IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 WP(C).No. 4671 of 2010(Q) --------------------------------------- PETITIONER(S): --------------------- DEVI, AGED 54 YEARS, W/O.KUNJAPPAN, MALAYIL HOUSE, EZHUPURAM, AIKKARANADU NORTH VILLAE, KADIYIRUPPU PO, ERNAKULAM DISTRICT. BY ADVS. SRI.BABY KURIAKOSE SRI.P.VIJAYAKUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, HOME (C) DEPARTMENT, TRIVANDRUM. 2. SUPDT OF POLICE,ERNAKULAM(RURAL), ALUVA. 3. S.I.OF POLICE, PUTHENCRUZ. 4. CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY SP,ERNAKULAM. 5. SUPERINTENDENT OF POLICE, CRIME BRANCH, ERNAKULAM. R1 TO R3 & R5 BY GOVERNMENT PLEADER SRI.P.A.SALIM R4 BY ADV. SRI.M.V.S.NAMBOOTHIRY, SC, CBI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.Sasidharan Nambiar, J. -------------------------- W.P.(C)No.4671 of 2010 Q -------------------------- JUDGMENT Petitioner, the mother of Subramanian, a goods autorickshaw driver, who was found in Indranchira lake on the night of 28.9.2008 and died when he was taken to the hospital, filed this petition under Articl2 226 of Constitution of India for a writ of mandamus directing fourth respondent, Central Bureau of Investigation or any other Investigating Agency to conduct an exhaustive and fair investigation on the death of her son. Petitioner would contend that there was no proper investigation and Subramanian's was a love marriage and there was difference of opinion between the husband and wife and he had even suspected infidelity of the wife. It is contended that on 28.9.2008 at about 9.30 p.m., Subramanian received a phone call in his mobile phone 9387278706 and wife had given Rs.100/- readily to Subramanian and WPC 4671/10 2 he rushed out, as if it was an emergency call and on the way, he called back and informed that he is going to Kolenchery, about seven kilometres away and would return immediately. Later, at about 11 p.m., it was informed that Subramanian met with an accident near Moosaripady, while he was driving the autorickshaw and fell into Indranchira lake. Petitioner, along with her sister-in-law, rushed to the spot. By that time, Subramanian was taken to the hospital and it was informed that he died by the time he reached the hospital. It is contended that there was fresh blood on the other side of the road, away from the lake and petitioner was informed that when the body was recovered from the lake, body was fresh and warm pool of blood was there. It is also contended that proper investigation was not conducted and though an action committee was formed, who submitted Exhibit P1 representation to the Home Minister for a proper investigation, subsequently, they had given up the WPC 4671/10 3 idea. It is contended that if a proper investigation was conducted, it would have revealed that Subramanian was murdered and the culprits could be brought before the court and in such circumstances, proper investigation is to be ordered. 2. Third respondent filed a counter affidavit stating that Crime No.641/2008 under the caption 'unnatural death' was registered under Section 174 of Code of Criminal Procedure at Puthencruz Police Station at about 7 a.m. on 29.9.2008. Body of Subramanian and the autorickshaw was found in Indianchira lake and the body was recovered one hour, after the goods autorickshaw was found in the lake. He reached the spot immediately on getting information and with the help of public and fire force personnel, body of Subramanian was recovered. It is stated that on investigation, no material could be unearthed suspecting any foul pay. The postmortem report shows that deceased had consumed WPC 4671/10 4 alcohol and his death was due to asphyxia, following the head injury. The report submitted by the Motor Vehicles Inspector, on inspection of the autorickshaw, shows that there was no mechanical defect to the vehicle and as there was no suspicious circumstances on the death of Subramanian, it is concluded that it was only an accidental death. 3. Learned counsel appearing for the petitioner and learned Government Pleader were heard. 4. Argument of the learned counsel appearing for the petitioner is that there was dispute between Subramanian and his wife and on the night of 28.9.2008 at about 9.30 p.m., Subramanian had received a phone call in his mobile phone and his wife had readily paid Rs.100/-, to enable him to go out. Subramanian had gone out in the authorickshaw and if death of Subramanian was due to a road accident, damage would have been caused to the parapet wall of the lake and presence of blood on WPC 4671/10 5 the side of the lake casts sufficient doubt with regard to the cause of death and it is gathered that while Subramanian was proceeding in the autorickshaw, it was intercepted and he was beaten and caused his death and thereafter, the body, with the autorickshaw, was thrown into the lake and in such circumstances, proper investigation is warranted. 5. Learned Government Pleader pointed out that investigation does not reveal any suspicious circumstances and even when petitioner was questioned under Section 161 of Code of Criminal Procedure, there was no case for the petitioner that there was suspicion with regard to the death and in such circumstances, no further investigation is warranted. Government Pleader made available the vase diary. 6. On perusing the case diary, it is seen that statement of the petitioner and her daughter-in- law, the widow of the deceased, were recorded by WPC 4671/10 6 the Investigating Officer without delay. Petitioner has no case in the writ petition that her statement was not correctly recorded or that she did not get an opportunity to disclose the facts, including the suspicious circumstances, to the Investigating Officer. Statement of the petitioner recorded, seen in the case diary, reveals that she did not raise any suspicion on the death and instead, stated that death would have caused due to his negligent driving. Though it is contended by the petitioner that if it was a case of accident, without causing damages to the parapet wall, autorickshaw could not have fallen into the lake, case diary contains the mahazar which reveals that parapet wall to a distance of 1½ metres was damaged and there was tyre mark also, indicating that autorickshaw was coming in high speed and brake was applied and still, it had fallen into the lake. 7. Though learned counsel argued that postmortem certificate does not support the WPC 4671/10 7 conclusions arrived at by the Investigating Officer, it shows that the Assistant Surgeon, who conducted the autopsy, has concluded that death is due to asphyxia following drowning and head injury. Though it was argued that the injuries found on the right side of the scalp, on the parietal region, is indicative of an attack on him, as found by the Investigating Officer, that injury could have caused when the autorickshaw fell into the lake and that part of the head hit on the metalic part of the autorickshaw. On going through the entire case diary, I find no reason to order further investigation by any other agency, as sought for, especially when, when petitioner was questioned under Section 161 of Code of Criminal Procedure, she had no case that deceased had received a phone call in his mobile phone and so had gone out and for that purpose wife of the deceased had given money to him. Instead, the case was that one of the relatives of the petitioner was admitted in the WPC 4671/10 8 hospital and the mother told the son to enquire about it, which version is supported by the statement of the widow of the deceased available in the case diary. In such circumstances, petition is dismissed. 6th December, 2010 (M.Sasidharan Nambiar, Judge) tkv