IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).No. 1312 of 2010(Q) ---------------------- PETITIONER(S): ------------ JOHN XAVIER, S/O.THOMAS XAVIER, HOUSE NO.XIV/341, MALIAKKAL HOUSE, SOUTH VAZHAKULAM P.O., KUNNATHUNADU, ERNAKULAM, REP. BY HIS POWER OF ATTORNEY HOLDER, MR.JOHNY P.V., S/O.VARGHESE, H.NO.II/239, PYNADATH HOUSE, MANJAPRA, ALUVA. BY ADV. SRI.K.R.VINOD SRI.K.V.VINOD RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY, MINISTRY OF HOME, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, KERALA STATE , POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. -:2:- 3. THE INSPECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 4. THE SUPERINTEND OF POLICE, RURAL (ALUVA). 5. THE CIRCLE INSPECTOR OF POLICE, PATTIMATTOM, ERNAKULAM. 6. THE SUB INSPECTOR OF POLICE, THADIYITTAPARAMBU POLICE STATION, ERNAKULAM. GOVERNMENT PLEADER SRI. KAMMAPPU SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR ADDL.R7. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15- 7-2010 THE COURT ON 17-09-2010 DELIVERED THE FOLLLOWING: V. RAMKUMAR,J. ............................................ W.P. ( C ) No. 1312 of 2010 ........................................... Dated: 17th September, 2010 Judgment In this Writ Petition filed under Article 226 of the Constitution of India, the petitioner who is the father of Justin John Xavier aged 18 years seeks a direction to the 2nd respondent Director General of Police to handover the investigation of Crime No. 262 of 2009 of Thadiyattuparambu Police Station to the Crime Branch or any other efficient investigation team for the purpose of conducting a proper investigation regarding the cause of death of the petitioner's son . 2. The case of the petitioner is as follows:- The petitioner is working at Saudi Arabia along with his wife for the past 23 years. Pettiioner's son Justin John Xavier aged 18 years was studying for B.Tech + M.Tech dual degree course in the Amity University's Institute of Space Sciences and Technology, Noida,U.P. The boy joined the said institution on 3-8-2009 after completing his higher W.P. ( C ) No. 1312 of 2010 2 secondary in Montford School, Yearcaud. He was very good at sports especially in swimming and was the recipient of several medals in waterpolo games. He was having a height of 184 cms. and weight of 67 kgms. He never had any serious medical problem requiring any special care. Soon after joining Amity University at Noida, petitioner's son had called the petitioner and had complained about ragging and torture by some of the senior students in the said institution and that inspite of his complaint the school authorities had not taken any effective steps against such atrocities. However, the petitioner advised his son to remain bold and if the torture became unbearable to him, to discontinue his studies. The petitioner's younger sister Philomina is living in Mumbai. The petitioner had advised his son Justin to keep in touch with Philomina everyday. The petitioner had also asked his sister Philomina to call his son everyday to know whether his son could put up with the atmosphere in the institution. On 3-09-2009 at 8.45 a.m. when Philomina called the petitioner's son over his mobile phone, the phone was picked up by somebody who told her that the petitioner's son had died due to cardiac arrest while he was in the swimming pool in the W.P. ( C ) No. 1312 of 2010 3 institution. Soon thereafter the University people called the petitioner's relatives and confirmed the news about the death of his son. Petitioner's son had no cardiac problems and he had never complained of any chest pain till date . Eventhough the university people had shown unnecessary haste to conduct the postmortem even before the arrival of the petitioner's relatives at the spot, their attempt did not succeed due to the timely intervention of the petitioner's relatives. The postmortem was conducted at 3 p.m. on 4-9-2009 by a doctor who had a dubious background. It is stated in the postmortem report that the petitioner's son died due to asphyxia from drowning. The postmortem doctor had also noted some injuries on the deadbody. The said doctor did not preserve the viscera and other internal organs of the deceased for forensic examination. Soon after the postmortem, the police hastily closed the investigation stating that the mishap was due to cardiac arrest. The police had not registered any crime nor had they submitted any report to the Sub Divisional Magistrate concerned as required by law. The petitioner approached various authorities to find out the real cause behind the suspicious death of his son. He had submitted Ext.P2 W.P. ( C ) No. 1312 of 2010 4 representation dated 30-09-2009 to the Secretary, Human Rights Commission, who in turn forwarded the same to the Minister of State Home Affairs, Government of India, as revealed by Ext.P3 letter. The Hon'ble Minister for State Home Affairs directed the 2nd respondent/Director General of Police, Kerala, to take appropriate action in the matter as revealed by Ext.P4 letter. The Hon'ble Minister of State for Home Affairs had also directed the Chief Minister of Uttar Pradesh to order a high level enquiry in the matter as evidenced by Ext.P5 letter dated 8-10-2009. A similar letter was forwarded to the Minister of Home Affairs, Government of Kerala, a copy of which is Ext.P6 . On the strength of advise the petitioner filed the original of Ext.P7 complaint dated 16-10-2009 before the third respondent/Inspector General of Police, Police Headquarters, Thiruvananthapuram requesting to conduct a detailed investigation regarding the mysterious death of his son by constituting a special investigation team and conducting a re-postmortem of the dead body and to do the needful for arresting the culprits who had murdered the petitioner's son. This resulted in the Thadiyattuparamba Police, registering a case as Crime No. 262 of 2009 under the caption W.P. ( C ) No. 1312 of 2010 5 “unnatural death”. Ext.P8 is the first information report filed before the Sub Divisional Magistrate, Moovattupuzha. Eventhough investigation was subsequently conducted by higher police officials, for reasons unknown to the petitioner the investigation came to a standstill by the police coming to the conclusion that the death of the petitioner's son was due to asphyxia from drowning. Petitioner strongly believes that his son was brutally murdered by the senior students in the campus as a result of ragging and it was on account of the influence exerted on the investigating agencies that proper investigation was not conducted. Hence, this Writ Petition. 3. The 5th respondent Circle Inspector of Police, Pattimattom has filed a statement contending inter alia as follows:- Based on a complaint by the petitioner to the Inspector General of Police, Crime No. 62/2009 was registered by the Thadiyattuparamba Police Station under the caption “ unnatural death”. The case was registered on 20-10-2009. After obtaining the permission from the District Magistrate the body of Jutin Xavier was exhumed from the cemetry of Infant Jesus Church, Vazhakulam on 21-10-2009. An W.P. ( C ) No. 1312 of 2010 6 inquest over the deadbody was held by the R.D.O. Moovattupuzha. Thereafter a second autopsy on the deadbody of Justin was conducted by a team of doctors led by Dr. Sreekumari , Police Surgeon, Alappuzha Medical College, assisted by two other doctors . It was found that the first autopsy performed at the Government Postmortem Centre, Noida, in Uttar Pradesh was not proper and that detailed examination of the internal organs including lungs, brain, heart etc. was not conducted . During the second autopsy the following ante mortem injuries were observed on the body of Justin a) Contusion on the right side of back of head b) Contusion on the left side of the front of head c) Contusion on the right side of back of trunk d) Contusion on the left side of middle of back of trunk The cause of death of Justin could not be conclusively established even after the re-postmortem since results of laboratory investigations including diatom test were pending. On 4-12-2009, a request for expediting the chemical analysis report was sent . The Superintendent of Police, Ernakulam Rural had as per order dated 20-10-2009 constituted a special investigation team headed by J. Jayanth, I.P.S., Assistant W.P. ( C ) No. 1312 of 2010 7 Superintendent of Police to investigate this case. The police team visited Noida from 26-10-2009 to 2-11-2009. Investigation was conducted at the University Campus, Justin's Hostel, the Police Station where the death was reported and the hospitals where the deceased was treated . 50 witnesses were questioned and three documents were seized . The investigation revealed the following facts:- 18 year old Justin John Xavier joined the B.Tech + M.Tech dual degree course on Aerospace Engineering and Aviation conducted by the Institute of Space Science and Technology in the Amity University Campus at Noida on 3-8-2009 . Since then he was a resident of Boys' Hostel - I at the University Campus. He was sharing Room No. G-12 with one Jathin Jagdish Kulkarni, a classmate of Justin. He was friendly with Sayan Roy who was staying in Room No. G-11 and with Sasank Shekhar Harivyasi who was staying in Room No. G-28. Justin was interested in swimming and basket ball. As per the records maintained by the swimming pool Justin had visited the pool on 4 occasions namely (i) from 1900 to 2000 hours on on 22-08-2009, (ii) from 1000 to 1100 hours on 23-08-2009 (iii) from 0800 to W.P. ( C ) No. 1312 of 2010 8 0900 hours on 29-8-2009 and (iv) from 0730 to 0830 hours on 03-09-2009 . According to Jathin Kulkarni, Justin used to take calcium tablets and was using heating pads. As per the Amity Clinic Records from 16-08-2009 to 18-8-2009 Justin was treated at Amity Clinic and Kailash Hospital for cold, cough and loose motion and at Kailash Hospital Justin was given a dressing for the injury on his right leg sustained by him while playing basket ball. According to Sayan Roy and Jathin Kulkarni, Justin was suffering from chest pain after he was accidentally hit on the chest during a basket ball game on 1-8-2009. On 2-8-2009, Sayan Roy and Justin had combined study in Justin's room from 2100 hours to 0130 hours and Jathin Kulkarni came to the room at 0115 hours and both Jathin and Justin went to bed at 0230 hours. On 3-9-2009, Justin went to the swimming pool at 0730 hours along with Sayan Roy and Sasank Harivyasi . As per the swimming pool records seven other students were present in the swimming pool between 0720 hours and 0830 hours. Four life guards were also present during that time. One of the students Ajay would claim that eventhough he had made an entry in the register, he did not enter the W.P. ( C ) No. 1312 of 2010 9 swimming pool during the aforementioned time. This needs a further probe since going by the version of Hemaraj Joshi and Bhagavan Singh, the security guards at the swimming pool all the students who got into the swimming pool after entering their names in the register were inside the pool till 0800 hours and nobody went outside. According to the witnesses Justin did warm up when Sasank Harivyasi and Sayan Roy entered the pool. After some time Sayan Roy and Justin did a race for two laps breadth wise of the pool and Justin finished ahead of Sayan Roy . Thereafter Sayan Roy was talking to life guard Chottu Naskar about improving his swimming skills. While Sayan Roy was talking to Chottu Naskar, Justin was doing underwater swimming. The Sayan Roy felt something touching his legs. He looked into the pool and found Justin lying down in the pool in a curled up position. Sayan Roy and Chottu Naskar then pulled Justin out of the pool. He was unconscious . Mouth to mouth respiration was given to Justin by Thapandas . But Justin was still unconscious. Hence, an ambulance was called and Justin was taken to Amity Clinic. According to Dr. Phupesh Chand , the Medical Officer there, he also gave mouth-to-mouth respiration to W.P. ( C ) No. 1312 of 2010 10 Justin. But there was no change in his condition. According to Dr. Chand Justin's body had developed a bluish tinge when he was brought to the clinic . Justin was referred to Kailash Hospital where he was brought dead . Information about the incident was reported to the Station House Officer (Anil Kumar Samania) of 39 Police Station , Noida, Uttar Pradesh at 1045 hours. It was entered in the G.D. as entry No. 18. Inquest over the deadbody of Justin was conducted by T.J. Singh, the Sub Inspector. According to Samania, a crime case was not registered since the inquest and preliminary enquiry revealed that Justin's death was on account of drowning. First autopsy on Justin was conducted by Dr. Rakesh Kumar on 4-10-2009. He had found both the lungs of Justin conjusted and froth was present . His nails were found cyanosed. Apart from an aberration on the front part of the left knee joint no other injuries were found on the body. Hence, Dr. Rakesh Kumar concluded that the death of Justin was due to asphyxia as a result of drowning. The viscera was not preserved because the doctor was sure that death was due to drowning. According to the said doctor he had taken out the brain from the skull and dissected the same to find it W.P. ( C ) No. 1312 of 2010 11 conjusted. He had taken one hour to conduct the autopsy. All the above claims of Dr. Rakesh Kumar were found to be contradictory to the findings arrived at after the second autopsy. How the doctor had reached the conclusion that death was due to drowning, without dissecting any of the internal organs , needs to be investigated further . After the first postmortem the body was taken to Kerala where it was laid to rest at the cemetery of Infant Jesus Church, Vazhakkulam on 6-9- 2009. There was no record of any complaint of ragging made by the deceased. Enquiries revealed that no such complaint was received by the authorities from any of the students during the period when the deceased was studying in the Academy. The parents or guardians of Justin had never made any complaints to the authorities regarding ragging. The depth of the swimming pool where the incident occurred was 180 cms. and not 150 cms. as claimed by the petitioner. About 120 cameras are used by the University for the purpose of surveillance . Recordings are done only in 12 cameras at the entrance and exit areas. No recordings are made from the cameras installed at the pool site because of the presence of girl students swimming there. W.P. ( C ) No. 1312 of 2010 12 The Special Investigation Team had questioned the police officers who had conducted the previous investigation as also the friends of Justin. Since the Special Investigation Team is of the opinion that further investigation is necessary to find out the truth in this case, the team has not concluded as to the cause of death of Justin. 4. After hearing both sides and perusing the case diary, I am of the view that there are a few missing links and gray areas which have to be cleared before a conclusion either way could be reached. a. Was Sayan Roy who was staying in the adjacent room in the hostel and who was not able to catch up with Justin in the two laps of breath stroke in the pool, nurturing any animosity towards Justin ? b. Was there some foul play inside the pool resulting in Justin finding his watery grave there itself ? c. Why did Ajay after entering his name in the swimming pool register took up the stand that he did not enter the swimming pool ? W.P. ( C ) No. 1312 of 2010 13 d. Were the authorities of Amity University suppressing the happenings including ragging, if any, in their campus ? e. When the second autopsy conducted over the deadbody of Justin showed two contusions on the head and two contusions on the trunk of Justin, was not Dr. Rakesh Kumar who conducted the first autopsy and who observed only a small aberration on the front of the left knee joint, hiding something ? f. Was Dr. Rakesh Kumar justified in not dissecting any of the internal organs of Justin and preserving the blood, viscera etc. for histopathological examination before arriving at the conclusion that Justin died as a result of asphyxia due to drowning ? g. Was the version given by the so called friends of Justin that the chest pain which he was complaining of was attributable to a hit by the ball during basketball game, believable ? h. Was there a conscious move by any vested interests to suppress the real cause of death of Justin ? W.P. ( C ) No. 1312 of 2010 14 5. The geographical and language barriers are definitely adverse factors which could have impeded a proper investigation by the State Police . The occurrence resulting in the death of Justin admittedly took place at Noida in Uttar Pradesh. Considering the limitations of the Kerala Police which itself has concluded that further investigation is necessary for unearthing many of the gray areas in the investigation, I am of the view that the further investigation of the case should be entrusted with the Central Bureau of Investigation which is a central agency better equipped to probe the case further and which may not have the disadvantage of the language problem as well. Accordingly, the investigation of Crime No. 262 of 2009 of Thadiyattupramba Police Station is entrusted with the Central Bureau of Investigation . The Circle Inspector of Police, Kunnathunadu, or such other officer who is in charge of the investigation of the said case shall forthwith forward the investigation files to the Director, Central Bureau of Investigation, New Delhi who shall entrust the task of W.P. ( C ) No. 1312 of 2010 15 investigating the above case with a team of officers of proven record and investigative skills without any delay. The investigation/further investigation of the case shall be concluded expeditiously and at any rate within eight months of receipt of a copy of this judgment by the Director and a final report filed before the Magistrate concerned . In the result, this Writ Petition is disposed of as above. Dated this the 17th day of September , 2010. Sd/-V. RAMKUMAR, JUDGE ani/ /true copy/ P.S. to Judge.