IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 WP(C).No. 1983 of 2010(Q) ------------------------- PETITIONER(S): --------------- K.MOHAMMED ALI HAJI ALIAS KUNHAPPU, RESIDING AT KALATHIL HOUSE,MELATOOR, MALAPPURAM DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): --------------- 1. THE STATE OF KERALA,REPRESENTED BY THE SECRETARY TO HOME DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. P.PUSHKARAN,DEPUTY SUPERINTENDENT OF POLICE,SHORNUR,MANNARKKAD,PALAKKAD. 4. THE SUB INSPECTOR OF POLICE,MANNARKKAD POLICE STATION,PALAKKAD. GOVERNMENT PLEADER MR.C.S.HRITHIK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb V.RAMKUMAR, J. ------------------------------------- W.P.(C). No.1983 OF 2010 -------------------------------------- Dated this the 17th day of June, 2010 JUDGMENT In this writ petition filed under Article 226 of Constitution of India, the petitioner who is the father of 23 year old Femina, who died on 17.11.2009 in her matrimonial home, seeks a direction to the 1st respondent, State of Kerala to hand over the investigation of Crime No.777/09 of Mannarkkad Police Station to the Central Bureau of Investigation or to a Special Investigation Team to be constituted. 2. Marriage between the 1st accused, Askaralikhan and the petitioner's daughter Femina was on 22.7.2007. A female child has been born in that wed lock. The 1st accused belong to Kalladikode, Mannarkkad in Palakkad District and the petitioner belongs to Melatur in Malappuram District. The body of Femina was allegedly found hanging in her matrimonial home on 17.11.2009. 3. The Mannarkkad Police registered the above crime under caption “unnatural death” under Section 174 Cr.P.C. Autopsy of the dead body of Femina was conducted by W.P.(C). No.1983 OF 2010 : 2 : Dr.P.B.Gujaral, District Police Surgeon, District Hospital, Palakkad on 18.11.2009 at 1.25 P.M. There were altogether 23 ante-mortem injuries on the head and neck of deceased Femina. The 3rd respondent, Deputy Superintendent of Police, Shornur is the Officer, who is in charge of the investigation. The petitioner has a contention that the 3rd respondent was helping the accused as they are neighbours. 4. The 3rd respondent has filed a statement dated 11.3.2010 as per which he has inter alia stated as follows:- “Investigation so far made in this case disclosed that accused Askarali Khan married the above said Femina on 22.07.2007 as per religious custom. The parents of Askaralikhan had demanded 250 sovereigns of gold ornaments and a Car to give Femina as dowry, but Femina's parents gave 175 sovereigns of gold ornaments to Femina during the time of marriage. While Femina was residing in her husband's house her husband Askarali Khan, his mother Laila, brother Anwaralikhan and sister in law Gul Fairoossa continuously subjected her for mental and physical torture demanding to bring the remaining 75 sovereigns of gold ornaments and the Car from her house, abetted her to commit suicide and on the morning of 16.11.2009 & 17.11.2009 A1 Askaralikhan W.P.(C). No.1983 OF 2010 : 3 : assaulted her and due to the frustration in life following their torture and abetment Femina committed suicide by hanging inside the house of her husband situated at Kalladikkode sometime in between 15.30 and 16.00 hrs. on 17.11.2009. Based on the findings of investigation the section of law was altered into Section 304 (B), 306 read with 34 IPC on 19.11.2009.” 5. So far the persons, who have been arrayed as accused are A1 Aksaralikhan, the husband of the deceased, A2 Laila, the mother of A1, A3 Gul Fairoossa, the sister of A1 and A4 Anwaralikhan, the brother of A1. With regard to the cause of death, the statement of the 3rd respondent as gathered from the relatives of the deceased reads as follows:- “On 16.11.2009 and 17.11.2009 morning Aksaralikhan assaulted Femina by beating with hands following a wordily quarrel and on 17.11.2009 Femina contacted her house at Melattur over phone several times and wanted her father to reach there to bring her to the house and to go to the hospital. Accordingly, when her father reached at the house of Femina at about 16.15 hrs. on 17.11.2009, he understood that Femina was removed to the hospital for treatment and when he reached at Lakshmi Nursing Home, Palakkad he found his daughter Femina lying dead with ligature mark on her neck and her husband or relatives were not W.P.(C). No.1983 OF 2010 : 4 : found in the Hospital. It is also ascertained from the doctor that Femina died before reaching the Hospital.” 6. The 3rd respondent would proceed to a conclusion based on the findings in the investigation conducted by him that the offences revealed are those punishable under Section 304B and 306 read with 34 IPC. These offences were incorporated on 19.11.2009. 7. From the findings of the Autopsy Surgeon coupled with his statement allegedly made under Section 161 Cr.P.C, it cannot be conclusively held that the death of Femina was suicidal hanging and not homicidal hanging. It appears that after sustaining ante-mortem injuries described in Ext.P2 post mortem certificate, Femina could not have been in a position to commit suicide by hanging. A proper investigation does not appear to have been conducted to rule out the possibilities of a homicidal hanging. The conclusion reached that Femina committed suicide on account of corporal torture by the four accused persons, pursuant to the demand for more dowry and thereby they abetted the suicide of Femina is open to doubt. The apprehension expressed against the 3rd respondent (investigating officer) also cannot be lost sight of. Under W.P.(C). No.1983 OF 2010 : 5 : these circumstances, I am of the view that the investigation of this case should be entrusted with the Crime Branch Police under the able leadership of an officer not below the rank of a Superintendent of Police with investigative skills and who will bring the case to a logical conclusion through an unbiased investigation. Accordingly, this writ petition is disposed of directing the 2nd respondent to entrust the investigation of Crime No.777/2009 of Mannarkkad Police Station with the Crime Branch Police headed by an officer not below the rank of Superintendent of Police. It shall be open to the 2nd respondent, either to constitute a Special Investigation Team under the leadership of a Superintendent of Police so chosen or to order further investigation under a single Officer of the rank already mentioned and of unquestionable integrity and with investigative skills. The 3rd respondent shall hand over the investigation files to the Director General of Police, immediately. V.RAMKUMAR, JUDGE dmb