IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 WP(C).No. 33365 of 2009(Q) --------------------------------------- (CRIME NO. 282/2006 OF THAMARASSERY POLICE STATION) ...................... PETITIONERS: --------------------- 1. K.V. RAFEEQUE , S/O.MOIDEEN AGED 33 YEARS, KALLUVEETTIL HOUSE, KIDAVOOR AMSOM, KATTIPPARA,KOZHIKODE DISTRICT. 2. THAJUNNEESSA, W/O. RAFEEQUE, PURAMBOKKIL HOUSE, KIDAVOOR AMSOM ,KATTIPPARA, KOZHIKODE DISTRICT. BY ADV. MR.P.V.KUNHIKRISHNAN. RESPONDENTS: ------------------------ 1. CIRCLE INSPECTOR OF POLICE, THAMARASSERY. 2. SUPERINTENDENT OF POLICE, RURAL, KOZHIKODE. 3. DIRECTOR GENERAL OF POLICE THIRUVANANTHAPURAM. 4. SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, OFFICE OF THE CBI KATHRIKADAVU, ERNAKULAM. 5. STATE OF KERALA, REPRESENTED BY SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3 & R5 BY GOVERNMENT PLEADER MR. P.A. SALIM, R4 BY MR.M.V.S.NAMBOOTHIRY,SC, C.B.I. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 33365 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 14th day of January, 2010 JUDGMENT First petitioner is de facto complainant and second petitioner is the widow of deceased Resheeque. This writ petition is filed under Article 226 of the Constitution of India for a writ of mandamus directing fourth respondent to re- investigate Crime No. 282 of 2006 of Thamarassery Police Station or in the alternative to direct third respondent to entrust the investigation with Crime Branch for reinvestigation. 2. Ext.P1 is the final report filed after investigation of Crime No. 282 of 2006 of Thamarassery Police Station registered under sections 342, 323, 307, 302 read with section 34 of Indian Penal Code against three accused. Prosecution case, as seen from Ext.P1 final report, is that deceased Resheeque purchased jeep KL-10A/4707, for Rs.45,500/-, out of which Rs.15,500/- was paid and for the W.P.(C) No. 33365/2009 2 balance of Rs.30,000/- arrangement was made with Star Finance, Chungam and the balance was agreed to be paid to the first accused and Rs.15,000/- was received by the first accused and the balance of Rs.15,000/- was not received on the failure of Resheeque to hand over two cheque leaves to the financiers in spite of repeated request and as Resheeque had not given the cheque leaves ,on 17-6-2006 at about 3.30 P.M., the three accused proceeded in auto rickshaw KL- 11M/951 and reached near Christian Church, Kattippara. When Refeeque along with his child aged 2 ½ years came in jeep KL-10A/4707, the accused stopped the jeep and thereafter two of them got into the jeep and the second accused got into the auto rickshaw and both the vehicles proceeded towards Aryankulam. When they reached Aryankulam, a lonely place, due to the previous enmity, with the intention to cause his death, Resheeque was thrown out of the jeep along with the child, causing grievous hurt to him and thereby caused his death. 3. The case of the petitioners is that there was no W.P.(C) No. 33365/2009 3 proper investigation and as the final report has already been submitted a reinvestigation is to be ordered either by Central Bureau of Investigation or by the Crime Branch. 4. The Circle Inspector of Police who investigated the case filed a detailed statement, contending that there was no circumstances warranting any further investigation. 5. Heard the learned counsel appearing for the petitioners and the learned Public Prosecutor. 6. The argument of the learned counsel appearing for the petitioners is that as seen from the postmortem certificate, death was caused due to the head injury, which could be caused if the deceased was hit on that part of the head with a weapon and when the deceased was taken in the jeep by the accused, if a proper investigation was conducted, it would have revealed that the injury, which caused the death was not due to the fall from the jeep, but by physical hitting on that part of the head. Learned counsel also submitted that the statement of the charge witness Razeena reveals that she had given a statement that W.P.(C) No. 33365/2009 4 hearing the sound while she was in her house, she had gone to the place of occurrence, where the deceased with the child was found fallen. Her statement shows that the deceased was taken in an auto rickshaw to a hospital, Thamarassery. It is contended that if the driver of the auto rickshaw was questioned, further details would have been revealed and therefore, further investigation is to be ordered. 7. Learned Public Prosecutor submitted that those aspects were considered by the Investigating Officer and there is no reason to order any further investigation. 8. Though the writ petition is filed for a writ of mandamus for re-investigation, legally it is not possible to order re-investigation. If at all, as provided under section 173(8) of Code of Criminal Procedure there could only be a further investigation. The question is whether on the facts and the materials collected, a further investigation is warranted. 9. Though learned counsel submitted that there was W.P.(C) No. 33365/2009 5 no proper investigation to find the cause of the death, by questioning the doctor as to how the fatal injury was caused, it is seen from the statement of the doctor, who conducted the autopsy, that the injury is possible if that part of the head had hit on a hard substance while falling. In such circumstances, it cannot be said that there was no investigation on that aspect. 10. According to the prosecution case, when the deceased was taken by the accused after the jeep was stopped by the accused at that place, in the jeep there were only the accused, deceased and the child. Therefore, nobody else witnessed, as to what really transpired inside the jeep, unless somebody has the chance to witness what has taken place in side the jeep, while it was moving. There is no case even for the petitioners that any person had witnessed any such incident. Therefore, I find no reason to order further investigation on this aspect also. 11. The crux of the argument of the learned counsel is that the deceased was taken in an auto rickshaw to the W.P.(C) No. 33365/2009 6 Thamarassery hospital and the driver of the auto rickshaw was not questioned. First of all, there is no case that any auto rickshaw was following the jeep, so that the auto rickshaw driver could have personal knowledge as to what transpired inside the jeep. I find that it is the prosecution case that except the second accused, the other two accused got into the jeep along with deceased and proceeded from that place and second accused took the auto rickshaw and followed it. Though learned counsel argued that the deceased was not taken to the hospital in that auto rickshaw in which second accused was following, but in another vehicle, from the statements of the witnesses recorded, as is clear from the case diary, when the deceased was found fallen on the road along with the child, people had gathered there. They had given statements that at that time, a jeep was parked and nearby an auto rickshaw was also parked. The statements also reveal that it is in that auto rickshaw, the deceased was taken to Thamarassery hospital. If that be so, it cannot be said that police has failed to investigate the W.P.(C) No. 33365/2009 7 said angle by questioning the auto rickshaw driver. No other circumstances is pointed out warranting further investigation. Hence, this writ petition fails and is dismissed accordingly. M.SASIDHARAN NAMBIAR, JUDGE. mn.