IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 Crl.MC.No. 1397 of 2011() ------------------------- SC.115/2007 of ADDL.SESSIONS COURT (ADHOC II)ERNAKULAM .................... PETITIONER(S): ------------------------- MANU MATHEW, AGED 22 YEARS, S/O.MATHEW, MAIN HOUSE, VALLIKUNNU DESOM, VALLIKUNNU VILLAGE, KANNUR. BY ADV. SRI.T.D.ROBIN RESPONDENT(S): ---------------------------- 1. JOSEPH @ BABY, AGED 50 YEARS, S/O.VARKEY, NELMELIPARAMBIL HOUSE, MALAYATTOOR KARA, MALAYATTOOR. 2. STATE OF KERALA REPRESENTED BY C.I. OF POLICE CHENGAMANADU POLICE STATION (CRIME NO.547/2007) OF KALADY POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.DINESH MATHEW J.MURICKEN R2 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1397 of 2011 ==================================== Dated this the 31st day of May, 2011 O R D E R Petitioner's mother, Regina was found dead in the newly built house on 06.07.2007. Some of the local people who assembled there hearing the news took Regina to a nearby Medical Officer who declared her dead. The body was then taken to the Community Health Centre at Malayatoor where the same was subjected to postmortem examination. The Police Surgeon who conducted postmortem examination opined that death was due to hanging. The Kalady Police registered Crime No.547 of 2007 initially as if it is an unnatural death and in the course of investigation the section of offence was altered to one under Section 498A and 306 of the Indian Penal Code. According to the police the deceased was subjected to cruelty by the first respondent, her husband and she committed suicide on 06.07.2007 (allegedly) as abeted by the first respondent. Accordingly a final report was submitted before the learned Judicial First Class Magistrate, Perumbavoor. Case was committed for trial. Learned Sessions Judge made over the case for trial to the learned Additional Sessions Judge Adhoc-II, Ernakulam where the case was numbered CRL.M.C. No.1397 of 2011 -: 2 :- as S.C. No.115 of 2007. At that stage petitioner, not satisfied with the investigation conducted and alleging that it is a case of murder of his mother by first respondent, filed Crl. M.C.No.945 of 2009 in this Court. This Court disposed of that petition by Annexure-A2, order dated 01.07.2009 directing that if in the trial of the case some other material is unveiled with regard to the cause of death which warrants further investigation and the Investigating Officer seeks permission for further investigation learned Sessions Judge is competent to direct further investigation under Section 173(8) of the Code of Criminal Procedure (for short, “the Code”) Trial of the case started and witnesses were examined. Relatives of the deceased were examined as P.Ws.1 to 4. The Medical Officer who conducted autopsy was examined as P.W.7. P.W.7 stated that there were so many antemortem injuries on the body of the deceased the type of which are not usually seen in a case of simple hanging and if the deceased was unconscious and she was hanged, death would be said to be due to hanging. At that stage prosecution wanted further investigation and the Investigating Officer filed Crl.M.P. No.2433 of 2010 before learned Sessions Judge. That application was opposed by the first respondent. Learned Sessions Judge in the light of opinion expressed by P.W7 held that further investigation is required and CRL.M.C. No.1397 of 2011 -: 3 :- directed further investigation under Section 173(8) of the Code. After such further investigation, the Investigating Officer has submitted additional report again incorporating Sections 498A and 306 of the IPC. It is not disputed that consequent to the submission of further report other witnesses for the prosecution were examined. At that stage petitioner has approached this Court with this petition seeking further investigation by a different agency than the present team which conducted investigation. 2. I have heard learned counsel for petitioner, first respondent and the learned Public Prosecutor. Learned counsel submitted that there are unexplained, suspicious circumstances surrounding death of petitioner's mother which are required to be explored by a different investigating agency. It is contended that prosecution has not given explanation for the antemortem injuries found on the body of the deceased. Learned counsel contended that as opined by P.W.7, such injuries are not usually seen in the case of a simple hanging. It is submitted by learned counsel that the inquest report would show that there were patches of paint like substance on different parts of the body which is indicative of a scuffle between the deceased and the assailant in the new built building where deceased was found dead. Further contention is that first respondent had CRL.M.C. No.1397 of 2011 -: 4 :- started withdrawing money from the joint of account of himself and the deceased following the death of deceased but that matter was not investigated. The Medical Officer before whom the deceased was first produced was not questioned. No independent witness has been questioned by the police with respect to the alleged incident. It is also contended that even the additional witnesses cited in the additional report have not been examined by the prosecution and instead, learned Public Prosecutor has given up those witnesses. In the circumstances it is necessary to direct further investigation by a different agency. Learned counsel for first respondent contended that existence of antemortem injuries were taken note of by this Court while disposing of Crl. M.C. No.945 of 2009 and that was found to be insufficient to direct a further investigation as is clear from the operative portion of the order in the said proceeding. Learned counsel submitted that the deceased had committed suicide by hanging on a saree tied on the steel ring on the first floor of the building. According to learned counsel the nuns staying near the building came to the place of occurrence, cut the ligature and the body of the deceased lying hanging on the ligature fell on the rubbles on the ground floor of the building and that resulted in there being antemortem injuries on the body of the deceased. CRL.M.C. No.1397 of 2011 -: 5 :- Learned counsel submitted that existence of antemortem injuries on the body of the deceased is not a ground to order a further investigation for a third time. It is also contended that there is no purpose in directing a further investigation at this stage. I have heard learned Public Prosecutor also. 3. I have gone through Annexure-II, order passed by this Court in Crl. M.C. No.945 of 2009 filed by petitioner seeking further investigation. In paragraph 6 of the order learned Judge observed that though the postmortem certificate showed antemortem injures the possibility of causing those injuries if the case of prosecution is accepted cannot be ruled out and based on the antemortem injuries it is not proper to direct further investigation. It was observed that “if some other material is unveiled with regard to the cause of death which warrants a further investigation and the Investigating Officer seeks permission for further investigation learned Sessions Judge is competent to direct further investigation under Section 173(8) of the Code of Criminal Procedure”. Therefore the mere existence of antemortem injuries on the body of the deceased is not a ground to order a further investigation. 4. I have gone through the postmortem certificate where apart from pressure abrasion caused by the ligature there is mention CRL.M.C. No.1397 of 2011 -: 6 :- about injuries including six contused injuries and lacerated wound. It is seen that those contusions are mostly confined to that part of the body above the shoulder except one, which is a contusion 2x1x0.3 cm on the front aspect of the left shoulder. It is not disputed before me that in the additional report the police has included statement of witnesses who came to the scene of occurrence and cut the ligature. The body then slipped from the hands one of the nuns and fell into the ground floor of the building. I have been taken through the evidence of P.W.9 who investigated the case. There of course, he claimed that he had investigated into the injuries suffered by the deceased but he did not investigate as to the cause of injury and the reason for presence of patches of paint on the body of the deceased. In further examination he stated that at the portion where the body of deceased fell (on the ligature being cut), rubbles were spread. 5. I referred to Annexure-II, order passed by this Court in Crl. M.C. No.945 of 2009 where this Court observed that the possibility of antemortem injuries on the body of deceased being caused if prosecution case is accepted (i.e. on account of cutting the ligature and the body falling on the ground floor covered by rubbles) cannot be ruled out. In the light of that, merely for the reason of existence of antemortem injuries which I have stated above I do not CRL.M.C. No.1397 of 2011 -: 7 :- consider that it is necessary to direct a further investigation. 6. So far as the non-examination of those witnesses who have cut the ligature, etc., is concerned I am told that Public Prosecutor has given up those witnesses. It is within the power of the Public Prosecutor to give up the witnesses. I must bear in mind that examination of those witnesses would not have advanced the case of petitioner. I must also bear in mind that if at all examination of those witnesses is necessary learned Sessions Judge has power to summon those witnesses under Sec.311 of the Code. 7. Concededly there is no witness to the alleged murder as contended by petitioner. P.Ws.1 to 4 who claimed that it is a homicide are admittedly not witnesses to the incident and it is also not disputed that they are closely related to the deceased one way or other. Merely because they opined that it is a homicide it is not worth to direct a further investigation endlessly. 8. I do not also find scope for directing further investigation. For, nothing further is coming out indicting that death was due to murder. Petitioner has no case that there is any witness to the incident. Learned counsel would request this Court to draw an inference that presence of paint like substance on the body of the deceased was the result of a scuffle. Merely based on such CRL.M.C. No.1397 of 2011 -: 8 :- inference there could be no charge for a murder and much less any conviction. I must bear in mind the submission of learned counsel for petitioner that the incident occurred in a newly built house. I stated that on the ligature being cut the body fell into the ground floor. Possibility of the body hitting portion of the building and acquiring patches of paint on the body cannot be ruled out. Having heard counsel for petitioner and the learned Public Prosecutor and gone through the materials on record I am not satisfied that it is necessary to direct a further investigation by a different agency 9. Learned Sessions Judge who is trying the case shall dispose of the case on its merit untrammelled by any observations contained in this order. Criminal Miscellaneous Case is dismissed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv