IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 WP(C).NO. 33124 OF 2010(M) ----------------------------------------- PETITIONER(S): ----------------------- K.THANKAMMA, UNNIKKANTHARA, ERIPLAVU P.O., KARTHIKAPPALLY, ALAPPUZHA DISTRICT, PIN - 690 516. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 695001. 2. THE DIRECTOR GENERAL OF POLICE (KERALA), THIRUVANANTHAPURAM. 695001. 3. THE SUPERINTENDENT OF POLICE, PATHANAMTHITTA, PATHANAMTHITTA DISTRICT - 689645. 4. DEPUTY SUPERINTENDENT OF POLICE, PATHANAMTHITTA, PATHANAMTHITTA DISTRICT - 689645. 5. THE CIRCLE INSPECTOR OF POLICE, KOZHENCHERY, PATHANAMTHITTA DISTRICT - 689645. 6. THE SUB INSPECTOR OF POLICE, ARUMULA POLICE STATION, PATHANAMTHITTA DISTRICT - 689645. BY PUBLIC PROSECUTOR SHRI M.K. PUSHAPALATHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.33124 of 2010 ==================================== Dated this the 04th day of February, 2011 J U D G M E N T Petitioner’s son Raju, died by drowning on August 8, 2010. Petitioner alleged that her son was assaulted by the 5th and 6th respondents and that they are responsible for the death of her son. She filed Ext.P2, representation to the second respondent for proper investigation but no action was taken. Hence this petition to direct second respondent to hand over investigation of the case to a superior officer in the Crime Branch. Learned counsel for petitioner contends that a reading of the postmortem examination report shows that there were ante mortem injuries on the body of the deceased which was not properly explained by the police. According to the petitioner the 5th respondent assaulted the deceased, chased him to the river and thereon he happened to be drowned. I have heard learned counsel for petitioner and the learned Public Prosecutor. Learned Public Prosecutor submitted that on investigation death was found to be accidental and accordingly a report was filed before the learned Magistrate on 07.09.2010. W.P(C) No.33124 of 2010 -: 2 :- 2. It is true that petitioner has made allegations against respondents 5 and 6 and that the case was investigated by the latter. But for that reason alone I am unable to say that investigation is not fair and it is to be handed over to any other Officer. Question is whether on the facts and circumstances of the case such a course is necessary. 3. I have gone through the certificate of postmortem examination dated August 10, 2010. In that certificate the Assistant Professor of Department of Forensic Medicine who conducted the postmortem examination opined the cause of death thus: “postmortem findings were consistent with the death due to drowning”. 4. It is seen from the other findings that all the internal organs were otherwise normal except of course early signs of decomposition. Some ante mortem injuries are also described in the said certificate all of which are abrasions on the upper eyelid, forehead, nose, right and left knee and elbows. It is seen from the statement of the Assistant Professor of Forensic Medicine recorded by the police under Sec.161 of the Code that according W.P(C) No.33124 of 2010 -: 3 :- to him there was peeling of skin on the forehead, nose, knee, etc., but apart from that there was no injuries on the body of the deceased. He has also opined that death was due to drowning. Ante mortem injuries referred to in the postmortem certificate in the light of the above statement of the Medical Officer are peeling of skin. 5. I have gone through the file and statements of witnesses questioned by the police. The stand of the 6th respondent in his counter affidavit is that on 08.08.2010 morning the deceased had gone for work and returned to his house by about 5.30 p.m. Then he left the house telling petitioner that he was going to purchase lottery tickets. He did not return even by 8.30 p.m. A man missing case was registered as Crime No.775 of 2010 of Aranmula Police. In the course of investigation information was received that the body of the deceased was found in Pampa river near Anjilimoottil kadavu on 10.08.2010 at about 11.00 a.m. The body was recovered. The Deputy Superintendent of Police, Pathanamthitta conducted preliminary investigation and in that investigation it was revealed that on the night of 08.08.2010 the deceased had been to Kozhencherry town in a drunken mood with his friend, Roni and they made W.P(C) No.33124 of 2010 -: 4 :- nuisance in the town. At that time the Circle Inspector, kozhencherry reached the place. On seeing the Circle Inspector and party the deceased and Roni ran towards the side of market. After the Circle Inspector and party left the place the deceased and Roni came back and started their earlier activities. Two policemen who were on treasury duty saw the deceased and Roni making nuisance in the town and asked them to disperse. But they did not heed to that. Thereon the policemen informed the Sub Inspector, about the matter. On getting information Sub Inspector reached the place and on seeing the police party the deceased and Roni ran towards the comfort station situated near Pampa river. The Sub Inspector and party flashed torch and thereon deceased and Roni started to swim across Pampa river. Roni crossed Pampa river but the deceased could not. Statement of Roni was recorded by the Sub Inspector on the next day of registration of the case. The Sub Inspector who conducted investigation in the initial stage was transferred on 18.08.2010 and then came Sub Inspector, Rajasekharan Nair who took up investigation of the case. The deponent says that the Assistant Professor who conducted postmortem examination was questioned and the cause of death was revealed as due to W.P(C) No.33124 of 2010 -: 5 :- drowning. 6. I have gone through the statement of Roni referred to in the counter affidavit of respondent No.6. He stated about what transpired on the evening of 08.08.2010. He stated that he had been to Kozhencherry town where he met the deceased. He had already been to Seon Bar and consumed liquor with others and when he came out he saw the deceased. The deceased collected money from the pocket of a person who was lying on the road side and thereafter Roni and the deceased went to Seon Bar and took drinks. At that time the person from whose pocket the deceased had collected money came to them and there was a wordy altercation between the said person and the deceased. It is while so the Circle Inspector and party reached. On seeing them Roni and the deceased ran away from the scene and came back after the Circle Inspector and party left the place. There was again a wordy altercation between the deceased and the person from whose pocket the deceased had collected money. It is while so, two policemen who were on treasury duty came there and asked the deceased and Roni to disperse, but they did not. Thereafter the Sub Inspector and party came. Roni and deceased ran towards the side of comfort station (where the river is W.P(C) No.33124 of 2010 -: 6 :- situated). They were followed by some persons flashing torch. Roni and deceased ran towards the side of the bridge. On seeing the people carrying torch coming near them Roni jumped to the river and swam away. When he got into the river deceased was standing on the bank but deceased had not jumped into the river along with him. Later he learnt about the death of deceased. 7. The above statement of Roni supports the stand of 6th respondent in the counter affidavit. That is further corroborated by the report of postmortem examination and statement of Doctor. I stated that as per the statement of the Doctor there was no external injuries except peeling of skin on the body of the deceased. Report of postmortem examination revealed that death was due to drowning. It is obvious that the deceased had gone into the river. 8. Learned counsel contended that though it is the version of the police that the deceased had consumed liquor, postmortem examination did not reveal that. But I must bear in mind that the alleged incident was on the night of 08.08.2010 when deceased was said to have taken drinks while postmortem examination was held on 10.08.2010. Smell of liquor need not W.P(C) No.33124 of 2010 -: 7 :- necessarily be present at the time of postmortem examination a few days after the incident. On going through the file I am not inclined to think that a change of Investigating Officer is required. Writ Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv