, her mother, the wife of the petitioner had gone there, on getting a telephone call from the deceased that her life in that house is unbearable. It also shows that the mother wanted to take the daughter WP(C).NO.32500 OF 2008 -6- with her back to Coimbatore from Palakkad, but the in-laws did not permit it. Hence, the mother returned back to Coimbatore. The death occurred before she reached Coimbatore. Even according to the Investigation Officer there was an attempt to conceal the evidence and that is why an offence under Section 201 of Indian Penal Code was incorporated, based on the investigation. 6. The actual cause of death or the way in which the death was caused, was not disclosed by the inmates of the house either to the neighbours or the parents of the deceased or even to the Police. Even if, the case is that, the daughter-in-law was found hanging and the ligature was cut down and the body was brought to the ground, ordinarily, the body would be taken to the hospital to find out whether there is life and if life, whether she could be saved. There was no such attempt. Moreover, the very nature of the incident was suppressed suggesting different stories. In such circumstances, a proper investigation should have been WP(C).NO.32500 OF 2008 -7- conducted as to who were all in the house and who found the body first and if it was hanging who saw it for the first time and who brought down the body after cutting the ligature. Those persons should have been questioned properly to unveil the truth. On going through the case diary made available, I find that there was no attempt to arrive at the truth on these aspects. 7. The Postmortem Certificate shows that there were 12 anti-mortem injuries apart from the pressure abrasion on the neck which actually caused the death. The opinion of the expert Dr.P.B.Gujaral who conducted the autopsy, is that the Postmortem findings are death is due to hanging. The opinion of Dr. A.Edwin Joe, Department of Forensic Medicine, furnished to the District Collector, based on the Postmortem Certificate is that the incident could be caused even if the deceased was unconscious and then hanged and the second injury shown in the Postmortem Certificate, may cause unconsciousness. Through the statement of WP(C).NO.32500 OF 2008 -8- Dr.Rajaram, Professor and Head of Department of Forensic Medicine, Medical College, Thrissur shows that he is of the opinion that anti-mortem injuries may not cause shock or any form of incapacitation, and cause death. It also shows that those anti-mortem injuries could be caused while cutting down the hanging body. From the case diary, it is seen that it is not disclosed how the scuffle arose and between whom. All these are matters to be seriously investigated. 8. Through the report of examination of the cellophane, which were taken from both the hands of the deceased, as well as the ligature revealed that the synthetic fibres found on cellophane fibres, are of the same fibre found on the ligature. The question whether a person who is in an unconscious stage or in a semi-conscious stage was hanged by another and in the process of hanging, the person gains consciousness and attempts to catch hold of the ligature and if so whether the presence of the fibre in the hands of the deceased would establish only suicide. But these aspects WP(C).NO.32500 OF 2008 -9- were not considered by the Investigating Officer. This is an aspect which should necessarily be considered before ruling out the possibility of homicide and proceeding with the case that it is a case of suicide. 9. Instead of conducting a fair and proper investigation, case diary shows that, investigation was completed and final report is prepared based on the conclusion that it is not a case of homicide but suicide, and offences only under Sections 304(B), 201 and 120(B) of Indian Penal Code are committed. In such circumstances, I find that a fair and proper investigation is mandatory. 10. The question then is, whether the investigation is to be handed over to Central Bureau of Investigation or to any other investigating agency. Though the learned counsel for the petitioner submitted that investigation is to be entrusted to the Central Bureau of Investigation, from the nature of the case, I do not find that the case is to be entrusted to the Central Bureau of Investigation, which is even otherwise WP(C).NO.32500 OF 2008 -10- burdened with more than sufficient cases. At the same time, by continuing the investigation by the same officer, I do not feel that there would be fair investigation. 11. In such circumstance, the Director General of Police is directed to entrust investigation of Crime No.269/CR/2006 to some other efficient Investigating Officer, not below the rank of Dy. Superintendent of Police with a further direction that investigation shall be monitored by the Superintendent of Police. The said Investigating Officer has to conduct a proper investigation on all aspects and shall file a final report before the concerned Magistrate. If necessary, Investigating Officer can even seek Poligraph test, Narco Analysis test or any other scientific test to unveil the truth. M.SASIDHARAN NAMBIAR JUDGE nl