IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 OP(Crl.).No. 1460 of 2011(Q) ---------------------------------- CMP.3966/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM .................... PETITIONER -------------- K.K. BALAKRISHNAN, S/O.LATE RAMANKUTTY, CHENAKALNGADIYIL KUMMIL HOUSE, THENHIPALAM AMSOM DESOM, THENHIPALAM.P.O, MALAPPURAM DISTRICT. BY ADVS. SRI.ALAN PAPALI SRI.GILBERT GEORGE CORREYA SRI.SOJAN MICHEAL RESPONDENT(S): --------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM - 695 001. 3. THE ADDITIONAL DIRECTOR GENERAL OF POLICE, CRIME BRANCH, THIRUVANANTHAPURAM-695 001. 4. THE DEPUTY SUPERINTENDENT OF POLICE, NARCOTIC CELL, MALAPPURAM - 695 505. 5. THE CENTRAL BUREUA OF INVESTIGATION, REPRESENTED BY ITS DIRECTOR, NEW DELHI - 110 001. BY PUBLIC PROSECUTOR SRI.MANU THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs OPCR. NO. 1460/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE FIR IN CIRME NO.802/2008 OF KONDOTTY POLICE STATION DATED 04/11/2008 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM. P2: COPY OF THE POSTMORTEM REPORT IN RESPECT OF THE DECEASED SURESH DATED 04/11/2008 ISSUED BY THE MEDICAL OFFICER, MEDICAL COLLEGE CALICUT. P3: COPYOF THE FINAL REPORT DATED 05/09/2009 IN CRIME NO.802/2008 OF KONDOTTY POLICE STATION. P4: COPY OF THE JUDGMENT IN WPC NO.32570/2009 DATED 06/07/2010. P5: COPY OF THE PETITION IN C.M.P. NO.3966/2010 FILED BY THE PETIITONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM DATED 19/08/2010. P6: COPY OF THE ORDER IN C.M.P. NO.3966/2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM DATED 23/11/2010. P7: COPY OF THE AFFIDAVIT SWORN BY N.K,.LAIJU, S/O.VALSAN, AUTO DRIVER DATED 14/02/2011. P8: COPY OF THE AFFIDAVIT SWORN BY M.U.SAREESHKUMAR, S/O.UNNIKRISHNAN, DATED 04/02/2011. P9: COPY OF THE AFFIDAVIT SWORN BY M.VIJESH, S/O.VIJAYAN DATED 14/02/2011. P10: COPY OF THE WITNESS LIST SUBMITTED BY THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM DATED NOVEMBER, 2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(Crl).No.1460 of 2011 --------------------------------------- Dated this 08th day of June, 2011 JUDGMENT Petitioner, whose son Suresh sustained injury and succumbed to it on 04.11.2008 at about 00.15hrs has sought a direction to the fourth respondent, Central Bureau of Investigation (for short, "the CBI”) to conduct further investigation in Crime No.802 of 2008 of Kondotty Police Station, or direct the second respondent (D.G.P) to constitute a special team of the crime branch for proper investigation of the said case and for other appropriate reliefs. 2. Petitioner's son, Suresh along with one Musthafa while travelling on a motor cycle with No.KL-55A-401 along the Kondotty Bypass road and while reaching in front of the IBP petrol pump sustained injuries on 04.11.2008 at or by 00.15hrs and succumbed to it. The Kondotty police registered Crime No.802 of 2008 (Ext.P1 is the FIR) for offences punishable under Secs.279 and 304A of the Indian Penal Code (for short, "the IPC”) against the driver of a lorry on the strength of the first information given by Muhammedali, uncle of Musthafa, one of the deceased on 04.11.2008 at 7.15p.m. The said Muhammedali O.P(Crl).No.1460 of 2011 -: 2 :- stated that Musthafa was riding motor cycle with No.KL-55A-401 with Suresh sitting on the pillion. Muhammedali learned from one Ashraf, an Autorikshaw driver that a lorry hit the motor cycle. Muhammedali told the police that Musthafa was taken to hospital by Puthiyarakkal Salim and others. The police after investigation found that the accident occurred not due to the involvement of the lorry as stated in Ext.P1, FIR but the two deceased were travelling on the motor cycle with No.KL-55A-401, parallel to them there was another motor cycle on which one Mukesh and Vijesh were travelling (Mukesh riding the motor cycle bearing No.TN-01K-9224), at that stage a lorry came at the opposite side, Mukesh who was riding the motor cycle swerved it to the left side, it happened to hit the motor cycle which Musthafa was riding, the latter lost control, motor cycle fell down and Musthafa and Suresh sustained injuries. Those who came to the spot hearing about the accident found Musthafa breathless but, Suresh had not died. They took Suresh to the hospital. Musthafa was taken to the hospital by the police. The Medical Officer conducted postmortem examination on the body of the two deceased. On the above allegation, the Circle Inspector, Kondotty submitted final report against Mukesh, rider of Motor cycle with O.P(Crl).No.1460 of 2011 -: 3 :- No. TN-01K-9224 for offences punishable under Secs.279 and 304A of the IPC. (Ext.P3 is the final report). Now, petitioner wants investigation by the CBI or a special team constituted by the D.G.P as above stated. It is stated that it is a case of murder. Petitioner accuses Mukesh, rider of motor cycle with registration No.TN-01K-9224 for the offence of murder. It is stated that there are several witnesses to the incident who are not questioned by the police (whose affidavits are produced in the case as Exts.P7 to P9). Learned counsel has requested that in the circumstances, the case may be entrusted to the CBI or a special team to be constituted by the D.G.P for investigation. Learned counsel has pointed out that there were several ante-mortem injuries found on the body of the deceased which stand not properly explained. It is pointed out that a crushed laceration with compound fracture found on the body of the Suresh is not explained. Learned Public Prosecutor has submitted that investigation was conducted in the proper manner, circumstances do not warrant any inference that it is a case of murder as pleaded by petitioner and that merely because at a later point of time petitioner claims that certain witnesses had witnessed the incident, investigation already conducted may not be reopened. Learned Public O.P(Crl).No.1460 of 2011 -: 4 :- Prosecutor submitted that as revealed from the records both the motor vehicles had suffered damage which itself supports the conclusion of investigating officer regarding collision of the two motor cycles. Learned Public Prosecutor has also invited my attention to the statement of the Medical Officer who has conducted the postmortem examination and the report of the Regional Transport Officer on the vehicles involved. Learned standing counsel for the CBI argued that having regard to the facts and circumstances this is not a fit case to be entrusted to the CBI for investigation. 3. I have gone through the CD file concerning the investigation conducted by the Circle Inspector, Kondotty. I have also gone through the order passed by the learned Magistrate refusing to direct further investigation in the matter. Now the question is whether a further investigation is to be directed and if so it should be by the CBI. 4. True, petitioner has a grievance that the case, in spite of being a murder, has been transformed into a vehicle accident incorporating offences under Secs.279 and 304 of the IPC. But, it is not as if whenever an aggrieved party is not satisfied with the investigation, the Court must direct further investigation. O.P(Crl).No.1460 of 2011 -: 5 :- The Supreme Court has held that Kishanlal Vs. Dharmendra Bafna and Anr. ((2009)7 SCC 685) as to when exactly further investigation is permissible. It is held that the power under Sec.173(8) of the Code of Criminal Procedure could be invoked, (1) when new facts come to light (2) when superior courts find that the investigation is tainted and/or unfair or (3) when superior courts find that it is required in the ends of justice. It is also held that in a case where the Magistrate found that there was no bias on the part of the investigating officer, they had acted as responsible police officers and the complainant did not specify any hidden truth warranting further investigation, a direction for further investigation is not required. I do not forget that in the present case petitioner has a contention that there are witnesses to the alleged murder (whose affidavits are Exts.P7 to P9). 5. The facts revealed from the investigation as born out from the CD file are thus: At the relevant time, the motor cycle with No.TNO1K-9224 was being ridden by Mukesh (accused in the case) with his friend Vijesh riding on its pillion. The said persons and Musthafa and Suresh who were travelling on a motor cycle with No.KL-55A-401 O.P(Crl).No.1460 of 2011 -: 6 :- and one Mujeeb and others were close friends engaged in marble work. On the day of incident a lorry carrying marble had been to Areekodu where a portion of the marble was to be unloaded in connection with the work of the said persons. All of them were engaged in that work and and a portion of the marble was unloaded from the lorry. The rest of marble was to be unloaded at Karuvam Kallu and accordingly the lorry was to go to that place. Musthafa and Suresh travelled on one motor cycle while Mukesh and Vijesh travelled on another, and other persons travelling in yet another motor cycle. They all came to Kondotty junction where Mujeeb among them got down to give direction to the driver of the lorry. The four others proceeded to Karuvam Kallu on the motor cycles as above stated. While so, Mujeeb was called over telephone and informed about the accident involving the motor cycles. He informed his friends and all of them came to the spot where they found Musthafa and Suresh lying on the road wherefrom Suresh was taken to the hospital as he was not dead. The police came there and took Musthafa to the hospital. CW2 cited by the investigating officer in the final report is Vijesh who had described the accident in the manner above stated. CWs.3 and 4 are cited to say that they took the deceased to the O.P(Crl).No.1460 of 2011 -: 7 :- hospital. I have perused the mahazar for scene of occurrence which refers to the motor cycle with No.KL-55A-401 on which the deceased were travelling. It is seen that the said motor cycle had heavy damage on either side and on the front and rear sides. I find from the CD file that the Joint RTO has inspected both the vehicles and has given statement which also finds place in the file. It is seen from the file that the motor cycle with No.TN01K 9224 also had suffered damage. The Joint RTO has reported that when compared to the motor cycle on which the deceased were riding, the damage on the motor cycle on which Musthfa and Vijesh were riding was comparatively less. He also stated that damage on the motor cycles were corresponding and could be due to parallel collision. 6. Much of the argument of learned counsel is based on the certificates of postmortem examination on the body of the deceased persons. It is submitted that many of the injuries stand unexplained and in particular, the crushed laceration with compound fracture on the left leg. Ext.P2 is the photocopy of the postmortem certificate of the said Suresh. It mentions altogether 16 ante-mortem injuries of which, inujury No.15 is an internal injury, thick subdural haemorrhage on the occipital region. The O.P(Crl).No.1460 of 2011 -: 8 :- Medical Officer has given the opinion that postmortem findings are consistent with death due to head injury. 7. So far as injuries suffered by Suresh is concerned, the Medial Officer in his statement stated that of the 16 injuries most were abrasions, lacerated wounds and contusions and the same could be caused in a road traffic accident. There was a lacerated wound on the right parietal region. There was crushed laceration with compound fracture on the left leg. The Medical Officer opined that none of the injuries were homicidal. I have also gone through the statement of the Medical Officer who conducted postmortem examination on the body of Musthafa. It is seen that there were 13 antemortem injuries and according to the Medial Officer most of the injuries could be caused in a road traffic accident. He opined that none of the injuries were homicidal. It can be due to heavy collision and are not homicidal in nature. 8. I find damage on both the motor vehicles which indicate that the vehicles had a collision and fell down. I have also refer to the statement of the Medical Officer concerning the nature of injuries and how it could be caused. In such a situation, merely for the reason that at a later stage petitioner has come with certain persons who claimed to have seen the accident I am O.P(Crl).No.1460 of 2011 -: 9 :- not inclined to think that for that reason, a further or re- investigation of the case is required. Having regard to the circumstances stated by the Supreme Court in the decision referred supra I am not inclined to think that circumstances brought out before me require a re or further investigation of the case. I also find that learned Magistrate has referred to all aspects of the matter while deciding C.M.P.No.3966 of 2010 filed by the petitioner for re-investigation by the CBI and found that such a course is not necessary. I find no reason to take a different view. I make it clear that the finding or observation made above will be confined to the disposal of this original petition. With the above observation this original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-