IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 WP(C).No. 31687 of 2010(I) -------------------------- PETITIONER: ------------------ SHYMOL JAMES, W/O.LATE JAMES, AGED 38 YEARS, KOCHUMARANGOLI PUTHENPURAYIL HOUSE, KIZHAKOMBU P.O., KOOTHATTUKULAM. BY ADVS. SRI.A.X.VARGHESE SRI.A.V.JOJO RESPONDENTS: ---------------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. STATE OF KERALA, REP. BY SECRETARY, MINISTRY OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 3. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM 695 001. 4. THE SUPERINTENDENT OF POLICE, RURAL, ALUVA 683 101. 5. THE DEPUTY SUPERINTENDENT OF POLICE, ALUVA 683 101. 6. THE CIRCLE INSPECTOR OF POLICE, PIRAVAM POLICE STATION 686 664. 7. MANOJ, KALAPPURAYIL HOUSE, KIZHAKOMBU P.O., KOOTHATTUKULAM 686 662. 8. BABY @ THOMAS, PAZHAYAPARAMBIL HOUSE, KIZHAKOMBU P.O., KOOTHATTUKULAM 686 662. 9. CENTRAL BUREAU OF INVESTIGATION, REP. BY SUPERINTENDENT, KOCHI 682 036. R1-6 BY GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR R9 BY ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.31687 of 2010 -------------------------------------- Dated this the 21st day of February, 2011. JUDGMENT Petitioner is the wife of deceased, James seeking investigation by the Central Bureau of Investigation (for short, “the CBI”) to unravel truth behind the death of the said James. According to the petitioner, on 18.02.2010 at about 8.15 p.m. wife of respondent No.8 (accused No.2) came to her house and told her mother-in-law that the deceased is lying in their house (ie. house of respondent No.8) having received assault from somebody. Petitioner’s mother- in-law went there and found her son, James lying on the varandha of the house of respondent No.8. It is stated that respondent No.7 (accused No.1) poured a bucket of water on the deceased and gave him a beat on the back. Deceased was bleeding through his mouth and nose. Petitioner’s mother-in-law (mother of the deceased) asked the deceased what had happened. He is said to have revealed that respondent No.7 poured a bucket of water on his face. When the deceased regained conscious he said that respondent Nos.7 and 8 assaulted him. He was brought to the house of petitioner and on 19.02.2010 and 21.02.2010 he was taken to Devamatha Hospital, Kothattukulam where he was given outpatient treatment. On being referred he was taken to Karithas Hospital, Kottayam on 25.02.2010. That day at bout 5.45 p.m. he succumbed to the injuries. That day, mother of the deceased gave statement to the Koothattukulam Police who registered Crime No.114 of 2010 for offence WP(C) No.31687/2010 2 punishable under Section 307 read with Section 34 of the Indian Penal Code (for short, “the Code”). After the death of the deceased, Section was altered to one under Section 302 read with Section 34 of the Code. Ext.P2 is the report of postmortem examination where the Associate Professor and Deputy Police Surgeon has opined that deceased died due to head injury. Petitioner would allege that on account of political pressure there is no proper investigation conducted by the Circle Inspector and that inspite of showing respondent Nos.7 and 8 as accused and a crime case was registered for offence punishable under Section 302 read with Section 34 of the Code they were not arrested. It is also alleged that respondent Nos.7 and 8 were not even questioned. According to the learned counsel investigation is proceeding in a very unsatisfactory situation and in the circumstances prayer to entrust the case to the CBI. Learned counsel made a fervent plea to handover investigation to the CBI. Learned Public Prosecutor submitted that investigation is not completed and that the result of scientific examination is yet to be received but, the investigation conducted so far did not reveal involvement of respondent Nos.7 and 8 in the alleged incident. Learned Standing Counsel for the CBI states that this is not a fit case to be investigated by the CBI. 2. It would appear that when the deceased was brought to Devamatha Hospital on 18.02.2010 he was in a conscious state and going by the statement of the Medical Officer who attended the deceased in that hospital that day the WP(C) No.31687/2010 3 deceased was in a drunken mood and himself and the bystander said the cause of injury as due to a fall. There is the statement of another Medical Officer of the same hospital to whom on a subsequent day the bystanders told the cause of injury as due to a fall. Yet another Medical Officer when asked the bystander is said to have been told that injury may have been caused in a scuffle. I found the copy of outpatient treatment card of petitioner at Devamatha Hospital on 19.02.2010 in the CD file where cause of injury is stated as “fall yesterday”. History given at Karithas Hospital on 25.02.2010 is of a “fall Thursday”. I have gone through the statement of the Police Surgeon that the injury on the head which proved to be fatal could be caused by a fall on the back on hard surface and in the same process other injury also could be caused. 3. It is seen from the statement filed by the Circle Inspector who is investigating the case that he has subjected respondent Nos.7 and 8 and some others to polygraph test and is awaiting its result. It is stated that belongings of the deceased such as mobile phone, slippers and artificial teeth were recovered from a drainage about 40 metres away from the alleged place of occurrence. From these circumstances Investigating Officer could not rule out possibility of a fall from the rubble wall. Though learned counsel has a contention that respondent Nos.7 and 8 have not so far been questioned it is seen from the CD file that respondent Nos.7 and 8 were questioned. 4. According to the learned counsel, statement of Medical Officers recorded under Section 161 of the Code of Criminal Procedure (for short, “the WP(C) No.31687/2010 4 Cr.P.C.”) cannot be given credence since it is not a signed statement but that is a way of recording statement of witness. Once the case is registered, unless the Investigating Officer thought it necessary that statement of the witness has be recorded before the learned Magistrate under Section 164 of the Cr.P.C., procedure is to record the statement as provided under Sections 161 and 162 of the Cr.P.C. On going through the file and the counter affidavit filed on behalf of respondent Nos.3 to 6, I do not think at this stage it is necessary to handover investigation of the case to any other agency or change the present Investigating Agency. The present investigation team shall continue investigation and unravel truth behind the cause of death of the deceased. Petition is disposed of accordingly. THOMAS P.JOSEPH, Judge. cks