1 cri-wp-381-2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Writ Petition No.381 of 2010 Ms.Chabi Dinabandhu Jena Petitioner Vs. Inspector of Police, Tilak Nagar Police Station and ors. Respondents With Criminal Appliation No.99 of 2010 In Criminal Writ Petition No.381 of 2010 Ms.Chabi Dinabandhu Jena Petitioner Vs. Inspector of Police, Tilak Nagar Police Station and ors. Respondents And Shri Nagesh Chhabria Intervenor Mr.S.V.Marwadi, Amicus Curie for petitioner. Mrs.M.M.Deshmukh, APP for State. Mr.Subodh Desai i/b. M/s.Crawford Bayley & Co. for Intervenor in 2 cri-wp-381-2010 Cri.Application No.99 of 2010. CORAM: B. H. MARLAPALLE & ANOOP V. MOHTA,JJ. July 30, 2010. P.C. 1. We have heard Mr.Marwadi who was appointed as amicus curie by this Court, for the petitioner. Mrs.Deshmukh, the learned APP appears for the respondents. 2. Petitioner’s father – Dinabandhu Jena, a resident of Radhika Residency, Near Tilak Nagar Station, Chembur, Mumbai was a private cable operator and had already lodged an FIR on 16th March 2009. He was assaulted on 13/9/2009 in public view at about 8.30 p.m. and some of the eye witnesses had taken him to Rajawadi Hospital. He had sustained head injuries and at about 11.15 p.m. he was discharged from the said hospital against medical advice and came to be admitted in Joy Hospital at about 00.10 hours on 14/9/2009. Within about two hours he was shifted to Sushrut Hospital at Chembur and while under treatment he died in the 3 cri-wp-381-2010 midnight of 18th September 2009. 3. C.R.No.196 of 2009 came to be recorded at about 1.30 a.m. on 14/9/2009 for the offences punishable under Section 307 read with Section 34 of IPC solely on the basis of the statement purportedly recorded of the deceased by the IO Kishor Shelke and on completion of investigation charge-sheet has been filed on 7/12/2009. On committal the case has been registered as Sessions Case No.714 of 2009 for the offence punishable under Section 302 read with Section 34 of IPC. It is not known when the CR was amended from Section 307 to Section 302 of IPC. 4. Though the deceased was alive for five days, no steps were taken to record his dying declaration by a magistrate and it is claimed by the IO that the deceased was unconscious or was not able to make a statement. The learned APP pointed out that a separate certificate stating that the deceased was fit to make a statement when the IO had recorded his statement was obtained from the doctor on duty. Mr.Marwadi pointed out that the said certificate purportedly relied upon does not give the full name of the doctor and there is no substantial material to connect this statement with the statement of the deceased recorded by the IO. Mr.Marwadi also pointed 4 cri-wp-381-2010 out that the IO did not record the statements of all the eye witnesses, failed to take timely steps to seize some of the articles lying at the scene of offence and as per Mr.Marwadi, the investigation was conducted casually and the loopholes left out would benefit the accused. He also submitted that the investigation conducted went to show that the conspirator was being shielded. He also pointed out that the IO did not take steps to record statements of the star eye witnesses, under Section 164 of Cr.P.C. Mr.Marwadi placed reliance on the judgment of this Court in the case of Smt. Salma Babu Shaikh Vs. State of Maharashtra & ors. [2008 ALL MR (Cri) 2717], in support of his prayer for further investigation. 5. Pursuant to the order passed by this Court the learned Amicus Curie, after obtaining the certified true copy of the charge-sheet has placed the same before us. Certain important documents did not find place in the said charge-sheet and Mrs.Deshmukh, the learned APP thereafter pointed out that these documents were subsequently submitted or separately submitted as Exhibit 12 and Exhibit 13 before the Sessions Court. The contentions raised by Mr.Marwadi cannot be brushed aside and we are satisfied that the investigation on the basis of which the charge-sheet has already been filed, suffers from major discrepancies. It has been pointed out that the Sessions 5 cri-wp-381-2010 Court has framed charges on 29/1/2010 and the trial is likely to start at any time. There is sufficient merit in the prayer to direct further investigation under Section 173(8) of Cr.P.C. in this case. 6. Hence we direct the Deputy Commissioner of Police, Zone VI, Mumbai to undertake further investigation and he may form a team of one or two police officers but exclude PI - J.S.Bade and PSI - Kishor Shelke and submit a report in the Court of the further investigation as directed. The statements of Shri Kishor Shelke, PSI, Shri J.S. Bade, PI, doctor who certified that the deceased was fit to make a statement when Shri Kishor Shelke recorded the same in the night of 13th September 2009, shall be recorded under Section 164 of Cr.P.C. and similarly of the additional witnesses, if any as well as the attending doctors from Sushrut Hospital. The SIT so constituted and headed by the DCP shall complete the further investigation as directed within two months from today and file additional charge-sheet. The Petition is disposed off in terms of the above directions. We record our appreciation for the assistance of Mr.Marwadi. 7. Criminal Application No.99 of 2010 does not survive and the same stands disposed. 6 cri-wp-381-2010 8. A copy of this order be forwarded to the Court No.2 at Sewree so as to place in the file of Sessions Case No.714 of 200 on the next date. 9. Parties to act on authenticated copy of this order. (ANOOP V. MOHTA, J.) (B. H. MARLAPALLE, J.)