IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 WA.No. 1139 of 2011() --------------------- (AGAINST THE JUDGEMENT IN OPCR.1460/2011 Dated 08/06/2011) APPELLANT/ PETITIONER ------------------------ K.K.BALAKRISHNAN, S/O.LATE RAMANKUTTY, CHENAKALNGADKYIL, KUMMIL HOUSE, THENHIPALAM AMSOM DESOM, THENHIPALAM P.O., MALAPPURAM DISTRICT. BY ADV. SRI.ALAN PAPALI SRI.P.K.VIJAYAMOHANAN SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S. SMT.O.V.BINDU RESPONDENTS/RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM-695001. 3. THE ADDITIONAL DIRECTOR GENERAL OF POLICE, CRIME BRANCH, THIRUVANANTHAPURAM-695001. 4. THE DEPUTY SUPERINTENDENT OF POLICE, NARCOTIC CELL, MALAPPURAM-695505. 5. THE CENTRAL BUREAU OF INVESTIGATION, REP. BY ITS DIRECTOR, NEW DELHI-110001. R1 TO R4 BY SR. GOVERNMENT PLEADER ADV. SMT. K. MEERA R5 BY ADV. MR. P. CHANDRASEKHARA PILLAI. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MANJULA CHELLUR, Ag. CJ & P.R. RAMACHANDRA MENON, J. .............................................................................. W.A.No.1139 OF 2011 ......................................................................... Dated this the 16th November, 2011 J U D G M E N T MANJULA CHELLUR Ag., CJ. Heard the learned counsel for the appellant as well as the learned Government Pleader representing the State. We have gone through the judgment of the learned Single Judge and also the detailed counter affidavit filed by the respondents before the learned Single Judge. 2. The appellant/petitioner approached the learned Single Judge for a direction to the 4th respondent /Central Bureau of Investigation (for short, 'CBI') to conduct further investigation in Crime No. 802 of 2008 of Kondotty Police Station or direct the second respondent to constitute a special team of the Crime Branch for further investigation of the Crime No. 802/2008 3. The history which necessitated registration of Crime W.A.No.1139 OF 2011 2 No.802 of 2008 in brief are as under: On 04.11.2008, at 00.15 hrs, the son of the present petitioner by name Suresh was proceeding on a motor cycle bearing No. KL.55A-401 along with the rider Musthafa along the Kondotty Bye-Pass road. When they reached the IBP Petrol Pump, he said to have met with an accident and was found on the road along with the rider Musthafa . They sustained fatal injuries .The rider Musthafa succumbed to injuries at the spot and Suresh, the son of the petitioner died on the way to the hospital. It is not in dispute that on the complaint of uncle of the deceased Musthafa, Crime No. 802 of 2008 came to be registered. The concerned Police took up investigation for the offences punishable under Section 279 and 304A of the IPC along with the other provisions. According to the first complaint, some lorry said to have hit the motor bike of Suresh, resulting in the death of both the W.A.No.1139 OF 2011 3 rider and pillion rider. Some doubts were also expressed that it may not be a case of accident but it was an intentional murder on the part of the driver of the lorry. (The number of the lorry was unknown). Based on the complaint, investigation was conducted and nothing seems to have happened during the course of the investigation so far as the petitioners are concerned. Only after filing the charge sheet, the appellant seems to have thought of approaching this Court wherein this Court in an earlier writ petition (W.P.(C)32570 of 2009) gave a direction as follows: “In case the petitioner is able to satisfy the Magistrate that there are circumstances and grey areas necessitating a further investigation either by the Crime Branch of Police or by the CBI and files an application seeking further investigation and in case the Magistrate, after perusing the W.A.No.1139 OF 2011 4 records and hearing both sides comes to the conclusion that the matter requires a further probe by an independent agency, it shall be lawful for the Magistrate to order further investigation by any of those agencies.” 4. Subsequent to this direction, as a matter of fact, the appellant did approach the Magistrate Court with an application( Ext.P5) and the learned Magistrate concluded as per Ext. P6 that there was no need to direct further investigation by any of the agencies sought by the appellant herein, in his application. Aggrieved by the said order, he approached the learned single Judge of this Court by filing O.P.(Crl.)1460 of 2011. The learned Single Judge dismissed the Original Petition after referring to the important aspects of the investigation conducted by the investigating agency. Aggrieved by the said order of the learned Single Judge, the appellant is before us. W.A.No.1139 OF 2011 5 5. On going through the judgment of the learned Single Judge, we notice that the learned Single Judge has gone through the complete case diary connected to the above crime number, apart from going through the orders of the learned Magistrate,who refused to order further investigation in the matter. The main contention of the appellant seems to be that though it was a case of murder, it was made to look like an accident and in this process, the real culprits have escaped, who are responsible for the alleged murder of his son Suresh and Musthafa. 6. The learned Counsel appearing for the appellant vehemently contends that there was no justification for the investigating agency not to look into the affidavits of the persons, which were filed before the Magistrate as per Exts. P7 to P9, i.e., the driver of one autorickshaw and two passengers, who were travelling in the said autorickshaw. W.A.No.1139 OF 2011 6 According to the appellant's Counsel, having regard to the contents of the affidavits, the Magistrate ought to have directed re-investigation of the crime by one of the agencies suggested by the appellant. First of all, when we look at the affidavits, we note that none of these three persons, who have filed the affidavits before the Magistrate, have approached the investigating officer during the course of investigation giving any information to the investigating officer that they were present at the relevant time of accident ie., at 00.15 hrs at the spot of the accident . If they had seen the accident in question what made them to keep quite all this time without approaching the investigating officer, we are at lost to understand. Why they took pains to file affidavits later on before the Magistrate is also not explained convincingly explaining the delay. There is no indication in these affidavits that they ever attempted to bring to the W.A.No.1139 OF 2011 7 notice of the investigating officer or the appellant (father of the deceased Suresh) that they had an occasion to witness the incident. If the uncle of Musthafa was informed by some auto driver that a lorry hit the motor bike of Suresh, the said driver of the autorickshaw ought to have been taken by the uncle of Musthalfa to the investigating officer to give some information in this regard. Till today, neither the driver of the autorickshaw nor others are able to give the number of the lorry, which said to have dashed against the motor cycle of Suresh and Musthalfa. 7. Be as it may, when we look at the investigation conducted by the investigating agency, whatever possible investigation they could do based on the materials placed before them, they have conducted. If the investigation conducted was not with reference to the materials collected by them, then the appellant would be justified in pointing out W.A.No.1139 OF 2011 8 the loop holes in the investigation, seeking for re- investigation. 8. A spot mahazar was conducted, the vehicles were subjected to motor vehicle Inspectors' inspection, statement of witnesses concerned were recorded, dead bodies were sent for postmortem and opinion of the autopsy doctor were also secured. The investigation reveals that when the deceased Suresh and Musthafa reached the IBP petrol pump, they came across another motor cycle driven by their friend Mukesh along with his friend Vijesh. As there seems to be some attempt on the part of the rider/ Musthafa to over take his friend's motor bike bearing No. TN 01K- 9224, the rider of the bike(Musthafa) lost control and there was parallel collision between the two vehicles, as a result of which both Musthafa and Suresh were thrown out of the vehicle resulting in their death. The autopsy doctor's report W.A.No.1139 OF 2011 9 indicates that Suresh sustained as many as 16 injuries, most of them were abrasions, lacerated wounds and contusions. The opinion of the doctor was that such injuries could be caused in a road traffic accident. Doctor' s report also revealed that there was a lacerated wound on the right parietal region and there was crush laceration with compound fracture of the left leg. The autopsy report of Musthafa indicates 13 antemortem injuries and such injuries, as per the opinion of the doctor, could be caused in a road traffic accident. The doctor also opined that none of the injuries were homicidal. 9. The learned Counsel for the appellant is not able to point out how the opinion of the doctor at this stage could be found fault with and it is not his case that none of such injuries could happen in a road traffic accident. 10. From the statement of objection filed by the W.A.No.1139 OF 2011 10 concerned Deputy Superintendent of Police, Narcotic Cell, Malappuram, we note that the investigation was done from every angle, based on the materials which came to the knowledge of the investigating officer. Just because, subsequent to the filing of the charge sheet, some suspicion enters the mind of the kith and kin of the deceased that it could be a case of murder, per se it cannot be a ground for re-investigation. On the other hand, as expressed by the learned Single Judge, the Investigating Officer must be convinced that there are sufficient grounds which would point out the crime of murder and not in case of accident. In order to conclude such opinion, definitely, he has to see the time gap between date of the accident and the affidavits of the three person at Exts.P7 to P9. The learned Magistrate has rightly considered the entire facts placed on record including the contents of the so called affidavits at W.A.No.1139 OF 2011 11 Exts.P7 to P9 and was satisfied that it was not a case which calls for re-investigation. The learned single Judge, after referring to the 'CD' has discussed in detail how the investigation was done and how it does not warrant re- consideration of the investigation. We are not convinced with the contentions raised by the appellant, rather we are convinced with the opinion expressed by the learned Magistrate, confirmed by the learned single Judge . Accordingly the Appeal is dismissed. MANJULA CHELLUR,, ACTING CHIEF JUSTICE. P.R. RAMACHANDRA MENON, JUDGE. lk