IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 WP(C).NO. 33328 OF 2010(M) -------------------------------------- CRIME NO.705/2000 OF KOTTARAKKARA POLICE STATION. ................... PETITIONER(S): ----------------------- SMT.SARAMMA PONNACHAN, W/O.LATE PONNACHAN, AGED 37 YEARS, RESIDING AT CHURAKKUZHI HOUSE, KALAYAPURAM P.O, KOTTARAKKARA TALUK, KOLLAM DISTRICT. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHPAURAM-695 001. 3. THE SUPERINTENDENT OF POLICE (RURAL) KOLLAM-691 001. 4. THE DEPUTY SUPERINTENDENT OF POLICE, PUNALUR-691 305. 5. THE CIRCLE INSPECTOR OF POLICE, KOTTARAKKARA-691 506. 6. THE CENTRAL BUREAU OF INVESTIGATION, NEW DELHI, REP. BY ITS DIRECTOR, 110 001. R1 TO R5 BY GOVT. PLEADER SMT.M.K. PUSHPALATHA. R6 BY ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs THOMAS P. JOSEPH, J. -------------------------------------- W.P(C.) No.33328 of 2010 -------------------------------------- Dated this the 24th day of February, 2011. JUDGMENT Petitioner's husband, Ponnachan aged about 37 years was found hanging on a rubber tree in the estate of Chandavila John on 18.09.2000 at about 7.30 a.m. Matter was intimated to the Kottarakkara Police who registered Ext.P1, FIR (Crime No.705 of 2000) under Section 174 of the Code of Criminal Procedure. The body was subjected to postmortem examination (Ext.P2 is the postmortem certificate). The Associate Professor who conducted that examination opined that postmortem findings are consistant with death due to hanging. Investigation was taken up by the Circle Inspector of Police, Kottarakkara. According to the petitioner, her husband was brutally attacked by a few persons on the previous day of incident and details of those persons were given to the Investigating Officer (Circle Inspector of Police, Kottarakkara) but, nothing worthwhile happened. Since investigation was not being conducted in the proper manner, according to the petitioner without even questioning the witnesses to the incident, she made Exts.P11, P14 and P15, representations to the various authorities requesting for a proper investigation of the case. Unable to get any positive response, petitioner approached this Court in W.P.(C) No.23753 of 2008 and this Court by Ext.P17, judgment dated 10.09.2009 WP(C) No.33328/2010 2 observed that inspite of the case being investigated for so many years there appeared to be no progress and investigation was at the same point where it started. This Court thought that in the interest of justice investigation is to be conducted by a senior officer and accordingly it was directed that respondent No.1 shall constitute a special team for investigation of the case headed by an efficient Deputy Superintendent of Police. Respondent No.1, the State thought that the then Deputy Superintendent of Police, Punalur is an efficient officer who would be able to make a break through so far as the incident is concerned and accordingly entrusted investigation to him. He continued the investigation. Still, things remained as it was before, according to the petitioner. Thereon petitioner has approached this Court again with this petition requesting to entrust the investigation to the Central Bureau of Investigation (for short, “the CBI”). Learned counsel for petitioner has referred me to the relevant records and the counter affidavit filed by respondent No.4, the present Deputy Superintendent of Police (who took charge only in 08/2010. According to the learned counsel, investigation cannot proceed in this line and in the nature of the investigation conducted by the State Police so far, it is only appropriate that investigation is handed over to the CBI. Learned Public Prosecutor submitted that after this Court passed Ext.P17, judgment a special team headed by the then Deputy Superintendent of Police, Punalur was constituted to investigate the case and that respondent No.4 has stated in detail the investigation conducted so far. 2. I have taken through Ext.P16, photographs of the deceased seen in a hanging position on a ligature on a rubber tree. It is seen that his legs have WP(C) No.33328/2010 3 firmly touched the ground and the knees are bent. The Medical Officer who conducted postmortem examination has stated that postmortem findings are consistant with death due to hanging. I am not expressing any opinion as to whether the death was a suicide or homicide merely based on the photographs. It is seen from the documents produced by the petitioner that several representations were made to various authorities requesting proper investigation of the case. It is the consistant version of petitioner that her husband was assaulted by a few persons whose names were disclosed to the previous Investigating Officers and they were also informed about the witnesses to the said incident. Ext.P20 is a letter addressed by the petitioner to respondent No.4 on 22.11.2010 stating that one of the persons named by petitioner as assailant were abroad after the incident, he returned and as on the date of Ext.P20, letter he was available at Pooyyappally and is about to go abroad again after disposing of some of his properties and hence it is necessary that the said person is questioned to unravel the truth behind the incident. In the affidavit in support of I.A.No.3271 of 2011 it is stated in paragraph 3 that the said person had been to the office of Sub Registrar, Kalayapuram on 01.12.2010, stayed in his wife's house at Pooyyappally and on that day petitioner informed respondent No.4 four times about the presence of the said person at the said place but, no action was taken. 3. It is appropriate to refer to the counter affidavit filed by respondent No.4. In paragraph 5 it is stated that after Ext.P17, judgment a team headed by the then Deputy Superintendent of Police, Punalur was constituted and the WP(C) No.33328/2010 4 predecessor in the office of respondent No.4 visited the scene of occurrence and questioned 11 witnesses who appeared to him to be aware of the facts and circumstances of the incident. In paragraph No.6 it is stated that the present incumbent in the office of Deputy Superintendent of Police, Punalur took up investigation on 16.08.2010, visited the scene of occurrence and made sincere efforts to unravel the mystery behind death of husband of petitioner. In paragraph 7 it is stated that from the investigation conducted so far and the various circumstances it is revealed that involvement of four persons is strongly suspected in the incident. But there is insufficiency of direct witnesses/evidences and those who are aware of the incident did not dare to disclose it due to fear of the suspected persons. It is stated that since almost ten years have elapsed, suspects got enough time to teach the witnesses and the neighbours of the place of occurrence of the incident. 4. It appears to be a shame to the Police brought about by the concerned officers to say that witnesses who are aware of the incident, due to fear of suspected persons did not disclose the incident which only indicate that the Police was not able to give sufficient protection to the persons who are acquainted with the facts of the case. I believe, that also is a responsibility of the investigating team. It is stated in the counter affidavit that since ten years have elapsed, the suspects got enough time to teach the witnesses and the neighbours of the place of occurrence. I can understand that the present Deputy Superintendent of Police, Punalur took charge only in 8/2010 and he took up investigation of the case only on 16.08.2010, but I wonder what the WP(C) No.33328/2010 5 previous Investigating Officers were doing if they were aware of the incident referred to in paragraph 8 of the counter affidavit of respondent No.4. There is every reason to think that the previous Investigating Officers have not discharged their duty. 5. I do not want to add further. But, the investigation cannot proceed in this line. If it is a case of murder, persons involved are to be brought to book. It is only appropriate that the investigation is conducted by more experienced officer. 6. So far as the request to transfer investigation to the CBI is concerned, guidelines have been prescribed by the Supreme Court in State of West Bengal v. Committee for Protection of Democratic Rights (2010 (1) KLT 723). True, the guidelines mentioned are not exhaustive but, only illustrative. But, having regard to the principle laid down I am not inclined to think that investigation of the case has to be handed over to the CBI. Learned Public prosecutor tells me that since this Court has decided to transfer investigation to a better team of officials, investigation could be given to the H &HW-I, Thiruvananthapuram which is headed by the Superintendent of Police. Having regard to the circumstances of the case I think that to be the appropriate course. Resultantly this petition is disposed of in the following lines: i. The Additional Director General of Police (Crimes), WP(C) No.33328/2010 6 Thiruvananthapuram shall pass necessary orders within two weeks from the date of receipt of a copy of this judgment (which shall be made available by the petitioner) entrusting investigation of Crime No.705 of 2000 of Kottarakkara Police Station to the H&HW-I, Thiruvananthapuram. Investigation shall be conducted by the Superintendent of Police of that wing and a team of officials of his choice. If found necessary, and as the rules permit, it will be open to the Superintendent of Police to co-opt to his team the present Deputy Superintendent of Police, Punalur or such other officer as thinks proper. ii. It is also directed that the investigation being conducted by the team as aforesaid shall be supervised and monitored by the Deputy Inspector General of Police in charge of H&HW-I, Thiruvananthapuram. He shall verify whether there was any commissions or omissions on the part of officers who conducted investigation before respondent No.4 (the present Deputy Superintendent of Police) took charge of investigation on 16.08.2010 and if so found, shall make necessary recommendation for departmental action against such officers since such strong measures is needed to instill confidence in the minds of the public about credibility of State Police. THOMAS P.JOSEPH, Judge. cks