1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.09.2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD).No.3422 of 2011 R.Ramasubbu : Petitioner -Vs- 1.State Rep. by The Secretary to Government, Home Department, Fort St. George,Chennai. 2.The Superintendent of Police, Thoothukudi District,Thoothukudi. 3.The Inspector of Police, SIPCOT Police Station, Thoothukudi District. 4.The Deputy Superintendent of Police (Rural) Thoothukudi, Thoothukudi District. 5.The Deputy Superintendent of Police, C.B.C.I.D., Madurai. : Respondents PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure praying to transfer the case from the 3rd respondent to 5th respondent or any other independent agency like CBI and complete the investigation within stipulated time limit and lay final report. For Petitioner : Mr.S.Muthalraj For Respondent : Mr.K.V.Rajarajan, G.A. (Crl. Side) O R D E R This petition is filed to transfer the case from the 3rd respondent to 5th respondent or any other independent agency like CBI and complete the investigation within stipulated time limit and lay final report. 2.The learned counsel appearing for the petitioner would submit that the petitioner's daughter viz., Roobika was studying 2nd year B.Com and on the fateful day of 18.12.2010, at 5.30 p.m. when she gone to dump the wastage in the punja land, she has not returned back and after making search, the petitioner has given a complaint on the same day before the 3rd respondent police and a case has been registered as 'Girl Missing' in crime No.409 of 2010. He would further submit that on 19.12.2010, the dead body of the girl was found in a kanmai on the western side of the village and immediately, he informed the respondent, who came to the spot and at 8.00 a.m., the body was recovered and then only, the case has been altered into one under Sections 376 and 302 I.P.C. He would further https://hcservices.ecourts.gov.in/hcservices/ 2 submit that the respondent police after conducting investigation, arrest only one accused viz., Madasamy as if he appeared before the Village Administration Officer, South Veerapandiyapuram and gave an extra judicial confession statement. He would further submit that the daughter of the petitioner was raped by some persons and they murdered her and hence, it is only a gang rape and murder and since the investigation is not going in a right direction, he sent representation to the respondents, but no steps have been taken and hence, he has come forward with the present application for transfer of the investigation. 3.The learned Government Advocate (criminal side) filed a status report stating that on the basis of the complaint given by the petitioner herein, a case has been registered in crime NO.409 of 2010 under 'Girl Missing' and after the body was recovered from the pond, the case has been altered one into under Sections 376 and 302 I,.P.C. and to find our whether, she was subjected to rape, her vaginal smear, vaginal swab, cervical smear and cervical swab and sternum have been sent to Forensic Science Laboratory for chemical analysis. He would further stated that on 21.12.2010, one Madasamy has voluntarily surrendered before the Village Administrative Officer, South Veerapandiyapuram and gave an extra judicial confession and he was arrested and remanded to judicial custody and he was also produced for medical examination on 24.12.2010. He would further state that this is a rape and murder case and it was found that the accused followed the girl from her house and raped her near the pond in an inebriated state and immersed her in the water which caused. and the apprehension of the petitioner is that his daughter was subjected to gang rape and it has not been substantiated by any oral and material evidences. He would further state that there is a long standing communal rift between the petitioner, who belongs to Naicker community and the alleged suspects belong to SC PL community and since the investigation is going on in a right direction, he prayed for the dismissal of the application. 4.I have heard the submissions made on either side and perused the case diary. 5.Perusal of the case diary would show that on 18.12.2010, at 5.30 p.m., when the daughter of the petitioner Roobika gone to dumb the wastage, she has not returned back and after, they made a search, the petitioner has given a complaint and a case has been registered as 'Girl Missing' on the same day. It is also an admitted fact that the very next day morning i.e. on 19.12.2009, he heard the news that one dead body was floating in the Kanmai and immediately, he gone there, where the legs of the body has been protruded. Then only, he came to know that it is the body of his daughter. After inquest, post mortem has been conducted and in the post-mortem, nearly 19 ante mortem injuries are noted, which is prima facie proved that it is a case of rape and murder. The final opinion of the doctor for the cause of death is that the deceased would appear to have died of asphyxia due to the combined effect of strangulation and drowning and the death would have occurred 12 – 24 hours prior to the autopsy. As per the version of the petitioner, the girl was missing at 5.30 p.m. on 18.12.2010. The post mortem has been conducted at 12.00 p.m. on 19.12.2010. Hence, it is clear that the deceased died between 12 to 24 hours prior to the autopsy. https://hcservices.ecourts.gov.in/hcservices/ 3 6.The learned counsel appearing for the petitioner would file a report of the fact finding team, wherein it has been stated that when the parents of the deceased gone to meet the astrologer to find out his daughter and at that time, the police directed the father of the accused/who is an astrologer to send his son to the police station and they came to know that the accused was implicated falsely in this case and the investigation is not going on in a right direction. It is also pertinent to note that the College students have also made a request for C.B.C.I.D investigation and they conducted Tharna. Admittedly, the petitioner has sent a representation on 09.02.2011, but, no steps has been taken. In the status report filed by the respondent police, in paragraph No.6, it has been stated that suspected the persons viz., Vijayakumar, Muniyasamy and Mariappan were not available in the place of occurrence and they were at different places. 7.Admittedly, the deceased had worn two sovereign chain and the same has not been recovered by the respondent police, which will create suspicious in the minds of the petitioner as to whether the accused Madasamy had committed the rape and murder and what prevented the investigation to recover the chain from him. At the time of his arrest also, the alleged accused handed over the jatti, hair clip and chappal belong to the deceased The accused has also not stated anything about the chain in his extra judicial confession. While perusing the extra judicial confession, he has not stated that he sustained any injury. Perusing the photographs would show that the deceased is not a puni one and if she had resisted the occurrence, certainly, the accused would have sustained some nail marks in his body, but there is no document show that he has sustained any such injury. Admittedly, from the place of occurrence, the investigation agency has seized one pen. Since the accused is a scavenger, there is no necessary for him to keep the pen. Hence, I am of the opinion that the investigation agency has not conducted the investigation in a right direction. 8. Considering all the aspects, I am of the view that it is the duty of the Court to dispel with the suspicion from the mind of the victim family and public and to give fair investigation by the competent authority. To instil confidence in the mind of the victim family as well as the public, if the court feels that the investigation done by the police authorities is not in a proper direction, it is always open to the court to handover the investigation to the independent agency. 9.In such circumstances, this Court is forced to accept the arguments advanced by the learned counsel appearing for the petitioner that the investigation agency has not investigated the matter in a right direction and hence, I am of the opinion that to instil confidence in the mind of the victim family as well as the public and to meet the ends of justice, an independent agency will be the competent authority to investigate the matter and file a final report and I am also of the opinion that the CBCID is the competent agency to investigate the matter and file a final report in accordance with law and hence, the investigation in crime No.409 of 2010 shall be transferred to CBCID, from the 3rd respondent police and the criminal petition is liable to be allowed. https://hcservices.ecourts.gov.in/hcservices/ 4 10. Accordingly, this criminal original petition is allowed and the case in crime No.409of 2010 on the file of the 3rd respondent police is transferred to CBCID, the 5th respondent police to conduct the investigation and file the final report within three months. SD ASST REGISTRAR ( Crl Side ) /TRUE COPY/ SUB ASST REGISTRAR arul To 1.The Secretary to Government, Home Department, Fort St. George, Chennai. 2.The Superintendent of Police, Thoothukudi District, Thoothukudi. 3.The Inspector of Police, SIPCOT Police Station, Thoothukudi District. 4.The Deputy Superintendent of Police (Rural) Thoothukudi, Thoothukudi District. 5.The Deputy Superintendent of Police, C.B.C.I.D., Madurai. 6.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 1CC TO MR. MUTHALRAJ, ADVOCATE, SR: 32744: DM:2011:OCTOBER:03:: Crl.O.P.(MD).No.3422 of 2011 22.09.2011 4P:8C:; https://hcservices.ecourts.gov.in/hcservices/