IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 WP(C).No. 4148 of 2011(P) -------------------------------------- C.C.NO.914/2008 of J.M.F.C.-II, PERINTHALMANNA .................... PETITIONER(S): ----------------------- K.P.AHAMMEDKUTTY, KONDOTTYPARAMBAN HOUSE, PULLANNOR, PULLARA, VALLUVAMBROM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.T.R.RAVI RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. MIDLAJ K., KAPPIL HOUSE, WANDOOR AMSOM DESOM, PUNNAPPALA P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679 328. 3. MUHAMMED ABDULLA, KAPPIL HOUSE, WANDOOR AMSOM DESOM, PUNNAPPALA P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT-PIN- 679 328. 4. SUB INSPECTOR OF POLICE, WANDOOR POLICE STATION. 5. DEPUTY SUPERINTENDENT OF POLICE, PERINTHALMANNA. 6. CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY ITS DIRECTOR, NEW DELHI-110 001. R1, R4 & R5 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA R6 BY ADV.P.CHANDRASEKHARA PILLAI, SC FOR C.B.I THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.4148 of 2011 --------------------------------------- Dated this 23rd day of March, 2011 JUDGMENT Petitioner’s daughter, Amina Mumtaz married to the second respondent, according to the prosecution attempted to commit suicide on 03.08.2007 between 8-8.45a.m at the matrimonial home and while undergoing treatment at MIMS Hospital, Kozhikode she succumbed to the injuries after about two months. It is said, she remained unconscious throughout. Wandoor police registered Crime No.223 of 2007 for offence punishable under Sec.498A r/w Sec.34 of the Indian Penal Code against respondent Nos.2 and 3, husband and his father and the wife of the third respondent alleging that they ill-treated the deceased demanding gold and money, third respondent misbehaved with the deceased and on account of that she committed suicide. On the police submitting final report learned Judicial First Class Magistrate-II, Perinthalmanna took cognizance for the said offence and issued process to respondent Nos.2 and 3 and wife of respondent No.3 in C.C.No.914 of 2008. While so, prosecution prayed to the learned Magistrate that offence under Sec.304B of the Penal Code also may be incorporated in the charge to be framed W.P(C).No.4148 of 2011 -: 2 :- against respondent Nos.2 and 3 and wife of the third respondent. Learned Magistrate rejected that prayer by Ext.P8, order observing that there is no material to show that there was any demand for dowry as defined in the Dowry Prohibition Act immediately before death. Petitioner has filed this writ petition seeking direction to respondent Nos.1 and 5 to conduct fresh investigation into the case or to entrust the case to the Central Bureau of Investigation (for short, “the CBI”) for investigation. Learned counsel submits that there are telling circumstances which require a further investigation in the matter. One Mammad Master whom the deceased (is said to have) called over telephone immediately before the incident to state that she was assaulted by respondent Nos.2 and 3 was not questioned. Though, in the final report it is stated that petitioner, his brother Hamza, Ramla and the said Mammad Master were questioned by the police and their statements recorded, those persons were not questioned. The elder child of the deceased and second respondent when interviewed by a local TV channel immediately after the incident had stated that he had seen respondent Nos.2 and 3 hanging the deceased using a rope used to tie cradle, but that aspect of the matter was not investigated. The ligature was not subjected to forensic examination to find whether there were more stretch W.P(C).No.4148 of 2011 -: 3 :- marks on the said ligature as would be seen if the ligature was used by persons other than the deceased in the course of committing suicide. It is also pointed out by learned counsel that though pointing out these aspects petitioner had preferred a petition to the Dy.S.P, Perinthalmanna on 13.05.2008 nothing was done on that petition. Learned Public Prosecutor has opposed the application contending that the case is posted for evidence. My attention is also drawn to the statement filed by the Sub Inspector, Wandoor who conducted the investigation where he has stated about the steps taken in the investigation. In that statement it is stated that on receipt of Ext.P4, the Dy.S.P, Perinthalmanna verified progress of investigation and was satisfied that investigation was conducted in the proper manner. It is thereafter that final report was submitted to the learned Magistrate, Pathanamthitta on 21.01.2008. It is claimed that investigation has been conducted in a proper and fair manner. 2. I have gone through the relevant records in the CD file given to me for perusal by the learned Public Prosecutor. I find that the investigating officer has questioned one Santhakumar, a Psychiatrist who stated that the deceased had been brought to him for treatment for some time back for depression. The witness gave the opinion that such persons will W.P(C).No.4148 of 2011 -: 4 :- have a tendency to commit suicide. 3. Immediately after the incident, the deceased was taken to NIMS Hospital, Wandoor and the medical officer there referred the deceased to Korambayil Hospital where a wound certificate of the deceased was prepared. Therefrom the deceased was taken to MIMS hospital, Kozhikode where she lay unconscious for about two months and died. The Senior Lecturer in Forensic Medicine who conducted postmortem examination opined that death was due to the delayed effects of hanging. I have gone through the statement of the medical officer who conducted the postmortem examination. I have also gone through the statement of the medical officer who attended the deceased at Korambayil Hospital. He referred to the injuries found on the body of the deceased but was not able to say (then) whether it is a case of suicide or homicide. 4. On going through the statement of the Senior Lecturer in Forensic Medicine who conducted postmortem examination it does not appear that he was interrogated to rule out possibility of a homicide. Nothing is seen stated by the medical officer who conducted the postmortem examination as to whether it is a case of suicide or homicide. He merely stated that death was due to the delayed effects of hanging. How the W.P(C).No.4148 of 2011 -: 5 :- hanging occurred, is the question. 5. I must also take note of the contention of petitioner that himself, Mammad Master and others were not questioned but, I am not going into the question whether the said allegation is correct or not. It is seen that on 13.05.2008 petitioner, airing his suspicion regarding cause of death made a representation to the Dy.S.P, Perinthalmanna. In such a situation it was only appropriate that the investigation was conducted by an officer senior in rank to the Sub Inspector so that the suspicious circumstances if any could have been cleared. Having regard to the circumstances which I have stated above, I am inclined to think that investigation has to be conducted by a senior officer than the Sub Inspector. 6. I have not issued notice to respondent Nos.2 and 3 since in the matter of ordering further investigation it is not necessary to hear them. Resultantly this petition is allowed in the following lines: (i) It is directed that further investigation of the case shall be conducted by a police officer senior to the rank of Sub Inspector having jurisdiction of the area were the alleged incident occurred. W.P(C).No.4148 of 2011 -: 6 :- (ii) That officer shall conduct further investigation taking into account the grievance of petitioner and the circumstances stated above and untrammelled by the observation if any his predecessor-in-office or superior officer has drawn from the investigation already conducted by the Sub Inspector. (iii) The Superintendent of Police, Malappuram shall issue necessary orders in the above lines within a week from the date of receipt of a copy of this judgment. (iv) Petitioner shall make available a copy of the judgment to the Superintendent of Police, Malappuram. (v) It follows that trial of C.C.No.914 of 2008 before the learned Judicial First Class Magistrate-II, Perinthalamanna will stand adjourned until submission of further report under Sec.173(8) of the Code of Criminal Procedure. (THOMAS P JOSEPH, JUDGE) Sbna/-